Karnataka High Court
Hombalamma And Others vs Smt. Ningamma on 3 September, 1998
Equivalent citations: ILR1999KAR1411, 1998(6)KARLJ25
Author: S.R. Venkatesha Murthy
Bench: Ashok Bhan, S.R. Venkatesha Murthy
ORDER S.R. Venkatesha Murthy, J.
1. The revision petitioners-plaintiffs challenge in this revision, the order of the Civil Judge, Srirangapatna dated 22nd of April, 1995 in O.S. No. 29 of 1991, making a reference to the Land Tribunal the additional Issue No. 1(A) for its adjudication on the claim of tenancy by the respondent-defendant in the suit.
2. The parties are referred to according to their array in the Trial Court.
3. The plaintiffs sought declaration of title to the plaint schedule property and possession of the same from the defendant.
4. The defendant set up a plea that her husband Hongaiah was tenant of the land from a time prior to 1-3-1974 and on his demise, the tenancy rights have devolved on her.
5. On such a plea being raised, the learned Civil Judge raised Issue No. 1(A) casting the burden of proof that Hongaiah, the husband of the defendant was a tenant of the property and thereafter the defendant became a tenant. By virtue of Section 133 of the Karnataka Land Reforms Act, 1961 (hereinafter called the Act) the learned Civil Judge made the reference of Issue No. 1(A) to the Land Tribunal now impugned before us.
6. The learned Civil Judge before whom the matter was argued opined that the observations made in M. Narayanappa v Hemavathi, relating to situations after 1-3-1974 pertaining to tenancy could not be adjudicated by the Land Tribunal, did not appear to lay down the law correctly and required reconsideration by a Larger Bench. That is how, this revision is before us.
7. In M. Narayanappa's case, supra, the following observation is made:
"20. Therefore, what is contemplated by Sections 133 and 132 of the Land Reforms Act is that if there is any existing tenancy right i.e., existing even after 1-3-1974, then the Civil Court shall have to frame a tenancy issue and refer that issue to the Tribunal. As already stated above, no tenancy except the one recognised by Section 5 of the Act, can be deemed to be in existence with effect from or after 1-3-1974. Therefore, when no tenancy right can be said to be existing after 1-3-1974, the question of framing a tenancy issue in suits filed after 1-3-1974 does not arise and therefore the question of referring such an issue to the Tribunal does not arise at all.
21. As already stated above, the plaintiff has clearly stated in para 2 of his plaint that he was a tenant under one Smt. Padmavathamma and later under one Smt. Hemavathi the first defendant, and that the tenancy ceased after coming into force of the Karnataka Land Reforms Act and the land vested in the State Government. The tenancy referred to by the plaintiff refers only to a past tenancy, which has ceased to be in existence with effect from 1-3-1974. Sri Kadidal Marijappa submitted that the plaintiff had not even filed an application in Form No. 7 under Section 45 of the Land Reforms Act for conferment of occupancy rights. Therefore, the question of existing tenancy does not arise at all in this case. Therefore, under these circumstances, the lower Court committed an error in framing a tenancy issue and referring the same to the Tribunal".
The correctness of this observation is doubted by the learned Single Judge.
8. In the instant case, the claim of tenancy of the defendant is sought to be disputed on the ground that on and with effect from 1-3-1974, all tenancy rights stood abolished by the operation of Section 44 of the Act. The husband of the defendant has not sought conferment of occupancy rights by making an application in Form No. 7 within time allowed by Law (30-6-1979) and therefore, the defendant or her husband could not raise a plea of tenancy as their right, if any, of securing occupancy rights stood extinguished. Even according to the defendant, her claim of tenancy as the widow of the deceased Hongaiah cannot be entertained by reason of the extinguishment of the alleged right of tenancy by her not claiming occupancy rights within the time limited by law. It was, therefore, contended that the learned Civil Judge 9ught to have taken note of this circumstance and refused to make a reference to the Land Tribunal as tenancy rights, if any, of the defendant was extinguished as laid down in Narayanappa's case.
9. The exclusiveness of jurisdiction of the Land Tribunal to deal with claims of tenancy as on 1-3-1974 came up for consideration in Saraswathi Shedthi v Appanna Maistry and Another. His Lordship Mr. Justice Venkataramiah (as he then was) has made the following observations at page 504:
"On coming into force of Karnataka Act of 1974 by which the original Section 44 of the Act was substituted by the new Section 44, all lands held by tenants immediately prior to the appointed day i.e., 1-3-1974 vested in the State Government and under Section 48A, which was inserted in the Act by the said amending Act it is open to the Tribunal to register such lands in favour of persons who were holding them as tenants prior to the appointed day subject to the restrictions and conditions provided in the Act after holding necessary enquiry into the validity of the claim of such persons. Sub-section (5) of Section 48A of the Act, imposes a duty on the Tribunal to hold an enquiry into the validity of all claims put forward before it in respect of any land for purposes of registration. It also requires the Tribunal to decide all questions which would arise when rival claims are put forward by different persons in respect of the lands and determine the person or persons in whose favour the lands have to be registered. We have held in Mudukappa v Rudrappa, that the Tribunal has the power to decide all issues incidental and ancillary to the question whether a person was a tenant or not under the Act. One of the questions which arises for consideration in this case is whether the tenancy pleaded by the respondents was binding on the appellant and whether by virtue of the said tenancy the respondents were entitled to defend their possession relying upon the provisions of the Act. We feel that the said question can be decided only by the Tribunal in view of the provisions of the Act referred to above and not by the Civil Court to decide whether a person claiming to be in possession of the land is or is not a tenant of the said land prior to 1-3-1974 and requires the Civil Court to refer the said question to the Land Tribunal for its decision. When the said question is referred to the Tribunal, it would be open to the owner of the land to contend that the person claiming to be a tenant was not a tenant within the meaning of the Act. In order to decide the question referred to it, the Tribunal has necessarily to decide all issues such as whether the land in question is an agricultural land, whether the person who claims to be a tenant is an agriculturist who cultivates the land personally and whether he holds it on valid lease, binding on its owner. If it is a case in which Section 4 of the Act is relied upon the Tribunal has to decide whether the person who claims to be a tenant is lawfully cultivating any land belonging to another person and is not a person falling under any one of the clause (a), (b) or (c) of that section. We are of the view that after the coming into force of Karnataka Act 1 of 1974, the only forum before which the question whether a person is a tenant of an agricultural land or not can be agitated for the purposes of the Act is the Land Tribunal constituted under the Act and that the Land Tribunal has the authority to decide all issues which are necessary to reach a decision on the above question".
It is clear from the above observations that the jurisdiction of the Land Tribunal to deal with a claim of tenancy is exclusive and the Civil Court would have no jurisdiction to decide the question relating to tenancy as stipulated under Section 133 of the Act.
10. The learned Counsel for the petitioner sought to rely upon the decision reported in Shidlingappa Mallappa and Another v Dhondappa Shidlingappa, in support of his contention that before a reference is made under Section 133 of the Act, the Civil Court is not precluded from initially examining the question as to whether prima facie relationship of landlord and tenant existed. The above observation was made in the context of the case on hand where the Court found as a fact that the defendants had taken a stand in the earlier proceedings that they were not tenants. Consequently, the decision essentially was on facts and no proposition of law was laid down that in each case, the Court must be prima facie satisfied of the existence of relationship of landlord and tenant before a reference is made under Section 133 of the Act. The decision in Shidlingappa's case, supra, in the circumstances, is of no help to the revision petitioner. The Land Tribunal has jurisdiction to determine whether person is a tenant or not and that jurisdiction is exclusive. The question of determining the existence of prima facie case for Reference under Section 133 of the Act does not arise.
11. In Sakrappa v State of Karnataka, the question as to the effect of non-filing a Form No. 7 within the time limited by law, the liability for eviction of such a tenant by the Government and competence of Land Tribunal to make a declaration that the tenanted land shall vest in the Government came up for consideration. It has been held in this case that by virtue of Section 44 of the Act, all tenanted land vest absolutely in the State Government and is not affected by failure of a tenant to make an application in Form No. 7 for conferment of occupancy rights.
12. Sub-section (3) of Section 45 of the Act specifically provides that the land held by a person before the date of vesting in respect of which he is not entitled to be registered as an occupant under this section shall be disposed of in the manner provided in Section 77 of the Act after evicting such a person. The fact that the defendant has lost her right to secure occupancy rights in accordance with Section 45 of the Act would not render the Reference infructuous inasmuch as the finding as to whether the land was tenanted or not on 1-3-1974 would assume importance in determining plaintiffs right to seek possession of the land in question. When once the land vest in the Government under Section 44 of the Act, on a finding that it was a tenanted land on 1-3-1974, all rights in respect of that land stand wiped out and the rights of the parties in relation to the land would be determined in accordance with the provisions of the Act. In the circumstances, determination of the dispute covered by Issue No. 1(A) should nevertheless be done by the Land Tribunal being vested with exclusive jurisdiction to decide the issue. In our opinion, the decision in Sakrappa's case, referred to above explains the correct legal position and the observation to the contrary in paras 20 and 21 of the decision in Narayanappa's case referred to above should be regarded as not laying down the law correctly and is over ruled.
13. In the circumstances, the revision is without merit and is dismissed.