NAGAPPA GOWDA v. AKKU HENGSU — 1978 DIGILAW 132 (KAR)

( 1 ) THIS second appeal is one filed by the plaintiff against the judgment and decree d/ 26-6-72 passed by the Principal Civil Judge, Mangalore, Dakshina kannada in RA. 111/71 dismissing the appeal filed by him against the judgment and decree d/23-6-71 passed by the Munsiff, Puttur, dismissing the suit filed by him against one Choma Gowda for permanent injunction to restrain him and his servants from trespassing or interfering with the peaceful possession and enjoyment of the plaint 'a' schedule property. ( 2 ) THE facts relevant for the disposal of this appeal are these: The plaintiff brought the suit OS. 314 of 1969 for permanent injunction against one Choma Gowda in respect of the suit schedule property comprised in rs. 44/2 situate at a place called 'ana' in Ramakunja village of Puttur taluk on the allegation that he was in exclusive possession and enjoyment thereof as a lessee under one Srinivaga Upadhyaya since 1935. Later on, the suit property was allotted to the share of one Susheelamma in a partition suit OS. 4/41 on the file Of the Sub-Judge, Mangalore in the family of the said Srinivasa Upadhyaya. The plaintiff continued as a tenant under the said Susheelamma. One Vasudeva, Upadhyaya purchased mitha Ana properties in Court auction in REP. 447 46 in OS. 153/45 and took delivery of those properties on, 5-4-48. Thereafter Choma Gowda, the defendant in the suit took certain fields on lease from the said Vasudeva upadhyaya and continued to be a tenant under him. The defendant got measured his fields obtained on lease with the help of the Shanbhogue for the purpose of fixing the fair-rent. At the time of the measurements, it was found that the plaint 'a' Schedule property was part of RS. 44/2 in which one of the fields obtained by the defendant on lease from Vasudeva upadhyaya was also included. The plaint schedule property forms part and parcel of the lease-hold of the plaintiff and the plaintiff has been in exclusive possession and enjoyment of the same since the year 1935 without any obstruction from any quarter. Even though there was change of ownership of the plaint schedule property, no one disturbed the possession of the Pltff and his enjoyment. The plaint schedule property forms part and parcel of the lease-hold of the plaintiff and the plaintiff has been in exclusive possession and enjoyment of the same since the year 1935 without any obstruction from any quarter. Even though there was change of ownership of the plaint schedule property, no one disturbed the possession of the Pltff and his enjoyment. In the beginning of June 1969, the Pltff planted some area and banana plants in the vacant portion of the plaint schedule property which was forming the back-yard of the plaintiff's house. At the instigation of the village shanbhogue, the defendant trespassed into the plaint schedule property on 26-7-1969 for taking forcible possession of the same which was resisted by the, plaintiff. The defendant and his men retreated threatening that they would come with added force and take possession of the suit property by force. Hence the plaintiff has filed the suit for permanent injunction. ( 3 ) THE suit was resisted by the Deft on the ground that it formed part and parcel of his lease-hold. According to him, the suit property was in the possession and enjoyment of his family from three generations. He has further claimed that he had executed a chalageni lease in favour of Vasudeva upadhyaya in respect of the suit schedule property. He denied that susheelamma was the owner of it. He pleaded that the suit was bad for non-joinder of Susheelamma under whom the plaintiff claimed to be the tenant and Vasudeva. Upadhyaya, his landlord. His further plea was that he had constructed a small thatched shed in the plaint 'a' schedule property to store manure and there was a well in it since his fore-father's time. He allowed the plaintiff to use a portion of the thatched shed to Store his firewood and to use it as bath-shed. Taking undue advantage of such a concession given by him, the plaintiff set up the title in himself. The plaintiff was not in possession of the uit schedule property at any time in his own right. He prayed for the dismissal of the suit on these grounds. ( 4 ) DURING the pendency of the suit, the defendant died and his legal representatives who were defendants 2 to 6 were brought on record. They filed an additional written statement reiterating the stand taken by choma Gowda in his written statement. He prayed for the dismissal of the suit on these grounds. ( 4 ) DURING the pendency of the suit, the defendant died and his legal representatives who were defendants 2 to 6 were brought on record. They filed an additional written statement reiterating the stand taken by choma Gowda in his written statement. The learned Munsiff held that the plaintiff was not in possession of the plaint schedule property and he was not a tenant thereof. As regards the defendant's claim that the plaint schedule property was included in the lease-hold of Choma Gowda, the learned Munsiff found that the evidence produced in tthe case was quite insufficient to record a clear finding and further observed that if a finding wais absolutely necessary on that issue, the finding was against the defendants. Finally he dismissed the suit as per his judgment dated 23-6-1971. ( 5 ) THE plaintiff took up the matter in appeal in RA. 111/71 and the appeal was dismissed by the Principal Civil Judge, Mangalore, as per his judgment d/26-6-72. It is the correctness and legality of the concurrent findings of the two Courts below that is challenged in this second appeal. ( 6 ) SRI P. Ganapathy Bhat, learned Counsel appearing for the appellant, contended that the provisions of Section 133 of the Karnataka Land reforms Act, 1961 (shortly called the 'act') as substituted, by Act 27 of 1976 which came into force with effect from 16-12- 75, apply to the facts of the case and therefore, the appeal shall have to be allowed and the matter be remanded to the Court of first instance for referring the issue of tenancy involved in the case to the concerned land tribunal for decision by staying the suit and then dispose of the suit on the basis of the decision of the tribunal. Section 133 of the Act as it now stands as substituted by Act 27 of 1976 reads as follows ;" 133- Suits, proceedings etc, involving questions required to be decided by the tribunal_ (i) Notwithstanding anything in any law for the time being in force_ (1) 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; (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 Trjbunal 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 aub-sec (1) shall preclude the Civil or Criminal court or the officer or; authority from proceeding with the suit, case or proceedings, in resepect of any matter other than that referred to in that sub-section. " ( 7 ) THE effect of substitution of a provision to a statute came up for. consideration before this Court in Sha Chunnilal Sohanraj v. T. Gurushantappa, (1972) 1 Myslj. 327 , wherein it was held that where the amending Act states that the existing, section is substituted by a new section, the inference is that the Legislature intended that the substituted provision should be deemed to be part of the Act from the very inception. Applying the above principle, it must be held that Sec. 133 of the Act as it now stands should be deemed to be part of the Act when it came into force aa on 2-10-65. Admittedly in the instant case, the suit was filed on 30-7-69. Hence Sec. 133 of the Act as it now stands, applies to the facts of the case. Admittedly in the instant case, the suit was filed on 30-7-69. Hence Sec. 133 of the Act as it now stands, applies to the facts of the case. ( 8 ) THE facts of the case reveal that the plaintiff brought the suit for permanent injunction against the defendant to restrain him from trespassing and interfering with his peaceful possession and enjoyment of plaint 'a' schedule property measuring 7 seers seed area in extent on the ground that it was part of his lease-hold property which he was enjoying on a lease from one Srinivasa Upadhyaya and later one Susheelamma. The original defendant Choma Gowda and his legal representatives defendants 2 to 6 resisted the suit on the ground that the suit schedule property was part of their lease hold obtained from one Vasudeva Upadhyaya. On the rival contentions of the parties, several issues were raised of which issues Nos. 2 and 3 read as follows :" 2. Whether the plaintiff is a tenant in respect of the plaint A schedule property ? 3. Whether the Plaint 'a' schedule property is included in the lease hold of the defendant? "it is seen from the facts of the case and the main issues framed in the suit that the decision in, the suit on the main relief of permanent injunction is based on the question of rival tenancy set up by the parties. Now turning to the provisions of Sec. 133 of the Act, clause (i) of sub-section (1) of Sec. 133 lays down 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 Clause (ii) provides that when such an issue is involved in any suit or proceedings, the Court or officer or authority before whom such suit or proceedings is pending, shall stay such suit or proceedings in so far as the question covered under clause (i) is concerned and refer the same to the tiibunal for decision. Undoubtedly, the tribunal referred to in Sec. 133 is the one constituted, under Sec. 48 of the Act. Undoubtedly, the tribunal referred to in Sec. 133 is the one constituted, under Sec. 48 of the Act. Sub-sec (2) of Sec. 133 provides that nothing contained in sub-sec (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 that that referred to in sub-sec (1 ). A plain reading of Section 133 of the Act would reveal that whenever a decision is required concerning a land involved in a suit or proceedings whether the said land is or is not agricultural land and the person claiming to be in possession is or not a tenant of the said and from prior to 1st March 1974, no Court or authority shall be competent to render a decision other than the tribunal and in such case, it is the duty of the Court or authority before whom such question arises for consideration in any suit or proceedings, to stay the suit or the proceedings and then refer such question to the concerned tribunal for decision. The stage at which the reference shall have to be made will be soon after the issues, are settled in the suit or proceedings. ( 9 ) IN mallayya Mungayya v. Puttappa Shivappa, (1976j) 1 Karlj. 369 this Court ruled that in the c'ase where the plaintiff claiming to be a tenant of the land in question while admitting that the defendant is thei owner prays for an injunction restraining the defendant from interfering with his possession the question whether the plaintiff is a tenant or not would arise for decision and has to be referred to the tribunal, ( 10 ) IN view of the provisions contained in Sec. 133 of the Act and also the ra,tio of the above decision, the contention urged on behalf of the appellant has to be accepted. I do not propose to express any opinion in this case on the incidental question canvassed during the arguments whether irrespective of the fact that a judgment is rendered giving decision not only on the matter covered under clause (i) of sub-sec (1) of Sec. 133 but also on other matters, the whole judgment is to be set aside and the case be remanded to the Court of first instance for due compliance of the provisions contained in stub-sec (1) of Sec. 133 of the Act or only the findings on the master covered under clause (i) of Sec. 133, as that question does not directly arise for decision in this case since the relief of permanent injunction sought for by the plaintiff in the suit is primarily based on the finding on the rival tenancy set up by the parties. ( 11 ) 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 remanded to the Court of first instance with a direction to refer the 2nd and 3rd issues to thei tribunal for its decision and to s,tay the suit till thhe 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. --- *** --- .