REPORTABLE  

  IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3539 OF 2009

MONTHI MENEZES (D) BY LR.    ......... APPELLANT(S)

VS.

DEVAKI AMMA (D) BY LR. & ANR.                      ........ RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari,J.

1. This  appeal  by  special  leave is  directed against  the judgment  and order

dated 12.03.2008 as passed by Division Bench of the High Court of Karnataka at

Bangalore in Writ Appeal No. 2202 of 2006, affirming the order dated 17.11.2006

as passed by learned Single Judge in Writ Petition No. 11344 of 1999.   

1.1.  By the said order dated 17.11.2006, learned Single Judge of the High Court

allowed  the  writ  petition  filed  by  respondent  of  the  present  appeal  (now

represented by her legal representative) and set aside the order dated 28.01.1999

passed by the Land Tribunal, Bantwal Taluk, Karnataka in TNC No. 10579 of 1974-

95  whereby  the  Tribunal  had  declared  the  applicant  Shri  Bona  Menezes

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(predecessor  of  the  present  appellant  -  who  is  also  represented  by  her  legal

representative) as tenant of 3.07 acres of land in Survey No. 119/2A1 of Kuriyala

village.

2. The relevant background aspects of the matter could be taken note of as

follows:-

2.1. The Amended Karnataka Land Reforms Act, 1961 (the ‘Act of 1961’) came

into force w.e.f. 01.03.1974.  By virtue of amended Sections 44 and 45 thereof, all

the tenanted lands vested with the Government and all the tenants were entitled to

be registered as occupants1. Every person entitled to be registered as an occupant

under Section 45 was required to make an application in that behalf before the

Tribunal within the stipulated time. Such an application was required to be made in

Form 7 appended to the Karnataka Land Reforms Rules, 1974.

2.2. Shri Bona Menezes, predecessor of the appellant, made an application in

the prescribed Form 7,  claiming occupancy rights  over  various parcels  of  land

while alleging that he was cultivating the land in question for about 40 years on

payment of 50 Muras of rice per annum to the landlord; and he was also making

1 For ready reference, the relevant provisions contained in sub-section (1) of Section 44 and sub-section (1) of Section 45 are extracted as under:- 44.Vesting of  lands in the State Government- (1)  All  lands held  by or  in the possession of  tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government.  45. Tenants  to  be  registered  as  occupants  of  land  on  certain  conditions.-(1)  Subject  to  the provisions of the succeeding sections of this Chapter, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully sublet, such sub-tenant shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting and which he has been cultivating personally.

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payment of land revenue and levy.  The landlord (respondent herein) appeared in

response to the notice issued on the application so made by Shri Bona Menezes

and specifically  raised objection in respect  of  the land in  Survey No.  119/2A1,

which is the subject matter of dispute in the present appeal.  The landlord also

raised objection in relation to the land comprising Survey No. 143/2B, Survey No.

144/2 and Survey No. 144/6 while stating no objection in granting occupancy rights

to  the applicant  on other  parcels  of  land.   The main  plank  of  the case of  the

landlord had been that the said parcels of land comprising Survery Nos. 119/2A1,

143/2B, 144/2 and 144/3 were 'Punja' lands, which were not cultivable and were

not leased to the applicant.

2.3. After taking necessary evidence and after spot inspection on 06.03.1981, the

Land Tribunal came to the conclusion that so far as the land comprising Survey No.

119/2A1 was concerned, the applicant was using the same for agricultural purpose

and in fact, without this land, he cannot cultivate the other parcels of land. The

Tribunal,  therefore,  rejected the objections  of  landlord in  regard  to  this  land  in

Survey No.  119/2A.   However,  as regards other  parcels  of  land for  which,  the

landlord had raised objections namely, those comprising Survey No. 143/2B, 144/2

and 144/3, the Tribunal found that they were situated at a distance away from the

agricultural  land  of  the  applicant  and  hence,  rejected  his  claim in  that  regard.

Accordingly, the Tribunal, by its order dated 18.06.1981, registered the applicant as

an occupant in relation to the other parcels of land that were not objected to as

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also in relation to land comprising Survey No. 119/2A1 to the extent of 3.07 acres.

The Tribunal concluded the matter as follows:

“The lands leased have vested with the Govt as on 1.3.74 as per amended Land Reforms Act. Hence applicant is registered as occupant for the lands mentioned below-

  Sy. No. Extent

1.   18-3B 0-17 2.   18-4 0-21 3.  18-20 A 0-16 4.  18-21 AF 2-39 5.  18-22 0-30 6.  20-1 2-68 7. 119/2A1 3-07

8-08”

Noticeable it  is  that  the applicant  had claimed occupancy rights over the

entire Survey No. 119/2A admeasuring 4.71 acres but he was granted occupancy

rights only to the extent of 3.07 acres therein.

2.4. Aggrieved by the aforesaid order dated 18.06.1981, the respondent-landlord

preferred a writ petition in the High Court, being W.P.No. 19746 of 1981, essentially

questioning the grant of  rights in relation to the said 3.07 acres of  Survey No.

119/2A1.  The High Court allowed the writ petition and remanded the matter for

fresh inquiry as regards the said land of Survey No. 119/2A1.

2.5. In the detailed inquiry undertaken pursuant to the order of remand, the Land

Tribunal recorded the statement of parties while extending opportunity of cross-

examination to the respective opponents and also took on record the documentary

evidence adduced by the parties.  After thorough examination of the material on

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record, the Tribunal again found justified the claim of the applicant as regards the

said 3.07 acres of land in Survey No. 119/2A1 and allowed his claim, inter alia, with

the following findings and observations in its impugned order dated 28.01.1999:-

“During the spot investigation what is found is that the sy no. 119/2A is divided by a stone making it 119/2A1 and 119/2A2- first belonging to applicant and another belonging to landlord. 119/2A1 measuring 3.07 acres is in possession of applicant  and  119/2A2 measuring  1.64  is  in  possession  of landlord and the same are divided by stone. The same is also clarified by the survey and measurement report.

From the  above it  is  clear  that  sy  no.  119/2A1  3.07 acres was in possession of Bona Menezes as on 1.3.74 and prior to it.

In this back ground if lease chit is perused it becomes clear  that  it  mentions  that  for  better  cultivation  and development of SY No. 19/4, 18/22, 20/1 this disputed piece of land was included for procuring manure wood fodder etc. In Bantwal taluk of South kanara District it is common practice not  to  include in  lease chit.  Hence in  this  background it  is declared that Applicant was lawful tenant of sy no. 119/2A1 3.07 acres.

Further it is seen that for Khatha no. 34 applicant has paid land cess. This khatha no. 34 is included in lease chit and hence lease chit covers sy no. 119/2A1.

Disputed  land  is  abutting  leased  lands.  For  better cultivation fodder,  grass  wood etc  are very  essential  which can be procured from this disputed land. Applicant was giving ½ muras of rice p.a. separately for this land. Declaration is also filed in time. As per the surveyor report of 1977 and 1981 there was a stone fencing demarcating 3.07 acres in sy no. 119/2A1  and  119/2A2.  hence  applicant  is  entitled  to  be registered as occupant of 3.07 acres in sy no. 119/2A1.”

2.6. Aggrieved by the aforesaid order dated 28.01.1999, the landlord preferred a

writ petition (W.P.No. 11344 of 1999) before the High Court.  The Learned Single 5

Judge of High Court  proceeded to allow the said writ  petition by the impugned

order dated 17.11.2006, essentially on the ground that Punja land, not brought

under cultivation, is not to be classified as agricultural land while relying upon a

Division Bench decision of the High Court in the case of  Subhakar and Ors. v.

The Land Tribunal,  Karkala Taluk,  Karkala and Ors.: (1994) KLJ 524.   The

learned Single Judge also observed that, even otherwise, there was no material on

record to establish lawful tenancy, much less landlord-tenant relationship over the

land in question.  According to the learned Single Judge, the Tribunal was swayed

by the fact that the applicant was in possession of the land at the time of spot

inspection, but mere possession, by itself,  was not  sufficient to establish lawful

tenancy or landlord-tenant relationship.  The Learned Single Judge also observed

that the payment of land revenue was of no relevance and further that the Land

Tribunal had ignored the relevant material on record while proceeding on irrelevant

material and under misconception of law.  The Learned Single Judge allowed the

writ petition while observing, inter alia, as under:-

“3. Even otherwise, an examination of the order impugned discloses that  there is  no material  on record to establish a lawful tenancy, much less a landlord-tenant relationship over the Punja land in question. The Tribunal was swayed by what it noticed at the time of spot inspection that the applicant was in  possession  of  the  land.  Mere  possession  by  itself  and nothing  more  cannot  establish  lawful  tenancy  or  landlord- tenant relationship. So also, the receipts for having paid the land  revenue  in  respect  of  the  land  in  question  is  not substantial  legal  evidence of a fact of existence of a lawful tenancy.   Payment  of  tax has no relevancy to the claim of tenancy.  The  Land  Tribunal,  without  considering  relevant

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material  on  record  and eschewing irrelevant  material,  by  a misconception of law and fact, conferred occupancy rights in favour of the applicant over land which was not agricultural. In  that  view  of  the  matter  too,  the  order  impugned  is unsustainable.

In  the  result,  the  Writ  Petition  is  allowed.  The  order dated  28.01.1999  Annexure  “B”  of  the  Land  Tribunal  is quashed.”

2.7. Aggrieved by the order aforesaid, the applicant-appellant preferred an intra-

court  appeal  but the same was dismissed by the Division Bench of  High Court

while observing as under:-

“2. The  only  point  that  would  arise  for  consideration  is whether the land being a punja land, which is an undisputed fact, was brought under cultivation and was it in fact treated as an agricultural land as on the appointed date i.e. 1.3.1974. The tribunal,  no doubt,  based on the spot  inspection made somewhere in the year 1981 comes to a conclusion that it was brought under agricultural operations, on the other hand, the records  reveal  that  even  as  on  the  appointed  dated,  Smt. Devaki Amma, the landlady was in possession and enjoyment of the Sy. No. 119/2A-1. The contention of the landlady is also to  the  effect  that  except  this  land  all  other  lands  were the subject matter of Chalageni Chit. 3. The  Learned  Single  Judge  by  referring  to  a  Division Bench Judgment of this Court in the case of SUBHAKAR AND OTHERS  VS.  THE  LAND  TRIBUNAL  reported  in  1999(4) KLJTR 524,  held  that  unless  there  is  positive  evidence  to show that as on 1.3.1974, though the land being described as Punja Land was  brought under cultivation, there cannot be grant of any occupancy rights in respect of such lands. The said  observation  of  the  learned  Single  Judge  is  based  on record and especially the fact of tribunal placing reliance on the  spot  inspection  made  in  the  year  1981,  almost  seven years  after  the  appointed  date.   We do not  find  any  good

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ground to interfere with the said order of the learned Single Judge.”

3. Assailing the order aforesaid, it has strenuously been argued on behalf of

the appellant that her predecessor was entitled to a lawful tenancy in respect of the

land in question comprising Survey No. 119/2A1, admeasuring 3.07 acres where

he had grown mango trees, cashew and grass for grazing cattle.  Learned counsel

has argued that the Tribunal had on two occasions categorically found that the

applicant  was  in  possession  of  the  land  in  question  as  on  01.03.1974  and

immediately prior to it; that the land in question was necessary for cultivation of the

adjacent land available with the applicant; and that such a fact was borne out of the

lease chit also.  Learned counsel also argued that the High Court has failed to take

note of the definition of “agricultural” and that of “land” as contained in Sections

2(A)(1) and 2(18) of the Act of 1961. According to the learned counsel, the land in

question  answers  to  the  description  in  Section  2(18)  of  the  Act  of  1961  and

occupancy rights could not have been denied.  Per contra, learned counsel for the

contesting respondent has vehemently argued that no case for interference in the

orders passed by the High Court is made out, particularly when the applicant had

not produced any documents before the Land Tribunal so as to establish the fact

that the land in question was an agricultural land as on 01.03.1974. According to

the  learned  counsel,  the  Land  Tribunal  relied  only  upon  the  spot  inspection

conducted on 06.03.1981 and granted occupancy rights in favour of the applicant

without  examining  the  question  as  to  whether  the  land  in  question  was  an

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agricultural land as on 01.03.1974; and when the land in question had admittedly

been a Punja land, the Tribunal could not have granted occupancy rights therein,

for Punja land being essentially a non-agricultural land.

4. Having  heard  learned  counsel  for  the  parties  and  having  examined  the

record of the case with reference to the law applicable, we are inclined to allow this

appeal and while setting aside the orders impugned, remand the case to the High

Court for deciding the writ petition afresh on merits and in accordance with law.

5. We have taken note of the relevant part of the observations made by the

Land Tribunal as also by the High Court in this matter. In a comprehension of the

entire  matter,  we are constrained to  observe  that  while  disapproving the order

passed by the Land Tribunal, the High Court appears to have proceeded either on

irrelevant considerations or while ignoring the relevant aspects of the matter. It is

for this reason we feel it imperative that the matter be restored for reconsideration

by the High Court.

6. As noticed, the Land Tribunal in the first place examined the entire matter in

detail and upheld the objections of the landlord in relation to the land comprising

Survey  Nos.  143/2B,  144/2  and  144/3,  though  the  applicant  was  claiming  the

occupancy rights therein too.  As regards the land comprising Survey No. 119/2A1,

though  the  applicant  claimed  occupancy  rights  over  4.71  acres,  the  Tribunal

granted such rights only to the extent of 3.07 acres after finding that such parcel of

land was being used for agricultural purposes and without this land, the applicant

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cannot cultivate the other parcels of land.  After the matter was remanded by the

High Court for reconsideration, the Tribunal undertook fresh inquiry as regards the

said land of Survey No. 119/2A1 and again accepted the prayer of the applicant

with the clear finding that the applicant was in possession of 3.07 acres of land in

Survey No. 119/2A1 as on 01.03.1974 and prior to it. The Tribunal also held that

this land was given to the applicant for better cultivation and development of other

parcels of land with him and therefore, non-inclusion of this parcel of land in the

lease chit was of no adverse effect on the claim of the applicant.  As regards such

categorical findings of the Tribunal, the learned Single Judge proceeded to observe

that mere possession or mere payment of land revenue was of no effect because

there was no material on record to establish a lawful tenancy and landlord-tenant

relationship.   

7. With  respect,  we  are  unable  to  find  if  the  learned  Single  Judge  at  all

adverted  to  the  reasons  that  had  prevailed  with  the  Tribunal  that  the  land  in

question was allowed to the tenant for better cultivation of other parcels of land.

The learned Single  Judge also observed,  with reference to the Division Bench

decision in  Subhakar's case  (supra) that unless Punja land was shown to have

been  brought  under  cultivation,  it  would  not  be  recorded  as  agricultural  land.

However, in the said decision, Division Bench of Karnataka High Court has also

observed that the question as to whether Punja Land is cultivable or not is a pure

question of fact.  In the said decision, grant of occupancy rights was denied on the

given set of facts, where only thatched grass had grown naturally on the land in

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question that was shown to be Punja land and it was also found that there was a

built house surrounding the land in question. The said decision in Subhakar's case

(supra)  could only  be read in the context  of  the facts therein and the relevant

factual aspects of the present case cannot be ignored.  

8. While dealing with the intra-court appeal against the order so passed by the

learned Single Judge, the Division Bench, in paragraph 2 of its judgment has even

gone  to  the  extent  of  observing  that,  as  per  the  record,  the  landlord  was  in

possession of the land in question as on the appointed date.  In fact, such had not

been the finding even by the learned Single Judge, who proceeded to observe that

mere  possession  by  itself  cannot  establish  lawful  tenancy.  The  findings  of  the

Tribunal, on the contrary, had been that the applicant Shri Bona Menezes was in

possession of the land in question as on 01.03.1974 and even prior to it.   

9. The significant  aspects  of  the  matter,  as  taken into  consideration  by  the

Tribunal, had been that there was a reference in the lease chit about mango trees,

cashew, tamarind and the lessee was to enjoy the fruits of the allied land also.  The

Tribunal also observed that for the purpose of cultivating other land, the applicant

had to depend upon the land in question and hence, the said land was also to be

considered as included in the lease chit.  The Tribunal also found that the original

Survey No. 119/2A was divided by stone, making it No. 119/2A1 and No. 119/2A2;

and the first one, being No. 119/2A1 admeasuring 3.07 acres, was in possession of

the applicant whereas the other one, being No. 119/2A2 admeasuring 1.64 acres,

was in possession of the landlord. 11

10. Hereinabove, we have only indicated the relevant aspects emanating from

the findings of the Land Tribunal and it is but apparent that the High Court, while

dealing with the writ  petition as also the writ  appeal  has not  adverted to  such

categorical findings of the Tribunal.

10.1. Apart from the above, it is also apparent that the High Court did not examine

the definition of "land" as set out in Section 2(18) of the Act of 1961 to find if the

land in question answers to the description therein.2 The wide-ranging meaning

assigned to the expression "land" for the purpose of the Act of 1961 makes it clear

that the expression refers not only to the land which is actually used for agricultural

purposes  but  even  to  the  land which  is  used  or  is  capable  of  being  used for

agricultural purposes or even the purposes subservient thereto. On the facts and in

the circumstances of this case, the said definition deserves due consideration while

dealing with the challenge to the order made by the Tribunal.   

11. In view of the aforesaid, where we find that the High Court has not adverted

to all the facts of the case as also to the law applicable, the proper course in this

matter would be to remand the matter and to request the High Court to decide the

writ petition afresh on merits and in accordance with law.   

2  Section 2 (18) reads as under:- (18)"land" means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land,  plantation and tope but  does not  include house-site  or  land  used exclusively  for  non-agricultural purpose;.

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12. It is also noticed that while issuing notice in this matter on 18.07.2008, this

Court  ordered  status  quo in  relation to  possession of  subject  of  dispute  to  be

maintained.  While  granting  leave  on  08.05.2009,  the  said  interim  order  was

confirmed until the disposal of this appeal. In the totality of circumstances of the

case, it is also appropriate that such interim order remains in operation until final

disposal of the writ petition by the High Court.

13.  In the interest of justice, it is also made clear that we have not expressed any

opinion on the merits of the controversy and the observations herein are relevant

only for the purpose of our reasons for remanding the matter. Hence, the matter

involved in the writ petition remains open for decision afresh by the High Court on

merits, without being influenced by any observation made in the orders impugned

or in this order.  

14. Hence, this appeal succeeds and is allowed to the extent and in the manner

that the impugned orders dated 12.03.2008 and 17.11.2006 are set-aside and Writ

Petition No. 11344 of  1999 is restored for reconsideration of the High Court  in

accordance with law. Until final disposal of the writ petition, status quo in relation to

possession of subject of dispute shall be maintained by all the parties. To put the

record straight, it is also provided that the legal representatives of the respective

parties, as substituted in this appeal, shall stand substituted in the writ petition and

the  High  Court  shall  proceed  with  the  matter  after  amending  the  cause  title

accordingly.

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14.1. The  matter  being  an  old  one,  we  would  request  the  High  Court  to  take

necessary steps for early disposal of the writ petition, preferably within six months

from today.   

       ...............................................J.               (ABHAY MANOHAR SAPRE)

      ...............................................J.     (DINESH MAHESHWARI)   1

New Delhi, Date:  23rd April, 2019.

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