VENUGOPALA SINGH Vs. B M CHIKKAPUTTAPPA

JUDGEMENT

(1.) DEFENDANT 3(d) in os 438/1971 and os 439/1971, is the petitioner. Os 438/1971 is filed by b.m. mahadevappa against krishnasimha and six others for declaration of title and injunction, in the alternative, if it is found that he is not in possession, for possession in respect of S. Nos. 158/1, 158/3,159/1, 159/3, 159/4,160/1, 160/3 and 160/4 of iggali village. Os 439/1971, is filed by b.m. chikkaputtappa (brother of the above mentioned plaintiff) against the above DEFENDANTs for similar reliefs in lands S. Nos. 163/1, 163/2, 163/3, 162/1, 162/2, 162/3 and .62/4 of the same village. The admitted relationship of DEFENDANTs as per the geneology is as follows: <IMG>JUDGEMENT_581_KANTLJ1_1991Image1.jpg</IMG> sharadabayamma having expired, her three sons (d4 to d6) and four other daughters are brought on record as 2(a) to 2(h). Iggali village in nanjangud taluk was a jodi inam. With the coming into force Mysore (personal and miscellaneous) inams abolition Act, personal inams and certain miscellaneous inams in the erstwhile state of Mysore came to be abolished on dates notified under sub-section (4) of Section 1 of the said act. By notification No. Rd3 min 58, dated 22-9-1958, the Provisions of the Act, other then sections 2, 27, 38 and 40 were applicable to jodi iggali village in nanjangud taluk on 2nd october, 1958. The effect was on 2-10-1958, the village where the suit lands are situated, ceased to be a jodi village and it vested in the state. Ex. P. 31, dated 22nd may, 1965, evidences the fact that S. Nos. 158/1, 159/3, 160/3, 158/3, 159/1, 160/4, 159/4 and 160/1 of the jodi iggali village are registered in the name of mahadevappa. Similarly S. Nos. 162/1, 162/2, 162/3,163/1, 163/2, 163/3 and 162/4 are registered in the name of chikkaputtappa (vide Annexure respondent 3). Claim application of sharadabayamma in respect of S. Nos. 158/1, 158/3, 159/1, 159/3, 159/4, 160/1, 160/3, 160/4, 162/1, 162/2, 162/3, 162/4,163/1, 163/2 and 163/3, was rejected by the special deputy commissioner, inam abolition, mysore, vide his order dated 30-7-1962 (ex. P. 34). As against this Order, sharadabayamma filed appeal 430/63, before Karnataka revenue appellate tribunal. The members of k.r.a.t. dismissed the appeal on 25-2-1965 (ex. P. 35). Thus, these orders have become final. The present suits are filed on 30th july, 1971. Revision petitioners is brought on record as legal representative of above referred sharadabayamma. In her additional written statement filed on 10-12-1986, she contested the claim of plaintiff, having been registered as kadim tenant, as "not correct and true". She did not claim any right in herself, she could not do so in view of the above proceedings. The petitioner filed his written statement on 10-4-1989. He sought amendment which is allowed on 11-9-1989, and amendment is incorporated in the written statement. His defence after amendment is: "as the suit lands are inam lands this DEFENDANT along with his three brothers are the kadim tenants of suit lands have filed an application before the land reforms tribunal, nanjangud taluk, nanjangud in irf No. (ina)1 of 1986-87 seeking occupancy rights over the said land. The said application is even now pending before the land tribunal. Hence this court has no jurisdiction to proceed with the suit but has to wait till disposal of the pending proceedings before the land tribunal." In the suit there is no issue regarding DEFENDANT's "kadim" tenancy. At one stage it was contended that the court should have referred the issue of tenancy to land tribunal. That contention was rejected. In CRP Nos. 4643 and 4644/1989, the order of trial court was challenged. Dismissing the crps., I observed "the only plea taken by the petitioners in the written statement was that since the matter is pending before the tribunal, civil court had no jurisdiction. It was further stated if the issue of tenancy arises, he can make a request to the court to refer that issue to tribunal." Even now there is no issue regarding tenancy. After the dismissal of the above crps., Petitioner filed an i.a. under order 14, Rule 5 to frame additional issues, he proposed the following issues: "1) whether the DEFENDANT No. 3 (d) is a tenant by virtue of filing form No. 1 before the land tribunal, nanjangud. 2) if such application is filed whether the civil court is competent to try the suit under Section 133 of the Karnataka Land Reforms Act?" He also filed an application to refer the issue of tenancy to land tribunal, nanjangud. These i. As. Having been rejected, these petitions are filed under Section 115 of CPC. Question is whether the claim is bona fide, genuine and believable and secondly on a mere say of the petitioner should the suit be stayed and an issue be framed and referred to land tribunal? Mr. Rangavittalachar contended that petitioner's claim as 'kadim tenant' is under enquiry before land tribunal. He submitted his original application in form No. 1 having been lost, he has filed another application on 6th march, 1987 and proceedings are pending before land tribunal; so, under Section 133, Karnataka Land Reforms Act, the proceedings in the suits should be stayed. Mr. C.n. kamath, the learned counsel for plaintiff contended that petitioner's plea is false and unbelievable. He is set up by his brothers who failed in their attempt to reopen the proceedings before land tribunal. He invited my attention to the order of this court in W.P. No. 4503/1987 (ex. R. 2) dated 1st august, 1989, wherein the petitioner along with his brothers sought a mandamus, directing the land tribunal, nanjangud to reopen the case and club their claim, treating it as "rival claim." The said writ petition was withdrawn and dismissed. In addition, to substantiate that no such application is pending before land tribunal, he has produced an endorsement dated 6-2-1990, wherein it is stated that 1981 register does not contain any entry on 25-5-1981 on behalf of venugopala sing having filed form 1. This cannot be disbelieved. Mr. Kamath also placed reliance on the orders of special deputy commissioner and Karnataka revenue appellate tribunal referred to above. In my considered view the 'plea' of being 'kadim tenant' and proceeding being pending is an afterthought and is unbelievable. Legally, application under Mysore (personal and miscellaneous) inam abolition Act, 1954, is required to be filed in form No. 1 before the special deputy commissioner, by 31st december, 1979; by Karnataka inams abolition of laws (Amendment) act (act 26/1979), applications pending before deputy commissioner before 19th april, 1979, were statutorily transferred to the land tribunal concerned. Therefore the contention that the alleged claim of kadim tenancy is pending before land tribunal, on the face of it, is unacceptable. Annexure 'b' filed by petitioner is a xerox copy of form No. 1 under Rule 5 of Karnataka certain inam abolition Act, 1977, it is dated 16th march, 1987. It is contended that these proceedings are pending before land tribunal. The signatories to this application are: 1) h. B. Amarsingh (DEFENDANT-4) 2) h.b. pratabsingh (DEFENDANT-5) 3) h.b. ramsingh (DEFENDANT-6) 4) venugopalasingh (petitioner) it is not stated therein that a similar application was filed in 1981 and it has been lost in the office of tribunal, therefore a new application is filed. This was necessary because filing of application in march, 1987, was impermissible as the prescribed time had expired long back; further, all these persons were petitioners in W.P. No. 4503/1987, which was withdrawn and dismissed (ex. R. 2) on 1-3-1988. Assuming that such a petition is filed, does it entitle the petitioner to request the civil court, where the suit is pending, to stay the proceedings and refer the issue to tribunal; do they attract the Provisions of Section 133, Karnataka land reforms act? The answer to these questions makes it necessary to refer to certain Provisions of Karnataka certain inam abolition act (act 10 of 1978), which name into force on 5th june, 1978. The rules framed under this act came into force on 19th february, 1979. Section 2 makes it clear that it applies to all inam other than those referred thereunder. Items 7 and 8 are: 7. The Mysore (personal & miscellaneous) inams abolition Act, 1954 (act 1 of 1955). 8. The Mysore (religious and charitable) inams abolition Act, 1955 (act xviii of 1955). The object of the enactment is to provide for abolition all remaining inams in the state. The statement of objection reads thus: "whereas laws providing for abolition of certain personal, religious and charitable inams in the state, are already in force; whereas in certain areas of the state certain categories of inams are still existing; whereas it is expedient in the public interest to provide for the abolition of all such remaining inams". (emphasis added) therefore it is manifest that inams which stood abolished by act 1 of 1955 or act xviii of 1955 remained unaffected by this act. Legally the jodi inam villages having been abolished and vested in the state, as detailed above, were not "inams" when act 10 of 1978 was promulgated. This discussion leads to the conclusion that the claim under the certain inams abolition act is not available to the petitioner; if such an application is filed, it is frivolous and not maintainable. Further, Section 133 of the Land Reforms Act has no application to the facts of the case. Under that Section if an issue is framed and that issue is referred to land tribunal, the court has to stay the further proceedings in the suit, await the decision of the tribunal, thereafter, on receipt of the finding of the tribunal, proceed to dispose of the suit; since no such issue is framed and referred to tribunal, the court cannot stay the proceedings in the suit. As unsustainable and frivolous claim, filed by a party to the suit, before the tribunal cannot arrest the proceedings in the civil suit. Jurisdiction and competence of the court to try the suit is governed by the statutes and does not depend on untenable and imaginery plea of DEFENDANT. Law does not recognize such a right in the litigant and any one who asserts to the contrary should know his limitations. For the aforesaid reasons, these revision petitions fail; they are dismissed with costs. Advocate's fee Rs. 1,000/- in each of the c.r.p. the suits are pending since 1971; they have spent two decades. It is unfortunate that they are still in trial court. Considering this aspect, I direct the trial judge to dispose of the suits finally on or before 31st july, 1991. Lower court records be sent back immediately. Copy of this order be sent to land tribunal, nanjangud, for reference with reference to application in form No. 1 said to have been filed by the petitioner and his three brothers. Parties are directed to appear before the munsiff and additional jmfc, nanjangud, on 3-6-1991, without any further notice from that court.