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K. Ramaiah Vs. K.G. Basappa - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 730 of 1975
Judge
Reported inAIR1980Kant107; ILR1979KAR1024; 1982(2)KarLJ537
ActsKarnataka Land Reforms Act, 1962 - Sections 133; Karnataka Land Reforms (Amendment) Act, 1974 - Sections 2, 3, 5 and 91; Karnataka Land Reforms (Amendment) Act, 1970 - Sections 32 and 33
AppellantK. Ramaiah
RespondentK.G. Basappa
Appellant AdvocateR.U. Goulay, Adv.
Respondent AdvocateH. Thipperudrappa, Adv.
Excerpt:
.....orders passed before the commencement of act 6 of 1970 by a tribunal exercising or purporting to exercise jurisdiction in respect of a tenant shall be deemed to be good and valid in law as if the tribunal exercising or purporting to exercise such jurisdiction has been duly conferred with the power to determine such questions under the act. 8. these, then, are the effect of act 6 of 1970. it may be pertinent to state that the issue of tenancy raised in the suit had been referred to a munsiff court before act 6 of 1970 came into force although the decision of the munsiff was rendered on 20th november, 1970, that is, after the coming into force of act 6 of 1970. but, in view of the provisions of the said act, the order made by the munsiff was saved as being well within its jurisdiction...........he took possession of the land of the defendant while putting the latter in possession of the suit land. the defendant, however, committed breach of the contract and disposed of his land to a third person who in turn dispossessed the plaintiff. the suit was accordingly filed for recovery of possession and mesne profits. the defendant, inter alia, contended that there was no agreement as stated by the plaintiff and that he was a tenant or deemed to be a tenant of the land. on these rival contentions, one of the issues settled related to the question of tenancy pleaded by the defendant viz.. whether the defendant was a tenant or deemed to be a tenant of the land. that issue was referred to the munsiff, chikkaballapur for a finding according to the then existing provisions of the.....
Judgment:

Jagannatha Shetty, J.

1. A Bench of this Court has referred the following questions for opinion of a Full Bench:

(1) Where the issue regarding the tenancy framed in a suit has been referred to and answered by the Munsiff-Tribunal prior to the coming into force of Act I of 1974 and the decision has been affirmed by the appellate authority, namely, the District Judge also prior to the coming into force of Act I of 1974 and has become. Final, whether such an issue should again be referred to the Tribunal consequent on the amendment of the provisions of Section 91 of Act I of 1974?

(2) Is the jurisdiction of the Civil Judge in this case to dispose of the suit in accordance 'with the decision of the District Judge given under Section 118 of the Karnataka Land Reforms Act on the question of tenancy affected by Act 31 of 1974''?

2. The facts are fully set out in the order of reference, and for the purpose of our decision, we may recapitulate only those which are relevant.

The petitioners are legal representatives of the plaintiff in 0. S. No. 2 of 1967. 'The suit was for recovery of possession of certain agricultural land bearing S. No. 48/2 of Kadirenahalli in Gowribidanur Taluk. It was instituted in the Court of the Civil Judge, Kolar, and is still pending there. The case of the plaintiff was that in 1958-59 there was an agreement between him and the defendant to exchange their lands and in pursuance of which, he took possession of the land of the defendant while putting the latter in possession of the suit land. The defendant, however, committed breach of the contract and disposed of his land to a third person who in turn dispossessed the plaintiff. The suit was accordingly filed for recovery of possession and mesne profits. The defendant, inter alia, contended that there was no agreement as stated by the plaintiff and that he was a tenant or deemed to be a tenant of the land. On these rival contentions, one of the issues settled related to the question of tenancy pleaded by the defendant viz.. Whether the defendant was a tenant or deemed to be a tenant of the land. That issue was referred to the Munsiff, Chikkaballapur for a finding according to the then existing provisions of the Karnataka Land Reforms Act (called shortly as 'the Act').

3. It is not in dispute that the Munsiff was competent and was the only then authority to decide the said question of tenancy. On 20th November 1970, the Munsiff determined that issue holding the same against the defendant. The said finding was taken in Appeal before the District Judge. Kolar, in Misc. Appeal No. 3/71. On 16th August 1973, the appeal was finally disposed of affirming the finding of the Munsiff. It appears that the defendant filed a revision petition challenging the said finding in this Court, but did not pursue the matter and the question was thus concluded before 1st March 1974.

4. Thereupon the Civil Judge posted the suit for trial on other issues. During the progress of the suit, the defendant filed an application 1. A. No. 1 contending that consequent on the amendment of Section 133 of the Act by Karnataka Act I of 1974 and Section 91 thereof, the issue of tenancy should be referred to the newly constituted Land Tribunal after vacating the aforesaid orders. That application was opposed on behalf of the plaintiff. But the learned Civil Judge accepted the plea of the defendant and made an order dated 8th January; 1975, stating that the said issue should again be determined by the 'Land Tribunal. It is against this order that the revision petition has been preferred by the plaintiff.

5. When the revision petition came up for disposal before Venkatachalaiah, J., learned Judge felt that having regard to some of the observations of this Court in Bandu Hamasinga Danawade v. Sashikumar (1975) 1 Kant LJ 241 the matter shall be disposed of by a Bench and accordingly, referred t he petition to a Division Bench for disposal. When the petition came up before a Division Bench for disposal, learned Judges felt that the issue of tenancy which was determined and concluded by March 1974 need not again be dealt with and -determined by 'the Land Tribunal. They also felt that some of the observations in Danawade's case are of sweeping nature and may therefore require reconsideration and accordingly they referred the said two questions for the opinion of a Full Bench.

6. As a preliminary to the consideration of these questions, it would be necessary to advert to some of the amendments made to the Act. The Act was amended by Karnataka Act No. 6 of 1970 Met 6 of 1970 respectively with effect from 15th January 1970. Section 32 thereof provides for transfer of certain pending proceedings:

'32. Transfer of pending proceedings.

(1) All statements, applications and proceedings pending before a Tribunal or other judicial officer exercising the powers and performing the duties and functions of a Tribunal before the date of commencement of this Act, shall as from the said date stand transferred to the court as defined in the principal Act, as amended by this Act or the Tahsildar, as the case may be, and shall be continued and disposed of by such Court or Tahsildar, as the case may be, in accordance with the principal -Act as amended by this Act, as if such statements, applications; and proceedings had been filed or commenced before such Court or Tahsildar.'

(2) As from the date of commencement of this Act, all appeals and proceedings connected with it 'pending before the Appellate Authority specified under sub-section (1) of Section 118 as the Appellate Authority before the commencement -of this Act shall on that date stand transferred to the District Court having jurisdiction over the area, and shall be continued and disposed of by it as if such appeals had been filed before it.'

Section 33 provides for validation,

'Validation - (1) All proceedings taken and decrees and order passed before the commencement of this Act by a Tribunal exercising or purporting to exercise jurisdiction to decide whether a person is a tenant or not shall not withstanding any judgment, decree or order of any court be deemed to be as good and valid in law as if the Tribunal exercising or purporting to exercise such Jurisdiction had been duly conferred with such jurisdiction by the principal Act.

' Sub-section (2) of Section 33 provides: 'Notwithstanding anything contained in the principal Act, where before the date of commencement of this Act, statements and applications filed or proceedings pending before a Tribunal or Munsiff have been transferred to a Munsiff or a Tribunal or a new Tribunal, as the case may be, such statements, applications or proceedings shall be deemed to have been validly transferred and no order made by such Munsiff or Tribunal in respect of such statements, applications or proceedings shall be questioned in any Court only on the ground that such transfer was not in accordance with law.'

7. The combined effect of the above provisions, as it appears to us, is that applications and proceedings pending before a Tribunal or Judicial officer exercising power and performing duties and functions of a Tribunal before the date of the commencement of Act 6 of 1970 shall stand transferred to the Court as defined under the Act, as amended by Act 6 of 1970. The word 'Court' is defined under Section 2 (9) (a) which was also inserted by Act 6 of 1970 to mean the Court of Munsiff within the local limits of whose jurisdiction the land is situate it is also seen that before the commencement of Act 6 of 1970, if any application or proceeding has been transferred to a Munsiff, such matters shall be continued as if they have been validly transferred, and no order made by such Munsiff in respect of those matters shall be questioned in any Court on the ground that such transfer was not in accordance with law. The effect of the validation provided by Act 6 of 1970 is that all proceedings taken and decrees and orders passed before the commencement of Act 6 of 1970 by a Tribunal exercising or purporting to exercise jurisdiction in respect of a tenant shall be deemed to be good and valid in law as if the Tribunal exercising or purporting to exercise such jurisdiction has been duly conferred with the power to determine such questions under the Act.

8. These, then, are the effect of Act 6 of 1970. It may be pertinent to state that the Issue of tenancy raised In the suit had been referred to a Munsiff Court before Act 6 of 1970 came into force although the decision of the Munsiff was rendered on 20th November, 1970, that is, after the coming into force of Act 6 of 1970. But, in view of the provisions of the said Act, the order made by the Munsiff was saved as being well within its jurisdiction.

9. The question now to consider is whether the order made by the Munsiff on the question of tenancy has been nullified by subsequent amendments to the Act. In this regard, we may turn to the Karnataka Act I of 1974 ('Act I of 1974'), which came into force with effect from the First March, 1974. Quite a number of new provisions were added to the Act by this amendment. But, we are concerned only with regard to amendment to Section 133 and substitution of Section 91. By Section 88 of Act I of 1974, sub-section (1) of Section 133 of the Act was completely omitted and in sub-section (2) thereof, the ward 'court' was substituted by the word 'Tribunal'. Section 91 again provides for disposal of pending proceeding. It reads:

'91. Disposal of pending proceedings

(1) Notwithstanding anything contained in the principal Act or in the Karnataka General Clauses Act, 1893, the provisions of the principal Act as amended by this Act shall be applicable to all proceedings commenced before the date of commencement of this Act and' pending before any Court, Tribunal or other authority as if the principal Act as amended by this Act was in force when the right accrued or liability was incurred and every court, Tribunal or other authority shall deal with the proceedings accordingly.'

Sub-section (3) thereof, provides for transfer of pending proceedings. It reads:

'All applications or proceedings other than those referred to in sub-section (2), pending before any court or, authority Immediately, before the date of commencement of this Act, which are required to be decided or disposed of by the officer or authority specified in the principal Act as amended by this Act, shall, with effect from that date, stand transferred to such officer or authority, as the case may be, and shall be disposed of as if they had been instituted or commenced before such officer or authority.'

However, neither Section 91 nor Subsection (3) thereof is attracted to the case on hand since the issue relating to the tenancy has already been decided by the Munsiff Court on 20th November 1970 and by the District Court on 16th August 1973.

10. The Act was again amended by Karnataka Act 31 of 1974 (Act 31 of 1974'). It was also brought into force retrospectively with effect from 3rd August 1974. Section 2 of Act 1974 has effected certain changes in Section 133. Sub-section (2) of Section 133 - after the said amendment provides as follows:

'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 of 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.'

Section 3 thereof provides for disposal of certain proceedings. It reads:

'3. Disposal of certain pending proceedings etc., (1) Notwithstanding anything in any law for the time being in force, the provisions of clause (a) of sub-section (2) of Section 133 of the Karnataka Land Reforms Act, 1961, (Karnataka Act 10 of 1962) as amended by this Act, shall be applicable to all proceedings commenced before the date of commencement of this Act, and

(a) Pending before any Civil Court;

(b) Pending in appeal or revision against the judgment or order of the Civil Court; or

(c) Finally disposed of by such courts after the first day of March 1974, as if the said clause as amended by this Act was in force when the right accrued or the liability was incurred and every such court shall deal with the proceedings accordingly and any interim or final order or judgment passed by such court or appellate authority shall be reopened and the suit or the appeal shall be disposed of in accordance with the said amended clause.'

The result of the aforesaid amendment is that no Civil or Criminal Court or Authority shall, in any suit, case or proceedings concerning a land shall 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 land from prior to 1st March, 1974 and such Court or Officer or Authority shall stay such suit or proceedings in s o far as such question is concerned and refer the same to the Tribunal for decision.

Section 5 of Act 31 of 1974 further amended Section 91 of Act I of 1974. Subsection (3) of Section 91 after amendment reads:

'All applications or proceedings other than those referred to in sub-section (2) which are required to be decided or disposed of by the Tahsildar or the Tribunal specified in the principal Act as amended by this Act,

(a)

(b) Having been disposed of by the Munsiff Court, are pending in appeal or revision, such appeal or revision shall abate without prejudice to the question involved in the applications or proceedings giving rise to such appeal or revision, being commenced afresh before the Tahsildar or the Tribunal, as the case may be, as if the amendments made by this Act to the principal Act were in force at the time the right for making such applications or commencing such proceedings accrued.'

11. It is seen from these provisions that if in any suit or proceedings a question which is required to be decided by a Land Tribunal has already been decided by the Munsiff Court, but pending in appeal or revision, such appeal or revision shall be disposed of in accordance with the amended provisions of Section 133 as if the amendments were in force at the time the right to commence or institute such proceedings accrued. Section 3 of Act 31 of 1974 provides for re-opening only those matters which have been finally disposed of after 1st day of March 1974. The matter which has been disposed of and concluded prior to First March 1974 apparently has been kept undisturbed. We have earlier stated that the question relating to the tenancy pleaded by the defendant in the instant case has been set at rest prior to the coming into force of Act 31 of 1974. That question therefore, I was not an open question and could not be reopened under Section 3 of Act 31 of 1974. This was also the view taken by Venkataramaiah, J. in Venkanna v. Fakirappa, (1975) 2 Kant LJ 433. Dealing with the scope of sub-section (3) of Section 91, learned Judge said:

'Sub-section (3) of Section 91 which was in force when the first respondent made his application before the Tahsildar does not state that all orders and decrees which had been made prior to the coming into force of the Act I of 1974 would become void and unenforceable. It only provides that where any proceedings other than those referred in Section 91 (2) are pending before any Munsiff, they shall stand transferred to the Tahsildar or the Tribunal as the case may be as required by clause (a) of Section 91 (3) and where having been disposed of by the Munsiff are pending in appeal or revision such appeal or revision 'shall abate without prejudice to the question involved being agitated before the Tahsildar or the Tribunal again as stated in clause (b) of Section 91 (3). The appeal and revision referred to in clause (b) are those before the District Judge and the High Court as the case may be. In the instant case no appeal or revision was pending before the District Judge or High Court on 3rd August 1974 on which, date Act 31 of 1974 Is deemed to have come into force.'

Learned counsel for the respondent, however, placed reliance on sub-section (3) (b) of Section 91 as amended by Act 31 of 1974. He urged that even though the question relating to the tenancy was disposed of by the Munsiff Court, it shall abate as provided by the said sub-section and the matter therefore falls to be reexamined by the Land Tribunal as required under Section 133. We do not think that there is any substance in this contention. Clause (b) of sub-section (3) of Section 91 covers matters which have been disposed of by the Munsiff and reading in appeal or revision, and it is only such appeal or revision shall abate without prejudice to the question involved. The abatement always presupposes the existence of some pending matters before any Court or Tribunal and there cannot be any question of abatement of a matter-which has been finally disposed of.

12. This takes us to the correctness of the decision in Danawade's case. The learned Judges who made this reference have felt that some of the observations in that case are of sweeping nature and may therefore require reconsideration. On the scope of Section 133 (2) and Section 91 (3) of the Act, it was observed in Danawade's case as follows:-

'The retrospective effect of S, 133 as amended is further emphasized by the requirement of sub-section (1) of Section 3 of the Amending Act of 1974 that Section 133 as amended should be applied by reopening any interim or final order or judgment passed by the Civil Court or the appellate authority. In view of the clear and unambiguous language employed in sub-section (1) of Section 3 of the Second Amendment Act, 1974. Section 133 as amended shall have to be deemed to have been in force when the right accrued or the liability was incurred. It is on that basis that all cases, to which sub-section (1) of Section 3 of the Second Amending Act, 1974, applies, have to be disposed of. Having regard to the facts of each case Section 133 shall have been in force on the date on which the right accrued or the liability was incurred in that case, provided of course the other - conditions specified In sub-section (1) of Section 3 of the Second Amendment Act, 1974 are satisfied.' (Underlining is ours)

12-A. If one closely examines these observations, it becomes clear that learned Judge restricted the applicability of Section 133 to a case where sub-section (1) of Section 3 of Act 31 of 1974 is attracted and not any other case. That means the Proceedings involving the issue which Is required to be decided by the Tribunal must be pending before Civil Courts in appeal or revision, or finally disposed of by such Court after 1st March, 1974. In the instant case, there was no such proceedings pending in any one of the courts or disposed of after the 1st March 1974. There is, therefore, no scope for attracting the provisions of Section 3 (1) of Act 31 of 1974. That means, Section 133 has no part to play and cannot be invoked to reopen the concluded issue of tenancy.

13. That, however is not the end of the matter. It has been stated in Danawade's case that Section 133 as amended regulates the procedure to be followed by the Court of first instance in which the suit is instituted and hence for giving effect to Section 133 as amended by Act I of 1974, all proceedings taken after the stage of the applicability of Section 133 have to be set aside. It was observed:

'The court, whether original, appellate or revisional can properly give effect to Section 133 as amended by the Second Amendment Act, 1974 read with Sec.3 of the said Act, by setting aside the findings or decisions rendered in contravention of -Section 1-33 as amended and regulating the further proceedings of the suit in accordance with the said Section 133 of the Act.'

The learned Judges before reaching the above conclusion, however, felt that such a step would cause great hardship to. Parties, but they said that it could not be avoided in view of the retrospective operation of Section 133. With utmost respect, we do not think that that would be the correct view of the law.

14. Section 133 as it now stands, provides that no Civil or Criminal Court or Officer or Authority shall in any suit, case or proceedings concerning a land 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: and such court or officer or Authority shall stay such suit, or proceedings and refer the same to the Land Tribunal for decision. No doubt, the Section in explicit terms does not deal with appeal or revision. But, when the section refers to 'such Court' or 'Officer or Authority' we can reasonably infer that such Court means the Court where, the matter involving 'such question' is pending, that is the question which is required to be decided by the Land Tribunal. Section 3 of Act 31 of 1974 also lends support to this view. It provides for disposal of pending proceedings, commenced before the date of the coming into force of Act 31 of 1974 and pending before any Civil Court in Original suit or proceedings, appeal or revision. It provides, for disposal of such suit, appeal or proceedings in accordance with the said amended Section. It appears to us that neither Section 133 nor Section 3 (1) of Act 31 of 1974 bars appellate or revision Court to dispose of the matter pending before it by following the prescribed procedure under Section 133. The dominant purpose of Section 133 is that the Civil Court shall not try the issue or question, which is required to be decided by Land Tribunal. It does not expressly provide for the total nullification of adjudication on all other issues made by competent Courts or authorities. If the words are literally applied, it would produce a wholly unreasonable result. The judgments and decrees of Courts of competent jurisdiction on all other issues nave to be tried set aside and the entire case has to be tried de novo by the Court of first instance. It would cause irreparable injury to the litigant public if the entire matter has to be tried de novo after a long lapse of time. The party may not be able to prove the case again for paucity of evidence. We do not think that such was the intention of the Legislature. It seems to us that Section 3 of Act 31 of 1974 was only intended to change the forum for deciding the specified - questions. To achieve that obvious intention and produce reasonable result, we must try to put a fair meaning on the words used in their proper context. We, therefore, with deference dissent from that view taken in Danawade's case. We make it clear that every appellate or revision court could deal with such matters pending before it in accordance with the provisions of Section 133 of the Act without setting aside the judgment and decree under appeal or revision provided the other conditions specified in sub-section (1) of Section 3 of Act 31 of 1974 are attracted.

15. In the result, and for the reasons stated above, our answers to the questions referred to us are as follows: -

(1) If -an issue regarding tenancy framed in a suit has been referred to an officer or Munsiff-Tribunal prior to the coming into force of Act I of 1974, and the decision has also been affirmed by the appellate authority, namely, District Judge prior to coming into force of Act 1 of 1974, and if that decision has become final, then, It will not be necessary again to refer the said issue to the Tribunal consequent on the amendment to Section 133 of the Act and by virtue of Section 91 of Act I of 1974.

(2) The jurisdiction of the Civil Judge in the case in question to dispose suit in accordance with the decision of, the District Judge given under Section 118 of the Karnataka Land Reforms Act, as it then existed on the question of tenancy pleaded by the defendant has not been affected by Act 31 of 1974.

16. In the circumstances, we make no order as to costs.

17. Answer accordingly.


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