JUDGMENT
Shyamasundar, J.
1. This first appeal arises out of the judgment and decree passed by the learned Civil Judge and J.M.F.C. at Hunsur in Original Suit No. 2 of 1982 on the 30th day of September, 1986. Defendants 1 and 2, who principally resisted the suit feel aggrieved by the said judgment and decree and therefore appeal against it. The 4th defendant in the Court below had not joined them in prosecuting this appeal, but is arrayed as respondent – 4.
2. The 3rd defendant in the Court below does not appear to have contested the matter at all and in fact in the written statement filed on behalf of defendants 1, 2 and 4, it was alleged that the 3rd defendant was colluding with the plaintiff. In this Court defendant-3 is arrayed as respondent-2 with the plaintiff being the 1st respondent herein.
3. A point which is within a very short compass arises for consideration herein and before we highlight the same it is desirable to set-out a few facts that have led up to this appeal.
The plaintiff claiming to be the owner in possession of three items of lands in Chunchanakatte and Hosur villages of Hunsur taluk in Mysore District filed a suit in O.S. No. 117 of 1973 on the file of the Civil Judge, Mysore on 5-7-1973. In that suit he sought for a declaration that he was the owner of the suit schedule properties and also for a permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the aforesaid property. Inter alia he obtained an ex parte order of temporary injunction, which was later affirmed by the Court after notice to the defendants. Subsequently, the defendants appear to have assailed it before this Court, unsuccessfully, in M.F.A. 676 of 1973 which came to be dismissed on 13-3-1973 upholding the order of the Civil Judge, confirming the temporary injunction granted by it.
While the matter was pending on the file of the Civil Judge, Mysore, that Court framed issues on 7-11-1973. The issues framed as aforesaid do not, however, find a place in the order-sheet or elsewhere in the records of the Court. But it has transpired that subsequently on 17-9-1976 the learned Civil Judge, Mysore, had occasion to recast the aforesaid issues after hearing parties. The order-sheet dated 17-9-1976 bears out the same besides carrying a record of the recast issues framed as follows:
(1) Whether the plaintiff proves his lawful possession of the suit lands on the date of suit?
(2) Whether the defendants prove that they are the tenants of the suit lands?
(3) To what relief is the plaintiff entitled?
(4) What decree or order?
P.M.C. & H.D.N. do not press 1. As 3 and 5. Hence they are dismissed with no costs. Refer Issue No. 2 to the Tribunal at K.R. Nagar Under Section 133(2) of Kar. Land Reforms Act, and await decision from Tribunal and suit is stayed till 29-11-76.
It may be noticed from the foregoing that, the learned Civil Judge, after framing the aforesaid issues, which included inter alia an issue regards tenancy referred the said suit to the Land Tribunal at K.R.Nagar, under Section 133(2) of the Karnataka Land Reforms Act, 1961 (‘Act’ for short) and pending receipt of the finding from the Tribunal, directed the suit should stand stayed.
4. We must at this juncture mention that defendants 1 and 2 who alone contested the suit by filing a written statement apart from denying the plaintiffs assertion that he was in possession of the suit lands pleaded that they were in possession of items 1 and 2 of the suit schedule properties as tenants thereof under an oral lease. The 3rd item of the suit schedule property they stated was in the possession of defendants 3 and 4 and that they had no interest in the same. They also stated that the 3rd and the 4th defendants were colluding with the plaintiff and had chosen to keep mum although they were also holding the said item of property as tenants.
5. On the basis of the plea of tenancy raised by defendants 1 and 2, issue No. 2 referred to supra had been raised and remitted to the Land Tribunal for a decision.
6. While, the matter stood as aforesaid, a new Civil Judge’s Court having been constituted at Hunsur in Mysore District, resulted in a consequential redistribution of the territorial jurisdiction of the Civil Judge, Mysore, leading to this suit of the year 1973 being transferred to the newly constituted Court of the Civil Judge, Hunsur on 25-6-1982.
7. The suit was freshly numbered as O.S. No. 2 of 1982 on the file of the Civil Judge, Hunsur and notices were ordered to parties.
8. It is seen from the records that the Civil Judge Hunsur had dismissed the suit viz:, O.S. No. 2 of 1982 for plaintiff’s non-appearance on 20-9-1982 and thereafter it was again set-aside and posted for hearing on 30-9-1985. On subsequent dates the suit had been simply adjourned to await the finding of the Land Tribunal, to which the issue regarding tenancy had been remitted for a decision by the Civil Judge, Mysore.
9. It is seen from the order-sheet of O.S.2 of 1982 that the suit had been adjourned to 16-4-1986 from 10-2-1986 to await the finding of the Land Tribunal with a direction to the office to issue a reminder.
10. On 25-2-1986 the learned Counsel, who was representing the plaintiff having sought leave to retire, another Counsel by name M.S. Singlachar, filed power for the plaintiff and also filed two interlocutory applications viz., I.As. 9 and 10 after serving copies thereof on Counsel for the defendants in advance.
11. Amongst the two I.As. I.A.10 purported to be an application under Section 151 C.P.C. exorting the Court to decide the suit itself and not to send it to the Land Tribunal at K.R.Nagar. In the affidavit filed in support of that application; the plaintiff adverts to pendency of the issue regarding tenancy before the Land Tribunal, K.R.Nagar for a decision and then goes on to say that as the High Court had affirmed the temporary injunction granted in favour of the plaintiff by the Civil Judge, there was hence no need for reference of the issue of tenancy to the Tribunal and that the suit should be decided straight-away after recording evidence.
12. To this application, the defendants, it appears wished to file their objections as could be seen from the minute recorded on the application itself.
13. However, the Court purported to proceed to post these interlocutory Applications for hearing on 1-4-1986, but as could be seen from the order-sheet that the applications were heard only on 3-4-1986 and posted for orders on 8-4-1986. No order was however passed. There is nothing on record to show that any concession had been made by the defendants enabling the Court to take up the suit for disposal without disposing of I.A. 10. But, the next date of hearing recorded in the order-sheet is of 3-6-1986 and on that day the case was posted to 11-6-1986 for evidence and on 11-6-1986 PWs.1 and 2 were examined and thereafter the case was posted for further evidence on 18-6-1986 and on 18-6-1986 the Court made the following note in the order-sheet.
“This case is taken up once again. Plaintiff and his Counsel present. Counsel for defendant is absent. Documents filed.
PW.3 is examined. Ex.P-1 to P-66 are marked. Closes his side. For evidence of defendants on 2.7.”
14. Then again followed a spate of adjournments culminating finally in defendants 1 and 2 being examined on 9-9-1986. Lastly, arguments on merits purport to have been heard on 23-9-1986 and the suit posted for orders on 23-9-1986 on which date the Court made the impugned decree in favour of the plaintiff, through the judgment under appeal.
We notice that the learned Civil Judge, passed no orders on I.A.10. Strangely, neither side appears to have pressed for an order on I.A.10. There is nothing on record to indicate that the defendants had otherwise specifically agreed or consented to the Court taking up the suit for disposal on merits.
15. The only question that arises now for consideration is:
“Whether the learned Civil Judge was competent to dispose of the suit pending receipt of a finding regards tenancy from the Tribunal; following the reference made to the Tribunal.”
Although the matter admits of no doubt at all that the judgment and decree appeared to be truely nonest, Shri B.V. Acharya, learned Counsel, who appeared for the respondents at our instance as amicus curiae sought to contend that the defendants who themselves, having acquiesced in the proceedings of the Court below by leading evidence on their behalf, despite the pendency of a proceeding before the Tribunal, were now debarred from challenging the action of the Civil Judge in disposing of the suit without waiting for the Tribunal’s verdict.
16. We may straight-away advert to this submission of Mr. Acharya, as aforesaid and point out that the contesting defendants although had not perceptibly opposed the move by the Court to dispose of the suit without waiting for the Tribunal’s finding they could not be said to have actively connived or approved the procedure adopted by the Court. They appeared to have simply marched in step with the Court and led some evidence in their turn without any protest or a demurrer.
17. The question is whether such a docile attitude on the part of a litigant is indicative of total acquiscence disentitling him from taking up cudgels against the order of the Court made in that manner.
18. In law, we do not think there can be any acquiscence in a case where the order is a total nullity in which event any acquiscence in the making of such an order leads to no positive result one way or the other. In this connection we may invite attention to the decision of the Supreme Court reported in KIRAN SINGH & OTHERS v. PASWAN AND OTHERS, . Reference may be made which is decisive of this controversy.
“It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of Jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.”
In LEDGARD v. BULL, (1887) Vol.9 ILR 9 Allahabad 191 Lord Watson observed (at page 203):
“When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties, cannot, by their mutual consent, convert it into a proper judicial process although they may constitute the judge their arbiter and be bound by his decision on the merits when these are submitted to him.”
The position is different – and this is perhaps what Shri Acharya has in mind – where the Judge or Court is competent to try. On the above point Lord Watson continued :
“But there are numerous authorities which establish that when, in a cause, which the judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute the jurisdiction upon the grounds that there were irregularities in the initial procedure which, if objected to at that time, would have led to the dismissal of the suit.”
In view of the accredited position in law as above the mute submission to jurisdiction does not tantamount to acquisceing in the procedure adopted by the Court in disposing of a suit that had stood stayed pending receipt of the Tribunals finding can arise. Unless the Court had taken power, if that was possible either by vacating the stay or recalling the reference made to the Tribunal, it could not have proceeded to dispose of the suit on merits. As long as the stay was current and operative the Court in our view had become functus officio for the time being and was disabled from disposing of the suit on its merits; since such disposal had a direct bearing on the issue remitted to the Tribunal for a decision. If that was so under Section 133 of the Act, the Court could not have made an order granting an injunction to the plaintiff on the basis that he was in possession, as such a finding directly impugned on the Tribunals jurisdiction. The powers of the Court in that behalf stood trammelled by the provisions of Section 133 of the Act. The order of the Court was therefore clearly otiose and one that was non-est for which reason any amount of acquiescence or passive association with the Court enabling the passing of such an order will not result in denuding the defendants of their right to complain against that order. Therefore, it is we must repel the contention of Mr. Acharya that the defendants by acquiscence had lost their right to canvas the order of the Court.
19. The second submission of Mr. Acharya, to which there is already some advertance while disposing of the first point, is what turns on the Section 133(2) of the Act, which enjoins on the Court or grants leave to the Court to dispose of matters other than what are remitted to the Tribunal for decision. Relying on the same Mr. Acharya, says there is nothing wrong in the Court in disposing of the suit by granting a declaration and injunction in favour of the plaintiff and learned Counsel even went to the length of saying that the Court had not committed any jurisdictional error at all.
20. The observations made by us in dealing with the first submission of Mr. Acharya, on the question of acquiescence, but that even the defendants conduct disentitles them for seeking any relief in this appeal, covers this point also. We may briefly re-state our views in this behalf if only to set the record straight.
21. In the first instance the Court could not have proceeded to dispose of the suit without taking power to do so and such power it could have obtained only by revoking the order of stay made by it earlier. Being aware of the aforesaid requirement the plaintiff had taken the precaution of filing I.A. 10, for that purpose, but the Court never passed any orders thereon. Secondly, the matter in issue only pertains to the character and nature of possession of the suit properties apart from the bare-factum of possession. On all these aspects there were rival claims. It is relevant to note that even in a suit for a bare injunction, an issue of tenancy, where one is pleaded in resistance to the suit is held to arise. In MALLAYYA v. PUTTAPPA, 1976(1) KLJ 369 it was observed :
“Section 133 of the Act as it stands now takes away the jurisdiction of any Civil or Criminal Court or Officer or Authority to decide the question whether a land is an agricultural land or not and whether a person claiming to be in possession is or is not a tenant of the said land from prior to 1-3-1974. In a case where the plaintiff claiming to be a tenant of a land in question restraining the defendant from interfering with his possession, we are of the opinion that the question whether the plaintiff is a tenant or not would arise for consideration, since the suit would have inevitably to be dismissed if 3 finding is not given in the affirmative on the said question as admittedly the defendant is the owner of the property.”
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It follows that in order to decide the case on hand it is absolutely necessary to decide the question whether the plaintiff is a tenant or not for a just disposal of the case. Section 133 provides that when the question before the Civil Court is whether the person, claiming to be in possession, is or is not a tenant of the suit land from prior to 1-3-1974, then the Court shall stay such suit in so far as such question is concerned and refer the same for decision. Section 133 applies to all such cases irrespective of the fact that the person who claims to be the tenant is a plaintiff or a defendant.”
The defendants pleaded clearly a case of tenancy in respect of the two items of properties. They had also asserted that they were in possession. The Court had raised an issue regarding tenancy and had remitted it to the Tribunal for decision.
22. There is little gain say in denying so far as those properties were concerned both the factum and nature of possession had to be enquired into and that jurisdiction lay only with the Tribunal, following a remission of that issue to the Tribunal. In that circumstance, Court could not have in the guise of disposing of any residuary controversy as enjoined by Sub-section (2) of Section 133 of the Act, proceeded to dispose of the suit de-hors a finding on the issue remitted to the Tribunal for a decision. There is thus no occasion to call in aid Sub-section (2) of Section 133 of the Act at all for making an order in the case.
23. We are satisfied that having regard to the course of this litigation, the Court has exceeded its bounds and had acted illegally in disposing of the suit on its merits, even as the issue regarding the tenancy of two items of suit property was pending disposal with the Tribunal. In that view of the matter, the judgment and decree pertaining to the foregoing items of suit schedule properties is dearly unsupportable.
24. It is well settled that in cases where a plea of ouster of jurisdiction is raised and such a plea becomes available within the statute then without more the jurisdiction of the Court stands ousted subject of-course to the power of the Court to examine whether the plea against jurisdiction is bona fide or not. This aspect of the matter is referred to and dealt with in the well-known treatise on Jurisdiction and illegality by Rubinstein. The learned Author adverts to the same at page 223 in the following terms:
“The best illustration of ouster of jurisdiction is that afforded by magisterial law. Magistrates, otherwise entitled to determine a case, must desist wherever the defendant sets up a claim of title to property. Failure to do so is considered as ouster of jurisdiction and presumably, renders the proceedings void. However, mere claim to title is not sufficient; the Magistrate has to decide whether it was made bona fide. An erroneous finding on this point will render the resulting decision quashable on certiorari, but as long as there was any evidence to justify such finding it will be conclusive in collateral proceedings.”
In the case on hand the plea of ouster of jurisdiction is implicit in the plea of tenancy put-forward on behalf of defendants 1 and 2. The Court after examining the plea has also raised an issue in the case. Thereafter it has remitted it for a decision to the Tribunal on its own accord.
Section 133(2) of the Act, enjoins the Court to stay further proceedings until receipt of the Tribunal’s finding regarding tenancy. The Court has in fact followed suit and had stayed the proceedings. But it had later on proceeded to dispose of the suit unwittingly without taking note the prevalent state-of-affairs.
Suffice it to say that it could not have acted in derogation of the statute and the precipitous conduct on its part had led to a serious error in jurisdiction. We cannot therefore agree with Mr. Acharya, that the order of the learned Civil Judge, did not involve any question of jurisdiction and was not tramelled by any such consideration
25. Having regard to the consensus of our views supra it becomes clear that the judgment and decree of the learned Civil Judge, pertaining to suit items 1 and 2 is unsupportable and has to be vacated. Therefore, we make an order allowing the appeal in part and to the extent indicated above in that the decree against the defendants 1 and 2 in regard to suit items 1 and 3 shall stand anulled. This part of the suit which is severable will have to be disposed of afresh by the Court-below after the Tribunal reaches its findings on the issue referred to it.
The decree in regard to item No. 2, however, stands affirmed since the above said items of property has not been specifically claimed by the contesting defendants to be tenanted property and, therefore, cannot be said to be comprised within the reference made by the Court to the Tribunal. Parties will bear their own costs in this Court.
Before parting with the case, we place on record our thankful appreciation of the assistance rendered to us by Sri B.V. Acharya as Amicus-curiae.
