ORDER
M.M. Mirdhe, J.
1. This writ petition is preferred by the petitioner challenging the order passed by the Land Tribunals ejecting the Form No. 7 filed by him.
2. I have heard the learned counsel for the petitioner, the learned counsel for respondent No. 1(a) and also the learned Government Pleader and perused the records of the case.
3. The case of the petitioner is that he is a chalageni tenant of the land in question which is Sy.No. 92/1A and that respondent No. 1 is the mulageni tenant and from respondent No. 1 he has taken the
lease rights and has become the chalageni tenant. He filed Form No. 7. As his Form No. 7 was rejected by the Tribunal on earlier occasion, he preferred W.P.No. 11.3335/79 and this Court holding that the order challenged in this case was not preceded by a proper enquiry, set aside the order and remanded the case to the Tribunal for disposal of the applications of the petitioner and respondent No. 1 after holding common enquiry. In that order, this Court had also held that it was open to respondent-1 to raise the preliminary issue before the Tribunal that the land is not an agricultural land within the meaning of Section 2(A)(18) of the K.L.R. Act.
4. The learned counsel for the petitioner, submitted as follows:-
That after remand, the Tribunal has not held a common enquiry as directed by this Court in the previous writ petition; the present order is not preceded by any enquiry at all; the Tribunal has relied wholly and solely on the finding that the land is not an agricultural land, which it has, recorded after its local inspection of the land in question; that the Tribunal has not considered the documentary as well as oral evidence led by the petitioner in this case. On the basis of these arguments, the learned counsel for the petitioner submitted that the order of the Tribunal is unsustainable in law and it may be set aside and the matter may be remanded to the Land Tribunal for fresh disposal in accordance with law.
5. The learned counsel for respondent No. 1(a) submitted that the impugned order itself discloses both the numbers given to the Forms No. 7 filed by the petitioner as well as respondent No. 1. Merely because the name of the petitioner is not mentioned in the order it cannot be held that there was no common enquiry as directed by this Court; that even the Form No. 7 filed by the respondent No. 1 came to be rejected, the petitioner has not produced any documents or any evidence to show that he has been granted lease rights either by respondent No. 1 or her predecessors in title at any time. He is not at all a chalageni tenant. On the basis of this arguments he submitted that the petition may be dismissed.
6. A registered deed confirming mulageni rights on the grandfather of respondent No. 1 Vishalakshi is produced in this case. It goes to show that the grand-father of Vishalakshi whose name was Narasimha Bandarkar was granted mulageni rights under that document. This document proves that the grand-father of Vishalakshi viz., Narasimha Bandarkar was the moolgeni tenant of the land since the year 1916. It is the case of the petitioner that respondent No. 1’s grand-father leased this land to the father of the petitioner in the year 1953 and since then the petitioner is in possession of the land as a chalageni tenant. He also relied on some documents to show that he was required to file a complaint wherein a mahazar was drawn up showing that he was the owner of the property. His explanation for the land being fallow and used as a play-ground is that there was a temporary injunction issued by the Tribunal as a result of which he could not cultivate the land and since then the land became fallow. It cannot be disputed in this case that the grandfather of respondent No. 1 Vishalakshi was the moolgeni tenant of this land and he was granted this moolgeni tenancy rights by virtue of the document that came to be executed on 22.9.1916 by respondent No. 3.
7. It is the contention of the petitioner that he is cultivating this land as a chalageni tenant since this land was leased by Narasimha Bandarakar to his father as a chalageni tenant in the year 1953. The Tribunal during its visit to the spot has found that the land is used as a play-ground. Some documents are also produced in this proceedings which go to show that some District Level sports are also conducted on this land in the year 1985 onwards. The learned counsel for the petitioner submitted that the local inspection of the Tribunal is vitiated in law. In my opinion no statements of any witnesses have been recorded by the Tribunal when it visited the spot. The tribunal was within its right to inspect the spot to find as to whether the land continued to be an agricultural land or not. On inspection it has found that the land remained fallow and it was used as a play-ground. So, the fact remains that when the Tribunal visited the land there was no crops and the land was not used as agricultural land.
8. In BHAMY PANDURANGA SHENOY v. B.H.RAVINDRA AND ORS., KLJ 1980 (2) p 129 this Court has laid down as to what are the points to be proved by a person who is claiming occupancy rights in a particular land. This Court has held as follows:-
“The Act does not apply to all kinds of lands in the State and to all categories of tenants. If the relationship of landlord and tenant does not rest on agrarian relations, the tenant who is in possession of the land, even if the land is an agricultural land within the meaning of the Act, cannot avail himself of any benefit under the Act. The governing factor to bring the case within the fold of the Act will be the relationship of landlord and tenant based on agrarian relations. The tenancy must relate to agriculture in order to bring the relationship of landlord and tenant within the ambit of agrarian relations.”
The Court in that ruling has further held as follows:-
“Indisputably, the Act primarily deals with matters relating to agrarian relations, conferment of ownership on tenants and ceiling on land-holding etc. The matter relating to agrarian relations is one essentially between the landlord and the tenant relating to agriculture. In other words the tenancy must relate to agriculture in order to bring the relationship of landlord and tenant within the ambit, of agrarian relations. The relationship of landlord and tenant is essentially one arising out of a contract between the lessor and the lesee; in other words, under a tenancy agreement, oral or written.”
Therefore, in order to show that a person is entitled to the occupancy rights in a land he must prove that the land is used for agricultural purpose and that there is a relationship of landlord and tenant between him and the owner of the land. In other words if the land is an agricultural land and even if a person is in possession of the same, but if he has failed to prove that there is a relationship of landlord and tenant between him and the owner of the land, by virtue of either oral agreement or written agreement, such a person cannot be a tenant notwithstanding the fact that he might be in possession of the land and cultivating the same. In this case it is proved that the father of respondent No. 1 Vishalakshi was the moolgeni tenant of this land by virtue of a registered document executed by respondent No. 3 in his favour on 22.9.1916. But it was for the petitioner to prove that his father became the chalageni tenant as Narasimha Bandarkar the grand-father of respondent No. 1 leased the land to him in the year 1953. The burden of proving that there was such an agreement of lease either oral or written between his father and the grand-father of the respondent No. 1 was on the petitioner. But the petitioner has not produced any documents to show that there was any such agreement between his father and the grand-father of respondent No. 1. He has not produced any documents for payment of chalageni either by him or by his father to the grand-father of respondent No. 1 or to respondent No. 1. Even he has not produced any documents to show that he was in possession of the land as a tenant except a mahazar that came to be drawn up in a complaint filed by him. Therefore, it will have to be held that the petitioner has failed to prove that there was a relationship of landlord and tenant between his father and the grand-father of respondent No. 1. When a person fails to prove that he is cultivating the land as a tenant, he cannot be granted occupancy rights notwithstanding the fact that he might be in possession of the land and cultivating the same. In view of the fact that the petitioner has failed to prove the basic foundation of his case that he is and prior to him his father has been in possession of the land as a tenant by virtue of granting of lease by the grand-father of respondent No. 1, the petitioner could not have been granted occupancy rights in this land.
9. The learned counsel for the petitioner further submitted that the Tribunal has not followed the directions given by this Court in the order in the previous writ petition. The perusal of the impunged order discloses that it refers to two numbers viz., 288 and 289. The record disclose that No. 288 is given to Form No. 7 filed by Vishalakshi pai- respondent No. 1 and No. 289 is given to the Form No. 7 filed by the petitioner. But the name of the petitioner is not mentioned in the cause title of the order. When the two numbers are mentioned, the omission of the name of the petitioner in the cause title cannot be a ground for this Court to hold that there was no common enquiry as directed by this Court. Moreover.
11. The learned counsel for the petitioner further submitted that the Tribunal has not considered any records produced by the petitioner and also the statement of himself and his witnesses and it has rejected the claim of the petitioner only on the basis of its finding at the time of the local inspection that the land is a non-agricultural land which is used as a play-ground. In the impugned order, the Tribunal does not refer to any documents produced by the petitioner or the evidence led by the petitioner on his behalf. But all the Tribunal’s records have been produced before this Court and this Court has gone through that records. A perusal of the evidence led by the petitioner and his documents does not prove that there was any lease granted either by respondent No. 1 or by her grand-father in favour of petitioner’s father or petitioner at any time. The petitioner has failed to prove that he has been tenant of this land by virtue of any agreement or lease between him and respondent No. 1’s grand-father or by virtue of any agreement or lease between his father and the grand-father of respondent No. 1. Therefore, even if the Tribunal had taken into consideration the evidence that was produced by the petitioner, the Tribunal would not have come to the conclusion that the petitioner is the tenant of the land. In SANGRAM SINGH v. ELECTION TRIBUNAL, KOTAH, , the Supreme Court has held that acting under writ jurisdiction this Court is not required to act as a Court of appeal or as a Court of revision. By the evidence on record the petitioner has not been able to prove that he is the tenant of the land, no miscarriage of justice has been done by the Tribunal, which has dismissed the Form No. 7 filed by the petitioner. The basic fact that was required to be proved viz., that there was a lease agreement in his father’s favour by respondent No. 1’s grand-father is not proved by the petitioner. He has failed to prove that he is the tenant of the land. Therefore, in view of his failure to prove this point, no occupancy rights could have been granted by the Land Tribunal. As per the ruling quoted above if the relationship of landlord and tenant does not rest on agrarian relations, the tenant who is in possession of the land, even if the land is an agricultural land within the meaning of the Act, cannot avail himself of any benefit under the Act. In my opinion this ruling applies with all force to the facts of this case. From the perusal of the evidence on record goes to show that the petitioner (tenant) failed to prove that there was any agrarian relationship between him and the respondent No. 1 or between his father and the grand-father of respondent No.
12. The learned counsel for the petitioner submits that since the Tribunal has not held proper enquiry the matter may be remanded to the Tribunal. The learned counsel for the petitioner submits that the Court may be pleased to direct the Land Tribunal to consider Form No. 7 filed by the petitioner regarding the other lands viz., survey Nos. 52/1A and 176/5A2. The perusal of Form No. 7 goes to show that Janki Shedthi is shown as the landlord of Sy.No. 52/1A and Alli Saheb is shown as the landlord of Sy.No. 176/5A2. In this writ petition the petitioners challenged only regarding the rejection of Form No. 7 relating to Sy.No. 92/1A. He has not challenged about the order of the Land Tribunal concerning the other two survey numbers in this Writ Petition. The explanation of the learned counsel for the petitioner is that the petitioner has not challenged the order of the Land Tribunal so far as these survey numbers are concerned as there is no adjudication regarding these survey numbers by the Land Tribunal. If there were any adjudication by the Land Tribunal, the petitioner should have sought proper relief by way of writ of mandamus to consider his Form No. 7 relating to these survey numbers also. Moreover, the landlords of those survey numbers are not made parties in this petition. In the circumstances, the Court will not be justified in passing any order in respect of those two survey numbers. However, the petitioner is at liberty to challenge the order of the Land Tribunal in respect of those two survey numbers, if he is aggrieved by the order of the Land Tribunal. The order of the Land Tribunal so far as it relates survey No. 92/1A is concerned, it does not require any interference. Hence, I proceed to pass the following order:-
Petition dismissed.