The main legal point established in the judgment is that the dispute among family members regarding the nature of tenancy should be decided by the Civil Court, based on the interpretation of the Land Reforms Act and the principles established by the Supreme Court.

( 1 ) THIS Appeal is directed against the order dated 7. 11. 1998 passed by the III Addl. District Judge, Dakshina Kannada, Mangalore, in R. A. No. 2/1993, wherein the judgment and decree passed by the Court of the Civil Judge at Puttur, Dakshina Kannada, in O. S. No. 141/1987 dated 28th November 1992 has been set aside and the matter is remitted to the Civil Court with a direction to make a reference to the Land Tribunal, Puttur, under Section 133 of the Land Reforms Act with regard to the question as to whether Chalgeni tenancy rights over the suit properties were hold by the Kutumba, to which the parties to the suit belonged or by the deceased 1st defendant alone.

( 2 ) THE essential facts of the case necessary for disposal of this appeal are as follows:- the parties would be referred to with reference to their rank before the trial Court.

( 3 ) PLAINTIFFS, being the wife and children of late Kunhanna Rai @ Ammu Banta filed a suit O. S. No. 141/1987 seeking for partition and separate possession of their 1/6th share in the suit schedule `b' property averring that the suit schedule property had been leased to the grand father of Plaintiffs 1 to 5 and defendant No. 1. It is averred in the plaint that : plaintiff No. 6-Seethamma is the mother of plaintiffs 1 to 5: defendant No. 1-Mahalinga Rai since deceased, defendant No. 2-Seethamma, one Mammakke-late mother of defendant No. 4 (Sundari), one Vittamma, late mother of Vasanthi (defendant No. 5) are the children of one Bhandari Banta @ Bhandari Alva and Derakke; the properties mentioned in `b' Schedule to the plaint were taken on lease by the grand father of Plaintiffs 1 to 5 and after his death, properties continued to be in possession of members of the family; as the tenancy dissolved upon members of the joint family after the death of Bhandari Banta, Defendant No. 1 filed Form No. 7 before the Land Tribunal on behalf of the family for grant of occupancy right and occupancy right has been granted on 24. 8. 1979 and since the tenancy is the joint family right, Plaintiffs are entitled to 1/6th share in the schedule properties.

( 4 ) THE suit was resisted by defendant No. 1 contending that the tenancy in favour of his father was surrendered and thereafter, the landlady gave the schedule property on lease individually to the 1st defendant and he filed Form No. 7 and occupancy right has been conferred upon him in his individual capacity by order dated 24. 8. 1979 and wherefore, Plaintiffs do not have any right or interest on the schedule property.

( 5 ) THE trial Court framed appropriate issues and after trial answered Issues in favour of Plaintiffs and decreed the suit as prayed for. During the pendency of the suit, the 1st defendant died and his wife and children were brought on record. Being aggrieved by the judgment and decree, the legal representatives of the 1st defendant filed Regular Appeal No. 2/1993 on the file of the III Addl. District Judge, Dakshina Kannada, Mangalore. The III Addl. District Judge passed the judgment dated 7. 11. 1998 holding that the question as to whether the tenancy was in favour of the joint family or in the individual capacity of the 1st defendant had to be decided by the Land Tribunal and could not be decided by the Civil Court in view of decisions of this Court as also the Supreme court and accordingly, set aside the judgment and decree dated 28. 11. 1992 passed by the Civil Judge, Puttur, D. K. in O. S. No. 141/1987 and remitted the matter back to the trial Court with a direction to refer the question as to whether Chalgeni tenancy right over the properties were held by the Kutumba to which the parties to the suit belonged or by the 1st defendant alone, to the Land Tribunal and thereafter, to decide the suit. Being aggrieved by the said judgment and decree passed by the 1st Appellate Court dated 7. 11. 1998, Plaintiffs have preferred this appeal.

( 6 ) I have heard the learned counsel appearing for appellants and the learned counsel appearing f

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