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1980 DIGILAW 15 (KAR)

ACHANNA SHETTY v. KAMALA SHEDTHI

1980-01-14

G.N.SABHAHIT

body1980
( 1 ) THIS appeal is by the Defendants 1, 2 and 3 and is directed agaipst the judgment and decree dated 10-1-1973 made by the Add1. Civil Judge, Udipi, s. Kanara, in A. S. No. 18|1966, dismissing the appeal and confirming the judgment and decree dated 18-12-65 made by the Munsiff, Karkal, in, O. S- no. 560/1964 pn his file. ( 2 ) THE plaintiffs instituted a suit for declaration that they were the owners of the properties and for an injunction against the defendants as consequential relief. The defendants, according tot the plaintiffs, had no right title or interest to the suit properties. The defendants, however, contended that the 2nd defendant has right in regard to 10 cents of land in the southern portion and the 2nd defendant was a tenant under defendants 3 and 4 in regard to 95 cents of land in the northern side. The trial Court raised the following issues: (1) Whether the trespass cutting and removing of bamboo or firewood or green leaves as alleged in para III (c) of the plaint, is true? (2) Whether the plaintiffs have suffered any and what damages on account of trespass cutting and removing of bamboo or firewood or green leaves as alleged in para III (c) of the plaint? (3) Whether the plaintiffs or any of them has got title to suit property or any portion thereof? (4) Whether the 2nd defendant or her ancestors and her landlords have prescribed their titles by adverse possesion to the suit property? (5) Whether the suit is barred by article 144 of the Limitation Act? (6) Whether the suit is barred by article 142 of the Limitation Act? (7) Whether the plaintiffs are entitled to declaration of title? (8) Whether the plaintiffs are entitled to declaration of possession? (9) Whether the plaintiffs are- entitled to any injunction claimed in the suit? (10) Whether the frame of the suit is proper? (11) Whether the first defendant is a necessary party in the suit? (12) Whether the suit is bad for nonjoinder of necessary parties? ( 3 ) THE trial Court appreciating the evidence on record answered issues 2, 7 and 11 in the affirmative and issues 4,5,6 and 12 in the negative. Further, it answered the first part of the second issue in the affirmative and under the second part it found that the damages due were Rs. ( 3 ) THE trial Court appreciating the evidence on record answered issues 2, 7 and 11 in the affirmative and issues 4,5,6 and 12 in the negative. Further, it answered the first part of the second issue in the affirmative and under the second part it found that the damages due were Rs. 21 to the plaintiff. In that view, the trial Court decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, the defendants went up in appeal before the learned Civil Judge, udipi and the learned Civil Judge, by his judgment and decree dated 18-4-67 allowed the appeal and reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree the plaintiff preferred an appeal in R. S. A. No. 886167 before this court and this Court by its, judgment and decree dated 12th Jan. 1972 allowed the appeal and set-aside the judgment and decree of the learned Civil Judge and remanded; the matter to the first appellate Court with a direction to follow the procedure under Order 41 rule 31 CPC and then to proceed to judgment. Thereafter, the appeal was taken up and was re-heard and the learned Civil Judge who re-heard the appeal framed the following points as arising for consideration: (1) Whether the 1st plaintiff has proved her title to the suit property? (2) Has she also proved her possession through the 2nd plaintiff, her tenant? (3) Have defendants proved their title and possession of the suit property? (4) Have they at least proved the adverse possession set up by them? (5) Are the plaintiffs entitled to the reliefs claimed? (6) Are judgment and decree of the trial Court liable to be set-aside? (7) What order? ( 4 ) THE learned Civil Judge, reassessing the, evidence on record answered points 1, 2 and 5 in the affirmative. He, answered points 3, 4 and 6 in the negative. In that view, he dismissed the appeal confirming the judgment and decree of the trial Court. Aggrieved by the same, defendants 1 to 3 have come up in second appeal before this Court. He, answered points 3, 4 and 6 in the negative. In that view, he dismissed the appeal confirming the judgment and decree of the trial Court. Aggrieved by the same, defendants 1 to 3 have come up in second appeal before this Court. ( 5 ) THE learned Advocate for the appellants contended that the defendants in their written statement have specifically contended that they were tenants of the suit land in regard to the 95 cents of the land on the northern side and that the same was affirmed in the plaint at para III (g) and hence it was obvious that the defendant-2 claimed that he was tenant of the suit land with regard to 95 cents. He submitted that in view of the amendment to S. 133 of the Karnataka Land reforms Act making it retrospective and applicable to all pending proceedings, it was necessary to refer that question, for decision to the concerned land Tribunal. The learned Counsel for the Respondents, however, submitted that the tenancy claimed was not under the plaintiff and as such, it was not necessary to refer that issue to the Land Tribunal. Alternatively, he submitted that the other 10 cents of land with regard to which both the courts have concurrently held that the question of tenancy does not arise, the decree to that extent should be confirmed. ( 6 ) THE points that arise for consideration in this appeal are; (1) Whether it is necessary to raise and refer an issue with regard to 95 cents of land to the concerned Land tribunal? (2) Whether the decree with regard to 10 cents of land is liable to be set aside? ( 7 ) THE learned Counsel for the. Respondents, no doubt, submitted that the question of tenancy should be raised only when there is a dispute between the plaintiff and the defendant with regard to the same and not when the defendants claim tenancy under a co- defendant. As against this, the learned, counsel for the appellants submits that according to S. 133 of the Karnataka land, Reforms Act that question arises when ihe defendant claims himself as tenant of the land. As against this, the learned, counsel for the appellants submits that according to S. 133 of the Karnataka land, Reforms Act that question arises when ihe defendant claims himself as tenant of the land. ( 8 ) IN order to appreciate the rival contentions, it is necessary to read S. 133 (1) of the Karnataka Land Reforms act which states 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'. ( 9 ) THUS, it is obvious that the sub-section is wide enough to include tenant of the land. It is not for the Courts to add words which are not there in the subsection. The Legislature in its wisdom has given wide import to the sub-section by stating 'is or is not a tenant of the land 'and not' is or not a tenant of the land under the plaintiff'. It is settled law that in a benevolent legislation like the present one, whenever a doubt arises, it should be resolved in favour of the beneficiary. That being sp, I am not pursuaded to add words which are not there in that sub-section upholding the contention that the defendants should be tenants under the plaintiff with regard to the suit land. If a question arises whether the defendant is a tenant of the land, the, issue shall be raise,d, about the tenancy and referred to the land Tribunal for decision. I am not persuaded to confine and cabin the) wide import of the sub-section to the detriment of the interests of the lenants. That being so, it is obvious that the issue regarding tenancy should be refeixed to the concerned Land tribunal as it would go to the root of the matter. If the 2nd defendant is declared to be a tenant, the suit has to be dismissed with regard to 95 cents. That being so, it is obvious that the issue regarding tenancy should be refeixed to the concerned Land tribunal as it would go to the root of the matter. If the 2nd defendant is declared to be a tenant, the suit has to be dismissed with regard to 95 cents. If not, it has to proceed on merits- ( 10 ) AT this stage, my attention was drawn to a Full Bench decision of this Court by the Counsel at the Bar in K. Ramaiah v. Basappa (1), wherein it is held that the issue shall be referred to the Tribunal by the Court which raises the issue and decides to refer and keep the matter pending till the decision is received. Accordingly, it is necessary to refer the issue namely, whether the defendant-2 proves that he is a tenant of the suit land under defendants 3 and 4?, to the concerned land Tribunal. ( 11 ) IN the result, therefore, the issue "whether the defendant-2 proves that he is a tenant of the suit land under Defendants 3 and 4?" shall be referred to the Land Tribunal, Udipi taluk, through the Munsiff, Karkala,the munsiff, Karkal, shall refer this issue for decision to the concerned land Tribunal, Udipi with further direction that the plaintiff No. 1 should also be made a party to that proceeding. If there is already a proceeding pending before the Tribunal, a direction should be given that the plaintiff should also be made a party and the plaintiff should make an application to bring himself on record as a party before the Tribunal. On receipt of the decision of the Tribunal by the Munsiff, the Munsiff shall submit the same to this Court. Await the decision of the Tribunal. Send necessary records to the Trial Court. --- *** --- .