MELEGOWDA Vs. GAIBU SAB

JUDGEMENT

(1.) On a reference made by the learned Chief Justice, the above petition has come up before us for disposal. This petition arises out of the suit OS.573 of 1974 on the file of the Principal Munsiff, Mandya. The petitioner is the defendant in the said suit and the respondents are the plaintiffs.

(2.) The first respondent was the owner of a piece of agricultural land which is the subject matter of the suit and he mortgaged the same with possession in favour of the; petitioner under a registered mortgage deed dt.3-7-1967. After the said mortgage was executed, he sold the equity of redemption in the land in favour of respondent-2. The respondents instituted the suit, out of which this petition arises, for redemption of the mortgage and for a, decree for possession in favour of respondent-2 on redemption. The petitioner contested the suit in so far as the relief for possession was concerned. He, however, had no objection for the mortgage being redeemed. His case was that he was a tenant of the land prior to the mortgage and during the subsistence of the said tenancy the mortgage had come into existence. It was contended by him relying upon S.26 of the Karnataka Land Reforms Act (hereinafter referred to as the 'Act') that he was entitled to remain in possession of the land as a tenant after the mortgage was redeemed. It was also urged that in view of the said tenancy, the sale of the equity of redemption by the 1st respondent in favour of the 2nd respondent was void. On the basis of the above pleadings, the trial Court framed three issues i.e., Issues 3, 4 and 5 which read as follows:

(3.) After the above issues were framed, the petitioner filed an application IA.-5 in the suit, requesting the, Court to refer Issues 3, 4 and 5 to the Land Tribunal under S.133 of the Act as the suit involved the question whether the petitioner was a tenant under the first respondent and whether the tenancy was in abeyance by virtue of the provisions of S.26 of the Act. The respondents contested the said application on two grounds, (1) that the tenancy evqn, if it was true, had come to an end on the execution of the mortgage deed by reason of the merger of the lease which was a smaller estate in the mortgage which was a larger estate and (2) that it was not open to the Tribunal to determine whether the sale of equity of redemption by the; 1st respondent in favour of 2nd respondent was void. Incidentally, it was also contended by the respondents that the Tribunal had no jurisdiction to decide whether the tenancy in question, which was a past tenancy, was in existence before the mortgage deed came into existence or not. The learned Munsiff dismissed the said application holding that the tenancy in question, even if it was true, had come to an and on the execution of the mortgage deed on the ground that there was a merger of the lease in the mortgage and that the Tribunal was not competent to decide whether the tenancy prior to the mortgage was in existence or not. He also held that issuers 4 and 5 which related to the validity of the sale executed by respondent I in favour of respondent 2 could not be decided by the Land Tribunal. Aggrieved by the order of the Tribunal the petitioner has filed the above petition.