{"id":209175,"date":"1987-11-19T00:00:00","date_gmt":"1987-11-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/koraga-marakala-and-anr-vs-kamala-and-ors-on-19-november-1987"},"modified":"2017-09-20T07:54:43","modified_gmt":"2017-09-20T02:24:43","slug":"koraga-marakala-and-anr-vs-kamala-and-ors-on-19-november-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/koraga-marakala-and-anr-vs-kamala-and-ors-on-19-november-1987","title":{"rendered":"Koraga Marakala And Anr. vs Kamala And Ors. on 19 November, 1987"},"content":{"rendered":"
Karnataka High Court<\/div>\n
Koraga Marakala And Anr. vs Kamala And Ors. on 19 November, 1987<\/div>\n
Equivalent citations: AIR 1988 Kant 123, 1988 (1) KarLJ 34<\/div>\n
Author: P C Jain<\/div>\n
Bench: P C Jain, M Nesargi, K S Bhat<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Prem Chand Jain, C.J.<\/p>\n
 1. In order to appreciate the controversy, certain salient features of I he case may be noticed: –\n<\/p>\n
On 28-12-1942 one Baba Poojary, husband of the first-plaintiff and father of the other plaintiffs, along with the first-defendant and one Manjappa jointly purchased some properties including the suit properties as per registered sale deed for a sum of Rs. 25,000\/-. Manjappa agreed to pay half the sale consideration and Baba Poojary and the first-defendant agreed to pay the remaining half of the consideration in equal shares. Subsequently, on 1-8-1955 the said three vendees entered into a registered partition deed under which the suit properties along with some other properties were allotted to the share of Baba Poojary. The plaintiffs claimed that about three months after the said partition. Baba Poojary executed a registered gift settlement deed dated 25-11-1955 in their favour, under which the properties allotted to Baba Poojary in the said partition as well as some other properties belonging to him, appeared to have been gifted to the plaintiffs. It appears that shortly after the partition deed, the first-defendant trespassed into the plaint property consisting of 55 cents of Nanja land in S.No. 54\/1 and 29 cents of Bagayat land in S.No. 68\/1 of Ambalpady village and that ever since then the first-defendant has been in possession of the said lands as a trespasser. The plaintiffs have also averred that the first-defendant has subsequently a followed the second-defendant to occupy a shed situate in the suit property. Therefore the plaintiffs brought a suit for possession of the suit properties and for recovery of mesne profits at the rate of  8 muras of rice and cash of Rs. 28\/-per annum. However, the plaintiffs have restricted their claim of mesne profits for a period of three years prior to the filing of the suit.\n<\/p>\n
  2.   The first-defendant who is now the first-appellant before us, contested the suit inter alia on the grounds that after the purchase of the property by himself, Baba Poojary and Manjappa, there was an oral partition between them, that out of the properties that were delivered to their khas possession a portion which forms the suit properties was allotted to Baba Poojary, that Baba Poojary leased out the same to the first defendant on an annual rental of 4 muras of rice and cash of Rs. 15\/-, that the first defendant and Baba Poojary were running a Joint fish trade and toddy business and a sum of Rs. 8\/- was due to the first-defendant by Baba Poojary on account of the said joint trade, that rent was actually not paid but was being adjusted toward the interest due to the first-defendant, that even after the regular partition deed dated 1-8-1955 the first defendant continued to be in possession of the plaint properties as a tenant of Baba Poojary and that therefore he was not a trespasser.\n<\/p>\n
  3.   One of the questions that came up for consideration before the trial Court was whether the first-defendant proves the chalgeni tenancy set up by him. The trial court found the said issue in favour of the first-defendant and consequently dismissed the suit. On appeal, that finding was reversed by the learned Additional Civil Judge, Udipi, who held that the first-defendant was not, a tenant of the suit properties and was a trespasser. Accordingly, the suit was decreed with a direction to the defendants to pay mesne profits for three years from 1961-02 to 1963-64 and also the future mesne profits till the date of delivery of possession. The present appeal has been filed against the said Judgment and decree of the learned Addl. Civil Judge, by the defendants.\n<\/p>\n
  4.   The appeal came up for hearing before a Division Bench of this Court on 7-9-1979. One of the important points that arose for consideration before the Division Bench was whether the question of tenancy set up by t he first-defendant (first appellant herein) was required to be referred to th6 Land Tribunal constituted under the Karnataka Land Reforms Act. 1961, (hereinafter referred to as the Act), and if so, whether this Court should stay the consideration of the appeal was a finding is received from the Land Tribunal. The Division Bench, after considering the arguments addressed at the Bar, found that that question was of great importance and is likely to arise in many cases and that it would be appropriate to get that question decided by a Full Bench. Consequently, Ole following question has-been referred for our opinion: –\n<\/p>\n
    “Whether Section 133 of the Karnataka Land Reforms Act, 1961, as amended by Karnataka Act 27 of 1976 is applicable to appeals pending in civil courts on the date when the Amending Act 27 of 1976 came into force?”\n<\/p>\n
  5.   Before adverting to the merits, it would be appropriate to notice the legislative history of the Statute.\n<\/p>\n
  6.   The Karnataka Land Reforms Act, 1961, (Act 10 of 1962), came into force on 2nd October 1965. At that time the scheme of the Act was quite different from what it has been made after 1st March 1974. Then it provided for protection of tenants from eviction, fixation of rent and imposition of ceiling on agricultural holding. Under the Act, a land of a landlord could be resumed only under certain circumstances and the non-resumable lands shall vest in the tenants with effect from a date notified under S. 44. The State Government was only to get holdings in excess of the ceiling Emit, which were to be surrendered to State Government, under S. 63 and the connected provisions. For effectuating these provisions, the Tribunal was provided as per S. 2(a)(35) read with S. 111, the duties of which were enumerated in S. 112. A judicial member  was to constitute the Tribunal. S. 118 provided for an appellate authority: Whether a person was a deemed tenant or not under S. 4 was one of the matters to be decided by the Tribunal, But it had no exclusive jurisdiction to decide &. e-question of contractual tenancy. S. 132 barred the jurisdiction of the civil court to settle, decide or deal with any question which was required to be settled, decided or dealt with by the Tribunal and other authorities under the Act. S. 133 provided for staying any suit involving issues which were required to be settled, decided or dealt with by a competent authority under the Act, and for reference of such issues by the civil court to the competent authority. S. 133 was thus supplemental to S. 132.\n<\/p>\n
7. After the Act came into force on 2nd October, 1905 it was amended first by Act 11\/1968. But the amendments made therein have no relevancy to the point at issue before us. By Act 6 of 1970, further amendments were made. By this amendment, except in Ss. 62, 66, 67, 69, 74, 7\/6, 77 to 79, 124, 128, 00 to 132 and 134, for the word ‘Tribunal’ the word ‘court’ as substituted and ‘was meant to be the court of Munsif within the local limits of whose jurisdiction the land is situate. In other provisions referred to above, mostly the word ‘Tahsildar’ replaced the word ‘Tribunal’. The jurisdiction given to the ‘Tribunal earlier, to decide as to whether a person is a deemed tenant or not was taken away, and whether a person is a tenant or not had to be decided by the, ‘Court’. The appellate authority was replace ‘ d by the ‘District Court’. Section 133 was substituted which provided that if any suit instituted in ‘the Court’ involves any issues which are required to be settled, decided or dealt with be that Court, the same had to be tried as preliminary issues. If such matter arises in any suit before any other Court, such other Court had to refer the issue to ‘the Court’. Provision was also made to transfer pending proceedings before a Tribunal to the defined ‘Court’. Thus this Act 6\/70 substantially replaced Munsiffs Court in the place of ‘Tribunal’. Under S. 132 of the parent Act as it stood prior to this amendment, jurisdiction of the civil court was barred to settle, decide or deal with any question which the Act required to be decided etc. by the Tribunal, the Deputy Commissioner etc., and S. 133 directed the civil court to refer such questions to the appropriate competent authority. After Act6\/70 S. 133 stood altered suitably to have such questions to be decided by ‘the Court’ as defined in Act 6\/70.\n<\/p>\n
  8.   Then came Act 4 of 1972. This saved the tenants from eviction and operation of eviction decrees to some extent. Thereafter, Karnataka Act I of 1974 came into force with effect from 1st March 1974, which effected drastic amendments to tile parent Act. In effect, the core of the Land Reforms Act as in force now was injected by this amendment Act. It provides for vesting of all tenanted lands in the State Government with effect from 1st March 1974, and tenants are to be registered as occupants. A new type of Tribunal to consider the claim of the persons as tenants was introduced. An artificial concept of ‘family’ for the purpose of the Act has been provided. Jurisdiction of all authorities like the Tahsildar and of Tribunal were widened under S. 112. The question whether a person was a tenant or not had to be decided by the Tribunal under S. 11 2(B)(b). Appropriate amendments were effected in Ss. 132 and 133. The court could not decide the question of tenancy and S. 133(2) provided for reference to the Tribunal, of all questions which were required to be settled, decided or dealt with by the Tribunal under the Act, by the civil courts. S. 91 of the Amendment Act directed the applicability of the Land Reforms Act as amended by this Act to all pending proceedings before any Court, Tribunal or other authorities. S. 91(2) is a consequential provision to the provisions of the Act barring eviction. S. 91(3) provided for transfer of all applications or proceedings pending before any Court etc. to the Tribunal, if the said matter comes within the province of ‘Tribunal’. Thus exclusive jurisdiction to decide the status of a person – whether he is a tenant or not – conferment of right to be registered as an occupant etc. came to be vested in the ‘Tribunal’. For the first time, provision was also made to vest the lands in the State if immediately prior to lst March 1974such lands were tenanted. The Tribunal was to comprise of an Assistant Commissioner and 4 nominated members.\n<\/p>\n
  9. Thereafter came Karnataka Act 31 of 1974, which cam6 into force on 3rd August 1974. It further amended S. 133. The amendment made runs as follows: –\n<\/p>\n
“Disposal of certain pending proceedings etc.- (1) Notwithstanding anything in any law for the time being in force, the provisions of clause (a) of sub-section (2) of Section 133. of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962) as amended by this Act, shall be applicable to all proceedings commenced before the date of commencement of this Act and-\n<\/p>\n
(a) pending before any civil court.\n<\/p>\n
(b) pending in appeal or revision against the judgment or order of the civil court; or<\/p>\n
     (c) finally disposed of by such courts after the first day of March 1974, as if the said clause as amended by this Act was in force when the right accrued or the liability was incurred and every such court shall deal with the proceedings accordingly and any interim or final order or judgment passed by such court or appellate authority shall be reopened and the suit or the appeal shall be disposed of in accordance with the said amended clause.\n<\/p>\n
    (2) Notwithstanding any judgment, decree or order of any civil court, the Tribunal constituted under Section 48 of the Karnataka Land Reforms Act, 1961 shall enquire into any claim for registration as occupant made by a person who was a tenant within the meaning of the said Act immediately prior to March 1974 and who by reason of any such judgment, decree or order has subsequent to the said date been dispossessed of the land of which he was a tenant or is in any way precluded from pleading his tenancy, and direct, if the merits of the case so warrant, that such person be registered, subject to the other provisions of the said Act, as occupant of such land.” Sec. 133 was amended to overcome a few decisions of this Court wherein it wa3 held that in a simple suit for injunction by the, owner of land alleging trespass by the defendant the question of tenancy, did not arise, even though, the defendant may plead possession as a tenant. By amending Sec. 133 it was made incumbent to stay even such suits. Consequently, Sec. 4 of this Amendment Act stated that no civil court shah grant temporary injunction in respect of an agricultural land except after service of notice on the defendant. If defendant pleads tenancy, the question had to be referred to the Tribunal as per Sec. 133 as amended. This amendment to Sec. 133 was made effective from 1st March 1974 the date from which exclusive jurisdiction was conferred on the Tribunal to decide the question of tenancy as per the provisions of the Amendment Act of 1974.\n<\/p>\n
  10.  Again Karnataka Act 27 of 1976 introduced a few more amendments including a bar in the Tribunal to issue interlocutory orders in the nature of temporary injunction etc. Sec. 133 was substituted, which is in the following terms: –\n<\/p>\n
“133. Suits, proceedings etc. involving questions required to be decided by the tribunal:\n<\/p>\n
(1) Notwithstanding anything in any law for the time being in force;\n<\/p>\n
(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;\n<\/p>\n
(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;\n<\/p>\n
(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;\n<\/p>\n
(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.\n<\/p>\n
(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.”\n<\/p>\n
A bare perusal of Sec. 1330)(i) and (iv), shows that in substance it reflected the contents of the provisions of Sec. 133. Sec. 133(l)(iii) is consequential to Sec. 48C by -vacating all interim orders such as temporary ‘injunction or appointment of receiver made by the Courts etc.<\/p>\n
  11.  Now we come to the merits of the controversy. One of the questions that came up, for consideration before the Court of first instance was whether defendant No. I prove the chalageni tenancy set up by him. The said issue was decided in favour of defendant No.1and the suit was accordingly dismissed. But that decision was reversed by the learned civil Judge, Udupi, and it was held that defendant. No. I was not a tenant of the plaint properties and was trespasser, and accordingly a decree was passed directing defendants to pay mesne profits for three years from 1961-62 to 1963-64 and also, future mesne profits till the date of delivery of possession. Hence the point that needs consideration is whether the matter of tenancy set up by defendant No. 1 is required to be referred to the Tribunal constituted under ‘the Act’ and whether the consideration of the appeal is to be stayed till a finding is received from the Tribunal.\n<\/p>\n
  12.  It was contended by Mr. Raghavendra Rao, learned counsel for the appellants, that the question of tenancy set up by defendant No. I – appellant – was required to be referred to the Tribunal, that provisions of Sections 3 and 4 of Karnataka Act 31 of 1974 still continue to be in operation, that its See. 2 substituting Section 133 only, has becomes otiose; and that till a finding was received from the Tribunal the consideration of the appeal on merits had to be stayed.\n<\/p>\n
  13.  On the other hand, Sri B. P. Holla, learned counsel, very emphatically contended that Sec, 133 as it now stands does not apply to appeals pending in Civil Court, that Sec. 3 of Act. 31 of 1974 w as unconstitutional inasmuch as it permitted reopening of a finding of a Civil Court ‘ on transfer of a question pending in appeal or revision, by the Tribunal, that such a mandate by the Legislature was impermissible and unconstitutional and that realising the unconstitutionality the Legislature in Act 27 of 1976 did not provide such a provision, that Sec. 3 stands repealed as a result of the substitution of Sec. 133 by Act 27 of 1976, that alternatively Section 3 is spent force and cannot function independently because it refers to Sec. 133 as amended by Act 31\/74 specifically. It was also contended by the learned counsel that Sec. 8 of the Karnataka General Clauses Act was inapplicable.\n<\/p>\n
  14.   As is evident, the contention of Mr. Holla proceeds on the assumption that Sec. 133 sets at naught decisions or findings of Civil Courts without recourse to the judicial process in the hierarchy of Civil Court. What was emphasised by the learned counsel was that a decision of a Court of Munisiff or of a Civil Judge can he set aside only by the appellate court such as District Court or High Court. If the question involved in an appeal is referred to the Tribunal, the findings on such a question by the Civil Court loses all its efficiency and the finding, may be set aside by the Tribunal by coming to a different conclusion.\n<\/p>\n
  15.   On giving our thoughtful consideration to the entire, matter, we find ourselves unable to agree with the contentions raised by Mr. Holla, From the legislative history of the Land Reforms Act, it is quite clear that the legislature has vested exclusive jurisdiction in the Tribunal with regard t6 certain matters and the Civil Court is not competent to decide such questions. Under the Act new rights and liabilities were created from a particular date (i.e., 1-3-1974) The legislature in its wisdom, to achieve the object under the Act, decided to provide that all such questions pending before any other Court or Authority should be decided by the said new Tribunal. Therefore, See. 3 of Act 31 of 1974 provides for transfer of such questions to the Tribunal if such questions are still pending either in original suit or in appeal or in revision. In case such a question was decided after 1-3-1974 and not pending in any Court (in appeal or revision), provision is made to reopen the finality under See. 3(l)(c). This has to be so because on or after exclusive jurisdiction was conferred on the Tribunal, Civil Court had no competence to decide such question after 1-3-1974 will be void. It will be opposed to the statue in question. Actually section 3 is consequential to Act 1 of 1974, Amendment made to Section 133 by Act 31 of 1974 is a clarificatory amendment as to the jurisdiction of Civil Courts in injunction suits. That is why it was amended with effect from 1-3-74 itself. Section 3 of Act of 1974, thus provides for  (i) transfer of pending questions, i.e., questions which are not finally decided after 1-3-1974 to be transferred and (ii) re-opening of such questions if decided after 1-3-1974 though not pending in any Court.\n<\/p>\n
  16.  As we took at the provisions of Section 3, we find that it is not resulting in setting at naught of any binding decision of a competent court, by the mandate of legislature. What is nullified is such of decisions which are rendered after 1-3-1974 when Civil Court fiat’, no competence at, all to deal with such matters. Further, when a question is pending in appeal or revision, there is no final decision of the court; decision of original court has not attained finality. A decree appealed against becomes sub-judice. Stamp of finality is of a very limited duration and erasable quality. An appeal or revision is continuation of the original proceedings, is a principle now well established. Even when the decree of the lower court is affirmed by the appellate or revisional court, it stands merged with the decree of the superior court; the decree of the lower court, jurisprudentially, loses its personality. This principle is highlighted from the facts of the case in Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivastava, AIR<\/a> 1967 SC 581. Here a husband obtained a decree for divorce in the High Court. He married immediately thereafter. The divorced wife obtained Special Leave to appeal to the Supreme Court against the decree of the High Court. Husband filed an application before the Supreme Court for cancelling the special leave on the ground of his remarriage, contending that the decree of High Court took effect immediately and he having acted upon it, his rights cannot be now defeated by the reversal of the decree. This contention was negatived. At para 7 it is stated: –\n<\/p>\n
“……..We are Of Opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court’s decree and thus take away from the losing party the chance of presenting an application for special leave. Even though S. 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Courts decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make whether an application for special leave have been filed in this court and he could not be marrying immediately after the High Court’s decree deprive the appellant of the chance to present as special leave petition to this Court. If a person does so, he takes a risk and cannot ask this court to revoke the special leave on this ground ………”\n<\/p>\n
Ultimately appeal of the wife was allowed. The assumption of the husband that he had a right to remarry immediately on the decree for divorce was found to be untenable.\n<\/p>\n
  17.  In Dayawati v. lnderjit,  the connotation of words “suits pending” was held to include the appeal also; at p. 1427 it is stated thus: –\n<\/p>\n
“An appeal has been said -to be the right of entering a superior court, and invoking its aid and- interposition to redress the error of the courts below. The only difference between a suit and an appeal is this that an appeal “only reviews and corrects the proceedings in a cause already constituted but does not create the cause”. As it is intended to interfere in the cause by its means, it is a part of it, and in connection with some matters and some statutes it is said that an appeal is a continuation of a suit.”\n<\/p>\n
To the same effect is the decision of the High Court of Punjab & Haryana is Bhim Singh v. Gram Panchayat of Village Kharkheri, . The relevant observations at page 417 read thus: —\n<\/p>\n
    “A bare perusal of the aforesaid section would show that after the enforcement o6he aforesaid, provision a Civil Court would have no jurisdiction to entertain or adjudicate upon any question relating to the shamlat nature of the ‘land. Merely this fact that a decree was passed by a Civil Court before the enforcement of Act 2 of 1981 by which Section 13wassubstitutedwould not make difference as a Court of appeal is also a Civil Court and has the same powers and performs as nearly as may be, the same duties as are conferred and imposed by the Code of Civil Procedure on Courts of original jurisdiction. It is well settled proposition of law that once a decree passed by a Court had been appealed against the matter becomes sub judice again and thereafter the appellate court has seisin of the whole case. It is also well established proposition of law that the hearing of-an appeal is under the procedural law of this country, in the nature of a rehearing and that the court of appeal is entitled to take into account even the facts and events which have become into existence after the decree appealed against.”\n<\/p>\n
  18.  In the instant case, there is no reopening of any finding which had attained finality prior to 1st March 197\/4. With effect from 1st March 1974 Civil Court’s jurisdiction in respect of certain matters has been taken away, and any decision rendered there after on such question will be without jurisdiction. Questions pending as on 1st March 1974 or answering thereafter are required to be decided by the Tribunal. There is no dispute after 1st March 1974, the question of tenant is exclusively triable by the Tribunal under the Act.  If on such a question decision or finding is given by the Civil Court then the same “ill be without jurisdiction and can not that validity or binding force, Legislature ill competent to vest jurisdiction in the Tribunal to decide quest ions which art, stated Sec. 112 of the Act. The competency of the legislature has not been challenged By virtue of Sec. 132 no Civil Court can go into the said If Sections 132 and 133 are taken, into consideration then it would be quite evident that Sec. 133 supplements Sec. 132 and provide a machinery as to how such questions should be proceeded with after 1st March 1974.\n<\/p>\n
  19.   Sri Holla, learned counsel drew out attention to the judgment of the Supreme Court in Amarjit Kaur v. Pritam Singh. Al R<\/a> 1974 SC 2068, but the said judgment does not support his contention as is evident from the following observations:\n<\/p>\n
In Lachnieshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 it was held that once the decree passed by a court had been appealed against the matter became sub Judice again and thereafter the appellate court has seisin of the whole case, though for certain purposes, e.g. execution, the decree was regarded as final and the courts below retained jurisdiction. The court further said that it has been a principle of legislation in British India at least from 1861 that it court of appeal shall have the same powers and shall perform as nearly as maybe the same duties as are conferred and imposed by the Civil Procedure Code on courts of original jurisdiction, that even before the enactment of that Code, the position was explained by Bhashyam Iyengar, J. in Kristnama Chariar v. Mangammal, (1902) ILR 26 Mad 91 at pp. 95, 96 (FB) in language which makes it ear that the hearing of an appeal is under the processual law of this country in the nature of a re-hearing, and that it Is on the theory of an appeal being in the nature of a re-hearing and that the courts in this country have in numerous cases recognised that in moulding the relief to be granted in a case on appeal the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.” Sri. Holla also drew our attention to the judgment of the Supreme Court in Noor Mohmed v.  Fakirappa, . The facts of that case read thus.\n<\/p>\n
  20.  Fakirappa was inducted as a tenant of an item of property by first defendant (R4 in appeal before SC) pending a partition suit in the family of owners. He was impleaded as a party in the course of final decree proceedings. The said item was allotted to the appellants (LRs of D5 and 6). There were few proceedings in execution and appeal. In the meanwhile, tenant Fakirappa had also filed an application seeking a declaration as a tenant under Karnataka Land Reforms Act. In the appeals that same before the High Court, it was held that Fakirappa cannot be evicted in view of the Act. The majority view of the Supreme Court observed at para-7 that lease in favour of Fakirappa may be affected by the doctrine of lis pendens; but, none the less the jurisdiction of the civil court to decide this issue of tenancy was barred. In paras14 and 16 majority view clearly stated that the issue therein was not for the civil court to decide. The view taken by the High Court in two Execution Second Appeii1sas to the lack of competence in the Civil Court to decide the issue was thus upheld. Direction issued by the Supreme Court in para-18 was depended upon the finding to be given or given already by the revenue authorities on the issue of tenancy. Kailasam, J. (as he then was) in his separate judgment agrees with the conclusions to a limited extent, as is clear from the opening sentence of his Lordship’s judgment. But his Lordship’s judgment is a minority view is clear from the next sentence, in para-19, which is thus: –\n<\/p>\n
“But considering the importance of the question involved, namely the scope of the jurisdiction of the civil courts and as my approach is not identical with that of Justice Untwalia I am writing a separate judgment”. To the same effect is the conclusion stated in para-41. In para-31 there is a reference to Karnataka Act 27\/76. Here it may be noted that the appeals were decided by the High Court on 9-2-1968; the appeals in the Supreme Court were of the year 1978. Therefore, actually in the High Court there was no occasion to go into Act 27\/76. The majority view of the Supreme Court, as already stated specifically says, question of tenancy had to be decided not by the Civil Court. The observation of Kailasam, J. (as he then was) in para-31 and subsequent paras actually go contrary to the majority view; in these circumstances, the observations of Kailasam, J. referred in the present order of reference and sought to be relied upon by Mr. Holla would be of no assistance to him.\n<\/p>\n
  21.   An argument was also sought to be raised that on the basis of the language of See. 133 as amended by Act 27\/76; question of tenancy pending decision in an appeal could not be referred to the Tribunal as the words now used in the section are “in any suit, case or proceedings”. Precise contention rised before us was that these words would not include appeal proceedings and therefore Sec. 133 would not govern the pending appeals and it governs only suits, cases or proceedings and bars the civil, or criminal court or officer or authority from deciding the question whether the land is agricultural or not whether the person claiming to be in possession is or is not a tenant of the land prior to 1st March 1974. To -substantiate, reliance was placed on the judgment of the Supreme Court in Dewaji v. Ganpatlal, AIR<\/a> 1%9 SC 560. In that case, the relevant provision of law stated that no civil court shall entertain -any suit instituted or 4pplication made etc. In para-12 the Supreme Court observed that the Act came into force after the trial Court had decreed the suit and an appeal was pending before the District Judge. Thereafter it is observed thus: –\n<\/p>\n
    “It cannot be disputed that if the Legislature intends to oust the jurisdiction of civil courts it must say so expressly or by necessary implication. We cannot find any words in Secs. 16, 16A and 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force. It is true that the word “whenever” is wide but Section 16A uses the words “suit or proceeding” and these words do not ordinarily indicate appellate proceedings. Further, Section 16B use ‘ s the word “entertain-and not the words “entertain or try any suit” as contained in Section 15(2) of the 1951 Act. If the intention was to affect pending proceedings, the word ‘try’- along with the word ‘entertain’ would have been used in Section 16B of the 1953 Act.”\n<\/p>\n
  22.  On giving our thoughtful consideration, we find that the provision of law considered in Dewaji’s case is different from the provisions with which we are concerned. In the case here, Section 133 has to be read with Section 132 which says that no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act requited to be settled, decided or dealt with by the authorities under the Act. The scope of Sec. 132 is to bar the civil court from settling, deciding or dealing with any question. The phraseology of Section 132 is as effective as the word ‘try’ of not wider from it. These words (settle, decide or deal) certainly convey the idea of barring the civil court from ‘trying’ the suit. Hence, having regard to the observations of the Supreme Court in Dewaji’s case  the bar will govern the appeal proceedings also.\n<\/p>\n
  23.  The next question that needs  consideration is whether Act 31\/74 stood repealed because it was only an amendment to the parent Act. Its purpose was to amend Sec. 133. When See.133 is again substituted by Act 27\/76, Act 311\/74 gets repealed. Again we are unable to agree with the learned counsel, as the contention appears to be untenable. Act 31\/74 is called Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, ‘ 1974. Admittedly Sec. 4 of the said Act is still operative because it bars the civil court from granting temporary injunction in respect of an agricultural land except after service of notice of the application for such a relief on the defendants. As the name of the Act indicates, it is not only an amending Act but also enacts other miscellaneous provisions; there is no enactment repealing Act 31\/74 specifically. There is a strong presumption that the legislature while enacting a law had complete knowledge of the existing laws on the same subject matter and therefore if intended to repeal it would have enacted specifically to effectuate the intention. It is only when the provisions of the latter Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together, the earlier one is deemed to have been impliedly repealed. As we look at the two legislations, we find that Act 27\/76 in no way conflicts with Act 31 of 74 and that there is no substance in the contention that Sec. 3 of Act 31\/74 stood repealed by Act 27\/76.\n<\/p>\n
24. Further Section 8 of Karnataka General Clauses Act reads as follows:\n<\/p>\n
“Construction of references to repealed enactments, –\n<\/p>\n
    Where this Act, or any Mysore Act or Karnataka Act made after the commencement of this Act, repeals and reenacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed, shall, unless a different intention appears, be construed as references to the provision so re-enacted”.\n<\/p>\n
Karnataka Act 27,176 in effect re-enacts Section 133 of the Land Reforms Act with certain modification. Reference in any other enactment (here Act 31\/74) to the provisions of Sec. 133 shall be construed as a reference to the re-enacted provision (Sec. 133), unless a different intention is manifested. Thus, reference to See. 133 in Sec. 3 of Act 31\/74 will be, Sec. 133 as it now stands’. Sec. 3 of Act 31\/74 is still operative, since it has not been repealed. If so construed, again, question of tenancy has to be referred to the Tribunal, by virtue of Sec. 3 of Act 31\/74 as’ it now stands.\n<\/p>\n
  25.  The matter can be looked at from another angle. Admittedly on, the coming into force of Act 31\/74, by virtue of Sec. 3, the relevant question as to tenancy had to be referred to the Tribunal. Section 3 is in mandatory terms. It operated on this appeal immediately. Delay, by this court in giving effect to the mandate of the statute, cannot nullify its effect. The impact of the statute does not get itself erased by the delay. What remained is practically a ministerial act of making the reference. If reference had been made immediately after Act 31\/74came into force, such references would not get reverted to this Court, after Act 27\/76. Thus, in all appeals or revision petitions then pending, the relevant questions would be deemed to have been referred. From the language of Section 3(l)(c) of the said Act, it is evident that it became effective from 1stMarch 1974. The result is that there will be no appeal or revision involving relevant questions pending consideration thereafter in the eye of law. Thus, the legislature justifiably need not, once again, have specifically made a similar provision as Sec. 3of Act 31\/74 in Act 27\/76.\n<\/p>\n
  26.  No other point arises f or consideration.\n<\/p>\n
  27.  As a result of the aforesaid discussion, the answer to the question is as follows:\n<\/p>\n
  28.  That Section 133 of the Karnataka Land Reforms Act as amended by Karnataka Act 27\/1976 read with Section 3 of the Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974, is applicable to the appeals pending in civil courts on the date when the Amending Act 27\/11976 came into force and that the question of tenancy set up by the first defendant (appellant herein) is required to be referred to the Land Tribunal constituted under the Act.\n<\/p>\n
29. The case would now go back to the Division Bench for disposal on merits.\n<\/p>\n
30. Answer accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court Koraga Marakala And Anr. vs Kamala And Ors. on 19 November, 1987 Equivalent citations: AIR 1988 Kant 123, 1988 (1) KarLJ 34 Author: P C Jain Bench: P C Jain, M Nesargi, K S Bhat JUDGMENT Prem Chand Jain, C.J. 1. In order to appreciate the controversy, certain salient features of I […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-209175","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nKoraga Marakala And Anr. vs Kamala And Ors. on 19 November, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/koraga-marakala-and-anr-vs-kamala-and-ors-on-19-november-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Koraga Marakala And Anr. vs Kamala And Ors. on 19 November, 1987 - 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