Karnataka High Court
Moulasaheb Lalesaheb Mulla vs Aminsha on 16 July, 1991
Equivalent citations: ILR1992KAR247, 1991(4)KARLJ125
JUDGMENT Murlidher Rao, J.
1. The unsuccessful defendant in O.S. No. 186 of 1974 and appellant in R.A. No. 74 of 1980 has filed this appeal. Respondent was the plaintiff. She filed a suit for specific performance alleging that the defendant had agreed to sell RS No. 90/2 and his share in RS No. 139 of Alahalli village for Rs. 6,000/-. In pursuance of that agreement he received a sum of Rs. 3,200/- in two instalments. The period stipulated for execution of the sale deed was three years. Plaintiff instituted the suit on 9-7-1974 alleging that the defendant went on postponing the execution of the sale deed. Ultimately she issued a notice on 24-6-1974 which was replied by the defendant on 1 -7-1974 thereby refusing to honour the agreement of sale. Plaintiff sought for a decree of specific performance of contract in the alternative for the refund of the amount with costs and damages. Defendant denied the agreement of sale and maintained that the plaintiff is not an agriculturist by profession, as such she is not entitled to purchase the lands which are the subject matter of the agreement of sale. Several other contentions were raised by the defendant which are not necessary to be adverted to in this appeal.
2. On the pleadings the trial Court framed the issues as found in Paragraph 4 of its Judgment. In the light of the arguments advanced by Sri K.I. Bhatta, learned Counsel for the appellant, only issue which needs to be reproduced is Issue No. 5 which reads thus:
"Whether plaintiff is not an agriculturist and not entitled to purchase the land?"
3. After the evidence when the case was heard, learned Counsel appearing for the plaintiff and the defendant submitted that this question may be kept open and the parties would agitate the matter before proper forum at appropriate time. The finding recorded by the trial Court in this regard reads thus:
"16) Issue No. 5:- It is the contention of the defendant that plaintiff is not an agriculturist nor an agricultural labourer. She is not entitled to purchase any agricultural land. This contention is taken in view of the Section 80 of the Karnataka Land Reforms Act. That Section prohibits the purchase of land by any non-agriculturist. The sale in favour of non-agriculturist is void. But under the provisions of said Act this Court has no jurisdiction to decide whether the plaintiff is agriculturist or not. Moreover the question whether the sale is void or not cannot be decided by this Court on the ground that plaintiff is not agriculturist. But both Counsel for plaintiff and defendant have submitted that this question may be kept open and parties will agitate the matter before proper forum at appropriate time. They have also agreed that this issue need not be decided by this Court. On behalf of the plaintiff it is submitted that this question arises only after the execution of the sale deed. And after the execution of the sale deed if the Competent Authority feels that the sale is invalid the authority can set aside the sale. Further it is also submitted on behalf of the plaintiff by the time the sale deed is executed the plaintiff may acquire some other land and become agriculturist or she may seek permission of the Competent Authority to purchase the land. So in view of the above submission this issue is not decided and kept open. The parties may agitate the matter before the proper authority at proper time, Hence this issue is not answered."
Since Issue No. 5 was virtually given up the trial Court proceeded to record findings on other issues and answering the same in plaintiff's favour decreed the suit with costs.
4. As against the said Judgment and decree the unsuccessful defendant filed R.A. No. 74 of 1980 before the Civil Judge, Belgaum. In the grounds of appeal no contention was raised regarding the application of the provisions of the Karnataka Land Reforms Act nor the ground which was the subject matter of Issue No. 5 referred to above were urged. Considering the grounds raised in appeal, learned Appellate Judge, concurring with the findings of the trial Court, dismissed the appeal. Hence this Second Appeal.
5. Since the findings on the issues are concurrent, this Court is precluded from going into the correctness of those findings. Rightly, therefore, Sri K.I. Bhatta learned Counsel for the appellant restricted his arguments to the question formulated at the stage of admission. It reads thus:
"Whether the decree of the Courts below directing specific enforcement of an agreement for sale of agricultural lands offends the provisions of Section 80 of the Karnataka Land Reforms Act, 1961, in the absence of a finding as to the eligibility under the Act of the plaintiff to be a purchaser?"
Therefore, the only question that calls for my determination is the competence of the Civil Court to pass a decree for specific performance in view of the provisions contained in the Karnataka Land Reforms Act. Since this point had been given up in the trial Court there is no discussion by the trial Judge. Similarly, as this point was not urged in the Appellate Court there is no discussion on this aspect.
6. Looking at the conduct of the appellant-defendant in giving up this point and not urging the same in the first Appellate Court, he is not entitled to urge the same in this Second Appeal. There is no justifiable reason why, having given up the point, he should be permitted to do so. However, Sri K.I. Bhatta, learned Counsel for the appellant submitted that the point raised by him stands covered by the Decision of the Supreme Court in GUNDAJI SATWAJI SHINDE v. RAMCHANDRA BHIKAJI JOSHI, and as the question goes to the root of the matter, he should be permitted to urge this point, particularly because the learned admission Judge while admitting the Second Appeal has formulated this question treating it a substantial question of law that arises for consideration in this Second Appeal.
7. So far as the provisions of the Karnataka Land Reforms Act applicable to a suit of specific performance of contract is concerned, it is no longer res Integra. In SHIVANNAPPA SIDRAMAPPA PRANTUR v. VIRUPAXAPPA ALLAPPA BAGI, ILR (Kar) 1980(1) 702 a Division Bench of this Court held thus;
"8. Therefore, it is clear that in the suit for specific performance filed by the respondent, the only question for consideration by the Court is as to whether there was a valid agreement to sell agricultural lands and whether it was enforceable and it was a fit case for granting a decree for specific performance, If the plaintiff is an agriculturist, his purchase of the agricultural lands would not be hit by Sub-section (1) of Section 80. If he is not an agriculturist, it is open for him to obtain permission from the Competent Authority under the proviso to Sub-section (1) of Section 80 of the Act. If he purchased the land, not being an agriculturist, without securing permission as provided under the proviso to Sub-section (1) of Section 80 of the Act, he will take the consequence of an action which might be taken under Section 83 of the Act. In any event, the issue as to whether the respondent is an agriculturist or not is not germane to the suit. Therefore, the issue sought to be raised by the petitioner to the effect that the Court below had no jurisdiction to decide the issue as to whether the plaintiff was an agriculturist or not, is not relevant as the latter is not an issue relevant for the trial of the suit filed by the plaintiff. Therefore, in our view the trial Court was right in declining to frame the additional issue as prayed for by the petitioner."
In NINGAPPA DURGAPPA v. HANUMANTAPPA BALAPPA AND ANR., 1982(1) KLJ 419 learned Single Judge - Justice N.D. Venkatesh, as he then was, after considering various provisions of the Karnataka Land Reforms Act, observed that there is no bar in Section 80 of the Karnataka Land Reforms Act (the Act for short) which prohibits performance of the agreement of sale in respect of an agricultural land. Dealing with the scope of Section 80 of the Act, learned Judge observed thus:
"What it prohibits is sale or mortgage of any land or interest therein in favour of a person who is not an agriculturist or who is not an agricultural labourer. But even in a case where a non-agriculturists intends to take up agriculture the concerned Assistant Commissioner, as provided in the proviso to Sub-section (1) of Section 80, can grant permission to purchase the land he intends to purchase and subject to the conditions enumerated in Clauses (i) and (ii) of the proviso. It is true that Section 23 of the Indian Contract Act prohibits an agreement which is forbidden by law or an agreement which if permitted, would defeat the provisions of law or is fraudulent or is opposed to public policy. But, as is clear from the wordings of Section 80 that provision does not prohibit an agreement of sale between the land owner and a non-agriculturist. What it prohibits is a non-agriculturist of the categories specified in that Section purchasing an agricultural land. But, he too can purchase after obtaining necessary permission from the statutory authority as provided in the proviso referred to above. In the circumstances, the agreement in question cannot be construed as one opposed to public policy or contrary to law."
(Underlining is mine) Further, dealing with Section 132 of the Act, the learned Judge observed thus:
"The Assistant Commissioner, under Section 80 comes into the picture only when there is a completed transaction and he is of the view that the person who has purchased the land was not an agriculturist. In such a situation, if the question arises whether the purchaser of agricultural land was or was not an agriculturist, then and then only it will be within his jurisdiction to decide that question in order to take appropriate action under Section 80. But, if a question arises, in a suit of this nature, whether the plaintiff, who had entered into an agreement to purchase an agricultural land, was or was not an agriculturist, such an issue is not required to be referred to the Assistant Commissioner. There is no enabling provision conferring such a power on the Assistant Commissioner. The only provision which provides for a reference of the relevant issue arising under the Act to the appropriate authority constituted under the Act is Section 133. As can be seen from Section 133(extracted above) only two questions whenever they arise in any cause pending before a Civil Court, Criminal Court, Officer or Authority, that will have to be referred to the Tribunal constituted under the Act. Those two questions are:
(i) whether such land is or is not an agricultural land? and
(ii) whether the person claiming to be in possession of the land is not a tenant from prior to 1-3-74?
Admittedly these are not the questions that have arisen in the instant case. Therefore, the learned Munsiff could not have referred the 3rd additional issue raised by him to any authority constituted under the Act."
Examining yet another aspect of the matter, a Bench of this Court, to which I am a party in JOSE v. ANANTHA BHAT, after referring to the earlier Decision of this Court and a Full Bench Decision of the Gujarat High Court, observed thus:
"9. Therefore, we have independently examined the scope of Section 79A(1) of the Karnataka Land Reforms Act. Under Sub-section (3) thereof acquisition by a person who has assured income of Rs. 12,000/- or more per annum from sources other than agriculture would not be entitled to sustain such acquisition and as such the acquisition would be null and void. Though Sub-sections (3) and (1) read together do convey that impression, such acquisition is not ipso facto null and void. It will become void, only when action is initiated suo moto or on the complaint of others as provided under Section 82 of the said Act and after enquiry being held by the specified officer under Section 83 of the Act if a declaration to that effect is made. Therefore, the Civil Court which is not competent to determine in terms of Section 132 of the Land Reforms Act that question as to the illegality or legality of such a transaction cannot create a bar for itself to enforce the contract on the plausible result on such enquiry under Section 82 of the Land Reforms Act."
(Underlining is mine) In MRS. SUSHILA A. DASS v. MRS. MARY BOLGER, a Bench consisting of PPBJ & MRKJ, after quoting relevant provisions of the Karnataka Land Reforms Act and the provisions of the Bombay Tenancy and Agricultural Lands Act, and, following the Decision of the Supreme Court in JAMBURAO v. NEMINATH, by which their Lordships affirmed the Ruling of this Court reported in 1965(1) Mys.L.J. 442, Neminath v. Jamburao held that it is for the authorities conferred with powers under the Karnataka Land Reforms Act to examine the legality of the transactions and not for the Civil Court. It is also held that even if there is violation of Section 79A of the Karnataka Land Reforms Act the agreement in question to sell the agricultural land will not become void and consequently unenforceable. The legal position having been so settled by series of Decisions of this Court, there is little scope for any argument to be constructed with reference to the provisions of the Karnataka Land Reforms Act. But Mr. K.I. Bhatta, learned Counsel for the appelIant, contended that in none of the cases referred to above, the Judgment of the Supreme Court in Gundaji Satwatji Shinde v. Ramachandra Bhikaji Joshi referred supra was considered and therefore the matter needs re-examination. The facts of that case are that "the plaintiff claimed specific performance of a contract dated 15th December 1965 coupled with supplementary agreement dated 26th April 1966 for sale of agricultural land. This suit was resisted by the defendant, inter alia, contending that the land which was subject matter of contract was covered by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 and as the intending purchaser, the plaintiff was not an agriculturist within the meaning of the Act, Section 63 of the Tenancy Act prohibited him from purchasing the land and, therefore, as the agreement was contrary to the provisions of the Tenancy Act the same cannot be enforced." In the trial Court plaintiff had produced a Certificate at Exhibit 78 issued by the Mamlatdar certifying that the plaintiff was an agricultural labourer and the bar imposed by Section 63 of the Tenancy Act would not operate. Trial Court held that the Certificate Exhibit 78 had no evidentiary value and was not valid. Trial Court proceeded to record a finding that the plaintiff was not an agriculturist. Accordingly, plaintiff's suit was dismissed. The unsuccessful plaintiff appealed to the High Court, which agreeing with the finding of the trial Court with regard to the validity of Certificate Exhibit 78, dismissed the appeal. Against this Judgment, Civil Appeal No. 1280 of 1989 was preferred before the Supreme Court. Considering various provisions of the Bombay Tenancy and Agricultural Lands Act (B.T & A.L. Act for short), their Lordships observed that the issue whether the plaintiff is an agriculturist or not arises under the provisions of the B.T. & A.L. Act and it is the authority competent under the said Act who can determine that issue. Under Section 85A of the said Act, such an issue has got to be referred to the Competent Authority and the Civil Court will have to stay the suit. The following observations of their Lordships make this position clear:
"Therefore, if a person intending to purchase agricultural land files a suit for enforcing a contract entered into by him and if the suit is resisted on the ground that the plaintiff is ineligible to buy agricultural land, not for any other reason except that it is prohibited by Section 63 of the Tenancy Act, an issue whether plaintiff is an agriculturist would directly and substantially arise in view of the provisions of the Tenancy Act. Such an issue would indisputably arise under the Tenancy Act though not in. a proceeding under the Tenancy Act. Now, if, Section 85 bars the jurisdiction of the Civil Court to decide or deal with an issue arising under the Tenancy Act and if Section 65A imposes an obligation on the Civil Court to refer such issue to the Competent Authority under the Tenancy Act, it would be no answer to the provisions to say that the issue is an incidental issue in a properly constituted civil suit before a Civil Court having jurisdiction to entertain the same. In fact Section 85A comprehends civil suits which Civil Courts are competent to decide but takes note of the situation where upon a contest an issue may arise therein which would be required to be settled, decided or dealt with by the Competent Authority under the Tenancy Act, and, therefore, it is made obligatory for the Civil Court not only not to arrogate jurisdiction to itself to decide the same treating it as a subsidiary or incidental issue, but to refer the same to the Competent Authority under the Tenancy Act. This is an inescapable legal position that emerges from a combined reading of Sections 85 and 85A. This can be clearly demonstrated by an illustration. Plaintiff may file a suit on title against a defendant for possession of land on the allegation that defendant is a trespasser. The defendant may appear and contend that the land is agricultural land and he is a tenant. The suit on title for possession is clearly within the jurisdiction of the Civil Court. Therefore, the Civil Court would be competent to entertain the suit. But upon the defendant's contest the issue would be whether he is a tenant of agricultural land. Section 70(a)(ii) read with Sections 85 and 85A would preclude the Civil Court from dealing with or deciding the issue. In a civil suit nomenclature of the issue as principal or subsidiary or substantial or incidental issue is hardly helpful because each issue, if it arises, has to be determined to mould the final relief. Further, Sections 85 and 85A oust jurisdiction of Civil Court not in respect of civil suit but in respect of questions and issues arising therein and Section 85A mandates the reference of such issues as are within the competence of the Competent Authority. If there is an issue which had to be settled, decided or dealt with by Competent Authority under the Tenancy Act, the jurisdiction of the Civil Court, notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the Competent Authority under the Tenancy Act. By such camouflage of treating issues arising in a suit as substantial or incidental or principal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted. This unassailable legal position emerges from the relevant provisions of the Tenancy Act,"
Farther in paragraph 16 it was observed thus:
"The distinguishing feature of the present case is that Section 63 bars purchase of agricultural land by one who is not an agriculturist and, therefore, the disqualification is at the threshold and unless it is crossed the Court cannot decree a suit for specific performance of contract for sale of agricultural land and in order to dispose of the contention which stands in the forefront a reference to the Mamlatdar under Section 70 read with Sections 85 and 85A is inevitable."
(Underlining supplied) Finally it was held that the issue 'Whether a person is an agriculturist or not?' being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the Civil Court to refer the issue to the Competent Authority under the Tenancy Act and the Civil Court has no jurisdiction to decide or deal with the same. In view of these observations their Lordships allowed the appeal filed by the plaintiff and the suit was remanded to the trial Court to proceed further in, accordance with law and in the light of the observations made in the Judgment. In other words, their Lordships directed the trial Court to refer the issue of plaintiff being an agriculturist to Mamlatdar under the B.T. and A.L. Act and thereafter to proceed to decide the suit in accordance with law.
8. On the strength of this Judgment Mr. K.I. Bhatta contended that the provisions of the Karnataka Land Reforms Act being in pari materia with the provisions of the B.T. & A.L. Act, the Decision of Supreme Court is applicable on all fours to the facts and circumstances of this case and, therefore, in view of the contention raised by the defendant which became a subject matter of Issue No. 5, the matter should be remanded to the trial Court to make reference to the Competent Authority under the Karnataka Land Reforms Act to decide whether the plaintiff was an agriculturist or not.
10. In view of the arguments so constructed, it becomes necessary to refer to the relevant provisions of the Karnataka Land Reforms Act. The word 'agriculturist' which occurs in Section 80 is defined thus in Section 2(3);
"(3) "agriculturist" means a person who cultivates land personally."
Section 80 reads thus:
"80. Transfers to non-agriculturists barred. (1)(a) No sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift or exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee shall be lawful in favour a person,
(i) who is not an agriculturist, or;
(ii) who being an agriculturist holds as owner or tenant or partly as owner and partly as tenant land which exceeds the limits specified in Section 63 or 64; or
(iii) who is not an agricultural labourer; or
(iv) who is disentitled under Section 79A or Section 79B to acquire or hold any land;
Provided that the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an Assistant Commissioner authorised by the State Government in this behalf in respect of any area may grant permission for such sale, gift or exchange, to enable a person other than a person disentitled to acquire or hold land under Section 79A or Section 79B who bona fide intend taking up agriculture to acquire land on such conditions as may be prescribed in addition to the following conditions, namely;-
(i) that the transferee takes up agriculture within one year from the date of acquisition of land, and
(ii) that if the transferee gives up agriculture within five years, the land shall vest in the State Government subject to payment to him of an amount equal to eight times the net annual income of the land or where the land has been purchased, the price paid for the land if such price is less than eight times the net annual income of the land.
(2) Nothing in Sub-section (1) shall apply to land granted under Section 77."
The provisions of the above quoted Section were discussed by this Court in Shivannappa Sidramappa Prantur v. Virupaxappa Allappa Bagi as also in other Judgments referred to above. Under Sections 82 and 83 of the Karnataka Land Reforms Act, after completion of sale it is incumbent on the village officer and every officer of the revenue, registration and land records to report to the prescribed authority i.e., the Assistant Commissioner of the Division about the transaction in respect of any land which is in contravention of the provisions of this Act, and, it is on such report, the Assistant Commissioner is required to make an enquiry regarding the illegal transaction. It is at this stage and by this authority that the Assistant Commissioner is required to find out the status of the purchaser, namely, whether he is an agriculturist or not. That is how this Court has interpreted the above Section in all the cases referred to above.
11. Section 132 of the Act takes away the jurisdiction of the Civil Court in respect of matters which are required to be settled or decided or dealt with by various authorities including the Assistant Commissioner. Under Section 133 the Civil Court can refer the following issues to the Tribunal constituted under the Act:
(1) Whether the land is an agricultural land or not?
(2) Whether the person claiming to be in possession is a tenant or not?
Sub-section (2) of Section 133 reads thus:
"Nothing in Sub-section (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."
(Underlining supplied) It is obvious therefore that the Civil Court can decide all other matters except matters which are referred under Sub-section (1) of Section 133. Since the question whether a person is an agriculturist or not is not a question which can be referred under Sub-section (1) of Section 133, there is no prohibition or legal impediment for the Civil Court to proceed with the suit. Under the Karnataka Land Reforms Act further proceedings in the suit are to be stayed awaiting the finding on the question or questions referred to the Tribunal for its Decision. As mentioned above, questions which can be referred to the Tribunal by the Civil Court do not include the question whether the plaintiff is an agriculturist or not. This conclusion gets fortified by the duties of the Tribunal enumerated in Section 112B of the Karnataka Land Reforms Act. Therefore it is obvious that the Tribunal constituted under the Karnataka Land Reforms Act has no jurisdiction to decide this question whether a person is an agriculturist or not.
12. Confronted with this argument Sri K.I. Bhatta submitted that Section 83 of the Karnataka Land Reforms Act authorises the Competent Authority, namely the Assistant Commissioner, to declare the sale as null and void and make an enquiry regarding the illegal transaction. He submitted that it is implicit in Section 83 that that authority is also an authority to decide/determine whether a person is an agriculturist or not. But as pointed out in Ningappa Durgappa v. Hanumantappa Ballappa and Anr. supra, the Assistant Commissioner under Section 80 comes into picture only after there is a completed transaction and not before. It was clearly held that there is no enabling provision in the Act to make reference to the Assistant Commissioner at any stage. The Act does not authorise the Assistant Commissioner to make such a declaration in his general power or inherent power.
13. Keeping in view the definitions in the B.T. & A.L. Act and the Karnataka Land Reforms Act, it appears to me that the law laid down by the Supreme Court in does not in any way alter the legal position as laid down by series of Decisions of this Court. In the context of the provisions of the B.T. & A.L. Act, which requires a reference to be made to the authority constituted under the said Act, their Lordships remanded the matter for the issue being referred to the said authority. Since there is no such corresponding provision for making reference by the Civil Court to the Assistant Commissioner under Section 83 of the Act, no such direction could be given to the trial Court. Indeed, that is not the requirement of the law; and if by mistake such an issue is referred to the Assistant Commissioner, the Assistant Commissioner would be justified in saying that that reference is incompetent since he gets his jurisdiction only when the sale is complete and the illegality is reported under Section 82 of the Act. By implication it is not possible to confer jurisdiction which is not envisaged by the Statute.
14. For the aforesaid reasons, this appeal fails and the same is dismissed, but, in the circumstances, no costs.