JUDGMENT
N. Kumar, J.
1. The Bench consisting of my esteemed learned brothers Justice Tirath Singh Thakur and Justice K. Sreedhar Rao, upon hearing the Regular First Appeal, RFA No. 446/1993, and having differed in their opinion on a point of law, have stated the point of law on which they differ, and in terms of Section 98(2) of the Code of Civil Procedure, the appeal is placed before me for hearing on the points of law so stated only, by an order of the Hon’ble Chief Justice.
2. Though my learned Brothers in the course of their judgment have set out the facts of the case, in order to appreciate the case in a proper perspective and to give my opinion on the point of law stated, it is necessary to advert to the pleadings of the parties in the suit. For the sake of convenience, the parties are referred to by their ranks to in the original suit.
3. The plaintiffs contend that the propositus Sri Balaram Kuduchakar died in the year 1930 leaving behind four sons, out of whom two sons expired in their young age and only two sons namely Sri Namani and Sri Ramachandra survived. Sri Namani died in the year 1981 leaving behind two sons and three daughters namely Sri Parasharam, Sri Subash, Sri Yallappa, Smt. Maya, Smt. Indu and Sri Chanda. Sri Yallappa one of the sons of Sri Namani died in the year 1990 leaving behind his wife Smt. Maiutai, defendant No. 3 in the suit and one minor son Sri Nemani, defendant No. 4. Shri. Ramachandra died in the year 1987 leaving behind his wife, sons Sri Mohan, Sri Madan and Sri Shyam and daughter Smt.Anita who are the plaintiffs in the suit. The suit properties consisted of a house property and agricultural lands. After the death of Sri Balaram, his two sons namely Sri Namani and Sri Ramachandra lived in the family house at No. 983, Narveker Galli, Gade Marg, Shahapur, Belgaum, together and they were in joint possession and enjoyment of the property. They were also cultivating the agricultural lands held by the joint family. Late Sri Namani being the elder in the family was managing the joint family affairs. Agricultural lands bearing Sy. No. 236 measuring 2 acres 14 guntas, Sy. No. 744 measuring 2 acres 26 guntas and Sy. No. 741 measuring 10 guntas, all situated at Belgaum Taluk, Belgaum District, were the tenanted properties. Though the said property was cultivated by the family as tenants, the revenue records stood in the name of Sri Ramachandra from 1942 to 1948 as protected tenant. In the year 1948 Late Sri Ramachandra joined service and taking advantage of the same Late Sri Namani got his name entered in the revenue records. However, the name of Sri Ramachandra also continued in the revenue records as tenant. As both the families did not get on well somewhere in the year 1980-81 they started messing separately. But, the suit properties were enjoyed by the family members jointly. No partition by metes and bounds was effected. In the year 1973 when Sri Ramachandra retired from service, he requested his brother Late Sri Namani to effect partition by metes and bounds and allot him half share in the suit properties. Sri Namani did not accede to the said request. As the agricultural lands were tenanted lands and with the amendment of the Karnataka Land Reforms Act in the year 1974, all the tenanted lands vested with the Government. Therefore, Sri Ramachandra filed an application in Form No. VII for grant of occupancy rights. Similarly, Late Sri Namani also filed an application before the Land Tribunal for grant of occupancy rights. Late Sri Ramachandra claimed half share whereas Sri Namani claimed the entire property. Both the applications were clubbed together and by an order dated 22.4.1976 in case No. LBM..Belgaurn/SR-l10-165, the Land Tribunal granted occupancy rights in respect of both the brothers. Late Sri Namani challenged the said order by preferring a Writ Petition W.P.No. 4478 of 76 before this Court. The order of the Land Tribunal was set aside by this Court by its order dated 6.2.1978 and the matter was remanded back for fresh enquiry. Again after fresh enquiry by an order dated 27.5.1981 the Land Tribunal granted occupancy rights in respect of both the brothers. Challenging the said order Sri Namani preferred Writ Petition No. 11352/81. Again the said order of the Land Tribunal was set aside by this Court by its order dated 24.5.83 and the matter was remanded back to the Tribunal for fresh enquiry. By that time Sri Ramachandra was dead and his LRS were brought or record. This time the Land Tribunal held Sri Namani as only occupant of the suit lands. Being aggrieved by the said order of the Land Tribunal, the plaintiffs being the legal heirs of Late Sri Ramachandra preferred a statutory Appeal before the Land Reforms Appellate Tribunal, Belgaum, in R.A.L.R. No. 84/1988. The said Appeal came to be dismissed directing the plaintiff to seek the relief in Civil Court in so far as his share of occupancy right is concerned. Against the said order of the Appellate Authority the plaintiff preferred a Revision Petition before this Court in C.R.P.No. 3656/1990. Affirming the order of the Appellate Authority this Court directed the plaintiff to seek remedy in the Civil Court in so far as his share of property is concerned. It is in this background the plaintiffs filed a suit O.S.No. 59/1991 on the file of the Civil Judge, Belgaum, for a decree of partition in respect of the suit schedule properties by metes and bounds and for other consequential reliefs.
4. Defendants 1 to 7 filed a written statement traversing the allegations made in the plaint. They contended that house property No. 983 is divided by metes and bounds and each of the sharers are in possession of one third share of the said property though the property bears CTS No. 983. With reference to agricultural lands it was contended that they were never the joint family properties nor the plaintiffs have any right over the same. They asserted that agricultural lands are in exclusive possession of their’s and the plaintiffs are not in possession of the said properties. They denied the joint possession pleaded by the plaintiffs. They denied that the lands were cultivated jointly by the parties. The agricultural lands originally belonged to the family of Sri Shankar Laxman Tilve and the same was taken on lease by Sri Namani alone. Therefore, the plaintiffs or their predecessors in title never cultivated the said property either as tenants or joint family members. The allegation that Sri Ramachandra was protected tenant and was cultivating from the year 1948 was denied. As Sri Ramachandra was having no right in the said property mere entry in the record of rights does not create any right in him. The question regarding the tenancy has been now finally decided by the competent Court under the Land Reforms Act and, therefore, now it is not open to the plaintiffs to claim any right in the said properly. As the agricultural lands were never joint family properties there was no question of partition of the same. It is also contended that if Sri Ramachandra had requested Sri Namani to effect partition in the year 1973 then plaintiffs have to explain as to why they have not taken any action from the year 1973 till the date of the suit. Plaintiffs have lost their right by efflux of time and the said Sri Namani has been claiming ownership exclusively of the properties in his possession. The plaintiffs’ suit being one beyond the period of 12 years is clearly barred and therefore is not maintainable. Both Sri Namani and Sri Ramachandra filed applications before the Land Tribunal seeking conferment of occupancy rights. The Land Tribunal granted occupancy rights exclusively in favour of Sri Namani which order was confirmed in Appeal and the Revision Petition preferred against the said order before this Court is dismissed. The suit of the plaintiff is clearly barred by time as the same is beyond the period of limitation. The plaintiffs are bound by the decision of the Land Tribunal, Belgaum. As it is exclusive jurisdictional decision, the suit of the plaintiffs for partition and separate possession is not tenable unless and until separate declaration is sought for and, therefore, the suit of the plaintiffs in the present form is not tenable.
5. The 8th defendant filed a separate statement claiming a share in the suit schedule property. She had no objection for a decree being passed as prayed for.
6. On the aforesaid pleadings the learned Trial Judge framed the following issues :
1. Whether the genealogy given in the plaint is correct?
2. Whether the plaintiffs prove that the suit properties are the joint family properties of themselves and defendants No. 1 to 7 and they are in joint possession of the same?
3. Whether they further prove that they have got half share in the suit properties?
4. Whether they are entitled to partition and separate possession of half share in the suit properties?
5. Whether defendants 1 to 7 prove that suit is barred by limitation?
6. Whether they further prove that suit is bad for non-joinder of necessary parties as contended in para 2 of the written statement?
7. Whether the defendants 1 to 7 prove the previous partition as contended in para 3 of the written statement?
8. Whether they further prove that the suit in the present form is not maintainable as contended in para 11 of the written statement?
9. Whether the valuation made is proper and court fee paid is sufficient?
10. To what relief are the parties entitled?
7. The plaintiffs in support of their case examined in all three witnesses and got marked documents Exhibits P1 to P119. Defendant No. 8 got examined herself as DW1 and no documents were marked on her side. Defendants 1 to 7 got examined defendant No. 1 as DW2 and have got marked the documents at Exs. D.1 to 51. Plaintiff No. 5 is examined as PW1.
8. The Trial Court on appreciation of the oral and documentary evidence adduced on record decreed the suit of the plaintiffs as prayed for holding that the contention of the defendants 1 to 7 regarding earlier partition in the year 1948 is not proved, the family of the plaintiffs and defendants 1 to 7 continued to be a joint family and 2/3rd share of the suit house and the agricultural lands were held to be joint family properties and thus granted the decree in favour of the plaintiffs to an extent of half share in the suit properties. The Trial Court held that in view of the observations made by the order of the Land Reforms Appellate Authority and the High Court in Civil Revision Petition, that the parties are directed to work out the claim in the partition suit, it has jurisdiction to entertain the suit for partition. Being aggrieved by the aforesaid judgment and decree, defendants 1 to 7 have preferred this Appeal.
9. The learned Judges who heard the Appeal on merits on the basis of the submissions made have formulated the following points for consideration in the appeal:-
1. Whether the family of Late Sri Ramachandra and Sri Namani constituted a joint family till the relevant period 1973-74 for determination of the rights of the parties?
2. Whether the defendants are estopped from raising the plea of want of jurisdiction of a Civil Court, in view of their pleadings and conduct in the earlier litigation?
3. Whether it is open for the Civil Court to grant the share in the suit lands, which is the subject matter of tenancy adjudicated by the Land Tribunal?
4. Whether the Civil Court has jurisdiction to adjudicate the claims of the members of the family of the tenant-interse after grant of tenancy rights in favour of any one of the members of the family recognising as an exclusive tenant?
10. Both the learned Judges have held that the finding of the Trial Court that there is no partition in the joint family, the status of the joint family continues and that the suit properties are the joint family properties, do not call for any interference as the same is based on appreciation of the oral and documentary evidence on record.
11. However on legal issues regarding the jurisdiction of the Civil Court to entertain the suit they differed in their judgments My esteemed learned Brother Justice Sreedhar Rao took the view that, as the rival claims have been adjudicated by the Tribunal and the order has attained finality, it is not open for the Civil Court to reopen the issue again in the present suit to decide whether it was a lease for the benefit of the joint family or otherwise. Whereas, my esteemed Brother Justice Thakur held, when issues which arose for consideration are not determined and when the said forum itself leaves the determination of the question to a competent Civil Court, no finality can be attached nor the jurisdiction of the Civil Court readily excluded. Further it was held that the defendants are precluded/estopped from raising the plea of want of jurisdiction by the Civil Court to go into the question of existence of a joint family and whether or not the occupancy rights conferred in the name of Sri Namani enure to the benefit of the family stood ousted under the provisions of the Land Reforms Act.
12. In view of the difference of opinion on the question of law, by the order dated 28.1.2002 they formulated four questions of law and have referred the said questions of law for consideration to the third Judge. That is how the matter is before me.
13. The four questions which are referred to for consideration by me are as under :-
1. Whether on the facts and circumstances of the case, the appellant can be permitted in the appeal to urge the contention that the suit for partition in respect of tenanted agricultural lands is barred in view of the order of the Land Tribunal?
2. Whether on the facts and circumstances of the case, the suit for partition in respect of agricultural lands is barred on account of the order of the Land Tribunal?
3. Whether it is open to the defendants to raise the plea of want of jurisdiction of the Civil Court to decide the suit for partition in view of their specific plea raised in the proceedings under Section 48A of the KLR Act?
4. Whether Civil Courts have a jurisdiction to grant decree for partition and separate possession of tenanted agricultural lands as the said question has been kept open in the proceedings arising out of Karnataka Land Reforms Act?
14. I have heard the learned Counsel for the parties at length.
15. Sri V. Tarakaram, the learned Senior Counsel appearing for the appellants, contended that, Section 133 of the Land Reforms Act categorically states that it is the Tribunal constituted under the Act which has the jurisdiction to decide the question whether such land is or not an agricultural land and whether the person claiming to be in possession is or is not a tenant of the land prior to 1.3.1974 and Section 132 of the Act bars the jurisdiction of the Civil Court to decide or deal with such a question. Therefore, when once the Land Reforms Tribunal holds that the deceased Sri Namani was in exclusive possession of the agricultural lands and, therefore, he is entitled to grant of occupancy rights and rejects the claim of the deceased Sri Ramachandra regarding joint tenancy pleaded by him, which order having been confirmed in Appeal and in Revision, Civil Court’s jurisdiction is ousted to go into the question whether the said tenancy rights belongs to the joint family or to the deceased Sri Namani exclusively. When the law declared by the Division Bench of this Court in MUDAKAPPA v. RUDRAPPA AND ORS., 1978(1) KLJ 459 to the said effect has been affirmed by the Supreme Court, the Civil Court has no jurisdiction to entertain the suit at all. On the other hand when the law declared by a Division Bench of this Court contrary to the above decisions in the case of APPI BELCHADTHI AND ORS. v. SESHI BELCHADTHI AND ORS., 1982(2) KLJ 565 has been overruled by the Supreme Court, the Civil Court’s jurisdiction to decide the said question is ousted and in that view of the matter the plaintiffs’ suit ought to have been dismissed as not maintainable.
16. Per contra, the learned Senior Counsel Sri B.V. Acharya, supporting the judgment of the Trial Court contended that, in the first place the Land Tribunal did not go into the question whether the tenancy in respect of the land in question was a joint family tenancy or the tenancy exclusively belonged to the deceased Sri Namani. Secondly, when the Appellate Authority was called upon to decide the said question, respondents 1 to 7 by their representation prevented the Appellate Authority from going into the question and they wanted the Appellate Authority to leave open the said question to be decided by a Competent Civil Court. When that approach of the Appellate Authority was challenged before this Court in revision, defendants again reiterated their stand thus prevailed upon this Court also to leave open the said question to be decided by a Civil Court. After all this when the plaintiffs approached the Civil Court for the relief of partition and separate possession, in the written statement filed in the suit they did not contend that the Civil Court has no jurisdiction to entertain the suit. No issues were therefore framed in this regard. Belatedly, only at the stage of arguments the said plea was canvassed and rightly rejected by the Trial Court. Defendants 1 to 7 by their conduct are estopped from putting forth the said contention in this appeal. It was also contended that in the present suit the Civil Court is called upon to decide whether the occupancy rights granted in favour of Sri Namani, a member of the joint family, enures to the benefit of the other members of the joint family and, therefore, are entitled to their legitimate share in the said joint family property and the Civil Court alone has the jurisdiction to go into the said question and in support of the said contention he relies on a judgment of the Supreme Court in the case of BALAWWA AND ANR. v. HASANBI AND ORS., , therefore, he submits that when the question whether the tenancy claimed by the deceased Sri Namani is a joint family tenancy or not, having not been decided by the Land Tribunal and is expressly kept open to be decided by a competent Civil Court, the suit filed by the plaintiffs is maintainable and the decree passed by the Trial Court is valid and legal and does not call for any interference. It is in this back ground that I am called upon to give my opinion on the four questions referred to for consideration as set out above.
17. In order to answer the aforesaid questions, it is necessary to have a look into the various provisions of law in the Land Reforms Act which have a bearing and also the various decisions relied on by the learned Counsels. The relevant provisions of the Karnataka Land Reforms Act, 1961, are :-
“Section 2(1): ” to cultivate personally” means to cultivate land by one’s own account:
(i) to (iii) XXX xxx Explanation – I xxx xxx
Explanation – II : in the case of a joint family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family.”
“Section 2(17) : “joint family” means in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence.”
“Section 2(34): “tenant” means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes:
(i) a person who is deemed to be a tenant under Section 4.
The word ‘Person’ is not defined in the Act. Hence, the definition given in the General Clauses Act, which reads as follows, will apply:
“person shall include any Company or Association or Body of individuals, whether incorporated or not”.
“Section 48A: Enquiry by the Tribunal, etc:- (1) Every person entitled to be registered as an occupant under Section 45 may make an application to the Tribunal in this behalf. Every such application shall, save as provided in this Act, be made before the expiry of a period of six months from the date of the commencement of Section 1 of the Karnataka Land Reforms (Amendment) Act 1978.
2. xxxxx
3. xxxxxxx
4. Where no objection is filed, the Tribunal, may, after such verification as it considers necessary, by order either grant or reject the application.
5. Where an objection is filed disputing the validity of the applicant’s claim or setting up a rival claim, the Tribunal shall, after enquiry, determine by order, the person entitled to be registered as occupant and pass orders accordingly.
Section 12(B): Duties of Tribunal: (a) to make necessary verification or hold an enquiry including local inspection and pass orders in cases relating to registration of tenant as an occupant under Section 48A.
(b) to decide whether a person is a tenant or not. (bb) to (bbbbb) xxxx
(c) xxxx
(d) to perform such other duties and functions as are imposed on the Tribunal under the provisions of this Act or under any rule made thereunder.
“Section 132. Bar of jurisdiction: (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Deputy Commissioner, an officer authorised under Sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83 the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control.
(2) No order of the Deputy Commissioner, an officer authorised under Sub-section (1) of Section 77 the Assistant Commissioner, the prescribed authority under Section 83, the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any Civil or Criminal Court.”
Section 133: Suits, proceedings, etc., involving questions required to be decided by the Tribunal:
(1) Notwithstanding anything in any law for the time being in force:
(i) No Civil or Criminal Court or officer or authority shall, in any suit, case or proceedings concerning a land decide the question whether such land is or not agricultural land and whether the person claiming to be in possession is or is not a tenant of the land said from prior to 1st March 1974.
(ii) Such Court or Officer or Authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the Tribunal for decision.
(iii) All interim orders issued or made by such Court, Officer or Authority, whether in the nature of temporary injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be.
(iv) The Tribunal shall decide the question referred to it under Clause (1) and communicate its decision to such Court, Officer or Authority. The decision of the Tribunal shall be final.
(2) Nothing in Sub-section (1) shall preclude the Civil or Criminal Court or the Officer or Authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub-section”.
18. All these provisions have been the subject matter of interpretation by this Court as well as the Supreme Court. Therefore, it is necessary to have a glance at the aforesaid decisions which have a bearing on the point on which the parties are relying on.
19. The first of the judgment is in the case of Mudakappa v. Rudrappa (referred to supra). A Division Bench of this Court after considering several judgments of the learned Single Judge on the point considered the question of the jurisdiction of the Civil Court as well as the Land Tribunal under the Act. After considering Sections 44, 45, 48A, 112B, 132 and 133 of the Act held as under :-
“12…..When, as in this case, one person applies for registration of the lands as an occupant in his individual name and three others apply for registration of the said lands in their name along with the other applicants as joint occupants, it becomes the duty of the Tribunal to decide whether only one of them was the sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants. Without deciding the said question, it would not be possible for the Tribunal to make an effective order under Section 48A of the Act. In order to decide the question, it becomes necessary for the Tribunal to decide whether the tenancy in question was held by one of them exclusively or by all the applicants jointly. We have to hold that under Section 48A, the Tribunal has that power having regard to the scope of that Section. Whenever a statute confers a duty on an authority to decide a question and a corresponding right on an individual or individuals if has to be assumed that the statute, has, by necessary implication conferred on that authority the power to decide all issues which are incidental and ancillary to the main question to be decided. Otherwise the Tribunal will have to keep all the applications pending until such issues are decided by the Civil Court. In fact there is no procedure prescribed by the Act to refer such issues for the decision of the Civil Court. We do not think that it would be reasonable to hold that the Tribunal should await the decision of the Civil Court on such issue, in view of Sub-section (5) of Section 48A, which requires the Tribunal to hold an enquiry into all rival claims made in respect of the registration of the occupancy rights in respect of the agricultural lands before disposing of the applications made to it. We therefore hold that the Land Tribunal is competent to decide for the purpose of disposing of the applications under Section 48A the question whether the lease-hold rights were held exclusively by the appellant or by the joint family consisting of the appellant and the respondents before the partition took place and thereafter by all of them as co-tenants till the appointed day. It is its duty to do so under the Act. The said question could not therefore be decided by the Civil Court in view of Section 132 of the Act.”
20. Another Division Bench of this Court in the case of APPI BELCHADTHI AND ORS. v. V. SHESHI BELCHADTHI AND ORS. reported in 1982 (2) KLJ 565 after referring to the aforesaid judgment of the Division Bench in Mudakappa’s case (supra) has held as under:-
“14. What becomes fairly clear from these provisions is that the order made by the Tribunal on matters which it has exclusive jurisdiction to deal and decide become final and cannot be questioned in any Civil Court. In other words, the Civil Court shall have no jurisdiction to determine the questions decided by the Tribunal in the exercise of its exclusive jurisdiction. As far as we could see, the exclusive jurisdiction of tribunals extends to only two-questions. They are (1) whether the land in question was a tenanted land as on March 1, 1974, and(ii) whether the applicant and if there are rival applicants who amongst them, is entitled to be registered as occupant. The Tribunal in the first place is required to locate the land and determine whether it was tenanted. Secondly, it must identify the person in possession as a tenant and register him as an occupant. The Act imparts finality only in respect of these two questions determined by the Tribunal and not in regard to other matters………
18. The questions such as, the existence of a joint family, the rights of the members thereof, the position and power of the manager, and the nature of the property acquired by them are not so simple to be decided by a summary enquiry, and that too without the assistance of trained lawyers. The joint Hindu family or coparcenary is a creature of Hindu family. The status to every Hindu family is presumed to be joint, joint in food, worship and estate. That presumption is stronger in the case of brothers. Once the family is proved to be joint, that presumption continues until it is rebutted. Those who allege separation must prove unless it is admitted that there was a separation at some point of time. The question as to whether a particular family retains its character of jointness at a particular time is a difficult question for decision. Mere severance in food and worship does not effect a separation of the family nor separate residence by members operates as a severance of the joint status. We are only mentioning some of these principal features to impress upon that the decision on these questions requires a lot of brooding even by Courts of law. One could only imagine the difficulties of Tribunals without proper wherewithal.
20. ……We may only add that a person’s right to get a share in the occupancy right does not depend upon the liberty being reserved by the Tribunal to approach the Civil Court, because as seen earlier, such a right is not extinguished by not approaching the Tribunal. It is pertinent to remember that the grant of occupancy right by the Tribunal in the name of a given individual in respect of joint family tenanted lands will not have the effect of converting that in a separate property of that individual. Nor the occupancy right granted in respect of a personal tenancy of that individual would acquire a different character. In both the cases, the antecedent tenancy rights are enlarged into permanent occupancy rights by doing away with the landlord. To put it shortly, the Act converts the lease hold into freehold and does no damage to the existing rights of the occupant’s family or any member thereof.
21. This judgment was followed by another Division Bench of this Court in the case of GURUVAPPA AND ANR. v. NANJAPPA HENGSU AND ORS., wherein it has been held as under :-
“12. ….. We may make it clear that in case there is any other person who is a member of this joint family namely, one who is not included in the names narrated by the Tribunal in the impugned order, the rights of such person would not be affected as they can be agitated by him and got settled in a catena of decisions that such a right is a property and a member of a joint family can claim such a share in such property by instituting a suit.”
22. On the ground that there was a conflict between the two judgments in the above referred Appi Belchadthi and Guruvappa’s case the matter was referred to a Full Bench to resolve the conflict by raising the following questions for consideration in the case of BOODA POOJARY v. THOMU POOJARTHY, :-
(1) What is the scope of jurisdiction conferred upon the Land Tribunals under Section 112-B(b) of the Act in deciding the claim of occupancy right made under Section 48A of the Act?
(2) Is it not open to the Land Tribunals to decide all questions that arise while considering Form No. 7 filed for the purpose of granting or refusing the occupancy right claimed therein?
(3) When a jurisdiction is conferred upon the Land Tribunal to decide whether a person is a tenant or not, does it not take into its fold, to decide all the controversies having a bearing upon the claim in order to decide the question whether a person is a tenant or not? And
(4) Which of the Decisions of this Court in Mudukappa’s case [1978 (1) Karnataka Law Journal 459] and Guruvappa’s case (ILR 1985 Karnataka 386) or the Decisions in Appi Belchadthi’s case [1982(2) Karnataka Law Journal 565] and Yellappa’s case (RFA No. 26 of 1975 DD 11-6-1975] lay down the law correctly?
After exhaustively considering the various provisions of the Land Reforms Act and the various judgments rendered, the Full Bench answered the reference as under:
“10. In the light of what is stated above, we answer the questions referred to us as follows;
(1) The Tribunals have jurisdiction to go into all questions bearing upon whether the applicant is a tenant or not under Section 112(B) (b) of the Act for the purpose of deciding the claim of occupancy rights made under Section 48A of the Act.
(2) It is open to the Land Tribunal to decide all questions that arise while considering Form No. 7 for the purpose of granting or refusing the occupancy rights claimed therein.
(3) In view of the answers to Questions 1 and 2, the Answer to Question No. 3 follows, that the Land Tribunal takes into its jurisdiction all controversies having bearing upon the claim in order to decide the question whether a person is a tenant or not.
(4) In the light of the discussion made above with reference to the cases referred to in Question No. 4, we are of the opinion there is no conflict among Mudukappa’s case (1978(1) Karnataka Law Journal 459]; Guruvappa’s case (ILR 1985 Karnataka 386) and Appi Belchadthi’s case [1982(2) Karnataka Law Journal 565]. As to Decision in Yellappa’s case RFA No. 26 of 1975 D.D. 11-6-1975) the position is made clear in para 11 in the case of Mudukappa, which holds good.”
Thereafter, the Supreme Court in the appeal preferred against the judgment in Mudukappa’s case which is reported in AIR 1994 SC 1490 affirming the view of this Court held as under :-
“It is seen that the words ‘tenant’, ‘the Tribunal’, and ‘the joint family’ have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pendings the suit, when the question arose whether the appellant or Joint family is the tenant, that question should be decided by the Tribunal alone under Section 48A read with Section 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Article 227, as the case may be. But that cannot, by necessary in implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from Section 48A(5) and Section 112B(bbb) read with Section 133, that the decision of the Tribunal is final under Section 133(iii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court”.
23. In the case of BALAWWA AND ANR. v. HASANABI AND ORS. , the Supreme Court was dealing with a case where a suit for partition was filed in respect of a land which was granted to a tenant under Section 48A of the Karnataka Land Reforms Act in which the legal heirs of the deceased tenant, widow and her son claimed exclusive title to the land granted. The Trial Court had decreed the suit. In appeal the same was confirmed. In Appeal before the Supreme Court, the judgment of the Supreme Court in Mudakappa’s case was pressed into service to contend that the Civil Court had no jurisdiction to grant the relief of partition when once the Tribunal has granted occupancy rights in favour of a tenant. After considering the aforesaid judgment in Mudakappa’s case and yet another judgment of the Supreme Court, the Supreme Court held as under:
“7. Having examined the provisions of the Karnataka Land Reforms Act and the aforesaid two judgments of this Court, we have no doubt in our mind that the Civil Court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well settled that when a special Tribunal is created under a special statute and the jurisdiction of the Civil Court is sought to be ousted under the said statute, it is only in respect of those reliefs which could be granted by the Special Tribunal under the special statute, the jurisdiction of the Civil Court cannot be said to be ousted.
8. Looking at the provisions of Section 48A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the Civil Court. Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an applicant provided the preconditions for the same are satisfied, namely that the land was in possession of the tenant concerned on the relevant date. That being the position and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned Counsel for the appellants is, therefore, devoid of any force.”
24. It is in this background, if we analyse and examine the legal position, it is clear that Section 132 of the Act ousts the jurisdiction of the Civil Courts to settle* decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Deputy Commissioner, the Tribunal, the Assistant Commissioner, the Tahsildar, the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control. Section 133 of the Act deals with the exclusive jurisdiction of the Tribunal to decide certain questions. They are :- (i) The question whether the subject matter of the proceedings is or is not agricultural land. (ii) Whether the person claiming to be in possession is or is not the tenant of the said land prior to 1.3.1974? The Civil Court’s jurisdiction to decide the aforesaid two questions arising under the Act is completely barred. Section 48A of the Act deals with enquiry by the Tribunal. The enquiry by the Tribunal commences by a person making an application under Section 45 of the Act. If no objections are filed to the said application the Tribunal may after such verification as it may consider necessary may either grant or reject the application. Sub-section (5) provides that, when an objection is filed disputing the validity of the applicant’s claim or setting up a rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as occupant and pass orders accordingly. Therefore, the Act provides for determination of the rival claims of the applicants by the Tribunal. The said claim may have various facets. The dispute may be with reference to any particular survey number, extent of survey number and exclusive claim for the said survey number. Irrespective of the nature of the claim all disputes are to be determined by the Tribunal. In the course of such an enquiry if it is contended by one of the applicant that the tenancy exclusively belongs to him to the total exclusion of other family members and if the other members of the family claim occupancy rights on behalf of the family contending that the tenancy of the land is joint family and not that of the contesting applicant, who is claiming exclusive right under Sub-section (5) of Section 48A, an obligation is cast upon the Tribunal to decide such rival claims and decide the person entitled to be registered as occupant and pass orders accordingly. The definition of the word “to cultivate personally” as contained in Section 2(11) of the Act means to cultivate land on one’s own account, by one’s own labour, or by the labour of any member of one’s family or by hired labour or by servants on wages payable in cash or kind, but not in crop share, under the personal supervision of oneself or by member of one’s family. Explanation II to the aforesaid definition makes it clear that, in the case of a joint family, the land shall be deemed to be cultivated personally, if it is cultivated by any member of such family. Therefore, in order to confer occupancy rights in favour of a joint family it is not the requirement of law that every member of the joint family should cultivate the land personally. Even if one member of such family cultivates the land and if such cultivation is on behalf of his family, the said benefit enure to all the members of the family. “Joint family” has been defined under the Act to mean in the case of persons governed by Hindu Law as undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence. Therefore, keeping in mind these statutory provisions, when there is a rival claim and the question before the Tribunal is whether the cultivation of the land by a member of the joint family is on behalf of joint family or exclusively by the person who is cultivating, the Tribunal is competent to go into the said question and decide one way or the other on the basis of the material placed before it. In fact a statutory duty is cast upon the Tribunal to determine the said disputed question. The said question would be ancillary and incidental to the main question which the Tribunal is called upon to decide, namely whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1.3.1974. If the Tribunal records a finding after contest one way or the other, then the said finding becomes a final subject to challenge under the provisions of the Act. The Civil Court’s jurisdiction to decide the very same question is completely ousted. If the Tribunal does not decide this question but decides to confer occupancy rights on an applicant purely based on the revenue records showing his name in the mutation register and on the basis of his actual possession of the land or cultivation of the land and declines to record a finding whether the occupancy rights granted is a right belonging to the joint family or to an individual, then it is open to the other members of the joint family to seek a partition of their rights in the occupancy rights granted in favour of only one member of the family. In the said suit Civil Court is not called upon to decide who is the tenant as the said question is already conclusively decided by the Tribunal. What the Civil Court is called upon to decide in such a suit is whether the tenancy rights conferred on a member of the family is his self acquisition or belonging to the joint family? The Civil Court is fully competent to go into this question.
25. Therefore, the Tribunal has the exclusive jurisdiction to decide the question of tenancy and the question whether the tenancy claimed belongs exclusively to an individual or it belongs to a joint family. The Civil Court’s jurisdiction to decide these questions is completely barred. The question whether a particular property is a joint family property or self acquisition of a member of the joint family is a matter which exclusively falls within the jurisdiction of a Civil Court. The Tribunal has no jurisdiction to go into and decide the said question. In a suit for partition it is always open to a party to the suit to contend that a particular item of the property is not a joint family property but it is a self acquired property. The Civil Court has the jurisdiction to decide the said question and if the property is held to be a self acquired property no decree for partition shall be granted. If the subject matter of such suit for partition is a land in respect of which occupancy rights has been granted under the provisions of the Karnataka Land Reforms Act and if partition of the said property is sought for in the suit, the Civil Court has the jurisdiction to go into the question whether the said property is a joint family property or not. If in such proceedings it is contended by the person to whom occupancy rights has been granted that it is his exclusive property and not a joint family property. Civil Court certainly has the jurisdiction to go into the question whether the said property is a joint family property or the self acquisition or separate property of the persons in whose favour occupancy rights has been granted. Merely because it is contended in such a suit that it is a self acquired property of the person in whose favour the occupancy rights has been granted, the Civil Court’s jurisdiction to entertain a suit in respect of the said property is not ousted or excluded. While grating the occupancy rights if the Tribunal has decided the question whether the person claiming that occupancy rights is claiming it on behalf of the joint family or exclusively for himself, then, on a suit for partition the Civil Court cannot sit in judgment over the said finding recorded by the Land Tribunal nor it can adjudicate the said controversy afresh ignoring the finding of the Tribunal. In such a event the Civil Court is bound to accept the finding of the Tribunal and give effect to the same acting on the said finding. If the Tribunal in such proceedings has recorded a finding that it is the self acquisition or exclusive right of the person whom the occupancy rights is granted rejecting the claim of the rival claimant that it is a joint family tenancy that by itself would not oust the jurisdiction of Civil Court to entertain a suit for partition. If a suit is filed after entertaining the suit the Court may decline to grant relief to the plaintiff who is claiming a share in the said property on the ground that it is not a joint family property but it is the exclusive property of the person in whose favour the occupancy rights has been granted. If the Tribunal has not gone into the said question and has granted occupancy rights in a suit filed for partition in respect of the land it is open to the Civil Court to go into the question whether the said property is a joint family property or not.
26. The ratio in Mudakappa’s case as held by the Supreme Court is that when rival claims were set up for tenancy rights and entitlement for registration, it is incumbent on the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. A forum is created and the said forum is enjoined to enquire into not only the nature of the land but also entitlement for registration as a tenant. The Civil Court’s jurisdiction under Section 9 of the CPC by necessary implication stood excluded to enquire into such disputes. The Civil Court has the power only to decide other issues.
27. Affirming the said view, the Supreme Court in the case of Balawwa has held, the Tribunal has no jurisdiction to grant the relief of partition in respect of the land for which occupancy rights has been granted. It is only the Civil Court which has the jurisdiction to entertain, decide and grant a decree for partition.
28. The legal position that emerges from the said provisions, decisions and discussion be stated as under :-
(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claims by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does nqt decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition.
29. On the question of estoppel the learned Counsel for the parties have relied on several judgment. In the case of LAZAUR CHEERAN v. THE MOST REV Dr. B.S. PERES BY HIS ATTORNEY REV. FR. A.J.D. SILVA, 1970 Mys. LJ 180 it has been held as under :-
“Estoppels are of infinite variety and Section 115 Evidence Act is not an exhaustive statement of the law of estoppels. Even a wrong representation on a question of law can estop a person making representation if he had succeeded in persuading the Court to accept his representation.”
30. In the case of SUMITRAMMA v. SUBBADU, AIR 1943 Madras 22it has been held as under:
“Section 115 indicates that a estoppel consists not in putting forward a particular view of the law, but in making a particular representation on a point of fact. It is only when there has been one representation on a question of fact that a party is estopped from putting forward a contrary representation on the same question of fact (as summarized in the head note).”
31. In VENGINELLA PARENDMAVVA v. SRI RAMASHEKARAIAH SWAMY TEMPLE, KOTIPALLI REPRESENTED BY ITS EXECUTIVE OFFICER, it held as under:-
“The principle of estoppel would apply when a party seeks to take up in consistent positions as to jurisdiction of Civil Court, Foll.
Thus, where a lessee succeeds on the question of jurisdiction before the Tahsildar under the Andhra Tenancy Act and obtains an adjudication that no petition for fixation of fair rent lies against him on the footing that he is not a person governed by that Act he cannot be allowed to question the jurisdiction of Civil Court to entertain a suit for recovery of possession of profits filed by lessor only in view of the findings given by the Tahshildar in the previous proceedings under the Andhra Tenancy Act. Case law discussed.”
32. In UNION OF INDIA AND ANR v. RAJDHANI GRAINS AND JAGGERY EXCHANGE LIMITED AND ORS., it is held:-
Thus a person having successfully resisted a suit filed by R for his ejectment from the land in suit on the ground that R was not a Bhumidar and the suit for ejectment was not maintainable in a revenue Court cannot take up inconsistent stand in subsequent suit relating to the same land brought by the successors in interest or R and contend that R was a Bhumidar and the suit for ejectment should have been field in a Revenue Court. He having already taken advantage of his pleas about the status of R and the maintainability of a suit in a Revenue Court by the dismissal of the earlier suit cannot now turn round and take the stand that R was a Bhumidar and the suit was triable in a revenue Court.”
33. In HAIDARALI GULAMALI v. SAIYED GULAM MOHIUDDIN, AIR 1934 Bombay 343 the Bombay High Court has held thus:
“A party cannot be allowed to say at one time that the question between him and the opposite party as to adverse possession is not necessary to be decided in the suit and thereby induce the Court to refrain from deciding it and at another time say that because that question was not decided between him and the other party, the letter’s claim is barred by adverse possession which is the very issue which he objected to be decided. Even if he is not estopped, the principle of approbation and reprobation will apply and he cannot be allowed to take this stand point.”
34. In the commentaries on the subject of estoppel in the treatise “law relating to estoppel by representation” by George Spencer Bower, Second Edition, page 136 it is stated as under:-
“Not even the plainest and most express contract or consent of a party to litigation can confer jurisdiction on any person not already vested with it by the law of the land, or add to the jurisdiction lawfully exercised by any judicial tribunal; it is equally plain that the same results cannot be achieved by conduct or inaction or acquiescence by the parties. Any such attempt to create or enlarge jurisdiction is in fact the appointment of a judicial officer by a subject, and as such constitute a manifest usurpation of the Royal prerogative. On the other hand, where nothing more is involved than a mere irregularity of procedure or (e.g.) noncompliance with statutory conditions precedent to the validity of a step in the litigation, of such a character that, if one of the parties be allowed to waive the defect, or by conduct or inaction to be estopped from setting it up, no new jurisdiction is thereby impliedly created and no existing jurisdiction impliedly extended beyond its existing boundaries, the estoppel will be maintained and the affirmative answer of illegality will fail.
Accordingly, in all cases of the first class, that is, where it is sought by estoppel to enlarge the jurisdiction of any tribunal of limited jurisdiction, or to confer jurisdiction on any tribunal on person to whom it is not given by law, it has been held that it is impossible by contract to achieve these ends contrary to the provisions of a statute and similarly no estoppel can be invoked to produce a similar result. In the second class, in which the representation is set up merely as a remedy for an irregularity in procedure, it has been held that this end may be achieved by estoppel or waiver.
In some branches of the law, the terms of the relevant statute preclude the parties from contradicting out of the jurisdiction of the prescribed tribunal; and, in such cases, just as no agreement between the parties can oust the jurisdiction of the tribunal, neither can it be ousted by the invocation of an estoppel.”
35. In Bigelow on estoppel it is stated as under:-
If parties in Court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of Courts of Justice would in most cases be paralysed; the coercive process of the law, available only between those who consented to its exercise, could be set at naught by all. But the rights of all men, honest and dishonest are in the keeping of the Courts, and consistency of proceeding is therefore required of all those who come or are brought before them.
It may accordingly be laid down as a broad proposition that one who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of a litigation must act consistency with it; one cannot play fast and loose.”
36. In GAJAPATIRAJ v. SECRETARY OF STATES, AIR 1926 PC 18 it is held as under:-
” A litigant who has all along maintained a position in support of one and in this case the more important, branch of his suit cannot be permitted when he fails upon this branch to withdraw from the position and assert the contrary, more especially when he thereby places his opponent at a great disadvantage. There could be no clearer case for the application of the doctrine of estoppel owing to the conduct of the litigant.”
37. In the light of the principles evolved as aforesaid, the law on estoppel could be stated thus: Estoppel is a rule of evidence. It finds statutory recognition in Sections 115 to 117 of the Evidence Act. However, it is not an exhaustive statement of the law of estoppels. Estoppels are of infinite variety of intricate matters. The rule of estoppel is based on equity and good conscience. In plain words, estoppel means, a person shall not be allowed to say one thing at one time and the opposite of it at another time. A person is estopped from denying or withdrawing his previous assertion, or from going back upon his own act, or asserting state of things opposite to what he has formerly asserted by words or conduct. The principle is that it would promote fraud and litigation, if a person is allowed to speak against his own act or representation on the faith of which another person was induced to alter his position. The object or estoppel is to prevent fraud and secure justice between parties by promotion of honesty and good faith.
38. One of the species of estoppel is contained in the doctrine of approbation and reprobation. It means, a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. If parties in Court are permitted to assume inconsistent positions in the trial of their causes, the usefulness of courts of justice would in most cases be paralysed, the coercive process of the law, available only between those who consented to its exercise, could be set at naught by all. But the right of all men, honest and dishonest, are in the keeping of the courts and consistency of the proceedings is therefore required of all those who come or are brought before them. In fact this maxim is only one application of the doctrine of election and its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. This doctrine, however does not apply against the provisions of statute. It applies to the conduct of the parties.
39. Equally well settled is the principle that the parties by consent cannot confer jurisdiction on a Court which it does not possess. Here the jurisdiction refers to inherent lack of jurisdiction. The doctrine of estoppel cannot be invoked to confer jurisdiction on a Court which it does not possess, as such jurisdiction of a Court has to necessarily flow from provision of statute, and there cannot be any estoppel against the law of the land.
40. In the instant case the undisputed facts are, Sri Namani filed Form No. 7 claiming occupancy rights in respect of the entire extent of land to the total exclusion of other members of the joint family. Whereas, Sri Ramachandra filed Form No. 7 claiming occupancy rights jointly with Sri Namani on the ground that they are cultivating it jointly. The Land Tribunal after enquiry held that Sri Ramachandra has failed to establish that he is a tenant in respect of the land in question. His name is not entered in the record of rights, there is no document evidencing the lease to him from the landlord or receipts for evidencing payment of rent and payment of tax. Therefore, it held Sri Namani having established his tenancy to the land in question is entitled to the grant, of occupancy rights and application of Sri Ramachandra is liable to be rejected. Aggrieved by the said order, the legal representatives of Sri Ramachandra, the plaintiffs in the suit, preferred an Appeal in R.A.L.R. 84/1988 before the District Appellate Authority, Belgaum. In the said Appeal they also filed an application for production of additional evidence. Evidence was adduced. Plaintiffs produced Al to A55, documents, to substantiate their contention. At the time of argument it was contended on behalf of the defendants as under:-
“If at all it is the case of the appellants that the suit properties are the joint family tenancy right of the appellants and the respondent No. 3, they are at liberty to get declaration from the competent Civil Court regarding their share in the tenancy right and therefore, it is unnecessary to go very deep into the matter like existence of joint family between the appellant and respondent No. 3 immediately prior to 1.3.1974 or as to decide whether the tenancy in question in respect of the suit properties was the joint family tenancy or the individual tenancy of the respondent No. 3 alone by this Authority in the summary proceedings and therefore, the impugned order of the Land Tribunal may be confirmed and the appellants be directed to approach the competent Civil Court to get declaration of their rights if any in the suit property.”
41. After considering the case on merits and the documents produced by the plaintiffs to substantiate their claim, the Appellate Authority declined to record any finding thereon but it proceeded to hold as under:-
“We are of the opinion that the respondent No. 3’s legal representatives have proved that the suit properties were in possession of the deceased respondent No. 3 immediately prior to 1.3.74, as a tenant and the record of rights also supports their claim. Even the RLC proceeding Ex.B34 also strengthens the case of the respondent No. 3. But at the same time we may also mention here that we are not of the opinion that the respondent No. 3’s legal representatives have proved in the present case there was no relationship of joint family between deceased respondent No. 3 and deceased appellant-Ramachandra or that there was partition amongst them in the joint family properties of the parties at any time. It is open to the parties to agitate in the competent Civil Court to whether the possession of the suit properties by deceased respondent No. 3 was on behalf of the joint family and whether the tenancy of the suit properties was joint family tenancy of respondent No. 3 and appellant, or the said tenancy was the exclusive tenancy of respondent No. 3 alone.”
Again at Para 17 it observed as under:-
“17. ………. it is the contentions of the appellants that the suit properties are the joint family lease hold properties of the appellants and respondent No. 3. But it is the contentions of the respondent No. 3 that it is his separate lease hold properties. The evidence adduced before us as well as the evidence before the Land Tribunal, prima facie goes to show that respondent No. 3 alone was in possession of the suit properties immediately prior to 1.3.1974. Whereas it is also important to note that there was no proper proof of partition amongst the deceased-appellant and respondent No. 3 at any time. When that is so the principle laid in 1982(2) KLJ, page 565 is applicable to the facts of the present case as the parties are required to prove in proper Civil Court regarding the existence of joint family or not as on the date of the suit and whether on account of the existence of the joint family the appellant also has got share in the suit properties. Accordingly, we answer point No. 1 in affirmative and point No. 2, in negative.”
At para 19, it is further held:-
“19. ………. The appellants can establish their share if any; in the occupancy right over the suit properties in a competent Civil Court. The confirmation of occupancy rights in the name of respondent No. 3’s L.Rs alone will not in any way affect the existing rights of the appellants.”
42. This order was challenged by the plaintiffs in CRP No. 3956/ 1990. This Court declined to interfere with the order of the Appellate Court. This Court affirming the order of the Appellate Authority observed as under:-
“6. …………… . Further it has observed that in case there was anything to establish that they were in joint possession of the land in question, it is for them to establish it in the Civil Court as to the existence of the joint family and the rights of the members thereafter ………..”.
Again at para 7 it observed as under:-
“Even if the petitioners have any right over the joint family property pursuing that there was such family property without having partitioned in the family of respondent 3 it is for the petitioner to agitate it, before the Civil Court and get declaration to that effect, which could be done even though the occupancy right is granted to 3rd respondent’s legal representatives.”
43. This undisputed material on record clearly demonstrates that before the Tribunal the question was whether Sri Namani was cultivating the land exclusively or Sri Namani and Sri Ramachandra were cultivating jointly. As the revenue records stood in the name of Sri Namani and in the absence of any lease deed in favour of Sri Ramachandra and payment of rent and tax by him, the Tribunal held Sri Ramaehandra is not entitled to the grant of occupancy rights and it is Sri Namani alone who is entitled to the grant of occupancy rights. The Tribunal did not go into the question whether the tenancy set up by Sri Namani is his personal or is it on behalf of his joint family. In appeal when the plaintiffs produced documentary evidence to show the existence of joint family, the joint family nature of the tenancy and their right to the land in question, the defendants represented to the Court that it is unnecessary for the Appellate Court to go very deep into the matter to find out the existence of joint family and whether the tenancy pleaded by Sri Namani is a joint family tenancy or an individual tenancy, in a summary proceedings before the Tribunal and requested the Appellate Authority to direct the plaintiff to approach the competent Civil Court to get a declaration of their rights if any in the property. Though the Appellate Authority considered the evidence on the question of existence of joint family and the joint family tenancy and came to a conclusion it declined to hold that there is no relationship of joint family between the parties or that there was no partition in the family, in view of the representation made by the defendants, it left the question to be decided by a competent Civil Court. It categorically held that the confirmation of occupancy rights in the name of respondent 3’s L.Rs. alone will not in any way affect the existing rights of the appellants and the appellants can establish their share if any in the occupancy right over the suit properties in a competent Civil Court. The order of the Land Tribunal has merged in the said order of the Appellate Authority which order has been confirmed by this Court in the Revision Petition. In Revision this Court held it is open to the plaintiffs to agitate their rights in a competent Civil Court and get declaration to that effect which could be done even though the occupancy rights is granted to the third respondent’s legal representatives. Though the Land Tribunal or the Appellate Authority was under an obligation to incidentally go into the question whether the tenancy set up by Sri Namani is on behalf of the joint family or is the individual tenancy, though evidence was adduced, arguments were canvassed, yet did not go into the said question on the representation made by the defendants, that the said matter is to be left to the decision of the Civil Court. Even though the Civil Court has no jurisdiction to go into the question of tenancy and grant of occupancy rights, Civil Court has the jurisdiction to go into the question whether a joint family existed and whether the property in dispute is a joint family property and whether the applicant was cultivating the land on behalf of the joint family or not. Under these circumstances, when the defendants by their representation prevented the Appellate Authority from going into the said incidental questions and they wanted those questions to be gone into by a competent Civil Court on an elaborate trial, they are estopped from contending that the Civil Court had no jurisdiction to go into the said question, as the Civil Court can also go into the question whether a particular property is a joint family or not and whether a person is a member of a joint family or not. Before a decree for partition could be granted in respect of a property which is granted by the Land Tribunal, the Civil Court has jurisdiction to go into the said questions. If incidentally the Tribunal had decided whether the tenancy was a joint family tenancy or an individual tenancy of the applicant, the Civil Court cannot go into the said question over again. If both the forums can go into these questions incidentally and if both the forums have the jurisdiction and if party induces one forum not to pronounce on those issues and persuades it to leave it open to be decided by the other forum, such a party is estopped from contending that the other forum has no jurisdiction to go into the said question. It is not a case of inherent lack of jurisdiction. The Civil Court lacks inherent jurisdiction to go into the question of tenancy and the rival claims regarding tenancy. Similarly, the Tribunal lacks inherent jurisdiction to grant a decree for partition. But, these incidental and ancillary matters can be gone into by the Civil Court, if the Tribunal has not gone into the same and no finding is recorded.
44. In the light of the aforesaid discussion, my answers to the four questions which are referred for decision are as under:-
Re. Question (1):- As a suit for partition in respect of tenanted agricultural lands is not barred and it is the Civil Court alone which has jurisdiction to entertain a suit for partition, as such the plea that the suit is barred in view of the order of the Land Tribunal, has no substance and cannot be permitted.
Re. Question (2):- A suit for partition in respect of agricultural lands is not barred on account of the order of the Land Tribunal.
Re. Question (3):- The defendants are estopped from raising the plea of want of jurisdiction by the Civil Court to decide the suit for partition in view of the specific plea raised in the proceedings under Section 48A of the KLR Act, as the Civil Court has the jurisdiction to decide a suit for partition.
Re. Question (4):- Civil Court alone has the jurisdiction to grant a decree for partition and separate possession of tenanted agricultural lands, more so, when the said question has been kept open in a proceedings arising out of the KLR Act.
In the light of the above opinion of mine, place this matter before the Hon’ble Division Bench for further orders.