2008 Supreme(Kar) 965

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
V. Jagannathan, J.
Mallamma W/o Malleshappa —Appellant
Vs.
Channegowda S/o Ninge Gowda, Ramegowda S/o Dasegowda and Ramegowda @ Ramajja S/o Basavanna —Respondent
Regular Second Appeal No. 1102 of 1994
Decided on : 03-11-2008

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 100: [ V. Jagannathan, J ] Second Appeal - Suit for declaration of title and possession - Decree in favour of Plaintiff / Appellant against Defendants No. 2 and 2 - Successive attempts in obtaining possession - Subsequent proceeding before the Land Tribunal in between the Defendants No. 2 and 3 - Order of the Tribunal granting occupancy rights in favour of Defendants No. 2 - Defendant No. 3 as an occupant in respect of the Suit Land would be binding on the Plaintiff - Held, As between the defendants 2 and 3 there was no existence of landlord and tenant relationship by virtue of the decree passed in favour of the plaintiff in two earlier suits which have been confirmed by the High Court in two second appeals. When the 2nd defendant went before the Land Tribunal and posed himself as landowner he will have to be deemed as nothing but a trespassers and therefore any person who claims any interest from a trespasser also will become a trespasser. Therefore the order passed by the Land Tribunal becomes initially invalid, as it cannot confer any right at all on a person who was not a tenant but only a trespasser. Further held, despite the three Courts namely the Trial Court, the Appellate Court and the High Court confirming the ownership and possession of the plaintiff in respect of the suit properties, the defendants 2 and 3 went before the Land Tribunal and an application was filed after two months from the date of judgment of High Court in R.S.A. No. 612/73. In the application that is filed before the Land Tribunal, the only parties were the 2nd defendant who was shown as the owner and the 3rd defendant as the tenant. Therefore, the Order of the Tribunal cannot bind the plaintiff.

       CODE OF CIVIL PROCEDURE, 1908 - Section 100: [V. Jagannathan, J ] Second Appeal - Whether the pendency of the writ appeal comes in the way of deciding the second appeal when the nature of relief claimed and the scope of the proceedings is entirely different - Held, the scope of the second appeal is entirely different from the scope of the writ appeal and as the nature of the relief that is claimed in these two proceedings are entirely different. The second appeal has arisen out of the concurrent findings of the Courts below declining to grant the relief of permanent injunction and possession to the appellant. The question that is likely to arise before the Writ Appeal Court is as to the legality of the order passed by the Learned Signal Judge in the writ petition. Therefore, pendency of the writ appeal cannot a ground to refrain from deciding the second appeal, which has arisen out of the suit filed by the plaintiff for declaration and possession. When the order of the Land Tribunal has been held to be not binding on the plaintiff, it is held that pendency of the writ appeal wherein the question involved is altogether different from the question of law that have been framed for consideration by the Court in the second appeal, the Court which is dealing with second appeal need not wait for the disposal of the writ appeal. Karnataka High Court Act, 1961 - Section 4 - Writ Appeal.

       KARNATAKA LAND REFORMS ACT, 1962 - Sections 132 & 133: V. Jagannathan, J ] Bar contained under - Civil Court’s Jurisdiction to examine the legality of the Order of the Land Tribunal held, the Civil Court in the instant case, when confronted with the order of the Land Tribunal, though cannot go into the question of nature of the land or whether the person claiming occupancy rights being a tenant or not, which are outside its scope, yet could have consider the more important aspect of whether the order of the Land Tribunal can have any legal binding effect on the plaintiff. The order of the Tribunal is not binding on the plaintiff more so, in view of the plaintiff being not a party to the said proceedings before the Land Tribunal and being not served with any notice at all, on facts, held, the conduct of the Respondents 3 and 3 only to deprive the plaintiff of the benefits she got under the decree and it was also with a view to prolong the litigation. When the cases of such nature therefore arises, the Civil Court cannot take shelter under Sections 132 or 133 and mechanically hold that they have no jurisdiction. If the question that is called upon to be answered by the Civil Court though concerns an order of the Land Tribunal, yet if the said question falls outside the ambit of the question that is mentioned in clause (1) of Section 133, the Civil Court can certainly examine the said aspect of the matter. Hence, the prohibition or bar, is only in respect of the question relating to nature of the land and the question concerning the tenancy right of a person. All other matters which fall outside the above two questions can be gone into by the Civil Court and if it is found in a particular case that the order of the Land Tribunal is void, ab-initio or non-existence or its decision is not the decision at all, because the Tribunal did not act according to the fundamental principles of judicial procedures, in such a case, the Civil Court’s jurisdiction cannot be said to be ousted notwithstanding the bar contained in Sections 132 and 133 of the Karnataka Land Reforms Act.

       SPECIFIC RELIEF ACT, 1963 - Section 34: [V. Jagannathan, J] Suit for declaration and possession - Inter se dispute between landlords - Claim of tenancy decided the Tribunal - Whether the Civil Court could give declaration as sought for - Held: It is the Civil Court alone that can grant such a declaration. The Civil Court in the instant case, when confronted with the order of the Land Tribunal, though cannot go into the question of nature of the land or whether the person claiming occupancy rights being a tenant or not, which are outside it scope, yet, could consider the more important aspect of whether the order of the Land Tribunal can have any legal binding effect on the plaintiff particularly in the light of the plaintiff having not succeeded in the earlier suits and the decree of the trial Court having been confirmed by High Court and subsequent filing of the application before the Land Tribunal, whether the order of the Land Tribunal could have been held to be binding on the plaintiff and more so, in view of the plaintiff being not a party to the said proceedings before the Land Tribunal and being not served with any notice at all.