H P SRINIVASA SETTY Vs. MUNIYAPPA

JUDGEMENT

(1.) This appeal under S.100 of CPC is by the defendant in OS.495/1965 on the file of the Prl Munsiff, Tumkur, being aggrieved by a concurring judgment made by the Addl Civil Judge, Tumkur, in RA.93/1969.

(2.) The suit was filed by the respondent for redemption of the suit property which is an agricultural land. He is a puchaser of the equity of redemption from the original mortgagors viz, Krishna Murthy and Venkatesha Murthy. The appellant herein, on the date of the suit, was a morgagee in possession of the suit land. He resisted the suit on the ground that he was a tenant of the suit land prior to the mortgage in his favour. The Courts below examined the plea of past tenancy set up by thei appellant and concluded that it was untrue. Hence, the suit for redemption was decreed.

(3.) Before me, in this appeal, Mr. N. Sampath Kumar, the learned Counsel for the appellant, urged only one contention. It is that the Courts below were not justified in examining the issue of tenancy on their own, instead of referring the same for adjudication by a Tribunal constituted under the Karnataka Land Reforms Act. He, however, points out that the trial Court had in fact made an order referring the issue to the Tribunal functioning at the time. But, for one reason or other, the matter was not actually referred. I am however unable to agree with this contention, for two reasons. First, a question of past tenancy cannot be referred to the Tribunal within the relevant provisions (S.112(b) of the Land Reforms Act). In support of this view, Sri T.S.Ramachandra, the learned Counsel, relied on an enunciation in the decision of the Supreme Court in Musamia Imam Haider Bax Razvi v. Rabari Govindobhai Ratnabhai, AIR. 1969 SC. 439. The enunciation clearly supports the contention urged on behalf of the respondent. Second, it is clear from the pleadings in the case that the appellant had been a mortgagee since 1958 and set up a plea of tenancy only as regards the period prior to it commencing from 1957. In such a situation, it would be clear, in the absence of any stipulation to keep the tenancy right distinct from the mortgagee, right, the tenancy right being a smaller one gets merged in the higher right of a mortgagee. In this view, even on the assumption that the tenancy set up is true, that tenancy no longer subsisted on the date of suit, which has been filed in the year 1965. Hence, I am clearly of the view that no issue of tenancy arose in the case and consequently it is unnecessary for the trial Court to have made any reference under the Land Reforms Act, as contended.