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2016 DIGILAW 23 (KAR)

G. Gopal Krishna v. K. Basheer

2016-01-07

B.V.NAGARATHNA

body2016
JUDGMENT 1. Though this appeal is listed for admission, with the consent of learned counsel for parties, the appeal is taken up for final disposal. 2. The defendant in O.S.No.205/2005 has preferred this second appeal, assailing judgment and decree passed in R.A.No.71/2007 dated 25/2/2010 by Addl. Civil Judge (Sr.Dn.) at Hospet, allowing the appeal and decreeing the suit of the plaintiff by setting aside the judgment and decree dated 20/7/2007 passed by the Addl. Civil Judge (Jr.Dn.) & JMFC, Hospet, in O.S.No.205/2005. 3. For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court. 4. Respondent/plaintiff filed a suit seeking a decree of permanent injunction against the appellant herein in respect of suit property, which is land bearing Sy.No.46, measuring 1.84 acres, situated at No.10, Muddapura Village. According to the plaintiff, his grandfather by name Ismail Sab, was cultivating the said land as a tenant and thereafter the plaintiff. After the promulgation of the Karnataka Land Reforms Amendment Act, 1974, plaintiff has continued cultivating the land and has been in possession of the said land. Plaintiff has filed Form No.7A before the Assistant Commissioner at Bellary, seeking declaration of grant of land in his favour. At the same time, the defendant without having any right, title or interest over the suit property has also filed Form No.7A in respect of the said land, whereas, the defendant had no right to file the said application since he is the Dharmakartha of Koolikatti Anjaneya Swamy Temple Kampli (hereinafter referred to as ‘the temple’ for the sake of convenience) to which the suit land belongs. 5. That by order dated 7/4/2001, occupancy rights in respect of one acre of land out of 1.84 acres of land in the suit property was recognised and the land was granted in favour of the plaintiff, against which order dated 7/4/2001, the plaintiff preferred an appeal. Defendant also preferred an appeal against the said order dated 7/4/2001. The appellate tribunal, by order dated 14/6/2002, set aside order dated 7/4/2001 and directed the Assistant Commissioner, Hospet, to enquire into the matter afresh in accordance with law. In the meanwhile, plaintiff got mutated the record of rights pertaining to one acre of land in the said survey number in his name as per the order dated 7/4/2001. The appellate tribunal, by order dated 14/6/2002, set aside order dated 7/4/2001 and directed the Assistant Commissioner, Hospet, to enquire into the matter afresh in accordance with law. In the meanwhile, plaintiff got mutated the record of rights pertaining to one acre of land in the said survey number in his name as per the order dated 7/4/2001. Later, after the passing of order dated 14/6/2002, the defendant has also applied before the Tahsildar, Hospet, for mutation in respect of one acre of land in his name and the Tahsildar without considering the objections filed by the plaintiff, passed an order in favour of the defendant. An appeal was preferred by the plaintiff against the said order of the Tahsildar, which is pending enquiry. In the said appeal, the Assistant Commissioner, Hospet, has stayed the order of the Tahsildar, which is in operation. 6. When the matter stood thus, on 10/9/2005 and 25/9/2005, the defendant, with an intention to harvest the banana crop grown by the plaintiff in the suit property, tried to enter into the said property. The plaintiff prevented the high handed acts of the defendant by lodging a police complaint. But no action was taken on that complaint. Since the tenancy issue between the plaintiff and defendant is pending and having no other alternative and efficacious remedy to protect his possession over the suit land, the plaintiff approached the trial court by way of a suit seeking the relief of permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property. 7. On receipt of suit summons and court notice, defendant appeared through the counsel and filed written statement. Defendant admitted that he has filed Form No.7A in his name and that one acre out of 1.84 acres of land in the suit property was earlier granted in the name of the plaintiff by the Land Tribunal. It is also stated in the written statement that the suit property is registered in the name of Koolikatti Anjaneya Swamy Temple Kampli and the income from the suit property is solely appropriated for the maintenance of the temple and the members of the defendant’s family are Dharmakarthas of the said families. It is also stated in the written statement that the suit property is registered in the name of Koolikatti Anjaneya Swamy Temple Kampli and the income from the suit property is solely appropriated for the maintenance of the temple and the members of the defendant’s family are Dharmakarthas of the said families. But the defendant is personally cultivating the suit land as the present Dharmakartha of the Temple and neither Ismail Sab nor the plaintiff has occupied the said land as tenants at any point of time. In the circumstances, the defendant sought dismissal of the suit. 8. On the basis of the said pleadings, following issues were framed by the trial court for its consideration: i) Whether the plaintiff proves that he has been in actual physical possession and enjoyment of the suit property as on the date of this suit? ii) Whether the plaintiff further proves the threatened interference by the defendant? iii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed? iv) What order or decree? In support of his case, plaintiff examined himself as PW1 and two other witnesses as PWs.2 and 3 and produced 21 documents, which were marked as Exs.P1 to P21. Three witnesses were examined by the defendant, including himself and he got marked 20 documents as Exs.D1 to D20. On the basis of the said evidence, the trial court answered issue No.1 in the affirmative and issue Nos.2 and 3 in the negative and dismissed the suit of the plaintiff. 9. Being aggrieved by the judgment and decree of the trial court dated 20/7/2007, the plaintiff preferred R.A.No. 71/2007 before the first appellate court which on hearing the respective parties framed the following points for its consideration: i) Whether the plaintiff proves that he has been in actual physical possession of the suit property as on the date of the institution of this suit? ii) Whether the obstructions pleaded are true? iii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed? iv) Whether the impugned order calls for interference? v) What order? The first appellate court answered point Nos.1 to 4 in the affirmative and decreed the suit of the plaintiff by granting a decree of permanent injunction against the defendant by setting aside the judgment and decree of the trial court dated 20/7/2007. iv) Whether the impugned order calls for interference? v) What order? The first appellate court answered point Nos.1 to 4 in the affirmative and decreed the suit of the plaintiff by granting a decree of permanent injunction against the defendant by setting aside the judgment and decree of the trial court dated 20/7/2007. Being aggrieved by the judgment and decree of the first appellate court, the defendant has preferred this second appeal. 10. I have heard the learned counsel for appellant and learned counsel for respondent as well as perused the material on record. 11. It is contended on behalf of the appellant/defendant that the respondent/plaintiff claims to be in possession of the suit schedule property as a tenant. It is on the basis of the said tenancy, plaintiff sought a decree of permanent injunction against the appellant herein, who is one of the Dharmakarthas of the temple, by contending that he is in lawful possession of the property. Possession of the suit property by the plaintiff is solely on the basis of the tenancy said to have been in existence between the temple and the plaintiff. In such situation, the question of tenancy would arise in the suit. Under Section 133 (1)(a) of the Karnataka Land Reforms Act, 1961, (hereinafter referred to as ‘the Act’ for the sake of brevity), that question would have to be referred to the Land Tribunal for adjudication as under Section 132 of the said Act, the question of determination of tenancy by a civil court is barred. Placing reliance on a judgment of the Division Bench of this Court in the case of Mallayya Murigeyya Naduvinamath v. Puttappa Shivappa Mosali [AIR 1976 Karnataka 192] (Maallayya Murigeyya) he contended that the trial court on recording evidence dismissed the suit, but the first appellate court also did not take into consideration Section 133 of the Act and granted the relief to respondent/plaintiff. He contended that the question of tenancy is a matter, which has to be determined by a Special Tribunal constituted under the provisions of the Act and such being the case, the Civil Court has no jurisdiction to determine such a question. He contended that the question of tenancy is a matter, which has to be determined by a Special Tribunal constituted under the provisions of the Act and such being the case, the Civil Court has no jurisdiction to determine such a question. Relying on paragraph 7 of the decision of the Division Bench of this Court he contended that the judgments of both the courts would have to be set aside and the matter would have to be remanded to the trial court for taking steps under Section 133 of the Act. He, therefore, contended that substantial questions of law would arise in this appeal, which require admission of the matter for a detailed consideration. 12. Alternatively, it is contended that the possession of the suit land by the plaintiff was disputed, but the trial court held that the plaintiff/respondent herein was in lawful possession of the suit land, but there was no interference by the defendant and the suit was dismissed. This finding has been reversed by the first appellate court and the suit has been decreed, which is not correct. 13. Per contra, learned counsel for the respondent supporting the judgment of the first appellate court submitted that Section 133 can be invoked by the trial court only in a case where the question of tenancy would arise. The respondent herein filed a suit for a decree of permanent injunction only on the basis of his lawful possession of the suit land and threat of dispossession by defendant. The question of tenancy did not arise in the matter. All that the trial court ought to have considered was, as to whether the plaintiff was in lawful possession of the suit schedule property and as to whether there was any illegal interference by the defendant in respect of that property. The trial court while considering those aspects held that there was no interference by the defendant and that the plaintiff was in lawful possession of the suit schedule property and on that premise dismissed the suit. Being aggrieved by the dismissal of the suit, the plaintiff filed R.A.No.71/2007. The first appellate court rightly appreciated the fact that the defendant was illegally interfering with the possession of the plaintiff in respect of the suit property and granted the relief of permanent injunction against the defendant, which judgment and decree would not call for interference. 14. Being aggrieved by the dismissal of the suit, the plaintiff filed R.A.No.71/2007. The first appellate court rightly appreciated the fact that the defendant was illegally interfering with the possession of the plaintiff in respect of the suit property and granted the relief of permanent injunction against the defendant, which judgment and decree would not call for interference. 14. He also contended that as a tenant of the suit property and having regard to Section 77A of the Act, the plaintiff has filed Form No.7A before the Deputy Commissioner and the same is pending consideration before the Assistant Commissioner. He contended that when both the courts have held that plaintiff was in lawful possession of the suit schedule property, the question of tenancy would not arise in the instant case. He placed reliance on certain decisions of this Court namely, B.V. Subbachari v. B.K.Jogappa [ILR 1994 Kar. 2505] (B.V.Subbachari); Noor Mohammed Khan Gouse Khan Soudagar and another v. Fakirappa Bharmappa Manchenahalli and others [ AIR 1978 SC 1217 ] (Noor Mohammed Khan); Meghashyam Bhat v. Seetharamjois [ILR 2000 Kar. 2287] (Meghashyam Bhat) and Channabasappa v. Land Tribunal Chincholi [ 2009 (2) KCCR 1130 ] (Channabasappa) in support of his contention that Section 133 of the Act is not applicable in the matter. Learned counsel for the respondent also contended that no substantial question of law would arise in this appeal. Therefore, the appeal may be dismissed. 15. Having heard learned counsel for the parties and on perusal of the material on record as well the original records, in my view the appeal would have to be admitted to hear on the following substantial question of law: “Whether it was mandatory for the trial court to refer the matter to the Land Tribunal under Section 133 of the Act? In other words, whether the courts below were in error in adjudicating the matter on merits by ignoring Section 133 of the Act? The appeal is admitted on the aforesaid substantial question of law. 16. From the material on record, it is not in dispute that the suit property has been a subject matter of proceedings under the Act. Form No.7A has been filed by the plaintiff under Section 77A of the Act seeking grant of the land in question under the provisions of that Section. 16. From the material on record, it is not in dispute that the suit property has been a subject matter of proceedings under the Act. Form No.7A has been filed by the plaintiff under Section 77A of the Act seeking grant of the land in question under the provisions of that Section. The matter is pending adjudication before the Assistant Commissioner on remand from the Karnataka Appellate Tribunal as the earlier order passed by the Assistant Commissioner on 7/4/2001 has been set aside by the Tribunal. Thereafter the present controversy has arisen between the parties. The respondent/plaintiff claims possession of the suit land as a tenant of the temple. Though the defendant has filed Form No.7A, he is representing the temple herein as Dharmakartha. There has been no adjudication on Form No.7A as yet. The Trial Court while considering the rival pleadings and evidence of the parties, held that the plaintiff was in actual possession and enjoyment of the suit land, but there was no interference by the defendant and consequently dismissed the suit. The first appellate court has proceeded to consider the correctness of the judgment and decree of the trial court and has come to the conclusion that the plaintiff was in possession of the suit land as a tenant. In fact, the tenancy being inherited by the plaintiff from his grandfather Ismail Sab, which he claims is supported by filing of application in Form No.7A by the plaintiff under Section 77A of the Act. Therefore, the plaintiff claims to be in possession of the suit land as a tenant. But the first appellate court without going into the aspect of tenancy held that there was indeed interference by the defendant in respect of the plaintiff’s possession and therefore, granted a decree of permanent injunction as against the defendant. 17. In similar circumstance, in the case of Mallayya Murigeyya, the Division Bench of this Court has held that Section 133 of the Act would come into force. In fact, it is relevant to note the facts in Mallayya Murigeyya’s case as there are identical facts therein. The appellant therein was the defendant in the suit, O.S.No.68 of 1971 on the file of the Munsiff, Savanur. In fact, it is relevant to note the facts in Mallayya Murigeyya’s case as there are identical facts therein. The appellant therein was the defendant in the suit, O.S.No.68 of 1971 on the file of the Munsiff, Savanur. The respondent therein instituted the said suit for injunction restraining the appellant from interfering with his possession of the suit land on the ground that the land in question was an agricultural land and that he was in possession of the same as tenant under the appellant. Appellant therein denied that the respondent was his tenant and contended that he himself was in actual possession and enjoyment of the suit land. On the basis of the pleadings, the Munsiff framed several issues. One of them was “Whether the plaintiff was in lawful possession of the suit land on the date of the suit?” At the conclusion of the trial, the Munsiff passed a decree dismissing the suit. Aggrieved by the decree of the trial Court, the respondent therein filed an appeal before the Civil Judge, Hubli. The Civil Judge set aside the judgment and decree passed by the trial Court and remanded the suit to the trial Court to dispose it of in accordance with Section 133(2)(a) of the Act as it stood on the date of the decision of the lower appellate Court i.e., 28/8/1974. Aggrieved by the decision of the lower appellate Court, the appellant therein filed second appeal. The decision was rendered by the Division Bench on a reference made by one of the Hon’ble Judges of this Court. The Division Bench considered Section 133 of the Act and held at paragraphs 7 to 9 as under: “7. Section 133 of the Act as it stands now takes away the Jurisdiction of any civil or criminal court or officer or authority to decide the question whether a land is an agricultural land or not and whether a person claiming to be in possession is or is not a tenant of the said land from prior to 131974. Section 133 of the Act as it stands now takes away the Jurisdiction of any civil or criminal court or officer or authority to decide the question whether a land is an agricultural land or not and whether a person claiming to be in possession is or is not a tenant of the said land from prior to 131974. In a case where the plaintiff claiming to be a tenant of a land in question while admitting that the defendant is the owner prays for an injunction restraining the defendant from interfering with his possession, we are of the opinion that the question whether the plaintiff is a tenant or not would arise for consideration, since the suit would have inevitably to be dismissed if a finding is not given in the affirmative on the said question as admittedly the defendant is the owner of the property. The reason is not far to seek. It is well settled that no person in possession of land can sue for injunction against a true owner unless he is able to maintain that either under an agreement or under a statute he is entitled to the said relief even as against him. If he is not able to rely on any such agreement or statute his possession would be wrongful. No Court will by its order help a party who is found to be in wrongful possession as against the lawful owner (Alagi Alamelu Achi v. Ponnaiah Mudaliar [ AIR 1962 Mad. 149 ]). It follows that in order to decide the case on hand it is absolutely necessary to decide the question whether the plaintiff is a tenant or not for a just disposal of the case. Section 133 provides 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 suit land from prior to 131974, then the Court shall stay such suit insofar as such question is concerned and refer the same for decision. 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. 8. 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. 8. In view of the foregoing, we are of the opinion that in the case before us the question whether the plaintiff is or is not a tenant of the agricultural land in question from prior to 131974 arises for consideration and that question has to be referred to the Tribunal for its decision. The order of remand passed by the lower appellate Court has therefore to be affirmed. The appeal, therefore fails and it is dismissed. The trial Court shall refer the question to the decision of the Tribunal in accordance with the provisions of Section 133 of the Act as it stands now. 9. Appeal dismissed.” 18. In so holding, the Division Bench held that even in a suit for bare injunction, the question of tenancy would arise when such a suit is filed by a plaintiff who claims to be a tenant as against the true owner, for the simple reason that if the plaintiff fails to prove that he is in possession of the suit lands as a tenant, then the suit would have to be dismissed. There can be no injunction granted against the true owner, unless the plaintiff who is in possession is able to establish that he is in possession of that property either under an agreement or under a statute in which he is entitled to seek the relief against the true owner. In my view, the decision of the Division Bench and the reasons given in the said case clearly apply to the present case also. 19. Learned counsel for respondent has relied upon certain decisions of learned single Judges of this Court. But on referring to the decision of the Division Bench supra, it is held that the reasoning of the Division Bench does not appeal to them and therefore, ignoring the decision of the Division Bench, they have come to a conclusion that Section 133 is not applicable in a case where a person claiming to be the tenant of the suit property files a suit for injunction against the landlord or true owner. With respect, the decisions of the Hon’ble single Judges of this Court in B.V. Subbachari, Noor Mohammed Khan, Meghashyam Bhat and Channabasappa cannot be considered to be good law when those decisions are in defiance of the dictum of the Division Bench of this Court. Those decisions are contrary to the dictum of the judgment of the Division Bench of this Court in Mallayya Murigeyya’s case and are per incuriam as they are against the binding precedent in Mallayya Murigeyya’s case. [See for a detailed discussion on the doctrine of per incuriam vide Sri. G.M. Venkatareddy and another v. The Deputy Commissioner, Kolar District and others [ILR 2012 Kar. 3168] (G.M. Venkatareddy). Even the decision of the Hon’ble single Judge in Channabasappa has been rendered without reference to the decision of the Division Bench of this Court in Mallyya Murigeyya’s case referred to above. Therefore, sitting single, I am bound by the decision of the Division Bench squarely on the point and not by the contra decision of other Hon’ble Single Judges of this Court. 20. Further, a Division Bench of this court in K.Ravindranatha Shetty & another v. Smt. Maire Hengasu & another [ILR 2004 Kar. 1615] (K.Ravindranatha Shetty) considered the correctness of the judgment of the Division Bench in Mallayya Murigeyya’s case. In fact, a learned single Judge of this court following the decision of another learned single Judge in B.V.Subbachari had referred the matter to the Division Bench. The Division Bench in K.Ravindranatha Shetty held that the reference was misconceived as the judgment of the learned single Judge in B.V.Subbachari was exfacie contrary to the judgment of the Division Bench in Mallayya Murigeyya. The Division Bench also held that the view taken in Mallayya Murigeyya was subsequently reinforced by the opinion of the Full Bench in Koraga Marakala & another v. Kamala & others [1988 (1) KLJ 34] (Koraga Marakala). Therefore, the Division Bench held that the decision of learned single Judge of this Court in B.V.Subbachari was contrary to law declared by this court in Mallayya Murigeyya and Koraga Marakala and it was also held that all other judgments which had taken a view similar to B.V.Subbachari were no longer good law. Therefore, B.V. Subbachari and the judgment of this court in Meghashyam Bhat as well as Channabasappa are no longer good law. 21. Therefore, B.V. Subbachari and the judgment of this court in Meghashyam Bhat as well as Channabasappa are no longer good law. 21. In Ishwaragouda and others v. Mallikarjun Gowda and others [ (2009)1 SCC 626 ] (Ishwaragouda), the Hon’ble Supreme Court has held that while the Civil Court has exclusive jurisdiction to decide the partition suit, the Land Tribunal has the exclusive jurisdiction to decide the proprietary/possession rights over a particular piece of land, which may include the question as to whether the joint family or one of the members was a tenant. Distinguishing and clarifying Balawwa v. Hasanabi [ (2000)9 SCC 272 ] (Balawwa), the Hon’ble Supreme Court held that the Tribunal can only grant the relief of declaring the occupancy rights in favour of the applicant, provided the preconditions for the same are satisfied, namely, that the land was in possession of the tenant concerned on the relevant date. That being the position under the Land Reforms Act, the Tribunal has no jurisdiction to grant the relief of partition, the civil court itself has the jurisdiction to entertain the suit for partition. But when the question arises as to whether a person is in possession of the land as a tenant, the Tribunal alone under Section 48A read with Section 133 and not the civil court would have the jurisdiction to adjudicate on the matter vide Mudakappa v. Rudrappa [ (1994)2 SCC 57 ]. 22. In Ishwaragouda, it was also held that the civil court had no jurisdiction to decide as to whether the joint family or one of the members was a tenant and the first appellate court was justified, in view of ouster of jurisdiction of the civil court under Section 133 of the Act, in setting aside the judgment of the trial court to that extent. It was also held that this court was not right in setting aside the judgment of the first appellate court in the second appeal. 23. Thus, in a suit or other proceeding, where a question would arise as to in what capacity a person is in possession of the land and if either party claims that person is in possession of the agricultural land as a tenant, that issue would have to be enquired into by only the Land Tribunal and not by the civil court. 24. 24. The Division Bench, in Mallayya Murigeyya affirmed the order of the first appellate court, which had remanded the matter to the trial court by holding that Section 133 of the Act would apply to all such cases, irrespective of the fact that the person who claims to be the tenant is a plaintiff or a defendant. Consequently, a direction was issued to the trial court to refer the question to the decision of the Tribunal in accordance with the provisions 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 authority shall, in any suit, case or proceedings concerning a land [xxxx] decide the question whether such land is or not (2) Nothing in subsection (1) shall preclude the civil or criminal court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that subsection.” agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March, 1974; (ii) such court or officer or authority shall stay such suit or proceedings insofar 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 the 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 (1) and communicate its decision to such court, officer or authority. The decision of the Tribunal shall be final. In the circumstances, having regard to the identical facts in Mallayya Murigeyya and the present case, the judgments and decrees of the courts below are set aside and the matter is remanded to the trial court. The trial court shall refer the question of the tenancy of plaintiff to the decision of the Tribunal in accordance with Section 133 of the Act. 25. The trial court shall refer the question of the tenancy of plaintiff to the decision of the Tribunal in accordance with Section 133 of the Act. 25. At this stage, learned counsel for the respondent has once again brought to my notice the fact that reference to the Land Tribunal under Section 133 of the Act would be futile since the plaintiff has filed Form No.7A before the Assistant Commissioner. The said contention can be answered by holding that the jurisdiction of the Land Tribunal is conferred not only to deal with applications filed by persons claiming to be tenants who have filed Form No.7, but also to adjudicate on a reference made by the trial court to the Land Tribunal under Section 133 of the Act. Therefore, filing of Form No.7A before the Assistant Commissioner by the plaintiff is not relevant as far as the reference to the Land Tribunal by the trial court under Section 133 of the Act is concerned. 26. In the circumstances, the substantial question of law raised in the appeal is answered in favour of the appellant. The appeal succeeds. The judgment and decrees of the courts below are set aside and the matter is remanded to the trial court with a direction to refer the question to the decision of the Tribunal in accordance with Section 133 of the Act. 27. As the parties are represented by their respective counsel, they are directed to appear before the trial court on 22/02/2016, without insisting any separate notice by that court. Parties to bear their respective costs.