M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is defendants second appeal against the concurrent findings of the courts below. ( 2 ) THE plaintiff's case was that he was the owner of the land bearing s. No. 216/2 measuring 15 acres and 25 guntas, of Tikota village in Bijapur taluk. He is one of the three sons, tavanappa and Appanna are his younger brothers. His father died in or about the year 1961; that he wa,s serving in the police department from 1937; that he purchased the suit schedule land out of his own earnings; that in about the year 1940 his father was in need of money and that he paid him Rs. 2000 as a result of which his father put him in possession of the land as an owner by giving a vardi to the revenue authorities; that no sale deed was executed in that behalf. The attempt of his father to contest the mutation entry of his name, did not succeed; that he had been in possession of the suit schedule properties exclusively and adversely to his brothers and his father and he had therefore perfected his title to the suit land even by adverse possession. It was his case that defendants 1 and 2 obtained an agreement of sale from his brothers on 24-3-62 and dispossessed the brothers of the plaintiff in the year 1964-65; that defendants were in illegal and unlawful possession of the suit schedule land and his brothers had no right to execute a sale agreement in respect of the suit schedule land. Therefore, he prayed for a declaration of his title and for being put in possession of the suit schedule land. In the alternative, he prayed that the suit schedule land should be treated as joint family property belonging to him and his brothers and he be given 1|3rd share and possession of the same holding that the agreement of sale in favour of defendants 1 and 2 was void. ( 3 ) DEFENDANTS 1 and 2 are the purchasers of the land under an agreement to sell and therefore the contesting defendants. Defendants 3 and 4, and 4a to 4d are none other than the brothers of the plaintiff and sons of defendant-4. Defendants 3 and 4 have remained ex-parte. ( 3 ) DEFENDANTS 1 and 2 are the purchasers of the land under an agreement to sell and therefore the contesting defendants. Defendants 3 and 4, and 4a to 4d are none other than the brothers of the plaintiff and sons of defendant-4. Defendants 3 and 4 have remained ex-parte. Defendants 1 and 2 resisted the suit on the ground that it was not the self-acquired property of the plaintiff. Even if it was purchased by him for a consideration of Rs. 2,000 from his father, as no sale deed was executed he acquired no title; that he was never in possession of the land; that he was always out-side the village serving in the police Department; that defendants 3 and 4 had entered into an agreement of sale and put the defendants in possession of the land as intending purchasers; that defendants- 3 and 4 were competent to enter into the agreement of sale; that even before the sale, they were tenants of the land having been inducted thereon by defendants 3 and ( 4 ) THE plaintiff therefore was not entitled to the possession of the land even if it were to be held that he had 1|3 rd interest in the property. 4. The learned Munsiff, Bijapur, on the above pleadings framed as many as 15 issues. We are now concerned with issue No. 3d1 which is as follows:"whether defendant-1 proves that he was the tenant or the deemed tenant between 25-2-62 and 24-3-62 by the two younger brothers of the plaintiff?" ( 5 ) APART from decreeing the suit, the trial Court held against defendants 1 and 2 in regard to issue No. 3d1. The main reason given by the trial court was that in a proceeding under sec. 14 as it was then under the karnataka Land Reforms Act (hereinafter referred to as the Act) before the Munsiff Land Tribunal, the defendants had themselves denied that they were tenants in respect of that land. ( 6 ) AGGRIEVED by the judgment and decree of the trial Court against them, defendants 1 and 2 preferred ra No. 14/1978 in the Court of the prl. Civil Judge, Bijapur. The lower appellate Court after hearing the contesting parties and appreciating the evidence on record, confirmed the judgment and decree of the trial court. Therefore, the present second appeal has been preferred by defendants 1 and 2. Civil Judge, Bijapur. The lower appellate Court after hearing the contesting parties and appreciating the evidence on record, confirmed the judgment and decree of the trial court. Therefore, the present second appeal has been preferred by defendants 1 and 2. ( 7 ) THE only question formulated and argued by the learned Counsel for appellants is that the Courts below erred in deciding the question of tenancy which' after the enactment of the Act particularly with reference to Sec. 133 of the said Act should have been referred to the Land Tribunal concerned for decision. It ' is no doubt true that Sec. 133 is a clear bar. But that does not preclude The civil Courts from initially examining the question whether prima facie relationship of landlord and tenant exists, before such question is referred to the Land Tribunal after reaching the- conclusion that such question does exists. As already stated, the reason why the appellants were not held to be tenants nor the matter referred was on account of their own conduct in an earlier proceeding where they had themselves taken the stand successfully that they were not tenants of the land; that they were in possession as intending purchasers under a genuine agreement of sale executed by defendants 3 and 4. In that view of the matter, the appellants were estopped from taking a different stand in the suit. I, therefore do not see any error committed by the Courts below in not referring the question of tenancy for decision by the Land Tribunal. The appellants cannot be permitted to breathe hot and cold at the same time: ( 8 ) IT was next urged as a branch of his main argument that in the earlier proceedings before the Munsiff- land Tribunal under Sec. 14 of the act as it was then, the Munsiff had held that the land, in question was non-resumable and therefore that was binding on the parties to those proceedings. T do not think it is anybody's case that the plaintiff was a party to those proceedings. In any event it was held to be non-resumable on account of the fact of the defence put forward there by the appellants i. e. that they were in possession as vendees or intending vendees and not as tenants. T do not think it is anybody's case that the plaintiff was a party to those proceedings. In any event it was held to be non-resumable on account of the fact of the defence put forward there by the appellants i. e. that they were in possession as vendees or intending vendees and not as tenants. If it was tenanted lands, a part of the lands could have been resumed by the landlords and the Munsiff-Land Tribunal held that it was not tenanted and therefore not resumable and no more. Therefore, there is no force in this contention- for the above reasons, the judgments and decrees of the "courts below are in order and do not require to be set aside. Hence, this appeal is rejected. ( 9 ) THERE will be no order as to costs. --- *** --- .