Karnataka High Court
B.V. Subbachari vs B.K. Joyappa on 21 July, 1994
Equivalent citations: ILR1994KAR2505, 1994(4)KARLJ364, 1995 A I H C 2186
ORDER P. Krishna Moorthy, J.
1. The Revision Petitioners are the defendants in the Suit. The suit is filed for a permanent injunction restraining the defendants from interfering with the possession of the plaintiffs over the plaint schedule properties which is 3.45 acres in Sy.No. 194 of Bemblur Village. The allegation in the plaint is, that the plaintiffs are the absolute owners in possession of the above lands and that it was purchased under a Sale Deed dated 23-5-1986 from one T.K. Doddappa and T.K. Thammaiah who are the children of late Komari Gowda, who died in 1980. The defendants attempted to trespass on the plaint schedule property on 22-7-1987 and accordingly, a Suit was instituted for permanent injunction. Along with the Suit, the plaintiffs also filed an application for temporary injunction under Order 39 Rules 1 and 2 restraining the defendants from interfering with the plaintiffs possession.
2. The defendants filed a written statement denying the plaintiffs title and possession. According to them, the first defendant and his predecessor-in-title were cultivating about 1 acre of land which belongs to a temple known as 'Benathamma and Kalle Devaru Temple' for more than 150 years as tenants, Accordingly, the claim of the defendants is, that they are in possession of 1 acre of land of the Temple as a tenant. The defendants obtained occupancy rights under the Karnataka Land Reforms Act, in respect of this land, on 22-10-1975 but the Survey Number was wrongly mentioned as Sy.No. 195. Accordingly, they filed an application for correction before the Land Tribunal in 1987. It was rejected on 27-11-1987 and confirmed by the Appellate authority on 31-1-1988. Against these orders, the petitioners filed a Writ Petition No. 1965/88 challenging the orders. It was contended that, in the light of the fact that the defendants are claiming tenancy rights over the property, the Civil Court has no jurisdiction to pass an order of injunction and that the matter should be referred to the Land Tribunal before deciding the question of tenancy under Section 133 of the Karnataka Land Reforms Act.
3. The trial Court after consideration of the entire matter, over-ruled the contention of the defendants and granted a temporary injunction as prayed for in favour of the plaintiffs. The lower Appellate Court also confirmed the order of temporary injunction after holding that it is not necessary to refer the question of tenancy to the Land Tribunal in this case.
4. While this Civil Revision Petition was pending before this Court, Writ Petition No. 1965/88 filed against the refusal of the Land Tribunal to correct the Survey Number came up for consideration and by an order dated 3-1-1994, the orders of the Land Tribunal as also the Appellate Authority were set aside and the Tribunal was directed to re-consider the matter regarding correct survey number in regard to the claim made by the defendants.
5. In the light of the above order, the learned Counsel for the Revision petitioners contended that the question of tenancy claimed by the defendants being the subject matter of a proceeding before the Land Tribunal, the Civil Court has no jurisdiction to deal with that question. He also contended that, at any rate, under Section 133 of the Karnataka Land Reforms Act, the question of tenancy should have been referred to the Land Tribunal and in the meanwhile, the Civil Court has no jurisdiction to pass an order of temporary injunction. Learned Counsel for the Revision petitioners also contended that, even otherwise, no prima facie case has been made out by the plaintiffs for the grant of temporary injunction. Learned Counsel for the respondents contended that the suit being for permanent injunction, the question of tenancy never arises as the Court is concerned primarily only with the plaintiffs possession and accordingly, the suit need not be referred to the Land Tribunal and the Civil Court retains its jurisdiction. It was further contended that, at any rate, in this particular case, the defendants are not claiming tenancy right under the plaintiffs but under a third party - Temple and in such circumstances, no question of tenancy arises between the plaintiffs and defendants and in that view of the matter also, the suit need not be referred to the Land Tribunal and that the Civil Court has jurisdiction to deal with the matter. I shall deal with this contention one by one.
6. It is clear from the provisions of the Karnataka Land Reforms Act that, the right in respect of the land in possession of tenant before 1-3-1974 will vest in the Government under Section 44 of the Karnataka Land Reforms Act and that the tenant is also entitled to apply for occupancy rights under Section 48-A of the Act within the period prescribed therein. Certain matters including the question of tenancy are provided under the Act to be within the exclusive jurisdiction of the Land Tribunal. Section 132 of the Karnataka Land Reforms Act excludes the jurisdiction of the Civil Court to decide or deal with any question which is by the provisions of the Act, required to be settled or dealt with by the Land Tribunal or other authorities. Section 133 is the relevant Section which provides that if in any Suit, the question whether the land is or is not an agricultural land and whether the person claiming to be in possession is or is not a tenant prior to 1-3-1974 has to be referred to the Land Tribunal and that the Court shall stay the Suit and await the decision of the Tribunal on the question. It is further provided that, all interim orders issued by the Court in the nature of temporary injunction or appointment of a Receiver shall stand dissolved or vacated.
7. Learned Counsel for the petitioners and respondents were at variance on the question as to whether this provision is applicable to a suit for bare injunction. IN KAMALA HANDTHY AND ANR. v. ANANTHAYYA HEBBAR 1.1974(2) KLJ 34, a learned single Judge of this Court held that, even in an injunction Suit, if a tenancy question is raised, the matter has to be referred to the Tribunal. This Decision was approved a Bench Decision in MALLAYYA MURIGAYYA v. PUTTAPPA SHIVAPPA 2.1976(1) KLJ 369. In KRISHNEGOWDA v. SHIVAPPA 3. , the above Decision was followed without any discussion on the question.
8. 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, t 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. Now, I shall consider the two Decisions of this Court referred to above.
9. In Kamala Handthy's case the main reason which weighed with this Court for taking the view is that, in such circumstances, the decision of the Civil Court in the two kinds of Suits mentioned therein, will not be binding on the Tribunal constituted under the Karnataka Land Reforms Act. The Court proceeds on the basis that the decision of the Civil Court will not be binding on the Tribunal and the Tribunal will be free to take its own decision. With great respect, I find myself unable to subscribe to this view, for, it is settled that, if the Civil Court has jurisdiction over the subject matter and the dispute in the Suit, certainly, the decision of the Court in a Suit will operate as resjudicata and even the Land Tribunal will be bound by that decision. The real question is, as to whether the Land Tribunal or the Civil Court is having jurisdiction in the matter and if the Civil Court is having jurisdiction, certainly its decision will operate as resjudicata and by saying that the decision of the Civil Court will not be binding on the Land Tribunal is only begging the question.
10. The reason given by the Division Bench in 1976(1) Kar.L.J. 369 for taking the same view also does not appeal to me, The main basis of the Decision in the above case is stated in page 373 in the following manner:
"In a case where the plaintiff claiming to be a tenant of a land in question while admitting that the defendant is the owner prays for an injunction restraining the defendant from interfering with his possession, we are of the opinion that the question whether the plaintiff is a tenant or not would arise for consideration, since the suit would have inevitably to be dismissed if a finding is not given in the affirmative on the said question as admittedly the defendant is the owner of the property. The reason is not far to seek. It is well settled that no person in possession of land can sue for injunction against a true owner unless he is able to maintain that either under an agreement or under a statute he is entitled to the said relief even as against him. If he is not able to rely oh any such agreement or statute his possession would be wrongful. No Court will by its order help a party who is found to be in wrongful possession as against the lawful owner."
11. 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 any one 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 4.1964 Ker.L.J. 468. 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 LTD. 5. , which was affirmed by the Supreme Court in NAIR SERVICE SOCIETY LTD. v. K.C. ALEXANDER AND ORS. 6. .The same view was taken by another learned single Judge (V. Khalid J., as he then was) in KARTHIYAYANI AMMA v. GOVINDAN 7.. Thus, according to me, the basis of the Decision in 1976(1) Kar.L.J. 369 requires re-consideration. 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 reported in E. KESHAVA BHAT v. K.S. SHBRAYA BHAT 8. . The Full Bench held in paragraph 6, thus:
"We are concerned only with the question of possession 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."
12. The learned Counsel for the Revision Petitioner tried to distinguish the above Decision on the ground that the wording of Section 125 of the Kerala Land Reforms Act is "if in any suit or other proceeding any question regarding rights of a tenant......... (including a question as to whether a person is a tenant.....) arises" and it is different from Section 133 of the Karnataka Act. What Section 133 of the Karnataka Act provides is that "no Civil Court ........shall in any suit......decide the question.....whether the person claiming to be in possession is or is not a tenant....". In any Suit, the Court will decide a question only if it arises. The words "No Court shall decide in any Suit" clearly indicate and imply that the question must arise in the Suit. If the question does not arise, the Court deciding the matter does not arise. Hence I am not impressed by the above argument.
13. In the light of the above, I feel that a re-thinking is necessary on the effect of Section 133 of the Karnataka Land Reforms Act on Injunction Suits. But I am not expressing a final opinion in the matter as this case can be disposed off on another point.
14. The plaintiffs claim title and possession to the property by virtue of a Sale Deed dated 23-5-1986 from T.K. Doddappa and T.K. Thammaiah; In the written statement filed by the defendants, they are claiming to be in possession of one acre of land out of the plaint schedule property as a tenant under a Temple known as "Banathamma and Kalle Devaru Temple". Thus, it can be seen that the defendants are not claiming tenancy under the plaintiffs, but under a third party. If the tenancy claim of the defendants is not under the plaintiffs, but under a third person, no question of tenancy can arise as between the plaintiffs and defendants. In such a case, the only question is, as to whether the plaintiffs are the title holder in possession or the person whom the defendants claim to be their lessor has title to the property. In these circumstances, the question of tenancy as between the parties does not arise and accordingly, Section 133 of the Karnataka Land Reforms Act also is inapplicable. I am supported in this view by the Decision of a learned Single Judge of this Court in SIDDAIAH AND ORS. v. MALLESHAPPA 9.1978(2) KLJ 127. Similar view was taken by another learned Single Judge of this Court in GUNDAPPA ACHARI v. SESHAPPA UPADHYAYA 10. . In the light of the aforesaid two Decisions and in the light of the fact that the defendants are not claiming any tenancy right under the plaintiff, I am clearly of the view that Section 133 of the Karnataka Land Reforms Act is not applicable to the case and the matter need not be referred to the Land Tribunal.
15. On the merits of the claim by the parties, both the Courts-below have concurrently held that the plaintiffs have established their prima facie case of possession. On the basis of the documents and other evidence, the Courts-below have come to that conclusion and sitting in Revision under Section 115 of the Code of Civil Procedure, I do not find any error of jurisdiction warranting interference with the finding of fact entered by the Courts-below.
In view of what is stated above, I do not find any merit in this Revision Petition and it is accordingly dismissed.