SARASWATHI SHEDTHI v. APPANNA MAISTRY — 1978 DIGILAW 51 (KAR)

VENKATARAMIAH, J. ( 1 ) ON a reference made by a learned Single Judge under the proviso to sec. 6 of the Karnataka High Court Act 1961, this second appeal has come up for disposal before this Division Bench. ( 2 ) THE appellant filed OS. 223/1970, on the file of the Principal Munsiff, udipi, for a declaration that the respondents were not in possession of the agricultural lands mentioned in plaint 'a' schedule as mulgeni, tenants and for possession of the said lands. She also prayed for a decree for mesne profits in respect of the lands in question for the period subsequent to 18-12-1969. Her case was that the suit lands originally belonged to an Aliyasanthana family of which her mother Giriamma Shedthi was a member and that at a partition which took place on 2-3-1928, they were allotted to the kavaru of Giriamma Shedthi. Thereafter, Giriamma who was the yejarnanthy of the kavaru in question gave possession of the suit lands to three persons, namely, Chennamma, Manjayya Shetty and Ramanna shetty, for their maintenance during their life time. The last maintenance holder was Manjayya Shetty and he died on 18-12-1969. Thereafter the appellant who was then the yejamanthy of her kavaru attempted to take possession of the suit lands;. The respondents who were in possession of the siuit lands resisted the attempts of the appellant claiming that they were in possession of the suit lands as tenants for over 20 years. In the above connection, notices were also exchanged between the parties. Having failed in her attempt to get possession of the suit lands the appelllant instituted the suit, out of which this second appeal arises, for a declaration that the respondents were not the tenants and for possession and other reliefs as stated above. ( 3 ) THE defendants contended in their written statement that the appellant had no interest in the suit lands, and even if she had any, she was not entitled to dispossess them as they were in possession of the lands lawfully for a long time as tenants. They based their claim on a chalegani tenancy alleged to" have been created in their favour by Chennamma, one of the maintenance holders, a mulgeni chit dt. They based their claim on a chalegani tenancy alleged to" have been created in their favour by Chennamma, one of the maintenance holders, a mulgeni chit dt. 16-4-1964 executed by Manjayya shetty, another maintenance holder, in their favour and the provisions of Section 4 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act ). On the basis of the pleadings the trial Court framed several issues and amongst them, there were the following three issues :" (4) Whether the alleged mulgeni is true and valid and is binding on the plaintiff? (5) Whether the defendants prove that they were in possession of the plaint properties prior to the alleged mulgeni chit as chalegeni tenants? (6) Whether the defendants are deemed tenants within the meaning of Section 4 of MLR. Act? "at the conclusion of the trial, the learned Munsiff found that the mulgeni lease relied on by the Respts was not binding on the appellant, that the chalegeni lease pleaded by. the respondents had not been proved and that they were not also 'deemed' tenants within the meaning of Sec. 4 of the act. In view of the above findings and findings recorded on the other issues the trial Court decreed the suit declaring that the respondents were not in possession of the suit lands as tenants and directing them to deliver possession of the same to the appellant. It also made a decree directing the respondents to pay mesne profits and costs. ( 4 ) AGGRIEVED by the decree of the trial Court, the respondents filed an appeal in RA. 92/1973 on the file of the Civil Judge, Udipi. The learned civil Judge set aside the decree passed by the trial Court holding that the question whether the respondents were tenants or not was a question to be decided by the Land Tribunal constituted under the Act, on a reference under Sec. 133 of the Act and that therefore the finding recorded on that question by the trial Court was unsustainable and remanded the case to the trial Court to dispose it of in accordance with Sec. 133 of the Act. It should be mentioned here that the only reason given by the lower appellate court to set aside the findings of the trial Court on issues other than issues 4, 5 and 6 referred to above was that the trial Court could not have decided those issues before the findings of the Tribunal on Issues 4, 5 and 6 were received by it. ( 5 ) THIS miscellaneous Second appeal is filed by the appellant against the order of remand passed by the lower Appellate Court. ( 6 ) SRI M. Gopalakrishna Shetty, learned Advocate for the appellant argued that the substance of the case of the appellant in this case was that the lease in question was noft a valid one and not binding on her and that the said question could not be decided by the Land Tribunal constituted under the Act. In support of this contention he relied upon a decision rendered by a Single Judge of this Court in Kunhi v. Kuttiambi Beary ( (1975) 1 Karlj. 89 ). In that case, it was held that where in a suit for partition by a Muslim co-owner the defendant pleaded that his sons were the tenants in possession of the land and the plaintiff was not entitled to possession, it was not open to the Court trying the suit to refer the question of tenancy raised by the defendant to the Tribunal under Sec. 133 of the Act. We are of the view that the said decision is not of much assistance to the appellant for the following reason. In that case the suit was one for partition filed by a co-owner. Defendant-1 in that suit was the other co-owner and his sons defendants 2 to 4 claimed to be the tenants. Defendant-1, among the several pleas he had taken, had also raised the plea that the land in question was not partible in view of the rights his sons had acquired under a lease. Defendant-1 in that suit was the other co-owner and his sons defendants 2 to 4 claimed to be the tenants. Defendant-1, among the several pleas he had taken, had also raised the plea that the land in question was not partible in view of the rights his sons had acquired under a lease. The Court might have decided in that case whether the plaintiff had a share in the suit land immediately prior to 1-3-1974 irrespective of the fact that it was in the possession of tenants because even though ultimately it was not possible to divide the suit land as between the co- owners in view of the tenancy rights claimed by the sons of the defendant, a decree for partition had to be passed at least in respect of the compensation which would become payable under the provisions of the Act to the landlords. But it could not have decided the question whether defendants 2 to 4 who were not co-owners were tenants or not and whether the lease was binding on the plaintiff in view of the express provisions of the Act. The validity of their claim could be determined only by the land Tribunal in view of the bar contained in Section 132 of the Act which provided that no Civil Court would have jurisdiction to settle, decide or deal with any question which was under the Act required to be settled, decided or dealt with by the Tribunal. Sub-clauses (b), (bb) and (bbb) Of Clause B of Sec. 112 of the Act required the Tribunal to decide whether a person was a tenant or not, to decide whether the-land in respect of which an applicaion under Sec. 48a of the Act was made or the land in respect of which any question of tenancy was raised or involved was or was not agricultural land and to decide questions referred to it under Sec. 133 of the Act. On the coming into force of Karnataka Act 1 of 1974 by which the original Sec. 44 of the Act was substituted by the new Sec. 44, all lands held by tenants immediately prior to the appointed day i. e. , 1-3-1974, vested in the State Govt and under Sec. 48a, which was inserted in the Act by the said amending Act it is open to the Tribunal to register such lands in favour of persons who were holding them as tenants prior to the appointed day subject to the restrictions and conditions provided in the Act after holding necessary enquiry into the validity of the claim of such persons. Sub-sec (5) of Sec. 48a of the Act, imposes a duty on the Tribunal to hold an enquiry into the validity of all claims put forward before it in respect of any land for purposes of registration. It also requires the Tribunal to decide all questions which would arise when rival claims are put forward by different persons in respect of the lands and determine the person or persons in whose favour the lands have to be registered. We have held in Mudukappa v. Rudrappa ( (1978) 1 Karlj. 459 .), that the Tribunal has the power to decide all issues incidental and ancillary to the question whether a person was a tenant or not under the Act. One of the questions which arises for consideration in this case is whether the tenancy pleaded by the respondents was binding on the appellant and whether by virtue of the said tenancy the respondents were entitled to defend their possession relying) upon the provisions of the Act. We feel that the said question can be decided only by the Tribunal in view of the provisions of the Act referred to above and not by the Civil Court. Sec. 133 of the Act expressly takes away the jurisdiction of the Civil Court 'to decide whether a person claiming to be in possession of the land is or is not a tenant of the said land prior to 1-3-1974 and requires the Civil Court to refer the said question to the Land Tribunal for its decision. Sec. 133 of the Act expressly takes away the jurisdiction of the Civil Court 'to decide whether a person claiming to be in possession of the land is or is not a tenant of the said land prior to 1-3-1974 and requires the Civil Court to refer the said question to the Land Tribunal for its decision. When the said question is referred to the Tribunal, it would be open to the owner of the land to contend that the person claiming to be a tenant was not a tenant within the meaning of the Act. In order to decide the question referred to it, the Tribunal has necessarily to decide all issues such as whether the land in question is an agricultural land, whether the person who claims to be a tenant is an agriculturist who cultivates the land personally and whether he holds it on a valid lease, binding on its owner. If it is a case in which Sec. 4 of the Act is relied upon the Tribunal has to decide whether the person who claims to be a tenant is lawfully cultivating any land belonging to another person and is not a person falling under any one of the clauses (a), (b) or (c) of that Section. We are of the view that after the coming into force of Karnataka Act 1 of 1974, the only forum before which the question whether a person is a tenant of an agricultural land or not can be agitated for the purposes of the Act is the land Tribunal constituted under the Act and that the Land Tribunal has the authority to decide all issues which are necessary to reach a decision on the above question". In view of the above, we hold that to the extent the decision in Kunhi v. Kttttiammi Beary ( (1975) 1 Karlj. 89 ) is not in consonance with the above view has to be disregarded and overruled. ( 7 ) SRI M. Gopalakrishna Shetty, the learned Advocate, next relied upon the decision of this Court in Chandu Shetty v. Thimmakke (RFA. 26 and 62168 dt'. 89 ) is not in consonance with the above view has to be disregarded and overruled. ( 7 ) SRI M. Gopalakrishna Shetty, the learned Advocate, next relied upon the decision of this Court in Chandu Shetty v. Thimmakke (RFA. 26 and 62168 dt'. 21-7-1971.) decided on 21-7-1971 and contended that the question whether a lease granted by one of the members of an Aliyasanthana family in favour of a third party was valid and binding on the plaintiff could not be decided by the court exercising jurisdiction under the provisions "of the Act. No reliance can be placed by him on the above decision because the said decision has been rendered on the basis of the law in force prior to the date on which Karnataka Act 1 of 1974 which modified the Act substantially, came into force. ( 8 ) IN this case the dispute is not between co-owners, but between a person who claims to be a owner and persons who claim that they are either tenants or 'deemed' tenants. The lower appellate Court was therefore right in holding that Issues 4, 5 and 6 which relate to the validity of the claim put forward by the respondents as tenants had to be decided by the Land Tribunal and those issues had therefore to be referred to it under sec. 133 of the Act. It should have, therefore, set aside the findings recorded by the trial Court on those issues and referred them to the appropriate tribunal under Sec. 133 of "the Act and should have proceeded to dispose of the appeal before it in the light of the findings of the Tribunal on those issues. Instead of doing so, the lower appellate Court set aside the entire judgment and decree of the trial Court and remanded the whole suit to the trial Court for fresh disposal in accordance with Sec. 133 of the Act. As mentioned earlier, the reason given by the lower appellate court for doing so was that the trial Court had recorded its findings on the other issues before the findings of the Land Tribunal on Issues 4, 5 and 6 were received by it. The lower appellate Court has not, in fact, assessed the evidence adduced by the parties on the other issues. We feel that the procedure adopted by the lower appellate Court to that extent is erroneous. The lower appellate Court has not, in fact, assessed the evidence adduced by the parties on the other issues. We feel that the procedure adopted by the lower appellate Court to that extent is erroneous. We, therefore, set aside the order of remand passed by the court below and remand this case to it to dispose of the case by following the procedure prescribed by Sec. 133 of the Act. We direct the lower appellate Court to refer Issues 4, 5 and 6 to the appropriate Tribunal after setting aside the findings recorded by the trial Court on them and to dispose of the appeal on merits in the light of the findings of the Tribunal on those issues and its own findings on other isssues. The appeal is accordingly disposed of. No costs. --- *** --- .