SHIVAPPA Vs. MAHADEVAPPA

JUDGEMENT

(1.) WE have heard the learned advocates representing the contesting parties and the learned GA on merits over the last several dates of hearing as is evident from the order sheet. The only reason why final orders were not passed was because the respondents learned advocate had asked for a little time to consider whether there are any other submissions which he desire to urge.

(2.) THE submission that was canvassed before us was that while remanding the case to the Tribunal, the learned Single Judge has relied on the Division Bench decision of this Court in Bharirathiammas case reported in 1979 (1) Karnataka Law Journal 307. His submission is that the Full Bench of this Court in the decision reported in AIR 1980 Kar. 107 has very clearly laid down the proposition that an issue as to tenancy of the defendant referred to the Tribunal and the decision thereof having become final before 1-3-1974, that the issue need not be reopened and that the suit should be disposed of on the basis of the legal position as obtains pursuant to that order. The circumstances under which the aforesaid proposition was laid down were entirely different to the facts of the present case because the Full Bench was concerned with whether the issue of tenancy required to be referred to the Tribunal once again in the face of it having been earlier decided and the Full Bench very rightly held that the issue having become final, there was neither need nor propriety for doing this. In the present case, there is a direct challenge to the order which the appellant is relying on, on the ground that it is vitiated in law on the ground of mis representation and coercion. This is something that virtually goes to the root of the matter because, if there is a challenge on the grounds of coercion, fraud etc. , and if that challenge were to be upheld by the court, the order itself would be rendered null and void or non est. Mr. Adi, learned Counsel who represents the appellant did bring it to our notice that the III Additional Munsiff, Hubli had passed the order as early as on 5-7-1972 wherein he had held that the present respondent is not a tenant and Mr. Adi submits that this was a decision of a competent judicial forum because that was the authority vested with the power of examining such issues and deciding them. He submits that while the respondent-1 s father did file Form No. 7 and claim tenancy on the ground that he is in occupation and cultivation and that his name is reflected in the revenue records, the important thing is that he did not raise any challenge to the validity of the order dated 5 7-1971 which had become final. He also relies on the fact that pursuant to this order, Mutation Entry No. 463 also stands.

(3.) ON the other hand, Mr. Shetty, learned Counsel who represents the respondents submitted that there is something very glaring in the present case viz. , the fact that admittedly when the parties approached the III Additional Munsiff, Hubli with the dispute in question, that there was no doubt about the fact that the appellants father was in fact the tenant, that the proceedings continued for as long as five years and suddenly, for no valid or ostensible reason, the tenant is supposed to have made a declaration before that authority that he is no longer the tenant. While Mr. Adi submitted that there is nothing unusual about a party relinquishing the tenancy, his learned Counterpart points out that there is no ostensible reason or ground why after litigating for five full years, the tenant would voluntarily give up his tenancy. Next, what Mr. Shetty seeks to emphasise is the fact that regardless of the order passed by the learned Munsiff, the petitioners father admittedly continues in occupation and cultivation and thereafter the petitioner comes into the picture and it is his submission that this circumstance alone indicates that the so called admission before the learned Munsiff and the so called relinquishment of tenancy are both absolutely sham. We have only reproduced the contentions that were pleaded before us because this is a rigorously contested litigation wherein the appellants learned Advocate points out to us that on the other hand, it is very significant that at no time, did the petitioners father or the petitioner allege any unfair tactics such as coercion or mis representation, only as late as in the year 1988, that this plea was taken up for the first time and the submission is that such a belated plea itself is hollow and untenable on the face of it and can never ever be upheld. In sum and substance, what Mr. Adi submitted was that if this is the issue which the Tribunal is required to re-examine and if it can reasonably be held that no judicial forum would accept or uphold such a belated plea that has come up for the first time, that a remand is totally unwarranted.