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2000 DIGILAW 151 (KAR)

GOWRAMMA v. UPENDRA PADIYAR

2000-02-16

T.N.VALLINAYAGAM

body2000
T. N. VALLINAYAGAM, J. ( 1 ) THIS civil revision petition is preferred by the L. Rs of the defendant against the order dismissing the LA. No. VI and holding that the suit is one for permanent injunction and no tenancy question is involved in this suit. Therefore the suit cannot be stayed under Section 132 or 133 of karnataka Land Reforms Act. ( 2 ) HEARD learned Counsel for both the parties. ( 3 ) LEARNED Counsel for the petitioner relied on the dictum of the division Bench in Mallayya Murigayya v Puttappa Shivappa, to the following proposition of law:"section 133 as amended in 1976 provides that when the question before the Court is whether the person claiming to be in possession is or is not a tenant of the suit land from prior to 1-3-1974, then the Court shall stay such suit insofar as such question is concerned and refer the same for decision by the Tribunal. Section 133 applies to all such cases irrespective of the fact that the person who claims to be the tenant is a plaintiff or a defendant. Thus, in a case where the plaintiff claiming to be a tenant of the land in question while admitting that the defendant is the owner prays for an injunction restraining the defendant from interfering with his possession, the question whether the plaintiff is a tenant or not would arise for consideration and the same to be referred to the Tribunal". Reliance was also placed on a decision given in Achanna Shetty and others v Kamala Shedthi and Others, to the following effect:"in order to appreciate the rival contention, it is necessary to read section 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 1-3-1974". Another decision given in Shankar Appa Kokane v Narasinga Rama kokane and Another, is also relied upon which is on the following proposition:"the short question which falls for determination as already recorded by me on 2-11-1987 is whether the Trial Court had jurisdiction to entertain the suit of the plaintiff in O. S. No. 20 of 1993. I. A, No. VI was an application filed by the defendants pointing out to the Court that the Civil Court has no jurisdiction in view of section 133 of the Karnataka Land Reforms Act, 1961 and the land Tribunal alone was competent to decide the question of tenancy when the same was in dispute. Unfortunately, in disposing of the same, the Trial Court appears to have misread itself in believing that it has jurisdiction to examine prima facie whether the plea of tenancy is tenable. When there is a clear plea with refer ence to the proceedings pending before the Land Tribunal, the question of prima facie nature of the defence taken in the written statement does not arise. Once the proceedings commenced before the appropriate Land Tribunal, the Civil Court loses its jurisdict ion even to examine the prima facie nature of defence. Therefore, the Trial Court is in error in rejection LA. No. VI". A Full Bench decision in Booda Poojary v Smt. Thomu Poojarthi and others, was also referred:"upon grant of occupancy rights, leasehold rights converted into freehold rights without damaging rights of family or any member - open to claim share or rights in lands of which occupancy rights conferred, in Civil Court". A reference was also made to the decision in Karibasappa Sivalingappa nalawadad (dead) by L. Rs v Tirukappa Nagappa Sortur, to the following effect: the question whether a particular person is a tenant or not is to be decided not by the Civil Court by the Land Tribunal concerned. If a question arises as to whether a particular person is a tenant or not in any suit or a proceedings, the Court is required to refer that issue to the concerned Land Tribunal for its decision and stay the proceedings till it receives the finding of the Land Tribunal on that point and after the receipt of the finding of the Land Tribunal on that point to dispose of the suit in the light of that finding. It is explicit in the language employed in Section 112-B (a) of the act, which within its compass includes all powers incidental to the determination of tenancy and, therefore, whether the tenant is a deemed tenant in terms of Section 24 of the Act by operation of law is a question which the Land Tribunal is, therefore, authorised to determine as one of its duties under Section 112-B of the act". ( 4 ) IT is contended that the question as to whether the defendant is a tenant entitled to protection under Section 132 of the Karnataka Land reforms Act arises in the proceeding, therefore the suit must have been stayed and the matter referred to the Tribunal. ( 5 ) ON the other hand, learned Counsel for the respondent pointed out the averment made in para 4 of the plaint which is as follows. "indisputable, the relevant document produced in the Courts below disclose that Form 7 filed by defendant 1 claiming occupancy rights of the suit land as against plaintiffs brother Kamalaksha padiyar had been rejected by it and the defendant had challenged the Land Tribunal order in this Court in W. P. No. 15935 of 1980 restricting his claim to 2 acres 12 guntas thereof only as could be seen from the copy of the said writ petition produced at annexure-D2". ( 6 ) HE also referred to the order passed by this Court in CRP No. 164 of 1993 on 6-1-1997, between the same parties wherein this Court has given a finding that the claim of occupancy right of the suit land, though filed by the defendant-husband was rejected. The claim is against the plaintiffs brother. In the light of the finding already rendered by this court that tenancy was yet to be proved and the same could not be a question to be decided in a suit for injunction, this CRP has been dismissed. Prima facie, in my opinion, the issue involved in a suit for injunction as to who is in actual possession; under what right the parties are in possession is riot the concern of the Court. Even a trespasser can be in possession and his possession cannot be disturbed. In this case, the plaintiff claims to be the owner and the defendant claims to be in possession of the property on the date of the filing of the suit. Even a trespasser can be in possession and his possession cannot be disturbed. In this case, the plaintiff claims to be the owner and the defendant claims to be in possession of the property on the date of the filing of the suit. If it is found that the plaintiff is in possession, certainly the owner's possession cannot be disturbed by anybody at all. If it is found that the defendant is in possession irrespective of the title or the right the defendant may claim, the suit must fail. It is the settled law that the question of title need not be gone into in a suit for injunction. The Civil Courts are concerned only with the question of possession on the date of filing of the suit. ( 7 ) IN this view, finding no merit, this civil revision petition is dismissed. --- *** --- .