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2001 DIGILAW 106 (KAR)

RAVIRAJA SHETTY v. BHOOPALA SHETTY

2001-02-01

R.GURURAJAN

body2001
GURURAJAN, J. ( 1 ) THIS petition is filed by Raviraja Shetty, complaining about the grant of stay of the pending proceedings in the suit filed by him in q. S. No. 78/2000 against one Bhoopala Shetty in the Court of II Addl. Civil Judge (Jr. Dn.) and JMFC, Udupi. ( 2 ) THE plaintiff, Raviraja shetty filed a suit seeking for a bare permanent injunction against the defendant restraining him, his men and all other persons claiming through him or under him from interfering with the peaceful possession and enjoyment of the plaint a schedule property with the trees existing thereon and the immovable property situated in Shivalli Village covered by Sy. No. 238/ 17, Punja, middle portion measuring 2 cents with trees standing thereon. ( 3 ) DURING the pendency of the suit, the defendant filed IA No. Vseeking for stay of proceedings under Section 133 of the KLR Act on account of the pendency of a Writ Petition before this Court in w. P. No. 2841/1997. The said IA was opposed and after hearing, the trial Court was of the view that the pendency of the proceedings in this Court in WP. 2841/97 is a ground for stay of further proceedings in the pending suit. It is this order that is challenged before me by the plaintiff-petitioner. ( 4 ) MR. Acharya, learned Counsel raised two contentions. The first contention is that in a suit for bare injunction, there cannot be any stay of the proceedings in terms of Section 133 of the KLR Act. His second contention is that Section 133 is applicable only when there is no adjudication of a tenancy issue by the Tribunal. Elaborating his contention he invited my attention to the following judgments; 1) NARAYANAPPA vs K. R. SUBRAYASHETTY AND OTHERS in CRP No. 407/1994, 2) SHANKAR AND ANOTHER vs MADHUKAR BANDOPANT and ANOTHER. 3) CRP. No. 3529/1999 dated 16. 2. 2000 4) THOMAS ANTONY vs VARKEY VARKEY per contra, Sri Vyasa Rao, learned Counsel strongly relies on the Judgment of this Court MALLAYYA vs PUTTAPPA and shankarappa GOWDA vs INDUDHARA GOWDA. ( 5 ) AFTER hearing the learned. Counsel, I have perused the impugned order. Admittedly in the case on hand, the plaintiff-petitioner has filed a bare injunction suit against the respondent defendant. ( 5 ) AFTER hearing the learned. Counsel, I have perused the impugned order. Admittedly in the case on hand, the plaintiff-petitioner has filed a bare injunction suit against the respondent defendant. In those circumstances, as mentioned earlier the learned Judge has stayed the proceedings in terms of Section 133 of the Act. Section 133 of the Act reads as under;"133. Suits, proceedings etc. , involving questions required to be decided by the tribunal.- (1) Notwithstanding anything in any law for the time being in force (i) no civil or criminal Court or officer or 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 from prior to 1st March, 1974. (ii) such Court or officer or authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the tribunal for decision; (iii) all interim orders issued or made by such Court, officer or authority, whether in nature of temporary injunction or appointment of a receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be; (iv) the Tribunal shall decide the question referred to it under clause (i) and communicate its decision to such court, officer or Authority. The decision of the Tribunal shall be final. (2) Nothing in sub-section (1) shall preclude the civil or criminal court or other officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that subsection. " ( 6 ) SECTION 133 provides for a bar of jurisdiction in certain matters. As I see from Section 133 "the object of stay of the proceedings is to await a decision in terms of a reference to be made by the civil court to a tribunal. When there is already a decision on the tenancy issue by the Tribunal the civil Court cannot stay the proceedings on account of pendency of that issue in the Writ Petition, The Civil court need not stay its proceedings pending decision in a Writ petition filed by the tenant. If the said argument is to be accepted then the Court has to await a final decision till it reaches its finality. If the said argument is to be accepted then the Court has to await a final decision till it reaches its finality. That is not the object of the Act. The object of stay is only to have a decision of the tribunal in the matter. If there is already a decision then the question of stay by a civil Court does not arise in terms of section 133 of the Act. In the case on hand; a decision has already been arrived at by the tribunal. Therefore the learned civil Judge is wrong in staying the proceedings even after a decision by the tribunal in the matter. Therefore the second contention of Mr. Acharya, is well founded and I accept the same. In this connection I may usefully refer to the latest judgment of the Supreme Court in the case of Thomas Antony vs Varkey Varkey (Supra) wherein the Supreme Court has noticed in para 16 as under; the legislative scheme appears to be that at the trial stage adjudication on the question should be confined to one forum i. e. , the Tribunal and the civil Court should not go into the very same question again after the decision of the Tribunal is received by it. " ( 7 ) AGAIN in para 23, the Supreme Court has ruled:"the Civil Court can consider whether the plea raised by the party that he is a tenant or a kudikidappukkaran is a bonafide contention. I there is not even a remote possibility of the said plea being upheld by the land tribunal the civil Court can conclude that the question does not reasonable arise in the case. Such an unreasonabe plea would be raised with the idea to procastinate or prolong the litigation. The civil Court cannot afford to aid such sinister activities. " ( 8 ) BEFORE I take up the second contention regarding the jurisdiction of the Civil Court in a suit for bare injunction. I may refer to a few judgments in this regard. Such an unreasonabe plea would be raised with the idea to procastinate or prolong the litigation. The civil Court cannot afford to aid such sinister activities. " ( 8 ) BEFORE I take up the second contention regarding the jurisdiction of the Civil Court in a suit for bare injunction. I may refer to a few judgments in this regard. The Supreme Court in the latest judgment reported in B. V. SUBBACHARI vs B. K. JOYAPPA has ruled as under;"thus it can be seen that the defendants are not claiming tenancy under the plaintiffs, but under a third party, If the tenancy claim of the defendants is not under the plaintiffs, but under a third person, no question of tenancy can arise as between the plaintiffs and defendants. In such a case the only question is, as to whether the plaintiffs are the title holder in possession or the person whom the defendants claim to be their lessor has titte to the property. In these circumstances, the question of tenancy as between the parties does not arise and accordingly Section 133 of the Karnataka Land Reforms Act also is in applicable, I am supported in this view by the decision of a learned single Judge of this Court in Siddaiah and Others vs Malleshappa. Similar view was taken by another learned Single Judge of this Court in gundappa Achari vs. Seshappa Upadhyaya. In the light of the aforesaid two decisions and in the light of the fact that the defendants are not claiming any tenancy right plaintiff, I am clearly of the view that Section 33 of the Karnataka Land Reforms Act is not applicable to the case and the matter need not be referred to the Land Tribunal. "this Court again in the case of Shankar and Another vs. Madhukar Bandopant (supra) has ruled"in a suit for specific performance the Agreement Holders filed an application under Section 133 to stay further proceedings as they have filed an application under Section 77-A for grant of land and the matter is pending before the Deputy Commissioner. The Trial Court dismissed the application holding that Section 133 will not be attracted. The Trial Court dismissed the application holding that Section 133 will not be attracted. In Revision High Court held that under section 77-A the Deputy Commissioner only grants land if conditions mentioned in that Section are fulfilled but he does not grant occupancy rights to a tenant and hence the provisions of section 133 are not attracted. "again in the case of MALLAPPA NILAPPA SANJUNATTI vs R. N. CHAVAN7 it is ruled that in a suit for permanent injunction the question of tenancy is not relevant. The other decision reported in narayanappa vs K. R. SUBRAYASETTY is not applicable to the facts of this case because that was a case with regard to the maintainability of the suit and that was not a case of stay. However, from these judgments it is dear that what is required to foe considered in a suit for bare injunction in with regard to possession. ( 9 ) MR. Vyasa Rao, learned Counsel placed reliance on Mallayya vs Puttappa (Supra ). It is seen from the facts of that case that the respondent-plaintiff filed a suit for injunction restraining the defendants from interfering with their possession of the suit land on the ground that the land in question was an agricultural tend and that he was in possession of the same as tenant under the appellant. Defendant denied that the respondent was his tenants and he contended that he himself is in possession and enjoyment of the suit land. That was a case between a landlord and a tenant. Further referring to the provisions of the Act, the Court was of the opinion that when the question before the civil Court is whether the person, claiming to be in possession is or is not a tenant of the suited land from prior to 1. 3. 1974, then the Court shall stay such suit in so far as such question is concerned and refer the same for decision. In the case on hand admittedly there is already a decision available on record. Therefore this judgment is not applicable to the facts of this case. ( 10 ) MR. Vyasa Rao also places reliance on a judgment of this court reported in SHANKARAPPA GOWDA vs INDUDHARA GOWDA (Supra ). That was a case for permanent injunction against the petitioners therein. Therefore this judgment is not applicable to the facts of this case. ( 10 ) MR. Vyasa Rao also places reliance on a judgment of this court reported in SHANKARAPPA GOWDA vs INDUDHARA GOWDA (Supra ). That was a case for permanent injunction against the petitioners therein. The contention of the first defendant in that case was that the first defendant has filed a declaration in Form 7 (A) on 17. 12. 1998 before the Deputy Commissioner, Shimoga and the matter is pending consideration and therefore he has sought for stay of the further proceedings before the Civil Court. The learned Judge in that case ruled that provisions of Section 133 are not attracted to the cases arising out of Section 77-A of the Act. The Court specifically ruled that Section 133 of the Act is inapplicable to the facts of the case and it was observed that in order to avoid conflict between decisions of the Civil Court and the decision of the Deputy commissioner, it is appropriate that the proceedings before the Civil court should be stayed till the disposal of the application in Form no. 7a filed by the petitioner. This case is also not of concluded proceedings as in the case on hand, therefore this judgment is not applicable to the facts of the case on hand. ( 11 ) FROM the three judgment referred to by me, it is clear to me that when there is already a concluded decision by the tribunal on a tenancy issue. Mere pendency of a Writ Petition by itself cannot be a reason for invoking the power under Section 133 of the Act. If there is not even a remote possibility of the said plea being upheld by the land tribunal, the Civil Court need not stay the proceedings in terms of Section 133 in all the cases and any such stay would unnecessarily prolong the litigation. Grant of stay depends on the facts of each case. In this view of the matter, this petition is allowed. The order of the learned trial Judge is setaside. The trial Court is directed to proceed further in accordance with law. No costs. --- *** --- .