Under
Section 61 of Karnataka Land Reforms act 1961. Occupancy granted to the
tenant by the final order of the tribunal cannot be transferred by the
occupant for 15 years from the date of final order. The land can be
partitioned among the family, can be bequeathed by will, but it cannot
be Sold, Gifted, Exchanged, Mortgaged, Leased or assigned.
A CASE BEFORE FULL BENCH OF HIGH COURT OF KARNATAKA WAS DECIDED BY HON’BLE JUSTICES N.K. JAIN, H. RANGAVITTALACHAR AND V.G, SABHAHIT, HAS PASSED A LAND MARK JUDGEMENT RELATED TO TENANTED LANDS AND PTCL ACT. In Mohammed Jaffar and Another V State of Karnataka and Others, Reported in 2003(1) Kar. L.J. 337 (FB).
1. Tenanted land that stood vested in State Government as on 1-3-1974 under Land Reforms Act, does not become "granted land" when occupancy in respect of such land is conferred on tenant, merely because tenant happens to be person belonging to Scheduled Caste or Scheduled Tribe — Vesting of tenanted land in State Government is not absolute but is subject to vested right of tenant to get occupancy conferred on him — Conferment of occupancy right on tenant by Land Tribunal does not amount to making grant of land — Alienation of land in respect of which occupancy was conferred on erstwhile tenant, held, is not hit by prohibitions contained in Act of 1978.
2. A bare reading of Section 3(l)(b) of the PTCL Act makes it clear that the land should be granted by the Government and such land is to be granted to a person belonging to Scheduled Castes or the Scheduled Tribes under the relevant law including agrarian reforms. Once the land is held to be a granted land, the restriction contained in Section 4 regarding the apprehension of transfer of land would apply. . . . Section 44 of the KLR Act deals with vesting of the land in the Government. Therefore, the land which is not granted by the State Government cannot prima facie be hit by the provisions of the PTCL Act.
3. All the lands held by or in possession of the tenants vest with the State Government free from all encumbrances and the State Government is entitled to take possession of the said properties. However, as per Section 44(e) the Government is not entitled to take possession of the tenanted land and the permanent tenants, protected tenants and other tenants holding the land are entitled to such right or privileges and subject to such conditions provided under Act. In view of Section 44 of the KLR Act, it is clear that conferment of occupancy right by the Land Tribunal, and not by the Government, is only a declaration or pre-existing right which has been conferred on the tenant under Section 45 and vesting of the land is subject to right that is conferred on the tenant for conferment of occupancy right- Section 45 of the KLR Act gives a right to a person who is a tenant on the land to get the occupancy right conferred in his favour and Sections 48 and 48-A deals with the constitution of the Tribunals and enquiry by the Tribunal. The occupancy right will be conferred by the Land Tribunal and not by the Government under Section 48-A of the KLR Act on a tenant who was cultivating the land personally on 1-3-1974. Therefore, what is conferred on the tenant who was personally cultivating the land on 1-3-1974 is the declaration of his occupancy right of land on 1-3-1974, by the Tribunal. The preamble to the KLR Act clearly shows that the Act is enacted to confer ownership on the tenants and wherefore, it is clear that the conferment of occupancy right on the tenant who was personally cultivating the land on 1-3-1974 is conferment of ownership on the tenant as per the preamble to the Act and the same is subject to certain restrictions which are imposed in the certificate of registration issued under Section 55 of the Act in Form 10.
4. Conferment of occupancy right is only declaration of the fact that the tenant who was personally cultivating the land on 1-3-1974 and the land which has vested with the Government, the tenant js declared as the occupant of the said land subject to the restrictions contained in the certificate of registration and if the tenant proves that he has been personally cultivating the land on 1-3-1974 he cannot be denied conferment of occupancy right. .... Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act. The vesting of land in the Government is subject to vested right of a tenant to get occupancy right and for determination of right and conferment of occupancy by Land Tribunal, a Statutory Authority established under the Land Reforms Act, is the Competent Authority to determine the same on a tenant who was personally cultivating the land on 1-3-1974.
5. In view of this, the occupancy right, which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The land in respect of which the occupancy right has conferred under Section 48-A of the KLR Act would not fall within the ambit of 'granted land' as defined under Section 3(1 }(b) of the PTCL Act.
AGRICULTURAL LAND
It includes garden land and land capable of being used for agricultural purposes or purposes subservient thereto — Whether land in question is agricultural land or not is question of fact, and where that question has been decided by Tribunal on basis of evidence on record and spot inspection, its decision cannot be interfered with in writ petition. Section 2-A(18) of the Karnataka Land Reforms Act defines "land" to mean the land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes garden land. The Tribunal is a fact finding authority. Since it has recorded the findings on appreciation of the evidence available on record, this Court in exercise of the power under accuseds 226 and 227 of the Constitution cannot re-appreciate the evidence and arrive at different findings. — Alban D'Souza v The Land Tribunal, Udupi and Others, ILR 1999 Kar. 243.
AGRICULTURAL LABOURER WITH OTHER AVOCATION TO AUGMENT HIS INCOME
Merely because an agricultural labourer, to augment his income for the maintenance of himself and his family, for some time runs a tea shop in a portion of the dwelling-house, cannot be a ground to deprive him of the right given to an agricultural labourer to register him as an owner of a dwelling-house located in a village, as provided under Section 38 of the Act. — Dhananjaya Viswesvaraya Hegde v fatti Kuppa Naika (Deceased) by L.Rs and Others, 2002(3) Kar. L.J. 233A.
PUNJA LANDS
Punja lands in Dakshina Kannada District are not agricultural lands as only thatched grass are grown in those lands naturally and such lands are not brought under cultivation. . . . 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. — Subhakar and Others v The Land Tribunal, Karkala Taluk, Karkala and Others, 1999(4) Kar. LJ. 524 (DB).
Tenancy for non-agricultural purpose — Claim to occupancy — Where lease is for non-agricultural purpose, merely because portion of land leased is used by tenant for running poultry farm and for horticulture, such land cannot be held to be agricultural land — Claim for occupancy, held, is not sustainable. In the instant case, the land in dispute is described as "punja land" in the earliest lease deed of 1935. Now the said land is situated within the City Corporation limits of Mangalore Town. The dominant purpose for which the land was leased is clearly indicated in the said lease deed that it was for the purpose of construction of a house and for possession and enjoyment of the same. Even the subsequent rental agreement dated 28-12-1945 taken by the petitioner as a mortgagee of the mulageni rights from the mulagenidars also indicates that the purpose of the said lease is for residential use of the house constructed thereon on a monthly rent fixed for a period of 11 months. The petitioner described himself as a 'Salesman' in Form No. VII filed by him and even in the evidence given by him before the Land Tribunal, he has given the same occupation of him. The land in dispute is described as hillock area in the Commissioner's report. Mere existence of trees in the compound of house constructed on punja land does not convert the land into an agricultural land when the dominant purpose of the lease is found to be for non- agricultural use and when the petitioner was not found to be an agriculturist by the notified date. The subsequent use of some portion of the land as a poultry farm, for growing vegetables and for raising some fruit bearing trees after the notified date cannot be taken into consideration for the purpose of ascertaining whether the lease of the said land was for agricultural purposes by the notified date. Since it is found that the dominant purpose of the lease was only for non-agricultural purposes, the Appellate Authority was justified in holding that the land in dispute was not an agricultural land by the notified date and that the petitioner was not the tenant of the land in dispute for agricultural use of land by the notified date. — Narayana Devadiga (Deceased) by L.Rs. v Smt. Sharada and Others, 2002(1) Kar. L.J. 581A.
REMAND TO TRIBUNAL FOR FRESH DECISION ON LAPSES
The Judge in a writ petition quashing the order must remit the case to the Tribunal for a fresh disposal after affording opportunity to the petitioner. The case should not be decided by the Judge on re-appreciation of the evidence. The definition of agricultural land includes land which is capable of being used for agricultural purposes and also a forest land. Hence land on which casurina is raised is capable of being used for agricultural purposes and even as forest land it is agricultural land within the definition, Raising of casurina trees which are not of spontaneous growth is cultivation within Section 2(10) of the Act. Byalappa v State of Karnataka and Others, AIR 1982 Kant. 79
ACTS SUB-SERVIENT TO CULTIVATION OF LAND
Petitioner made an application for grant of occupancy in land measuring 8 guntas in a Survey No. Chilly plants were raised in two guntas and the remaining extent of land was used as thrashing floor and for stacking hay. Land as defined in Section 2(18) means not only land which is used for raising crops, but also land which is used for purposes sub-servient to raising crops. Thrashing of crops can reasonably be regarded as being sub-servient to growing of crops. Likewise, stocking fodder for feeding bullocks maintained by an agriculturist for ploughing the land can also be regarded as sub-servient to cultivation of land. Thrashing of crops can also reasonably be regarded as improving agricultural produce. Hence, the land can be regarded as land cultivated for the purpose of Section 45. It is only if the applicant was cultivating the land as tenant, he would be entitled to be registered as occupant; if he was cultivating the land as mortgagee in possession, he would not be entitled to be registered. Gurubasappa v Land Tribunal, Hirekerur, 1980(1) Kar. LJ. Sh. N. 132.
TENANCY FOR NONAGRICULTURAL PURPOSE — CLAIM TO OCCUPANCY.
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 not 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. In the district of Dakshina Kannada there was no classification of lands as agricultural and non-agricultural. When a lease is evidenced by a written document in which the object or purpose of the lease is stated, then the purpose of the lease as stated in the lease deed concludes the question whether the land demised is agricultural land and the lessee a tenant within the meaning of the Act, notwithstanding the fact the land demised is a nanja or bagayat land. Tenancies and leases of land to which the Land Reforms Act applies are also subject to the prohibitions and limitations prescribed under Section 108(O) of the T.P. Act. Hence, a lessee cannot take advantage of a wrong committed by him by using the land leased for a different purpose than for which it was leased out to claim the benefit under the Act. The lands were demised for specific non-agricultural purposes, the purposes being industries, business, trade, manufacturing, residential, cinema theatres and any other purposes. The, tenancy was by the English calender month, rent being payable on the 5th of the succeeding month. In case of default interest was payable on the arrears. The lessee was directed to pay all taxes relating to the lands and to deduct the same from the rent. The lessee could erect such machinery, effect improvements, Repairs and do new construction or re-construction of buildings etc. The lands were situated within the Mangalore Municipal Limits. The properties demised were four items of land measuring 3 acres 69 cents classified as bagayat consisting of one tiled old main house, one small tiled old out house, thatched cow shed and bath shed, two wells, 40 mango trees, 6 jack trees, 75 coconut trees and 50 cashew trees. The lessee ran a cashew factory therein. The holding was not an agricultural holding and the lessee was not entitled to conferment of occupancy rights under the Act. The lessee could not also be held to be a deemed tenant within Section 4 of the Act. The emphasis in Section 4 is on 'lawful cultivation' and not 'lawful possession'. If a person taking agricultural lands for purpose of industries, commerce etc., uses it for agricultural purposes, his possession of the land will be lawful, but cultivation would not be lawful, as it would offend Section 108(O) of T.P.Act. — Bhamy Panduranga Shenoy v B.H. Ravindra and Others, AIR 1980 NOC 115.
ENTRIES IN RTC AND AVERMENTS IN SALE DEED
Entries in record of rights raise presumption that what is stated therein is correct, but averments in sale deed have no such presumptive value and facts stated therein have to be proved to be believed — Court cannot disbelieve entries in record of rights in absence of evidence to rebut presumption arising there from and merely on basis of unproved averment in sale deed. Muniyappa v G. Hanumanihappa (Deceased) By L.R. and Others, 2003(2) Kar. LJ. 294.
PERSONAL CULTIVATION OF LAND OF WIFE BY HUSBAND
A husband cultivating personally land belonging to his wife would be an agriculturist within Section 2-A(3) of the Act. Such cultivation would amount to cultivation on his own account within Section 2-A(11). Where one member of the family gets cultivated land of the owner member of the family through hired labour under his own supervision, the said cultivation by such supervising member would fall within the definition of personal cultivation in Section 2-A(11). Such construction of Clause (11) of Section 2-A does not militate against the explanations to the clause. The three explanations had been added to mitigate hardship which would have otherwise resulted to certain persons if the explanations had not been added. In all the three cases, i.e.. cultivation of the land held by persons covered by Explanation I or by a joint family covered by Explanation II or by a company or association etc., covered by Explanation III, through hired labour under the supervision of an employee, would be considered on account of such persons, although if these explanations had not been added, such would not be the case. This however would not prove the converse, that is, if a member of the family as defined by clause (12) gets cultivated land belonging to his family member through hired labour under his supervision, such cultivation of the land would not be treated as cultivation by such supervising member on his own account. The above construction of clause (11) would not defeat the objects of Section 80. — State of Karnataka and Another v Vasudem R.P., 1976(2) Kar. L.J. 382.
CULTIVATE PERSONALLY
Petitioner was member of a joint family consisting of himself and four brothers and the pahani extracts showed that petitioner was cultivating the land as a tenant from 1964 upto date. Petitioner's application for grant of occupancy was rejected solely on the ground that he was employed as Secretary in a land mortgage Bank. Held: It was the duty of the Tribunal to examine whether petitioner answered the definition of 'agriculturist' who cultivated lands personally. Under Section 2(11) to 'cultivate personally' includes cultivation of the land by the labour of any member of one's family or even hired labour. Further the pahani entries are presumed to be true until they are replaced by some other entries. The order of rejection cannot hence be sustained. — Raniasingh H.R. v Nagesh Rao D, ILR 1977 Kar. 1350
WIFE CANNOT CLAIM TENANCY UNDER HUSBAND
A member of the family as defined in the Act cannot claim tenancy under another member of the same family and seek registration of occupancy. Thus, a husband or the wife, as the case may be, cannot claim tenancy right as against the other in respect of his or her land. — A. Jalajakshi D. Aiwa v Meenaxi Naik and Another, 1980(2) Kar. LJ. 60.
"HADI" LAND
Land used for collecting leaves from shrubs and plants grown thereon for manuring adjacent land used for agricultural purpose — Such land, in District of Dakshina Kannada, comes within definition of "land", as such land cannot be considered as land used for non-agricultural purposes — Grant of occupancy in respect of such "hadi" land along with occupancy in respect of adjacent agricultural land is to be held in order. Ramachandra Devastanam, Sawada v Subbanna Shetty and Others, ILR 1998 Kar. 1588.
LAND WITH BUILDING — IF AGRICULTURAL LAND.
While determining whether the premises should be regarded as agricultural or non-agricultural, one must look to the dominant characteristics of such premises. The mere fact that there are some plants and trees in the compound of a house will not render the premises an agricultural one. Like-wise the mere fact that in an agricultural land there is a house used as a farm house will not render such premises non-agricultural. Not one factor is decisive and the cumulative effect of all factors should be considered. Where the premises were situated within municipal limits, were assessed to municipal tax, the tenancy was monthly and not annual, that the rent was monthly and not annual and the tenant was not an agriculturist by profession, held, the conclusion that premises are non-agricultural cannot be said to be erroneous. — Vanajakshi v land Tribunal, Udupi and Another, 1979(1) Kar. LJ. 412 (DB).
HOUSE WITH LAND FARM HOUSE
Defendant took the house and land appurtenant on lease for 11 months for a consolidated rent. After the expiry of the lease, the plaintiff sued for eviction. The land measured more than four acres and there were some coconut plants on the land. The lessee was a student and not a farmer. There was nothing to show that the lessee was cultivating in the land appurtenant. On a reading of the lease deed, it was manifest that what was let out was the house along with the land appurtenant and it was a lease of a dwelling house. A farm house is a house constructed in the farm which is cultivated by the farmer to facilitate him in the better cultivation of the farm. Even if a few coconut trees or other trees are found around the house, that would not convert the residential house into a farm house nor the tenant into an agriculturist. Lakshmana Gowda v Dorris, J. Coates, 1983(1) Kar. LJ. Sh. N. 85.
DWELLING HOUSE OF AGRICULTUAL LABOURERS
Even if the land was converted for non-agricultural purposes, an agricultural labourer, who is residing in a dwelling-house located in a village, will not lose his right to be registered as an owner in respect of the said land. Section 38 of the Act confers power on the Tribunal to register an agricultural labourer, who ordinarily resides in a dwelling-house on a land not belonging to him situated in any village. The word 'land' referred to in Section 38 of the Act in the context and in the background of the purpose of Section 38 of the Act, should not be given a restricted meaning as an agricultural land as defined under Section 2(18) of the Act. Section 2(18) of the Act must be understood for the purpose of conferment of occupancy right. The object of Section 38 of the Act is to register an agricultural labourer as an owner thereof in respect of the house and the land appurtenant thereto. While the object of conferment of occupancy right on an agricultural tenant is to give occupancy right to a tiller of the land, the object of Section 38 of the Act is to register an agricultural labourer who is residing in a dwelling-house not belonging to him located in a village, as owner thereof. In that background, if Section 38 of the Act is understood the nature of the land as to whether it is an agricultural land or a non-agricultural land, will not make any difference. The only requirement to register a person as an owner of a dwelling-house located in a village, is that he should be an agricultural labourer. Dhananjaya Visweswara Hegde v Jatti Kuppa Naika (Deceased) by L.Rs and Others, 2002(3) Kar. LJ. 233.
CONVERTED LAND
Agricultural land — Converted to non-agricultural use — Lease of building constructed on such land — Whether agricultural lease or building lease — Claim for occupancy — Where land was converted as non-agricultural land prior to 1-3-1974, and building constructed thereon was leased on monthly rental basis, such land cannot be considered as agricultural land and Tribunal has no jurisdiction to grant occupancy right to tenant claiming same. In this case, the HRC Court has come to the conclusion that the dominant purpose of taking the property on lease was for residential purpose and not for agricultural purpose. The property also was converted to non-agricultural purpose. The rent also was fixed on monthly basis and it was taken only for two months. The crop grown in the remaining area is only a few fruit bearing trees in the compound. For the foregoing reasons, the argument that still it is an agricultural land and not a non-agricultural land, is liable to be rejected. K. Jathappa Rai v State of Karnataka and Others, 2000(4) Kar. LJ. 503.
Non-agricultural land does not come within purview of Act — Such land does not vest with State Government under Section 44 of Act — Land Tribunal has no jurisdiction to enquiry into claims for occupancy in respect of such land. If the land is not a land which is used or capable of being used for agricultural purpose or purposes subservient thereto, having been alienated for non-agricultural purpose, in accordance with the provisions of the relevant Land Revenue Act, it cannot be a subject-matter of enquiry before the Land Tribunal as the Land Tribunal gets no jurisdiction to enquire into the claim for occupancy in respect of such lands. The land in question being a non-agricultural land as on 1-3-1974, is not a "land" as defined by Section 2-A(18) of the Act and therefore, it did not fall within the purview of the Act. It also did not vest in the State Government under Section 44 of the Act. Therefore the Land Tribunal did not get jurisdiction to enquire into the claim for occupancy. — Mallikarjun Co-operative Housing Society Limited, Hubli v State of Kamataka and Others, 1995(6) Kar. L.J. 46A.
LAND DOES NOT INCLUDE HOUSE-SITE
Land does not include house-site or land used exclusively for non-agricultural purposes and no occupancy right in respect of such land can be conferred on occupant thereof. Tenant has put forth his claim to tenancy with respect to the particular area of 24 cents as an independent land under his cultivation. But on his own showing this plot of 24 cents was not at all a cultivable land in that it was his dwelling premises exclusively in his possession and enjoyment as on the material date 1-3-1974. It is not his further case that this 24 cents of land was part and parcel of a single land under his cultivation as a tenant so as to characterize his said house as a farm house. The land in respect of which the person in occupation thereof is entitled to claim tenancy under the Act must be the "Land" within the meaning of the definition contained in sub-section (18) of Section 2-A of the Act A plain reading of the definition of the land contained in Section 2(18) of the Act makes it clear that "the land used exclusively for non-agricultural purpose" does not fall within the purview of the Act and therefore the respondents' claim of tenancy with respect to the said 24 cents of the land is legally untenable. Both the authorities below have erred in law'in considering his claim of tenancy with respect to the said 24 cents of the land whole of which is used by him as a dwelling house. — Kittanna Rai (deceased) by L.Rs v Sheena Poojary and Others, 2000(1) Kar. L.J. 341.
CONSTITUTIONAL VALIDITY
Section 44(2) of the Amendment Act which gives retrospective effect to the decision of Section 14 and also nullifies judgments, decrees or orders, by removing the basis on which such judgments, decrees or orders was founded, is not unconstitutional. The Amended Act in so far as it provides for vesting in the State of tenanted lands and surplus lands in excess of the ceiling limit owned by religious institutions is not violative of Article 26 of the Constitution. Article 26 does not affect the power of the State to acquire any property belonging to a religious denomination. The Amendment of Section 63 further reducing the ceiling limit cannot be said to be unreasonable. The reduction in the ceiling limit resulting in acquisition of some lands under personal cultivation does not offend the second proviso to Article 31-A. The Amendment of the definition of 'family' in Section 2(12) by including unmarried daughters is not liable to attack as violative of Article 14 of the Constitution. Amendment of Section 15 by which right to resume by widows, unmarried daughters, minors and physically handicapped has been taken away is protected by Article 31-A of the Constitution. The protective cloak of Article 31-A of the Constitution is available to the machinery provisions of the law relating to agrarian reforms. Thus the protection is available to the provisions which relate to Constitution of Special Tribunals and conferring upon them adjudicatory jurisdiction. In spite of the infirmity in not providing for security of tenure of the Tribunal, and the absence of a provision for appeal, revision or reference from orders of Tribunals and for transfer of cases from one Tribunal to another, the constitutionality of Section 48 is not open to challenge, as it enjoys the protection under Article 31-A. Having excluded the jurisdiction of Civil and Criminal Courts under Sections 132 and 133, it was competent to the legislature to take away such jurisdiction retrospectively also and to render ineffective orders already made by such Courts. Hence Section 133(l)(iii) providing that all interim orders by Courts shall stand dissolved or vacated, is valid. — Sri Jagadguru Durundundeswara Sidha Sansthan Math at Nidasosi, Belgaum District v State of Karnataka and Another, 1983(1) Kar. L.J. 489.
What the 2nd proviso to Article 31-A(1), Constitution states is that whenever any land under personal cultivation which is within the ceiling limit applicable to a person as in force on the date of such acquisition is acquired by the State Government, compensation will have to be paid at a rate not less than the market value thereof. The said proviso does not impose any fetter on the legislature to reduce the ceiling limit from time to time if it wishes to do so. Bhaskar v State of Karnataka, AIR 1975 Kar. 55
ASSIGNEE FROM PERMANENT TENANT AFTER 1-3-1974 — RIGHTS
Where a mulgeni (permanent) tenant was in possession and personally cultivated the lands, on 1-3-1974 transferred his mulgeni right by registered gift deed on 15-4-1974. Under Section 44(1) of the Act, the lands held by the permanent tenant stood transferred and vested in the State Government and under Section 45(1) the only right, given to the tenant was to be registered as an occupant; and the right possessed by the tenant after the date of vesting (after 1-3-1974) was not transferable and as such the donee did not acquire the right to get himself registered as an occupant. Even assuming that the gift was a valid transfer, he could not be registered as an occupant as he was not a tenant of the land or personally cultivating the same on the date of vesting. Shambhu Eshwar Hegde v Land Tribunal, Kumta and Another, 1979(2) Kar. L.J. 194.
APPLICABILITY OF THE DEFINITION OF 'PERSON' IN THE GENERAL CLAUSES ACT.
The word 'person' is not denned in the Karnataka Land Reforms Act. Therefore, the definition given in the General Clauses Act will apply. The word 'person' includes a 'joint family' and in view of Explanation II to Section 2, it is clear that the Tribunal has the power to decide whether a joint family is or is not a tenant under Section 112(b) of the Act. Explanation II to Section 2 provides that in the case of a joint family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family. Hence, the claim of the appellants that they have been personally cultivating the lands, assuming to be correct, Explanation II to Section 2 would be attracted. — Guruvappa, K. and Another v Smt. Manjappa Hengsu and Others, ILR 1985 Kar. 386 (DB). Parwetewwa v State of Karnataka, ILR 1985 Kar. 1257.
PERSON CLAIMING TITLE — LAWFULLY CULTIVATE THE LAND.
To be a deemed tenant, one must lawfully cultivate the land belonging to another person. The word 'lawful' requires that the possession must be capable of being defended successfully, if action is taken. A deemed tenant also should pay rent. A person lawfully cultivating the land of another must necessarily pay rent for use and occupation. A person cultivating land claiming it as his own is not lawfully cultivating the land belonging to another. It is a case of dispute relating to title. A person claiming to remain in possession as owner cannot be deemed tenant. — Chokkannagari Namyanappa v Land Tribunal, Qiintamani and Another, 1982(2) Kar. L.J. 21.
Tenant' definition does not include persons who were tenants sometimes before 1-3-1974 or sometime before coming into operation of Land Reforms Act — Person claiming to be a tenant must show that he has been and he is in cultivation of land even on 1-3-1974. — Vilas Alias Gundu Ananthacharya v State of Karnataka, ILR 1987 Kar. 1428.
If a person in possession of land under such an agreement continues in possession of the property after the expiry of the period of the agreement his possession will not be that of a tenant in the absence of proof that an agreement of tenancy was entered into after the expiry of the period. Hence the question of applying the provisions of the Karnataka Land Reforms Act and declaring him as a tenant would not arise. — Veerappa Rudrappa v Land Tribunal ILR1976 Kar. 116.
BEQUEATHING TENANT'S INTEREST BY WILL
Statute has premptorily provided succession which cannot be defeated by tenant by bequeathing his interest — No person can be called a tenant unless he cultivates land lawfully — When a tenant cannot bequeath right of tenancy, person claiming benefit under such a Will cannot be termed as a tenant — Such person not entitled to grant of occupancy right. — Thimmakka Kom Venkanna Naik v Land Tribunal and Others, ILR 1987 Kar. 3336 (DB).
TRUST PROPERTY AND TENANT
Agriculturist who cultivates personally land he holds on lease from landlord — Person coming within definition of tenant as on 1-3-1974 is entitled to grant of occupancy right in respect of land held by him on lease. The petitioner's father was inducted as a lawful tenant with effect from 19-6-1951 and the said lease was also approved earlier by the District Judge on 27-5-1951 as provided for in the scheme of the Management of the Trust, for the said scheme provided therein that all the leases of the agricultural land for more than three years of the respondent 1-Trust could be made only with the previous sanction of the District Judge. Therefore, the petitioner was lawful tenant as on 1-3-1974 within the meaning of Section 2(34) of the Karnataka Land Reforms Act. . . . The petitioner is entitled to for grant of occupancy right by the Land Tribunal and therefore the rejection of the claim by the Land Tribunal is not justified. — Satyamurthy v Siddaroodmath Punch Committee, Hubli and Others, 1997(2) Kar. L.J. 631.
TENANT IN POSSESSION AFTER DETERMINATION OF TENANCY — RIGHT TO OCCUPANCY.
Respondent 2 had cultivated the lands as tenant even prior to 1956. Petitioner — Landlord sent a registered notice under Section 31(i)(a) BTAL Act terminating respondent 2's tenancy on 28-3-1955 and on the expiry of the period of one year, filed an application for possession. The matter went up to the High Court which upheld the claim of the landlord and granted 3 months time to respondent 2 to harvest the standing crop, which time expired on 8-12-1961. respondent 2 filed application claiming occupancy rights and the same was granted by the Land Tribunal. On the writ by landlord. After the tenancy of respondent 2 came to be validly determined by the notice issued by the petitioner, he (R-2) continued to be in possession not as a tenant but as a tresspasser. Respondent-2 was not a tenant within and protected by Section 2(e) Tenants Temporary Protection from Eviction Act, 1961. Respondent 2 was not a tenant on the lands in question as on 1-3-1974 though he was cultivating these lands. When that is so, the lands could not, in law, vest in the Government. Hence, no question of conferring occupancy right on respondent 2 arises. Basayya v Land Tribunal, Hungund and Another, 1978(2) Kar. L.J. 131.
DISPUTES CONNECTED WITH AGRARIAN RELATIONS
Section 4 of Act 31 of 1974, is applicable to cases where relief of injunction is claimed in disputes connected with agrarian relations; and has no application to suits for enforcement of easementary right or rights of that nature. Where the plaintiff claimed that by virtue of an agreement entered into between the parties, plaintiff had acquired the right to convey water for irrigating his land through the lands of the defendants, a suit to prevent infringement of a right of this nature is not one to which Act 31 of 1974 has any application. The power of granting interim injunction ex parte has to be exercised with great caution by Civil Courts. The Trial Court was justified in making the order of temporary injunction ex parte. — Gurupadayya Nagayya v Mahadu Arjun, AIR 1976 Kant. 66 : ILR 1976 Kar. 151.
DEEMED TENANCY — CLAIM BY PERSON CULTIVATING LAND
Claim is sustainable only if possession and cultivation is lawful — Where cultivation of land by person is without authority of real owner of land, claim for deemed tenancy on basis of such cultivation being carried on is not sustainable. Deemed tenancy is available only in the case of tenant who is lawfully cultivating the lands. Admittedly in the case on hand the real owner, the Mutt has not permitted or granted the respondent to cultivate the land belonging to Mutt. Therefore Section 4 is not available to the petitioner. — Kanthu v The Land Tribunal, Siddapur, Uttara Kannada District and Others, 2001(2) Kar. LJ. 477B.
A CASE BEFORE FULL BENCH OF HIGH COURT OF KARNATAKA WAS DECIDED BY HON’BLE JUSTICES N.K. JAIN, H. RANGAVITTALACHAR AND V.G, SABHAHIT, HAS PASSED A LAND MARK JUDGEMENT RELATED TO TENANTED LANDS AND PTCL ACT. In Mohammed Jaffar and Another V State of Karnataka and Others, Reported in 2003(1) Kar. L.J. 337 (FB).
1. Tenanted land that stood vested in State Government as on 1-3-1974 under Land Reforms Act, does not become "granted land" when occupancy in respect of such land is conferred on tenant, merely because tenant happens to be person belonging to Scheduled Caste or Scheduled Tribe — Vesting of tenanted land in State Government is not absolute but is subject to vested right of tenant to get occupancy conferred on him — Conferment of occupancy right on tenant by Land Tribunal does not amount to making grant of land — Alienation of land in respect of which occupancy was conferred on erstwhile tenant, held, is not hit by prohibitions contained in Act of 1978.
2. A bare reading of Section 3(l)(b) of the PTCL Act makes it clear that the land should be granted by the Government and such land is to be granted to a person belonging to Scheduled Castes or the Scheduled Tribes under the relevant law including agrarian reforms. Once the land is held to be a granted land, the restriction contained in Section 4 regarding the apprehension of transfer of land would apply. . . . Section 44 of the KLR Act deals with vesting of the land in the Government. Therefore, the land which is not granted by the State Government cannot prima facie be hit by the provisions of the PTCL Act.
3. All the lands held by or in possession of the tenants vest with the State Government free from all encumbrances and the State Government is entitled to take possession of the said properties. However, as per Section 44(e) the Government is not entitled to take possession of the tenanted land and the permanent tenants, protected tenants and other tenants holding the land are entitled to such right or privileges and subject to such conditions provided under Act. In view of Section 44 of the KLR Act, it is clear that conferment of occupancy right by the Land Tribunal, and not by the Government, is only a declaration or pre-existing right which has been conferred on the tenant under Section 45 and vesting of the land is subject to right that is conferred on the tenant for conferment of occupancy right- Section 45 of the KLR Act gives a right to a person who is a tenant on the land to get the occupancy right conferred in his favour and Sections 48 and 48-A deals with the constitution of the Tribunals and enquiry by the Tribunal. The occupancy right will be conferred by the Land Tribunal and not by the Government under Section 48-A of the KLR Act on a tenant who was cultivating the land personally on 1-3-1974. Therefore, what is conferred on the tenant who was personally cultivating the land on 1-3-1974 is the declaration of his occupancy right of land on 1-3-1974, by the Tribunal. The preamble to the KLR Act clearly shows that the Act is enacted to confer ownership on the tenants and wherefore, it is clear that the conferment of occupancy right on the tenant who was personally cultivating the land on 1-3-1974 is conferment of ownership on the tenant as per the preamble to the Act and the same is subject to certain restrictions which are imposed in the certificate of registration issued under Section 55 of the Act in Form 10.
4. Conferment of occupancy right is only declaration of the fact that the tenant who was personally cultivating the land on 1-3-1974 and the land which has vested with the Government, the tenant js declared as the occupant of the said land subject to the restrictions contained in the certificate of registration and if the tenant proves that he has been personally cultivating the land on 1-3-1974 he cannot be denied conferment of occupancy right. .... Under the circumstances, it is clear that occupancy right cannot at all fall within the ambit of 'granted land' as defined under the PTCL Act. The vesting of land in the Government is subject to vested right of a tenant to get occupancy right and for determination of right and conferment of occupancy by Land Tribunal, a Statutory Authority established under the Land Reforms Act, is the Competent Authority to determine the same on a tenant who was personally cultivating the land on 1-3-1974.
5. In view of this, the occupancy right, which has been granted by the Land Tribunal, cannot be construed as "granted land" as defined under the PTCL Act. The land in respect of which the occupancy right has conferred under Section 48-A of the KLR Act would not fall within the ambit of 'granted land' as defined under Section 3(1 }(b) of the PTCL Act.
AGRICULTURAL LAND
It includes garden land and land capable of being used for agricultural purposes or purposes subservient thereto — Whether land in question is agricultural land or not is question of fact, and where that question has been decided by Tribunal on basis of evidence on record and spot inspection, its decision cannot be interfered with in writ petition. Section 2-A(18) of the Karnataka Land Reforms Act defines "land" to mean the land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes garden land. The Tribunal is a fact finding authority. Since it has recorded the findings on appreciation of the evidence available on record, this Court in exercise of the power under accuseds 226 and 227 of the Constitution cannot re-appreciate the evidence and arrive at different findings. — Alban D'Souza v The Land Tribunal, Udupi and Others, ILR 1999 Kar. 243.
AGRICULTURAL LABOURER WITH OTHER AVOCATION TO AUGMENT HIS INCOME
Merely because an agricultural labourer, to augment his income for the maintenance of himself and his family, for some time runs a tea shop in a portion of the dwelling-house, cannot be a ground to deprive him of the right given to an agricultural labourer to register him as an owner of a dwelling-house located in a village, as provided under Section 38 of the Act. — Dhananjaya Viswesvaraya Hegde v fatti Kuppa Naika (Deceased) by L.Rs and Others, 2002(3) Kar. L.J. 233A.
PUNJA LANDS
Punja lands in Dakshina Kannada District are not agricultural lands as only thatched grass are grown in those lands naturally and such lands are not brought under cultivation. . . . 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. — Subhakar and Others v The Land Tribunal, Karkala Taluk, Karkala and Others, 1999(4) Kar. LJ. 524 (DB).
Tenancy for non-agricultural purpose — Claim to occupancy — Where lease is for non-agricultural purpose, merely because portion of land leased is used by tenant for running poultry farm and for horticulture, such land cannot be held to be agricultural land — Claim for occupancy, held, is not sustainable. In the instant case, the land in dispute is described as "punja land" in the earliest lease deed of 1935. Now the said land is situated within the City Corporation limits of Mangalore Town. The dominant purpose for which the land was leased is clearly indicated in the said lease deed that it was for the purpose of construction of a house and for possession and enjoyment of the same. Even the subsequent rental agreement dated 28-12-1945 taken by the petitioner as a mortgagee of the mulageni rights from the mulagenidars also indicates that the purpose of the said lease is for residential use of the house constructed thereon on a monthly rent fixed for a period of 11 months. The petitioner described himself as a 'Salesman' in Form No. VII filed by him and even in the evidence given by him before the Land Tribunal, he has given the same occupation of him. The land in dispute is described as hillock area in the Commissioner's report. Mere existence of trees in the compound of house constructed on punja land does not convert the land into an agricultural land when the dominant purpose of the lease is found to be for non- agricultural use and when the petitioner was not found to be an agriculturist by the notified date. The subsequent use of some portion of the land as a poultry farm, for growing vegetables and for raising some fruit bearing trees after the notified date cannot be taken into consideration for the purpose of ascertaining whether the lease of the said land was for agricultural purposes by the notified date. Since it is found that the dominant purpose of the lease was only for non-agricultural purposes, the Appellate Authority was justified in holding that the land in dispute was not an agricultural land by the notified date and that the petitioner was not the tenant of the land in dispute for agricultural use of land by the notified date. — Narayana Devadiga (Deceased) by L.Rs. v Smt. Sharada and Others, 2002(1) Kar. L.J. 581A.
REMAND TO TRIBUNAL FOR FRESH DECISION ON LAPSES
The Judge in a writ petition quashing the order must remit the case to the Tribunal for a fresh disposal after affording opportunity to the petitioner. The case should not be decided by the Judge on re-appreciation of the evidence. The definition of agricultural land includes land which is capable of being used for agricultural purposes and also a forest land. Hence land on which casurina is raised is capable of being used for agricultural purposes and even as forest land it is agricultural land within the definition, Raising of casurina trees which are not of spontaneous growth is cultivation within Section 2(10) of the Act. Byalappa v State of Karnataka and Others, AIR 1982 Kant. 79
ACTS SUB-SERVIENT TO CULTIVATION OF LAND
Petitioner made an application for grant of occupancy in land measuring 8 guntas in a Survey No. Chilly plants were raised in two guntas and the remaining extent of land was used as thrashing floor and for stacking hay. Land as defined in Section 2(18) means not only land which is used for raising crops, but also land which is used for purposes sub-servient to raising crops. Thrashing of crops can reasonably be regarded as being sub-servient to growing of crops. Likewise, stocking fodder for feeding bullocks maintained by an agriculturist for ploughing the land can also be regarded as sub-servient to cultivation of land. Thrashing of crops can also reasonably be regarded as improving agricultural produce. Hence, the land can be regarded as land cultivated for the purpose of Section 45. It is only if the applicant was cultivating the land as tenant, he would be entitled to be registered as occupant; if he was cultivating the land as mortgagee in possession, he would not be entitled to be registered. Gurubasappa v Land Tribunal, Hirekerur, 1980(1) Kar. LJ. Sh. N. 132.
TENANCY FOR NONAGRICULTURAL PURPOSE — CLAIM TO OCCUPANCY.
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 not 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. In the district of Dakshina Kannada there was no classification of lands as agricultural and non-agricultural. When a lease is evidenced by a written document in which the object or purpose of the lease is stated, then the purpose of the lease as stated in the lease deed concludes the question whether the land demised is agricultural land and the lessee a tenant within the meaning of the Act, notwithstanding the fact the land demised is a nanja or bagayat land. Tenancies and leases of land to which the Land Reforms Act applies are also subject to the prohibitions and limitations prescribed under Section 108(O) of the T.P. Act. Hence, a lessee cannot take advantage of a wrong committed by him by using the land leased for a different purpose than for which it was leased out to claim the benefit under the Act. The lands were demised for specific non-agricultural purposes, the purposes being industries, business, trade, manufacturing, residential, cinema theatres and any other purposes. The, tenancy was by the English calender month, rent being payable on the 5th of the succeeding month. In case of default interest was payable on the arrears. The lessee was directed to pay all taxes relating to the lands and to deduct the same from the rent. The lessee could erect such machinery, effect improvements, Repairs and do new construction or re-construction of buildings etc. The lands were situated within the Mangalore Municipal Limits. The properties demised were four items of land measuring 3 acres 69 cents classified as bagayat consisting of one tiled old main house, one small tiled old out house, thatched cow shed and bath shed, two wells, 40 mango trees, 6 jack trees, 75 coconut trees and 50 cashew trees. The lessee ran a cashew factory therein. The holding was not an agricultural holding and the lessee was not entitled to conferment of occupancy rights under the Act. The lessee could not also be held to be a deemed tenant within Section 4 of the Act. The emphasis in Section 4 is on 'lawful cultivation' and not 'lawful possession'. If a person taking agricultural lands for purpose of industries, commerce etc., uses it for agricultural purposes, his possession of the land will be lawful, but cultivation would not be lawful, as it would offend Section 108(O) of T.P.Act. — Bhamy Panduranga Shenoy v B.H. Ravindra and Others, AIR 1980 NOC 115.
ENTRIES IN RTC AND AVERMENTS IN SALE DEED
Entries in record of rights raise presumption that what is stated therein is correct, but averments in sale deed have no such presumptive value and facts stated therein have to be proved to be believed — Court cannot disbelieve entries in record of rights in absence of evidence to rebut presumption arising there from and merely on basis of unproved averment in sale deed. Muniyappa v G. Hanumanihappa (Deceased) By L.R. and Others, 2003(2) Kar. LJ. 294.
PERSONAL CULTIVATION OF LAND OF WIFE BY HUSBAND
A husband cultivating personally land belonging to his wife would be an agriculturist within Section 2-A(3) of the Act. Such cultivation would amount to cultivation on his own account within Section 2-A(11). Where one member of the family gets cultivated land of the owner member of the family through hired labour under his own supervision, the said cultivation by such supervising member would fall within the definition of personal cultivation in Section 2-A(11). Such construction of Clause (11) of Section 2-A does not militate against the explanations to the clause. The three explanations had been added to mitigate hardship which would have otherwise resulted to certain persons if the explanations had not been added. In all the three cases, i.e.. cultivation of the land held by persons covered by Explanation I or by a joint family covered by Explanation II or by a company or association etc., covered by Explanation III, through hired labour under the supervision of an employee, would be considered on account of such persons, although if these explanations had not been added, such would not be the case. This however would not prove the converse, that is, if a member of the family as defined by clause (12) gets cultivated land belonging to his family member through hired labour under his supervision, such cultivation of the land would not be treated as cultivation by such supervising member on his own account. The above construction of clause (11) would not defeat the objects of Section 80. — State of Karnataka and Another v Vasudem R.P., 1976(2) Kar. L.J. 382.
CULTIVATE PERSONALLY
Petitioner was member of a joint family consisting of himself and four brothers and the pahani extracts showed that petitioner was cultivating the land as a tenant from 1964 upto date. Petitioner's application for grant of occupancy was rejected solely on the ground that he was employed as Secretary in a land mortgage Bank. Held: It was the duty of the Tribunal to examine whether petitioner answered the definition of 'agriculturist' who cultivated lands personally. Under Section 2(11) to 'cultivate personally' includes cultivation of the land by the labour of any member of one's family or even hired labour. Further the pahani entries are presumed to be true until they are replaced by some other entries. The order of rejection cannot hence be sustained. — Raniasingh H.R. v Nagesh Rao D, ILR 1977 Kar. 1350
WIFE CANNOT CLAIM TENANCY UNDER HUSBAND
A member of the family as defined in the Act cannot claim tenancy under another member of the same family and seek registration of occupancy. Thus, a husband or the wife, as the case may be, cannot claim tenancy right as against the other in respect of his or her land. — A. Jalajakshi D. Aiwa v Meenaxi Naik and Another, 1980(2) Kar. LJ. 60.
"HADI" LAND
Land used for collecting leaves from shrubs and plants grown thereon for manuring adjacent land used for agricultural purpose — Such land, in District of Dakshina Kannada, comes within definition of "land", as such land cannot be considered as land used for non-agricultural purposes — Grant of occupancy in respect of such "hadi" land along with occupancy in respect of adjacent agricultural land is to be held in order. Ramachandra Devastanam, Sawada v Subbanna Shetty and Others, ILR 1998 Kar. 1588.
LAND WITH BUILDING — IF AGRICULTURAL LAND.
While determining whether the premises should be regarded as agricultural or non-agricultural, one must look to the dominant characteristics of such premises. The mere fact that there are some plants and trees in the compound of a house will not render the premises an agricultural one. Like-wise the mere fact that in an agricultural land there is a house used as a farm house will not render such premises non-agricultural. Not one factor is decisive and the cumulative effect of all factors should be considered. Where the premises were situated within municipal limits, were assessed to municipal tax, the tenancy was monthly and not annual, that the rent was monthly and not annual and the tenant was not an agriculturist by profession, held, the conclusion that premises are non-agricultural cannot be said to be erroneous. — Vanajakshi v land Tribunal, Udupi and Another, 1979(1) Kar. LJ. 412 (DB).
HOUSE WITH LAND FARM HOUSE
Defendant took the house and land appurtenant on lease for 11 months for a consolidated rent. After the expiry of the lease, the plaintiff sued for eviction. The land measured more than four acres and there were some coconut plants on the land. The lessee was a student and not a farmer. There was nothing to show that the lessee was cultivating in the land appurtenant. On a reading of the lease deed, it was manifest that what was let out was the house along with the land appurtenant and it was a lease of a dwelling house. A farm house is a house constructed in the farm which is cultivated by the farmer to facilitate him in the better cultivation of the farm. Even if a few coconut trees or other trees are found around the house, that would not convert the residential house into a farm house nor the tenant into an agriculturist. Lakshmana Gowda v Dorris, J. Coates, 1983(1) Kar. LJ. Sh. N. 85.
DWELLING HOUSE OF AGRICULTUAL LABOURERS
Even if the land was converted for non-agricultural purposes, an agricultural labourer, who is residing in a dwelling-house located in a village, will not lose his right to be registered as an owner in respect of the said land. Section 38 of the Act confers power on the Tribunal to register an agricultural labourer, who ordinarily resides in a dwelling-house on a land not belonging to him situated in any village. The word 'land' referred to in Section 38 of the Act in the context and in the background of the purpose of Section 38 of the Act, should not be given a restricted meaning as an agricultural land as defined under Section 2(18) of the Act. Section 2(18) of the Act must be understood for the purpose of conferment of occupancy right. The object of Section 38 of the Act is to register an agricultural labourer as an owner thereof in respect of the house and the land appurtenant thereto. While the object of conferment of occupancy right on an agricultural tenant is to give occupancy right to a tiller of the land, the object of Section 38 of the Act is to register an agricultural labourer who is residing in a dwelling-house not belonging to him located in a village, as owner thereof. In that background, if Section 38 of the Act is understood the nature of the land as to whether it is an agricultural land or a non-agricultural land, will not make any difference. The only requirement to register a person as an owner of a dwelling-house located in a village, is that he should be an agricultural labourer. Dhananjaya Visweswara Hegde v Jatti Kuppa Naika (Deceased) by L.Rs and Others, 2002(3) Kar. LJ. 233.
CONVERTED LAND
Agricultural land — Converted to non-agricultural use — Lease of building constructed on such land — Whether agricultural lease or building lease — Claim for occupancy — Where land was converted as non-agricultural land prior to 1-3-1974, and building constructed thereon was leased on monthly rental basis, such land cannot be considered as agricultural land and Tribunal has no jurisdiction to grant occupancy right to tenant claiming same. In this case, the HRC Court has come to the conclusion that the dominant purpose of taking the property on lease was for residential purpose and not for agricultural purpose. The property also was converted to non-agricultural purpose. The rent also was fixed on monthly basis and it was taken only for two months. The crop grown in the remaining area is only a few fruit bearing trees in the compound. For the foregoing reasons, the argument that still it is an agricultural land and not a non-agricultural land, is liable to be rejected. K. Jathappa Rai v State of Karnataka and Others, 2000(4) Kar. LJ. 503.
Non-agricultural land does not come within purview of Act — Such land does not vest with State Government under Section 44 of Act — Land Tribunal has no jurisdiction to enquiry into claims for occupancy in respect of such land. If the land is not a land which is used or capable of being used for agricultural purpose or purposes subservient thereto, having been alienated for non-agricultural purpose, in accordance with the provisions of the relevant Land Revenue Act, it cannot be a subject-matter of enquiry before the Land Tribunal as the Land Tribunal gets no jurisdiction to enquire into the claim for occupancy in respect of such lands. The land in question being a non-agricultural land as on 1-3-1974, is not a "land" as defined by Section 2-A(18) of the Act and therefore, it did not fall within the purview of the Act. It also did not vest in the State Government under Section 44 of the Act. Therefore the Land Tribunal did not get jurisdiction to enquire into the claim for occupancy. — Mallikarjun Co-operative Housing Society Limited, Hubli v State of Kamataka and Others, 1995(6) Kar. L.J. 46A.
LAND DOES NOT INCLUDE HOUSE-SITE
Land does not include house-site or land used exclusively for non-agricultural purposes and no occupancy right in respect of such land can be conferred on occupant thereof. Tenant has put forth his claim to tenancy with respect to the particular area of 24 cents as an independent land under his cultivation. But on his own showing this plot of 24 cents was not at all a cultivable land in that it was his dwelling premises exclusively in his possession and enjoyment as on the material date 1-3-1974. It is not his further case that this 24 cents of land was part and parcel of a single land under his cultivation as a tenant so as to characterize his said house as a farm house. The land in respect of which the person in occupation thereof is entitled to claim tenancy under the Act must be the "Land" within the meaning of the definition contained in sub-section (18) of Section 2-A of the Act A plain reading of the definition of the land contained in Section 2(18) of the Act makes it clear that "the land used exclusively for non-agricultural purpose" does not fall within the purview of the Act and therefore the respondents' claim of tenancy with respect to the said 24 cents of the land is legally untenable. Both the authorities below have erred in law'in considering his claim of tenancy with respect to the said 24 cents of the land whole of which is used by him as a dwelling house. — Kittanna Rai (deceased) by L.Rs v Sheena Poojary and Others, 2000(1) Kar. L.J. 341.
CONSTITUTIONAL VALIDITY
Section 44(2) of the Amendment Act which gives retrospective effect to the decision of Section 14 and also nullifies judgments, decrees or orders, by removing the basis on which such judgments, decrees or orders was founded, is not unconstitutional. The Amended Act in so far as it provides for vesting in the State of tenanted lands and surplus lands in excess of the ceiling limit owned by religious institutions is not violative of Article 26 of the Constitution. Article 26 does not affect the power of the State to acquire any property belonging to a religious denomination. The Amendment of Section 63 further reducing the ceiling limit cannot be said to be unreasonable. The reduction in the ceiling limit resulting in acquisition of some lands under personal cultivation does not offend the second proviso to Article 31-A. The Amendment of the definition of 'family' in Section 2(12) by including unmarried daughters is not liable to attack as violative of Article 14 of the Constitution. Amendment of Section 15 by which right to resume by widows, unmarried daughters, minors and physically handicapped has been taken away is protected by Article 31-A of the Constitution. The protective cloak of Article 31-A of the Constitution is available to the machinery provisions of the law relating to agrarian reforms. Thus the protection is available to the provisions which relate to Constitution of Special Tribunals and conferring upon them adjudicatory jurisdiction. In spite of the infirmity in not providing for security of tenure of the Tribunal, and the absence of a provision for appeal, revision or reference from orders of Tribunals and for transfer of cases from one Tribunal to another, the constitutionality of Section 48 is not open to challenge, as it enjoys the protection under Article 31-A. Having excluded the jurisdiction of Civil and Criminal Courts under Sections 132 and 133, it was competent to the legislature to take away such jurisdiction retrospectively also and to render ineffective orders already made by such Courts. Hence Section 133(l)(iii) providing that all interim orders by Courts shall stand dissolved or vacated, is valid. — Sri Jagadguru Durundundeswara Sidha Sansthan Math at Nidasosi, Belgaum District v State of Karnataka and Another, 1983(1) Kar. L.J. 489.
What the 2nd proviso to Article 31-A(1), Constitution states is that whenever any land under personal cultivation which is within the ceiling limit applicable to a person as in force on the date of such acquisition is acquired by the State Government, compensation will have to be paid at a rate not less than the market value thereof. The said proviso does not impose any fetter on the legislature to reduce the ceiling limit from time to time if it wishes to do so. Bhaskar v State of Karnataka, AIR 1975 Kar. 55
ASSIGNEE FROM PERMANENT TENANT AFTER 1-3-1974 — RIGHTS
Where a mulgeni (permanent) tenant was in possession and personally cultivated the lands, on 1-3-1974 transferred his mulgeni right by registered gift deed on 15-4-1974. Under Section 44(1) of the Act, the lands held by the permanent tenant stood transferred and vested in the State Government and under Section 45(1) the only right, given to the tenant was to be registered as an occupant; and the right possessed by the tenant after the date of vesting (after 1-3-1974) was not transferable and as such the donee did not acquire the right to get himself registered as an occupant. Even assuming that the gift was a valid transfer, he could not be registered as an occupant as he was not a tenant of the land or personally cultivating the same on the date of vesting. Shambhu Eshwar Hegde v Land Tribunal, Kumta and Another, 1979(2) Kar. L.J. 194.
APPLICABILITY OF THE DEFINITION OF 'PERSON' IN THE GENERAL CLAUSES ACT.
The word 'person' is not denned in the Karnataka Land Reforms Act. Therefore, the definition given in the General Clauses Act will apply. The word 'person' includes a 'joint family' and in view of Explanation II to Section 2, it is clear that the Tribunal has the power to decide whether a joint family is or is not a tenant under Section 112(b) of the Act. Explanation II to Section 2 provides that in the case of a joint family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family. Hence, the claim of the appellants that they have been personally cultivating the lands, assuming to be correct, Explanation II to Section 2 would be attracted. — Guruvappa, K. and Another v Smt. Manjappa Hengsu and Others, ILR 1985 Kar. 386 (DB). Parwetewwa v State of Karnataka, ILR 1985 Kar. 1257.
PERSON CLAIMING TITLE — LAWFULLY CULTIVATE THE LAND.
To be a deemed tenant, one must lawfully cultivate the land belonging to another person. The word 'lawful' requires that the possession must be capable of being defended successfully, if action is taken. A deemed tenant also should pay rent. A person lawfully cultivating the land of another must necessarily pay rent for use and occupation. A person cultivating land claiming it as his own is not lawfully cultivating the land belonging to another. It is a case of dispute relating to title. A person claiming to remain in possession as owner cannot be deemed tenant. — Chokkannagari Namyanappa v Land Tribunal, Qiintamani and Another, 1982(2) Kar. L.J. 21.
Tenant' definition does not include persons who were tenants sometimes before 1-3-1974 or sometime before coming into operation of Land Reforms Act — Person claiming to be a tenant must show that he has been and he is in cultivation of land even on 1-3-1974. — Vilas Alias Gundu Ananthacharya v State of Karnataka, ILR 1987 Kar. 1428.
If a person in possession of land under such an agreement continues in possession of the property after the expiry of the period of the agreement his possession will not be that of a tenant in the absence of proof that an agreement of tenancy was entered into after the expiry of the period. Hence the question of applying the provisions of the Karnataka Land Reforms Act and declaring him as a tenant would not arise. — Veerappa Rudrappa v Land Tribunal ILR1976 Kar. 116.
BEQUEATHING TENANT'S INTEREST BY WILL
Statute has premptorily provided succession which cannot be defeated by tenant by bequeathing his interest — No person can be called a tenant unless he cultivates land lawfully — When a tenant cannot bequeath right of tenancy, person claiming benefit under such a Will cannot be termed as a tenant — Such person not entitled to grant of occupancy right. — Thimmakka Kom Venkanna Naik v Land Tribunal and Others, ILR 1987 Kar. 3336 (DB).
TRUST PROPERTY AND TENANT
Agriculturist who cultivates personally land he holds on lease from landlord — Person coming within definition of tenant as on 1-3-1974 is entitled to grant of occupancy right in respect of land held by him on lease. The petitioner's father was inducted as a lawful tenant with effect from 19-6-1951 and the said lease was also approved earlier by the District Judge on 27-5-1951 as provided for in the scheme of the Management of the Trust, for the said scheme provided therein that all the leases of the agricultural land for more than three years of the respondent 1-Trust could be made only with the previous sanction of the District Judge. Therefore, the petitioner was lawful tenant as on 1-3-1974 within the meaning of Section 2(34) of the Karnataka Land Reforms Act. . . . The petitioner is entitled to for grant of occupancy right by the Land Tribunal and therefore the rejection of the claim by the Land Tribunal is not justified. — Satyamurthy v Siddaroodmath Punch Committee, Hubli and Others, 1997(2) Kar. L.J. 631.
TENANT IN POSSESSION AFTER DETERMINATION OF TENANCY — RIGHT TO OCCUPANCY.
Respondent 2 had cultivated the lands as tenant even prior to 1956. Petitioner — Landlord sent a registered notice under Section 31(i)(a) BTAL Act terminating respondent 2's tenancy on 28-3-1955 and on the expiry of the period of one year, filed an application for possession. The matter went up to the High Court which upheld the claim of the landlord and granted 3 months time to respondent 2 to harvest the standing crop, which time expired on 8-12-1961. respondent 2 filed application claiming occupancy rights and the same was granted by the Land Tribunal. On the writ by landlord. After the tenancy of respondent 2 came to be validly determined by the notice issued by the petitioner, he (R-2) continued to be in possession not as a tenant but as a tresspasser. Respondent-2 was not a tenant within and protected by Section 2(e) Tenants Temporary Protection from Eviction Act, 1961. Respondent 2 was not a tenant on the lands in question as on 1-3-1974 though he was cultivating these lands. When that is so, the lands could not, in law, vest in the Government. Hence, no question of conferring occupancy right on respondent 2 arises. Basayya v Land Tribunal, Hungund and Another, 1978(2) Kar. L.J. 131.
DISPUTES CONNECTED WITH AGRARIAN RELATIONS
Section 4 of Act 31 of 1974, is applicable to cases where relief of injunction is claimed in disputes connected with agrarian relations; and has no application to suits for enforcement of easementary right or rights of that nature. Where the plaintiff claimed that by virtue of an agreement entered into between the parties, plaintiff had acquired the right to convey water for irrigating his land through the lands of the defendants, a suit to prevent infringement of a right of this nature is not one to which Act 31 of 1974 has any application. The power of granting interim injunction ex parte has to be exercised with great caution by Civil Courts. The Trial Court was justified in making the order of temporary injunction ex parte. — Gurupadayya Nagayya v Mahadu Arjun, AIR 1976 Kant. 66 : ILR 1976 Kar. 151.
DEEMED TENANCY — CLAIM BY PERSON CULTIVATING LAND
Claim is sustainable only if possession and cultivation is lawful — Where cultivation of land by person is without authority of real owner of land, claim for deemed tenancy on basis of such cultivation being carried on is not sustainable. Deemed tenancy is available only in the case of tenant who is lawfully cultivating the lands. Admittedly in the case on hand the real owner, the Mutt has not permitted or granted the respondent to cultivate the land belonging to Mutt. Therefore Section 4 is not available to the petitioner. — Kanthu v The Land Tribunal, Siddapur, Uttara Kannada District and Others, 2001(2) Kar. LJ. 477B.
