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CASE NO.: Appeal (civil)  4992-4993 of 2000

PETITIONER: Subhakar & Ors

RESPONDENT: Harideesh Kumar & Ors

DATE OF JUDGMENT: 13/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

                Appellants call in question legality of the judgment  rendered by a Division Bench of the Karnataka High Court  dismissing the writ appeal filed by the appellants.           Background facts in a nutshell are as follows:

       The appellants claim to be Chalgeni tenants and  claim grant of occupancy rights under the Karnataka  Land Reforms Act, 1961 (in short the ’Act’).  According to  them late Sesu Poojary, the father of the appellants filed  an application in Form No.7 before the Land Tribunal,  Karkala (for short the ’Tribunal’).  The claim was in  respect of Survey No.162/1 measuring 2 acres 11 cents  and Survey No.176/2 measuring 8 cents in Gandhinagar,  Marpady village Moodabedri, Karkala Taluk of Dakshina  Kannada District.

       Respondent Harideesh Kumar claimed to be the  owner of the land on the basis of a gift-deed from his  grandfather.  Originally, the Tribunal granted occupancy  rights to the appellants’ father by an order dated  25.4.1981. The said order was challenged in Writ Petition  No.10910/84 before the Karnataka High Court and the  High Court allowed the writ petition and remanded the  matter to the Tribunal. After remand by order dated  18.12.1996 rendered by a majority Tribunal rejected the  claim in respect of 1.81 acres of land and granted 0.30  acres on humanitarian grounds.  The appellants as well as  the respondent-Harideesh Kumar filed writ petitions  challenging the order passed by the Tribunal. Learned  Single Judge dismissed the writ petition filed by the  appellants and allowed the writ petition filed by the  respondent-Harideesh Kumar by a common order.    Appellants filed two writ appeals.

Before the High Court the stand of the appellants  was that Punja lands in the district are agricultural lands.   According to the appellants, the definition of "land" in  terms of Section 2(18) of the Act is wide enough to include  Punja land.  Referring to some earlier decisions the  Division Bench of the High Court came to hold that Punja  land is not  agricultural land and only grass is naturally

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grown in such land.  Though the High Court referred to  classification of different Punja lands, it  held that whether  Punja land is agricultural land is a question of fact.   Finding has been recorded that this is not cultivable land  and the grass is naturally grown on the land.  Therefore,  the stand of the appellants was not correct.  It was  observed as follows:-

"In view of the above circumstances,  we hold that in this case, the land in  question is a Punja Land where only  thatched grass is grown naturally.  There  may be some trees on the land.  That does  not mean that a natural grass growing  land is an agricultural land particularly, in  the facts and circumstances of this case  where a built house is surrounding the  land. For all the above reasons, in the  present case, having regard to the facts of  the case, we make it clear that Punja land  in Dakshina Kannada is not an  agricultural land. We make it clear that  where Punja land is brought under  cultivation, it is not a bar on the parties to  adduce evidence that such land is brought  under cultivation for agricultural purpose.   No such evidence is there in this case."                          

       Learned counsel for the appellants submitted that  the application under Section 48A of the Act was in  relation to two plots.  As in Form 7 there was no mention  of Survey 176/2. the appellants have no grievance with  regard to the findings recorded.  But the Tribunal has lost  sight of the fact that on spot inspection certain coconut  trees were found  on the land in question. Before the  Tribunal, the Chairman allowed the claim while the other  members rejected the same.  Reference was made to the  fact that the claimant was a government servant and his  son had admitted that the lease was obtained from  somebody else.   It was also admitted that there was  tailoring establishment running on the land in question.   However, on humanitarian grounds the Tribunal allowed  retention of the house and 30 cents of land. Learned  Single Judge found that no agricultural activity was  possible and the land admittedly was Punja Land.  It was  further observed that no agrarian relationship was  established, and Punja land in the absence of any  evidence, cannot be treated as agricultural land.  That  also was the finding by the Division Bench which further  noted that no evidence was brought to show that the land  was under cultivation.

       These are assailed by the learned counsel for the  appellants.

       In response, learned counsel for the respondent- Harideesh Kumar submitted that land had been obtained  on lease  for a period 11 months starting from 1.1.1963  and 29.11.1963.  The same also shows that the claimant’s  father was a tenant and monthly rent of Rs.2.25 was   payable by him. It was further submitted that the son of  Subhakar accepted somebody else to be the landlord.   Learned counsel for the appellants  submitted that she  was aunt and was managing the affairs on behalf of the

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respondent.  The said plea is without any basis.  In fact,  the rent receipt Ex.P5 on which the appellants placed  reliance did not indicate any serial number.  It was also  noted by the learned Single Judge  that there was no basis  for allowing retention of the house and 30 cents and the  same has been rightly set aside.   

       Section 2(18) of the Act reads as follows:

"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  purposes."                               A bare reading of the provision shows that   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 purposes.  Therefore, it  has to be established that the land was capable of being  used for agricultural purposes or purposes subservient  thereto.  The Tribunal and the High Court have  categorically noted the fact that the land being Punja land  is not cultivable land and only grass is grown naturally.  If  the appellants wanted to establish that it was being used  for agricultural purposes, evidence should have been led  in that regard.  The Division Bench has categorically noted  that no evidence in that regard was led. Mere reference to  the spot inspection to show the existence of a few coconut  trees does not establish that the land was capable of being  used for agricultural purpose.   

       In view of the factual finding recorded by the  Tribunal and the High Court (both learned Single Judge  and the Division Bench) there is no merit in the present  appeals which are accordingly dismissed.  There will be no  order as to costs.