KORAPOLU HENGSU Vs. SESU

JUDGEMENT

(1.) This revision petition preferred by the plaintiffs in OS.36 of 1970 on the file of the Court of the Civil Judge, Mangalore, is directed against the order d/.28-2-1975 made in the said suit by which the learned Civil Judge referred the following three points lo the Land Tribunal constituted under the Karnataka Land Reforms Act: (1) Whether the chalgeni tenancy over item II of plaint "A' Schedule is of the joint family of the plaintiffs, and deceased Thankara? (2) Whether the said tenancy is individual tenancy of late Thankara ? (3) Whether the 3rd defendant is a deemed tenant of the said item under the provisions of Karnataka Land Reforms Act? Having referred the said points for adjudication by the Tribunal, the learned Civil Judge stayed the suit pending decision of the Tribunal It is against the paid order that his revision petition has been preferred.

(2.) The plaintiffs instituted the suit for declaration of title and possession and for mesne profits against the defendants. The suit related to 2 items of property described in the plaint 'A' Sch. The first item according to the plaintiffs, was a property of the plaintiffs and deceased Thankara (father of the defendant) and the second item WPS held by the said family on Chalgeni right. The plaintiffs alleged that deceased Thankara had executed a deed of settlement in favour of his Children (defendants) bequeathing item 2 of the 'A' Sch property to them, and that the said settlement deed is invalid and not binding on the plaintiffs The defendants contended, inter alia, that item 2 of the plaint 'A' Sch was held by their father Thankara in his own individual right and that the Chalgeni right did not belong to the joint family. It is relevant to state that the plaintiffs and deceased Thankara were members of a joint Aliyasanthana family. The defendants further contended that they are entitled to the benefits of the Karnataka Land Reforms Act and the question whether the Chalgeni right belonged to the joint family of the plaintiffs and deceased Thankara or it was the individual right of deceased Thankara should be referred to the Land Tribunal for adjudication under S.48A of the Karnataka Land Reforms Act. On the said plea, the Court below raised issues Nos.2, 15, 22, 23 and 24. The matter was heard by the learned Civil Judge and he made the order under revision directing that the three points should be referred for adjudication by the Tribunal.

(3.) It was urged by Sri T.S.Krishna Bhat, learned Counsel for the petitioner, that the question whether item 2 of the plaint 'A' Sch was joint family property or the individual property of deceased Thankara is a matter which can be decided only by the Civil Court and not by the Tribunal constituted under the Karnataka Land Reforms Act and therefore, the Court below was in error in referring the three points to the Tribunal for adjudication. Sri M.Gopalakrishna Shetty, learned Counsel for the contesting respondents, submitted that the case is one of rival tenancy between the joint family on the one hand, and the heirs of deceased Thankara on the other, and therefore, it is a matter for the Tribunal to decide.