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CASE NO.: Appeal (civil)  2089 of 1998

PETITIONER: Laxmappa Bhimappa Hulsgeri by LRs & Ors.

RESPONDENT: Hanamappa Shetteppa Korwar & Ors.

DATE OF JUDGMENT: 13/04/2004

BENCH: S. RAJENDRA BABU,  Dr. AR. LAKSHMANAN & G.P. MATHUR.

JUDGMENT: JUDGMENT

RAJENDRA BABU,  J.  :

       A suit was filed by the first respondent for declaration  that he and third Respondent Fakirawwa are the owners of  the suit land and for possession from the original Appellant  (Laxmappa) and for other incidental reliefs.   He had  impleaded his father as second defendant in the suit and his  mother as third defendant.  It is claimed that his father was  a spent thrift; that since he and his younger brother did not  want to continue to be joint and on receiving a sum of  Rupees One thousand relinquished his interest in the joint  family property by executing a registered deed dated  26.4.1960; that thereafter he and his younger brother  became owners in possession of the said properties;  that  about 4 or 5 years later his younger brother died and in  terms of the Hindu Succession Act their mother succeeded  to his share;  that thus the said properties came under his  and his mother’s ownership and possession; when the  matter stood thus even though his father had relinquished  his rights over the plaint schedule land,  he executed a  registered sale deed on 16.4.1963 in favour of the appellant  and put him in possession of the same; he claimed that the  said sale in favour of Appellant is not binding on him and his  mother.    

The appellant denied the execution of the  relinquishment deed dated 26.4.1960 and contended that as  the father of the first respondent had incurred debts and for  discharge of the same borrowed from the appellant a sum of  Rs.2000 and created a mortgage in 1950 in his favour in  respect of entire land in R.S. No. 15/A measuring 11 Acres  16 guntas.   Again the father of 1st respondent borrowed  Rs.3000/- and executed an advance lease deed (’Agavu  Lavani’] in favour of respondent for a period of 60 years and  executed a registered deed on 26.8.1952 in respect of entire  acre of 11  acres 16 guntas of land.   His name is included in  revenue records as tenant in ME 1014 and has been in  possession thereof since then. During the subsistence of that  lease the father of the first respondent again approached the  appellant for money for family necessity and to discharge his  prior debts and took a sum of Rs. 1000/- and executed a  registered sale deed dated 26.4.1960 in respect of an extent  of 5 acres 30 guntas on the northern side in that land after  obtaining the requisite permission from the jurisdictional  Tahsildar;  that thus the appellant became the absolute  owner of that portion of 5 acres 30 guntas;  that the mother  of the first respondent was also in need of money for family

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necessity and for discharging the debt due by her husband  borrowed a loan of Rs. 2000/- from him and executed a  registered sale deed in that behalf on 16.12.1960 acting as  the guardian of the first respondent and his younger brother   who were minors at that time;  that from that date onwards   he became the absolute owner also and has been in  possession of the same;  that the father of the first  respondent, who was again in need of money, executed a  registered sale deed in favour of the appellant for a sum of  Rs. 1000/- on 16.4.1983 in respect of certain lands after  obtaining permission of the Tahsildar and thus the said two  sale deeds dated 16.12.1960 and 16.4.1963 were legally  valid and binding on defendants 2 and 3 and the plaintiff.  In  this manner, the appellant claimed that he became the  absolute owner of the entire extent of 11 acres 16 guntas  both as a tenant and subsequently as a full owner thereof  and continued to be in possession of the said land as a  tenant.  He also raised certain contentions regarding  limitation and that he had perfected his title by adverse  possession over the land.   He also alternatively contended  that if the deed of transfer dated 16th April 1963 is invalid,  his tenancy rights were not affected and from 1.3.1974 the  tenanted land vested in Government and that, therefore,   the plaintiff is not entitled to seek the relief of possession  from him.   He also contended that the relinquishment deed  referred to in the plaint was not a genuine one and did not  affect his rights;  that the plaintiff and defendants Nos. 2  and 3 had continued to be the members of a joint family and  that the second defendant was its manager.      

       On this basis several issues were raised by the trial  court.   Two issues are with reference to claims regarding  tenancy and they are :

"10A] If the sale deed dated 16.4.1963 is invalid  whether the tenancy rights of defendant-1  subsists on 1.3.1974? 10B] Whether the plaintiff is entitled to possession  if defendant-1 is held to be a tenant on the date of  suit?"

       The trial court held on these two issues as follows:

"25. Issue No.10B: There is no question of any  tenancy rights involved in this suit.  No permission of  the Tehsildar was obtained for the execution of the  sale deed by defendant No.3.  Moreover, defendant  No.1 has taken a sale deed from defendant No.2 on  the allegation that defendant No.2 is the owner of the  suit land.  Before that, defendant No.1 had recognised  the title of the minor plaintiff and his brother Yallappa  by taking agreement and sale deed is to be held  invalid.  Therefore, having taken a document from  defendant No.2, he cannot now content that he is a  tenant of the suit land.  Hence, my findings on issue  No.10B is answered in the negative.

26. Issue No.10A: The defendant No. 1 was not the  tenant of the suit land on 1.3.1974 or on the date of  suit."

The trial court decreed the suit in respect of half share of  suit land.   

On appeal, the said findings of the trial court were

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upset and the suit filed by the first respondent was  dismissed.    

       The learned District Judge noticed that the land  comprised in R.S. No. 15 measuring 11 acres 16 guntas was  the ancestral property of the third defendant and that,  therefore,  the plaintiff was also a coparcener of the land.   But there are several registered documents filed in the court  in the shape of Ex. P-2, D-10, D-11, D-13, D-12 and D-6. As  found by the first appellate court, registered lease deed  dated 26.4.1960, which is Ex. P-2, had not been acted up at  all at any rate in respect of the suit land.   The first appellate  court also found that Ex. D-10, which is a registered lease  deed in respect of entire extent of 11 acres 16 guntas,  became effective at least partially because admittedly the  third defendant had sold the northern extent of 5 acres 30  guntas to the appellant under the registered sale deed Ex.   D-11 dated 26.4.1960 after obtaining the permission of the  jurisdictional Tahsildar to effect that sale.  But on the same  day,  he executed sale deed Ex. D-11 and release deed Ex.  P-2 and both the documents were scribed by PW-2.    Therefore,  the first appellate court found that the first  defendant cannot be heard that he was not aware of the  execution of the release deed because that document and  Ex. D-11 had come into existence simultaneously.  Thus the  question of importance is whether the trial court was  justified in concluding that under Ex. D-10 the first  defendant did not become the tenant in respect of the suit  land which is the southern portion of the survey number and  that the release effected under Ex. P-2 was acted upon.    The second defendant had no right to effect the sale of the  suit land in favour of the appellant under Ex. D-8 after  obtaining the permission of the Tahsildar on the same date  as evidenced by Ex. D-14.  However, if it is to be concluded  that under Ex. D-10 the first defendant became tenant in  respect of the entire survey number,  the lower court’s  judgment and decree releasing the plaintiff’s  half share in  the suit land will have to be set aside.    On appreciation of  the documents and the oral evidence in the case,  the first  appellate court held that the entries in the various revenue  records showed that the suit land measuring 5 acres 16  guntas was either under a personal cultivation of the second  defendant or of two other tenants upto 1960-61.  It was  never the case of the plaintiff that his father had personally  cultivated the suit land for a couple of years and then leased  it to two others for one year each and there was again  personal cultivation of it.   If the first defendant was not the  tenant at all in respect of the entire land in view of Ex. D-10  it was improbable that an attempt was made as far back as  1963 by defendants 1 and 3 to obtain the permission of the  jurisdictional Tahsildar for selling away the suit land to the  first defendant.  Therefore,  the suit was filed nearly 12  years after the order was passed by the Tahsildar.  He found  that Ex. D-14 disclosed that the tenant in occupation of the  suit land during those days was the appellant and there was  no need for initiating proceeding before the Tahsildar.  The  first appellate court, therefore, found that under Ex. D-10  the first defendant became the tenant in occupation in  respect of the northern extent of 5 acres 30 guntas only and  not the southern suit land measuring 5 acres 26 guntas and  that he was the tenant in respect of the entire extent of 11  acres 16 guntas of land.   On examination of the documents,   the first appellate court also gave a finding that the  relinquishment deed was not valid and upheld the view of  the trial court that the second defendant had no subsisting

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rights in the suit land to be conveyed to the first defendant  under Ex. D-6 and that, therefore,  the first defendant got  no rights under that document over the suit land.    The  learned District Judge found that the finding recorded by the  trial court on several issues was justified in the  circumstances of the case;  that Ex. D-12 executed by the  third defendant in respect of an extent of 3 acres 26 guntas  was not after obtaining permission of the jurisdictional  Tahsildar as required under Section 64(3) of the Bombay  Tenancy and Agricultural Lands Act, 1948 and, therefore,   no title could pass in that document;   that Ex.D-12 was  void. The finding of the trial court in this regard was not  upheld. Ex. D-6 and 12 did not convey any proprietary rights  to the first defendant at all in respect of the suit land and  the plaintiff and the third defendant were the co-owners of  that extent but those rights of their’s became extinguished  from 1.3.1974 having regard to the provisions of the  Bombay Tenancy and Agricultural Lands Act, 1948.   Therefore,  he came to the conclusion that the plaintiff’s suit  required to be dismissed.  The learned Judge found that the  plaintiff-first respondent had no status as a co-owner of the  suit land as on the date of the suit.  Neither the  first  respondent nor his father had any rights in respect of the  same during the vesting of the tenanted lands in the  Government subject to the rights of landlords and tenants,  specially saved under the Karnataka Land Reforms Act, 1961  and, therefore,  the said cross-objections filed were  dismissed.   

       Thereafter,  the matter was  carried in second appeal.   The High Court allowed second appeal by an order made on  9.3.1985 and the judgment and decree passed by the first  appellate court was set aside and held that the appellant as  a co-owner of the suit land is entitled to the relief claimed  for recovery of possession over the entire suit land.   Subsequently, the order made on 9.3.1995 allowing the  second appeal was recalled and the appeal was posted for  fresh hearing. On 17.11.1997 the High Court finally disposed  of the appeal after referring to the judgment dated 9.3.1995  by stating that it concurs with the earlier order but gave  certain additional reasons.  This is how,  the learned Judge  stated :-

"It is also necessary to place on record that this appeal is  disposed of in the same manner mentioned in the last  paragraph above by another single Judge of this Court;    that judgment was recalled on the technical objection of  non-impleading of the L.Rs of one of the parties.  However,   that was disposed of on merits, taking into consideration  the legal position as well.  I have concurred with the  earlier view,  though I have give additional point in support  of that view."

       It is difficult to appreciate the course adopted by the  learned Judge.  If all the parties had not been present who  could have been impleaded then the judgment rendered  thereto will not be one which was decided in the presence of  all the parties.  Therefore,  when the earlier order dated  9.3.1995 was recalled,  the entire judgment stood upset and  is no longer available for the learned Judge either to concur  or accept that reasoning.   We may have to treat that part of  reasoning as part of his judgment to properly appreicate the  case.

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       Whether the appellant became the owner in possession  of the entire suit land by virtue of registered sale deed Ex.  D-6 dated 16th April 1963 and in the event that sale deed is  found to be invalid for any reason, the sale deed Ex.D-12  dated 16.12.1960 is binding on the plaintiff in respect of  extent of 5 acres 26 guntas and whether his rights in respect  of the remaining extent as a tenant are not affected and  even if the said sale deed Ex.D-12 is also found to be  invalid, then his rights as a tenant in respect of the entire  suit land is protected.  It is also to be seen whether the  reliefs claimed by the first respondent in the suit land is  tenable and as a co-owner with the third defendant he is  entitled to those reliefs in respect of the entire suit land.   

       These aspects  were not looked into by the High Court  in the course of its first order.   The High Court merely  referred to Section 133 of the Karnataka Land Revenue Act,  1964 to state that some of the entries in the revenue  records indicated that the appellant was not in possession of  the lands.  However,  the first appellate court after referring  to the order of permission granted by the jurisdictional  Tahsildar concluded that since in the said documents the  appellant had been described as a tenant,  he, therefore,  should be presumed to be a tenant notwithstanding the  entries appearing in the record of rights.  The presumption  arising under Section 133 of the Karnataka Land Revenue  Act, 1964 will, therefore, by itself, not be enough and if the  same could be disturbed such a presumption can be decided  with reference to any other material.   While the first  appellate court gave importance to Ex. D-14  the permission  granted by the Tahsildar,  the High Court said that it is of no  consequence.  However, in the circumstances of the case   the finding recorded by the first appellate court is final.  It  has taken the view that description of the appellant in the  order of permission granted by the jurisdictional Tahsildar  would tilt the matter which clearly indicated that the  appellant was the tenant in respect of the entire land.  But in  the second order made by the High Court  the learned Judge  has gone on to set out various principles which really have  no bearing on the matter. The court had to examine the  effect of the documents on record and come to the  conclusion one way or the other.  The first appellate court  considered the effect of these documents and came to the  conclusion that it had been established that the appellant  was in possession of the suit land only in the capacity of a  tenant and he had not acquired title under the sale deeds in  question since the said sale deeds were invalid.   

       A contention now put forth before us is that in view of  the fact that the sales having been effected in respect of the  suit lands the tenant’s rights stood extinguished and  proprietary rights were replaced or the tenant’s rights stood  converted to the proprietary rights cannot be accepted  because when the sale transaction itself has been held to be  invalid,  there was no transaction in the eye of law and in  the absence of such transaction,  there was no circumstance  which obliterated the rights arising as a tenant.  Thus it is  contended that the rights stood unaffected and in this  context, it is necessary to examine the contention put forth  before us is that the issue as to tenancy ought to have been  referred to the Land Reforms Tribunal and ought not to have  been decided by the trial court itself.  

Section 132 of the Karnataka Land Reforms Act bars

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the jurisdiction of civil courts in matters, which are to be  decided by a Tribunal.  Section 133 of the Karnataka Land  Reforms Act provides for suits and other proceedings that  are required to be decided by a Tribunal under the Act.   No  civil court can decide any question as to whether land in  dispute is an agricultural land or whether the person  claiming to be in possession thereof is or is not a tenant of  the said land as on 1.3.1974.   All tenancies came to an end  on 1.3.1974 under Section 5 of the Act.  Thus, what is  contemplated by Sections 132 and 133 of the Karnataka  Land Reforms Act is that if there is any existing tenancy  right as on 1.3.1974 then civil court shall have to frame an  issue relating to tenancy and refer the same to Tribunal.   

       In the present case, the suit had been brought by the  first respondent for various reliefs including that of  possession and that right had been defeated on the ground  that on the relevant date the suit lands were tenanted lands  and, therefore, from 1.3.1974 he did not have rights as  owner and the land having vested in the State and on that  basis suit had been dismissed.   It is not so much as to  declare the rights of the first appellant  that such finding had  been recorded but it is more to defeat the claim of the  appellant.  Whether the first defendant can protect his  possession otherwise or not is not to be decided in these  proceedings.   Prima facie, the first appellate court could not  hold that the appellant was a tenant in respect of the land  and issues 10-A and 10-B should have been decided only by  a Tribunal constituted under the Karnataka Land Reforms  Act.  The question whether on 1.3.1974 when the Act came  into force the appellant was a tenant in respect of the land  in question or not could not have been decided by civil  courts.  Hence, the decrees passed by High Court, First  Appellate Court and trial court are set aside and the matter  is remitted to the trial court to refer issue 10-A to Land  Reforms Tribunal for adjudication and report.  In the  meanwhile, the parties shall directed to maintain status quo  as to possession of the land until disposal of matters before  the Tribunal and the trial court.

       In the result, the appeal is allowed accordingly.