IN THE HIGH COURT OF KARNATAKA DHARWAD BENCHjudgmenthck.kar.nic.in/judgmentsdsp/bitstream/... · malamaddi, dharwad dist. dharwad... respondents (by sri.m.kumar, aga for r1-r2; sri.jagadish

Date of Judgment: 06.03.2017

WA No.100057 of 2014

Hasansab Allasaheb Pendari

through LRs Vs. The State of

Karnataka & others

1

IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 06th

DAY OF MARCH 2017

PRESENT

THE HON’BLE DR. JUSTICE VINEET KOTHARI

AND

THE HON’BLE DR. JUSTICE H. B. PRABHAKARA SASTRY

WRIT APPEAL No.100057 OF 2014 [LR]

BETWEEN:

1. HASANSAB ALLASAB PENDARI

AGE: 73 YEARS OCC: AGRICULTURE

R/O SAPTAPUR, DHARWAD

DIST. DHAWRAD

SINCE DECEASED, REPTD. BY HIS LRS:

1a. AMINA

W/O.NAZERAHMED DHARWADKAR,

AGE: 50 YEARS, OCC: HOUSEHOLD,

R/O.VANASHREE NAGAR, SATTUR,

DHARWAD, DIST: DHARWAD

1b. KHAIRUNISSA

W/O.ABDUL HAMMED SHAIKH


R/O.VANASHREE NAGAR, SATTUR,

R


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DHARWAD, DIST: DHARWAD

1c. RAJAMMA

W/O.NAZEER AHMED SHAIKH


R/O.HAVERIPETH, SAVADATTI ROAD,

DHARWAD,

DIST: DHARWAD.

1d. CHANDABI W/O. GOUSUSAB PENDARI,


R/O. SAPTAPUR, DHARWAD,

DHARWAD.

1e. MEHABOOBI W/O. WAJIRSAB BARIGIDAD,


R/O.YEKKUNDI VILLAGE, TQ: SAVADATTI,

DIST: BELGAUM.

1f. FATHIMA W/O. YUSUF KALADAGI,


R/O. JAVAL GALLI, GADAG,

DIST: GADAG.

1g. AMINSAB S/O. HASANSAB PENDARI,

AGE: 44 YEARS, OCC: AGRICULTURE,

1h. MAHABOOBSAB S/O.HASANSAB PENDARI,

AGE: 41 YEARS, OCC: AGRICULTURE.

1j. MOHAMMEDALI S/O. HASANSAB PENDARI,

AGE: 36 YEARS, OCC: AGRICULTURE,

1k. ISMAILSAB S/O.HASANSAB PENDARI,


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AGE: 34 YEARS, OCC: COOLIE

1l. AKBARSAB S/O.HASANSAB PENDARI,

AGE: 32 YEARS, OCC: COOLIE,

1m. SHAUKATALI S/O.HASANSAB PENDARI,

AGE: 30 YEARS, OCC: COOLIE,

1n. NASIRAHMED S/O. HASANSAB PENDARI,

AGE: 28 YEARS, OCC: COOLIE.

A1(g) to A1(n) ARE

R/o. HOYASAL NAGAR,

DHARWAD, DIST: DHARWAD.

... APPELLANTS

(By Sri F V PATIL ADV.)

AND:

1. THE STATE OF KARNATAKA

REP. BY ITS SECRETARY

DEPT OF REVENUE, M.S.BUILDING

BANGALORE

2. THE LAND TRIBUNAL

DHARWAD

DIST-DHARWAD

REP. BY ITS CHAIRMAN

3. SHANTHAVEERAPPA

CHANDRASHEKARAPPA MENASINAKAI

AGE: MAJOR

R/O SWESHVARODA


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MALAMADDI, DHARWAD

DIST. DHARWAD

... RESPONDENTS

(By Sri.M.KUMAR, AGA FOR R1-R2;

Sri.JAGADISH PATIL, ADV. FOR R3)

THIS WRIT APPEAL IS FILED U/S.4 OF THE

KARNATAKA HIGH COURT ACT, 1961, AND RULE 27

OF THE WRIT PROCEEDINGS RULES, PRAYING TO, SET

ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE

DTD.18.12.2013 PASSED IN WRIT PETITION

NO.39146/2004 AND WRIT PETITION MAY KINDLY BE

ALLOWED WITH A DIRECTION TO THE LAND

TRIBUNAL, DHARWAD TO CONFER OCCUPANCY

RIGHTS TO THE APPELLANT/TENANT IN RESPECT OF

THE LAND IN QUESTION AFTER SETTING ASIDE THE

ORDER OF THE LAND TRIBUNAL, DHARWAD

DTD.01.07.2002 IN NO.KLR : KELAGERI:SR-27 IN

RESPECT OF LAND BEARING SVY.NO.258 MEASURING

17 ACRES 19 GUNTAS AT KELAGERI VILLAGE, TQ AND

DISTRICT: DHARWAD VIDE ANNEXURE-E.

THIS APPEAL COMING ON FOR FINAL HEARING

ON 01st MARCH 2017 AND THE SAME HAVING BEEN

HEARD AND RESERVED FOR PRONOUNCEMENT OF

JUDGMENT, THIS DAY, DR. VINEET KOTHARI, J.,

PRONOUNCED THE FOLLOWING:

JUDGMENT RESERVED ON: 01.03.2017.

JUDGMENT PRONOUNCED ON: 06.03.2017.


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J U D G M E N T

Mr.F.V.Patil, Adv. for appellants.

Mr.M.Kumar, AGA for respondent Nos.1 and 2,

Mr.Jagadish Patil, Adv. for Respondent No.3.

1. This writ appeal was filed by the petitioner

Sri.Hasansab son of Allasaheb Pendari, who is now represented

by his Legal Representatives aggrieved by the order dated 18th

December 2013 of the learned Single Judge dismissing his Writ

Petition No.39146 of 2014 (LR).

2. The appellant in the present third round of

litigation has been claiming occupancy rights under the

provisions of the Karnataka Land Reforms Act, 1961 (for short

‘the Act’) in respect of the land bearing Sy.No.258 measuring

17 acres 19 guntas situated at Kelageri Village, Dharwad

District.


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3. The appellant claims to be a tenant of the

respondent No.3, Sri.Shanthaveerappa Chandrashekarappa

Menasinakai and claims that from the time of his father since

1965, his father and the appellant were cultivating the land of

the respondent No.3 land-lord and in view of Section 4 of the

Act, they were to be deemed to be the tenants in respect of the

said land and the learned Land Tribunal ought to have given the

Occupancy Certificate in favour of the appellant-petitioner.

4. The case has a long checkered history and in the

first instance, the appellant filed application in Form No.7

before the learned Land Tribunal which came to be rejected on

26th

December 1981, against which the appellant filed a Writ

Petition in W.P. No.30439 of 1982, which came to be allowed

by the High Court on 03rd

January 1985 and the matter was

remanded to the Land Tribunal for fresh enquiry. However,

upon remand, on 10th

April 1991, the claim of the appellant

was allowed and therefore, the respondent No.3,


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Shanthaveerappa challenged the said order of the Land Tribunal

dated 10th

April 1991 by way of a Writ Petition in W.P.

No.13792 of 1992 which came to be allowed by the High Court

on 06th

November 1996 and again the matter was remanded

back to the Land Tribunal for fresh enquiry. This time, the

learned Land Tribunal rejected the application of the appellant

by order dated 01st July 2002 and refused to grant the

occupancy rights to the appellant. Aggrieved by which, the

present Writ Petition No.39146 of 2004 (LR) was filed by

Sri.Hasansab Allasab Pendari, which came to be dismissed by

the learned Single Judge on 18th

December 2013 and against

which the present intra-court appeal has been filed.

5. It would be relevant to reproduce some portions of

the impugned orders passed by the Land Tribunal on 01st July

2002 and the order passed by the learned Single Judge on 18th

December 2013.


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6. The learned Land Tribunal in its order dated 01st

July 2002 observed as under:

“ The applicant has completely failed to prove

that, land in dispute was an agricultural land as on

01/03/1974 since, if the land in dispute was an

agricultural land, it would vest in the Government

as per section 44 of the Karnataka Land Reforms

Act. But, the land in dispute has not vested in the

government as per the said Act and neither during

1973-74 nor prior thereof, respondent is reflected

to be in personal cultivation of the land in dispute

and method of cultivation is mentioned as 1.

Applicant has failed to prove the landlord-

tenant relationship between himself and the

landlord. On examining the document relied upon

by the applicant i.e. agreement, it appears that,

respondent Shanthaveerappa Chandrashekarappa

Menasinakayi had granted the land in dispute to

the applicant for grazing the cattle at Rs.75-00 per

annum and it appears that, agreement is entered

for using the grass grown in the said land and for


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removing the weeds grown in the said land and

preparing it for cultivation. Similarly, it also

appears that, there is agreement that, only till the

said land is cultivable, applicant has to be pay

charges towards grass to the respondent at the

rate of Rs.75/- per annum and obtain receipt for

the same.

It is very clear that, after the said land is

suitable for cultivation, they shall act according

the agreement. The same is admitted by the

applicant in his cross-examination and has replied

in the cross-examination that, there is no

agreement between the applicant and the landlord

after preparing the said land for cultivation.

The said agreement is examined thoroughly

and it is clear that, the land in dispute is a forest

not suitable for cultivation and there existed

naturally grown grass in the said forest. As per

the said agreement applicant had agreed to use the

grass in the said forest and to clear the weeds.

But, nowhere there is reference for having


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granted the land in dispute as farmer or tenant

for cultivation. Hence, on the basis of the said

agreement, it is not proved that, applicant was a

tenant in the land in dispute.

Further, on examining the receipts produced

by the applicant, out of the same, a receipt is

issued on 16/08/1981 by S.C.Menasinakayi

acknowledging receipt of the Rs.150-00 towards

grass pasture for the year 1979-80.

Similarly, on examining another receipt,

even therein, it appears that, it is the receipt issued

by respondent on 22/10/1974 for having received a

sum of Rs.300-00 is acknowledged without any

dues, towards fodder from grass pasture for two

years (1972-73 and 73-47 (sic! 73-74) from the

Kelageri forest.

Similarly, in another receipt, it is shown

that, a sum of Rs.150-00 is received from

Sri.Hasansaheb Vallad Allasaheb Pendhari

R/o.Sapthapura, Dharwad towards our forest


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No.258 at Kelageri limits for the fodder for grass

pasture for the year 1974-75.

Similarly, even in another receipt,

respondent has issued receipt to the applicant only

for grazing in the land in dispute and there is no

mention therein for having granting the land in

disputes on tenancy or for cultivation as farmer.

The applicant has admitted this factor that, there is

no clear mention about payment of rents.

As per section 2(10) of Karnataka Land

Reforms Act, the expression ‘cultivation of land’ is

defined as under:

‘To cultivate’, with its grammatical

variations and cognate expression

means to till or husband the land for

the purpose of raising or improving

(agricultural produce) whether by

manual labor or by means of cattle or

machinery or to carry on any

agricultural operation thereon and

the expression ‘uncultivated’ shall be

construed correspondingly.

Explanation: A person who takes

up a contract to cut grass, or to


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gather the fruits or other produce of

any land shall not that account only

‘be deemed to cultivate such land’.

If the aforesaid section 2(10) of Karnataka

Land Reforms Act and examination in supplement

to it are construed properly, it would be clear that,

applicant was neither farmer or cultivator of the

land in dispute and also appears that, he held

agreement to use grass pasture naturally grown in

the land in dispute.

As such, applicant has failed to prove that,

he was in lawful possession as farmer in the land

in dispute as on the prescribed date i.e. on

01/03/1974. Applicant has stated in his chief

examination to mean that, as one among the

respondent was Assistant Commissioner,

Dharwad, he has influenced from entering his

name in the cultivator’s column of the RTC in

respect of the land in dispute. But, if he was a

lawful farmer in the land in dispute, he has not

produced any documents or evidences for his

attempts to get registered his name as cultivator in


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the land in dispute. As contended by the applicant,

if one among the respondent was an Assistant

Commissioner, Dharwad and if the applicant was

obstructed by him from getting his name entered,

applicant would have approached the Special

Deputy Commissioner or Deputy Commissioner of

the District or competent court. But, applicant has

not produced any document in this regard and in

his replay to the cross-examination, he admits that,

he had no evidences or documents to prove that,

Assistant Commissioner Menasinakai Summoned

him and instructed not to get his name entered and

also admits that, he had not submitted application

to the Deputy Commissioner in this regard.

Wherefore, no truth could be found in the

statement of the applicant.

From the statements adduced in reply to the

cross-examination, applicant has admitted that, he

has filed another separate application in Form

No.7 for the land pertaining to another Saate’s

before the land Tribunal.


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He has admitted that, has not mentioned

about his cultivation of Menasinakai’s land in the

said Form No.7 and also that, he has not admitted

regarding cultivation of Saate’s land in the Form

No.7 pertaining to the present case.

By observing all these, it is confirmed that,

applicant has failed to prove that, there existed

tenant and landlord relationship between him and

the respondent as on 01/03/1974.

Applicant has failed to prove his lawful

tenancy over the land in dispute as on 01/03/1974.

It is confirmed from above that, Original Suit

No.161/82 filed by the said applicant, is dismissed

by the Civil Court.

In the said Original Suit, applicant has

prayed to decree the suit declaring him as tenant

to the land in dispute and to grant injunction

against respondent – landlord as admitted by the

applicant in the cross-examination. It is also

admitted that, the said suit is dismissed. He also


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admitted in his cross-examination about

dismissal of the appeal filed by him against the

said suit.

He has also admitted that, nowhere in the

civil court, he is declared as tenant.

On examining all these factors, it is clear

that, applicant has failed to prove his lawful

tenancy over the land in dispute as on 01/03/1974.

It is confirmed on verification of the

documents that, land in dispute is not vested with

the government as per section 44(1) of Karnataka

Land Reforms Act as on 01/03/1974.

Another document relied upon by the

applicant is the notice stated to be sent to the KEB

through counsel for the respondent. A letter stated

to be copy of the said document is produced by the

applicant. But, applicant has failed to obtain either

its original or certified copy from KEB and to

produce the same before this Tribunal. Learned

counsel for respondent has also denied and


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disowned the signature in the said notice. Hence,

applicant has failed to prove on the basis of the

said document that, he is the lawful tenant of the

land in dispute.

For all the aforesaid reasons, it is

unanimously decided that, applicant is not a lawful

tenant in the land in dispute and proceed to pass

the following order:

ORDER

We, the Chairman and the members of the

Land Tribunal have carefully considered the

factors explained in the preamble and arrive at a

conclusion that, land in Block No.258 measuring

17-19 acres of Kelageri Village, Dharwad Taluk is

not vested in the government as on 01/03/1974.

Applicant was not a tenant of the land in dispute

as on 01/03/1974 and immediately preceding

thereof. As it is confirmed to the members of the

Land Tribunal on verification of the RTC

pertaining to the year 1973-74 that, respondent –

landowner was in personal possession and


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cultivation of the land in dispute, it is hereby

unanimously ordered, rejecting the application

filed by Sri.Hasansab Allasab Pendaari in Form

No.7 seeking occupancy rights of the land in

dispute.

This order is dictated to the typist,

corrected, verified and signed by me and

pronounced in the open court on 01/07/2002.

Sd/-

(M.R.Hiremath)

Chariman,

Land Tribunal, Dharwad. ”

(Emphasis supplied)

7. The learned Single Judge in the order under

appeal, while dismissing the Writ Petition and upholding the

aforesaid findings of the learned Land Tribunal, scrupulously

examined the evidence on record also and reaffirmed the

findings against the appellant-petitioner in the following

manner:


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“ 4. Heard learned counsels and examined the

records. The primary contention of the petitioner-

tenant is based on the agreement dated 2-5-1969. I

have examined the same. It would narrate that the

land in question has been handed over to the

petitioner herein. It is for the purpose of utilising

the grass that is grown by itself. It would imply

that the grass was not being cultivated either by

the landlord or by the tenant. By the agreement,

the petitioner was permitted to utilise the grass

grown. Therefore, it cannot be said that the

petitioner was growing grass on the land in

question, nor is it his case that he is growing

grass.

5. The second issue in the agreement is

that the tenant after cutting the grass would be

entitled to clean the land, cut the waste trees and

to do that such acts necessary in order to bring the

land fit for cultivation. On so doing he will be

entitled to cultivate the land in question. These are

the contents of the agreement. Therefore the

tenant would have to show that as a consequence


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to the said agreement, he has brought the land fit

for cultivation. He would have to show that the

grass, the shrubs and other material were cleared

by him to make it cultivable. This is so because the

document itself would narrate that certain extent

of land were uncultivable. Therefore, the

agreement was executed permitting the tenant to

do all such acts to bring the land under cultivation.

However, on considering the material it does not

show that any effort was made by the tenant to

bring the land fit for cultivation. Whether the

tenant was making use of the grass, is not a

relevant consideration. There is no material to

show that the land was brought fit for cultivation

and that the land was really being cultivated by the

tenant. Therefore, the plea of the tenant based on

this agreement, to contend that he is cultivating

the land and growing grass as a tenant, cannot be

accepted.

6. It is further contended that growing of

grass would amount to cultivation. That taking

care of the trees and the shrubs would also amount


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to cultivation. However, that is not the issue for

consideration. It is nobody’s case that grass was

being cultivated. Infact, it is an admitted position

that there was no cultivation of grass and it grew

by itself. The tenant was only permitted to cut the

grass that has grown by itself. It is not a case of

cultivation of a grass. Hence, such a contention is

unacceptable.

7. The further contention is that certain

rent receipts have been executed by the landlord to

evidence the fact of cultivation. I have examined

the receipts. The rent receipt is dated 16-8-1981

for the year 1979-80. The rent receipt dated 22-

10-1974 is for the year 1972-73 and 1973-74. The

rent receipt dated 25-6-1975 is for the year 1974-

75. The rent receipt dated 8-7-1970 for the year

1970, a rent receipt dated 1.3.1969 for the year

1969-70, a rent receipt dated 10-11-1967 for the

year 1968-89 (sic! 1968-69), a rent receipt dated

26-4-1967 for the year 1967-68. It is therefore

pleaded that these rent receipts constitute payment

as rent for cultivation of crops. However on


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examining the receipts it could be seen that the

rent receipts are only for the purpose of taking

the grass that existed. It does not indicate that

rents have been paid for the purpose of either

growing the crops or otherwise. The specific

reference therein is, ‘rents towards the grass’. The

reading of the rent receipts runs together with the

contents of the document dated 2-5-1969, wherein

it is stated that rent is being collected for the grass

that is grown. Therefore in terms of the document,

the same matches the rent receipts. The rent

receipts are for payment being made towards

cutting of the grass that is grown by itself.

8. It is further contended that the

landlord has issued a legal notice through his

Advocate dated 2.9.1971. The notice is to the

Mysore State Electricity Board, Dharwad,

objecting to the fixing of electric poles to the land

in question. In the notice, the respondent landlord

has stated that he is the owner of the land in

question and his cultivating the same through the

petitioner. That he has raised Jowar crop to an


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extent of 4 acres 20 guntas and in the rest, he has

raised grass for his cattle. Therefore it is pleaded

that the same amounts to admission by the

landlord that he is a tenant in question. The

acknowledgements for having issued the legal

notice is also produced. The acknowledgement

bear the seal and signature of the concerned

official. Even assuming that such a letter has been

written by the landlord, the same would not lend

any support to the case of the tenant. The

paragaph relied upon by the petitioner is to the

effect that the landlord is cultivating the same

through the petitioner. The nature of the

cultivation and status of the petitioner therein is

found wanting. In order to show that the tenant is

in occupation of the land in question and is

cultivating the same as a tenant various materials

would have to be shown to the said effect. Merely

relying upon a legal notice of a proceeding

unconnected with the matter of tenancy would

not assist the tenant in any manner. It would not

amount to an admission. Therefore, such legal

notice unconnected with the matters of tenancy


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would not come to the aid of the petitioner-tenant.

Hence, this contention is unacceptable.

For the aforesaid reasons, the petition being

devoid of merit is dismissed. Rule discharged.

Sd/-

(Ravi Malimath)

Judge ”

8. Mr.F.V.Patil, learned counsel appearing for the

appellants, vehemently submitted before us that under the

provisions of Section 4 of the Act of 1961, a person lawfully

cultivating any land belonging to another person has to be

deemed to be a tenant and therefore, the appellant who was in

cultivation of the land in question, was required to be deemed

to be a tenant, because, the respondent No.3, Shanthaveerappa,

never filed any application in Form No.7 before the Land

Tribunal as required under the Proviso to Section 4 of the said

Act. He also urged before us, taking us through the evidence

on record and some case laws cited at the Bar, that the appellant

had paid rent to the respondent No.3 for cultivating the said

land also, in terms of the agreement executed between these


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parties on 02nd

May 1969 and various rent receipts were

produced on record before the Land Tribunal and in the legal

notice dated 02nd

September 1971 issued by the Advocate of

the respondent No.3-landlord himself, which was addressed to

Mysore State Electricity Board, Dharwar, which was intending

to fix certain electric poles in the said land in question and

while objecting to the same, the respondent No.3-landlord

clearly stated that he is the owner of the land in question and he

was cultivating the said land through the present appellant-

Hasansab and Jowar crop was also raised in a part of the said

land to the extent of 4 acres 20 guntas and in the rest part of the

land, he has reared grass for cattle. Mr.F.V.Patil, therefore,

contended that the learned Land Tribunal as well as the learned

Single Judge have erred in rejecting the claim of the present

appellant and therefore, the present appeal deserves to be

allowed.


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9. He also relied upon the following decisions in

support of his contentions:

(i) Gurubasappa Ningappa Banakar vs. The

Land Tribunal, Dharwar & others, ILR

1979 KAR 156;

(ii) Suresh S.Rao and Others Vs. Land

Tribunal, Belgaum and others, 2007 (5)

Kar.L.J. 303;

(iii) Baleshwar Tewari by LRs and others Vs.

Sheo Jatan Tiwary and others, ILR 1997

KAR 2186;

(iv) Venkatappa Ningappa Vs. State of

Karnataka and others, 1981(1) Kar.L.J.

382;

(v) Papila Bai Vs.Chavdas T.Bhortakke

(Dead) by LRs and Others, (2005) 2 SCC

509;

(vi) Byalappa Vs. State of Karnataka and

others, 1981 (2) Kar.L.J. 221;


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10. Per contra, Sri.Jagadish Patil, learned counsel for

the respondent No.3, Shanthaveerappa and Sri.M.Kumar,

learned Additional Government Advocate, supported the

impugned orders passed by the learned Land Tribunal and the

learned Single Judge and submitted that the present Writ

Appeal has no force and is liable to be dismissed. They urged

that the appellant was only given the right to cut the grass

which was naturally grown there on the land in question for the

rent of `75/- paid to the respondent No.3-landlord and to make

the land cultivable by removing the grass, weeds, etc., under the

agreement dated 02nd

May 1969 and the appellant never

actually cultivated the said land in question and therefore, there

was no question of treating him as a deemed tenant under

Section 4 of the Act. They also contended that under the

Proviso to Section 4 of the Act, an owner of the land is not

required to file Form No.7, unless there is a tenant on the said

land in question under a voluntarily executed lease in his favour


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and therefore, the contention of Mr.F.V.Patil, learned counsel

for the appellant in this respect is misconceived. The

Respondent No.3 owner has specifically denied the existence of

the legal notice dated 02nd

September 1971 sent through an

advocate addressed to Mysore State Electricity Board, Dharwar.

The learned counsel contended that on the basis of such

disputed document, for which the appellant was even allowed

the opportunity by the learned Land Tribunal to adduce the

original document and prove it, which was never done,

therefore, on the basis of such secondary evidence, not even

proved before the learned Land Tribunal, there was no merit in

the contention of the appellant that the landlord had admitted

his tenancy by way of cultivating the said land.

11. He also pointed out that in the said legal notice,

even if it was assumed for argument sake, that it was an

admissible evidence, it was clearly stated that the respondent

No.3 himself was cultivating the said land and had grown the


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crop of Jawar and grass for the cattle. Therefore, the right to

cut the said grass and take it away for animal feeding was only

the right given to the present appellant-Hasansab, who has now

expired and is represented by legal representative only, and

therefore, no cultivation was actually ever done by him on the

said land in question nor he was ever authorised to do so. They

further contended that the agreement dated 02nd

May 1969 was

only to allow the appellant to make the land cultivable which he

never made and therefore, in view of there being no cultivation

done by him on the said land in question, there was no question

of granting any occupancy rights in favour of the appellant

under the Act of 1961 and the appellant has indulged in

repeated litigation right from 1981 including having lost his

civil suit in OS No.161 of 1982 and now, finally when the

learned Land Tribunal and the learned Single Judge have also

rejected his claim after appreciating the entire relevant


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evidence, the present appeal filed by the appellant deserves to

be dismissed with costs.

12. We have given our earnest consideration to the

relevant provisions of the Act, the material on record and the

judgments cited at the Bar.

13. First let us reproduce the relevant provisions of the

Act for the ready reference. The definitions of certain terms in

the Act and the relevant provisions of Chapter III dealing with

Conferment of Ownership on Tenants including Sections 44, 45

and 48A of the Act are quoted below:

“ 2(10) “to cultivate” with its grammatical

variations and cognate expressions means to till or

husband the land for the purpose of raising or

improving agricultural produce whether by

manual labour or by means of cattle or machinery,

or to carry on any agricultural operation thereon;

and the expression “uncultivated” shall be

construed correspondingly;


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Explanation.—A person who takes up a contract

to cut grass, or to gather the fruits or other

produce of any land, shall not on that account

only be deemed to cultivate such land;

2(28) “rent” means money paid or payable by a

tenant on account of the use and occupation of the

land held by him;

2(34) “tenant” means an agriculturist who

cultivates personally the land he holds on lease

from a landlord and includes,—

(i) a person who is deemed to be a tenant under

section 4;

(ii) a person who was protected from eviction from

any land by the Karnataka Tenants (Temporary

Protection from Eviction) Act, 1961;

(iia) a person who cultivates personally any land

on lease under a lease created contrary to the


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provisions of section 5 and before the date of

commencement of the Amendment Act.

(iii) a person who is a permanent tenant; and

(iv) a person who is a protected tenant.

Explanation.—A person who takes up a contract to

cut grass, or to gather the fruits or other produce

of any land, shall not on that account only be

deemed to be a tenant;

4. Persons to be deemed tenants.—A person

lawfully cultivating any land belonging to another

person shall be deemed to be a tenant if such land

is not cultivated personally by the owner and if

such person is not:

(a) a member of the owner’s family, or

(b) a servant or a hired labourer on wages payable

in cash or kind but not in crop share cultivating

the land under the personal supervision of the

owner or any member of the owner’s family, or


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(c) a mortgagee in possession:

Provided that if upon an application made by

the owner within one year from the appointed day

[x x x],—

(i) the Tribunal declares that such

person is not a tenant and its decision

is not reversed on appeal, or

(ii) the Tribunal refuses to make such

declaration but its decision is

reversed on appeal,

such person shall not be deemed to be a tenant.

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.


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(2) Notwithstanding anything in any decree or

order of or certificate issued by any Court or

authority directing or specifying the lands which

may be resumed or in any contract, grant or other

instrument or in any other law for the time being in

force, with effect on and from the date of vesting

and save as otherwise expressly provided in this

Act, the following consequences shall ensue,

namely,—

(a) all rights, title and interest vesting in the

owners of such lands and other persons interested

in such lands shall cease and be vested absolutely

in the State Government free from all

encumbrances;

(b) all [x x x] amounts in respect of such lands

which become due on or after the date of vesting

shall be payable to the State Government and not

to the land-owner, land-lord or any other person

and any payment made in contravention of this

clause not be valid;


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(c) all arrears of land revenue, cesses, water rate

or other dues remaining lawfully due on the date

of vesting in respect of such lands shall after such

date continue to be recoverable from the land-

owner, landlord or other person by whom they

were payable and may, without prejudice to any

other mode of recovery, be realised by the

deduction of the amount of such arrears from the

amount payable to any person under this Chapter;

(d) no such lands shall be liable to attachment in

execution of any decree or other process of any

Court and any attachment existing on the date of

vesting and any order for attachment passed

before such date in respect of such lands shall

cease to be in force;

(e) the State Government may, after removing any

obstruction which may be offered, forthwith take

possession of such lands:

Provided that the State Government shall not

dispossess any person of any land in respect of

which it considers, after such enquiry as may be


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prescribed, that he is prima face entitled to be

registered as an occupant under this Chapter;

(f) the land-owners, landlord and every person

interested in the land whose rights have vested in

the State Government under clause (a), shall be

entitled only to receive the amount from the State

Government as provided in this Chapter;

(g) permanent tenants, protected tenants and other

tenants holding such lands shall, as against the

State Government, be entitled only to such rights

or privileges and shall be subject to such

conditions as are provided by or under this Act;

and any other rights and privileges which may

have accrued to them in such lands before the date

of vesting against the landlord or other person

shall cease and determine and shall not be

enforceable against 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


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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.

(2) If a tenant or other person referred to in sub-

section (1),—

(i) holds land partly as owner and partly as tenant

but the area of the land held by him as owner is

equal to or exceeds a ceiling area he shall not be

entitled to be registered as an occupant of the land

held by him as a tenant before the date of vesting;

(ii) does not hold and cultivate personally any land

as an owner, but holds land as tenant, which he

cultivates personally in excess of a ceiling area, he

shall be entitled to be registered as an occupant to

the extent of a ceiling area;


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(iii) holds and cultivates personally as an owner of

any land the area of which is less than a ceiling

area, he shall be entitled to be registered as an

occupant to the extent of such area as will be

sufficient to make up his holding to the extent of a

ceiling area.

(3) The land held by a person before the date of

vesting and in respect of which he is not entitled to

be registered as an occupant under this section

shall be disposed of in the manner provided in

section 77 after evicting such person.

48A. Enquiry by the Tribunal, etc.—(1) Every

person entitled to be registered as an occupant

under section 45 may make an application to the

Tribunal in this behalf. Every such application

shall, save as provided in this Act, be made before

the expiry of a period of six months from the date

of the commencement of section 1 of the Karnataka

Land Reforms (Amendment) Act, 1978, [x x x].


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(2) On receipt of the application, the Tribunal

shall publish or cause to be published a public

notice in the village in which the land is situated

calling upon the landlord and all other persons

having an interest in the land to appear before it

on the date specified in the notice. The Tribunal

shall also issue individual notices to the persons

mentioned in the application and also to such

others as may appear to it to be interested in the

land.

(3) The form of the application, the form of the

notices, the manner of publishing or serving the

notices and all other matters connected therewith

shall be such as may be prescribed. The Tribunal

may for valid and sufficient reasons permit the

tenant to amend the application.

(4) Where no objection is filed, the Tribunal may,

after such verification as it considers necessary, by

order either grant or reject the application.

(5) Where an objection is filed disputing the

validity of the applicant’s claim or setting up a


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rival claim, the Tribunal shall, after enquiry,

determine, by order, the person entitled to be

registered as occupant and pass orders

accordingly.

(5A) Where there is no objection in respect of any

part of the claim, the Tribunal may at once pass

orders granting the application as regards that

part and proceed separately in respect of the other

part objected to.

(6) The order of the Tribunal under this section

shall be final and the Tribunal shall send a copy of

every order passed by it to the Tahsildar and the

parties concerned.

Provided that the Tribunal may, on the

application of any of the parties, for reasons to be

recorded in writing, correct any clerical or

arithmetical mistakes in any order passed by it.

Provided further that the Tribunal may on its

own or on the application of any of the parties, for

reasons to be recorded in writing correct the


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extent of land in any order passed by it after

causing actual measurement and after giving an

opportunity of being heard to the concern parties.

(7) The person to be registered as an occupant

shall pay to the State Government as premium an

amount equal to fifteen times the net annual

income referred to in sub-section (2) of section 47

in the case of A Class, B Class and C Class lands

referred to in part A of Schedule 1 and twenty

times such income in the case of D Class land

referred to in the said Part A, plus the amount, if

any, payable under sub-section (3) of that section:

Provided that the premium payable by a

permanent tenant shall be six times the difference

between the rent and the land revenue of the land.

(8) Where no application is made within the time

allowed under subsection (1), the right of any

person to be registered as an occupant shall have

no effect. ”


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14. We are of the considered opinion that there was no

actual cultivation of land by the present appellant-petitioner.

The agreement dated 02nd

May 1969 only gave a right to make

the land in question cultivable by removal of the grass and the

rent was paid by the appellant towards the cutting of the

naturally growing grass only. The various rent receipts

examined by the learned Single Judge as well as the learned

Land Tribunal were only for payment being made towards the

cutting of grass which naturally grew on the land in question.

The said agreement clearly stipulated that after the said land is

made cultivable, fresh agreement would be entered into for

actually giving the right of cultivation to the appellant-

petitioner, but that never happened and there is no evidence on

record that the appellant-petitioner has actually cultivated the

land in question.

15. The sheet anchor argument of the learned counsel

for the appellant-petitioner, Mr.F.V.Patil, banking upon the


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legal notice of the advocate dated 02nd

September 1971,

addressed to Mysore State Electricity Board, Dharwar, is bereft

of any merit. Not only that the said legal notice itself was

disputed and denied by the respondent No.3 and the fact that

the same was never proved before the learned Land Tribunal by

the appellant-petitioner, despite opportunity given to him by the

Tribunal, the same speaks volumes against him.

16. Notwithstanding this, in view of persistence of the

learned counsel for the appellant, we examined the contents of

the said legal notice. Relevant paragraphs of the said legal

notice by the advocate Sri.M.A.Choudhari, addressed to the

Assistant Executive Engineer, Mysore State Electricity Board,

Dharwar-7, are quoted below for ready reference:

“ That my client is the owner and

Wahiwatdar of Block No.258, as measuring 17

acre 19 guntas assessed at Rs.7-10-50 of Village

Kelgeri and is cultivating the same through one

Sri.Hasansaheb. Allasaheb Pendhari of Saptapur


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Dharwar, and has raised Jawar crop, to the extent

of 4 acre 20 gunthas, and in the rest he has reared

grass for his cattle.

But it is learnt that your representatives

have un-authorisedly entered upon, and having

criminally tresspassed thereover, have dug 3 pits

of 3’x2’x5’ damaging the Jawar crops in Block

No.258 of Kelgeri for fixing the Electric poles

leading to Sri.Jamakhana’s Pump Set inspite of

oral objections of my client and Shri.Hasansab

Pendhari. Please note that his action on the part

of your deputies, your representatives, and in

servants is a Grave offence, involving Criminal

tresspass, lurking tresspass, nuisance, insult and

defamation also involving Civil liability for which

you alone are liable and answerable.

Please take notice that your failure, to desist

from such acts and to instruct your deputies,

agents, servants, to desist from such acts and to

remedy the damages within 24 hours from the date

of receipt of this notice will entail civil and


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Criminal actions against the concerned persons at

his cost and consequences. ”

17. From the said quoted portion of the legal notice,

the averments that the owner-respondent No.3 “is cultivating

the same through one Sri.Hasansaheb Allasaheb Pendhari

(appellant) and has raised Jawar crop to the extent of 4 acres 20

guntas and in the rest of the land, he has reared grass for his

cattle” does not indicate in any manner that the said cultivation

was done by the present appellant-Hasansab. On the contrary,

while objecting to the fixing of the poles by the Mysore State

Electricity Board, Dharwar, Respondent No.3-owner claims

that the land is under cultivation by him through Sri.Hasansab,

the present appellant. The respondent No.3, owner, could very

well claim the present appellant to be working as a servant or a

hired labour on wages, which is excluded in the definition of

‘deemed tenant’ under Section 4(b) of the Act quoted above.

Therefore, such averments by Respondent No.3 owner cannot


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be said to any admission on his part about the cultivation by the

Appellant.

18. The documentary evidence in the form of

agreement dated 02nd

May 1969 was only for the limited

purpose of giving him right to cut the grass and make the land

cultivable. There is no connection between the said agreement

dated 02nd

May 1969 and the aforesaid quoted portion of the

legal notice dated 02nd

September 1971, even if the later legal

notice was to be treated as admissible evidence, though it is not,

since it was never proved before the Land Tribunal in

accordance with law.

19. Unless a person is in actual cultivation of the land

under the tenancy rights given to him by the landlord, the

question of his being deemed to be a tenant under Section 4 of

the Act and getting the occupancy rights under Section 45 of

the Act does not simply arise. A owner of the land, like


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respondent No.3, who denies any tenancy in favour of any other

person, including the present appellant, need not apply to the

Land Tribunal under the Proviso to Section 4 of the Act, unless

the said landlord admitted any such tenancy and wanted to

claim a declaration that such a person is not a tenant on the land

in question. There was no such occasion for the respondent

No.3 to approach the learned Land Tribunal for declaration of

his own ownership or title for the land in question as he never

admitted any tenancy in favour of the present appellant-

Hasansab. The rent paid by the appellant on various dates was

only for the purpose of right to cut the naturally growing grass

on the land belonging to the respondent No.3 and take away the

same and the work assigned under the agreement dated 02nd

May 1969 was to make the land cultivable. None of these

documents prove actual cultivation of the land in question by

the present appellant-petitioner and therefore, there is no

question of granting him the occupancy rights under Section 45


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of the Act. As the conditions precedent for the same are not at

all satisfied, we, therefore, do not find any error in the orders

passed by the learned Land Tribunal and as upheld by the

learned Single Judge in the order under appeal before us.

20. A brief review of the judgments relied upon by the

learned counsel for the appellant is found to be opportune here.

21. In Gurubasappa Ningappa Banakar vs. The Land

Tribunal, Dharwar & others, ILR 1979 KAR 156, a Division

Bench of this Court held that the definition of ‘land’ in Section

2(18) of the Act of 1961 includes land used for a purpose

subservient to agriculture and the definition of the word

‘cultivate’ would include improving agricultural produce and it

is not necessary that the basic operations like tilling, sowing

and planting in the very land, was necessary to construe it as an

activity of cultivating the land. Paragraphs 11 and 12 of the

judgment are quoted below for ready reference.


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“ 11. Shri Thipperudrappa argued, unless basic

operations of tilling sowing of seeds, planting and

similar work were carried on the land in question,

the subsequent operations like thrashing and

stacking would not make that land an agricultural

land and that likewise, stacking of fodder grown

on some other land and thrashing of crops grown

on some other land, could not be regarded as

cultivation of this land.

12. Since the definition of land in Section 2(18)

of the Act includes land used for a purpose

subservient to agriculture and the definition of

the word ‘Cultivate’ includes improving

agricultural produce, we are unable to accept the

contention of Shri.Thipperudrappa that unless the

petitioner was carrying on basic operations like

tilling, sowing and planting in this very land, he

could not be regarded as cultivating the land for

the purpose of Section 45 of the Act. ”

There is no dispute on the principles propounded in the

said decision, but we do not find any evidence in the present


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case that the appellant was doing any such cultivation activities

like improving of the agricultural produce or stacking of fodder

grown on some other land, thrashing of crops, etc., subservient

to the main activity of the agriculture like tilling, sowing and

planting, etc. The activity of cutting of the naturally grown

grass cannot be compared with the subservient activities carried

out in that case and that is specifically excluded from the

definition of ‘Cultivation’ under 1961 Act. Therefore, the said

decision is clearly distinguishable on facts.

22. In Suresh S.Rao and Others Vs. Land Tribunal,

Belgaum and others, 2007 (5) Kar.L.J. 303, a learned Single

Judge of this Court held that even if the revenue records do not

show the name of the applicant as a tenant, but the owner

himself has admitted the possession and cultivation of the

applicant on the appointed day and earlier to that, the

relationship between the landlord and tenant shall be treated as

established and unless such relationship is terminated in any


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manner known to law, the Tribunal was justified in conferring

occupancy rights in favour of the tenant.

The facts in the present case are contrary to the facts in

that case before the learned Single Judge, where not only the

actual cultivation by the appellant is denied, but the activity of

cutting of the grass and making the land cultivable cannot be

deemed to be sufficient for the appellant to be described or

deemed as a tenant at all. Therefore, the question of entering

his name in the revenue records as tenant does not arise.

23. In Baleshwar Tewari by LRs and others Vs. Sheo

Jatan Tiwary and others, ILR 1997 KAR 2186, the Hon’ble

Supreme Court held that the entries in the revenue records is the

paradise of the Patwari and the tiller of the soil is rarely

concerned with the same and he would not interfere with the

command of the intermediary so long as his possession is not

disturbed. Therefore, creation of records is a camouflage to


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defeat just and legal right or claim and interest of the raiyat, the

tiller of the soil on whom the Act confers title to the land he

tills.

Again, there cannot be any dispute on the principles laid

down by the Hon’ble Supreme Court, but there must exist facts

and evidence on record to apply the law in favour of the

appellant-petitioner. But, we do not find any such facts

established by the appellant-petitioner in the present case and

therefore, the said judgment is also of little help to the

appellant-petitioner.

24. In Venkatappa Ningappa Vs. State of Karnataka

and others, 1981(1) Kar.L.J. 382, a learned Single Judge of

this Court was dealing with a case of lack of personal

supervision of the owner in the matter of cultivation by the

tenant and found that whether under an agreement of hired

labour, the petitioner was cultivating the land, in the absence of


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personal supervision of the owner over the cultivation, who was

residing 120 miles away of the land, the petitioner’s cultivation

does not amount to cultivation by hired labour and the

petitioner could be deemed to be a tenant under Section 4(b) of

the Act.

No such facts are forthcoming in the present case and

therefore, this judgment is also found to be distinguishable on

facts.

25. In Papila Bai Vs.Chavdas T.Bhortakke (Dead) by

LRs and Others, (2005) 2 SCC 509, the Hon’ble Supreme

Court dealing with the provisions of Bombay Tenancy and

Agricultural Lands Act, 1948, held that a person inducted as a

tenant on mortgaged land by mortgagee in possession could be

deemed to be a tenant and upon extinction of the mortgage by

redemption also, the High Court held that the respondent No.1

was lawfully cultivating the land and therefore, could be


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deemed to be a tenant under Section 4 of the Act was justified

in so holding.

As noted above, the present case is clearly on a different

footing as neither the respondent No.3 is a mortgagee of the

land in question nor the appellant was put in possession by him

lawfully and on the contrary, his possession and cultivation is

stoutly denied by the respondent No.3 and therefore, the said

judgment is not applicable to the facts of the present case.

26. In Byalappa Vs. State of Karnataka and others,

1981 (2) Kar.L.J. 221, a Division Bench of this Court held that

where the grievance of the petitioner in the Writ Petition against

the order of the Land Tribunal granting of occupancy rights to

the respondent No.3 was that he did not have sufficient

opportunity to put forth his case before the Land Tribunal, the

Court quashing the order impugned, remanded the case back to


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the Land Tribunal for fresh disposal after affording an

opportunity to the petitioner.

The said judgment relied upon by the learned counsel for

the appellant is also misquoted, because in the present case,

thrice the Tribunal has dealt with the case of the petitioner and

there is no question of adequate opportunity not having given to

the present appellant-petitioner for leading the evidence. The

facts are, to the contrary, that despite opportunity given to him,

he failed to adduce the cogent evidence to establish cultivation

of land by him, before the Land Tribunal.

27. Therefore, none of the cases relied upon by the

learned counsel for the appellant-petitioner are applicable to the

facts of the present case and cannot come to the rescue of the

appellant-petitioner for allowing his claim in any manner.


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28. Therefore, we do not find any merit in the present

appeal. The same is liable to be dismissed and the same is

accordingly dismissed. No costs.

Sd/-

JUDGE

Sd/-

JUDGE

RK/-

Documents

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCHjudgmenthck.kar.nic.in/judgmentsdsp/bitstream/... · malamaddi, dharwad dist. dharwad... respondents (by sri.m.kumar, aga for r1-r2; sri.jagadish