BANDU HAMASINGA DANA WADE v. SASHI KUMAR — 1974 DIGILAW 233 (KAR)

MAUMATH, J. ( 1 ) THIS second appeal has come before us on a reference made by venkataswami, J. , by his order d. 5-9-1974 on the ground that this appeal in volves an imporant question of law regarding applicability of the provisions of the Karnataka Land Reforms (Second Amendment) Ordinance, 1974. That Ordinance has been replaced by the Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1374 (hereinafter referred to as the Second Amendment Act, 1974), ( 2 ) THE respondents instituted the suit on the 12th of April 1959 for recovery of possession of i area in 10 acres on which grass is grown in the land Sy. No. 77 measuring 23 acres and 20 guntas of Examba village in the taluka of Chikodi and for recovery of arrears of rent of Rs. 450. The case of the plaintiffs is that in 10 acres in the land Sy. No. 77 grass is grown spontaneuosly without human effort and that out of the said 10 acres, 4 acres were leased to the defendant. Their turther case is that out of the said extent leased, the defendant has cultivated 14 acres of land by raising other crops. They have, therefore, sought recovery of possession only of the remaining extent of land leased to. the defendant. Their case is that as grass is grown on the suit land spontaneously without any human effort, the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 are not applicable. They, therefore, terminated the tenancy by issuing a notice under S. 83 of the Bombay Revenue Code and instituted the suit for recovery of possession and arrears of rent. The appellant-defendant resisted the suit inter alia contending that he is a protected tenant of the entire land leased to him and that therefore, the plaintiffs are not enlited to seek recovery of possession in a Civil Court. His further case is that in the suit land to the extent of half an acre he has grown other crops and that in an extent of 2 acres, he has grown grass with his own effort and that grsss does not grow spontaneously on the said extent of land. His further case is that in the suit land to the extent of half an acre he has grown other crops and that in an extent of 2 acres, he has grown grass with his own effort and that grsss does not grow spontaneously on the said extent of land. He took the stand that the Bombay Tenancy and Agricultural Lands act, 1948 is applicable to the entire suit land and that therefore the Civil court has no jurisdiction to entertain the suit, ( 3 ) THE learned Munsiff, after framing several issues and considering the evidence on record, recorded a finding to the effect that the Bombay tenancy and Agricultural Lands Act, 1948 is not applicable to the suit land as grass is grown on the suit land spontaneously without the help of human effort. The learned Munsiff came to the conclusion that the plaintiffs are entitled to arrears of rent to the extant of Rs. 282 In view of the said findings, the learned Munsiff made a decree for possession and lor recovery of arrears of rent of Rs 282. The defendant challenged the said decree by way of appeal before the Civil Judge, Belgaum. the learned civil Judge, by his judgment and decree made in R. A. No, 483 of 1965, dismissed the appeal and confirmed the decree passed by the learned munsiff. Hence, this second appeal by the defendant, ( 4 ) SHRI 3. L. Benadikar, learned Counsel for ths appellant, contended that as the defendant has claimed that he is in possession of the suit land as a protected tenant, the court of first instance should have framed an appropriate issue regarding tenancy. Ho contended that an issue regarding tenency should now be framed and the case should be remitted to the court of first instance with a direction to regulate the proceedings in accordance with the provisions of S. 133 of the Karnataka Land Reforms act, 1961 (hereinafter referred to as the Act) as amended by the Second amendment Act ( 5 ) IT is not disputed that the suit land is an agricultural land and that the defendant is the tenant of the same. Whereas the case of the plaintiffs is that the defendant is not a protected tenant as only grass grows on the land without human effort, the case of the defendant is that he is a protected tenant of the same. By the Act which came into force on the 2nd of october 1965, the Bombay Tenancy and Agricultural Lands Act, 1948 was repealed. During the pendency of this second appeal, the Act has been amended by the Karnataka Act 1 of 1974 (hereinafter referred to as the amending Act) which came into force on the 1st of March, 1974. S. 91 (1) of the Amending Act provides thus :"not withstanding anything contained In the principal Act or to the Mysore General Clauses Act, 1899, the provisions of the principal act as amended by this Act shall be applicable to all proceeding 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 Of other Authority shall deal with the proceedings accordingly. "the clear effect of sub-sec (1) of S. 91 is to give introspective) effact to the provisions of the Act as amended by the Amending Act with effect from me dale when the right accrued or the liability was incurred. Sub-sec (1) of S. 91 makes it clear that all pending proceedings pending before any court, Tribunal or authority shall be disposed of as if the principal Act as amended by the Amending Act was in force whan the right accrued or the liability was incurred. By the Amending Act, S. 133 of the Act was amended by deleting sub-sec) and amending sub-sec (2 ). The Act was further amended by the, karnataka Ordinance 6 of 1974. The Second Amendment At, 1974, which came into force on 3-8-1974, repealed the said ordinance. ( 6 ) BY S. 2 of the Second Amendment Act, 1974, 9. 133 of the Act was further amended with effect frcm the 1st March 1974. S. 133 as amended by the second Amendment Act reads as follows,"133. The Second Amendment At, 1974, which came into force on 3-8-1974, repealed the said ordinance. ( 6 ) BY S. 2 of the Second Amendment Act, 1974, 9. 133 of the Act was further amended with effect frcm the 1st March 1974. S. 133 as amended by the second Amendment Act reads as follows,"133. (2) (d ).-If any suit instituted in any Civil Court involves any issues which are required to be sealed, 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 tp 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. On receipt of such reference, the Tribunal shall deal wfch 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. "sub-sec (1) of S. 3 of the Second Amendment Act, 1974, which is material for the purpose of this case, reads as follows:"3 (1) Notwithstanding anything in any law for time being in force the provisions of Cl (a) of sub-sec (2) of S. 133 of the Karnataka land Reforms Act, 1961 (Kar 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 ss 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. " ( 7 ) SUBSTANTIAL amendments have been made to S. 133 by the Second amendmtnt Act, 1974. The Tribunal referred to in the said section is the one constituted under Section 48 of the Act. Section 48 of the Act was substituted by another Section 48 by the Amending Act. Section 43 empowers the State Government to constitute for each taluka a Tribunal consisting of the Asst Commr of the Revenue Sub Division having jurisdiction over the taluka or an Asst Commr specially appointed for the purpose by the State Govt and four members nominated by the S ate Govt, or whom at least one shall be a member of the State legislature and cne shall be; a person belonging to the Scheduled Caste or Scheduled Tribe, where the member of the State Legislature, nominated docs no: belong to such caste or tribe. As Tribunal under the newly substituted S. 48 could be constituted only after the 1st of March 1974, it is obvious that the issues or claims contemplated by S. 133 as amended, could not have been decided by the Tribunal before the said date. ( 8 ) IT is clear from S. 3 of the Second Amendment Act, 1974 that the provisions of S. 133, as amended by the said Act, shall be applicable not only to all proceedings commenced before the date of commencement of the Second Amendment Act, 1974 and pending before any Civil Court, original, appellate or revisional, but also to cases finally "disposed of by such Courts after the 1st day of March 1974. It is, therefore, clear that s. 133, as amended, has been given retrospective effect. The 'extent of the to rospectivity has to be gathered from the latter part of sub-sec (1) of s. 3 which provides that S. 133. as amended, shall be deemed to be in force when the right accrued or the, liability was incurred. The retrospactive effect of S. 133 as amended is further emphasized by the requirement of sub-sec. (1) of S. 3 of the Amending Act of 1974 that S. 133 as amended should be applied by reopening any interim or final order or judgment pegged by the Civil Court or the appellate authority. The retrospactive effect of S. 133 as amended is further emphasized by the requirement of sub-sec. (1) of S. 3 of the Amending Act of 1974 that S. 133 as amended should be applied by reopening any interim or final order or judgment pegged by the Civil Court or the appellate authority. In view of the clear and unambiguous language employed in sub-sec (i) of S. 3 of the Second amendment Act, 1974, S. 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-ssc (1) of Sec. 3 of the Second amendment Art, 1974 applies, have to be disposed of. Having regard to the tacts of each case S. 133 shall have to be deemed to have been in force on the date on which the right accrued or the liability was incurred in that case, provided of coursa the other conditions specified in sub-sec (1) of S. 3 of the Second Amendment Act, 1974 are satisfied. ( 9 ) SEC. 133 requires certain matters to be decided by the Tribunal under certain circumstances. If in any suit instituted in a Civil Court an issue which is required to be settled, decided or dealt with by the Tribunal arises for consideration, the Civil Court has to stay the suit and refer such issue to the Tribunal for its decision. Similarly, if in a suit instituted in the Civil Court for possession or injunction in respect of an agricultural lana alleging that the defendant is a trespasser or is attempting 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 is required to stay the suit and refer the claim to the Tribunal for its decision. It is only after the decision of the tribunal is received by the Civil Court that it can proceed to dispose of the suit. We have already held that S. 133 as amended has been given retrospective effect as from thte dats on which the right accrued or the liability was incurred, A party can come to the Court for relief only when a cause of action has accrued in his favour. We have already held that S. 133 as amended has been given retrospective effect as from thte dats on which the right accrued or the liability was incurred, A party can come to the Court for relief only when a cause of action has accrued in his favour. The cause of action will accrue when the right accrues or the liability is incurred in accordance with the facts of each case. The occasion for applicability of Sec. 133 arises immdiately after the issues are framed in cases where the issues framed include those which are required to be, settled, decided or dealt with by the Tribunal under the Act. S. 133 will also become applicable in certain cases where no such issues as such arise for consideration. In suits for possession or injunction in respect of agricultural lands alleging that the defendant has trespassed or is trespassing on such lands 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 though no issue which is required to be settled, decided or dealt with by the Tribunal arises for consideration in the suit, the Civil Court has to stay the suit and refer the claim of the defendant that he is in possession on the strength of a tenancy existing from prior to 1st March 1974 for the decision of the Tribunal. The appropriate stage for the applicability of S. 133 is immediately after the issues are framed. The stage from which the Civil court is required to stay the suit is after the issues are framed. After the issues are framed, the Court has to examine as to whether any issue which is Required to be settled, decided or dealt with by the Tribunal has arisen for consideration in the suit or as to whether a claim of tenancy by the defendant as required by Section 138 has arisen for consideration. If there is such an issue or a claim, the Civil Court has no discretion but to stay the suit from that stage and to refer such issue or the claim to the Tribunal for its decision. The provisions of 3. 133 (2) are mandatory. Findings recorded or decisions rendered in contravention of s. 133 of the Act would, therefore, be illegal and invalid. The provisions of 3. 133 (2) are mandatory. Findings recorded or decisions rendered in contravention of s. 133 of the Act would, therefore, be illegal and invalid. As by fiction of law it has to be deemed that 9. 133 as amended by the Second Amendment act, 1p74 was in force on the date on which the right accrued or the liability was incurred, the decision rendered in contravention of S. 133 shall have to be set aside and all further to be followed by the Court of first instance in which the suit is instituted. As already observed, the stage at which S. 133 has to be applied is immediately after the issues are framed. Hence for giving effect to S. 133 as amended by the Second Amendment Act, 1974, all proceedings taken after the stager for the applicability of S. 133 has arisen have to be set aside. It is, therefore, not possible to accede to the contention that the further hearing of his second appeal should be stayed and that this Court should refer the issues pertaining to tenancy to the tribunal for its decision. Though the view which we have taken results in setting aside of the finding on issues which are not referable to the Tribunal, tha saxme cannot be avoided as S. 133 has been given retrospective effect from the date on which the right accrued or the liability was incurred. The Count, whether original, appellate or revisional can properly give effect to S. 133 as amended by the Second Amendment Act, 1974 read with S. 3 of the said Act, by setting aside the findings or decisions rendered in contravention of S. 133 as amended and regulating the further proceedings of this suit in accordance with the said S. 133 of the Act. ( 10 ) SHRI Benadikar is right in his contention that as the Defendant has pleaded that he is in possession as a protected tenant, an Issue regarding tenancy pleaded by him has to be framed. As the two. ( 10 ) SHRI Benadikar is right in his contention that as the Defendant has pleaded that he is in possession as a protected tenant, an Issue regarding tenancy pleaded by him has to be framed. As the two. Courts below have made decrees against the appellant without framing such an issue, we frame the following issue regarding tenancy pleaded by the defendant: " Does the defendant prove that he is a protected tenant of the suit land?" ( 11 ) THIS is an issue which is required to be decided by the Tribunal under S. 112 (B) (b) read with S. 132 of the Act. The decrees of the two courts below have to be set aside as the suit was disposed of without staying the suit and referring the issue pertaining to tenancy to the tribunal. ( 12 ) FOR the reasons stated above, this appeal is allowed and the judgments and decrees of the two Courts below are set aside and the case is remitted to the Court of first instance with a direction to refer the aforesaid issue to the Tribunal for its decision and to stay the suit till the receipt of the finding from the Tribunal. After receipt of the decision from the Tribunal, the Court of first instance shall proceed to dispose of the suit on merits. It is ordered accordingly. No costs. --- *** --- .