Karnataka High Court
Booda Poojary vs Smt. Thoma Poojarthi And Others on 27 March, 1992
Equivalent citations: AIR1993KANT39, ILR1992KAR1359, 1992(2)KARLJ307, AIR 1993 KARNATAKA 39, (1992) ILR (KANT) 1359 (1992) 2 KANT LJ 307, (1992) 2 KANT LJ 307
Author: Shivaraj Patil
Bench: Chief Justice, Shivaraj Patil
ORDER Shivaraj Patil, J.
1. The following questions are referred for consideration and determination of the Full Bench :
(1) What is the scope of jurisdiction conferred upon the Land Tribunals under Section 112-B(b) of the Act in deciding the claim of occupancy right made under Section 48A of the Act ?
(2) Is it not open to the Land Tribunals to decide all questions that arise while considering Form No. 7 filed for the purpose of granting or refusing the occupancy right claimed therein ?
(3) When a jurisdiction is conferred upon the Land Tribunal to decide whether a person is a tenant or not, does it not take into its fold to decide all the controversies having a bearing upon the claim in order to decide the question whether a person is a tenant or not ? and (4) Which of the decisions of this Court in Mudukappa's case and Guruvappa's case or the decisions in Appi Belchadthi's case (1982 (2) Karnataka Law Journal 565 and Yellappa's case, (R.F.A. No. 26 of 1975 Dt. 11-6-1975) lay down the law correctly ?
2. The facts which are necessary for the purpose of determination of the questions referred are these :
One Thungu Poojarthy held leasehold rights in the lands in question; she had two daughters and a son, namely, Thaniyaru Poojarthy, Thomu Poojarthy and Chandu Poojary; Aithu Poojary was the husband of Thaniyaru Poojarthy and son-in-law of Thungu Poojarthy; Aithu Poojary had a son by name Booda Poojary; on the coming into force of the Karnataka Land Reforms Act, 1961, as amended by the Karnataka Act No. 1 of 1974 (for short the Act) Aithu Poojary filed form No. 7 before the Land Tribunal at Udupi claiming occupancy rights in all the 20 items of the lands in question stating that he had obtained on lease those lands in his individual capacity from one Narayanachari by executing a chalugeni lease in the year 1961-62; Chandu Poojary did not file Form No. 7, but Thomu Poojarthy filed Form No. 7 before the same land Tribunal for grant of occupancy rights over all the lands in question.
The Land Tribunal, on the basis of the evidence on record, by the order dated 28-9-1987, granted occupancy rights in respect of 14 items of lands totally measuring 2 acres 99 cents in favour of Aithu Poojary and granted occupancy rights in respect of the remaining 6 items of lands measuring in all 1 acre 20 cents in favour of Thomu Poojarthy. During the pendency of the appeals before the Appellate Authority Aithu Poojary died. The son Booda Poojary came on record. The Appellate Authority, on appeal, modified the order of the Land Tribunal, by its order dated 18-1-1989, and granted occupancy rights of all the 20 items of lands in favour of Booda Poojary and Thomu Poojarthy jointly as members of Aliyasanthana family, leaving the question as to what would be share of the son-in-law in the lands in question for decision of Civil Court, in a Original Suit said to have been filed and pending adjudication in the Civil Court. The Appellate Authority concluded that the leasehold rights were held by Thaniyaru Poojarthy and Thomu Poojarthy as members of the 'Aliyasanthana' and as such 'Aliyasanthana family' was the tenant of the lands in question. Booda Poojary filed C.R.P. Nos. 1084/89 and 3438/89 aggrieved by the order of the Appellate Authority in this Court.
3. The learned single Judge referred the above said Civil Revision Petitions to a Division Bench, on the ground that there is a conflict between the two decisions rendered by the two Division Benches of this Court (Guruvappa v. Manjappu Hengsu) and 1982 (2) Karnataka Law Journal 565 (Appi Belchandthi v. Sheshi Belchadthi). The Division Bench after consideration felt that two Division Benches of this Court have taken different views as to the scope of the jurisdiction conferred upon the Land Tribunal under the Act while considering the application filed in Form No. 7 and that there was no authoritative pronouncement as to the scope of the jurisdiction conferred upon the Land Tribunal under the Act while considering the application filed in Form No. 7. In this view of the matter, the reference is made for determination of the questions aforesaid by the Full Bench.
4. Sri. G. S. Visweswara, learned counsel for the petitioner, contended that the Land Tribunal as well as the Appellate Authority were not competent to decide whether the joint family was the tenant of the lands in question. If a question arises as to whether the property was of a joint family or it is an exclusive property of an individual member of the family the Tribunal as well as the Appellate Authority were not competent to decide the same. Consideration of such question falls out side the scope of the jurisdiction under S. 112-B. He also contended that once the Tribunal decides and confers occupancy rights on the joint family, it may not be open to an aggrieved party to contend otherwise in the Civil Court. He drew our attention to :
(1) ILR 1975 Karnataka 1499 (Korapolu Hengsu v. Sesu) (2) (Mudakappa v. Rudrappa) (3) 1982 (2) Karnataka Law Journal 565 (Appi Belchadthi v. Sheshi Belchadthi) (4)(Guruvappa v. Manjappu Hengsu)
5. Sri. K. S. Vyasa Rao, learned Counsel for respondent No. 1, submitted that in view of the decisions cited in the order of reference, the position of law may be made clear.
6. We think it appropriate and necessary to set out the relevant provisions of the Act and Rules hereunder, which will have bearing on the questions to be considered in this reference.
"Section 2(1) : "to cultivate personally" means to cultivate land on one's own account :
(i) to (iii) xx xx xx xx xx Explanation-I : xx xx xx xx xx Explanation-II : In the case of a joint_ family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family.
Section 2(17) : "Joint family" means in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence.
Section 2(34) : "tenant" means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes :
(i) a person who is deemed to be a tenant under S. 4.
The word 'Person' is not defined in the Act. Hence, the definition given in the General Clauses Act, which reads as follows, will apply :
"person shall include any Company or Association or Body of individuals, whether incorporated or not".
Section 44 : Vesting of land in the State " Government : (1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under S. 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government.
(2) Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensure, namely:--
(a) all rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances.
XX XX XX XX XX XX Section 45 : Tenants to be registered as occupants of land on certain conditions :
(1) Subject to the provisions of the succeeding sections of this Chapter, everyperson who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully Subject, such sub-tenant shall with effect on and from the date of vesting be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant protected tenant or other tenant or sub-tenant before the date of vesting and which he has been cultivating personally.
(2) to (3) xx xx xx xx xx Section 48A : Enquiry by the Tribunal, etc.:-- (1) Every person entitled to be register red as an occupant under S.45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act, be made before the expiry of a period of six months from the date of the commencement of S. 1 of the Karnataka Land Reforms (Amendment) Act 1978.
(2) On receipt of the application, the Tribunal shall publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the date specified in the notice. The Tribunal shall also issue individual notices to the persons mentioned in the application and also to such others as may appear to it to be interested in the land.
(3) to (4) xx xx xx xx xx xx (5) Where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal shall, after enquiry, determine by order, the person entitled to be registered as occupant and pass orders accordingly.
Section 112(B) Duties of Tribunal:
(a) to make necessary verification or hold an enquiry including local inspection and pass orders in cases relating to registration of tenant as an occupant under S. 48A.
(b) to decide whether a person is a tenant or not.
(bb) to (c) xx xx xx xx xx
(d) to perform such other duties and functions as are imposed on the Tribunal under the provisions of this Act or under any rule made thereunder.
Section 132 : Bar of jurisdiction : (1) No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Deputy Commissioner, an officer authorised under sub-sec. (1) of S. 77, the Assistant Commissioner, the prescribed authority under S.83 the Tribunal, the Tahsildar, the Karnataka appellate Tribunal or the State Government in exercise of their powers of control.
(2) No order of the Deputy Commissioner, an Officer authorised under sub-sec. (1) of S. 77 the Assistant Commissioner, the prescribed authority under S. 83, the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
Section 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 decide the question whether such land is or 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 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 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.
(2) Nothing in sub-sec. (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 sub-section.
Rule 17(1) : Procedure to be followed by the Tribunal: The Tribunal shall in respect of applications made to it follow the same procedure as specified for a summary enquiry under S. 34 of the Karnataka Land Revenue Act, 1964 subject to the condition that the record of the proceedings shall be maintained in a language understood by all its members".
7. We will now refer to and discuss various decisions touching the questions including the decisions referred to in the order of reference.
In I.L.R. 1975 Karnataka 1499 (Korapolu Hengsu v. Sesu) looking to the substance of the matter and having found that it was not a case of rival tenancy at all, the Court held that when the dispute is whether a particular item of the property is a joint family or individual property, it is only the Civil Court that has to decide such dispute.
In 1976 (1) Karnataka Law Journal 377 (AIR 1976 Kant 170) (Vaikunta Prabhu v. Roasari D'Almeda) the learned Judge keeping in view Ss.48A(5), 112(B)(b) and 133 concluded that the Tribunal alone has the jurisdiction to decide the question of rival tenancy set up by the parties observing that exclusive jurisdiction is conferred on the Tribunal to decide whether a person is a tenant or not and also to decide who among the rival claimants, is entitled for grant of occupancy rights. The learned Judge went on to state (at page Kant 172) :-
"If the Civil Court is held to have that power, it would lead to conflicting decisions on the same question, one by by the Tribunal and another by the Civil Court".
In (Mudakappa v. Rudrappa) the Division Bench of this Court having regard to various provisions of the Act repelled the contention of the learned Counsel for the appellant, that the question whether the lease hold rights belonged to the joint family or to Virupaxappa -- the father of the appellant could not be decided by the Land Tribunal as it was not one of the questions which was required to be decided by the Tribunal under the Act. In the said decision, the learned counsel for the appellant placed reliance in support of his argument on the decision of this Court rendered by a Division Bench in Kedari Yellappa Halagekar v. Jyotiba Yellappa Halagekar (R.F.A. 26/70 D.D. 11-6-1975). But, the Court did not agree with the view taken in that decision of Kedari Yellappa observing that the question which arose for consideration in that case was not seriously canvassed by either of the parties and the learned Judges who decided the case had not taken into consideration the amendments made in the Act by Karnataka Act No. 1 of 1974. That case arose out of a suit instituted in the year 1967 and it had been disposed of on the basis of the law as it stood then without reference to the change in the law The Court proceeded to say (at pages Kant 139 & 140; of AIR):
"When, as in this case, one person applies for registration of the lands as an occupant in his individual name and three others apply for registration of the said lands in their name along with the other applicants as joint occupants, it becomes the duly of the Tribunal to decide whether only one of them was the sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants. Without deciding the said question, it would not be possible for the Tribunal to make an effective order under S.48A of the Act." In order to decide the said question, it becomes necessary for the Tribunal to decide whether the tenancy in question was held by one of them exclusively or by all the applicants jointly. We have to hold that under S.48A, the Tribunal has that power having regard to the scope of that section".
In 1979 (1) Karnataka Law Journal 18 (Dhareepa v. State of Karnataka) the learned Judge held that where there are rival claims of tenancy they can be decided by the Tribunal by finding out who amongst them was the tenant as defined in the Act. It is stated, broadly speaking rival claims may fall into two categories :
(1) cases where each claims himself to be the tenant as defined in the Act.
(2) rival claims wherein each claims occupancy rights not on the basis that he was a tenant as defined in the Act, but as a success or-in-interest of the original tenant or as a member of a joint family, the lease hold rights being the property of such a family.
The learned Judge having referred to Mudakappa's case distinguished the same and observed that the rival claims may arise under circumstances different from those indicated in Mudakappa's case. A person may make his claim to a portion of the tenanted land as one of the heirs of the deceased tenant. A person may claim that he has acquired tenancy rights by survivorship. When such rights are denied the issues that arise would be entirely different involving not issues of tenancy, but complicated questions of personal and proprietary rights and any such decision on such questions may have far-
reaching consequences involving properties other than the tenanted lands also. Having considered various provisions, the Court concluded that the Tribunal has jurisdiction to decide rival claims of tenancy even where it becomes necessary to decide questions such as heirship, succession and existence of a joint family for the purpose of granting occupancy rights choosing one of the rival claimants and reserving liberty to other claimants to establish their rights, if any, in the land in question in a Civil Court of competent jurisdiction.
In 1982 (2) Karnataka Law Journal 565 (Appi Belchadthi v. Sheshi Belchadthi) the Division Bench of this Court having referred to the decision in the cases of Mudakappa and Dhareppa has stated thus in para 20 (at page 571):
"We will now consider the decisions relied upon by the Counsel on both sides. Mr. Acharya strongly relied upon the decision of this Court in Mudakappa v. Rudrappa (1978 (1) Kar LJ 459). Therein, one of the members of the family had claimed occupancy rights on the ground that he alone was the tenant of the land in disputes to the exclusion of others. But the other members of the family contended that they were jointly cultivating the land as lessees along with the applicant and the tenancy belonged to the joint family and that was not divided in the partition. The question between the parties therein was therefore, mainly based on the possession and cultivation of the tenanted lands and it was in that context this Court has rightly observed that it was an incidental question the determination of which was within_the powers of the Tribunal. It was observed therein that the question whether the tenancy was held by one of the members of the family exclusively or by all the applicants jointly would be a question incidental and ancillary to the main question to be decided, the main question being who was entitled to be registered as occupant. The question involved in the present case is quite different. The crux of the matter herein, as we have noticed earlier, is as to the right of the appellants to claim a share in the occupancy right granted in respect of the plaint B Schedule properties. The decision in Mudakappa v. Rudrappa has been exhaustively considered by Venkatesh J. in Dhareppa v. State of Karnataka (1979 (1) Kar LJ 18) wherein it was observed :
"Is it the intention of the legislature that all such issues like the existence of a joint family or coparcenary, whether a person is a member of a joint family; if he is, had he succeeded by survivorship to the property of such family; to what extent; and whether a person who claims to be an heir of the deceased tenant was in fact the heir; to what quantum of a share in the property of the deceased is he entitled to; and whether the will or the gift set up by a party is genuine or not etc. should also be decided by the Tribunal? If we look at the broad scheme of the Act that does not appear to be the intention at all. On the other hand, the intention of the legislature was to allow such complicated questions to be fought out by the contesting parties in Civil Courts".
The learned Judge after summarising the various provisions of the Act and the Rules, continued :
"Now while deciding the rights of rival claimants if it becomes necessary to decide questions such as heirship, succession and existence of a joint family, and the like, how should the Tribunal proceed with the matter? It cannot refer such issues to the Civil Courts. Even if the parties are already litigating in the civil Court re : their respective rights the Tribunal cannot await the decision from that court keeping the applications pending before it. The only course that it can adopt is to choose one of the rival claimants for conferment of occupancy rights reserving liberty to other claimants claiming occupancy rights before it to establish their rights, if any, in the land in question in a civil court of competent jurisdiction".
We entirely agree with the above view expressed by Venkatesh J. we may only add that a person's right to get a share in the occupancy right does not depend upon the liberty being reserved by the Tribunal to approach the Civil Court, because as seen earlier, such a right is not extinguished by not approaching the Tribunal. It is pertinent to remember that the grant of occupancy right by the Tribunal in the name of a given individual in respect of joint family tenanted lands will not have the effect of converting that into a separate property of that indivi-
dual. Nor the occupancy right granted in respect of a personal tenancy of that indivi dual would acquire a different character. In both the cases, the antecedent tenancy rights are enlarged into permanent occupancy rights by doing away with the landlord. To put it shortly, the Act converts the lease hold into freehold and does no damage to the existing rights of the occupant's family or any member thereof".
In 1983 (1) Karnataka Law Journal Short Notes Item No. 61 the Court has held that the Tribunal has no power to decide the shares of the heirs and apportion. The only course open to the Tribunal is to choose one of the rival claimants for conferring occupancy rights reserving opportunity to the other claimants to establish their rights in civil Courts.
In 1983 (2) Karnataka Law Journal Short Notes Item No. 27 the Court has stated that if the Tribunal conferred occupancy rights as a joint family property in favour of the joint family, the party aggrieved can establish his exclusive right in the said property in a regular suit.
In (Guruvappa v. Manjappu Hengsu) the Division Bench of this Court affirmed the view taken in Mudakappa's case and held that the Tribunal has the necessary jurisdiction and power to decide as to who is a tenant. A joint family can also be a tenant and that the Tribunal has the power to decide as to whether a joint family is a tenant or not under S. 112(B) of the Act.
In (Timmakka Kom Venkanna Naik v. Land Tribunal) the Division Bench of this Court has taken the view that when an application filed under S. 48A of the Act comes, up before the Tribunal, it has to necessarily examine the question as to whether the applicant is a tenant or not under S. 112(B)(b) and that it is the duty of the Tribunal to decide whether a person is a tenant or not. The Court proceeded to say that, therefore, it may be necessary for Land Tribunal to go into the question of genuineness or the validity of a will whenever such a will is the basis of a claim of a person, claiming to be a tenant.
8. In the light of various provisions of the Act and the decisions referred to above, it is clear that a joint family also could be a tenant. Under S.44, all lands held by or in the possession of tenants immediately prior to the date of commencement of the Amendment Act, other than the lands held by them under leases permitted under S. 5, stood transferred and vested in the State Government. Notwithstanding anything in any decree or order of or certificate issued by any Court, with effect on and from the date of vesting and save as otherwise expressly provided, certain consequences, including all rights, title and interest vesting in the owners of such lands and other persons interested in such lands, cease and vest absolutely in the State Government free from all encumbrances. Under S. 45 tenants are entitled to be registered as occupants subject to the provisions of the Act. Section 48A enables every person entitled to be registered as an occupant under S. 45 to make an application to the Tribunal for grant of occupancy rights. The Tribunal constituted under S. 48 of the Act, could enquire and determine applicant's claim or rival claim and pass order registering as occupant. The Tribunal under S.48A has to decide whether the land is a tenanted land and if so, whether a person is a tenant over the said land and in case of rival claims of tenancy among them who is entitled for grant of occupancy rights. Section 112(B) states as to the duties of Tribunal, among others, it has the duty (a) to make necessary verification or hold the enquiry and pass orders relating to registration of tenant as occupant under S. 48A and (b) to decide whether a person is a tenant or not. Under S. 132 a bar of jurisdiction is created stating no Civil Court shall have jurisdiction to settle, decide or deal w.ith any question which is by or under this Act required to be settled, decided or dealt with by the authorities mentioned in the section including the Tribunal. Under S. 133 of the Act no Civil or Criminal Court or Officer or Authority shall in any suit, case or proceedings concerning the 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 1st March, 1974. When such question arises, such Court or Officer or Authority shall stay the proceedings in so far as such question is concerned and refer the same to the Tribunal for decision. The Tribunal shall decide the question referred to it and communicate its decision to such Court, Officer or Authority and that the decision of the Tribunal shall be final. It is also made clear in the said section that the Civil or Criminal Court or the Officer or Authority is not precluded in respect of any , matter other than referred to in sub-sec. (1) of the said Section. These provisions make the position clear that in the matter of granting occupancy rights to a tenant and of deciding the question or issue relating to tenancy the exclusive jurisdiction is that of the Tribunal.
A combined reading of Ss. 48 A, 112(B)(b), 132 and 133 of the Act leaves no doubt whatsoever that the Civil Court cannot decide a question or issue relating to the tenancy. In this regard, the jurisdiction is specifically conferred on the Tribunal. In regard to grant of occupancy rights to a tenant, it is the Tribunal alone which is competent to go into the question of tenancy and decide whether the occupancy rights should or should not be granted to an applicant.
This being the position, an application made by a person exclusively claiming grant of occupancy rights as a tenant and another person making a rival claim of tenancy and grant of occupancy rights as an individual or on behalf of a joint family or for the benefit of a joint family can be considered only by the Tribunal and not by the Civil Court. Under S. 48A of the Act the Tribunal after holding enquiry has the jurisdiction to determine as to who is entitled for grant of occupancy rights among the rival claimants.
In the case of Mudakappa the Division Bench of this Court has in clear terms stated, having regard to the various provisions of the Act mentioned therein and keeping in view the scope of S.48A of the Act, that it is the duty of the Tribunal to decide whether only one of them was the sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants and without deciding the said question it would not be possible for the Tribunal to make an effective order under S. 48A of the Act. It is noted that there is no provision in the Act to refer such an issue for the decision of the Civil Court, Under S. 48A(5) the Tribunal has to hold an enquiry into all rival claims made in respect of registration of the occupancy rights pertaining to agricultural lands. Thus, it is clear that the Land Tribunal is competent to decide for the purpose of disposing of the applications under S. 48A the question whether the lease hold rights were held exclusively by the applicant or by the joint family.
In Guruvappa's case the Division Bench of this Court agreeing with the view taken by this Court in Mudakappa's case has stated that the word 'person' includes a joint family and in view of Explanation-II to S. 2 the Tribunal has the power to decide whether ajoint family is or is not a tenant under S. 112(B)(b) of the Act. It was also made clear in that case, that if there was any other person who was a member of the joint family, whose name was not included, his rights would not be affected as he could agitate and get his rights settled in a Civil Court claiming share in the property.
The Division Bench of this Court in the case of Appi Belchadthi in para 20 of the judgment has agreed with the observations made in Mudakappa's case, which case was exhaustively considered by Venkatesh J. in Dhareppa's case. From the discussion made in paras 10 to 20 of the said judgment it follows that it becomes necessary for the Tribunal to decide the rival claims and confer occupancy rights to a person whoever is entitled to including the joint family.
In Dhareppa's case Venkatesh J. expressed the view :
"Now while deciding the rights of rival claimants if it becomes necessary to decide questions such as heirship, succession and existence of a joint family, and the like, how should the Tribunal proceed with the matter? It cannot refer such issues to the Civil Courts. Even if the parties are already litigating in the civil court re : their respective rights the Tribunal cannot await the decision from that court keeping the applications pending before it. The only course that it can adopt is to choose one of the rival claimants for conferment of occupancy rights reserving liberty to other claimants claiming occupancy rights before it to establish their rights, if any, in the land in question in a civil court of competent jurisdiction."
The Division Bench in Appi Belchadthi's case entirely agreed with the said view. Once the occupancy rights are granted, the lease hold rights stand converted into free hold rights without damaging the rights of the occupant's family or any member thereof. It is always open to the member or members of the family to claim their share or rights in Civil Court over the lands on which occupancy rights are granted by establishing their right or interest in the property.
The Division Bench of this Court in the case of Timmakka Kom Venkanna Naik has also taken the similar view as to the scope of S. 48 A and the duty of the Tribunal to decide whether a person is a tenant or not.
Thus, looking to the text and context of the decisions in the cases of Mudukappa, Appi Belchadthi and Guruvappa, there appears to be no conflict among them. The legal position that emerges is, while deciding the rights of rival claimants, if it becomes necessary to decide questions incidental and or ancillary to the main question to be decided, the main question being who is entitled to be registered as an occupant, the Tribunal has to necessarily examine the question as to whether the applicant is a tenant or not and without deciding such question it cannot effectively discharge its duty of disposing of the applications filed under S. 48A of the Act. The grant of occupancy rights by the Tribunal to an individual in respect of joint family tenanted lands will not have the effect of converting that into a separate property of that individual nor the occupancy rights granted in respect of personal tenancy of that individual would acquire a different character. After grant of occupancy rights in respect of an agricultural land, the lease hold rights stand converted into free hold rights without damaging the existing rights of the occupants family or any member thereof. It is open to the parties to get their share, title or interest decided in the Civil Court in the property in respect of which occupancy rights are granted under S. 48A of the Act.
9. The argument of Sri G. S. Visveswara that the Tribunal had no jurisdiction to decide as to whether the lands in question were joint family properties or exclusive properties belonging to the persons, cannot be accepted because the Tribunal was not called upon to decide these rights, but the Tribunal was called upon to decide, only the rival claims of tenancy for the purpose of grant of occupancy rights, which was precisely done by the Tribunal and Appellate Authority in the instant case.
10. In the light of what is stated above, we answer the questions referred to us as follows :
(1) The Tribunals have jurisdiction to go into all questions bearing upon whether the applicant is a tenant or not under S. 112(B)(b) of the Act for the purpose of deciding the claim of occupancy rights made under S. 48 A of the Act.
(2) It is open to the Land Tribunal to decide all questions that arise while considering Form No. 7 for the purpose of granting or refusing the occupancy rights claimed therein.
(3) In view of the answers to questions 1 and 2, the answer to question No. 3 follows, that the Land Tribunal takes into its jurisdiction all controversies having bearing upon the claim in order to decide the question whether a person is a tenant or not.
and (4) In the light of the discussion made above with reference to the cases referred to in question No. 4, we are of the opinion there is no conflict among Mudukappa's case ; Guruvappa's case and Appi Belchadthi's case (1982 (2) Karnataka Law Journal 565). As to the decision in Yellappa's case (R.F.A. No. 26 of 1975 D.D. 11-6-1975) the position is made clear in para 11 in the case of Mudukappa, which holds good.
11. Order accordingly.