MAHAMMAD Vs. BUKNASAB

JUDGEMENT

(1.) The appellant and respondents 2 & 3 were the plaintiffs and respondent 1 was the defendant in CS.206 of 1966 on the file of the Court of the Munsiff, Athani. In that suit, the plaintiffs sued for a declaration that the defendant is not a tenant of the suit lands and for permanent injunction restraining the defendants from interfering with the plaintiffs' possession. The defendant contended that he is a tenant in possession of the lands. The Munsiff framed issue No.1 raising the question whether the defendant is a tenant of the suit lands, which was required to be, tried and decided as a preliminary issue under S.133 of the Karnataka Land Reforms Act, 1961, hereinafter called the Act. But the said issue was not decided as a preliminary issue by the Munsiff who proceeded to decide all the issues and holding that the defendant is not a, tenant, decreed the suit as prayed for. Against the said decree, the defendant preferred RA.49 of 1969 in the Court of the Civil Judge, Belgaum, who set aside the judgment and decree of the trial Court and remanded the matter for disposal afresh. Against the said order of remand, plaintiff 1 has preferred the above appeal.

(2.) The question whether the defendant is or is not a tenant of the suit lands is a question which had to be decided by the 'Court' as defined in the Act as a preliminary issue under S.133 as it then stood. The party aggrieved by the finding on the issue of tenancy had a right of appeal under the Act to the District Court which alone had jurisdiction to entertain an appeal against the decision of 'the Court' on the question of tenancy. The defendant could not prefer an appeal to the District Court when the issue of tenancy was not decided as a preliminary issue. The Civil Judge who disposed of the appeal could not have set aside the finding of the Court on issue No.1. The appeal before the Court of the Civil Judge who had no Jurisdiction to decide the issue of tenancy was, in effect, infructuous This unfortunate position has resulted on account of the failure of 'the Court' to decide the issue of tenancy as a preliminary issue.

(3.) The Court of the Civil Judge against whose order of remand this appeal has been preferred could not have set aside the finding of 'the Court' on the issue of tenancy and if that finding could not have been set aside the suit also could not have been remanded The failure of the Munsiff to decide issue No.1 as a preliminary issue has resulted in a, miscarriage of justice Therefore, this is a fit matter where this Court should correct the proceeding in exercise of its jurisdiction under Art.227 of the Constn. Accordingly the judgment and decrer of the Court of the Munaiff, Athani, in CS 206 of 1966 and also the order of remand made in RA.40 of 1969 on the file of the Court of the Civil Judge, Belgaum, are hereby quashed The Act has been amended in 1974 Under the, amended Act, the jurisdiction to decide the issue of tenancy vests in the Tribunal'. The trial Court is directed to refer the issue of tenancy to 'the Tribunal' for its decision and stay the suit until its finding is received. It is ordered accordingy. No cots.