Karnataka High Court
Sangawwa And Ors. vs Yemnappa And Anr. on 25 July, 1980
Equivalent citations: AIR1980KANT220, 1980(2)KARLJ202, AIR 1980 KARNATAKA 220
JUDGMENT
1. The plaintiffs in Original Suit No. 147/70 on the file of the Munsiff, Shorapur, have filed this second appeal by way of their attempt having failed twice both in the lower appellate Court as well as in the trial Court in securing a judgment and decree in their favour in the suit filed by them which was one for a permanent injunction against the defendants to restrain them by way of an injunction not to interfere with the alleged possession of the plaintiffs in respect of the eastern half portion measuring 11 acres 36 guntas comprised in Sy. No. 209 situate in Waging era Village of Shorapur Taluk in Gulbarga District.
2. The material facts relevant for the disposal of this appeal are as under: -
The plaintiffs brought the suit 0. S. No. 147/70 against the defendants on the file of the Munsiff, Shorapur, for a permanent injunction on the ground that they were the tenants in possession of eastern half portion measuring 11 acres 36 guntas in SY. No. 209 of waging are village in Shorapur Taluk. The suit was resisted by the defendants by filing a joint written statement contending inter alia among others that the defendants were cultivating the entire survey number as tenants prior to August 1970 and purchased the entire survey number from its owner for a consideration of Rs. 12,000 under a registered sale deed dated 10-8-1970 and since then they have been in actual possession of the land in question as owners.
3. The trial Court framed the following issues: -
(1) Do plaintiffs prove that they are in lawful possession of the suit land and the defendants caused interference into their possession?
(2) To what relief the Parties are entitled?
The trial Court recorded its findings in the negative under issue No. 1 and accordingly it held that the plaintiffs were not entitled to the relief sought for and accordingly dismissed the suit as per its judgment dated 25-10-1972. The appeal R. A. No. 149/72 filed by the plaintiffs ended with the same result by the dismissal of their appeal by the learned Principal Civil Judge, Gulbarga as per his judgment dated 15-10-1973 who had confirmed the findings of the trial Court.
4. It is undisputable that the plaintiffs brought their action for permanent injunction against the defendants who claim to be the owners of the land, in question on the basis of their possessor title rested on their alleged tenancy in respect of the suit land. The crucial point that was for the determination of both the trial Court as well as the lower appellate Court in this case was the lawful possession of the suit land by the plaintiffs on the date of the suit. The plaintiffs have specifically alleged in their plaint that they were in possession of the suit land as tenants. In other words, the case set up by them was that they were in lawful possession of the suit land on the date of the suit as they were the tenants of the suit land. The claim was against the defendants who claim to be the owners of the land in question. The plaintiffs could not maintain their suit for permanent injunction unless they establish that their possession was lawful and in order to establish that question they must establish that they were the tenants of the suit land as alleged by them Unless the trial Court has decided the question of the lawful possession of the plaintiffs on the date of the suit, the suit of the plaintiffs cannot be decreed since it was directed against the true owners of the land. In such a situation, it is well settled that the question of tenancy is involved for the decision of the court in a suit for injunction.
Once it is held that the question of tenancy is involved in a suit for injunction brought before a Civil Court, then there cannot be any dispute to the proposition that the question of tenancy shall have to be decided under the provisions of the Karnataka Land Reforms Act, 1961 after that Act came into force. Undoubtedly the Provisions Of the Karnataka Land Reforms Act were in force when the trial Court rendered its first decision, which was on 25-10-1972. Both the trial Court as well as the first appellate Court have not taken the necessary step to get the question of tenancy decided in accordance with the provisions of the Land Reforms Act, but straightway proceeded with the case to consider all the questions involved in the suit including the question of tenancy. This was clearly a legal error committed by the Courts below. In that view of the matter, I am inclined to hold that the judgment and decree of both the courts below shall have to be set aside and the matter be remanded to the court of the first instance to deal with it, in accordance with law.
5. However, it is brought to my notice that the question of tenancy relating to the suit land is pending in Writ Petition No. 4274/18 on the file of this Court filed by the plaintiffs herein. The trial Court shall have to proceed with the suit after the question of tenancy is finally settled between the parties.
6. In the result, for the reasons stated above, the appeal is allowed. The judgment and decree of both the courts below are hereby set aside. The matter is remanded to the Court of the first instance to dispose of according to law. There is no order as to costs. The parties are entitled to the refund of the court-fee in accordance with law.
7. Appeal allowed.