ORDER
B.C. Bharuka, J.
1. The plaintiff in O.S. No. 27 of 1999 pending on the file of the Civil Judge (Junior Division), Sringeri, has filed this revision petition under Section 115 of the Code of Civil Procedure. His grievance is that the Trial Court by committing various errors of fact and law, has, by the impugned order, stayed further proceedings in the suit by wrongly resorting to the provisions of Section 133 of the Karnataka Land Reforms Act, 1961 (in short, the ‘Act’).
2. The relevant facts may be first stated in short. The suit has been filed by the plaintiff seeking permanent injunction restraining the defendants 1 and 2 from interfering with the possession over agricultural land measuring 1 acre 24 guntas in Sy. No. 144 of Belandur Village. Defendant 3 is the brother of the plaintiff. According to the plaintiff and defendant 3, the suit schedule lands, along with other lands, were in possession of the joint family as ancestral properties and the suit schedule land had fallen to the share of the plaintiff in a family partition.
On the other hand, according to defendants 1 and 2, they are in possession of the lands for over last 50 years. But, as could be found from the order of the Trial Court, the defendants have not stated in the written statement that they were on the land as tenants.
3. Therefore, the only dispute sought to be raised is regarding the factum of possession. The impugned order also discloses that the parties are locked in two more litigations, in O.S. No. 61 of 1995 in respect of the suit schedule properties which has been filed by defendant 3 against defendants 1 and 2 and their mother; and O.S. No. 38 of 1999 filed by Smt. Susheelamma, wife of defendant 1, against plaintiff and defendant 3. In these suits also, the relief of permanent injunction has been sought.
4. During the pendency of the suit, defendants 1 and 2 filed an application purported to be one under Section 133 of the Act seeking stay of further proceedings in the suit on the ground that they have filed an application on 27-7-1998 in Form 7 appended to the Karnataka Land Reforms Rules, 1974 (in short, the ‘Rules’) claiming occupancy rights over the suit schedule properties which is pending consideration before the Land Tribunal, Sringeri and therefore, in view of the judgment of this Court in 1987(3) BLJ 164, further proceedings should be stayed.
5. The Court below, accepting the contention of the defendants 1 and 2 has passed the impugned order staying all further proceedings in the suit till the disposal of the matter before the Land Tribunal.
6. I have heard Sri S.P. Kulkarni, Counsel for the petitioner and Sri Vishnu Bhat for the contesting respondents. Both the Counsels agree that defendants had neither filed nor could have filed any application before the Land Tribunal under Section 48-A of the Act because the applications before the Land Tribunal under Section 48-A could have been filed only till 30-6-1979. They also agree that no application for grant of occupancy right alleged to have been filed by the defendants 1 and 2 is pending before the Land Tribunal.
7. This being the factual aspect, the impugned order could have been set aside for this reason alone because Section 133 of the Act which requires the Civil Court to stay further proceedings can arise only if any application claiming tenancy is pending before the Land Tribunal. But, keeping in view the request made at the bar and considering the importance of the questions involved herein and further, according to the Counsel for the defendants, as of fact the application filed by the contesting defendants is pending before the Deputy Commissioner under Section 77-A of the Act, I find it advisable to give an authoritative opinion at my end as to whether keeping in view Section 132 of the Act, is it incumbent on the part of the Civil Court to stay its hands in proceeding with the suit?
8. Section 133 of the Act reads as under:
“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 is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March, 1974;
(ii) such Court or officer or authority shall stay such suit or proceedings insofar 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 (i) 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".
A bare reading of the above provision makes it quite clear that a Civil Court is required to stay the suit or proceedings before it if the question arising before it concerns the nature of the land or the claim of the possession is based on the plea of tenancy from a date prior to 1st March, 1974.
9. In the present case, this is not the situation. As already noticed above, neither there is any issue between the parties regarding the nature of the land nor the contesting defendants have claimed that they are in possession of the land as tenants. Therefore, as already noticed, there was no occasion on the part of the Trial Court to stay its hand under Section 133 of the Act.
10. Now, in order to examine the effect of Section 77-A read with Section 132 of the Act, I find it appropriate to reproduce the said sections:
“77-A. Grant of land in certain cases.–(1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or any other officer authorised by the State Government in this behalf is satisfied after holding such enquiry as he deems fit, that a person.–
(i) was, immediately before the first of March, 1974 in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government under Section 44, and (ii) being entitled to be registered as an occupant of such land under Section 45 or 49 has failed to apply for registration of occupancy rights in respect of such land under Sub-section (1) of Section 48-A within the period specified therein, and (iii) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997, he may within one year from the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997 grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed. XXX XXX XXX"
“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 proscribed 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”.
11. Section 77-A was inserted by State Act 23 of 1998. This Act was published in the Gazette on 5-12-1998 and therefore this provision came into force only from the said date. Under Section 77-A, the Deputy Commissioner and other authorities have been authorised to grant the lands to the applicants subject to such restrictions and conditions and in the manner as may be prescribed, if they, on holding enquiry, are fully satisfied with the three conditions enumerated in the section under Clauses (i), (ii) and (iii).
12. Neither Section 77-A nor Section 132 provides that if there be a dispute with regard to possession of agricultural land then the same can be resolved only by the authorities prescribed under Section 77-A and the jurisdiction of the Civil Court will remain ousted for adjudicating such factual issues.
13. There is a strong presumption that Civil Courts have jurisdiction to decide all questions of civil nature. The exclusion of jurisdiction of Civil Courts is therefore not to be readily inferred and such exclusion must either be “explicitly expressed or clearly implied”. “It is a principle by no means to be whittled down” and has been referred to as a “fundamental rule”. As a necessary corollary of this rule provisions excluding jurisdiction of Civil Courts and provisions conferring jurisdiction on authorities and Tribunals other than Civil Courts are strictly construed. The existence of jurisdiction in Civil Courts to decide questions of civil nature being the general rule and exclusion being an exception, the burden of proof to show that jurisdiction is excluded in any particular case is on the party raising such a contention. The rule that the” exclusion of jurisdiction of Civil Courts is not to be readily inferred is based on the theory that Civil Courts are Courts of general jurisdiction and the people have a right, unless expressly or impliedly debarred, to insist for free access to the Courts of general jurisdiction of the State (See (i) Shiromani Gurdwara Parbandhak Committee, Amritsar and Ors. v. Raja Shiv Rattan Dev Singh and Ors., , (ii) Magiti Sasamal v. Pandab Bissoi and Ors., , (iii) Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh, , (iv) Laxman Purshottam Pimputkar v. State of Bombay and Ors., , (v) Addanki Tiruvenkata Thata Desika Charyulu (since deceased) and after him his legal representives v. State of Andhra Pradesh and Anr., and Sankaranarayanan Potti (dead) by L.Rs v. K. Sreedevi and Ors., ).
14. Bearing in mind the above principles, to which no exception can be found in our justice system, it can hardly be disputed that the Civil Court certainly had the jurisdiction to adjudicate as to who, either of the two contesting parties, is in possession of the suit schedule land and even if it is found on evidence that the plaintiff is in possession, then whether the contesting defendants had any right to interfere with such possession. This nature of dispute cannot be adjudicated by the Deputy Commissioner or any other officer authorised by the State Government in this behalf, even if any application in Form 7-A seeking grant of land is pending before them.
15. Further, an application in terms of Section 77-A of the Act for grant of land can be made only in two situations namely, that (i) the applicant was in actual possession and cultivation of any land not exceeding one unit before 1-3-1974 which had vested in the State Government under Section 44 of the Act; and (ii) he was entitled to claim occupancy right under Section 48-A(1) of the Act, but he had failed to apply for the same within the time specified and he continues to be in possession and in actual cultivation of such land on 1-11-1998 from which date the Karnataka Land Reforms (Amendment) Act, 1997 came into force.
16. In the present case, it is not the stand of the defendants that the suit schedule land had ever vested in the State Government nor they have laid a claim in their written statement that they were tenants over the land and thus they had a right for registration of occupancy in respect thereof, but they could not apply to the Tribunal under Section 48-A(1) of the Act within the prescribed period.
17. For the above reasons, even if any application was filed by the contesting defendants purporting to be under Section 77-A of the Act, the same could not have been a ground for either staying the proceedings in the suit or to oust the jurisdiction of the Civil Court. Mere filing of an application in Form 7-A, even if it is frivolous or mala fide, ipso facto cannot be a ground for forcing the Civil Court to stay the proceedings before it.
18. Recently, the Supreme Court while dealing with such similar situation has, in the case of Thomas Antony v. Varkey Varkey, , has held that:
“While making a reference to the Tribunal mandatory the legislature cannot be said to have intended that even a patently frivolous, mala fide and illegal plea of tenancy taken by a party merely to delay the proceeding and to remain in possession of the property is also to be referred to the Tribunal. The statutory provisions, in our considered view, envisage a case where a bona fide and legally sustainable plea of tenancy is taken by the party, that question shall be referred to the Tribunal. . .”.
The Supreme Court has further held that:
“We reiterate that a Civil Court is not obliged to make a reference to the Land Tribunal as per Section 125(3) of the Act merely because a party has raised a contention that he is a tenant or a Kudikidappukaran, and the Civil Court has power to consider whether such contention has been raised without any legal foundation or with only the intention to gain time by protracting the litigation. If the Civil Court is of opinion that there is not even a remote possibility of the plea being upheld the Court can proceed to dispose of the suit without resorting to the circumlocuted route via the Land Tribunal”.
19. As already noticed above, the contesting defendants in their written statement have not even whispered that they are entitled to grant of land under Section 77-A of the Act on any of the grounds mentioned in the said section. This has been specifically noticed even by the Trial Court. But, still, has stayed the proceedings in the suit which was totally unwarranted and impermissible. A similar view has been taken by this Court in the case of Bukka Suvarna v. Akkani Poojarthi and Ors., 2002(1) Kar. L.J. 126, ILR 2002 Kar. 851 I respectfully agree with the view taken in the judgment.
20. In the case of Venkatappa v. Ramakka, ILR 2002 Kar. 1442, this Court has held that the proceedings in the suit need not be stayed merely for the reason that an application in Form 7-A for grant of land is pending for consideration of the Deputy Commissioner.
21. The decisions of this Court in the cases of B.V. Subbachari v. B.K. Joyappa, 1994(4) Kar. L.J. 364, ILR 1994 Kar. 2505, Tulasamma v. M. Srinivasan, 1995(2) Kar. L.J. 300, Jnanachandra Kuloor and Anr. v. Smt. Seethu Hengsu, 1995(4) Kar. L.J. 156 and Meghashyam Bhat v. Seetharam Jois, 2000(5) Kar. L.J. 106, ILR 2000 Kar. 2287, which have been brought to my notice by the learned Counsels for the parties have no bearing on the facts of the present case because these cases relate to jurisdiction of the Civil Court under Section 133 of the Act in case where the issue of tenancy has to be decided by the Land Tribunal.
22. As already noticed above, provisions of Section 133 of the Act do not get attracted to cases arising out of Section 77-A of the Act as the authority which is empowered to deal with such cases is a distinct entity and cannot be equated with Land Tribunals constituted under Section 48 of the Act. Similar view has been taken by this Court in Shankarappa Gowda and Anr. v. Indadhara Gowda, 2000(5) Kar. L.J. 122, ILR 2000 Kar. 2298 .
23. For the aforesaid reasons it is held that the impugned order passed by the Trial Court suffers from jurisdictional error and is accordingly set aside. Revision petition is allowed.