The occupancy rights over ten cents of land together with a dwelling unit bearing Sy. No. 128/6B1 in Derebail of Mangalore, belonging to the petitioner was conferred on the respondents 3 to 5, the children of deceased Nagamma, the applicant in Form 7, under Section 48-A(l) of the Kamataka Land Reforms Act, 1961 (for short, 'the Act'), by order dated 16-11-2002, Annexure-A of the Land Tribunal, Mangalore. Hence this petition.

2. The petitioner contends that the deceased Nagamma, his maternal aunt, was permitted to stay in the dwelling house purchased by him under a deed of conveyance registered on 24-8-1972, as document No. 764 of 1972-73, in the office of the Sub-Registrar, Mangalore, since the petitioner, an employee of the Karnataka Regional Engineering College was provided with a staff quarters for residence. According to the petitioner the property conveyed in the sale deed was described as a house site with a dwelling house, well and land appurtenant thereto, together measuring 10 cents. It is the allegation of the petitioner that there was no relationship of landlord and tenant as between himself and the deceased Nagamma, and that the premises was not an agricultural land. It is the further allegation of the petitioner that the Land Tribunal without considering the dominant characteristics of the premises in question, nor a cumulative effect of all factors, fell in error in recording findings and arrived at conclusions, that the premises was agricultural lands which was lawfully tenanted on the appointed date in favour of the applicant.

3. The petition is not opposed by filing statement of objections of respondents 3 to 5.

4. Having heard the learned Counsel for the parties and perused the pleading and the order impugned, the question for the consideration is whether in the facts and circumstances, the Land Tribunal was justified in conferring occupancy rights over the premises in question in favour of respondents 3 to 5? If not to what order?

5. The order impugned discloses the framing of the following three questions:

(i) Whether the land over which occupancy rights sought for is agricultural land?

(ii) Whether the land was tenanted as on 1-3-1974, the appointed date?

(iii) Whether the applicant was a lawful tenant of the said land on the appointed date?

6. In order to answer the said questions, the Tribunal took into consideration the following facts:

The entries in column (7) of the RTC Phani for the year 1968-69 mentions the existence of six coconut saplings. The spot inspection held on 19-8-1981, upon which the Land Tribunal in its order dated 19-8-1981, recorded a finding that the premises was agricultural lands. The petitioner in his cross-examination, admitted that Mangalore City has both agricultural and non-agricultural lands. Lastly, the applicant had stated that there were six coconut trees, one arecanut tree, vegetable crop and banana sapling and that she was engaged in house hold work.

7. The observations of a Division Bench of this Court in Vanajakshi v Land Tribunal, Udupi and Another in the circumstances is apposite:

"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. Likewise the mere fact that in an agricultural land there is a house used as a farmhouse will not render such premises non-agricultural. No one factor is decisive and the cumulative effect of all factors should be considered".

8. Admittedly, there are no entries in the RTC Phani for any year prior to or on the appointed date, disclosing the name of the deceased Nagamma as the tenant of the land. The land is described as "punja" in the RTC Phani. The covenants in the sale deed dated 24-8-1972 describe the premises as a house site, with a dwelling unit, a well and land appurtenant thereto. The measuremen