Anil Purushotham Gujjar Alias ... vs The Land Tribunal
2021 Latest Caselaw 3362 Kant

       IN THE HIGH COURT OF KARNATAKA
               DHARWAD BENCH

DATED THIS THE 21 S T DAY OF SEPTEMBER, 2021

                         PRESENT

  THE HON'BLE MR. JUSTICE P.B.BAJANTHRI
                            AND
   THE HON'BLE MR. JUSTICE M.G.S. KAMAL

         WRIT APPEAL NO.100064/2021 (LR)

  Between:

  Anil Purushotham Gujjar @ Mehts,
  S/o. Late Purushothan Ganpat Mehta,
  Aged 80 years, Ni ppani-591237.
  Tq.: Chikodi, Dist.: Belagaum.
                                                ... Appellant
  (By Shri Mrutyunjay S. Hallikeri, Advocate)


  And:

  1.     The Land Tribunal, Chikodi,
         By its Secretary,
         Tahasildar, Chikodi-591201.

  2.     Vishnu Eshwar Lad
         S/o. Late Eshwar Lad,
         Age 82 years, Residing at Shedur,
         Tq.: Chikodi, Dist.: Belgaum-591201.

  3.     Panduranga Eshwar Lad
         S/o. Late Eshwar Lad,
         Age 79 years, Opp: to Satpute Building,
         Santacha Mal, at Post Ichalkarangi,
         Dist.: Kolhapur.
                           :2:



4.   Bandu Eshwar Lad
     S/o. Late Eshwar Lad,
     Age 77 years, Rashi Textile,
     Rashai Building, Ichalkaranji,
     Dist.: Kolhapur.

5.   Hirabai Vishnu Nalwade
     W/o. Vishnu Nalwade,
     Age major (Correct age not known)

6.   Janabhai Haribai Avadekar
     S/o. Hariba Avadekar,
     Aged major,

7.   Shevantha Gopal Khavadekar,
     S/o. Gopal Khavadekar, Age major,

     Respondent Nos.5 to 7 are residents of
     Shendur, Chikkodi Taluk,
     Belgaum District-591201.

8.   State of Karnataka,
     Secretary, Revenue Department,
     Vidhana Soudha, Bengaluru-560001.
                                    ... Respondents
(By Shri G.K. Hiregoudar, Govt. Advocate for R2)


     This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, 1961, praying this Hon'ble
Court to set aside the order dated 17.02.2021 in W.P.
No.7299/2004 (LR), passed by the Hon'ble learned
Single Judge and to set aside the order passed in
No.KAR/SR/20/74/Shendur, dated 24.05.2003, passed
by the respondent No.1 in the interest of justice of
equity.


      This writ appeal being heard and reserved for
Judgment, coming on for pronouncement of Judgment,
this day, M.G.S. Kamal, J, delivered the following:
                                :3:


                          JUDGMENT

1. This Writ Appeal is filed under Section 4 of the

Karnataka High Court Act, 1961 by the

appellant/petitioner against the order dated

17.02.2021 passed by the learned Single Judge of

this Court in W.P. No.7299/2004 (LR) dismissing the

writ petition filed by the petitioner. The appellant

had filed the said writ petition questioning the order

dated 24.05.2003 vide Annexure-B passed in

No.KAR/SR/20/74/Shendur by the Land Tribunal in

and by which it was held that one Eshwar Mantu Lad

(tenant) had been entrusted with a task of taking

care of the trees on the land and was therefore

entitled to be conferred with the occupancy rights.

2. The appellant contended that he is the owner in

actual possession of the land bearing R.S.No.7 of

Shendur Village of Chikodi Taluk, Belgaum District

measuring 29 acres 9 guntas. That out of 29 acres 9

guntas, natural trees had grown in 28 acre of land

and the remaining 1 acre 9 guntas was being

cultivated by the appellant for all these years. That

with the permission of the concerned department the

appellant was cutting and removing the trees grown

therein. That one Shri Eshwar Mantu Lad was

protecting the trees and was also supervising and

maintaining the land. He had been appointed as

Guard (Rakawaldar) for protecting the trees and a

kararpatra (agreement) had been executed in that

regard in the year 1938. That during the life time of

Eshwar Mantu Lad, he was only Rakawaldar and he

was maintaining the said position throughout. After

his death, his sons continued as Rakawaldars

(Guards). Neither Eshwar Mantu Lad nor any of his

sons cultivated the land at any point in time. As the

land contained big grown up trees, there was no

question of cultivating the said land. That Eshwar

Mantu Lad had filed Form No.7 claiming tenancy

rights on the basis of the entries made in the record

of rights. The Form No.7 filed by Eshwar Mantu Lad

was rejected by the Land Tribunal on 28.09.1981

holding that there was no tenancy right in respect of

the said land for the purpose of granting occupancy

rights. That the matter was carried in Writ Petition

No.40252/1993 before this Court. This Court by

order dated 21.11.1998 remanded the matter to the

Land Tribunal for fresh consideration. That the Land

Tribunal, Chikodi by its judgment and order dated

24.05.2003 granted occupancy rights in favour of

respondent Nos.2 to 7 being legal representatives of

Eshwar Mantu Lad (original applicant). Aggrieved by

the same, the appellant filed the present writ

petition challenging the order dated 24.05.2003,

passed by the Tribunal on the premise that Eshwar

Mantu Lad was only a Rakawaldar (Guard) and was

not a tenant in respect of the subject land. The

entries in the record of rights were without giving

notice or opportunity to the appellant and the said

entries had no presumptive value. That out of 29

acres 9 guntas of land, 28 acres consisted of

naturally grown trees and there was no cultivation of

land in any manner. That Eshwar Mantu Lad was only

a Guard from the year 1938 and no evidence is

produced to show that the land was being cultivated

by either of Eshwar Mantu Lad or his successors.

That there was no tenancy created between the

petitioner and respondent Nos.2 to 7 at any point in

time. That no evidence was led in before the Land

Tribunal to justify the claim of the land being

cultivated as on 01.03.1974. Hence, sought for

setting aside the order of the Land Tribunal. The

learned Single Judge of this Court, by order dated

17.02.2021 dismissed the said writ petition holding

that taking care of the trees and ensuring their

growth is definitely an agricultural operation within

the meaning of Section 2(10) of the Karnataka Land

Reforms Act, 1961 (for short "the Act, 1961") and

that the said finding by the Tribunal cannot be found

fault with. Being aggrieved by the aforesaid order of

the learned Single Judge, the petitioner/appellant

has filed the present writ appeal.

3. Heard the learned counsel for the appellant and

the learned Additional Government Advocate.

Perused the records.

4. Reiterating the grounds urged in the writ

appeal, the learned counsel for the appellant/

petitioner submitted that as per Section 2(34) of the

Act, 1961 to be a 'tenant' for claiming occupancy

rights one must hold the land on lease and the land

must have been given to his exclusive possession for

the personal cultivation and in the instant case under

the agreement only custody of trees were given to

Eshwar Mantu Lad and the land was never leased to

him for cultivation. As such Eshwar Mantu Lad cannot

be construed as a tenant. That the right of grazing of

land, which is an agricultural activity under Section

2(1)(f) of the Act, 1961 was reserved for himself by

the landlord in terms of the agreement. As such

Eshwar Mantu Lad was not a cultivator of the land

and he was only a watchman/caretaker of the trees

that were there already existing. That in terms of the

agreement, Eshwar Mantu Lad was required to take

care of the trees and to see that no damage would be

caused to them, and in the event of his behavior was

not being good, without waiting for the period fixed

under the agreement, the landlord had power to take

possession of all trees to his custody and entrust it

to several other person. That if any damage was

caused to the trees due to his negligence, he would

reimburse the loss suffered by the landlord from his

movable or immovable property. That this term in

the agreement would evidently show that the

absolute right over the trees also vested with the

landlord alone, as such Eshwar Mantu Lad was

nothing more than a watchman of the trees. That the

learned Single Judge had erroneously concluded that

1/3 r d share to be given to Eshwar Mantu Lad, to be

the indication that he was not a mere caretaker of

trees and that the said reasoning was erroneous and

unsustainable. That the subject land was hilly land

and that naturally grown teak trees were standing

thereon without any human efforts. All that was

required only to guard and protect the land and

trees. It is only for this specific purpose in the year

1938, the father of the appellant had entered into an

agreement with Eshwar Mantu Lad appointing him as

Rakawaldar (Guard) to protect the trees. That in

consideration of his service, it was agreed that 1/3 r d

share or as mutually decided between them,

proceeds obtained after cutting of the trees would be

shared. That the responsibility given to Eshwar

Mantu Lad would not amount to lease or cultivation.

Hence the reasoning assigned by the learned Single

Judge were contrary to the facts and law. As such

sought for allowing of the writ appeal.

5. Learned Additional Government Advocate on the

other hand submitted that the material on record

would substantiate the case that there was definitely

an agricultural activity involved in the transaction as

such the tribunal and the learned single judge were

justified in passing the order.

6. In view of the above contentions urged by the

learned counsel for the parties, the question that

arise for our consideration in this appeal is:

"Whether the learned Single Judge is justified in dismissing the writ petition holding that taking care of the trees and

ensuring their growth is an agricultural operation within the meaning of Section 2(10) of the Act, 1961 and consequently whether Eshwar Mantu Lad was a tenant thereof?"

7. Before adverting to the merits and demerits of

the case, it is necessary to extract the definition of

terms "tenant" and "to cultivate":

"(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 1
               [Karnataka]1     T enants     (Temporary

Protection from Eviction) Act, 1961;

[(iia) a person who cultivates personally any land on lease under a lease created contrary to the 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;"

The term "to cultivate" is defined under Section

2(10) of the Act, 1961 as under"

"(10)"to cultivate" with its grammatical variations and cognate e xpressions 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.

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."

It is also useful to refer Section 4 of the Act, 1961

regarding "persons to be deemed tenants".

"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

(c) a mortgagee in possession:

Provided that if upon an application made by the owner within one year from the appointed day.

(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."

8. The Division Bench of this Hon'ble Court in the

case of BYALAPPA VS. STATE OF KARNATAKA AND

ORS. reported in 1981(2) KLJ 221 while dealing with

the case of cultivation of casurina Gida has held at

page 224 as under:

"As observed by the Supreme Court in Benoy Kumar's case, if a person plants on a vacant land, trees with a view that they should grow into a forest, as for example casurina plantations, and expends labour and skill for that purpose, the produce from such trees would be clearly agricultural produce. There is no reason why the processes of preparing the soil, planting saplings, watering and manuring them and tending them, should not be regarded as coming within the ambit of 'cultivation' . It is not the case of Shri Channabasappa that casurina trees standing on the land in dispute , were of spontaneous growth and were not raised by human efforts.

The explanation to sub-section (10) of S.2 excludes from the ambit of the word 'cultivate' only operations like mere cutting or

gathering fruits or other crops on any land. The necessary implication from such exclusion is that raising trees by operations like preparing the soil, plating saplings, watering and manuring them and tending them, is not excluded from the definition of the word 'cultivate' ."

9. In the light of the aforesaid legal provisions and

settled legal principles of law, the undisputed facts

emanates from the records, more particularly the

evidence recorded before the Land Tribunal, are that

one Eshwar Mantu Lad had executed "caretaker

agreement" (in favour of father of the appellant

herein), which is extracted at paragraph No.7 of the

order of the learned Single Judge, which we deem it

appropriate to extract for immediate reference:

"7. "CARETAKER AGREEMENT REGARDING TEAK WOOD AND OTHER TREES IN RAITAVA HILLY LAND AT SHENDUR"

This caretaker agreement is e xecuted in favour of Rajashri Purushottam Ganapat Bhaichand Shetaj i, Caste jain Shrawak, Oc: Landlord, Age : 31 years, R/o: Nipani by Ishwwara Mahadu Lad, Caste Maratha, Age : 38 years, Occ: Agriculture , R/o Shendur, Tal. Chikkodi as under:-

At Shendur village of Taluka Chikkodi, Dist. Belgaum within the limits of Sub- Registrar, Nipani you own raitava hilly land known as Kunwar bearing Sy.No.7 measuring 29 acres 9 guntas assessed at Rs.9/-. It is a

hilly land in which teak and other types of trees are grown. You have cut the trees recently and new trees are coming up and there are other trees. For taking care of these trees I have today taken them in my custody. I will take care of the trees for a period of then years from today alongwith trees that may come up hereafter. I will take care of the trees properly and protect them. I n the 10 t h years or prior to that when the trees are found fit for cutting according to you wish at one stretch are to be cut and they are to be sold by you and me in consultation with each other and after deducting the e xpenses for cutting of trees, out of the price you have to give me 1/3 r d share towards my care taking of the trees or we may decide to share the wood as per the above terms and conditions and after giving 1/3 r d wood to me the remaining wood is to be sold by you and you to receive the entire price. In pursuance of this agreement I have taken the trees in my custody and I will take care of them and see that no damage is caused to the trees. I will do this job honestly and sincerely and if I fail to do my job sincerely and if my behaviour is not good, without waiting for the period fixed under this agreement you can take possession of all the trees from my custody and entrust it for care taking to any other person of your choice. Without insisting upon the unexpired period unconditionally I will hand over the trees to you and I will not commit any default in this . If any damage is caused to the trees due to my negligence I will reimburse the loss suffered by you on my personal responsibility and on my movable and immovable properties. In the said land you can give permission to graze every year. You can do so every year and I have no concern with the same. On these terms I will take proper care of all the e xisting trees in the land and those which will grow hereafter. I will take 1/3 r d share of my wood at the time of cutting as may be decided by the panchas. I will not

raise any dispute in this regard. I f the trees are cut within the period of ten years as mentioned in this agreement I will not claim any right in the cutting of the trees. This agreement is binding on me and my all heirs. I have e xecuted this agreement of free will and full knowledge on 13 t h August, 1937."

L.T .M.

Ishwar Mahadu Lad"

10. As rightly observed by the learned Single Judge,

perusal of the said agreement would manifestly make

it clear that the said Eshwar Mantu Lad had been

assigned with the responsibility of taking care of

trees and also protecting them. The agreement also

evidences the fact that Eshwar Mantu Lad, in terms

of the agreement has taken the trees into his

custody and has undertaken to take care of them and

see that no damage was caused to the trees.

11. Further a perusal of the order dated 24.05.2003

passed by the Land Tribunal, Chikkodi at Annexure-B

reveal that elaborate evidence has been adduced by

the parties therein. It is seen that Eshwar Mantu Lad

was cultivating the land and upon his demise his

children were cultivating the land. That in the year

1981, they were growing groundnut in 20 acres of

land and paddy in 4 acres of land. That the entire

land was enclosed with stone wall to protect the

valuable crop. They had grown various trees

including teakwood and kindal trees. That they had

made necessary provision for water course for

irrigation. That in the year 1968-69, with the

permission of the Forest Department cut the trees

and had sold it as timber. That the said Eshwar

Mantu Lad had constructed Ganesh's Temple on

which his name and the year is engraved and it is

still seen and they were paying Rs.275/- to the land

owner. That the land owner was neither in possession

nor cultivating the subject land.

12. Nothing creditworthy has been elicited in the

cross-examination. On the other hand the line of

questions and suggestions put to the witness would

establish that Eshwar Mantu Lad, the father of

respondent Nos.2 to 7 was cultivating the land and

after his demise, respondent Nos.2 to 7 are

continuing to occupy the land. The Tribunal after

taking into consideration of these elaborate material

evidence produced by the parties and after giving a

detailed reasoning has held that the respondent

Nos.2 to 7-applicants being legal heirs of Eshwar

Mantu Lad to be the tenants in occupation of the

subject land.

13. In view of the aforesaid facts and circumstances

and settled principles of law extracted herein above,

the appellant in our considered opinion has failed to

make out any grounds to negate the claim of the

respondents to be the tenants in occupation of the

land and cultivating the same. On the other hand,

even from the materials produced by the appellant

and the evidence before the Tribunal, it is

categorically clear that Eshwar Mantu Lad had been

in possession and cultivation of the subject land right

from the year 1938 and continued till his demise and

thereafter his children namely respondent Nos.2 to7

have continued to cultivate the land.

14. In the aforesaid facts and circumstance and in

view of our aforesaid analysis, we are of the

considered opinion that the appellant has not made

out any ground for interference with the order

passed by the learned Single Judge and the order

passed by the Land Tribunal. Accordingly, the appeal

is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE Vnp*