The occupancy right under Section 38 of the Land Reforms Act is heritable.

CHIDANANDA ULLAL, J.

( 1 ) THE petitioner herein had filed originally W. P. in No. 20307 of 1982 before this court. The same was transferred to the land reforms appellate authority, dakshina kannada district, mangalore, to treat and try the same as an appeal, whereupon, an appeal in No. Lrat 3737 of 1986 was registered by the appellate authority. Subsequently, when the appellate authority came to be abolished, the records were called for by this court, upon a c. p. filed in No. 3359 of 1991. On receipt of the case records, the instant writ petition is registered.

( 2 ) I heard the learned counsel for the petitioner srisarath chandra bijai for Sri shailendra m. r. , the learned government pleader Sri m. n. ramanjaneyagouda for the respondents 1 and 2 and Sri sanath kumar shetty k. For Sri o. s. bhat for the respondent 3. I have also perused the records.

( 3 ) THE petitioner herein had originally filed writ petition in the year 1982 to challenge the order dated 4-10-1985 passed by the land tribunal, mangalore, produced at Annexure-G to the writ petition, whereby the land tribunal had rejected the claim of grant of occupancy right to them under Section 38 of the land reforms act.

( 4 ) THE brief facts of the case are as follows: the petitioners' mother one seethamma, wife of babu maistry had filed form 2-a before the respondent 2-land tribunal, for grant of occupancy right under Section 38 of the Karnataka Land Reforms Act in respect of 8 cents of land in survey No. 753 (t. s. No. 217) of attavare village in mangalore taluk belonging to the respondent 3. In the said form 2-a, the original declarant claiming herself to be an agricultural labourer sought for registration of occupancy right in respect of the said extent of land. During the pendency of the proceedings, the original declarant seethamma died, whereupon, the petitioners herein were brought on record as the l. rs. Of the said original declarant.

( 5 ) THE respondent 2-land tribunal after holding an enquiry rejected the claim for grant of occupancy right to the petitioners on the ground that the original declarant was not an agricultural labourer, but she was only a beedi worker. It is that rejection of the claim of the original declarant the petitioners have challenged by filing originally W. P. No. 20307 of 1982 as stated above.

( 6 ) THE learned counsel for the petitioner had argued that the occupancy right is heritable as contemplated under Section 24 of the Land Reforms Act. He had also cited a decision in Virupax Krishnaji and others v Land Tribunal, Ron and others , in support of that argument. He had also drawn my attention to the evidence adduced by both sides before the land tribunal. He further submitted that the land tribunal in passing the impugned order had not properly weighed and appreciated the evidence on its record. He therefore prayed that the impugned order be quashed and the matter remanded to the land tribunal with a direction to it to grant occupancy right to the petitioners herein being the l. rs. Of the original declarant.

( 7 ) THE learned counsel appearing for the respondent 3 counter argued that it is only the tenancy right that is heritable under Section 24 of the Land Reforms Act and not the occupancy right under Section 38 of the Land Reforms Act, the one claimed by the original declarant, the mother of the petitioner. His argument is that the right under Section 38 of Land Reforms Act dies with the person and therefore succeeding to that right by the petitioners being the l. rs. Of the original declarant did not arise.

( 8 ) WHILE referring specifically to Section 38 (3) (d) of the Karnataka Land Reforms Act, the learned counsel for the respondent 3 submitted that when no application for the occupancy right is made by an agricultural labourer within the time specified, the subject land does not vest in the state, but reverts back to the owner. Hence, he submitted that on the same analogy, with the failure of the case of the petitioners, the

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