K.T. Venkatagiriyappa, Since Deceased by his L.Rs (Smt. Mahalaxmamma and Others) vs Vishalakshmma Iyethal

Vikramajit Sen, C.J.—In this petition, the order of the Additional Civil Judge (Junior Division), Sagar, passed on 09.07.2009 has been assailed. A suit for Declaration and Possession came to be instituted on 25.11.1991 by Respondent No. 1 before this Court (hereinafter referred to as ''the Plaintiff''). The facts which are not controverted are that the Plaintiff is the daughter of the Petitioner''s father (Defendant in the suit - hereinafter referred to as ''the Defendant''). The common case is that Defendant''s father had taken the Plaintiff''s mother as concubine, and that the Plaintiff was born out of this relationship. The Plaintiff asserts that a parcel of land measuring 43 guntas had been settled by the Defendant''s father in favour of Plaintiff''s mother. In the backdrop of this relationship between the Defendant''s father and the Plaintiffs mother, the Plaintiff pleads in the amended plaint that the Defendant''s father continued to till the land as her licensee. It may be briefly mentioned that originally, the pleadings in the plaint were that the Defendant''s father was the tenant in the premises. These pleadings however came to be amended by bringing in the plea of the creation of a license or permission. The Defendant has pleaded that his father was a tenant and not a licensee but in respect of 21 guntas of suit item No. 2 (Sy. No. 244 measuring 21 guntas) and the remaining parcel of land is claimed as the legatee of the Defendant''s grandfather. Learned counsel for the Plaintiff contends that the Defendant has claimed tenancy rights over the entire 43 guntas and has not restricted his claim only to Item No. 2 of the plaint. One of the pleas that had been raised in the Written Statement is that because tenancy rights were claimed this issue had to be referred to the Land Tribunal by virtue of Sections 132 and 133 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as ''the Reforms Act''). The Objects of this Act are to bring about a uniform law in the State of Karnataka relating to agrarian relations, conferment of ownership on tenants, ceiling of land holdings etc, as is gleaned from its preamble. In a nutshell, as on 01.03.1974, the lands in the State of Karnataka which had been given out on tenancy lay statutory fiction reverted to the State. The Reforms Act inter alia postulates the filling of Form No. 7 within six months as per Section 48A After the passage of some time, it was thought expedient by the Legislature to permit one further opportunity to make a claim for occupancy rights on the premise of being a tenant on 01.03.1974 by filing Form No. 7A u/s 77A of the Reforms Act. Section 48A provides that the enquiry with regard to this issue would have to be conducted by the Tribunal. However, so far as Form No. 7A is concerned, by virtue of Section 77A of the Reforms Act, the enquiry is to be conducted by the Deputy Commissioner or any other Officer authorized by the State Government in this behalf. Section 132 bars the jurisdiction of a Civil Court to settle, decide or deal with any question which is to be decided under any provisions of the Reforms Act. Section 133 of the Reforms Act starts with a non-obstante clause and states that no Civil Court shall decide either the question whether the land in dispute is or is not an agricultural land or whether the person claiming to be in possession thereof is or is not the tenant thereon.

In connection with the defence raised by the Defendant that his father was a tenant under the Plaintiffs mother in respect of Item No. 2 in the plaint, an Order came to be passed by the Additional Civil Judge (Jr. Dn.), and JMFC, Sagar in the said O.S. No. 400/1999 dated 09.02.2001 directing reference to the Land Tribunal for adjudication of this plea. Until the conclusion on the adjudication, the suit was ordered to be stayed. This position was assailed by the Plaintiff before this Court, but without success; CRP No. 1983/2001 was dismissed on 05.07.2002 concluding that no infirmity with the order of the Additional Civil Judge passed on 09.02.2001 existed. Matter attained finality since no further appeal to the dismissal of the Revision came to be filed.

Meanwhile the application in Form No. 7A was taken up by the Assistant Commissioner having been duly authorized in this regard, who by his Order dated 09.02.2009 dismissed the application in Form No. 7A on the finding that the holdings of the Defendant exceeded two hectares, as postulated by the Proviso to Section 77A (1). This decision has also attained finality inasmuch as it had not been challenged any further. The Impugned Order dated 09.07.2009 rejected the Defendant''s objection insisting on a decision being rendered by the Tribunal on the question of the alleged tenancy viz-a-viz the Item No. 2 mentioned in the plaint. What was kept in view was the dismissal/rejection of Form No. 7A. The contention of the learned counsel for the Defendant is that this finding is erroneous in law and flies in the face of the statutory provisions contained in Section 133 read with Section 112B of the Reforms Act. Section 112B enumerates the duties of the Tribunal, one of which is to decide whether a person is a tenant or not. It is further vehemently submitted by learned counsel for the Defendant that the dismissal of the Revision, thereby affirming the initial view that the Tribunal had to decide the issue of tenancy, must prevail. In other words, the question to be answered is does a decision rejecting Form No. 7A renders otiose the statutory exercise u/s 133 read with Section 112B or nevertheless the tenancy has still to be determined only by the Tribunal. It is contended by learned counsel for the Defendant that in the annals of the lis between the present adversaries the impugned Order infact nullifies the Order of the High Court passed in Revision.

The Reforms Act underwent a widespread, metamorphism by Act 1/1974 with effect from 1.3.1974. It is apparent that the ethos of the legislation was to bestow tenancy or occupancy rights on the actual tillers of the land, in like fashion to the Abolition of Zamindari Act. Section 4 of the Reforms Act is one of the few provisions which has not been amended substantially and ordains that a person lawfully cultivating any land shall be deemed to be a tenant thereof with certain exceptions. With effect from 1.3.1974 the Proviso to Section 4 prescribes the filing of an application to decide this issue before the Tribunal in place of the Court. By virtue of Section 44 all tenanted lands as on 01.03.1974 vest in the State Government. Section 45 ordains that the tenant shall be entitled to be registered as an occupant of the land. The owners of the Tenanted lands stand divested of all rights, and are eligible only for compensation u/s 47. Section 48 prescribes the constitution of Tribunals. The existence of tenanted status is therefore extremely far reaching and deleterious for the owners; it is equally significant for the tenants on whom occupancy rights would stand bestowed by operation of the statute. It may become beneficial for the State Government also in those rare cases where the lands are tenanted but the tenants do not claim occupancy rights, in which case ownership as well as possession would pass to it. In these circumstances it is the Tribunal which alone can decide this significant issue of the existence of tenancies. In Lalitabai Vs. State of Karnataka, and Shivamurthayya -Vs- State of Karnataka ILR 1997 Kar 3233 learned Single Judges have held that the Tahsildar does not possess jurisdiction to adjudicate this issue. In Pamela Lakshminarayana and Others Vs. Kamalamma and Others, a Single Bench has opined that it is only pursuant to a finding by the Tribunal that a land is tenanted can it vest in the State. The entire conspectus of the law has been analyzed in Sakrappa Vs. State of Karnataka, which is humbly commended for reading. One of the findings is that if no application u/s 48 A has been preferred the land passes absolutely to the State and occupants/tenants can be evicted.

Section 48 came to be replaced by Sections 48, 48A, 48B and 48C with effect from 1.3.1974 pertaining to the composition of the Tribunals, the manner of enquiry by the Tribunal, vesting power on the Tahsildar to determine the amounts payable and empowering the Tribunal to pass interim orders. Section 48A requires the filing of an application by an occupant within six months ie., on or before 31.8.1974, for recognition as an occupant. Sub-section 6 accords finality to the decision of the Tribunal. The application under the amended fasciculus of the Act comprising Section 48, 48A, 48B and 48C, is to be moved in the prescribed Form No. 7 which is titled -"Application u/s 48A(1) for registering as an occupant u/s 45", and is to be addressed to the Tribunal. The Legislature, however, was cognizant of the fact that these changes in the law were not in common knowledge, or were not taken advantage of within the period of six months given for the filing of Form No. 7. Section 77 deals with the disposal of surplus land and came to be amended not only by Act No. 1/1974 but also Act No. 23/1998 which inserted Section 77A into that Statute. Succinctly stated, Section 77A empowered the Deputy Commissioner or any other Officer authorized by the State Government, to hold an enquiry into whether a person was immediately before 1.3.1974 in actual possession and cultivation of any land not exceeding 1 unit, which had vested in the State Government u/s 44, and if so, to grant the land to such person. In this regard Form No. 7-A had to be utilized; it is titled "Application u/s 77A for Grant of Land" and is to be addressed to the Deputy Commissioner. Section 77A starts with a non-obstante clause thereby over-riding Section 48A of the Reforms Act. In other words, while dealing with lands which had vested in the State Government by operation or fiction of the statute-, it is the Deputy Commissioner/Assistant Commissioner who has to conduct an enquiry for arriving at the relevant conclusion or satisfaction. The substantial differences in the two Forms should be kept in perspective. We have already noticed Sections 132 and 133 of the Reforms Act. The former extinguishes the jurisdiction of the Civil Court vis-a-vis questions which require to be settled under the Reforms Act either by the Deputy Commissioner or the Assistant Commissioner or any authority, or the Karnataka Appellate Tribunal.

Reliance by the learned counsel for the petitioner/defendant on Hombalamma and Others Vs. Smt. Ningamma, does not seem to be of much relevance. What came to be clarified by the Division Bench was that the Civil Court was not required or expected to come to a prima facie conclusion of the status of a tenant before referring the matter to the Land Tribunal for its decision. The law has been explained in these words:

Sub section (3) of Section 45 of the Act specifically provides that the land held by a person before the date of vesting in respect of which he is not entitled to be registered as an occupant under this Section shall be disposed of in the manner provided in Section 77 of the Act after evicting such a person. The fact that the defendant has lost her right to secure occupancy rights in accordance with Section 45 of the Act would not render the Reference infructuous inasmuch as the finding as to whether the land was tenanted or not on 1.3.1974 would assume important in determining plaintiffs right to seek possession of the land in question. When once the land vest in the Government u/s 44 of the Act on a finding that it was a tenanted land on 1.3.1974, all rights in respect of that land stand wipes out and the rights of the parties in relation to the land would be determined in accordance with the provisions of the Act. In the circumstances, determination of the dispute covered by issue No. 1(A) should nevertheless be done by the Land Tribunal being vested with exclusive jurisdiction to decide the issue. In our opinion, the decision in Sakrappa''s case referred to above explains the correct legal position and the observation to the country in paras 20 and 21 of the decision in Narayanappa''s case referred to above should be regarded as not laying down the law correctly and is over ruled.

Yet another Division Bench of this Court in S.C. Chandrappa Vs. State of Karnataka and Others, had reflected upon and clarified the separate orbits within which Form No. 7 and Form No. 7A operate, in these words:

We have no good or weighty reason to differ from the opinion of the Co-ordinate Bench. We have more than one reason to say so. As already pointed out, the proceeding initiated by the Land Tribunal in pursuance of an application in Form No. 7 made u/s 45 of the Act. It needs to be noticed at the threshold that if an applicant in Form No. 7 establishes that he was in actual possession and personal cultivation of the subject lands as on the appointed date, that is, 01.03.1974, the land Tribunal is duty bound to grant occupancy rights of such lands. But, that is not the situation u/s 77A of the Act, Section 77A of the Act is only an enabling provision to grant a land which is already vested in the State Government to an applicant. No applicant in Form No. 7A can claim a land as a matter of right or as a matter of course. For varieties of reasons, the Assistant Commissioner may not grant land to an applicant. Secondly, a person who has missed the bus due to his indolence cannot be treated on par with a person who is vigilant in working out his legal remedies by making application in Form No. 7 within the stipulated time. We say this, because, law helps the vigilant, and not the indolent. That seems to be the legislative policy behind Section 77A of the Act. If the legislature wanted to help even those tenants who did make application in Form No. 7 within the stipulated time to secure grant of occupancy rights, of course, the law maker would have extended to make Form No. 7 applications.

It is Form No. 7A which calls for consideration in this case. It is clear from the above analysis that the Assistant Commissioner has jurisdiction to decide the expedient course and conclusion vis-�-vis this application, and that his jurisdiction overrides even that of the Tribunal in this sphere. The rationale that is evident is that an applicant under Form No. 7A does not have any vested right to be granted occupancy rights in contradistinction to the applicant under Form No. 7. Therefore if any person neglects or refrains from initiating legal proceedings by filing Form No. 7, he has missed the bus so far as the claim of tenancy rights is concerned and thereafter only a restricted opportunity is available u/s 77A (Form No. 7A). If, for any reason including the extent of the claim proffered, Form No. 7A fails to find favour with the Assistant Commissioner or the Deputy Commissioner, any claim for tenancy rights under the Reforms Act is forever fore-closed. In the case on hand, the Assistant Commissioner has applied the proviso to Section 77A(1) which contains a ceiling limit of 2 hectares of D-class land which can to be granted under that section. The Latin maxim "generalibus specialia derogant" which means ''things special restrict things general'' comes into play thereby ousting the jurisdiction of the Tribunal. Section 77A(1), even apart from the non-abstante clause with which it commences, would prevail over other general or already existing provisions of the Reforms Act.

The pleadings of the civil suit are now required to be cogitated upon. After the amendment to the plaint the case of the Plaintiff is that the Defendant enjoys merely a license or permissive occupation over the suit land. The defence in the Written Statement is that this position enures at the highest only so far as Item No. 2 is concerned to which the Defendant''s tenancy rights; and that with regard to the remaining land, the Defendant claims as a legatee of his grand-father. The latter issue is clearly beyond the province of the Tribunal, as it concerns title rather than tenancy over the suit land. The suit therefore must continue in so far as that issue of title is concerned. However, it seems that the same position obtains as far as Item No. 2 is concerned. The Defendant, it should not be forgotten, has not staked a claim in Form No. 7 and therefore, Section 48A does not come into operation. Ergo the Tribunal does not have jurisdiction over the dispute raised in the suit. So far as Form No. 7A is concerned, the application which invoked Section 77A, has been rejected by the appropriate Authority on 09.02.2009, ie., much after the dismissal on 05.07.2002 that too after rejection of the Civil Revision Petition No. 1983/2001 filed by the Plaintiff. Nothing further therefore remains to be reflected or decided upon under the Reforms Act 1961. The impugned Order therefore does not call for interference.

In terms of the Order of the Additional Civil Judge (Junior Division) Sagar passed in O.S. No. 400/1999 dated 09.02.2001, the application under Section- 133 of the Reforms Act was allowed as already noted. The Revision Petition filed by the Plaintiff was also dismissed by the learned Single Judge of this Court in CRP. No. 1983/2001 by Order dated 05.07.2002. In either of these Orders was this Court called upon to take note of the rejection of the Defendant''s application u/s 77A which was in Form No. 7A since this event transpired almost a decade later. That makes the material difference. This rejection of application u/s 77A has also attained finality, inasmuch as the Defendant has not assailed it any further. Therefore, it is apparent that the impugned Order does not in any manner ignore the decision of the Single Judge dismissing the Revision Petition filed by the Plaintiff. Before concluding, one more argument needs to be responded to and that is whether the Civil Court can enter into the exercise of deciding as to whether a prima facie case has been disclosed in the pleadings especially [in the Written Statement] as to the existence of the tenancy, since the resolution of this defence is within the exclusive domain of the Tribunal. Reliance has been placed on Hombalamma and Others Vs. Smt. Ningamma, in which Shidlingappa Mallappa Vs Dhondappa Shidlingappa 1981 (2) Kar L.J. 343 came to be considered. The Division Bench in Hombalamma held that the opinion to the effect that the Civil Court must arrive at a prima facie finding before making reference to the Tribunal u/s 133 of the Reforms Act was expressed in a factual matrix of that case and that the "question of determining the existence of prima facie case for Reference u/s 133 of the Act does not arise". These observations of the Division Bench were also made, palpably, keeping the pleadings in that case in perspective. The Division Bench did not overrule the decision thus leading to the conclusion that in some instances a prima facie enquiry can be carried, where reference to the Tribunal would be facile and purposeless. The Civil Court is not obliged to refer each and every case to the Tribunal, but the only those cases where a decision on the tenancy essentially arises so far as the parties before it are concerned. It would be futile and an idle waste of time for a Civil Court to refer a matter to the Tribunal in the absence of even a claim in the Written Statement that the tenancy existed in favour of the Defendant. Therefore, if it is unassailably clear to the Civil Court that because of the circumstances obtaining in the case, a decision as to the existence of relationship of Landlord and Tenant does not call for adjudication, reference to the Tribunal would obviously lead to a miscarriage of justice. In the case before us, Section 133 of the Reforms Act is not attracted for the reason that Form No. 7 had not been filed and therefore, Section 48A had not become relevant. There was, therefore, no case to be referred to the Tribunal and its jurisdiction had not been usurped in any manner in the impugned Order.

The Writ Petition is devoid of merit and is dismissed. The parties shall appear before the Additional Civil Judge (Junior Division) Sagar on 16.08.2012 for recording of Defendant''s evidence. The Additional Civil Judge (Junior Division) Sagar shall not accede to any request made on behalf of either of the parties for adjourning the proceedings, inasmuch as the lis pertains to 1999.

The parties shall bare their respective costs.