IN THE HIGH ooum' OF KARNATAKA AT
DATED THIS THE 17% DAY Q1? FEBRUA:{*z,ébo9k j %
BEFORE' % i '
THE HOWBLE MR. JUs'i'I<:E smmnv A % % %
WRIT PETITION as ;oo3%:1_,_g._§
BETWEEN:
sri.pau1samhmj -
SloPiad %
Since deceased , "
Legal _ _, V
1(a) rm. sewn %
89 years; W/o
Re.<:idei1t.._of'I(if;a:n Hangs
Bemdel Past, Mangaim-.-03
A'i'(b) 'E&r§;7Agims ;m.=n.,
'W[a D.'MeIl0
% '5Re:Sidé'n.§_aff_Baingalore 407
4 (Jun sgi smoma 'EH8'
Kalwa (W) Thane-400 605
_ I3'Souza, 53 years
' _ = .._W.C~'t3 Henry Saldanha
Resident of A3 «Yasm Food Co.,
% PostBox3228 Safat 13033
Kuwaii
l(d) Pnuuecia Vanda Cross, 30 ymns
D!o Henry Saldanha
Post Box 3228 Safal 13033
Kuwait
1(6) Fr. Chafles Sakianha s
61 years, S10 Paul Saidana '
Resident afAsha, Kira»
Hcaflh Center, Jaiikatag
Bhadrawathi
1(3) Mr. Awmacc Saldanhzii V
59 years, S.i._'t;)'}"-"$31 "
Mangahn-'.
1(3) Canine fi'som,
W/0 . '
Resident of ( lbert
Kap5i§8d,'Bijai
_____
l(h) years
W70
Saklhi
i 1p. K,
Saldanlm, 51 years
_. S'-!o"'Faui Saldana
% Resident ofliimm House
" "Brande! Post
V Mangalow-575 008
@
l(j) Glusiinc Saldanha, 47 years
Die Paul Saidanha
Resident ofMa.1-yhill Convent
Konebhady PM
Mangalorc-.--5'7S 003
(By Shri. G. Balakrishna __ . ' 1
AND:
1. TheLandTn'bunal -. V g
Mangalore
ByitsChairrnafx*[;.TVL:V1" j
Taluk "
Distxict ' '
2.saa:¢orxa:naaag;;%»%%% _ _-
Repxeseneeaby A
%to.Res':emz¢% , " '
Depanm_ em; M..S; .Bh--i_1di:cig
" ' 00: « *
Naik
= Sm Nail:
g4. 35. sumndm Nail:
.. Sip him'):
A' 3'3 and 4*' respondents
Majors, Rcssidcnt of Mu!-Lhya
V’ PranaTempleRaste
Mangalom-S75 001
District D. K. %
(By Shzi. v. s. Ganja] and Slui.
Respondents N93. 3 and 4, Shri. B. ‘
Government Pieadcr for Respondents – ”
.;¢§¢, _ Ax » ~v A
This Writ Petition is filed “gm: A;_1icle’s’226’ am: 227 of the
Constitution of India, pxagsjng «squash vigle Annemire A dated
28.01.2003 by the Lam} ‘I'”i*–ihi1na3_.L etc.
This pelil’m:x* havir;.g”%fi and writing
on for ofioréeraé fl1is day,.fizb Court daiivered the
Ii)lh>wing:- ” »
as a tenant had sought for
mcupyiay of land in survey 903.503, 502,
59/9, so/if, song of Pacirmrnuii Village, Mangalum.
Dislricl, under the pmvisions of the
H VV –V Reibtms Act, 1961. The Tribunal, by its units:
‘A V’ V’ gnmwd uocupanty rights as claimed. This was
by the mother of rcspondenls 3 and 4, Smt. Seem Bai
A % % ” 1,, way ofa writ petition before this court in wp2o22xz932. The
same was aiiowead and mmanded to the Tribunai inselhr as Survey
3
7 .
tenant of the house and the abutting land,
are l’mil-bearing trees in the following words :-
“(KinareAsthi)–Sarvadi
which are all shown 113 be part of .
would encompass those lands» extent’ ‘ L’
elaimed in survey 310.136/Q…’
4. The Counsel fora attention In
the skesfieh at vaxious paints of lime
including the peiitmne’ t which imm-uy
_ by the petitioner being situate unly in
saufvey whereas the same exients well into survey
sketches mm are available, including the one
Surveyor at the instance of this court. This
‘4 fact is eompletely overiuoked by the tribunal and
H hghewfere, there has been a mis:..am* ‘age ofjustiee.
@
The Tribunal has misread the entries in the mmrdwfilsifights.
The petitioner is shown as Ihc chalageni lenanl at
point of {H118 as eariy as 1968459. Thexgwas Ia’-‘J’¢’1a£.§§§~ ” .
cultivation as “1” in flavour of the
emznuuusly presumed that the in the in V L’
be lnsamed tithe!” as joint, ‘éti’I£i.vai§¢Jn of the
landlord. The tribunal ha; V”‘;:;.v’fi:§sumpfiun under
mciion 133 of Act, 1964, in favour
receipts mam, wig ;»¢ag1§73.74 an the dais: of claim. And
there” no anywhere in the vicinity, it was crucial
at a finding whether the said house was
s;;eam;nwwgyno.m2 and only then, me tenor and pulpufl of
V’iV:1:g’z1fi4″::nenl amid have been propedy interpwted by the
‘4 The finding of the isibunal that the petition is not
land is cammeuns and arbitrary. The existsmcc of fruit-
Lrucs which has been admitted by the witness uf the
msptmdcnis is overlooked by the lribuna}.
‘Z
. S. The counsel seeks to place reliance
judgments: ‘ é
– Kzmmla Devi vs. Tulthalmu
To support the conljsnlion of Indian
Evidenta: Act, would of
documents. Angl iha_e_: in violation at
these guidcligzeé,” to be set asides.
– v.1 the Land Tribzmal,
the of ocrtain land was far stacking fixldcr
floor, whemms in a small of the land,
In answering the quesiicm whether the
in Sectiun .’2(l8) 01′ the Kamaluka Land Refurms
includes land used fer a purpose subservient to
amm and [he definition 01′ the word ‘culfivale’ imam
improving agricultural mtxiuee, it was hcid that it is not catmtacl to
say [hat unless basic oprcratitms like filling, sowing and planting
8
are carried en in the kind, that there is no cultivation fur paiqxises
of Section 45 of the Act. Even when the land is
stacking hay and as a threshing [tour and onty ii”
cultivated, it is still ncganied as 3 icultivatedi. ‘1″ * ” _ it
.. Huchtwab Jtmglimb
I981(1)KlJ1I8 u A % %
Whcrein it was held this i.,.a.–. ‘fqvell and an area
around :iae;»eiaeii;isg;tr;;;z wiiiaii. the definition ofland as the
well is the land and is a purpose
sub-sclwiegit toiiagsieuiiiuxe. .
Devasltmam, Smwada vs. Subbmma Shelly
(4) 13.1229
this court has taken judicial notice of the that that
in the district ef Dakshina Kannada is land where
‘ and plants are grown for the purpose of securing green
leaves for manuréng the adjacent cultivable land. And that unless
3
11
the “hznii” land is 3130 used,’ the cuitivabte ”
bcneficiafly cultivated. And h¢*:r:ce,v.’:’l1:sui4¥i§”& wt E
sub-scrvient purpose in agticulture,’A:’Ai_s:’~–gt1tt§cJ
definition of the term.
that W”?! ‘he W” 91’ or survey no.
rights in This is for
that jtxttfitifltflti and was never the subject
matterVqIv’ .i;V;-1.,£§t¢;:_3:ur’ the petitioner. On tlm other hand,
V’ Sylvester Manages to the extent of 2
33maag,twhth is a portion of survey 310.136/2. The
of survey nQ.l36f2 is not cultivable: and is
ptmja land. The Penn.’ men-3 continued to be in
of these lands where there is spuntaneuus gmwth of
Vt it: “fru’it–bearing and other Ewes.
@
12
7. Admittedly, the petitioner has not pmdueed any
documentary evidence to Show that survey m).136!2 was 3
teaanted land. It is significant that the ehalageni the
vakkalu kararu in Ihvour ef the petitioners do not
no.l36f2, though other survey numbengate
the respondents do not dispute. Itvlis
petitioners claim in the first 1 36)? L’
was allowed to the extent pl’ 5 was not
challenged. However, Vh h’ befeav the
t1ibunal:;.,_t:n-_extet1’tV:;§£’! me claimed which is clearly
a o¢mua.zs¢:;.;nt at also significant that the petitiuner
another in Fem! No.7-A
which. etmsideratiun to this day in respect of the very
The respondents deny that they are not
V’K..L*..agrieultt:tfi§sts. Inwfar a as the tueation of the house of the
is ceneemed, the same is in survey nu.S0f8 as is found
K the surveyor though the petitioner has enemaehed to the extent
%
13
of 9 squat:-3 melon: into survey no.l36/2, the main house to lhe
extent of 100 square meters is dearly in survey no.5′)/8-
3. The Counsel for the rtsspomicnls wuuld .1,..?,%._,.%%:a%;
a sketch forming part of the deal of
demonstrate that {he house is
msozs and nut in I36/*2.
petitioners to contend am: the or .l.z§ri;£_i:§V’§’iAn_Q3e vukkala
karam would lead lo a in use and
m:cupalf1’dhW6f an exaggemlion. And” the
sub-serv;t5nut– iajids *»a-.-.”m’:.h would my! fat exueud the extent
of magma: gazaivabse IA£n:ViA.”‘ “This m.-posaeums ciuina, on the fame
use ofsub-servitml land adjacent to the
1 described in the hast: deeds, am: [hum lands
H VV .V whibh within the smvey number and cannot extend far
cuiiivable land and iherefom, Ihc Counsel would
j_ % that the peliiion be dismissed.
3
14
9. By way of reply, lhe Counsel for the
submit lhal as per the survey
peliI.umer:s° * is situate in survey 2
only a porl1on’ of it. Similarly, ‘My yéell V
water for the Gum petitioner
namely, survey §0/6 of which is in
occupation is lln the absence of
irrigation petitioner is not in a
,….,;.su,..l,c.,ata;.l;;e;.e§;.;segebmmd in his favour.
And izsllllurilserl [hat as observed by this 001211 in
irrigated lands by themselves cannot
sub-servieal lands and the tree-growth is
mud it is this peculiar circumstance which
the gram of such land adjacent to the cultivable
l ll:._llla;_i(i,~ri~l1ich lhe album: has failed to undensland and the
ngpondcnls are merely pa:-ruling the reasons assigned by the
l ‘ Tribunal.
8
15
10. On a close consideration of these rival
wnksntinms and the record made available by tha’:
Pleader, the tits! significant feature as mas,
has made 3 claim in mspuct of survey . u
do not refer to the said survey It id ” 3
to draw a presumpuon” in land in
survey no.l36l2 ispm: is available for
the better caxuaafiggg of which, the
I that upm from an extent of
land granted Memmss the: remaining port1on’ of
pamja mm is not disputed by the
A granted to Sylvester menezes is abutting and
H Vt .V surrtiundsi tttetgcuttivatsle land in the uuctxpation of the
only seeks to counter the case: of the resptmdtmhs
jquustioning the logic cast’ the mspondents in asserting that
‘V V _ u” gylvestw Men:-mes could not have been granted occupancy rights
6
in any portion ofsuwey 110.136/2 if it was punja land. no
infirmity in the ccmtcniitm of the respomkmts ;.. :.a£t§is
obviously, the cultivable portion of l36f2_is in
the Sylvester Mtsnezes. Tins
cemtxmd that the open well “in i
only watcr stmnxs for his:”s;g1ltiv:sbie:A.iiii:ttst. which is
sittsatts within survey for drinking
purposes, are g[3t.t’i. the pelitionefis
cemveniame. _i it ”
12. seriously urged to demonstrate that
V’ is situate in survey 130.136/2 cannot be
— 3 of it is seen to extsend into
i which wconiing to the mspomksnts is a mmt
whereby the petitioner seems to have encrouched
A nu.I36/2. The fact mmains that the major porn} in at’
house is sittmtm well within survey no.S0f8. The
3 i also does not explain his conduct in having filed Form no.7A
6′
I7
laying claim to the wry land which is the snlject matter of these
pmoecdings, even during the pendcnoy of these fit)0OeIfi!tg;§.’» ‘l11iS
tniiiiales against the boua-fades of the
entries do nut also favour the a d at
be highlighted, pcriaining In the ‘
the case of the in the 0f ”
V 13, is punju land and is nui
culiivgxbie w.,.is.1aa._.o;…&,e..,:,c mm in flavour of the rcs[:x)n1k’.n!:s.
“”” Shim “K3 331733 3.8 S!’!b~&3!Vi6!li lflfld
_ ume of cultivable land in his p:)ssem:1n’ ,
_ be accepted, especially having mgard to the large
% ‘ §s*1.;;md am is claimed as amb-salvient land and noi moldy
esutnue which is aflegefiy mid to be situate in survey
T The 0.-dc: of the Ttibtmai lhemfixe does not warrant
A imerferenoe. The sevemi other documents which have been
6
18
highlighted by the Counsel for the
strengthen the circumstances Ihat
The several auihorities cited also %
making out a case. The S
sd/-1
Iudqé
{IV