ABBUBAKAR BEARY v. TAHSILDAR, UDUPI — 1992 DIGILAW 3 (KAR)

N. D. V. BHATT, J. ( 1 ) THIS writ petition is directed against the order dated 27-8-1991 passed by the assistant Commissioner, Kundapur, in No. LRY. SR. 2/1991-92. ( 2 ) THE facts relevant for the disposal of this writ petition briefly stated are asunder: petitioner Abbubaker Beary claimed occupancy rights under Section 38 of the karnataka Land Reforms Act (hereinafter referred to as 'the Acl'), in respect of the dwelling house and land appertinent to it in Sy. No. 102/2a before the Land Tribunal, udupi. The Land Tribunal, Udupi, by its order dated 22-7-1985 rejected his application for the reasons reflected there. Being aggrieved by the same, petitioner preferred Writ Petition No. 2125/1986 before this Court and the said Writ Petition was transferred to the Land Reforms Appellate Authority. The said Writ Petition which was converted into an appeal before the Land Reforms Appellate Authority was numbered aslra 791/1988. The Land Tribunal-appellate authority by its order dated 6-4-1989 rejected the appeal. Being aggrieved by the same, petitioner preferred C. R. P. No. 4576/1990 before this Court However, the same was rejected. ( 3 ) WHEN this was so, respondent-3-Bhoja Hegde, filed as application before the Tahsildar, Udupi, for summarily evicting the petitioner and to hand over the delivery of possession of the dwelling house and the land appartinent to it to him. ( 4 ) THE Tahsildar, Udupi, in proceedings bearing No. LRF. CR. 296/1990-91, purporting to act under Sections 39 and 104 of The Karnataka Land Reforms Act directed that the Revenue Inspector, Kapu-Hobli, shall take possession of the aforesaid property and deliver the same to the respondent-3. Being aggrieved by the same, the petitioner preferred an appeal under Section 118/2b of the Act to the assistant Commissioner, Kundapur. The Assistant Commissioner Kundapur, by his order dated 27-8-1991 dismissed the appeal. Hence, this writ petition. ( 5 ) I have heard the learned counsel on either side. ( 6 ) IN the light of the submissions made on either side the only point that arises for consideration is as to whether the Tahsildar has the jurisdiction to dispossess or evict the petitioner under any of the provisions of the Karnataka Land Reforms Act. ( 5 ) I have heard the learned counsel on either side. ( 6 ) IN the light of the submissions made on either side the only point that arises for consideration is as to whether the Tahsildar has the jurisdiction to dispossess or evict the petitioner under any of the provisions of the Karnataka Land Reforms Act. ( 7 ) WHILE Sri Vyasa Rao, the learned counsel for the petitioner contended that neither the provisions of Section 41 nor the provisions of Section 130 would apply to the facts of the case, Sri S. R. Shetty, the learned counsel for respondent-3 asserted that the same would affect Sri S. R. Shetty, the learned counsel for respondent-3 put his finger mainly on the provisions of Section 130 of the Act. ( 8 ) BEFORE considering the submission of the learned counsels with reference to applicability or otherwise of the provision of Section 41 and/or Section 130, it is necessary to remember that the claim of the petitioner that he was an agricultural labourer and as (sic) he was entitled to occupancy rights under Section 38 of the Act to the dwelling house and the land appartinent to it was rejected by the Tribunal, by the appellate authority, and by this Court. It is necessary to mention here that the land Reforms Appellate Authority in LRA 791/1988 has clearly held that the instant petitioner has failed to prove that he is an agricultural labourer. This is dear from the copy of the order of the Land Reforms Appellate Authority produced on behalf of the respondent-3 along with his statement of objection. Further, it is not in dispute that the C. R. P. preferred against the said order was rejected. In para 10 of the statement of objection it is stated as under:"the very fact that the petitioner's application under Section 38 is dismissed by the Land Tribunal, Udupi, which was upheld both by the Land Reforms appellate Authority and this Hon'ble Court, would make the possession of the petitioner unauthorised and unlawful. It is pertinent to note that under Section 80 of the Land Reforms Act no lease in favour of a person who is not an agricultural labourer shall be lawful. Even on this basis the petitioner's possession and occupation is unauthorised and wrongful within the meaning of Section 130 of the Land Reforms Act, 1961. It is pertinent to note that under Section 80 of the Land Reforms Act no lease in favour of a person who is not an agricultural labourer shall be lawful. Even on this basis the petitioner's possession and occupation is unauthorised and wrongful within the meaning of Section 130 of the Land Reforms Act, 1961. " ( 9 ) FROM what is stated hereinabove, it is clear that in the light of the order sreferred to hereinabove, the position of the petitioner in relation to the property in question was not that of an agricultural labourer. ( 10 ) IF that be so, it will have to be next seen as to whether Section 41 of the Act would enable respondent-3 to seek the eviction of the petitioner. Section 41 reads as under:"procedure for taking possession: (1) A tenant or an agricultural labourer (x x x) entitled to possession of any land or dwelling house or site under any of the provisions of this act or as a result of eviction in contravention of sub-section (2) may apply in writing for such possession to the Tahsildar. The application shall be made in such form as may be prescribed and within a period of two years from the date on which the right to obtain possession of the land, dwelling house or site is deemed to have accrued to the tenant, agricultural labourer (x x x), as the case may be. (2) Save as otherwise provided in this Act, no landlord shall obtain possession of any land, dwelling house or site held by a tenant except under an order of the Tahsildar. For obtaining such order be shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land, dwelling house or site, as the case may be, is deemed to have accrued to him. (3) On receipt of application under sub-section (1) or (2) the Tahsildar shall, after holding an inquiry, pass such order thereon as he deems fit. (3) On receipt of application under sub-section (1) or (2) the Tahsildar shall, after holding an inquiry, pass such order thereon as he deems fit. (4) Any person taking possession of any land, dwelling bouse or site except in accordance with the provisions of sub-section (1) or (2), as the case may be, shall be liable to forfeiture of crops, if any, grown on the land in addition to payment of costs as may be directed by the Tahsildar and also to the penalty prescribed in Section 125. " ( 11 ) IT is only sub-section (2), if at all which (sic) to be considered. However acareful perusal of the said sub-section, would go to show that the same can be called in aid only in the context of a situation where the land, dwelling bouse or site was held by a tenant. It appears to me that Section 41 can be called in aid in the context of a situation brought about by the contingencies reflected in Sections 22 and 35 of the Act It is therefore not necessary to dilate on that aspect, since the petitioner was not a tenant, within the meaning of the expression as defined in the Karnataka Land reforms Act, in respect of the property in question. ( 12 ) IT is next, necessary to see as to whether Section 130 of the Act will apply to the facts of this case. Section 130 reads as under:"summary Eviction: any person unauthorisedly occupying or wrongfully in possession of any land- (a) The transfer or acquisition of which either by the act of parties or by the operation of law, is nivalid under the provisions of this Act; or (b) to the use and occupation of which he is not entitled under the provisions of this Act and the said provisions do not provide for the manner of eviction of such person, may be summarily evicted from such land by the Tahsildar after such inquiry as he deems fit and the tahsildar may make such orders as regards the disposal of such land as be deems fit. " ( 13 ) A perusal of the above, would go to show that a person's unauthorised occupation or wrongful possession may be brought about under the circumstances enumerated in clause (a); similarly, the non-entitlement for the use and occupation is brought about under the circumstances mentioned in clause (b ). The facts of the case leading to the rejection of the application of the petitioner, claiming occupancy rights under Section 38 of the Act, disclose that the application was rejected on the count that the petitioner was not an agricultural labourer. A vague attempt appears to have been made at para 10 of the statement of objection presumably with reference to clause (a) of Section 130 also; among other things it is stated therein as under:"it is pertinent to note that under Section 80 of the Land Reforms Act no lease in favour of a person who is not an agricultural labourer shall be lawful. Even on this basis the petitioner's possession and occupation is unauthorised and wrongful, within the meaning of Section 130 of the Land Reforms Act, 1961. " ( 14 ) IT will suffice if it is stated that it is not a case where any transaction is held to be invalid on its being contrary to Section SO of the Act. Under these circumstances, i have no hesitation to hold that clause (a) of Section 130 has no relevance at all. ( 15 ) IF that be so, it will have to be next seen as to whether clause (b) can be invoked to evict the petitioner. Before the said clause can come into play it is necessary that the person concerned should be unauthorisedly occupying or wrongfully in possession of any land to the use and occupation of which be is not entitled under the provisions of the Karnataka Land Reforms Act and the said provisions do not provide for the lawful eviction of such person. In other words, the use and occupation of the land should be wrongful on account of one or the other provisions of the Act. It is not as if there is any provision in the Karnataka Land Reforms Act which makes it wrongful for any person to dwell in a house on an agricultural land. Might be, that the possession of a person may be wrongful. It is not as if there is any provision in the Karnataka Land Reforms Act which makes it wrongful for any person to dwell in a house on an agricultural land. Might be, that the possession of a person may be wrongful. At the same time, the same may not be on account of any provisions of the Act. It is only in the context of wrongful possession on the count of any of the provisions of the Karnakata Land Reforms Act that section 130 (b) can be invoked. There are quite a good number of provisions in the kartnataka Land Reforms Act, which make the possession of a particular person wrongful. For instance, if a particular person is in possession of any land in excess of the ceiling limit he cannot be in possession of the same. If he continues to be in possession of the same, the same would obviously be wrongful. The said wrongful possession is on the count that he is not entitled to the use and occupation of the same on account of the Karnataka Land Reforms Act. It is not necessary to multiply instances. From what is stated here in above, it is dear that the facts of the instant case are indeed not such as would attract the provisions of Section 130 (a) or 130 (b) of the act ( 16 ) IN the light of what is staled here in above, I have no hesitation to bold that neither Section 41 nor Section 130 would apply to the facts of the instant case. ( 17 ) BEFORE I conclude, it is necessary to make a mention about one more aspect which has been touched upon by the learned counsel for the petitioner. The learned counsel submitted before this Court that the instant petitioner has filed a suit at O. S. No. 517/1991 before the Munsiff, Udupi, Dakshina Kannada, in respect of the same subject-matter and that therefore the instant petition is not maintainable. It is necessary to notice here that the suit is shown to have been filed on 30-9-1991, as can be seen from the copy of the plaint produced on behalf of the respondent. The writ petition is filed before this Court on 18-9-1991 that is to say next before the suit was filed. It is necessary to notice here that the suit is shown to have been filed on 30-9-1991, as can be seen from the copy of the plaint produced on behalf of the respondent. The writ petition is filed before this Court on 18-9-1991 that is to say next before the suit was filed. In that view of the matter I am of the opinion that the fact that a suit is filed before the Munsiff Court would not defeat the claim of the petitioner in this writ petition. Evenotherwise it is necessary to notice here that having regard to the fact that the writ prayed for is mainly in tie nature of certiorari, the writ jurisdiction is not affected because of any alternative remedy since the order in question is one without jurisdiction. Further, Sri Vyasarao, the learned counsel for the petitioner also submitted to the Court that the suit has been withdrawn or is being withdrawn at any rate having regard to what is stated earlier. I amof the view that the filing of the suit in the way and manner as has been done by the plaintiff, will not affect this writ petition. ( 18 ) HENCE, for the reasons stated here in above, I am of the view that the order dated 9-3-1991, bearing No. LRF. CR. 296/1990-91 passed by the Tahsildar, as also the order dated 27-8-1991 bearing No. LRY. SR. 2/1991-92 passed by the Assistant commissioner are opposed to law. on the date of the commencement of that Act, stand transferred to the Court of the munsiff and that therefore such matters shall be disposed of by the said Court in accordance with law as if such suits or proceedings had been instituted or commenced in such Court. 6. Therefore, there is no difficulty to understand the object of the amending Act it is also not in dispute that the amount or value of the subj ect-matter of the proceedings in question is Rs. 23,656-30, less than fifty thousand rupees. In that view, there is no doubt that clause (b) of sub-section (1) of Section 4 of the amending Act clearly covers the proceedings of this kind. 23,656-30, less than fifty thousand rupees. In that view, there is no doubt that clause (b) of sub-section (1) of Section 4 of the amending Act clearly covers the proceedings of this kind. But the legal contention urged is that though that was the intendment of the legislation in amending the Karnataka Civil Courts Act, the proceedings arising out of a decree do not come within the purview of clause (b) of Section 4 (1) of the amending Act The argument is that in view of Section 141, c. P. C. , the execution proceedings arising out of a decree are not affected by the above provisions and therefore there was no need for the learned Civil Judge to transfer the proceedings to the Court of the Munsiff. To support this argument, the learned counsel referred to the provisions of Sections 38 and 39, C. P. C. . This revision petition is based upon the above grounds. I carefully went through clause (b) of Section 4 (1) of the amending Act, Sections 38, 39 and 141, C. P. C. I also perused the rulings relied upon by the learned counsel. But, I do not see any force in the submissions of Sri Aswatharam. 7. Firstly, in a case of this nature, the invoking of Sections 38 and 39, C. P. C. would not arise. It is nobody's case that any application seeking to transfer the proceedings pending before the Civil Judge to the Court of the Munsiff was presented under Section 39, C. P. C. Indeed, the provisions of Section 4 (1) (b) are not automatic for giving effect to the transfer coming within the purview of that section. Secondly, the ratio of the decision rendered by the Division Bench of this Court in periyakkal's case is of no assistance to the revision petitioner because the ruling in that case is against him. I will presently refer to the ruling in Periyakkal's case. Secondly, the ratio of the decision rendered by the Division Bench of this Court in periyakkal's case is of no assistance to the revision petitioner because the ruling in that case is against him. I will presently refer to the ruling in Periyakkal's case. That was a case where the Court of the Munsiff granted decree for eviction arising under the Karnataka Rent Control Act and during the pendency of the execution proceedings, the Karnataka Rent Control (Amendment) Act, 1975 (Kamataka Act No. 31 of 1975) was passed the effect of which was that the Court having jurisdiction under the act was the Court of the Civil Judge and not the Munsiff and the Act also provided for transferring all pending proceedings. The execution proceedings pending before the Munsiff did not stand statutorily transferred to the Court of the Civil Judge. But the learned Munsiff on an erroneous understanding of the legal position transferred the execution proceedings to the Court of the Civil Judge. 8. The question that arose for consideration before the Division Bench in periyakkal's case was whether or not the Court of the Civil Judge had jurisdiction to execute the decree which had been transferred to that Court. The second question was whether the transferee Court (Court of Civil Judge) had jurisdiction to continue the execution proceedings exercising jurisdiction under the Act The Court answering the questions held that the Court of the Civil Judge was the Court of competent jurisdiction as it had, after the amendment Act, jurisdiction to try eviction applications, that if the Munsiff who had passed the decree sent it to the Court of the Civil judge for execution on an application by the decree-holder made under Section 38, c. P. C. , the Court of the Civil Judge would have jurisdiction to execute the decree and that, without any such application, when the Munsiff transferred the execution proceedings, there was at the highest, irregular assumption of jurisdiction by the court of the Civil Judge, and not the lack of inherent jurisdiction hence the exercise of jurisdiction by the Civil Judge in such circumstances would not vitiate. Thus, the ruling in Periyakkal's case is not helpful to the petitioner herein. 9. Thus, the ruling in Periyakkal's case is not helpful to the petitioner herein. 9. The ratio of the decision of the Supreme Court in Merla Ramanna v nallaparaju and Others, AIR 1956 SC 87 relied upon by Sri Aswatharam does not support the case of the petitioner and on the other hand die ruling therein is against aim. The Supreme Court while considering the territorial jurisdiction of the transferee Court with reference to Sections 38,37 and 39, C. P. C. , held in paragraphs 12 and 13 as follows: it is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another Court. But the Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and if it entertains an execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings. " this was the view taken in Periyakkal's case. 10. Therefore, by virtue of the amending Act, the territorial jurisdiction of the learned Civil Judge having taken away and conferred on the learned Munsiff in respect of suits or proceedings, the amount or value of the subject-matter of which 'does not exceed fifty thousand rupees, the learned Civil Judge rightly made an order transferring the execution proceedings to the Court of the Munsiff. There is nothing wrong on his part for doing so, 11. The ratio of the decision of the Allahabad High Court in Choudhary raghunandan Singh v Narain Das Bal Kishun, AIR 1960 Allahabad 730 also is of no assistance to the case of the petitioner because the facts and circumstances arising therein are entirely different from those of this case and moreover there, change of jurisdiction by virtue of the amendment of the Civil Courts Act did not arise. Similar is the case of Rajasthan in Jdgjivansingh v Ahmed Bux and Others, AIR 1971 rajasthan 234. Similar is the case of Rajasthan in Jdgjivansingh v Ahmed Bux and Others, AIR 1971 rajasthan 234. The ruling of the Madras High Court in Gowrammal v Lingappa gowder, AIR 1968 Madras 99 relied upon by Sri Aswatharam is against the petitioner and on the other hand it fully supports the order made by the learned Civil judge. In that case, the Division Bench following the ratio of the decision in ramanna v Nallaparaju, of the Supreme Court, held as follows: "when the subject-matter of a suit is transferred due to a change in the territorial jurisdiction of a Court, the transferee Court acquires an inherent jurisdiction over the subject-matter. The transferee Court can, therefore, entertain execution application relating thereto and execute decree, even though the decree is not transferred to it by the decreeing Court However, this principle cannot be applied to money decrees. In case of money decrees, if the executing court is not the decreeing Court, the decree must be transferred to itby a proper transmission of the decreeing Court before it can be executed. For, so long as the decreeing Court continues to exist, it has jurisdiction over the decree it has passed and hence a transfer of the decree is necessary before it can be executed by the executing Court. " 12. The ruling of the Madras High Court based on the ratio of the decision of the supreme Court in Ramanna's case is what is exactly followed by the learned Civil judge, in the instant case. To reiterate, the transfer is not automatic. Therefore, in view of clause (b) of sub-section (1) of Section 4 of the amendment Act, the learned civil Judge had passed a proper order transferring the execution proceedings to the court of the Munsiff who, thereafter, exercised jurisdiction to continue the proceedings in accordance with law. Therefore, the decision rendered by the Madras high Court fully supports the order made by the learned Civil Judge in the instant case. 13. Indeed, there is one more aspect which I have got to notice. Section II of the karnataka Rent Control (Amendment) Act, 1975 which came to be referred to in periyakkal's case, provides as follows: "11. Repeal of Ordinance No. 3 of 1975. 13. Indeed, there is one more aspect which I have got to notice. Section II of the karnataka Rent Control (Amendment) Act, 1975 which came to be referred to in periyakkal's case, provides as follows: "11. Repeal of Ordinance No. 3 of 1975. The Kamataka Rent Control (Amendment) Ordinance, 1975 (Karnataka Ordinance No. 3 of 1975) is hereby repealed: provided that anything done or any action taken under the Principal Act as amended by the said ordinance shall be deemed to have been done or taken under the Principal Act as amended by this Act". Such a repealing clause is not to be found in the amending Act in question. Therefore, we will have to see whether anything done or any action taken under the principal Act is or has been saved. In the absence of express provision to that effect, we will have to take for granted the intendment of the legislation. In other words, in the absence of any repealing clause, it is not proper to imply that anything done or any action taken under the amended provision is saved. 14. Maxwell on Interpretation of Statutes, 11th Edition, at page 216, states as follows: "no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no vested right in a State of the law which left the injured party without, or with only, a defective remedy. . . . " 15. The Supreme Court also is of the same view in Anant Gopal Sheorey v State of Bombay, AIR 1958 SC 915 wherein it has held in paragraph-4 as follows: "no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. In other words, a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective", 16. Therefore, in the absence of any repealing clause saving any right accrued to the petitioner-decree-holder, there is no option for the Court but to follow the altered. circumstances as to territorial jurisdiction. In that view of the matter, the learned civil Judge has tightly followed the procedure as provided under clause (b) of subsection (1) of Section 4 of the amending Act, in transferring the execution proceedings to the Court of the Munsiff. I do not see any good ground to interfere with the action taken by him. 17. In the result, this revision petition fails and is dismissed. No costs. --- *** --- .