Judgment :- Huluvadi G. Ramesh, J. Petitioners have sought for issuance of a writ of certiorari to quash the order dated 20.6.2003 Annexure A passed by the Land Tribunal, Kumta in respect of the scheduled lands and also to issue a writ of mandamus to register the petitioners as occupants of the petition schedule lands under S.48A of the Land Reforms Act to an extent of 1/3rd share in all the petition schedule properties and to reject the application of 4th respondent Bhavani W/o Gangadhar Naik claiming exclusive right over Sy.No.506/1 C of Kumta Village. 2. Originally oneVenku Narayana Naik the grand father of the petitioners and the contesting respondents was in actual possession of the schedule lands as a tenant from 1931-32 and in this regard, RTC is produced at Annexure B. He had four sons by name Hanumantha, Masti, Devappa and Lakshman. Petitioners 1 to 3 are the sons of Hanumanth and petitioners 4 to 7 are the children of Laxman Venku Naik. Respondents 2 to 6 are the legal representatives of Smt. Parameswari Devappa Naik. One Parameshwari Masti Naik viz., w/o Masti another son of Venku Narayana Naik had filed Form 7 for occupancy rights in respect of the scheduled lands and she died issueless. All the four brothers i.e., sons of late Venku Narayana Naik remained undivided till their death. After their death, the family of Venku Narayan Naik remained undivided till date. As on 1.3.1974 and prior thereto the schedule lands were in actual possession and cultivation of the Joint Hindu family There was no partition by metes and bounds nor any one of the family member was in separate and exclusive possession of his property. Since the petitioners were in actual possession and enjoyment of the schedule properties as tenants along with the other family members including the contesting respondents, they had filed an application under S.45 of the Land Reforms Act seeking occupancy rights of all the petition schedule properties along with other members of the family. Simultaneously, even the contesting respondents also filed application seeking grant of occupancy rights exclusively to them. One Parameshwari Devappa Naik filed Form 7 with respect to Sy.No.506/1A3, 483/23A1, 483/ 2C and 483/3 in a single application and the second application in Form 7 was filed in respect of the property in Heravatta Village regarding Sy.Nos.17/1/B, 17/2, 17/3, 18, 19 & 20. One Parameshwari Devappa Naik filed Form 7 with respect to Sy.No.506/1A3, 483/23A1, 483/ 2C and 483/3 in a single application and the second application in Form 7 was filed in respect of the property in Heravatta Village regarding Sy.Nos.17/1/B, 17/2, 17/3, 18, 19 & 20. The 4th .respondent Bhavani Gangadhar Naik also filed separate Form 7 for occupancy rights in respect of Sy.No.506/1C of Kumta Village. By order dated 26.2.1994, the Land Tribunal after having registered all the applications of the petitioners as well as the contesting respondents, passed an order granting occupancy rights to the extent of 1/3rd share each. According to the petitioners, Parameshwarai Devappa Naik and Bhavani Gangadhar Naik made a false and frivolous claim by filing W.P.6866/1994 and 8564/1994 claiming exclusive rights in respect of certain lands. However, by a common order, both the writ petitions were dismissed on 9.9.1998. The same was challenged in two writ appeals and the order-dated 9.9.1998 was set aside and by order-dated 26.2.2002, the matter was remanded back to the Land Tribunal. Pursuant to the same, the Land Tribunal has passed the impugned order at annexure A. Hence, this petition on various grounds. 3. Heard the counsel representing the parties as well as the Government Pleader. 4. It is the argument of the petitioners' counsel that it is nobody's case that earlier a partition has taken place and rather, the status of the family remained joint as the name of Devappa Naik was shown as Kartha in the records. It is further argued that the presumption is always in favour of jointness. Accordingly, in this context, he has relied upon the decision in the case of Indra Narayan vs Roop Narayan & Ors AIR 1971 SC 1962 . It is further submitted that there could not have been any gift nor there was a deed registered in favour of his daughter Bhavani by Devappa Naik in the joint family property and rather the gift was created to defeat the rights of the petitioners. As per S.132 of the Land Reforms Act, the finding of the Tribunal based on the Civil Court's order is a nullity and the Civil Court is barred to give any finding. As per S.132 of the Land Reforms Act, the finding of the Tribunal based on the Civil Court's order is a nullity and the Civil Court is barred to give any finding. Further OS 70/1974 was filed wherein Bhavani was not the plaintiff and it was a suit for bare injunction and the suit was decreed in the year 1990 and that is not binding on the Land Tribunal in respect of the property in Sy.No.506/1. The fact that Devappa Naik had mortgaged the property in Sy.Nos.483/2, 483/2A, 483/3 and 506/1 in the capacity of a Manager by itself shows the joint holding of the petition properties and accordingly, the petitioners are entitled to their share of the property. As such, the order of the Land Tribunal contrary to the same is vitiated. Since all the properties are ancestral properties, the gift made in favour of Bhavani by Devappa Naik is against tenancy laws and more over, there is no such gift deed registered in her favour. As such, the Land Tribunal committed an error in granting occupancy rights in her favour. 5. Per contra, it is the argument of the counsel representing the respondents that from the year 1947 itself Devappa Naik is declared as a `protected tenant' during the life time of his father. It is for the parties alleging jointness to prove the same. Accordingly, in support of his argument, learned counsel relied upon the decision in the case of Srinivas Krishnarao Kango Vs Narayan Devji Kango & Ors AIR 1954 SC 379 And Mst. Rukhmabai Vs Lala Laxminarayan & Ors AIR 1960 SC 335 . It is his further case that the portion of the property given by Devappa in favour of the Municipality indicates the fact that he exclusively held the tenancy rights over the properties in question. Further, .learned counsel submitted that the Civil Court's order though not binding on the Land Tribunal, but the same has to be taken into consideration. In this context, learned counsel has relied upon the case of Chikkeputtagowda vs Gururaja Rao 1982 (2) KLJ SN 29. 6. It is his further argument that Devappa Naik was acting as Kartha only in respect of three of the properties but the tenanted lands were not mentioned since it was the exclusive property of Devappa. In this context, learned counsel has relied upon the case of Chikkeputtagowda vs Gururaja Rao 1982 (2) KLJ SN 29. 6. It is his further argument that Devappa Naik was acting as Kartha only in respect of three of the properties but the tenanted lands were not mentioned since it was the exclusive property of Devappa. Even Bhavani Gangadhar Naik has paid rentals to the landlord as a sub-tenant and accordingly contended that there is no error in the order of the Land Tribunal. 7. In the light of the arguments advanced, let me consider whether the impugned order passed by the Tribunal requires interference. 8. Petitioners' counsel has relied upon the provisions of the Bombay Tenancy & Agricultural Lands Act as regards the definition of `protected tenant' which says, if a person has been deemed to be a protected tenant under S.3, 3A and 4 of the 1939 Act referred to in Schedule I, he shall be recognized to be a protected tenant. As per S.3, he shall be a protected tenant in respect of any lands if he has held the lands continuously for a period of not less than six years immediately preceding the first day of January 1938 or the first day of January 1945 and he has cultivated such lands personally during the aforesaid period. Admittedly, even the case of the respondent is that the name of Devappa Naik was shown in the Hakkupatra that on 22.10.1966 he has mortgaged the property to Kumta Urban Bank in respect of four properties in Sy.Nos.483 and 506/1B. Similarly, another mortgage is dated 24.7.1968 in respect of six properties which does not in any way support the case of the respondent that she is the exclusive owner of the property in question. According to the respondent, Devappa is a `protected tenant' during 1947 as submitted by the respondent's counsel himself. If it is really so, as per the provisions of the Bombay Tenancy & Agricultural Lands Act, he should have been a tenant in possession and cultivation six years prior to 1938 or 1945 but he is declared as `protected tenant' as on 1947. If it is really so, as per the provisions of the Bombay Tenancy & Agricultural Lands Act, he should have been a tenant in possession and cultivation six years prior to 1938 or 1945 but he is declared as `protected tenant' as on 1947. Then necessarily it cannot be said that he was holding the property exclusively as a tenant and the father of Devappa Naik viz., Venku Narayana Naik should have been a `protected tenant' and if it is so the propel ties though registered in the name of Devappa Naik, should have been in favour of and on behalf of the joint family. 9. The Land Tribunal in its order has observed, except Sy.No.483/2K, 483/2A and 483/3, the other properties cannot be termed as joint family properties as there was no cogent evidence on record. Further, it has also observed that there is no such division of the properties among the joint family members. So, the very finding of the Tribunal is to the effect that there is jointness in the family as is argued by the petitioners. But, the Tribunal has also observed that if really all the properties are joint family properties including the schedule properties, immediately after the death of Venku Narayana Naik there would have been an entry. But there is only a Versa entry in respect of three of the properties mentioned above. There is subsequently an entry on 22.7.1966 but there is no mentioning of the disputed survey numbers. However, the Land Tribunal has noted that `protected rights' has been mentioned in favour of Devappa Venka Naik in Entry No.4973 and 3955 and no where it is entered in the capacity of a Manger of the joint-family. Based on the same, the Land Tribunal was of the view that the schedule properties were all separate tenanted lands of Devappa Naik and as such, he had a right to gift the property in favour of his daughter i.e., Sy.No.506/1 to an extent of 1.28 acres. Further it appears on the basis of the consent given by the applicants, the property in Sy.No.20 to the extent of 1.07 acres was granted in favour of Honamma Hanumanth Naik and legal representatives of Laxman Venku Naik. Further it appears on the basis of the consent given by the applicants, the property in Sy.No.20 to the extent of 1.07 acres was granted in favour of Honamma Hanumanth Naik and legal representatives of Laxman Venku Naik. Also, noting that property in Sy.No.483/2K, 2A 1 and 3 being herited properties and that residential houses of the legal representatives were there, the same has been granted in their favour thus depriving the share in the tenanted properties viz., Sy.No.506/K and 17. 10. In the decision in the case of Kiran Singh & Ors vs Chaman Paswan & Ors AIR 1954 SC 340 the Apex Court has held that the decree passed without jurisdiction is a nullity. The order of the Land Tribunal is based on the Civil Court decree. However, in this regard it is to be noted that the Land Tribunal has got powers to grant interim order like injunction and the Amendment Act bars the jurisdiction of the Civil Court. In view of the above ratio laid down by the Apex Court, the order passed by the Court, which is not competent, is non-est. 11. Although it is argued by the respondent's counsel referring to the judgment in the case of Gorie Gouri Naidu (Minor) & Anr Vs Thandrotho Bodamma & Ors AIR 1997 SC 808 inter-party judgment given by the competent court binds the parties even if it is erroneous and the fact remains that by virtue of the amendment act when the Land Tribunal is given power to adjudicate the rights even regarding possession, the parties have approached the Civil Court and obtained an order which has no jurisdiction. More over, the property in question is also not been defended by Bhavani Gangadhar Naik who is not a party to the original suit in the Civil Court. In such a situation, necessarily the finding given by the Civil Court by way of injunction does not bind the parties. Even though it is noted that Devappa Naik was a `protected tenant' as on 1947, he does not fall within the definition of `protected tenant' as provided under the Act. In the circumstances, the presumption is always in favour of jointness of the family. 12. Even though it is noted that Devappa Naik was a `protected tenant' as on 1947, he does not fall within the definition of `protected tenant' as provided under the Act. In the circumstances, the presumption is always in favour of jointness of the family. 12. Further, in the decision in the case of Makhan Singh (D) by LRs Vs Kulwant Singh AIR 2007 SC 1808 , although it is observed that the property could not be presumed to be a joint family property merely because of existence of Joint Hindu family, the fact remains that one who asserts has to prove that the property is a joint family property. In Srinivas Krishnarao Kango's case referred to supra, the three Judges Bench of the Supreme Court has held that the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family funds. The fact that when the respondents failed to prove they are protected tenants as mentioned in the enabling provision, though it is mentioned so as on 1.3.1948, it was for them to establish that he was a protected tenant as prescribed. The thrust of the argument of the respondent's counsel is that the property in the schedule lands is held by Devappa Naik exclusively as a tenant, was not established merely by producing some documents to the exclusion of the joint family. Might be that there would be an entry in his name on behalf of the joint family but that itself would not be sufficient to hold that he is holding the tenanted land exclusively to the interest of the joint family. Even the Tribunal has also not discussed the evidence on record properly. More over, it is for Devappa Naik or his legal representatives to establish the fact that the schedule properties are tenanted lands exclusively held by him in the circumstances of the case, in view of the ratio laid down by the Apex Court in Srinivas Krishnarao Kango's case. In view of the discussion made above the impugned order of the Land Tribunal is quashed. Matter is remitted to the Land Tribunal, Kumta for disposal in accordance with law and the compliance of the provisions contemplated in Rule 17 of the Land Reforms Rules, after affording opportunity to both the parties. Petition is allowed.