Karnataka High Court
Ganesh Rai And Ors. vs Mahalinga Rai And Ors. on 13 June, 2003
Equivalent citations: ILR2003KAR2764, 2003(5)KARLJ253
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT Sabhahit, J.
1. This Appeal is directed against the order dated 7.11.1998 passed by the III Addl. District Judge, Dakshina Kannada, Mangalore, in RA No. 2/1993, wherein the judgment and decree passed by the Court of the Civil Judge at Puttur, Dakshina Kannada, in OS No. 141/1987 dated 28th November 1992 has been set aside and the matter is remitted to the Civil Court with a direction to make a reference to the Land Tribunal, Puttur, under Section 133 of the Land Reforms Act with regard to the question as to whether Chalgeni tenancy rights over the suit properties were held by the Kutumba, to which the parties to the suit belonged or by the deceased 1st defendant alone.
2. The essential facts of the case necessary for disposal of this appeal are as follows:
The parties would be referred to with reference to their rank before the Trial Court.
3. Plaintiffs, being the wife and children of late Kunhanna Rai @ Ammu Banta filed a suit O.S. No. 141/1987 seeking for partition and separate possession of their 1/6th share in the suit schedule 'B' property averring that the suit schedule property had been leased to the grand father of plaintiffs 1 to 5 and defendant No. 1. It is averred in the plaint that: Plaintiff No. 6 -- Seethamma is the mother of plaintiffs 1 to 5; defendant No. 1 Mahalinga Rai since deceased, defendant No. 2 Seethamma, one Mammakke-late mother of defendant No. 4 (Sundari), one Vittamma, late mother of Vasanthi (defendant No. 5) are the children of one Bhandri Banta @ Bhandari Alva and Derakke; the properties mentioned in 'B' schedule to the plaint were taken on lease by the grant father of plaintiffs 1 to 5 and after his death, properties continued to be in possession of members of the family; as the tenancy dissolved upon members of the joint family after the death of Bhandari Banta, Defendant No. 1 filed Form No. 7 before the Land Tribunal on behalf of the family for grant of occupancy right and occupancy right has been granted on 24.8.1979 and since the tenancy is the joint family right, plaintiffs are entitled to 1/6th share in the schedule properties.
4. The suit was resisted by defendant No. 1 contending that the tenancy in favour of his father was surrendered and thereafter, the landlady gave the schedule property on lease individually to the 1st defendant and he filed Form No. 7 and occupancy right has been conferred upon him in his individual capacity by order dated 24.8.1979 and wherefore, Plaintiffs do not have any right or interest on the schedule property.
5. The Trial Court framed appropriate issues and after trial answered. Issues in favour of plaintiffs and decreed the suit as prayed for. During the pendency of the suit, the 1st defendant died and his wife and children were brought on record. Being aggrieved by the judgment and decree, the legal representatives of the 1st defendant filed Regular Appeal No. 2/1993 on the file of the III Addl. District Judge, Dakshina Kannada, Mangalore. The III Addl District Judge passed the judgment dated 7.11.1998 holding that the question as to whether the tenancy was in favour of the joint family or in the individual capacity of the 1st defendant had to be decided by the Land Tribunal and could not be decided by the Civil Court in view of decisions of this Court as also the Supreme Court and accordingly, set aside the judgment and decree dated 28.11.1992 passed by the Civil Judge, Puttur D K in 0 S No. 141/1987 and remitted the matter back to the Trial Court with a direction to refer the question as to whether Chalgeni tenancy right over the properties were held by the Kutumba to which the parties to the suit belonged or by the 1st defendant alone, to the Land Tribunal and thereafter, to decide the suit. Being aggrieved by the said judgment and decree passed by the 1st Appellate Court dated 7.11.1998, plaintiffs have preferred this appeal.
6. I have heard the learned Counsel appearing for appellants and the learned Counsel appearing for the contesting respondents.
7. Having regard to the contentions urged, points that arise for determination in this appeal are :-
Whether the first Appellate Court was justified in holding that having regard to the facts and circumstances of the case, the question as to whether the chalgeni tenancy was in favour of joint family-Kutumba to which parties to the suit belonged or solely in favour of the 1st defendant had to be decided by the Tribunal and could not be decided by the Civil Court?
What Order ?
I answer the above points for determination as follows Point No 1 : In the Negative Point No 2 : as per the final order for the following :-
REASONS
8. Learned Counsel appearing for the Appellant has relied upon a decision of the Hon'ble Supreme Court in the case of BALAWWA AND ANR. v. HASANABI AND ORS., ILR 2000 KAR 4809 in support of his contention that the lower Appellate Court was not justified in holding that the question as to whether tenancy was in favour of the family or individually in favour of the 1st defendant, has to be decided by the Land Tribunal and the same does not fall within the ambit of powers of the Civil Court.
9. On the other hand, the learned Counsel appearing for respondents 1(a) to 1(h), the legal representatives of the 1st defendant submitted that in view of the decision of the Hon'ble Supreme Court in the case of MUDUKAPPA v. RUDRAPPA AND ORS., , which has also been referred in BALAWWA's case, the lower Appellate Court was justified in holding that the question as to whether the tenancy was in favour of the family or individually in favour of the 1 st defendant had to be decided by the Tribunal and the jurisdiction of the Trial Court to decide the said question was ousted impliedly and wherefore, the judgment and decree passed by the lower appellate Court does not call for interference in this appeal.
10. I have considered the contentions of the parties and perused judgments and decrees passed by the Trial Court and the lower appellate Court as also the pleadings of the parties and the material on record and perused judgments relied upon by the learned Counsel appearing for parties.
11. It is clear from the decision of the Supreme Court in MUDUKAPPA's case that in the said case, the suit had been filed for perpetuary injunction based on tenancy rights for permanent injunction to restrain defendants from interfering with the alleged possession of lands and there were rival claims to tenancy and under those circumstances, the Supreme Court observed as follows :-
"8 :- It is seen that the words 'tenant', 'the Tribunal', 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 48A 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 correctness 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 48A(5) and Section 112B(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."
In BALAWWA's case (ILR 2000 KAR 4808), the Supreme Court was considering the question which arose in suit for partition having been filed in respect of four items of properties including the property in respect of which occupancy right has been conferred on one of the defendants and the Supreme Court after having examined the provisions of Karnataka Land Reforms Act has observed as follows:
"7. Having examined the provisions of the Karnataka Land Reforms Act and aforesaid two judgments of this Court, we have no doubt in our mind that the Civil Court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well settled that when special Tribunal is created under a Special Statute and the jurisdiction of the Civil Court is sought to be ousted under the said Statute, it is only in respect of those reliefs which could be granted by the Special Tribunal under the Special Statute, the jurisdiction of the Civil Court cannot be said to be ousted.
8. Looking at the provisions of Section 48A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the Civil Court Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an appellant provided the preconditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned Counsel for the appellants is, therefore, devoid of any force".
12. It is clear from the above said observations made by the Supreme Court that when there is rival claim of tenancy, the question as to whether tenancy is in favour of the family or individually in favour of the rival claimant, has to be considered by the Tribunal. However, when there is dispute about the nature of tenancy, i.e as to whether tenancy had been obtained in favour of the family or in the individual capacity of the person upon whom occupancy right has been conferred, the same has to be decided by the Civil Court. This Court in the case of NEELAVVA v. RUDRAYYA, ILR 2000 KAR 675 has held that:-
When once the Land Tribunal passed an order conferring occupancy rights in accordance with law, it becomes functus officio and the question of determination of the nature of tenancy incidentally, at a subsequent point of time, as in this case, would not arise for consideration except for determination of the rights interse between the members of the family and the question as of tenancy between the members of the family interse has to be decided by the Civil Court as the Land Tribunal has no jurisdiction to pass an order for partition.
It is clear from the principles laid down in the above said cases that in the present case, having regard to pleadings of parties and the fact that the Land Tribunal has already passed an order conferring occupancy right in favour of the 1st defendant by order dated 24.8.1979 as per Ex.P3 marked in the suit, the question that remains to be considered now is one with regard to the dispute among members of the family as to the nature of tenancy i.e. , whether tenancy was in favour of family or individually in favour of the 1st defendant.
13. In the present case, it is the case of Plaintiffs that: the tenancy was in favour of Bhandari Banta, father of Plaintiffs and the 1st defendant and other children of Bhandari Banta; Bhandari Banta died in 1935; thereafter, tenancy has continued in the name of the family and the 1st defendant filed Form No. 7 and the occupancy right has been conferred upon him. On the other hand, it is the contention of the 1st defendant that : tenancy in favour of his father, Bhandari Banta, was surrendered; subsequently, the tenancy was granted individually by the owner in favour of the 1st defendant; accordingly, he has filed Form No. 7 and occupancy right has been granted as per Ex P3 in his individual capacity and wherefore, the dispute would be among members of the family and the question of determination of tenancy does not arise and the finding of the appellate Court that the said question has to be decided by the Tribunal and not by the Civil Court is clearly erroneous and cannot be justified and the same is liable to be set aside. In view of the fact that the 1st Appellate Court has not given any finding on merits and as it is a first appeal filed against the judgment and decree passed by the Trial Court, it is now for the 1 st appellate Court to consider the appeal on merits and dispose of the same in accordance with law and accordingly, I pass the following Order:-
The appeal is allowed. The judgment and decree dated 7.11.1998 passed by the III Addl. District Judge, Dakshina Kannada, Mangalore, in R.A.No 2/1993 is set aside and R.A. No. 2/1993 is restored to the file of the III Addl. District Judge, Dakshina Kannada, with a direction to dispose of the same in accordance with law in the light of observations made in this order. However, there shall be no order as to costs in this appeal.