REPORTABL E

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5878 OF 2002

Ishwaragouda & Ors.            ...Appellants

VERSUS

Mallikarjun Gowda & Ors.  …Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. This  appeal  is  directed  against  the  judgment  and  order

dated 28th of August, 2001 of the High Court of Karnataka

at Bangalore in a Second Appeal whereby, the High Court

had allowed the appeal filed by the respondents against the

judgment and decree of the 2nd Additional Sessions Judge,

Dharwad, remanding back the matter to the First Appellate

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Court  to  decide  in  accordance  with  law  in  view  of  the

findings made by the High Court in the second appeal.  

2. The relevant facts, as arising from the case made out by the

appellants,  which  would  assist  us  in  appreciating  the

controversy involved are narrated in a nutshell, which are

as follows:

3. The disputed land bearing RS No. 40 measuring 18 acres

32  guntas  was  an  agricultural  land  belonging  to  one

Laxmibai,  situated  in  Harlapur  village  in  Gadag  taluka.

After the death of Smt. Laxmibai, her grand sons inherited

the  said  land  and  it  was  under  cultivation  of  the

predecessor in title of the appellants and the respondents.

After coming into operation of the Karnataka Land Reforms

Act  (in  short  “the  Act”),  Basanagowda,  the  father  of  the

respondents  filed  Form No.  7  under  the  Act  for  grant  of

occupancy rights on the ground that they were in actual

cultivation of the entire land. Parwategowda, the father of

the  appellants,  simultaneously  also  filed  an  application

under Form No. 7 claiming that the said land was being

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cultivated  jointly  by  the  family,  i.e.  the  family  of

Basanagowda,  the  father  of  the  respondents,  and

Parwategowda, the father of the appellants. Both the above-

mentioned applications were registered on the file of Land

Tribunal,  Gadag.  On  21st of  November,  1976,  the  Land

Tribunal  passed  orders  holding  that  Basanagowda  and

Parwategowda were jointly cultivating the lands and were

entitled to occupancy rights in the said land. Aggrieved by

the said order of the Land Tribunal, the respondents filed a

Writ Petition in the High Court of Karnataka being WP No.

2088 of 1977. The High Court dismissed the writ petition

by  its  order  dated  17th of  December,  1982,  inter  alia,

holding  that  the  disputed  land  was  taken  on  cultivation

jointly  by the  family  and that  it  was in  joint  cultivation.

However,  for  demarcation  of  half  portion  of  the  disputed

land, the matter  was remitted to the  Land Tribunal.  The

respondents  thereafter  filed  an  appeal  before  a  Division

Bench of the High Court, which was dismissed by an order

dated 6th of June, 1983. Meanwhile, the Land Tribunal after

being  remanded  back  the  matter  for  demarcation  of  the

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disputed  land  between  the  parties  by  the  High  Court,

allotted  southern  half  portion  to  Parwategowda  and  his

family and the Northern half portion to Basanagowda and

his family by its order dated 3rd of January, 1985. Against

the said order, the respondents preferred an appeal before

the Land Reforms Appellate Authority being L.R. Appeal No.

1687  of  1986  which  was  dismissed  by  the  Appellate

Authority on 14th of September 1987.

4. Against  the  said  judgment  and  order,  the  respondents

preferred  a  civil  revision  petition  being  CRP  No.  5632  of

1987 before the High Court of Karnataka. The High Court

dismissed the revision petition, inter alia, observing that the

party  prejudiced  can  approach  a  civil  court  to  claim

exclusive possession of the disputed land. On the basis of

such an observation, the respondents thereafter filed a suit

for  declaration  of  title  and  possession  in  respect  of  the

disputed land being O.S No. 131 of 1989 in the Court of

Civil  Judge,  Gadag.  The  Civil  Judge  by  its  judgment

decreed  the  suit  holding  that  it  had  the  jurisdiction  to

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decide as to whether it was a joint family property or an

individual  property.  Aggrieved  by  the  said  judgment  and

decree  of  the  civil  judge,  the  appellants  herein  filed  an

appeal before the 2nd Additional Sessions Judge, Dharwad.

The Additional Sessions Judge allowed the appeal holding

that the civil court had no jurisdiction to entertain the suit

for declaration of title and possession, which is within the

exclusive  jurisdiction  of  the  Land  Tribunal.  The

respondents  filed  a  Second  Appeal  in  the  High  Court

against  the  aforesaid  judgment  passed  in  the  appeal.

Relying on a decision of this Court, in Balawwa & Anr. vs.

Hasanabi & Ors. [(2000) 9 SCC 272], the High Court set

aside the judgment of the appellate court and allowed the

appeal  remanding  back  the  matter  to  the  first  appellate

court directing it to decide the matter in accordance with

law in view of the observations made by the High Court.  

Feeling aggrieved by the judgment  of  the Division

Bench of the High Court, the appellants filed this special

leave petition, which was heard by us on grant of leave in

the presence of the learned counsel for the parties.

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5. The moot question that needs to be decided in this appeal

is as follows:

“Whether the jurisdiction of the civil court is  ousted  in  view  of  Section  133  of  the Karnataka  Land  Reforms  Act  to  decide whether  an individual  is  a  tenant  or  the joint  family  is the tenant of the disputed land the same being within the exclusive jurisdiction of the Land Tribunal?”

6. We  have  heard  the  learned  counsel  appearing  for  the

parties and perused the materials on record. It is pertinent

to refer to Section 133 of the Act for a better understanding

of the issue in hand. Section 133 in so far as it is relevant

for the present case states:

“133. Suits, proceedings etc. involving questions required  to  be  decided  by  the  Tribunal:-1) Notwithstanding  anything  in  any  law for  the time being in force,-

i) no civil or criminal court or officer or authority shall, in any suit,  case or  proceedings concerning  a land decide the question whether such land is or  is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March, 1974;

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ii) such court or officer or authority shall stay such suit or  proceedings  in  so  far  as  such  question  is concerned  and  refer  the  same  to  the  Tribunal  for decision;

iii)  all  interim  order  issued  or  made  by  such  court, officer  or  authority,  whether  in  the  nature  of temporary injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be;

iv)  ……”

It  is  clear  from  a  plain  reading  of  the  aforesaid

provisions of the Act, that no Court or any authority has

any jurisdiction to decide whether a person claiming to

be in possession is or is not a tenant of the disputed land

and the sole authority to decide such dispute vests only

in the Land Tribunal. A plain reading of Section 133 of

the  Act  would  make  it  clear  that  any  questions

concerning  a  land  whether  such  land  is  or  is  not  an

agricultural  land,  and  whether  the  person  claiming

possession is or is not a tenant of the land shall vest only

on the Land Tribunal and no suit or proceeding etc. shall

be entertained by any civil or criminal court.  It would be

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further evident that even when a suit is pending on the

said question, the Court shall refer such dispute to be

decided by the tribunal for decision. Once a land tribunal

decides  the  aforesaid  question,  the  Civil  Court  cannot

have any jurisdiction to decide the said dispute in a civil

proceeding  in  view  of  Section  133  of  the  Act.

Furthermore,  once  a  land  tribunal  decides  the  said

question  enumerated  in  section  133  of  the  Act,  such

decision of the Land Tribunal  also cannot come under

challenge before any civil court and if any order is passed

by the civil court setting aside the decision of the Land

Tribunal,  such  an  order  would  be  a  nullity.  If  any

consequential  order  is  also  passed  by  the  civil  court,

setting  aside  the  decision  of  the  Land  Tribunal  and

directing  the  possession  of  the  disputed  land  to  be

delivered, it must be held that the said order was without

jurisdiction and therefore a nullity. Therefore, we are of

the view that the High Court fell in error by directing the

order of remand to the first appellate authority to decide

the said issue after it was decided by the tribunal which

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was uncalled for and was therefore liable to be set aside.  

7. A plain reading of the judgment of the High Court

would  clearly  demonstrate  that  it  had  relied  on  the

decision this Court in the case of  Balawwa & Anr. vs.

Hasanabi  & Ors. (supra), in which this Court had held

that inspite of the special jurisdiction under the Act, the

jurisdiction  of  the  civil  court  was  not  ousted  after

considering  the  reliefs  claimed  in  the  suit.  In  that

decision this Court had noted that in the said suit the

relief of partition was granted and it was that decree of

partition, which was the subject matter of appeal in that

case.  In  that  context,  this  Court  in  paragraph  no.7

observed as follows:  

“Having  examined the  provisions of  the Karnataka  Land  Reforms  Act  and  the 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 a 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

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Tribunal  under  the  special  statute,  the jurisdiction of the civil court cannot be said to be ousted.  

8. The  learned  counsel  appearing  on  behalf  of  the

respondents relied on this case before us also contending

that the jurisdiction of the civil court could not be ousted

and it could decide as to the title of the disputed land.

We cannot agree to this contention of the respondents. In

paragraph no.8 of the aforesaid decision, this Court had

observed as follows:

“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 of the civil court. Under Section 48A, the Tribunal can only grant the relief of declaring occupancy right in favour of  an applicant provided the preconditions for the same are satisfied, namely, that the land  was  in  possession  of  the  tenant concerned on the relevant date. That being the  position  and  the  Tribunal  under  the Land Reforms Act not having  jurisdiction to  grant  relief  of  partition,  the  civil court  itself  has  the  jurisdiction  to entertain the suit for partition.”

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From a plain reading of the observation of this Court in

the aforesaid decision as quoted above,  it  is clear that

the relief that could be granted by the Civil Court itself

which is a decree for partition could not be granted by

the tribunal  and it  was only the civil  court  which can

entertain a suit involving partition of the said land as we

have already held that it was beyond the jurisdiction of

the  Land  Tribunal.  Therefore,  the  aforesaid  Paragraph

no. 8 on which reliance was placed by the respondents

would  not  help  them  but  in  contrary  would  help  the

appellants because  in that case this Court had clearly

held that a relief for grant of partition rights could not be

granted by the Tribunal.  That  apart,  this Court  in the

case  of  Mudakappa vs.  Rudrappa & Ors.  [(1994)  2

SCC 57],  laid down the law in respect of the question

posed in this case which is reproduced as under:

“If  one  of  the  members  of  the  family cultivates  the  joint  family,  under  these circumstances,  pending  the suit, when the question arises whether the member or the joint  family  is  the  tenant,  that  question should  be  decided  by  the  Tribunal  alone under  Section  48A  read  with Section 133

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and not by the civil court. Since the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine rival  claims,  it should  record  the  evidence and decide the matter so that its correctness could be treated either by an appeal or by judicial review, under Article 226 or under Article  227  as  the  case  may  be.  But,  it 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  cannot, therefore,  be said  that the rival claims for tenancy  or  the  nature  of  the  tenancy  are exclusively left to be dealt with by the Civil Court.”

9. Thus in view of the aforesaid decision, we hold that

the  Civil  Court  had  no  jurisdiction  to  decide  as  to

whether the joint family or one of  the members  was a

tenant,  when that question was considered finally  and

authoritatively  on merits  by the  Land Tribunal  Gadag.

Therefore, we are of the view that the learned Additional

Sessions Judge, Dharwad, was perfectly justified in view

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of ouster of jurisdiction of the civil court under Section

133 of the Act, in setting aside the judgment of the trial

court  to  this  extent.  Consequent  thereupon,  we  are,

therefore, also of the view that the High Court was wrong

in setting aside the order of the 2nd Additional Sessions

Judge,  Dharwad  on  an  appeal  preferred  by  the

respondents.  

10. Before we conclude, we may note that as observed

herein  earlier,  the  High  Court  in  the  earlier  Writ

Application by its order dated 17th of  December,  1982,

held  on  consideration  of  evidence  produced  by  the

parties and materials on record that the disputed land

was  taken  for  cultivation  jointly  by  the  parties  and,

therefore, the parties were in joint cultivation.  It would

be evident from the order of the High Court passed on

17th of December, 1982, that only to demarcate the share

of the parties, the matter was remitted back to the Land

Tribunal. Therefore, the question of reopening this issue,

namely whether a person is in possession of the disputed

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land as a personal cultivator, or the disputed land was in

joint possession of the family members of the parties, is

no longer available to be agitated before the civil court. At

the risk of repetition, we may also note that before the

Land  Tribunal  it  was  conclusively  decided  that  the

predecessor-in-title  of  both  the  parties  had  taken  the

disputed land for cultivation jointly and that they were

jointly cultivating the same. That being the position, and

in view of Section 133 of the Act, the jurisdiction of the

Civil  court  having  been  ousted  and  applying  the

principles  as  laid  down  by  this  Court  in  the  case  of

Mudakappa  vs.  Rudrappa  &  Ors.  (Supra)  ,   and

Balawwa  &  Anr.  vs.  Hasanabi  &  Ors.  (supra)  ,   in

paragraph no. 7 and 8 of the same, as mentioned herein

earlier,  we are of  the view that the High Court  was in

error  in  setting  aside  the  judgment  of  the  Appellate

Authority  and  remanding  the  matter  to  the  same  for

decision  in  the  light  of  the  observations  made  in  the

impugned judgment.

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11. Accordingly, we set aside the impugned judgment of

the  High Court  thereby  restoring the  judgment  of

the 2nd Additional Sessions Judge holding that the

civil court had no jurisdiction to entertain the suit

for declaration of title as it was within the exclusive

jurisdiction of the Land Tribunal.   

12. The appeal is accordingly allowed. There will be no

order as to costs.

       ………………………J.        [Tarun Chatterjee]

New Delhi; ………………………J.

November 07, 2008.   [Aftab Alam]

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