BETTEGOWDA v. K. VENKATARAMANAIAH — 1982 DIGILAW 81 (KAR)

G. N. SABHAHIT, J. ( 1 ) THIS appeal by the first defendant is directed against the judgment and decree, dated: 16-9-1978, passed by the prl. Civil Judge, Bangalore District, bangalore, in R. A. No. 132 (1977, on his file, dismissing the appeal on confirming the judgment and decree, dated 27-10-1977, passed by the Additional second Munsiff, Bangalore, in O. S. No. 670 1969 on his file, decreeing the suit of the plaintiff as prayed for. Plaintiff institutted the, suit for redemption of mortgage created by one l. Ramachandra Rao, in respect of a land bearing S. No. 181 of Byrana 'halli village, in possession of Mudduhanumaiah. Ramachandra Rao executed a usufructuary mortgage, deed, on 23-6-1957, in favour of first defendant- bettegowda, for a sum of Rs. 5,000 since the entire land except the suit schedule property had been in possession of the tenants, the said Ramachandra Rao,, delivered possession of the only suit schedule property which was in his actual possession to the mortgagee. Subsequently the original owner ramachandra Rao sold the suit schedule property by a registered sale deed dated 28-8-1969, to the present plaintiff. Subsequent to purchase, the plaintiff issued legal notice, dated 20-9-1969, calling upon the defendant to receive the mortgage amount and sought for possession of the schedule propertty. Defendant, however, raised all sorts of objections in his reply notice. Hence, plaintiff instituted the suit for redemption and possession. The first defendant - Betttegowda- filed his written statement and contest ed the suit. According to him, when ramachandra Rao executed a usufructuary mortgage in his favour, he was already a tenant of the suit land and the mortgage was executed in favour of the tenant. Hence, he contended that on redemption the plaintiff was not entitled for actual possession as his tenancy continued even after redemption. The trial Court, rais,ed the following issues as arising from the pleadings for its consideration:1) Whether plaintiff purchased suit land through registered sale deed? 2) Whether the first defendant was in possession of four a;cres of land in S. No. 181 on the southern side as a tenant prior to mortgage? 3) Whether the defendant is entitled to continue in possession of said land as a tenant after redemption of the mortgage? 4) Whether the sale deed in favour of plaintiff is illegal and void as alleged? 5) Whether this Court has no jurisdiction? 3) Whether the defendant is entitled to continue in possession of said land as a tenant after redemption of the mortgage? 4) Whether the sale deed in favour of plaintiff is illegal and void as alleged? 5) Whether this Court has no jurisdiction? 6) Whether plaintiff is entitled to the relief of redemption and possession? 7) Is the suit bad for non-joinder of necessary parties? 8) What relief?the learned Munsiff, appreciating the evidence on record, answered all the material issues in favour of the piaintif and in that view he decreed the suit of the plaintiff. Aggrieved by the said judgment andi decree, the first defendant went up in appeal before the learned Civil Judge, Bangalore District, Bangalore, in R. A. No. 132/ 1977, on his file. The learned Civil Judge, in the course of his judgment, raised the following points as arising for his consideration in the appeal. 1. Whether the first defendant was in possession of four acres of land lying towards the southern side of S. No. 181 as a tenant prior to the date of mortgage (i. e. , 23-6-1957) 2. If so, whether the, first defendant is entitled to remain in possession of the said four apres in S. No. 181 as tenant even after the redemption of mortgage: in view of the provisions contained in section 26 of the Karnataka Land Reforms Act? 3. Whether the, Civil Court has got jurisdiction to record a finding on tenancy issue, involved in this suit? 4. What order' ?the learned Civil Judge, reassessing the evidence on record, answered points 1 and 2 in the negative, point No. 3 in the affirmative and in that view he dismissed the appeal, confirming the judgment and decree passed by the trial Court. Aggrieved! by the said judgment and decree, the first defendant has come with the above second appeal before this Court. ( 2 ) THE learned counsel for the appellant strenuously urged before me that the courts-below were not justified in holding that they had jurisdiction to decide whether the tenancy of the first defendant continued in view of the provisions of S. 26 of the Karnataka land Reforms Act (hereinafter referred to as the 'act'), even after the redemption of the mortgage. That is the only point that is urged for my consideration. That is the only point that is urged for my consideration. As against that the learned counsel for the respondent argued stating that the Civil Court had jurisdiction to decide the past tenancy, especially so when the mortgage deed is dated 23-6-1957 and that the question of tenancy involved was past tenancy earlier to that date. ( 3 ) THE sole point, therefore, that arises for my consideration in this appeal is:"whether the; Courts below were justified in holding that they had jurisdiction to try the past tenancy prior to 23-6-1957, involved in the case, though the suit was of the year 1969? the learned Civil Judge has relied upon a decision of this Court in the case of Radhabai Balakrishna Deshpande v. Raghavendra Hanumanth deshpande (I), which holds that the scope of enquiry by the Tribunal under s. 112 (B) (b) of' the Act is limited to existing tenancy in dispute and not the tenancy that existed at a remote past. The latter part of S. 133 (2) (a) of the' act is also to the same effect. Hence, the learned Civil Judge as well as the learned Munsiff held that the past tenancy could be decided by the Civil court. " ( 4 ) THE learned counsel for the appellant however, contended; that on the facts and circumstances of the case, we are not concerned with the past tenancy but with the present tenancy which is only held in abeyance. S. 26 of the act simply says that if any land is mortgaged by a landlord by way of a usufructuary mortgage to the tenant himself, the tenancy is held in abeyance during the pendency of the mortgage and that it revives on redemption of the mortgage. Therefore, what we are required to decide is whether there is existing tenancy which was only held in abeyance and not mere past or remote tenancy. This aspect is not considered by the Courts below. They have wrongly held that what was required to be decided, is past tenancy and that the Tribunal had no jurisdiction to do it. But actually what is required to be decided is present tenancy and find out whether the present tenancy is existing. The Tribunal is required to find out whether the tenancy existed from even earlier to the mortgage. But actually what is required to be decided is present tenancy and find out whether the present tenancy is existing. The Tribunal is required to find out whether the tenancy existed from even earlier to the mortgage. Therefore, the Tribunal gets jurisdiction to decide that question this aspect of the matter has been clarified subsequently by a Division bench of this Court in the case of melegowda v. Gaibu Sab (2 ). A similar question as in the present case was involved in that case. The Division bench has pointed out that the doctrine of merger under S 111 T. P. Act. would not apply to the case of a lease followed by a mortgage ( AIR 1976 SC 1565 followed ). They have further pointed out that it was not open to the plaintiff to plead that the lease came to an end by reason of implied surrender contemplated under S. 1ll t. P. Act by reason of S. 26 of the Act. They have further held that the question whether defendant was entitled to possession of the; land under S. 26 of the Act on redemption had to be decided before a preliminary decree was passed and the issue had to be referred to the Land Tribunal under S. 133 of the Act. ( 5 ) SPEAKING on the earlier decision 1975 (2) Kar. Law Journal, 387 the Division bench has observed:"hence it has to be held that the view expressed in Srinivasa Setty's case stands overruled. It is no doubt true that in the course of the above decision of the Supreme Court it has been held that the lease in question, however, came to an end by reason of implied surrender. . . . . The true effect of S. 26 of the Act is that the anterior lease of agricultural land would not become extinct by reason of the creating of a mortgage in favour of the tenant but would become dormant. The said provision confers right on the mortgagee who was a tenant earlier, to continue to hold the land after the extinguishment of the mortgage on the terms and conditions on which he held it before the mortgage was created. The said provision confers right on the mortgagee who was a tenant earlier, to continue to hold the land after the extinguishment of the mortgage on the terms and conditions on which he held it before the mortgage was created. In view of the above express provision found in the statute it has also to be held that no support can be derived by the respondents from the decision of this Court in Radhabai Balakrishna deshpande v. Raghavendra Hanumanth Despande (1975 (2) Kar. L. J. 387) in which it has been held that the scope of enquiry by the Tribunal constituted under the Act is limited to the existing tenancy in dispute and not to the tenancy that existed at a remote past, because by virtue of Section 26 the tenancy continues to be in existence though in abeyance and does not become extinguished on the execution of the mortgage. "the principle laid down in-Section 26 of the Act would still be applicable even if that provision were| not there, in the sense, that the tenancy right would never merge with the rights of a mortgagee as they are two different legal concepts, one, being not higher than the other in the same, category of rights. That is what is laid down by the Supreme Court in the case of Shah mathuradas Maganlal and Co. v. Naqappa Shankarappa Malaga (3 ). That being so, even apart from the provisions of S. 26, it is obvious that the tenancy rights are kept dormant during the pendency of the mortgage and they get revived after redemption,. Therefore, it is obvious that we are; concerned with the right of tenancy in present and not with something which existed only in the remote past. Hence, T have no hesitation to hold that the Courts below were entirely in error in thinking that they were concerned only with the tenancy in the remote past and as such they had jurisdiction to decide the point. ( 6 ) IN the result, the appeal is allowed to that extent; the judgment and decree of the Courts below directing delivery of physical possession of the property to the extent of 4 acres in possession of the first defendant, is hereby se;t aside, while confirming rest of the decree. ( 6 ) IN the result, the appeal is allowed to that extent; the judgment and decree of the Courts below directing delivery of physical possession of the property to the extent of 4 acres in possession of the first defendant, is hereby se;t aside, while confirming rest of the decree. The suit to that extent is remitted back to the trial Court with a direction that the issue regarding tenancy shall be referred to the concerned Land trtbunal and on receipt of the decision of the Tribunal, it shall proceed to decide the issue regarding delivery of actual possession, taking into consideration the provisions of S. 26 of the, act and dispose of the suit in accordance with law. If, however, the parties bring to the notice of the Court that the matter is already pending before the Tribunal, it shall give them sufficient time and await the decision of the tribunal before proceeding further. Send back the concerned record to the trial Court (Munsiff, Magadi) forthwith. Parties are directed to be present before the Trial Court on 15-6-1982 to take further instructions. No costs in this appeal. --- *** --- .