Smt. Chikkamma and Others vs Smt. Laxmi Shedthi and Another

A.V. Srinivasa Reddy, J.—This Revision petition is by Defendants 1, 4 to 7 and 9 in O.S. No. 345 of 1988 on the file of the Prl. Civil Judge (Jr. Dn.), Kundapura aggrieved by the order dated 29.1.2002 passed on I.A No. IX filed under Order XIV, Rule 5(2) of the CPC rejecting the same.

The case was posted for Admission today after service of emergent notices on the Respondents. Though notices have been served on the Respondents, they remained absent and without representation.

Heard Mr. A. Anand Shetty, learned Counsel for the Petitioners.

Learned Counsel for the Petitioners has strenuously argued that the rejection of the application filed by the Plaintiffs under order XIV, Rule 5(2) of the CPC is contrary to the provisions of the Karnataka Land Reforms Act and the decision of this Court reported in 1982 (2) KarLJ 37 (Bettegowda v. K. Venkataramanaiah and Ors.)

I have perused Section 26 of the Karnataka Land Reforms Act and also the decision referred to by the learned Counsel for the Petitioners. There is absolutely no quarrel with the proposition that, if any land is mortgaged by the landlord by way of usufructuary mortgage to a tenant cultivating such land, the tenancy of such land shall be in abeyance during the subsistence of the mortgage. After the expiry of the said period, it shall be lawful for the tenant to continue to hold the land on the terms and conditions on which he held it before the mortgage was created. The decision referred to supra by Mr. A. Ananda Shetty, learned Counsel for the Petitioner lays down that the tenancy right would never merge with the rights of a mortgages as they are two different and distinct legal concepts, one being not higher than the other in the same category of rights. This principle had been laid down by this Court on the basis of what has been laid down by the Supreme Court in the case of Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, . That being so, even apart from the provision u/s 26, it is obvious that tenancy rights are kept dormant during the pendency of the mortgage and they get revived after redemption.

The suit on hand is stated to be a suit for redemption of mortgage. I have perused the written statement filed by the Petitioners-Defendants Paras 4 and 5 state that the Defendants and their ancestors who were in possession of the property in question have been in possession prior and even during the usufructuary mortgage and subsequent thereto. The reasoning given by the Trial Court for rejection of I.A. No. IX under Order XIV, Rule 5(2) of the CPC is that the issues have been framed in November, 1999 and the said issues are sufficient for proper adjudication of the case. Further, the Trial Court is of the view that the present application for framing of additional issues is contrary to law and the Court has no jurisdiction to consider the case regarding chalageni tenancy of the 1st Defendant when the 1st Defendant has not filed any application claiming tenancy rights as on 1.3.1974 and the land in question stood automatically vested with the Government. Therefore, additional issues as prayed for in the application are not required, particularly in view of the objections filed by the Plaintiff that the tenancy matter has to be decided by the Tribunal against the Defendants. From the pleadings, it is seen that the Trial Court has not taken note of Section 26 of the Karnataka Land Reforms Act which provides for tenancy being in abeyance during usufructuary mortgage in favour of the tenant. Notwithstanding the fact whether the earlier application was rejected by the Tribunal or not, the Trial Court is required to consider the claim of the Defendants u/s 26 of the Karnataka Land Reforms Act independently. Therefore, the Court is required to frame an additional issue with reference to Section 26. Section 26 is a statutory right conferred on the mortgagee-tenant. That right has to be considered independently de-hors the earlier proceedings, if any.

Therefore, the impugned order cannot be sustained in law. Accordingly, the same is set aside and the Civil Revision Petition is allowed. The Trial Court is directed to frame an additional issue in terms of Section 26 of the Karnataka Land Reforms Act and proceed with the trial of the suit. Since the suit is of the year 1988, the Trial Court is directed to dispose of the suit within a period of six months from the date of receipt of this order.