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PETITIONER: NOOR MOHD.  KHAN GHOUSE KHAN SOUDAGAR AND ANR.

       Vs.

RESPONDENT: FAKIRAPPA BHARMAPPA MACHENAHALLI AND ORS.

DATE OF JUDGMENT28/04/1978

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SARKARIA, RANJIT SINGH KAILASAM, P.S.

CITATION:  1978 AIR 1217            1978 SCR  (3) 789  1978 SCC  (3) 188  CITATOR INFO :  R          1979 SC 653  (17A)  R          1989 SC2204  (12)

ACT: Karnataka  Land Reforms Act, 1961. (Mysore Act 10 of  1962), Sections  132, 133 and 142 (IA)-Eviction of a "tenant"  from the  land, whether the decision of this Court in  Kulkarni’s case  [1966]  1  SCR 145, interpreting Section  85A  of  the Bombay Tenancy and Agricultural Lands Act, 1948 also governs the  interpretation of the provisions of the Karnataka  Act, 1961. Karnataka  Land Reforms Act, 1961 (Mysore Act 10  of  1962)- Whether  the  provisions of Act render the doctrine  of  lis pendens contained in Section 52 of the Transfer of  Property Act (Central Act 4), 1882 inapplicable. Jurisdiction-Determination  whether  the  jurisdiction   was expressly  or by necessary implications excluded depends  on the  provisions  of the relevant  enactments-Karnataka  Land Reforms Act, 1961 (Mysore Act 10 of 1962), Sections 132  and 133  are applicable to  pending  proceedings.-Interpretation of-Karnataka  Land Reforms Act, 1961 Sections 132,  and  133 r/w Mysore Tenants (Temporary Protection from eviction) Act, 1961 Section 4(1) and Bombay Tenancy and Agricultural  Lands Act, 1948 S. 85A.

HEADNOTE: A  suit  for  partition  and possession  was  filed  by  the original  respondent No. 2 herein against respondent  No.  4 (Defendant  No. I in the Suit), defendants 2 to 7 being  co- sharers  and defendants 8 to 14 being tenans in  possession. The Trial Court passed a preliminary decree on 13-12-1954 by which  each  branch got 1/7th share.  The  said  preliminary decree  was  confirmed by the High Court on  16-1-1963.   In accordance with the law prevalent in the Karnataka State, an execution  case under Section 54 r/w Order XX rule  18/Order XXI  rule  35  C.P.C.  being LD  117/56  was  filed  by  the plaintiff-decree holder and the appellants’  predecessor-in- interest  i.e. (defendants 5 and 6 ) in the Court which  had passed  the  preliminary  decree  for  final  partition  and possession  of  the  same had to be made and  given  by  the Collector.   In this execution case respondent No. I  herein

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was impleaded as judgment debtor No. 20 because, during  the pendency of the Suit in or about the year 1948, he had  been inducted as a lessee of a portion of the suit properties  in R.S.  No.  61/1  and  R.S.  No.  61/2  situated  in  village Yattinahalli  in Ranebennur Taluk of Dharwar  district.  The effect  of impleading respondent No. 1 as a judgment  debtor was  as  if he was impleaded as a party to the  suit  before final  partition.   On  May 29, 1961,  the  Executing  Court directed the Collector to partition the suit property and to give  possession of their respective allotted lands  to  the various co-sharers including the appellants.  Respondent No. 1  did  not object to the claim.  Neither did he  carry  any appeal  against  the said orders.  The  Collector  made  the final  allotment of the various lands to the  different  co- sharers.  The disputed land over which respondent No. 1  had been inducted by respondent No. 4 was allotted to the  share of the predecessors-in-interest of the appellants some  time after 29-5-1961 and before 29-5-1965. On 29-5-1965, in pursuance of the direction of the Execution Court  and the Collector, the Tahsildar went to  effect  the delivery   of  possession  but  proposed  to  deliver   only symbolical  possession of the disputed land and declined  to deliver  actual possession, as he found respondent No. I  to be  in actual cultivating possession of it.   The  Execution Court  was moved in the matter and. by its order dated  8-6- 1965,   it   directed  the  Tahsildar  to   deliver   actual possession.   On an appeal by respondent No. 1 in  C.A.  104 165 the said execution orders of the Tahsildar was confirmed resulting in Execution Second Appeal by Respondent No. 1  in E.S.A. 86/65 before the High Court.  The High Court made 790 certain   conditional  orders  of  ad-interim   stay.    The conditions  were  not  complied with by  respondent  No.  I. Thereupon  the appellants made an application again  to  the Execution  Court for directing actual delivery.   The  first respondent  contested the application on the ground that  he being the tenant of the land had made an, application  under the Mysore Land Reforms Act, 1961 which had come into  force on  October  2,  1965 seeking a declaration that  be  was  a tenant  within the meaning of that Act and obtained a  stay. The Execution Court by its order dated 8-8-1967 rejected the plea  and  again directed the Tahsildar  to  deliver  actual possession  and  this  order  was  confirmed  by  the  First Appellate Court in C.A. 34/67.  Execution Second Appeal  No. 78/67 was filed by respondent No. I in the High Court on 21- 9-1967.   The High Court disposed of both the  E.S.A.  86/65 and  E.S.A.  78/67  by a common  judgment  and  allowed  the appeals.  The High Court held that respondent No. 1, in view of  the provisions of the Karnataka Act, cannot  be  evicted and  no actual delivery of possession can be  given  against him unless the requirements of the said Act was followed : Dismissing the appeals by special leave, the Court Per Untwalia, J. (On behalf of R. S. Sarkaria J. as well) HELD :1.  Civil Court’s jurisdiction is barred under section 132  of  the Karnataka Land Reforms Act, which  is  in  pari materia   with  Section  85  of  the  Bombay   Tenancy   and Agricultural  Lands Act, 1948.  Section 133  corresponds  to Section 85A of the Act.  The saving sub-section IA, inserted by Act 14 of 1965 in Section 142 extended the protection  of the eviction of the Mysore Act against eviction and provided that an agriculturist shall not be liable to be evicted from land  in respect of which he could be deemed to be a  tenant except  in accordance with the provisions of  the  Karnataka Act. [797 F-G, 798 D] Dhondi  Tukaram  Mali and Anr. v. Hart Dadu Mang  and  Ors.,

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I.L.R. 53 Bombay, 969 referred to Custodian  of  Evacuee  Property, Punjab &  Ors.  v.  Jafran Begum,  [1967]  3  S.C.R. 736; Corporation of  the  City  of Bangalore v. B. T. Kampanna, [1977] 1 S.C.R. 269,  Secretary of Store v. Mask Co., 67 I.A. 222, explained. Mussamiya  Imam  Haider  Bux  Razvi  v.  Rabari   Govindbhai Ratnabhai  and  Ors.,  [1969]  1  SCR  785;  explained   and distinguished. 2.   The facts of the present case do attract the provisions of  the Mysore Tenants (Temporary Protection from  Eviction) Act,  1961 and subsequently the Karnataka Land Reforms  Act. The   first  respondent  was  a  tenant  under  the   fourth respondent within the meaning of Section 2(18) of the Bombay Act.   He had therefore, the protection of the  Bombay  Act. Later he got the protection under Section 2(e) of the Mysore Act  and subsequently, the protection continued  even  under the Karnataka Act.  The question which falls for decision in these  appeals is not one as to the applicability of any  of the three Acts to the land in dispute but squarely (1) it is a  question as to whether the claim of the first  respondent that he became a tenant under the appellants also is tenable under  the various Act.  Thus on the facts of the  case  the decision  of  this Court in Kulkarni’s case applies  on  all fours. [802 A-C] Bhimji  Shankar  Kulkarni v. Dundappa Vithappa  Adapudi  and Anr. [1966] 1 SCR 145; followed. 3.   The  argument  that though the respondent No.  1  might have  been inducted as a tenant by respondent No. 4, but  as soon  as,  the  land  was  allotted  to  the  share  of  the appellants he ceased to be in lawful possession of the  land and  in  view  of  the well settled  position  of  law  with reference  to Section 52 of the Transfer of Property Act  he could  not  be  a  ’tenant’ or  ’deemed  tenant’  under  the appellants within the meaning of the Bombay Act or Karnataka Act is not correct.  A question arose during the pendency of the  suit and the execution proceeding whether on the  final allotment  of the land to the appellants, respondent  No.  1 had  ceased  to be a tenant and had become a  trespasser  in view of 791 section 52 of the Transfer of Property Act.  The  appellants may have a good case on merits.  But there does not seem  to be any escape from the position that the adjudication of the question aforesaid fell squarely and exclusively within  the jurisdiction of the Revenue Authorities and the Civil  Court had  no jurisdiction to decide it.  It was not a case  where there was no dispute of the fact that respondent No. 1 was a tenant  or vice versa.  Nor was it a case where dispute  had cropped up inter se between two persons both claiming to  be the  landlord  of  the  land or  between  two  persons  both claiming  to  be the tenant of the land.   The  dispute  was whether  respondent  No.  1 had become  the  tenant  of  the appellants or not. [802 D-H, 803 A] Bhimappa  Venkappa  Kerisa v.  Basavalingayya,  I.L.R.  1958 Mysore,  197; Ramdas Popat Patil v. Fakira Pandu  Patil  and Ors.  A.L.R. 1959 Bombay, 19 and Chandbeg Muradbeg and  Ors. v.  Raje Madhao Devidasrao Jahagirdar and Ors., AIR 1961  By 146, explained and distinguished. Kedar  Nath  Lal and Anr. v. Ganesh Ram and  Ors.  [1970]  2 S.C.R. 204, referred to. Per Kailasvam J. 1.   The exclusion of the jurisdiction of the Civil Court is not  to  be  lightly  inferred.   Such  exclusion  must   be explicitly  expressed  or  clearly  implied.   In  order  to determine  whether the jurisdiction of the Civil  Court  was

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expressly   or   by  necessary  implication   excluded   the provisions  of  the  relevant enactments will,  have  to  be considered. [806 A-D] Secretary  of State v. Mask Co., 67 I.A. 622,  Dhulabhai  v. State of M.P. [1968] 3 SCR 662; State of West Bengal v.  The Indian  Iron and Steel Co. Ltd [1971] 1 S.C.R 275, Union  of India  v.  Tara Chand Gupta and Bros.,  [1971]  S.C.R.  557; reiterated. 2.   The  Karnataka Land Reforms Act as well as the  earlier enactments  were  made  for  the  purposes  of   introducing agrarian  reforms,  conferment  of  ownership  on   tenants, ceiling  on  land  holdings and for  certain  other  matters referred  to  in  the Act.  Any dispute  arising  under  the provisions  of  the  Act and relating  to  disputes  between landlord  and tenant will be within the jurisdiction of  the Tribunal constituted under the Act. [808 A-B] By Section 132 of the Karnataka Land Reforms Act, 1961,  the jurisdiction  of the Civil Court to settle, decide, to  deal with  any  question which is under the Act  required  to  be decided by the authorities set up by the Act is taken  away. Under  Section  112  B which enumerates the  duties  of  the Tribunal it is clearly the duty of the Tribunal to determine whether   a  person  who  claims  to  be  a  tenant  is   an agriculturist,  whether he cultivates personally the  lands, whether he holds, the lands from a landlord, whether he is a deemed  tenant  under section 4, whether he is  entitled  to protection  from eviction from any land under the  Karnataka Tenants  (Temporary  Protection from  Eviction)  Act,  1961, whether  he  is  a  permanent tenant and  whether  he  is  a protected  tenant.   In this connection it is  necessary  to note the definition of landlord in section 2(21) which means a  person who has leased the land to a tenant  and  includes person  entitled to receive the rent from a tenant.   It  is also  the  duty  of the Tribunal to  determine  whether  the tenant is holding the land on lease from a landlord. [807 B, F-H] Asa Ram and Anr. v. Mst.  Ram Kali & Anr., [1958] S.C.R. 986 referred to. 3.   Sub-section 2(a) of Section 133 of the Karnataka Act is applicable  to  suits only and does not  indicate  that  the provisions  are  applicable to execution proceedings  or  in appeals before Civil Courts.  The jurisdiction of the  Civil Court is taken away only in respect of the decisions of  the issues  in  suits that are required to be  referred  to  the Tribunal  under Section 133 and the Civil Court  shall  stay the suit.  On receipt of a communication from the  Tribunal, the  Civil Court has to proceed with the trial of  the  suit and  dispose  it  of according to law.  In  the  absence  of express provision, when an issue has been 792 referred  by  the  Civil  Court  to  the  Tribunal  and   is received,back and a decree passed in the suit, the provision of the Civil Procedure Code regarding appeals and  revisions will  be  applicable.  In such circumstances  the  appellate Court will have to consider the correctness or otherwise  of the  issue that has been decided by the  Tribunal.   Section 4(1) of the Mysore Act which is similar to section 133(2) of the  Karnataka Act provided for stay of execution in  suits, proceedings  and  execution of decrees or orders  and  other proceedings for the eviction of tenant.  In applying section 133,  therefore,  the questions that have to  be  considered are,  whether  the sub-section is  applicable  to  execution proceedings  and in appeals before Civil Courts.  [808  F-H, 809 A-B] In the instant case, as the respondent took the plea that he

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is  protected under the Mysore Land Reforms Act,  1961,  the question  as  to what extent the jurisdiction of  the  Civil Court  is  barred ought to have been gone into by  the  High Court.  It is unfortunate that the High Court considered  it unnecessary to consider the various questions in the  Second Appeals  in  view of the decision of this court  in  Bhimaji Shanker  Kulkarni  v. Dundappa Vithappa  Udapudi  and  Anr., [1966]  1  S.C.R. 145.  The only other ground on  which  the appeals  were dismissed was that under section  142(1-A)  of the Mysore Act corresponding to section 22 of the  Karnataka Act,  the  1st respondent was entitled to  protection.   The protection  is  available only when the land is  held  by  a person as a tenant. [810 B-D] Bhimaii  Shankar Kulkarni v. Dundappa Vithappa  Udapudi  and Anr.  [1966]  1  S.C.R. 145; Dhondi Tukkaram  v.  Hari  Dadu I.L.R. (1953) Bom. 969; explained. 4.   If in law the sharer in possession could not enter into any  transaction  obviously  affecting  the  rights  of  the parties the defendant cannot claim any right and  therefore, will not be a tenant.  The question to be considered in such circumstances  is whether an issue that the defendant  is  a tenant arises at all. [811 G-H, 812 A] 5.  The  Civil  Court  has  inherent  power  to  decide  the question of its own jurisdiction although as a result of  an inquiry  it may turn out that it has no jurisdiction.   Even though  the  defendant may plead that he is  a  tenant,  the Court must be satisfied that an issue whether the  defendant is  a tenant or not arises before it could be  referred  for determination   by   the  Tribunal  and  the   question   of jurisdiction  will not be decided mainly on the plea of  the defendants. [812 A, 813A] Bhatia  Cooperative Housing Society v. D. C.  Patel,  [1953] S.C.R. 185; followed. Bhimaji   Shankar Kulkarni v. Dundappa Vithappa Udapudi  and Anr., [1966] 1 S.C.R. 145, Raizada Topandas and Anr. v. M/s. Gorakhram   Gokhalchand,  [1964]  2  S.C.R.  214;   Vasudeva Gopalkrishna  Tanwaker  v. The Board of  Liquidators,  Happy Home  Cooperative  Housing  Society  [1964]  3  S.C.R.  964; Musamiya Imam Haider Beg Razvi v. Raberi Govindha  Ratnabhai and  Ors. [1969] 1 S.C.R. 785, Secretary of State v. Mask  & Co., 67 I,A, 222, Corporation of City of Bangalore v. B.  T. Kampanna, [1977] 1 S.C.R. 269, explained. 6.   In the instant case (a)  It  was  incumbent  On the High  Court  to  decide  the several questions that arise for consideration.  The plea of the  appellants  that  the decisions  of  the  Civil  Courts directing  the 1st respondent to deliver the  possession  to the appellant have become Anal and was no more available  to him  to be raised under the Karnataka Land Reforms Act  also falls  for decision.  Equally, the plea that  the  questions that  arise in the appeals are not within the competence  of the  Tribunal,  also ought to have been gone  into.   Before referring the issue to the Tribunal the High Court ought  to have come to a conclusion that on the facts of the case  the issue  as  to  whether the 1st respondent is  a  tenant  has arisen and has to be decided by the Tribunal. [816 D-E] (b)  The  High Court ought to have also  considered  whether any  restriction  on the jurisdiction of  the  Civil  Courts placed under the Act is applicable to the 793 High  Court also.  The jurisdiction of the Civil  Courts  is not  entirely barred as the Act only provides for  reference of  certain issues for decision before the Revenue  Tribunal and after receipt of the finding of such issues to record  a judgment  on such finding.  The appeal to the  Civil  Courts

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according  to the Civil Procedure Code and the  jurisdiction of  the  High Court in hearing appeals and  revisions  under certain circumstances have not been excluded.  [816 F-G] [In  view  of  the  statement at the  bar  that  during  the pendency  of  these  appeals in this  Court  that  the  Land Tribunal  dismissed  R.  C. 37/66 filed  by  the  respondent seeking declaration that he is a tenant in holding and  that he  is  not  a tenant, the court  ordered  (a)  that  actual delivery   of   possessions  would  be  delivered   to   the appellants, if the question has already been finally decided in  favour  of  the  appellants  (b)  If  not  the   revenue authorities should decide as quickly as possible and if  the decision goes in favour of the appellants no time should  be lost in giving actual delivery of possession to them and  if per  chance, the decision goes against them only  symbolical possession be given.]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil  Appeals  Nos.  2372- 2373/68. Appeals  by Special Leave from the Judgment and Order  dated 9th  February  1968 of the Mysore High  Court  in  Execution Second Appeal Nos., 86 of 1965 and 78 of 1967. S. S. Javali and M. Veerappa for the Appellants. Naunit  Lal and K. Yasudev for Respondent No. I in both  the appeals. K.   Ramkumar  and K. Jayaram for Respondent No. 4 (In  C.A. 2372/68). The Judgment of the Court was delivered by UNTWALIA,  J.  These two appeals by special leave  are  from the  common  judgment of the Karnataka High Court.   In  the year 1945, a suit for partition and possession was filed  by the original respondent No. 2 (since deceased and his  heirs substituted).   In  the said suit all  the  co-sharers  were impleaded as defendants 1 to 7. The 4th respondent in  these appeals was defendant No. I and the predecessors in interest of  the appellants were defendants 5 and 6. Each branch  had 1/7th  share.  A preliminary decree was passed by the  Trial Court  on December 13. 1954, which was eventually  confirmed by the High Court in a second appeal decided on January  16, 1963.   After the passing of the preliminary decree  in  the year 1954, in accordance with the law prevalent in the State of  Karnataka "(then known as My-sore State),  an  execution case  being  L.D. 117 of 1956 was filed  by  the  plaintiff- decree  holder  and the appellants in the  Court  which  had passed  the  preliminary  decree  for  final  partition  and possession;  the  same  had  to be made  and  given  by  the Collector.   In the execution case was impleaded  respondent No. 1 in these appeals as judgment debtor No. 20 because  he had  been  inducted  as a lessee of a portion  of  the  suit properties during its pendency in or about the year 1948  by respondent no. 4. The effect of impleading respondent no.  1 as  a judgment debtor was as if he was impleaded as a  party to  the suit before the final partition.  On May  29,  1961, the executing court 16-315SCI/78 794 directed the Collector to partition the suit property and to give  possession of their respective allotted lands  to  the various co-sharers including the appellants.  The  Collector made  the  final  allotment  of the  various  lands  to  the different   co-sharers.   The  disputed  land   over   which respondent no.  I had been inducted by respondent no. 4  was

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allotted  to the share of the appellants sometime after  May 29,  1961  and  before  May  29,  1965.   On  29-5-1965,  in pursuance  of the direction of the Execution Court  and  the Collector,  the  Tahsildar went to effect  the  delivery  of possession  but proposed to deliver only symbolical  posses- sion  of  the disputed land and declined to  deliver  actual possession,  as, he found respondent no. 1 to be  in  actual cultivating possession of it.  The Execution Court was moved in  the  matter  and by its order dated  June  8,  1965,  it directed  the Tahsildar to deliver actual  possession.   The said  order was confirmed in appeal on July 31, 1965 by  the First  Appellate  Court.  Respondent no. 1  filed  Execution Second  Appeal No. 86 of 1965, presumably because the  order dated 8-6-1965 of the Execution Court was one under  section 47 of the Code of Civil Procedure’ In this appeal, the  High Court  made certain conditional orders of  ad-interim  stay. The  conditions were not complied with by respondent no.  1. Thereupon,  the appellants made an application again to  the Execution Court for directing actual delivery of possession. The first respondent contested the application filed by  the appellants on the ground that he being a tenant of the  land had  made an application under the Mysore Land Reforms  Act, 1961  which  had  come  into  force  on  October  2,   1965, hereinafter  to  be  called the  Karnataka  Act,  seeking  a declaration that he was a tenant within the meaning of  that Act.   The  Execution Court, by its order  dated  August  8, 1967,  again  directed  the  Tahsildar  to  deliver   actual possession  and  its  order  was  confirmed  by  the   First Appellate Court on August 31, 1967.  Execution Second Appeal No.  78  of 1967 was filed by respondent no. 1 in  the  High Court on September 21, 1967. The  High Court has allowed both the appeals by  its  common judgment dated February 9, 1968 and held that respondent no. 1, in view of the provisions of the Karnataka Act, cannot be evicted  and no actual delivery of possession can  be  given against  him  unless the requirements of the  said  Act  are followed.   In  so  doing ’he High Court  has  followed  the decision  of  this  Court in  Bhimaii  Shanker  Kulkarni  v. Dundappa  Vuthappa Udapudi and anr(2) given in  relation  to the  corresponding  provisions  of The  Bombay  Tenancy  and Agricultural Lands Act, 1948, hereinafter called the  Bombay Act.  Hence these appeals. Mr.  S. S. Javali argued for the appellants and  strenuously assailed  the judgment of the High Court.  Mr.  Naunit  Lal, appearing  for the first respondent. combated his  argument. Although respondent no. 4 was also represented before us  by an Advocate, no argument was advanced on ’his behalf, as the dispute  in these appeals is mainly between  the  appellants and the first respondent. Before  we  proceed to notice and discuss  the,  contentions raised by the appellants, we may note a few more  undisputed facts which were (1)  [1966] 1 S.C.R 145-A.I.R. 1966 S.C. 166. 795 given  to  us  by  learned counsel  for  the  parties.   The disputed land in this case is comprised in R.S. No. 61/1 and R.S. No. 61/2 situated in village Yattinahalli in Ranebennur Taluk  of  Dharwar District, which once formed part  of  the erstwhile  State  of Bombay.  On the reorganization  of  the States  in the year 1956, village Yattinahalli came to  form part of the erstwhile State of Mysore now known as the State of  Karnataka.  Our attention was, therefore, rightly  drawn to  the  relevant provisions of the Bombay  Act  which  were applicable  to the disputed land and remained so  applicable even after the reorganization of the State until The  Mysore

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Tenants  (Temporary  Protection from  Eviction)  Act.  1961, hereinafter  called  the Mysore Act, and the  Karnataka  Act were passed and enforced. At the outset of the discussion of the points urged for  the appellants,  we may briefly notice, the relevant  provisions of  the three Acts--viz. the Bombay Act, the Mysore Act  and the Karnataka Act.  Subsections (1 8), (14) and (10A) of the definition section 2 of the Bombay Act respectively  defines ’tenant’,  ’protected tenant’ and ’permanent tenant’.   Sub- section (18) says : "  "  tenant"  means a person who holds land  on  lease  and includes- (a) a person who is deemed to be a tenant under section 4; (b)  a person who is a protected tenant; and (c)  a person who is a permanent tenant; and the word "landlord" shall be construed accordingly." Persons  to be ’deemed tenants’ are mentioned in section  4. The  procedure  for taking possession by or  from  a  tenant under the Bombay Act is provided in section 29.  If a person was  a  tenant under the said Act indisputably he  could  be evicted  only  on  the grounds and in  accordance  with  the Bombay  Act.   Section  70  enumerates  the  duties  of  the Mamlatdar and says :               "For  the purposes of this Act  the  following               shall  be  the  duties  and  functions  to  be               performed by the Mamlatdar               (a)   to   decide  whether  a  person  is   an               agriculturist;               (b)   to decide whether a person is, or was at               any time in the past, a tenant or a  protected               tenant      or     a     permanent      tenant               :....................         is The  words  in clause (b) "or was at any time in  the  past" were  added with retrospective effect by Maharashtra Act  49 of  1969.   It  seems to have been so done in  view  of  the decision of this Court in Mussamiya Imam Haider Bax Razvi V. Rabari  Govindbhai Ratnabhai & Ors.(1) Under section 85  the jurisdiction of the Civil Court concerning any (1)  [1969] 1 S.C.R. 785. 796 matter which has to be decided or dealt with by the  Revenue Authorities,  including the question whether a person is  or was  at  any time in the past a tenant or  not,  is  barred. Section  85A has been extracted in Kulkarni’s case  (supra). It  provides  that if in any suit instituted  in  any  Civil Court an issue arises which has to be decided by the Revenue Authority,  then the Civil Court shall refer such  an  issue for  the  decision  of the Revenue Authority  and  stay  the hearing  of  the suit until then.  The  Civil  Court  shall, thereafter,  pronounce its decision-in accordance  with  the decision  of the Revenue Authority on that  issue.   Dealing with  the  provisions of the Bombay Act  and  approving  the principle  decided by the Bombay High Court in "he  case  of Dhondi  Tukaram  Mali, and another v. Hari  Dadu  Mang,  and others(1) a decision which was given before the introduction of Section 35A in the Bombay Act, it was held in  Kulkarni’s case as follows at page 149               "The  Mamlatdar has exclusive jurisdiction  to               entertain  an  application by a  landlord  for               possession  of  agricultural lands  against  a               tenant,  and the Civil Court has no  jurisdic-               tion to entertain and try a suit by a landlord               against    a   tenant   for   possession    of               agricultural  lands.  The  Mamlatdar  has   no               jurisdiction to try a suit by a landowner  for

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             recovery  of possession of agricultural  lands               from  a  trespasser  or from  a  mortgagee  on               redemption of a mortgage, and the Civil  Court               has jurisdiction to entertain such a suit; but               if  the defendant to the suit pleads that  he,               is  a  tenant  or  a  protected  tenant  or  a               permanent  tenant and an issue arises  whether               be is such a tenant, the Court must refer  the               issue to the Mamlatdar for determination,  and               must stay the suit pending such determination,               and after the Mamlatdar has decided the issue,               the  Court  may  dispose of the  suit  in  the               ’light of the decision of the Mamlatdar." We  now advert to the relevant and corresponding  provisions of  the Mysore and the Karnataka Acts.  Section 2(e) of  the Mysore Act says :--               "  " tenant" means an agriculturist who  holds               land on lease from a landlord and includes  an               agriculturist,  who  is or is deemed to  be  a               tenant  under  any law for the time  being  in               force.."               Sub-section (1) of section 4 reads as follows               "Stay of certain suits or proceedings.-(1) All               suits proceedings in. execution of decrees  or               orders and other proceedings for the  eviction               of  tenants  from the lands held  by  them  as               tenants or in which a claim for such  eviction               is  involved pending in any civil  or  revenue               court  or before any Tribunal on the  date  of               commencement  of  this Act, or  which  may  be               instituted  on  or  after  the  date  of  such               commencement,  shall stand stayed  during  the               period this Act remains in force." (1)  I.L.R. 53 Bombay, 969. 797 It  would  thus be seen that if respondent No.  I  in  these appeals  was a "deemed tenant" under the Bombay Act, he  had the  protection  of the Mysore Act.  The Karnataka  Act  has been amended several times, such as, by Karnataka Act 14  of 1965;  Act 38 of 1966; Act 6 of 1970 and Act 1 of 1974.   We are  referring to the relevant provisions of  the  Karnataka Act  from one of the two petitions of special leave,  as  we were given to understand that the relevant provisions at the relevant  time  read as mentioned in the  said  petition  of special  leave,  The  expressions  ’permanent  tenant’  and’ ’protected tenant’ are defined in subsections (23) and  (27) respectively of section 2. Sub-section (34) says :-               "  "tenant" means an agriculturist  who  holds               land on lease from a landlord and includes :-               (i)   a  person who is deemed to be  a  tenant               under section 4;               a person who was protected from eviction  from               any  land  by the  Mysore  Tenants  (Temporary               Protection from Eviction) Act, 1961, ;               iii)  A person who is a permanent tenant; and               (iv)   A person who is a protected tenant." Persons  to be ’deemed tenants’ are mentioned in  section  4 more  or less on the lines of section 4 of the  Bombay  Act. The grounds on which a tenant can be evicted are,  mentioned in  section  22.  Section III provides for  constitution  of Tribunal  and  the  duties of  Tribunal  are  enumerated  in section 112, the relevant portion of which reads is follows               For  the  purpose of this Act,  the  following               shall  be  the  duties  and  functions  to  be               performed by the Tribunal

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             namely :--               (b)   to  decide whether a person is a  tenant               or not under Section 4." Civil Court’s jurisdiction is barred under section 132 which is  in  pari materia with section 85 of  the.   Bombay  Act. Section  133 corresponding to section 85A of the Bombay  Act may be quoted here :-               "Suits involving issues required to be decided               under this Act :-(1) If any suit instituted in               any civil court involves any issues which  are               required to be settled. decided or dealt  with               by  any authority competent to settle,  decide               or  deal  with  such  issues  under  this  Act               (hereinafter  referred to as the  "  competent               authority"),  the Civil Court shall  stay  the               suit  and refer such issues to such  competent               authority for determination.               (2)   On  receipt of such reference from  the,               Civil,  Court  the competent  authority  shall               deal with and decide such issues               798               in accordance with the provisions of this  Act               and  shall  communicate its  decision  to  the               civil  court  and such court  shall  thereupon               dispose  of  the suit in accordance  with  the               procedure applicable thereto." Section  142  of the Karnataka Act provides for  repeal  and savings  of  certain  earliar Acts.   Sub-section  (1A)  was inserted  by  Act 14 of 1965 in section 142.   It  reads  as follows               "Notwithstanding  anything contained  in  sub-               section (1) or in any law in force in any area               of the State of Mysore at any time before  the               commencement of this Act, the first proviso to               the said sub-section or any other provision of               law shall not, be applicable in so far as  the               said  proviso or provision of law will  enable               any person to evict from any agricultural land               any agriculturist protected from eviction from               any  land  in  his possession  by  the  Mysore               Tenants  (Temporary Protection from               Eviction) Act, 1961, and no such agriculturist               shall  be liable to be evicted from such  land               except  in accordance with the  provisions  of               this Act." It would thus be seen that if respondent no.  I was a tenant within  the  meaning  of the Bombay Act,  then  he  had  the protection  of the Mysore Act against his eviction and  sub- section  (1A) of section 142 of the Karnataka  Act  extended the  protection and provided that he shall not be liable  to be evicted from land in respect of which he could be  deemed to  be a tenant except in accordance with the provisions  of the Karnataka Act. In the execution proceeding in question a dispute has arisen as to whether respondent no. 1 is a tenant or not within the meaning of the Bombay Act and/or the Karnataka Act. The said respondent was inducted upon the disputed land by respondent no.  4  during the pendency of the partition suit.   In  all probability, therefore, as was argued by Mr. Javali for  the appellants,  his lease would be affected on the doctrine  of lis  pendens  engrafted  in section 52 of  The  Transfer  of Property  Act, 1882.  Counsel submitted that respondent  no. 1.  could  not  be a tenant or a  deemed  tenant  under  the appellants  after  the land was finally  allotted  in  their share  by  the  Collector in pursuance  of  the  preliminary

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decree passed by the Civil Court.  He was inducted upon  the land when by a private arrangement or otherwise the land was in possession of respondent no. 4 and during the pendency of the partition suit.  It seems, because of that reason,  this respondent was impleaded in the execution case filed by  the appellants  and others as judgment, debtor no. 20.  In  view of  the special procedure of law prevalent in the  State  of Karnataka (then Mysore) the effect of impleading  respondent no.  1 as judgment debtor no. 20 was to make him a party  to the  suit and the execution proceeding enabling him to  take his objections to the execution under section 47 of the Code of  Civil  Procedure.   Rightly  or  wrongly  he  took   the objection that he was a tenant and, therefore, could not  be evicted by the Collector in pursuance of the final partition decree  or order by giving actual delivery of possession  to the appellants.  An issue, therefore, arose for decision 799 of  the Civil Court in the suit or the execution  proceeding which was a continuation of the partition suit as to whether respondent  no.  1 was a tenant within the  meaning  of  the relevant Acts.  The stand taken on behalf of the  appellants with reference to section 52 of The transfer of Property Act may   be  good  and  may  have  force.    Nonetheless,   the jurisdiction  of the Civil Court to decide this  contentious issue  was  barred.   The matter had to be  decided  by  the Revenue  Authorities.   If the Revenue  Authorities  finally came  to the conclusion that respondent no. 1 was  a  tenant within the meaning of the relevant provisions of the law, it is  plain  that no actual delivery of  possession  could  be effected  in  favour  of the appellants in  respect  of  the disputed  land.   If, however, the decision of  the  Revenue Authorities finally went against respondent no. 1 in  regard to  his  claim of being a tenant, it is equally  plain  that actual delivery of possession over the disputed land can  be and  has got to be effected in favour of the  appellants  by dispossessing respondent no.  I in the very execution  case which  has given rise to these appeals. Mr.   Naunit  Lal’s contention that, in that event, respondent no.  I will  have other  points  to urge before the Civil Court  or  the  High Court  has  no  substance.  No  other  point  requiring  any further consideration arises in this case. An  identical view was expressed by this Court in regard  to the  bar  of  the  jurisdiction  of  the  Civil  Court  with reference to an evacuee property in the case of Custodian of Evacuee   Property  Punjab  &  Ors.  v.   Jafran   Begum,(1) interpreting  section  46 of the Administration  of  Evacuee Property Act, 1950.  The High Court had taken the view  that whether  a certain person had or had not become  an  evacuee was determinable only by the authorities under the Act;  but the determination of a complicated question of law  relating to  title to the property by such authorities was not  final and  could be reopened in the Civil Court.  This  Court  did not  countenance ;-he view of the High Court and  held  that section  46  is a complete bar to the  jurisdiction  of  the Civil  Court  to adjudicate upon the  question  whether  the property in dispute or right to or interest therein is or is not  evacuee  property.   Mr. Javali, on the  basis  of  the decisions  of this Court in Mussamiya Imam Haider v.  Rabari Govindbhai  Ratnabhai & Ors (supra) and Corporation  of  the City  of Bangalore v. B. T. Kampanna (2) submitted that  the question whether respondent no.  I in the past was a  tenant of  the  appellants  could not be referred  to  the  Revenue Authorities;  nor  was the jurisdiction of the  Civil  Court ousted to decide the applicability of the Act concerning the claim of respondent no. 1.

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It would be noticed from the facts of Razvi’s case that  the Collector’s order granting lease in favour of the defendants was  made  on 28-7-1956 but the Kabuliyat  was  executed  on August 24, 1956.  It was, therefore, held by the High  Court as also by this Court that the lease was granted only on 24- 8-1956.   One of the question for consideration was  whether the defendants had become statutory owners of the suit lands under Section 32 of the Bombay Act on account of their (1)  [1967] 3 S.C.R. 736. (2) [1977] S.C.R. 269. 800 claim that they were tenants of the land on the tillers’ day i.e.  1-4-57.  The lease which became operative  from  24-8- 1956 was for a period of one year.  Since the provisions  of Section  1 to 87A of the Bombay Act were not  applicable  to the  plaintiffs estate from 1-8-1956 to 11-5-1958,  and  the tenancy expired on 31-5-1957, it was held that there was  no subsisting  lease on 11-5-1958 and the High Court was  right in  taking  the  view  that the  defendants  had  failed  to establish that they had become statutory owners of the  land by  virtue  of  the first proviso to Section  88  read  with Section 32 and 32F as amended under the Amending Act No.  13 of 1956 (vide pages 795-796). It  may  be pointed out that neither by Section  70  nor  by Section 85, as it stood at the relevant time, a jurisdiction was  conferred on the Mamlatdar nor was the jurisdiction  of the Civil Court ousted in clear terms as required by  Mask’s case(1)  apropos the questions whether a person was  or  was not  a  tenant  in  the past or  whether  he  had  become  a statutory owner under the relevant amended provisions of the Bombay  Act.   In that situation it was held by  this  Court that the decision on the question of ownership of the tenant on the tillers’ day was not outside the jurisdiction of  the Civil  Court.  The decision of this issue was  dependent  on the   decision  of  another  issue,  namely,   whether   the defendants  were or were not ’,he tenants of the suit  lands on  the material date namely 28-7-1956 or on 11-5-1958.   In view of the provisions of law, as it then stood, it was held at pages 796-797               "Section  70(b) of the Act imposes a  duty  on               the Mamlatdar to decide whether a person is  a               tenant,  but  the subsection does not  cast  a               duty  upon him to decide whether a person  was               or was not a tenant in the past whether recent               or remote...............               in  other words, the plea of tenancy  oil  the               two  past dates was a subsidiary plea.and  the               main  plea was of statutory ownership and  the               jurisdiction   of  the  Civil   Court   cannot               therefore be held to be barred in this case by               virtue  of the provisions of s. 70 of the  Act               read with the provisions of s. 85 of the Act." The  suit  in Razvi’s case was filed on 11-7-1958  and  this Court  opined that the decision of the question whether  the defendants  were  the tenants on any of the  relevant  dates before the date of the suit was not outside the jurisdiction of  the Civil, Court as it was a question relating to  their claim of being a tenant in the past. It may be useful to point Out that sections 70 and 85 of the Bombay Act were thereafter amended with retrospective effect by  Maharashtra Act 49 of 1969. in clause (b) of section  70 the words after the amendment are "person is,. or was at any time in the past, a tenant".  Clause (kk) was also  inserted in  section  70 by the said Act giving jurisdiction  to  the Mamlatdar to hold an enquiry and restore possession of  land

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under sub-section (1B) of section 32.  It is also (1)  67 Indian Appeals, 222. 801 to  be noticed that in section 85(1) of the Act by the  said Amending  Act  the words, "including a  question  whether  a person  is  or  was at any time in the. past  a  tenant  and whether  any  such tenant is or should be  deemed  to  have, purchased from his landlord the land held by him" were added retrospectively,  thus clearly ousting the  jurisdiction  of the Civil Court.  Since the law was retrospectively  amended the  ratio  or  Razvi’s  case  can  no  longer  be  applied. Moreover the case is clearly distinguishable also.  In these appeals the relevant date with reference to which the  claim of respondent no. 1 to be a tenant under the appellants  had to be decided was not a date in the past, but fell  squarely during   the  pendency  of  the  suit  and   the   execution proceeding. The facts of the Bangalore Corporation’s case are these :  A lease   for  five  years  was  granted  by   the   Bangalore Corporation  in 1953 in respect of the land situated in  the city  of  Bangalore.   The  Bombay  Act  was  obviously  not applicable  to this land.  Immediately after tile expiry  of the  lease in the year 1958, a notice was given to  Kampanna to hand over possession of the land.  Kampanna filed a  suit against  the  corporation  for  the  grant  of  a  permanent injunction restraining the latter from interfering with  his possession.   The suit was dismissed on the ground that  the lease  had  terminated by efflux of time.   The  appeal  was dismissed  on  21st  August, 1964.   The  Corporation  then. instituted  the  suit  giving rise to  this  appeal  in  the Supreme  Court  claiming  possession from  Kampanna  on  the ground that he was a trespasser.  Kampanna contended that he was still a tenant.  He claimed protection under the  Mysore Act.   The suit was decreed.  Kampanna preferred an  appeal. The  High Court remanded the matter to the Trial  Court  for assessment of damages.  After remand, by an amendment of the written  statement  Kampanna claimed  protection  under  the Karnataka  Act.   The Mysore Act ceased to be  in  force  in March,  1966.  The application for amendment of the  written statement  was  made on the 2nd  February,  1973.   Kampanna contended,  relying upon section 133 of the  Karnataka  Act, that  the suit should be stayed by the Civil Court  and  the matter  should  be referred to the  Tribunal  for  decision. Section II 2 (B) (b) of  the Karnataka Act confers power  on the  Tribunal to decide, inter alia, whether a person  is  a tenant or not.  Kampanna claimed that be was a deemed tenant under  the said Act and hence a tenant.  The High Court,  in revision, directed the Trial Court to refer the issue to the Tribunal.   This  Court  allowed the appeal  and  held  that section  133 did not apply.  The reasons for so holding  are these : Section 107(1) (iii) made the Karnataka Act,  except section 8. inapplicable to the land in question.  The  lease was  determined  by efflux of time in the  year  1958.   The question whether Kampanna wasa  tenant or  "deemed  tenant" did not arise because the tenancy hadcome   to  an   end. Section 4 (it seems section against F at page 271is       a mistake  for Section 4) of the Karnataka Act was held to  be notapplicable.  It was further held in the last  paragraph at  page 271 that the Mysore Act could not be  pressed  into service  by Kampanna for protection against  eviction.   The land  was outside the applicability of the Mysore Act  which also ceased to be in operation in 1966.  In that view of the matter, this Court observed 802 at  page 271 : "The trial Court in the present case  rightly

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said that it could not be said that there was any dispute as to tenancy." The  facts  of  the present case are  quite  different.   As discussed  above,  they  do attract the  provisions  of  the Mysore Act and consequently of the Karnataka Act.  The first respondent  was a tenant under the fourth respondent  within the  meaning  of  the Bombay Act.  He  had,  therefore,  the protection  of the Bombay Act.  Later he got the  protection under  the  Mysore  Act  and  subsequently  the   protection continued even under the Karnataka Act.  The question  which falls  for  decision in these appeals is not one as  to  the applicability  of  any  of the three Acts  to  the  land  in dispute  but  squarely it is a question as  to  whether  the claim of the first respondent that he became a tenant  under the appellants also is tenable under the various Acts.  Thus on  the  facts of this case the decision of  this  Court  in Kulkarni’s case applies on all fours. Mr.  Javali then submitted that the respondent no.  1  might have  been inducted as a tenant by respondent no. 4 but,  as soon  as  the  land  was  allotted  to  the  share  of   the appellants, he ceased to be in lawful possession of the land and  in  View  of  the well-settled  position  of  law  with reference  to section 52 of the Transfer of Property Act  he could  not  be  a  ’tenant’ or  ’deemed  tenant’  under  the appellants; his possession was not lawful within the meaning of  section 4 of the Bombay Act or the Karnataka Act on  the allotment  of the land to the appellants.  The  decision  of such  a  question with reference to the right  of  a  person other than the landlord was not outside the jurisdiction  of the  Civil Court.  Mr. Javali sought to lend support to  his argument  from some decisions of the Mysore and Bombay  high Courts  viz.Bhimappa Venkappa Kerisa  v.  Basavalingayya;(1) Ramdas  Popat Patil v. Fakira Pandu Patil and others(2)  and Chandbeg  Muradbeg and others v. Raje  Madhaorao  Devidasrao Jahagirdar  and others. (3) In regard to the merits  of  the point  with  reference  to section 52  of  The  Transfer  of Property  Act,  he made reference to the  decision  of  this court in Kedar Nath Lal & Anr. v. Ganesh Ram & OrS.(4) In our opinion, the argument of the appellants is not  well- founded  and must be rejected.  A question arose during  the pendency of the suit and the execution proceeding whether on the  final  allotment  of  the  land  to,  the   appellants, respondent no. 1 had ceased to be a tenant and had become  a trespasser in view of section 52 of The Transfer of Property Act.   The appellants may have a good case on  merits.   But there does riot seem to be any escape from the position that the adjudication of the question aforesaid fell squarely and exclusively   within   the  jurisdiction  of   the   Revenue Authorities  and  the  Civil Court had  no  jurisdiction  to decide it.  It was not a case where there was no dispute  of the fact that respondent no.  1 was a tenant or vice (1)  I.L.R. 1958 Mysore, 197. (3)  A.I.R. 1961 Bombay, 146. (2)  A.I. R. 1959 Bombay, 19. (4)  (1970) 2 S.C.R. 204. 803 versa.  Nor was it a case where dispute had cropped up inter se  between two persons both claiming to be the landlord  of the  land  or between two persons both claiming  to  be  the tenant of the land.The dispute was whether respondent no.  1 had become the tenet of the appellants or not. In Bhimappa’s case (supra) the defendant had set up title to the  suit land in the third party.  While admitting that  he was a tenant, the defendant asserted that the plaintiff  was not  his landlord but he was a tenant under a  third  party.

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In  such  a situation it was held by the Mysore  High  Court that it was not the jurisdiction of the Mamlatdar to  decide as  to  who was the true owner of the land  as  between  the plaintiff  and  the  third  party.   Strictly  speaking  the correctness of the decision is open to doubt in view of what as  said by this Court in Kulkarni’s case (supra).  But,  as at present advised, we rest content by merely distinguishing this  case.  In the case of Ramdas Popat Patil  (supra)  the question  for  decision  of  the  Bombay  High  Court   with reference to section 52 of The Transfer of Property Act came up  for  consideration after the decisions  of  the  Revenue Authorities.   This  case is, therefore, of no help  to  the appellants.  In Chandbeg’s case (supra) the question  before the  Full  Bench of the Bombay High Court  was  whether  the person  claiming  to be the tenant could be deemed to  be  a tenant   under   section  6  of  the  Bombay   Tenancy   and Agricultural  Lands  (Vidarbha Region and Kutch  Area)  Act, 1958 and consequently a protected lessee within the  meaning of  Section 3, Berar Regulation of Agricultural Leases  Act. On  the facts of the case, the High Court held that  such  a question  was not necessary to be referred to the  Tahsildar for decision.  Firstly it has to be pointed out that it  was not  open to the High Court to say whether the question  was "necessary"  to be referred to the Tahsildar or not.  If  it was  his exclusive jurisdiction to decide it, it had  to  be referred.  There was no discretion left in the Civil  Court. Secondly,  the  correctness  of  the  decision  has   become doubtful after Kulkarni’s case. For the reasons stated above we do not think that we  should upset  the decision of the High Court.  It  merely  requires some  clarification  in the operative portion on  the  lines indicated  by us above.  We accordingly dismiss the  appeals but  direct  that actual de-livery of  possession  would  be delivered to the appellants if the question has already been finaly  decided in favour of the appellants by  the  Revenue Authorities.   If not, they will be required to  decide  the question as quickly as possible.  If their decision goes  in favour  of the appellants, no time should be lost in  giving actual delivery of possession to them.  If, per-chance,  the decision of the Revenue Authorities goes against them,  then they  will  be  entitled  to  get  symbolical  delivery   of possession only.  In the circumstances, we make no order  as to costs. KAILASAM, J.-I had the benefit of reading the judgment  pre- pared  by  my learned Brother Untwalia.  I  agree  with  the conclusion that if the question of tenancy had already  been decided  by  the Revenue Tribunal,  delivery  of  possession should be effected immediately without any further delay  as no other question thereafter remains 804 to  be  tried  by the Civil Court or the  High  Court.   But considering the importance of the question involved,  namely the scope of the jurisdiction of the Civil Courts and as  my approach  is  not identical with of Justice  Untwalia  I  am writing a separate judgment. These  two  appeals  are  by Special  Leave  from  a  common judgment  of  the  Karnataka High Court  setting  aside  the orders  of  the  courts below  directing  the  Tahsildar  to handover  actual  possession of the suit properties  to  the appellants herein, as being without jurisdiction. The facts of the case may be briefly set out.  The  property in  dispute in this Court is lands bearing Survey No. R.  S. 61/2  in the village of Yattanahalli.  A suit for  partition and  possession on 1/7th share of the properties which  were in  possession of one Nawaz Khan (Respondent 4  herein)  was

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filed by Khadar Ali Khan (Respondent 2 herein). Respondent 2  has  since  died  and  his  legal  representatives   have been   brought on record.  In this suit the  other  sharers were impleadedas    defendants   5   and   6   being    the predecessor--in-interest  of the appellants and the  tenants on  the  properties  being  defendants 8  to  14.   The  4th respondent who was the 18th defendant who was in  possession of  the suit properties resisted the suit and was  supported by some other brothers.  The suit for-partition and  posses- sion was decreed by the Trial Court on 13th December,  1954. The   preliminary   decree  declared  that   plaintiff   and defendants 1 to 3 and 5 to 7 were entitled to 1/7th share of the  suit  property and that they may obtain  possession  of their  1/7th share from the 1st  defendant  after  effecting partition by metes and bounds.  The decree was confirmed  in appeal  by  the Mysore High Court on 16th January,  1963  in Second Appeal No. 165 of 1959. The  appellants in this Court are the heirs of defendants  5 and  6  in  this suit for partition.   A  final  decree  for partition  was passed and lands in dispute were allotted  to the shares of defendants 5 and 6. The appellants  instituted proceedings  for execution of the decree and  for  obtaining possession  of the lands by filing L.D. No. 117 of  1956  in the court of District Munsiff.  After the institution of the suit  in  the year 1945, the- 4th respondent  inducted  into possession  of the suit lands the first respondent.  In  the execution  petition filed by the appellants in L.D. No.  117 of  1956  the first respondent was added as  a  party.,  The first  respondent entered appearance as judgment debtor  No. 20.   He did not dispute the claim of the appellants  and  a decree  for  possession  in respect of the  suit  lands  was passed  in favour of the appellants by an order  dated  29th May,  1961.   The  trial court  directed  the  Collector  to partition  the  suit  property and give  possession  to  the decree-holders  of their shares and on 28th March, 1963  the Deputy Commissioner was directed to partition the properties and  allot  shares  to the decree-holders  according  to  be decree.  In accordance with the order directing delivery  of the   possession,  the  Deputy  Commissioner  directed   the Tahsildar  to comply with the directions of the Court.   The Tahsildar  gave  notice to the parties including  the  first respondent.    The   Tahsildar  declined  to   give   actual possession to the appellants but proposed only the  delivery of symbolic possession.  The decree-holders then applied  to the Executing 805 Court for direction to the Tahsildar for delivery of  actual possession After hearing the parties the Executing Court  on 8th  June,  1962 directed the Tahsildar  to  deliver  actual possession of the lands to the various sharers.  Against the order   of  the  Executing  Court  directing   delivery   of possession,  the 1st respondent preferred an  appeal,  being Civil  Appeal  No. 104 of 1965 which was dismissed  on  31st July,  1965.  In dismissing the appeal, court observed  that the  first respondent who was a party to the proceedings  in execution  had  not preferred any appeal against  the  order dated   29th   May,  1961  directing  delivery   of   actual possession.  The 1st respondent took up the matter on Second Appeal to the High Court which was numbered as Second Appeal No.  86  of 1965.  A conditional order of  stay  was  passed directing the 1st respondent to deposit a sum of Rs. 3,000/- by first December, 1965 and ordered that in the event of the first  respondent failing to make the deposit the stay  will stand vacated automatically.  The respondent did not deposit the amount as directed by the High Court, but the High Court

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by its order dated 6th January, 1966 extended the time up to January,  31,  1966  for depositing  the  amount  and  again ordered  that  the order of stay will stand vacated  on  the ’failure to deposit as directed. The  1st respondent again failed to deposit the amount  even by  the  extended  date.  As the first  respondent  did  not comply with the direction of the High Court, the trial court on  2nd  March,  1966 directed the Tahsildar  to  hand  over actual  possession of the suit property to  the  appellants. Against  this order of the trial court, the  1st  respondent did not prefer any appeal. On  13th July, 1965 the appellants prayed for an  order  for delivery  of actual possession of the suit properties.   The 1st respondent contested the application on the ground  that he  had  made an application under the Mysore  Land  Reforms Act, 1961 before the Land Tribunal and had obtained an order of  stay.  On 8th August, 1967 the Executing Court  rejected the  objection  of  the  1st  respondent  and  directed  the Tahsildar  to deliver actual possession to  the  appellants. The respondent preferred an appeal being Misc.  Appeal  ’No. 34  of  1967 in the court of Civil Judge, Hubli,  which  was dismissed  on  31st August, 1967 as being  not  maintainable under  the provisions of section 47 of Civil Procedure  Code as  the order merely implemented an earlier order dated  2nd March, 1966.  The 1st respondent thereafter preferred Second Appeal No. 78 of 1966 before the High Court of Mysore.   The two  Second  Appeals  Nos. 86 of 1965 and 78  of  1967  were disposed of by a common judgment of 9th February, 1968.  The High Court allowed both the appeals and set aside the orders of the courts below.  On 21st November, 1968 the  appellants were  granted  Special  Leave to Appeal  and  thus  the  two appeals have come before us.  During the pendency of the two appeals  before  this  Court  it is  stated  that  the  Land Tribunal  dismissed R.C. 37/66 filed by the  1st  respondent seeking declaration that he is a tenant-in-holding and  that he is not a tenant.  The 1st respondent does not dispute the fact but claims that even if it is so, the appeal will  have to be remanded to the High Court. 806 The  question that arises for consideration in these  appeal is  whether the Civil Court has jurisdiction to  direct  the Tahsildar  to hand over actual possession of the suit  lands to the appellants.  It is settled law that the exclusion  of the  jurisdiction  of the Civil Court is not to  be  lightly inferred.    Such  exclusion  must  either   be   explicitly expressed or clearly implied.  The law was laid down by  the Privy  Council in 67 Indian Appeals (page 222) and has  been since  affirmed  by  this Court in  several  decisions.   In Dhulabhai  vs.   State  of M.P.,(1)  this  Court  held  that exclusion  of jurisdiction of the Civil court is not  to  be readily  inferred.  This view was followed in the  State  of West  Bengal vs.  The Indian Iron & Steel Co. Ltd. (2 )  and affirmed  in  the  Union of India vs.  Tara  Chand  Gupta  & Bros., (3) The Privy Council in 67 I.A. 222 approving of the principles laid down in the well-known judgment of Willes J. in  Wolverhampton New Water Works Co. vs.  Hawkesford  which was approved of in the House of Lords in Neville vs.  London "Express" Newspaper stated the law thus:               "Where a liability not existing at common  law               is created by a statute which at the same time               gives  a  special and  particular  remedy  for               enforcing it with respect to that class it has               always been held that the party must adopt the               form of remedy given by the statute." In order to determine whether the jurisdiction of the  Civil

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Court  was expressly or by necessary  implication  excluded, the  provisions of the relevant enactments will have  to  be considered.   The respondent claims protection  under  three tenancy Acts which may be referred to as the Bombay Act, the Mysore  Act and the Karnataka Act.  If the first  respondent is  a tenant within the meaning of the Bombay Act, he  would have  the protection under the Mysore Act  and  subsequently under  the  Karnataka Act against being  evicted  except  in accordance with the provisions of the Karnataka Act.  If the 1st  respondent  is  "a  tenant"  he  will  be  entitled  to protection under the Karnataka Act by which the parties  are governed.   It is, therefore, sufficient if we  examine  the provisions  of the Karnataka Land’ Reforms Act,  1961  which will hereinafter referred to as the Karnataka Act.               Section  132 of the Act bars the  jurisdiction               of the civil Courts               (1)   No  civil court shall have  jurisdiction               to  settle, decide or deal with  any  question               which  is by or under this Act required to  be               settled,  decided or dealt with by the  Deputy               Commissioner, the Assistant Commissioner,  the               Tribunal, the Tahsildar, the Karnataka Revenue               Appellate Tribunal or the State Government  in               exercise of their powers of control.               (1)[1968] 3 S.C.R. 662.               (2)[1971] 1 S.C.R. 275.               (3)   [1971] 3 S.C.R. 557.               807               (2)   No order of the Deputy Commissioner, the               Assistant  Commissioner,  the  Tribunal,   the               Tahsildar,  the  Karnataka  Revenue  Appellate               Tribunal,  or the State Government made  under               this  Act shall be questioned in any Civil  or               Criminal Court. By  this  section  the jurisdiction of the  civil  court  to settle, decide, to deal with any question which is under the Act required to be decided by the authorities set up by  the Act  is  taken away.  Chapter 9 deals  with  procedures  and jurisdiction of courts and appeals.  Section 112  enumerates the duties and functions of the Tahsildar and the  Tribunal. Section  112A enumerates the duties of the  Tahsildar  while sec.  112B  enumerates the duties of  Tribunal.   Among  the duties of Tribunal with which we are concerned, is its  duty to decide whether a person is a tenant or not.  A tenant  is defined  under  sec. 2(34) as meaning an  agriculturist  who cultivates  personally  the land he holds on  lease  from  a landlord.  The word also includes :               (i)   a  person who is deemed to be  a  tenant               under section-               4.               (ii)a person who was protected from eviction               from   any  land  by  the  Karnataka   Tenants               (Temporary  Protection  from  Eviction)   Act,               1961.               (iii)a person who is a permanent tenant, and               (iv)a person who is a protected tenant. Section 4 states that a person lawfully cultivating any land belonging  to any person shall be deemed to be a  tenant  if such  land  is not cultivated personally by  the  owner.   A permanent tenant, is defined under section 2 clause (23)  as meaning  a  tenant  who  cultivates  lands  personally.    A protected tenant is defined as meaning a tenant of any  land if he has held it continuously and cultivated it  personally for  a  period of not less than 12 years  by  the  appointed date.  It includes also others specified in the  definition.

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It  is,  therefore,  clearly the duty  of  the  Tribunal  to determine whether a person who claims to ]be a tenant is  an agriculturist  whether he cultivates personally  the  lands, whether he holds the lands from a landlord, whether he is  a deemed  tenant  under section 4, whether he is  entitled  to protection  from eviction from any land under the  Karnataka Tenants  (Temporary  Protection from  Eviction)  Act,  1961, whether  he  is  a  permanent tenant and  whether  he  is  a protected  tenant.   In this connection it is  necessary  to note the definition of landlord in section 2(21) which means a  person who has leased the land to a tenant  and  includes person  entitled to receive the rent from a tenant.   It  is also  the  duty  of the Tribunal to  determine  whether  the tenant  is holding the land on lease from a  landlord  which has been explained in Asa Ram, and Anr. vs.  Mst.  Ram  Kali &  Anr.,(1)  by Venkatarama Aiyar J. as the  person  who  is entitled  to  possession.  These questions  are  undoubtedly within  the  jurisdiction  of  the  tribunal  and  as  such. excluded. from the jurisdiction of the (1)[1958] S.C.R. 986. 808 civil court.  The Karnataka Land Reforms Act as well as  the earlier enactements were made for the purpose of introducing agrarian  reforms,  conferment  of  ownership  on   tenants, ceiling  on  land  holding and  for  certain  other  matters referred  to  in  the Act.  Any dispute  arising  under  the provisions  of  the  Act and relating  to  disputes  between landlord  and tenant will be within the jurisdiction of  the Tribunal constituted under this Act Section  133  requires  that suits involving  issues  to  be decided  under  the  Act if instituted in  any  civil  court should  be stayed by the civil court and the issue  referred to  the Tribunal for decision.  Section 133 runs as  follows :-               2(a).   If  any suit instituted in  any  Civil               Court  involves any issues which are  required               to  be settled, decided or dealt with  by  the               Tribunal,  or  any suit is instituted  in  any               such court for possession of or injunction  in               respect   of  an  agricultural  land  on   the               allegation  that the defendant has  trespassed               or is trying to trespass on such land and  the               defendant  denies  the  said  allegation   and               claims  that  he  is  in  possession  on   the               strength  of a tenancy existing from prior  to               1st  March, 1974, then the Civil  Court  shall               stay  the  suit and refer inch issues  or  the               claim, as the case may be, to the Tribunal for               decision.               (b)On  receipt  of  such  reference,   (the               Tribunal)  shall  deal with  and  decide  such               issues  in accordance with the  provisions  of               this Act and shall communicate its decision to               the civil court which has made the reference." Section 133 has been subsequently amended by Act 27 of 1976. Under  section 133 the civil court shall stay the  suit  and refer such issues to the Tribunal for decision.  Issues that are  required to be settled, decided, or dealt with  by  the Tribunal  and  other  claims which are  enumerated  in  sub- section  2 should be stayed and the matter referred  to  the Tribunal  for  decision.   It may be noted  that  this  sub- section  is applicable to suits only.  The sub-section  does not indicate that the provisions are applicable to execution proceedings   or  in  appeals  before  civil  courts.    The jurisdiction  of  the  civil court is  taken  away  only  in

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respect  of  the decisions of the issues in suits  that  are required  to be referred to the Tribunal.  On receipt  of  a communication  from  the Tribunal, the civil  court  has  to proceed  with  the  trial  of the suit  and  dispose  it  of according  to  law.  Section 1 1 8 of the Act  provides  for appeals.  By an amending Act 1 of 1974 against the  decision under section 133 or order passed by the Court an appeal was provided  to the District Court which has been  subsequently omitted  by  Act 23 of 1977.  Sub-section 3 to  section  118 provided  for  a reference to the High Court  under  certain circumstances.  In the absence of express provision, when an issue  has been referred by the Civil Court to the  Tribunal and  is received back and a decree passed in the  suit,  the provisions of the Civil Procedure regarding appeals 809 and revisions will be applicable.  In such circumstance  the Appellate  Court  will have to consider the  correctness  or otherwise  of  the  issue  that  has  been  decided  by  the Tribunal.   Section 4(1) of the Mysore Act which is  similar to section 133(2) of the Karnataka Act provided for stay  of execution in suits, proceedings and execution of decrees  or orders and other proceedings for the eviction of tenant.  In applying section 133, therefore, the questions that have  to be considered are, whether the sub-section is applicable  to execution proceedings and in appeals before civil courts. In the present case the suit was filed in the, year 1945 for partition  and separate possession of a share of  properties in possession of the 4th respondent’ The tenants who were on the land were impleaded as defendants.  The first respondent was  inducted into, possession by the 4th  respondent  after the  suit was filed, A preliminary decree followed by  final decree  was  passed allotting the suit land to  the  present appellants.   In execution proceedings the first  respondent was  impleaded  as judgment debtor No. 20 and a  decree  for possession  in  respect  of the suit lands  was  granted  in favour of the appellants against the 1st respondent.  By  an order  dated  29th May, 1961, the Civil Court  directed  the Collector  to  partition  the  suit  property  and  to  give possession  to the decree-holders of their shares and by  an order  dated 28th March, 1963, the Deputy  Commissioner  was directed to partition the properties and to allot shares  to the  decree-holders  including  the  appellants.   The   1st respondent  did  not  challenge  the  order  directing   the delivery  of possession that was passed against him on  29th May,  1961.   The 1st respondent subsequently  preferred  an appeal, Civil Appeal No. 104 of 1965 against the  subsequent order of the Executing Court dated 8th June, 1965  directing deliver of actual possession.  The Appellate Court dismissed the  appeal  on  the  ground that  the  respondent  did  not challenge  the  order passed against him by the  Munsiff  on 25th  September,  1961.  Admittedly, the  respondent  was  a party to the execution proceeding.  It might have been  open to him at the execution state to ask for a reference to  the Tribunal of the issue whether he is a tenant or not.  Second Appeal  No.  86 of 1965 was against the order of  the  Civil Judge  referred  to above dismissing the appeal of  the  1st respondent.   In  the Second Appeal  the  question  squarely arose as to whether the orders directing possession  against the  1st  respondent particularly the one  dated  29th  May, 1961, bad become final. Subsequently when Second Appeal No. 86 of 1965 was  pending, the 1st respondent did not comply with the conditional  stay order of the High Court directing that on the failure of the first  respondent to, comply with the directions,  the  stay would  stand vacated.  The appellants approached  the  Trial

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Court  and  an order for delivery of actual  possession  was passed  on  2nd March, 1966, and the fact intimated  to  the High  Court.  Against this order of 2nd March, 1966, of  the Munsiff, no appeal was preferred by the 1st respondent.  But when  subsequently  in  July,  1966,  the  Executing   Court directed  ’,he  delivery  of  actual  possession,  the   1st respondent  contested the application on the around that  he was protected under the Mysore Land Reforms Act, 1961.   The Executing Court rejecting this plea by its 810 order dated 8th August, 1967 and delivery of possession  was ordered against the 1st respondent.  An appeal preferred  by the 1st respondent against this order was also dismissed  by the  Civil Judge on 31st August, 1967 on the ground that  it merely  implemented the order already passed on  2nd  March, 1967,  by the Trial Court.Second  Appeal No. 78 of 1967  was by  the  1st respondent against the Appellate order  of  the Civil Judge.  In this Second Appeal again the question arose whether  the previous orders passed against the 1st  respon- dent  particularly  the order of the  District  Judge  dated March 1966 directing delivery of possession, was final.   As the respondent took the plea that he is protected under  the Mysore  Land  Reforms  Act, 1961, the question  as  to  what extent the jurisdiction of the Civil Court is ’barred  ought to have been gone into by the High Court. It  is  unfortunate  that  the  High  Court  considered   it unnecessary  to  consider the various questions in  the  two Second  Appeals  in view of the decision of  this  Court  in Bhimaji Shanker Kulkarni vs.  Dundappa Vithappa Udapudi  and Anr.,(1)  The  only other ground on which the  appeals  were dismissed  was that under section 142 (1-A) of  the  Mysore, Act  corresponding to section 22 of the Karnataka  Act,  the 1st  respondent was entitled to protection.  The  protection is  available  only when the land is held by a person  as  a tenant.   In the case relied on ’Kulkarni’s case,  plaintiff instituted  a suit in the Civil Court for possession of  the suit  properties on redemption of a mortgage and the  taking of  accounts on the allegation that defendant No. 1 was  the usufructuary   mortgagee   under  a  mortgage   deed.    The defendants  pleaded that the transaction in question was  an advance  lease  and  not  a  mortgage  and  that  they  were "protected" tenants within the meaning of the Bombay Tenancy and  Agricultural  Lands  Act, 1948.  It  was  contended  on behalf of the plaintiff that the jurisdiction of them  Civil Court depended on the allegations made in the plaint and the plea  in  the  written statement that  the  defendants  were protected tenants did not oust the jurisdiction of the Civil Court.   This  Court held that the Mamlatdar  has  exclusive jurisdiction under the Act to entertain an application by  a landlord  for  possession  of agricultural  land  against  a tenant and the Civil Court had no jurisdiction to  entertain and  try  a  suit  by a  landlord  against  the  tenant  for possession   of   agricultural  land.   The   two   relevant provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, on which the decision in the case turned are  sections 70(b) and 85(1) of the Act.  Section 70(b) provided that one of  the  functions to be performed by the  Mamlatdar  is  to decide whether a person is a tenant or a protected tenant or a  permanent tenant.  Section 85(1) provided that  no  Civil court shall have jurisdiction to settle, decide or deal with any  question  which is by the Act required to  be  settled, decided  or dealt with by the Mamlatdar.  The plea taken  on behalf  of  the plaintiff was that the jurisdiction  of  the Civil Court depended upon allegation made in the plaint  and that  the Civil- Court has full jurisdiction to try  a  suit

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for   recovery  of  possession  of  agricultural   land   on redemption  of  a  mortgage, and the  plea  in  the  written statement that defendants were (1)[1966] 1 S.C.R. 145. 811 protected tenants did not oust the jurisdiction of the Civil Court.   It  was pleaded that the Civil  Court  should  have tried  and  decided the issue whether  the  defendants  were mortgagees  or  protected tenants instead of  referring  the issue to Mamlatdar.  This Court affirmed the decision of the Bombay  High Court in Dhondi Tukaram vs.  Hari Dadu(1)  that the effect of sections 70(b) and 85 of the Act was that if a suit is’ filed against the, defendant on the footing that he is  a trespasser and he raises the plea that he is a  tenant or  a protected tenant, the Civil Court has no  jurisdiction to  deal with the plea.  On the facts of the case the  court came  to  the  conclusion that the issue was  one  that  was within  the  jurisdiction  of  the  Mamlatdar  to  try  and, therefore,  Civil Court had no jurisdiction.  In  coming  to the conclusion the Court observed :               "The  Mamlatdar has exclusive jurisdiction  to               entertain  an  application by a  landlord  for               possession  of  agricultural lands  against  a               tenant,   and   the   Civil   Court   has   no               jurisdiction to entertain and try a suit by  a               landlord  against a tenant for  possession  of               agricultural  lands.   The  Mamlatdar  has  no               jurisdiction to try a suit by a landowner  for               recovery  of possession of agricultural  lands               from  a  trespasser  or from  a  mortgagee  on               redemption of a mortgage, and the Civil  Court               has jurisdiction to entertain such a suit; but               if the defendant to the suit pleads that he is               a tenant or a protected tenant or a  permanent               tenant and an issue arises whether he is  such               a  tenant, the Court must refer the  issue  to               the Mamlatdar for determination, and must stay               the suit pending such determination, and after               the Mamlatdar has decided the issue, the Court               may  dispose of the suit in the light  of  the               decision of the Mamlatdar." The  Court  while  observing  that  the  Mamlatdar  has   no jurisdiction  to  try the suit by landlord for  recovery  of possession of agricultural lands from a trespasser or from a mortgagee  on redemption of a mortgage the Civil  Court  has jurisdiction to entertain such a suit, this Court added that if the defendant to the suit pleaded that he is a tenant  or protected  tenant or a permanent tenant and an issue  arises whether  he is such a tenant, (emphasis supplied) the  Civil Court   must   refer  the  issue  to,  the   Mamlatdar   for determination.   The  decision is not to  be  understood  as laying down that whenever the defendant raised the plea that he  is  a  tenant  the matter  should  be  referred  to  the Tribunal.  It is necessary that an issue as to whether he is such  a  tenant  or not should arise.  If the  case  of  the plaintiff is as in the present case that he is the owner  of the land and that he is entitled to a partition and separate possession  of a particular share and that on  the  admitted facts  the defendant was let to possession by the sharer  in possession  after  the filing of the suit, the plea  of  the plaintiff  that  no issue as to whether the defendant  is  a tenant  at all arises has to be considered.  If in  law  the sharer  in possession could not enter into  any  transaction obviously affecting the rights of the parties, the defendant cannot claim any right and, therefore, will not be a tenant.

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The question that falls to be con- (1) I. L. R. (1953) Bom. 969.  812 sidered  in such circumstances is whether an issue that  the defendant is a tenant arises at all.  In Bhatia Co-operative Housing Society V. D. C. Patel,(1) it was held by this Court that a Civil Court has inherent power to decide the question of  its own jurisdiction although as a result of an  inquiry it may turn out that it has no jurisdiction over the suit. The observation of this Court in Bhimaji Shanker Kulkarni v. Dundappa  Vithappa  Udapudi and Anr. (supra) that  when  the defendant to the suit pleads that he is tenant and an  issue arises whether he is such a tenant the court must refer  the issue  to be Mamlatdar for determination should be  read  in the light of the other decisions of this Court.  In  Raizada Topandas  and  Anr.  v.  M/s.   Gorakhram  Gokalchand(2)  in dealing  with the scope of section 28 of the  Bombay  Rents, Hotel  and Lodging House Rates Control Act, 1947 which  gave exclusive  jurisdiction  to  the Court of  Small  Causes  to entertain  and try a suit or proceeding between  a  landlord and  a tenant relating to recovery of rent or possession  of any premises, the Court repelled the contention that a  plea of the defendant will determine or change the forum.  The Court proceeded to observe at page 224 :               "It   does  not  invest  those   courts   with               exclusive power to try questions of title such               as questions as between the rightful owner and               a trespasser or a licensee, for such questions               do  not arise under the Act.   If,  therefore,               the  plaintiff in his plaint does not admit  a               relation  which  would  attract  any  of   the               provisions on which the exclusive jurisdiction               given  under  s. 28 depends, we do  not  think               that  the defendant by his plea can force  the               plaintiff  to  go  to a  forum  where  on  his               averments  he cannot go.   The  interpretation               canvassed for by the appellants will give rise               to   anomalous  results;  for   example,   the               defendant   may  in  every  case   force   the               plaintiff  to go to the Court of Small  Causes               and  secondly,  if the Court of  Small  Causes               finds against the defendant’s plea, the plaint               may  have to be returned for  presentation  to               the proper court for a second time."               The  same view was affirmed by this  Court  in               Vasudev Gopalkrishna Tamwaker v. The Board  of               Liquidators,  Happy Home Co-operative  Housing               Society.(3) The Court held at page 978:               "The  exclusive jurisdiction of the  Court  of               Small   Causes  arises  only  if  the   person               invoking the jurisdiction of the Court alleged               that the other party is a tenant or a landlord               and  the question is one which is referred  to               in  section 28.  Where the person so  invoking               does not set up the claim that the other party               is a tenant or a landlord the defendant is not               entitled  to displace the jurisdiction of  the               ordinary court by an allegation that he stands               in  that  relation qua the other and  on  that               ground  the Court has no jurisdiction  to  try               the suit or proceeding or an application." (1)[1953] S.C.R. 185. (2)(1964] 2 S.C.R. 214. (3)(1964](3) S.C.R. 964. 813

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The  position, therefore, is even though the  defendant  may plead that he is a tenant, the Court must be satisfied  that an  issue  whether the defendant is a tenant or  not  arises before  it  could  be  referred  for  determination  by  the Tribunal  and  the  question of  jurisdiction  will  not  be decided mainly on the plea of the defendants. The  question relating to exclusion of the  jurisdiction  of the  Civil  Court  and Bombay  Tenancy  and  Karnataka  Land Reforms Act can, to be considered in later decisions of this Court.   In  Mussamiya  Imam  Haider  Baz  Razvi  v.  Rabari Govindhai  Ratnabhai & Ors. (1) a question arose  whether  a Civil  Court has jurisdiction to decide whether  the  tenant became  a statutory owner on the "tillers’ day" and  whether the tenancy subsisted on the relevant dates.  The  appellant succeeded to the estate consisting of the suit lands when he was a minor.  The State Government assumed management of the estate  tinder  the  Bombay Court of  Wards  Act,  1905  and appointed  the Collector as the manager of the estate.   The Collector passed an order granting the request of respondent that the suit lands were required for the purpose for carry- ing on agriculture, by a Co-operative Society and executed a kabuliyat  and  lease was thereby created  on  24th  August, 1956.   The  prior lease expired on 31st May, 1957  and  the Court  of  Wards withdrew its superintendence on  11th  May, 1958.   Under  section 32 of the Act every tenant  shall  be deemed to have become a statutory owner of the lands on  1st April, 1957 known as the "tillers’ day".  By an amendment of the  Act  which came into force on 1st August,  1956,  lands taken under management of Court of Wards were excluded  from the  implication of the Act and, therefore, the Act was  not applicable  to the suit lands between 1st August,  1956  and 11th  May,  1958,  when  the Court  of  Wards  withdrew  its superintendence. The appellants filed a suit on July 11, 1958 for recovery of possession of the suit lands and mesne profits on the ground that the lease was fraudulently obtained by the respondents. The respondents contended that they became statutory  owners under the Act and the Civil Court had no jurisdiction to try the suit.  This Court held that on the evidence adduced  the High Court was right in its view that the lease in favour of the  respondents was not vitiated by fraud.  As the Act  was not  applicable during the period 1st August, 1956  to  11th May,  1958 the respondents could not have  become  statutory owners on the "tillers’ day", that as the tenancy expired on 31st  May, 1957 and as there was no subsisting lease on  May 11,   1958  on  which  the  Court  of  Wards  withdrew   its superintendence,  the  respondents were not tenants.   On  a construction of section 70(b), this Court expressed its view that  the  duty  of the Mamlatdar was to  decide  whether  a person is a tenant and not to decide whether a person was or was  not  a tenant in the past.  Referring  to  the  written statement,  this  Court observed that only plea  set  up  on behalf  of the respondents was the plea of tenancy  on  28th July, 1956, which was the basis of the statutory  ownership. There  was  no plea of any intervening  act  or  transaction between 11th May, 1958 and 11th July-, 1958, the date of the suit  under which a fresh tenancy was created and which  was subsisting  on  the date of the suit and thus there  was  no issue which survived for the decision of the Mamlatdar (1)  [1969]1 S.C.R. 785. 814 under  section  85 (a) of the Act and, therefore,  the  suit ought  to  have  been decreed by the  Civil  Court  and  not referred to the Mamlatdar. it  may  be noted that this Court affirmed the view  of  the

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High Court that the lease in favour of the defendant was not vitiated  by fraud thereby holding that the Civil Court  had jurisdiction  to  decide  whether a lease  was  vitiated  by fraud.   This  Court again confirmed the view  of  the  High Court  that the defendant had failed to establish that  they had become statutory owners of the land.  Having found  that the  Civil  Courts have jurisdiction to decide  whether  the issue is vitiated by fraud or not and whether the  defendant had  failed  to  establish that they  had  become  statutory owners,  this Court proceeded to consider the extent of  the jurisdiction of the Civil Court.  It was contended on behalf of  the  defendants that the determination of  the  question whether  the lease subsisted after 1st August, 1956 and  it- subsisted also on May 11, 1958, was not within the scope  of the jurisdiction of the High Court.  This Court in rejecting the  contention  observed  that section  70(b)  of  the  Act imposes duty on the Mamlatdar to decide whether a person  is a tenant but not whether a person was or was not a tenant in the  past.  To the extent this Court held that  the  section does  not  empower  the Mamlatdar  to  decide  the  question whether a person was not a tenant in the past, is no  longer applicable as the section had been amended so as to  include within  the  duties  of the Mamlatdar to  decide  whether  a person  is  or was in any time in the past, a tenant,  or  a protected  tenant or a permanent tenant.  But the  ratio  of the  decision in the case is that the main plea in the  suit was  of  statutory ownership and the plea  relating  to  the tenancy  of the two past dates was only subsidiary  and  the jurisdiction of the Civil Court cannot be held to have  been barred by virtue of provisions of section 70 of the Act read with  section 85 of the Act.  Thus it may be seen  when  the question  for  determination was whether the  defendant  was statutory  tenant or not, the issue is not within the  scope of  the duties of the Mamlatdar, the subsidiary issue as  to whether-the  defendant  was a tenant  on  particular  dates, could  also be decided by the Civil Court.  The law on  this question  was  stated by this Court after referring  to  the decision in Secretary of State v.  Mask    &   Co.,(1)    as follows:               "In  the written statement, the only plea  set               up  on behalf of the respondents was the  plea               of  tenancy  on July 28, 1956  which  was  the               basis of statutory ownership.  The High  Court               found  that the tenancy was created on  August               24, 1956 and that the tenancy did not  subsist               on May 11, 1958 when there was a cessation  of               the  management by the Court of There  was  no               plea of any intervening act or transaction be-               tween May 11, 1958 and July 11, 1958, the date               of  suit,  under  which a  fresh  tenancy  was               created  and which was subsisting on the  date               of  the suit.  There was thus no  issue  which               survived  for  the decision of  the  Mamlatdar               under section 85A of the Act.  Therefore,  the               High  Court should have decreed the  suit  and               was  in error in referring the  issue  whether               the  respondents were tenants of the  land  on               the date of suit to the Mamlatdar.               (1)67 I.A. 222.               815               "In  our  opinion  there  is  nothing  in  the               language  or context of sec. 70 or sec. 85  of               the  Act to suggest that jurisdiction of   the               Civil  Court  is  expressly  or  by  necessary               implication  barred  with regard  to  question

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             whether  the defend-ants had become  statutory                             owners  of  the land and  in  that  connection               whether  the defendants have been in the  past               tenants in relation to the land on  particular               past dates. The Court further proceeded to observe that the jurisdiction of  the  Court  is not barred in  considering  the  question whether  the  provisions of the Act are  applicable  or  not applicable  to  the  disputed  land  during  the  particular period. The  question  of the exclusion of the jurisdiction  of  the Civil Court under the Karnataka Land Reforms Act, 1961  came to  be  considered by this Court in Corporation of  City  of Bangalore  v.  I. T. Kampanna. (1) The respondent  took  the disputed land on lease for 5 years from the Corporation  and continued to hold it unauthorisedly after the lease  period. He   filed   a  suit  for   permanent   injunction   against interference  with his possession.  The suit  was  dismissed and  an  appeal  was also rejected.   Then  the  Corporation instituted the suit for possession, the suit was decreed and respondent  was directed to deliver possession.   On  appeal the High Court remanded the case and on revision the respon- dent  applied  for  an amendment of  his  written  statement claiming protection of the Karnataka Land Reforms Act, 1961, and  for  stay  of the suit by the Civil  Court  and  for  a reference to the Tribunal for deciding the question  whether he was a tenant or not.  The application was dismissed,  but on  revision the High Court reversed the decision.   On  the question  whether section 107 of the Karnataka Land  Reforms Act  was  applicable to the disputed land, this  Court  held that   the  section made it clear that  the  only  provision which  applies  to  lands belonging to  the  Corporation  is section  8  and  there  is no  dispute  that  the  suit  was determined by efflux of time and the question whether tenant or deemed to be a tenant does not arise because the  tenancy came to an end and therefore section 8 is not applicable and no question remained to be referred for determination by the Tribunal  under section 133.  In this case  the  Corporation instituted  a suit claiming possession from  the  respondent contending that the respondent was a trespasser and claiming damage  for  unauthorised properties.  The  defence  of  the respondent  was  that  he  was  a  tenant  and  entitled  to protection  under the Mysore Tenancy Act.  After  remand  by the High Court when the matter was being heard by the  trial court,  the  respondent  applied for  amendment  of  written statement  claiming  protection  under  the  Karnataka  Land Reforms Act, 1961, and prayed that the suit should be stayed by the Civil Court ’and the matter referred to the  Tribunal for decision as the Tribunal was empowered to decide whether a  person is a tenant or not.  On behalf of the  respondent, it was contended that the respondent is a tenant within  the meaning of the word "tenant" is defined in section 2(34)  of the Karnataka Land Reforms Act, 1961.  This Court held  that as  section 107 of the Act exempted the application  of  the provisions  of the Act except section 8 to corporation,  the question whether the respondent is a tenant or deemed to  be a tenant (1)  [1977]1 S.C.R. 269. 816 does  not  at all arise because the tenancy has come  to  an end.   Though  the plea of the defendant was that he  was  a tenant,  this Court went into the provisions of the Act  and found  that  in the case of Corporation only  section  8  is applicable  and other provisions were not applicable and  as the  lease  belonged to the local authority  the  respondent

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cannot  claim any protection.  Repelling the  contention  on behalf  of the respondent that section 133 of the  Karnataka Land  Reforms  Act excluded the jurisdiction  of  the  Civil Court in suits for possession where the defendant claimed to be a tenant as utterly unsound this Court held that  section 133  cannot  apply to lands which were held by a  person  on lease  from  the  local authority or  where  the  lease  had expired and the local authority sues for possession, a  mere statement  of  the defendant that he is a tenant  would  not take’  away the jurisdiction of the Civil Court.   The  plea that  the Act is not applicable by the plaintiff has  to  be decided by the Civil Court.  In doing so the Civil Court can take  into account the fact that the lease had  "expired  or that  the  provisions of the Act are not applicable  to  the landlord concerned.  Equally as in the case reported in 1969 (1)  S.C.R.  785 (supra), the Civil Court can  go  into  the question  where the defendant had established that he  is  a statutory  owner and in doing so, can determine whether  the defendant  was  a  tenant  on  the  relevant  dates.   On  a consideration  of the cases referred to above, it  is  clear that  it  was  incumbent on the High  Court  to  decide  the several questions that arise for consideration.  The plea of the  appellants  that  the decisions  of  the  Civil  Courts directing  the 1st respondent to deliver the  possession  to the  appellant have, become final and was no more  available to  him  to be raised under the Karnataka Land  Reforms  Act also  fans  for  decision.   Equally,  the  plea  that   the questions  that  arise  in the appeals are  not  within  the competence  of the, Tribunal, also ought to have  been  gone into.   Before referring the issue to the Tribunal the  High Court  ought to have come to a conclusion that on the  facts of the case the issue as to whether the 1st respondent is  a tenant has arisen and has to be decided by the Tribunal. The  High  Court ought to have also considered  whether  any restriction  on the jurisdiction of the Civil Courts  placed under  the  Act is applicable to the High Court  also.   The jurisdiction  of the Civil Courts is not entirely barred  as the  Act only provides for reference of certain  issues  for decision  before the Revenue Tribunal and after  receipt  of the  finding  on such issues to record a  judgment  on  such finding.   The appeal to the Civil Courts according  to  the Civil Procedure Code and the jurisdiction of the High  Court in hearing appeals and revisions under certain circumstances have not been excluded. Having  expressed my view on the jurisdiction of  the  Civil Courts  in general as the question has been  Pending  before the Revenue tribunal when the matter was decided by the High Court  and as it is represented on behalf of the  appellants that the Revenue Tribunal has found that the 1st  respondent is  not a tenant, I agree with the order made by my  learned Brother Untwalia J. S.R.                              Appeals dismissed. 315 SCI/78-GIPF. 817