S. R. VENKATESHA MURTHY, J. ( 1 ) THIS writ petition is filed against the order made by the tahsildar purportedly under Section 130 of the Karnataka Land Reforms Act (hereinafter referred to as the 'act') directing the eviction of the petitioner from house in which he is admittedly residing. By the order Annexure-D , the tahsildar directed the eviction of the petitioner from the land in survey nos. 181/a/4b and 181/a2 of kodibag village the case that was sought to be made out by the second respondent who was the petitioner before the tahsildar was that the petitioner herein was in unauthorised occupation of the house and that he was liable to be evicted by the exercise of the power under Section 130 of the act. ( 2 ) THE petitioner resisted the claim on the ground that the house no. 2130 is not a farm house and is part of the 14 guntas originally owned by shantharam govinda palekar; that he was residing in the house for the last 70 years on a rental of Rs. 6 per annum; that he was sought to be evicted by the landlord by making a petition to the munsiff, karwar, uttara kannada in hrc No. 7 of 1981; that the second respondent herein only sought conferment of occupancy rights in respect of 6 guntas of land each in the two survey numbers referred to above and that he is not liable to be evicted under Section 130 of the act. ( 3 ) THE tahsildar found that the second respondent as well as the petitioner made applications under sections 48-a and 38 of the act respectively in respect of 6 guntas and 6 annas of land in survey nos. 181/a4 and 181/a2; 2 guntas and 8 annas of the same land on which the house in question is situated. It is admitted that the petitioner's appliction under Section 38 of the act was rejected by the land tribunal and the petitioner is concluded by that order. ( 4 ) THE tahsildar do not apparently seek to find out whether the house claimed by the petitioner was within the land granted to the second respondent. Indeed that it was not so is clear from the order Annexure-C passed by the land tribunal dated 6-11-1988. ( 4 ) THE tahsildar do not apparently seek to find out whether the house claimed by the petitioner was within the land granted to the second respondent. Indeed that it was not so is clear from the order Annexure-C passed by the land tribunal dated 6-11-1988. The land tribunal recorded on the basis of the evidence of the second respondent to the effect that the house in the occupation of the petitioner did not lie within the land in respect of which occupancy rights were claimed. In the same Order, the land tribunal also examined the case of the petitioner for conferment of occupancy rights and held that the petitioner being a tenant of the house was not entitled to occupancy rights. What is significant to note is that the land tribunal conferred occupancy rights on the second respondent only in respect of 6 [anas] of land in survey No. 181/a2 and 6 guntas of land in survey No. 181/a4. If it were the contention of the second respondent that the house in respect of which the petitioner herein made the application for conferment of occupancy rights lay within the extent of land in respect of which occupancy rights are conferred by Annexure-C , he ought to have challenged the order Annexure-C to the extent that the land tribunal refused to confer occupancy rights on him while rejecting the petitioner's claim. Significantly, there is no material to show that the second respondent herein ever sought to challenge the claim made by the petitioner in respect of the house in his occupation. That being so, the second respondent could not have laid claim to the house as being part of bis leasehold land especially when he does not claim that he is the landlord of the petitioner. though the land in question in the two survey numbers referred to above admittedly measures 14 guntas, what the second respondent has secured by way of occupancy rights is less than the total extent of the land in the survey number. ( 5 ) THE contention of the learned counsel for the second respondent that the house that is mentioned in annexure-c is 2 kms, away from the shed in question from which the eviction is sought, is unsubstantiated by any material. ( 5 ) THE contention of the learned counsel for the second respondent that the house that is mentioned in annexure-c is 2 kms, away from the shed in question from which the eviction is sought, is unsubstantiated by any material. Curiously this is a submission made at the bar without availing the opportunity of filing a counter, though the matter has been pending for the last six years. In the absence of a counter of the respondent 2 raising the contention, the allegations made in the petition should be taken to be correct. ( 6 ) IT is sought to be contended for the second respondent by seeking to produce the document purporting to be an appeal filed before the assistant commissioner against the order impugned herein. Likewise, it was also sought to contend that original suit No. 22 of 1992 has been filed on the file of the munsiff, karwar and that the suit is pending. The learned counsel for the petitioner pleaded surprise at the submission being made at such a belated stage. I am of the opinion that the submission made on behalf of the second respondent would have to be ignored when he has not availed the opportunity of raising these issues by a counter. Even otherwise, availment of an alternate remedy by the petitioner does not constitute an absolute bar for exercise of power by the court to grant relief, especially when the contention raised relates to jurisdiction of the tahsildar to order eviction from a house by exercising power under Section 130 of the act. ( 7 ) THE learned counsel for the petitioner sought to contend that the tahsildar cannot exercise power under Section 130 of the act in respect of a dwelling house which bears the municipal number which is admittedly in the possession of the petitioner for over 50 years. Annexure-a, the record of rights would show that on one gunta of land there has been a house let out by kashinath shantharam palekar on a rental of Rs. 6 per annum some time in 1953 and since then, the entry has continued. Annexure-a, the record of rights would show that on one gunta of land there has been a house let out by kashinath shantharam palekar on a rental of Rs. 6 per annum some time in 1953 and since then, the entry has continued. as already observed, in the composite order made by the land tribunal in respect of the claim of the petitioner as well as the second respondent relating to various parts of survey No. 181, the second respondent himself admits that the house in the occupation of the petitioner is not on the land held by him. In addition, petitioners-landlords had in 1981, filed the eviction petition hrc No. 7 of 1981 against the petitioner. This shows the petitioner's occupation of the premises was on the basis of a lease taken from the moolgenidar, under whom the second respondent also claims tenancy. ( 8 ) SECTION 130 of the Land Reforms Act reads as follows:"130. Summary eviction. Any person unauthorisedly occupying or wrongfully in possession of any land (a) the transfer or acquisition of which either by the act of parties or by the operation of law, is invalid under the Provisions of this Act, or (b) to the use and occupation of which he is not entitled under the Provisions of this act and the said Provisions do not provide for manner of eviction of such person, may be summarily evicted from such land by the tahsildar after such inquiry as he deems fit and the tahsildar may make such orders as regards the disposal of such land as he deems fit". it is clear from a reading of Section 130 of the act that the tahsildar gets the power to summarily evict any person unauthorisedly occupying or wrongfully in possession of any land which has been acquired in contravention of the Provisions of the act or the use and occupation of which he is not entitled to under the Provisions of the act and there is no other provision for eviction of such a person. ( 9 ) "land" has been defined thus under Section 2 (18) of the act:" "land" means agricultural land, that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope but does not include housesite or land used exclusively for non-agricultural purposes";it is clear that for that purpose of this Act, the land should be capable of being used or used for agricultural purposes or purposes subservient thereto and includes horticultural land, forest land, garden land, pasture land, plantation and tope, but does not include house-site or land used exclusively for non-agricultural purposes. The land on which the house in the occupation of the petitioner stands, is necessarily out of the ambit of Section 2 (18) of the act. Indeed Section 38 and Section 48-a of the Land Reforms Act relate to different situations. If the petitioner's claim under Section 38 of the act was rejected, all that can be said is that the applicant is not entitled to registration as an owner thereof. His right as a tenant is not, by the rejection of his application under section 38 of the Act, wiped out. It does not mean that in respect of such a rejected claim, the second respondent acquired occupancy rights enabling him to seek eviction under Section 130 of the act. Indeed in respect of the house in the occupation of the petitioner, none of the Provisions of the Karnataka Land Reforms Act could have been invoked and the land tribunal rightly rejected the claim of the petitioner for conferment of ownership rights under Section 38 of the act. ( 10 ) THE learned counsel for the second respondent sought to rely upon a decision in lakshminarayana adiga v ramakrishna adiga and others, in support of his contention that a person in unauthorised occupation could be dealt with by exercising power under Section 130 of the act. The facts on which the decision was rendered is distinguishable, inasmuch as the person who was allegedly in occupation of the land was stated to have secured possession of the land forcibly and in that situation, the division bench sought to include such a person within the ambit of the expression "any person" under Section 130 of the act. The facts on which the decision was rendered is distinguishable, inasmuch as the person who was allegedly in occupation of the land was stated to have secured possession of the land forcibly and in that situation, the division bench sought to include such a person within the ambit of the expression "any person" under Section 130 of the act. In this case, the second respondent sought eviction of the petitioner not from the land, but from a house in which the petitioner has been in occupation as a tenant for over 50 years. Therefore, the decision relied upon is inapplicable to the facts of this case. Indeed, if the property from which eviction is sought under Section 130 of the act is not "land", as in this case, the tahsildar gets no power to take action to evict the petitioner, more so when the second respondent admits that the house in the occupation of the petitioner is not within the extent of land for which he sought occupancy rights. ( 11 ) IN the circumstances, the writ petition is allowed. The order of the tahsildar Annexure-D is quashed. Rule is made absolute. --- *** --- .