VENKATA RAO Vs. POOVAPPA MOILY

JUDGEMENT

(1.) THE appellants in this appeal are the legal representatives of the first defendant. The plaintiffs filed O.S.91/1 of 1963 in the Court of the Munsiff at Aland claiming declaration of ownership relating to the property as also claiming amount in deposit and for possession. The case of the plaintiffs was that they are the owners of the suit property. It was their further case that defendant 1 surrendered his tenancy right long back but was attempting to interfere with the possession held by the plaintiffs. It was further stated that having regard to the illegal interference of the plaintiff's possession, the proceedings were initiated before the Court of the Munsiff Magistrate, Aland and it was wrongly decided that defendant 1 was in possession of the lands in question and the lands were accordingly ordered to be released to him on the 27th August, 1957. The suit was therefore instituted for a declaration, for recovery of amount and also for mesne profits.

(2.) DEFENDANT 1 filed the written statement. Amongst other contentions, it was submitted by him that the rights of protected tenancy in the land was not surrendered and further in pursuance of such surrender possession was not obtained under the provisions of Sec.32 of the Hyderabad Tenancy and Agricultural Lands Act. It was further stated that it is wrong to say defendant 1 has no right in respect of land in dispute and that the alleged surrender is not a genuine one. Further defendant 1 has stated the following in the written statement:

(3.) IN my view it is not necessary to consider the other contentions raised in these proceedings, inasmuch as the judgment of the Courts below will have to be set aside and the proceedings remitted back to the trial Court having regard to the clear pronouncement of this Court on the question involved in the proceedings.In the present case, the claim made by the plaintiffs is that defendant 1 was wrongfully interfering with the possession and subsequently has illegally got into possession of the suit property in pursuance of the order of the Magistrate's Court.The case of the first defendant on the other hand is that he is in possession of the leads in question as a protected tenant. He has also raised a plea that the alleged surrender Proceedings which have taken place long back, are all proceedings which are not legal and are vitiated for the reasons stated in the written statement. There is, therefore, a two fold plea raised by the first defendant. The first one is that he has not surrendered the tenancy interest as claimed by the plaintiffs and the second one is that he is still the tenant of property in question. The provisions of the Hyderabad Tenancy and Agricultural Lands Act are in pari materia with the provisions of the Bombay Tenancy Agricultural Lands Act and also the provisions of the Mysore Tenancy Act. This Court, after a consideration of the provisions of the Bombay Tenancy Agricultural Lands Act and the Mysore Tenancy Act, in the case of Ningegowda v. M. Boranna, (1971) 2 Mys LJ 83 has laid down that when an issue of tenancy is raised by the defendant in a suit and that issue is required to be determinedthen the Civil Court at the relevant time had no jurisdiction to decide the same.Having considered the provisions of the Hyderabad Tenancy and Agricultural Lands Act, the only conclusion that is possible is that even under that Act it was the Tahsildar who had the exclusive jurisdiction to determine the status of a person claiming to be a tenant. The Civil Courts had no jurisdiction in the matter and if the principle laid down by the Supreme Court under the Bombay Act was to be applied, then the suit was required to be stayed and the party directed to seek an adjudication from the Tahsildar. It has however been pointed out by this Court that having regard to the enactment of the Mysore Land Reforms Act and its amendment, it is not necessary to follow this procedure but to set aside the decisions of the Courts below and to direct a fresh adjudication of the issue of tenancy in accordance with the provisions of the Mysore Land Reforms Act and particularly Section 133 of the Act.