Siddaiah and Others vs Malleshafpa

Petitioners 1 to 4 who were respondents 1 to 4 respectively, in Misc. App. No. 2 of 1977 on the file of the Civil Judge and Chief Judicial Magistrate, Bellary, have preferred this revision petition against the Judgment dated 30-9-1977 of that Court allowing the said appeal. That appeal had been preferred by the respondent herein who is the plaintiff in OS. 278 of 1977 on the file of the Principal Munsiff, Bellary. The petitioners are the defendants in the said suit. The miscellaneous appeal before the Civil Judge arose out of an order dated 12-7-77 passed by the Munsiff on IA-I in the above suit.

The plaintiff''s suit in the trial Court is one for permanent injunction to restrain the defendants from interfering with his peaceful possession and enjoyment of the plaint schedule lands which are agricultural lands situated in Survey Nos. 110 and 107 of Village Thimmhalapur in Bellary Taluk. His case is that the lands belong to a temple called Sri Anjaneyaswamy Temple of Thimmalapur village, that he has been cultivating the same as a tenant since a few years prior to the suit; that the defendants have no manner of right, title or interest in the said lands; and that in spite of this, in order to knock away these lands, defendants were trying to interfere with his peaceful possession and enjoyment of the lands. On these allegations, along with the plaint, he also filed an application (IA-I) under Order 39, Rules 1 and 2 of the CPC supported by an affidavit and claimed an ad interim injunction against the defendants. The defendants, while resisting this claim, contended that the plaintiff is not in possession of these lands; that the same do not belong to Sri Anjaneyaswamy Temple; that, on the other hand, the same belong to an institution called Narayanaswamy Mutt at Kuldithani village; that they (defendants) and their ancestors, who have been Managers and trustees of the said Mutt, are looking after these lands; and they are in possession of the same. They have further contended that the plaintiff, claiming himself to be a tenant of these lands, has filed an application in Form-7 before the concerned Land Tribunal for registration of occupancy rights and that in the circumstances, the Civil Court (the Munsiff''s Court) had no jurisdiction to decide the said issue of tenancy and therefore the plaintiff''s claim for an ad interim injunction was barred under Sec. 133 of the Karnataka Land Reforms Act, 1961 (hereinafter called the Act)

The learned Munsiff, after hearing both the sides, rejected IA-I on the ground that the plaintiff had failed to make out a prima facie case of possession. On the question whether Sec. 133 of the Act was a bar for considering the claim for an interim injunction, the trial Court''s finding is that it is not.

The learned Civil Judge to whom this matter was taken by the plaintiff by way of an appeal, allowed the same with costs and granted an ad interim injunction in favour of the plaintiff.

The learned Counsel for the petitioners, while assailing the validity of the order of the first appellate Court made two submissions before me. His first submission is that, in view of the provisions of the Act, the Civil Court had no powers to grant an interim injunction as prayed for by the plaintiff. His second submission is that on facts the first appellate Court, relying on irrelevant materials and making a thoroughly wrong approach to the facts placed in the case, had erred in allowing the appeal.

The learned Counsel for the respondent supported the order of the first appellate Court and argued that there are no reasons to interfere with the same either on facts or in law.

Sec. 132 of the Act bars the jurisdiction of the Civil Court from deciding or dealing with any question which is, by, or under the Act, required to be decided or dealt with by the various authorities constituted under the Act. Sec. 133 of the Act says that in any suit or proceeding, involving agricultural lands, filed or pending in any civil or criminal Court or officer or authority, if any question or issue arises as to whether such land is or is not an agricultural land whether the person claiming to be in possession is or is not a tenant of that land from prior to 1-3-1977 such Court or authority should stay the suit or proceeding, as the case may be, and refer the issue or question to the Land Tribunal for a decision.

The contention of the learned Counsel for the petitioners in this petition is that in the light of the pleadings or rival contentions of the parties an issue or question as to whether the plaintiff is or is not a tenant of the lands in question arises for determination and that issue can be decided only by the Land Tribunal and therefore the appropriate order to be passed by the trial Court is to raise such an issue and refer the same to the Land Tribunal and to stay the suit till the finding of the Tribunal is received and thereafter to proceed with the suit in the light of that finding He also contends that in circumstances and in view of Secs. 48C, 132 and 133 of the Act the Civil Court had no powers to issue an interim order in the nature of an interim injunction as has been done in the instant case by the first appellate Court.

The question is, does an issue or question of tenancy at all arises in the suit in the light of the facts referred to above.

In a civil cause an issue can be Said to arise when a material proposition of facts or law is affirmed by one party and denied by the other. What is meant by "material proposition" is explained in Order 14. Rule 2 of the CPC. It is stated that "material propositions" are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence, (underlining italics is supplied).

What is the nature of the suit in question and on what basis is the relief claimed? A person who claims to be in possession (may be as a lessee) is seeking injunction against certain persons, who, according to him, are total strangers to the land and have no right to interfere with his possession and cultivation. The suit for injunction is based on lawful possession. The plaintiff does not claim to be a tenant under the defendants. The defendant''s claim is that neither the plaintiff nor the person, under whom the plaintiff alleges that he is cultivating, have any manner of right over the lands. On the other hand according to them, they them pelves are in possession of the same as trustees of a certain institution to which, the lands belong.

In this connection the observations of the Bombay High Court in Fakirbhai Bhagawandas v. Maganlal Haribhai, 1951 (53) BomLR. 163, may be noted. Placing reliance on a decision of the Privy Council in Ismail Ariff v. Mahomed Ghouse, 1893 ILR. 20 Cal. 834 PC, their Lordships observe as follows:

"This decision of their Lordships of the Privy Council lays down that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had no title whatever."

Since the plaintiff''s claim that he had taken the lands for cultivation from the owner of the same, Sri Anjaneyaswamy Temple, is not in dispute in this suit, no question or issue regarding that matter arises here. To disprove the claim of the plaintiff that he was in lawful possession of the lands the defendants will have to show their rights or interests in the land besides showing their lawful possession. It is said that the plaintiff has approached the Tribunal with an application in Form No. 7 under the Act claiming occupancy rights over these lands. To that application he has made Anjaneyaswamy Temple a party. Neither the defendants nor Narayanaswamy Mutt appear to have been arrayed as parties.

Under Sec.48C of the Act Land Tribunals are empowered to issue interim orders in the nature of temporary injunctions. But such orders can only be issued to persons who are parties to the proceeding before the Tribunal. Since it is not stated that the defendants are parties to the proceedings said to be pending before the concerned Land Tribunal that Tribunal cannot issue any interim order against them. The intention of the legislature, by incorporating these provisions-Secs.48C, 132 and 133 of the Act-was not to prevent persons claiming to be cultivators of agricultural lands or tenants from claiming injunctive reliefs in civil Courts against those who are total strangers to the lands.

In the circumstances of the case and for the reasons stated above I am of the view that the provisions of the Act are not attracted to the case on hand.

On merits also the order of the first appellate Court is not liable to be disturbed. The learned Civil Judge has elaborately considered the affidavits filed on behalf of the parties and also the entries made in the relevant revenue records. As can be seen from his order the record of rights pertaining to these lands clearly show the name of the plaintiff as the culti-vator from 1972 onwards upto 1976. After being fully satisfied from the materials placed before him, he came to the conclusion that the plaintiff was able to establish that he was in prima facie possession of the lands in question. I have gone through his order and I find no merit in the submission made on behalf of the petitioners that the learned Civil Judge had wrongly approached the case or had taken irrelevant materials into consideration.

In the result, this petition fails and the same is hereby dismissed.

Parties are directed to bear their own costs.