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Mallayya Murigeyya Naduvinamath Vs. Puttappa Shivappa Mosali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberMisc. Second Appeal No. 126 of 1974
Judge
Reported inAIR1976Kant192; ILR1976KAR836; 1976(1)KarLJ369
ActsKarnataka Land Reforms Act, 1961 - Sections 133; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantMallayya Murigeyya Naduvinamath
RespondentPuttappa Shivappa Mosali
Appellant AdvocateM. Rama Bhat, Adv.
Respondent AdvocateB.V. Deshpande, Adv.
Excerpt:
.....natural consequence, all further actions also fall to the ground and it will be necessary to constitute a proper committee in terms of the guidelines of the icds programme and to go through the process of selection afresh. impugned government order dated 15.7.2006 is quashed by issue of a writ of certiorari. - in the other case the person who claiming to be the tenant in possession has succeeded in obtaining a decree for perpetual injunction against the land owner, may fail before the tribunal and the tribunal may hold that such a person is not a tenant. it is well settled that no person in possession of land can sue for injunction against a true owner unless he is able to maintain that either under an agreement or under a statute he is entitled to the said relief even as against him......the said suit for injunction restraining the appellant from interfering with his possession of the suit land on the ground that the land in question was an agricultural land and that he was in possession of the same as tenant under the appellant. the appellant denied that the respondent was his tenant and contended that he himself was in actual possession and enjoyment of the suit land. on the basis of the pleadings, the munsiff framed several issues. one of them was 'whether the plaintiff was in lawful possession of the suit land on the date of the suit?' at the conclusion of the trial the munsiff passed a decree dismissing the suit. aggrieved by the decree of the trial court, the respondent filed an appeal before the civil judge, kubli. the civil judge set aside the judgment and decree.....
Judgment:

Venkataramiah, J.

1. On a reference made by Venkataswami, J., the above appeal has come up for decision before this Division Bench.

2. The appellant is the defendant in the suit, 0. S. No. 68 of 1971 on the file of the Munsiff, Savanur. The respondent instituted the said suit for injunction restraining the appellant from interfering with his possession of the suit land on the ground that the land in question was an agricultural land and that he was in possession of the same as tenant under the appellant. The appellant denied that the respondent was his tenant and contended that he himself was in actual possession and enjoyment of the suit land. On the basis of the pleadings, the Munsiff framed several issues. One of them was 'Whether the plaintiff was in lawful possession of the suit land on the date of the suit?' At the conclusion of the trial the Munsiff passed a decree dismissing the suit. Aggrieved by the decree of the trial Court, the respondent filed an appeal before the Civil Judge, Kubli. The Civil Judge set aside the judgment and decree passed by the trial Court and remanded the suit to the trial Court to dispose it of in accordance with Section 133(2)(a) of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act) as it stood on the date of the decision of the lower appellate Court i. e. 28-8-1974. Aggrieved by the decision of the lower appellate Court, the appellant has filed this appeal.

3. On 28-8-1974 Section 133 of the Act read as follows:-

'133. Suits involving issues required to be decided under this Act:-

(1) xx xx xx(2) (a) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by the Tribunal or any suit is instituted in any such Court for possession of or injunction in respect of an agricultural land on the allegation that the defendant has trespassed or is trying to trespass on such land and the defendant denies the said allegation and claims that, he is in possession on the strength of a tenancy existing from prior to 1st March 1974, then the Civil Court shall stay the suit and refer such issues or the claim, as the case may be, to the Tribunal for decision.

(b) On receipt of such reference, the Tribunal shall deal with and decide such issues in accordance with the Provisions of this Act and shall communicate its decision to the Civil Court which has made the reference.'

By the Karnataka Land Reforms (Second Amendment) Act, 1976 (Karnataka Act 27 of 1976) which received the assent of the President on 12-3-1976 and was published in the Karnataka Gazette dated 13-3-1976, Section 133 of the Act was substituted by the following new section :-

'133. Suits, Proceedings, etc., involving questions required to be decided by the Tribunal:-

(1) Notwithstanding anything in any law for the time being in force-

(i) no Civil or Criminal Court or Officer or authority shall, in any suit, case or Proceedings concerning a land other than proceedings under Chapter TV of this Act, decide the question whether such land is or is not agricultural land and whether the person claiming to be in Possession is or is not a tenant of the said land from Prior to 1st March, 1974:

(ii) such Court or officer or authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the Tribunal for decision;

(iii) all interim orders issued or made by such Court, officer or authority, whether in the nature of temporary injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated; as the case may be;

(iv) the Tribunal shall decide the question referred to it under clause (1) and communicate its decision to such Court, officer or authority. The decision of the Tribunal shall be final.

(2) Nothing in sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub-section.'

It should be mentioned here that by introducing a new provision Section 48-C into the Act, the above Amending Act made provision for the passing of interim orders by the Tribunal. Section 48-C reads:-

'48-C. Interim Orders:-

(1) The Tribunal may, when it considers it just and proper and subject to such terms and conditions as it may impose, issue interlocutory orders in the nature of temporary injunction or appointment of Receiver concerning the land in respect of which an application is made under Section 48-A.

(2) The Tribunal may at any time revoke or modify the order issued by it under sub-section (1).

(3) Subject to the provisions of subsection (2). the order of the Tribunal shall be final.'

4. Since the Amending Act (Karnataka Act 27 of 1976) has come into force, this case has to be decided in the light of Section 133 as it stands now.

5. It is argued by Sri M, Rama Bhat, learned counsel for the appellant, relying upon the decision of this Court in Tarabai v. Krishna Pandurang Powar, 1972 (1) Mys LJ 216 = (AIR 1972 Mys 214) and the decision in Gowda Basappa v. N. S. Srinivasa Rao, (W. P. No. 2042 of 1969, D/- 28-10-1971) (Mys) that in a suit for injunction the only issue that arises for decision is whether the plaintiff is in lawful Possession of the land in question and that the question whether the Plaintiff is a tenant of the suit land would not arise for decision. Hence the question whether the plaintiff is a tenant or not need not be decided by the Civil Court. Since under Section 133 of the Act only those issues which have to be decided by the Tribunal have to be referred to the Tribunal and since the question whether the plaintiff is in possession of the land or not is not a question on which the Tribunal can express its opinion under the Act, there is no need to comply with the provisions of Section 133 of the Act. In Tarabai's case the Court was concerned with Section 85-A of the Bombay Tenancy and Agricultural Lands Act and Section 133(2) of the Act as it stood in the year 1971. In Gowda Basappa's case which was also decided in 1971', the Court was concerned with the Provisions of Section 133 of the Act as it stood then. In Kamala Kandthy v. Ananthavya Hebbar, (1974 (2) Kant W 34) Section 133 as amended by the Karnataka Act 1 of 1974 came up for consideration. After referring to the decision in Tarabai's case, the learned Chief -Justice observed in the course of his decision as follows:-

'The amendment to the Land Reforms Act came into force with effect from 1-31974. The said amendment has made drastic changes in the principal Act. The provision for resumption of lands by landlords within ceiling limits has been deleted and all proceedings for resumption stand abated. All lands held by or in the occupation of tenants including tenants against whom a decree or order for eviction or a certificate for resumption is, made or issued immediately prior to the date of commencement of the amendment Act, other than lands held by them under leases permitted under Section 5 stand transferred to and vest in the State Government with effect from 1st March, 1974. The result is that the rights of landlords stand transferred to and vest in the State Government with effect from 1-3-1974 (vide S. 44). The tenants holding lands immediately prior to 1-3-1974 are entitled to be registered as occupants in respect of lands which they were cultivating before the date of vesting (vide Section 45).

XX XX XXThe right to an injunction depends upon statute and is governed by the Specific Relief Act, 1963. The grant of an injunction is in the discretion of the Court - a discretion to be exercised, of course, as a discretion of the Courts always is. In a case where the title of the plaintiff itself is uncertain and is contingent on the determination by the Tribunal which has exclusive jurisdiction over the matter, I do not think it would be proper exercise of jurisdiction to make an order of temporary injunction in suits of this nature ...................

XX XX XXLet me suppose that a Civil Court in a suit brought by a land owner holds that he is in possession of the lands and the defendant claiming to be the tenant is not in possession, and decrees the suit for perpetual injunction. Let me also suppose of a case where a person claiming to be a tenant holding land immediately prior to 1-3-1974 brings a suit for perpetual injunction against the land owner and that suit is decreed. The decision of the Civil Court in both the suits will not be binding on the Tribunal constituted under the Land Reforms Act. The Tribunal may hold that the landowner who has obtained a decree for perpetual injunction had been divested of his right as on 1-3-1974 and the same has vested in the State Government and that the defendant against whom the decree is passed is entitled to be registered as occupant. In the other case the person who claiming to be the tenant in possession has succeeded in obtaining a decree for perpetual injunction against the land owner, may fail before the Tribunal and the Tribunal may hold that such a person is not a tenant. Any decree passed in these circumstances will be rendered ineffective, and, it is desirable that such a situation should be avoided. In any suit where there is a bona fide dispute between the parties on the question whether the suit farm lands were held by one of the parties as a tenant immediately prior to 1-3-1974, it would be just and convenient to appoint a receiver for the disputed property pending final disposal of the suit. A Receiver may be appointed in a case otherwise proper for relief, if the facts showing the necessity for the relief are before the Court although the application was made for an injunction and did not specify the appointment of a Receiver ... ... ... ... After appointing a Receiver the Court should stay the suit and direct the party or parties claiming to be tenants to obtain the decision of the Tribunal. The suit should be disposed of in the light of the adjudication obtained from the Tribunal.'

6. After the above decision was rendered, in Basappa Gulappa v. Basappa Nataveerappa Hanji, (1975 (1) Kant LJ 167), it was held that where in a suit for permanent injunction the plaintiff asserted that he was in possession of the suit land as a tenant, no issue regarding tenancy arose for consideration. The Court in reaching that conclusion relied on the decision of this Court in Tarabai's case. The Court however did not consider in detail the clear effect of the amendments made by Karnataka Act 1 of 1974 as was done in Kamala Kandthy's case. After the above decision was rendered the Karnataka Land Reforms (Second Amendment) Act, 1976, was passed by the State Legislature. We are of the opinion that not much assistance can be derived by the learned counsel for the appellant from the decisions of this Court in Tarabai's case; Gowda Basappa's case and Basappa Gulappa's case since we are of the opinion that this case has to be disposed of on the basis of the provisions of Section 133 as they are now in force.

7. Section 133 of the Act as it stands now takes away the Jurisdiction of any civil or criminal court or officer or authority to decide the Question whether a land is an agricultural land or not and whether a person claiming to be in possession is or is not a tenant of the said land from prior to 1-3-1974. In a case where the plaintiff claiming to be a tenant of a land in question while admitting that the defendant is the owner prays for an injunction restraining the defendant from interfering with his possession, we are of the opinion that the question whether the plaintiff is a tenant or not would arise for consideration, since the suit would have inevitably to be dismissed if a finding is not given in the affirmative on the said question as admittedly the defendant is the owner of the property. The reason is not far to seek. It is well settled that no person in possession of land can sue for injunction against a true owner unless he is able to maintain that either under an agreement or under a statute he is entitled to the said relief even as against him. If he is not able to rely on any such agreement or statute big possession would be wrongful. No Court will by its order help a party who is found to be in wrongful possession as against the lawful owner (see Alamelu Achi v. Ponniah, : AIR1962Mad149 ). It follows that in order to decide the case on hand it is absolutely necessary to decide the question whether the plaintiff is a tenant or not for a just disposal of the case. Section 133 provides that when the question before the Civil Court is whether the person, claiming to be in possession, is or is not a tenant of the suit land from prior to 1-3-1974, then the Court shall stay such suit in so far as such question is concerned and refer the same for decision. Section 133 applies to all such cases irrespective of the fact that the person who claims to be the tenant is a plaintiff or a defendant.

8. In view of the foregoing, we are of the opinion that in the case before us the question whether the plaintiff is or is not a tenant of the agricultural land in question from prior to 1-3-1974 arises for consideration and that question hag to be referred to the Tribunal for its decision. The order of remand passed by the lower appellate Court has therefore to be affirmed. The appeal, therefore fails and it is dismissed. The trial Court shall refer the question to the decision of the Tribunal in accordance with the provisions of Section 133 of the Act as it stands now.

9. Appeal dismissed.


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