Karnataka High Court
Meghashyam Bhat vs Seetharam Jois on 26 May, 2000
Equivalent citations: ILR2000KAR2287, 2000(5)KARLJ106, 2000 A I H C 3669, (2000) 5 KANT LJ 106
ORDER
1. Heard Mr. Kulkarni, learned Counsel appearing for the petitioner and Sri Sudarshana Reddy, appearing for the respondent.
2. The impugned order in the above revision petition is the one passed on I.A. II by the Munsiff, Sringeri in O.S. No. 167 of 1995 under Sections 132 and 133 of the Karnataka Land Reforms Act, staying the proceedings till the disposal of LRMCR No. 1256/75-76 pending before the Land Tribunal, Sringeri.
3. The suit in O.S. No. 191 of 1994 is one for injunction restraining the defendant from interfering with the possession of the plaintiff in respect of 1 acre 1 gunta of agricultural land in Sy. No. 91 of Masige Village, Sringeri Taluk. It is claimed that the plaintiff is the owner of the property and got it under a partition dated 27-12-1974. After the partition, the plaintiff filed Form No. 7 before the Land Tribunal for grant of occupancy right. On 14-5-1987 in LRF No. 1256/75-76 the plaintiff has been granted occupancy right. After such grant, the name of the plaintiff was entered in Form No. 12 and also in the RTC extract. The respondent appears to have filed a writ petition in W.P. No. 29197 of 1994. An order of status quo was passed on 6-10-1994 by this Court. It appears on 12-10-1994 there was an attempt of trespass by the son-in-law and a complaint was filed before the Sringeri Police Station by the plaintiff which was registered as Crime No. 80 of 1994. The interim order of status was not, however, extended by this Court. When again on 4-11-1994 an attempt to trespass was made, it was resisted by the plaintiff and to avoid any other attempt, the suit came to be filed for injunction. However, it was claimed in the suit by the defendant that he is in possession and he had filed an application in Form No. 7 for grant of occupancy right in his favour on 3-9-1974 and the same is pending disposal before the Land Tribunal at Sringeri. Therefore, the issue of tenancy was pending before the competent authority and the Civil Court has no jurisdiction to decide the suit in view of Sections 132 and 133 of the Karnataka Land Reforms Act. However, the Trial Court granted the injunction and stayed the suit till the disposal of the proceedings before the Tribunal. It is this order that is being challenged before this Court in the above revision petition.
4. It is specifically urged by the petitioner that by the very same case in LRM No. 1256/75-76 he has been granted occupancy right. If that be the case, how the application by the respondent herein be said to be pending before the Land Tribunal is not explained nor any reason is forthcoming in that regard. Therefore, prima facie, the respondent has no case to get an order in his favour. In any event, a question has been raised before this Court as to the maintainability of the present application. The dictum of this Court in B.V. Subbachari and Others v B.K. Joyappa and Another, was relied upon by the petitioner, which is to the following effect:
"On going through the provisions of the section as also the decisions referred to above, I have my own reservations about the correctness of the view that even an injunction suit has to be referred to the Land Tribunal if a question of tenancy is raised. I feel that in a suit for permanent injunction alone, the question of tenancy is not relevant, but the only question is as to whether the plaintiff is in possession of the property as on the date of the suit. The character, nature and the source of possession of the plaintiffs are not very relevant but only factum of possession is relevant. According to me, the Civil Court has certainly jurisdiction to entertain a suit for injunction and to pass appropriate interim orders during the pendency of the suit".
This Court proceeds on the basis that a person in possession is not entitled to maintain a suit for injunction against true owner. With utmost respect, I am unable to agree with this view as well. A person in possession can be evicted only under due process of law and even a rightful owner cannot dispossess him by force. If he cannot be evicted by force, he continues to be in possession by anyone including the rightful owner. If the owner threatens the peaceful possession of a person, certainly, he will be entitled to approach the Courts of law and pray for the relief of injunction to protect his possession and not to interfere with the same otherwise than under due process of law. Section 6 of the Specific Relief Act also indicates that a person who is wrongfully dispossessed, can get back possession of the property even from the rightful owner and that the question of title is immaterial. This view which I have taken is supported by a decision of a learned Judge of the Kerala High Court in Vasudeva Kurup v Ammini Amma. This dictum was approved by a Division Bench of the same Court in Rev. Father K.C. Alexander of Kuttikandathilaya Kollakulhiyil, Thadiyoor Muri v Nari Service Society Limited, which was affirmed by the Supreme Court in Nair Service Society Limited v K.C. Alexander and Others. The same view was taken by another learned Single Judge (V. Khalid, J., as he then was) in Karthiyayani Amma v Govindan. Thus, according to me, the basis of the decision in Mallayya Murigayya v Puttappa Shivappa, requires reconsideration. Section 125 of the Kerala Land Reforms Act is more or less a similar provision to Section 133 of the Karnataka Land Reforms Act and the question as to whether that section will apply to a suit for permanent injunction was considered by a Full Bench of five Judges of the Kerala High Court in E. Keshava Bhat v K.S. Subraya Bhat. The Full Bench held in paragraph 6, thus:
'We are concerned only with the question of the nature and the character of the possession is immaterial. If the plaintiff does not make out his possession, there is no need at all to consider whether the defendant is in possession, and if so, in what character or capacity; and if the plaintiff makes out his case of possession, the question of defendant's tenancy again would not fall for consideration'."
Reliance also was placed upon the dictum in Jnanachandra Kuloor and Another v Smt. Seethu Hengsu. The following passage is relied upon:
"In the instant case no agricultural land or tenancy of the land is involved. In fact, the learned Counsel for the revision petitioners concede that there is no dispute regarding the tenancy of the respondent in respect of Survey No. 59/11 and that occupancy rights have been granted to the respondent in respect of Survey No. 59/11. However, the occupancy rights granted to the respondents are subject to 'mamool rights'. The revision petitioners pray for mandatory injunction in respect of the channel which runs, among other survey numbers, through Survey No. 59/11 and 59/6-A (Survey No. 59/6-A is not involved in any tenancy). As already stated the revision petitioners concede the tenancy of the respondent in respect of Survey No. 59/11. No question of tenancy arises in this case.
When, in the nature of the relief claimed for (mandatory injunction), tenancy is not at all involved, the learned Munsiff has committed a serious error in staying further proceedings in the suit till the disposal of the civil petition by this Court".
The dictum in Tulasamma v M. Srinivasan, is relied upon. The following passage is relied upon:
"As far as this point of law is concerned, the position is seriously contested by the respondent's learned Advocate, who submits that this is a misconstruction of the provisions of Section 133. He places reliance on a recent decision of this Court in B.V. Sub-bachari's case, supra. The learned Single Judge of this Court had occasion to consider a situation where an injunction had been prayed for in respect of certain disputed lands on the basis of the possessory rights that were claimed and the bar under Section 133 was pleaded. In a considered judgment, the learned Single Judge took the view that the bar to jurisdiction under Section 133 is limited only to those cases where the dispute concerns the issue of tenancy or a declaration thereof and that consequently, the Civil Court was within its rights to entertain the suit in that case. Section 133, to my mind, is abundantly clear insofar as there can be no dispute about the fact that the legislature did set up a special forum for adjudication of all matters in relation to lands that were the subject-matter of issues within the special jurisdiction of the Tribunal and consequently, barred Civil Courts from exercising powers in respect thereof. In a case where the question of tenancy is not involved and no such declaration has been asked for and where the dispute projected before the Civil Court has nothing to do with the powers exercisable by the Tribunal under the Land Reforms Act, a Civil Court would be perfectly within its jurisdiction to exercise powers. Under these circumstances, the submission with regard to the lack of jurisdiction of the Civil Court to my mind, requires to be rejected".
5. On the other hand, the respondent relied upon the dictum in Mallayya Murigayya's case, supra, which is to the following effect:
"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 Ponniah Muddaliar. 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 1-3-1974, 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".
The dictum in Kamata Handthy and Another v Ananthayya Hebbar, is relied upon. The following proposition is relied upon:
"The question whether a party (plaintiff or defendant) is a tenant cannot be decided by a Civil Court and the exclusive jurisdiction to decide whether a person is or is not a tenant vests in the Tribunal constituted under the Karnataka Land Reforms Act, 1961 as amended by Act 1 of 1974.
Conflict is bound to arise if Civil Courts proceed to try suits for perpetual injunction whether brought by the landowners or by persons claiming to be tenants -- in the context of the coming into force of the Land Reforms Act. The decision of the Civil Court in the suits will not be binding on the Tribunal constituted under the Land Reforms Act and any decree passed will be ineffective".
The dictum in Govinda Shetty v Shivarama Shetty and Others, is relied upon, which is as follows:
"Section 48-C confers power on the Land Tribunal to issue interlocutory orders in the nature of temporary injunction or appointment of receiver concerning agricultural land in respect of which an application is made under Section 48-A. Section 132 imposes a bar of jurisdiction on Civil Courts to decide any question which is the subject-matter of the Land Tribunal. Thus by reading these two sections, it becomes clear that the Civil Court in the proceedings before it, in this case, a suit for partition had no jurisdiction to pass interlocutory orders like the injunction or appointment of a receiver in respect of the subject-matter in the suit i.e., agricultural land as it was already the subject-matter of the application under Section 48-A before the Land Tribunal. The presence or absence of the tenants as parties to the proceedings before the Civil Court would not make any difference in law".
In Shankar Appa Kokane v Narasinga Rama Kokane, the following passage is relied upon:
"The short question which falls for determination as already recorded by me on 2-11-1987 is whether the Trial Court had jurisdiction to entertain the suit of the plaintiff in O.S. No. 20 of 1983. I.A. No. VI was an application filed by the defendants pointing out to the Court that the Civil Court had no jurisdiction in view of Section 133 of the Karnataka Land Reforms Act, 1961 and the Land Tribunal alone was competent to decide the question of tenancy when the same was in dispute. Unfortunately, in disposing of the same, the Trial Court appears to have misread itself in believing that it had jurisdiction to examine prima facie whether the plea of tenancy is tenable. When there is a clear plea with reference to the proceedings pending before the Land Tribunal, the question of prima facie nature of the defence taken in the written statement does not arise. Once the proceedings commenced before the appropriate Land Tribunal, the Civil Court loses its jurisdiction even to examine the prima facie nature of defence".
The dictum in Mudakappa v Rudrappa and Others, is as follows:
Therefore, when rival claims were set up for tenancy right and entitlement for registration, it is incumbent upon the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. Thereon an order should accordingly be made by the Tribunal and it would become final. Thereby it is clear that the Act extinguishes the pre-existing right, title and interest of the landowners as well as those who were inducted into possession by the erstwhile landholders. The new rights have been created in the Act itself in favour of the tenants in personal cultivation to claim registration as tenants so as to continue to enjoy the occupancy rights as a tenant as enumerated under Section 45. A forum was created and the forum is enjoined to enquire into not only the nature of the land but also the entitlement for registration as a tenant. When inter se rival claims for tenancy rights have been set up, it has been empowered with jurisdiction to decide that question as to who is the tenant in possession of the land prior to the date of vesting and entitled to be registered as a tenant with the State Government and its decision shall be final. The Civil Court's jurisdiction under Section 9 of the Civil Procedure Code by necessary implication, therefore, stood excluded.
It is seen that the words 'tenant' and 'the joint family' have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correetness could be tested either in an appeal or by judicial review under Article 226 or under Article 227, as the case may be. But that cannot by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from Section 48-A(5) and Section 112-B(bbb) read with Section 133, that the decision of the Tribunal is final under Section 133(iii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court".
The dictum in Vatticherukuru Village Panchayat v Nori Venkatarama Deekshitkulu, is relied upon, which is as follows:
"The consideration as to exclusion of the jurisdiction of Civil Court is no longer res integra. This Court in bead-roll of decisions considered this question in diverse situations. In M/s. Kamala Mills Limited v State of Bombay, the questions which arose were whether an assessment made in violation of the Bombay Sales Tax Act could claim the status of an assessment made under that Act, and whether the nature of the transactions was a decision of collateral fact. A Bench of seven Judges of this Court held that if it appears that a statute creates a special right or liability and provides for the determination of the right or liability to be dealt with by Tribunals specially constituted in that behalf and it further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. It was held that the Court was satisfied that the Act provided all the remedies associated with actions in Civil Courts and the remedy for refund of the tax illegally collected was provided and it was not collateral. Section 20 prohibits such a claim being made before an ordinary Civil Court and held that the civil suit was not maintainable. The leading decisions of the Privy Council in Secretary of State v Mask and Company; Raleigh Investment Company Limited v Governor General in Council; and the ratio in Firm of Illuri Subbayya Chetty and Sons v State of Andhra Pradesh, were approved. In Addanki Tiruvenkata Thata Desika Charyulu v State of Andhra Pradesh, a Constitution Bench was to consider whether the jurisdiction of the Settlement Officer and the Tribunal created under the Estates Abolition Act to determine whether Shotrium village was an inam estate was exclusive and the Civil Court's jurisdiction to try the dispute was barred. Despite the fact that no express exclusion of the Civil Court's jurisdiction was made under the Act it was held that very provision setting up an hierarchy of judicial Tribunals for the determination of the questions on which the applicability of the Act depends was sufficient in most cases to infer that the jurisdiction of the Civil Courts to try the same was barred. Accordingly, it was held that the jurisdiction of the Settlement Officer and the Tribunal by necessary implication was exclusive and that the Civil Courts are barred from trying or retrying the question once over. The decisions of the Settlement Officer and of the Tribunal were held final and conclusive".
The dictum in Jenni Vasudeva Udpa v Deuadiga Heriya, is to the following effect:
The Civil Court has jurisdiction to grant a temporary injunction in respect of an agricultural land, after service of notice of the application on the defendant. All that has to be stayed is the trial of the suit".
The dictum in Noorulla Amin Musuba and Others v Chandru Sheniyar Naik, is relied upon, which is as follows:
"Appellate Court finds fault with the Trial Court in framing Issue No. 1. Learned Counsel for the respondent argued that the Trial Court committed an error in law in framing that issue in a suit for mere injunction and that was required to be corrected. I find no merit in the contention in view of the facts and circumstances of the case.
There is no rule or law prohibiting the Court in considering the question of ownership in a suit for injunction. Even in a suit for injunction, in certain cases the Court would be required to consider at least incidentally the question of ownership and that would depend upon the facts and circumstances of each case".
6. The ruling referred to above can be summed up as follows:
(1) When a suit is filed for injunction then the Civil Court can certainly go into the question as to whether the plaintiff is entitled to injunction or not. If the plaintiff is found to be in possession in whatever capacity he may be, he is entitled to injunction to protect his possession and disturbing the same except under process of law.
(2) The cases in which the question whether a person is a tenant or not if it is involved certainly the Civil Court cannot decide the question at all and there no dispute regarding the above proposition. But the latter point mentioned above cannot take away the jurisdiction of the Civil Court to decide the question as to who exactly is in possession of the property and whether such possession of that person can be protected by an injunction or not. Uniformly the Courts are of the view that the Civil Court's power under Section 9 to grant injunction is not taken away nor could be curbed by Sections 133 and 134 of the Land Reforms Act.
7. In a suit for injunction, to repeat if the plaintiff is found to be in possession, he is entitled to injunction. If the plaintiff is not found to be in possession and the defendant (who incidentally may claim to be the tenant) is found to be in possession then the suit must fail. Possession is nine points in law and the question regarding the possession of a particular property with the person claiming to be so has to be decided only by a Civil Court and not otherwise.
8. I have considered the very same question in CRP No. 422 of 2000 connected with CRP Nos. 423, 424 and 425 of 2000 by the order dated 25-3-2000. In the above CRPs. I have held that the jurisdiction of the Civil Court to decide the question of injunction cannot be stopped by directing it to refer the matter to the Tribunal. I have followed the dictum in B.V. Subbachari's case, supra, in the above case also. In view of the above, I find the order of the Trial Court staying the proceeding till the disposal of the case before the Land Tribunal is not sustainable.
9. In the result, the revision petition is allowed. No costs.