Sri T.M. Pillahanumaiah, Since dead by his L.Rs. (Smt. Miniyamma and Mylarappa) vs Sri Muniyappa

S. Abdul Nazeer

This appeal is directed against the judgment and decree in R.A. No. 103/2007 dated 19.12.2009 on the file of the Principal District Judge, Bangalore Rural District, Bangalore, confirming the judgment and decree in O.S. No. 87/2000 dated 27.2.2007 on the file of the Civil Judge (Jr. Dn.) and JMFC, Hosakote, Bangalore. The appellant is the defendant in the suit and the respondent is the plaintiff. It is the case of the plaintiff that he is the absolute owner of the suit schedule property having purchased the same from one J. Mallappa, under a registered sale deed dated 21.3.1998. Mutation has been accepted in his name by virtue of the sale deed and his name has been entered in column No. 9 as well as column No. 12(2) of the RTC extracts. The defendant is interfering with his peaceful possession and enjoyment of the suit schedule property.

Though the defendant has entered appearance and filed objection to the application filed by the plaintiff seeking grant of temporary injunction, he has not filed the written statement. The trial Court has decreed the suit.

In the appeal filed by the defendant, he has contended that he has filed an application in form No. 7 for grant of occupancy right in respect of the suit schedule property and that the Land Tribunal has not decided the said application. Having regard to Sections 132 and 133 of the Karnataka Land Reforms Act, the Civil Court has no jurisdiction to entertain the suit. Therefore, the suit ought to have been dismissed with liberty to the parties to agitate the matter before the Land Tribunal since the power is vested with the Land Tribunal to grant interim order. The issue relating to the tenancy has to be decided only by the Land Tribunal and that the Civil Court has no jurisdiction whatsoever.

However, the lower appellate Court without considering any of these aspects has dismissed the appeal on the basis of certain orders passed by this Court in W.P. No. 31893/1997 disposed of on 28.6.1999 and in W.P. No. 10442/2008 disposed of on 18.8.2008.

While admitting the appeal, this Court has framed the substantial questions of law relating to the maintainability of the suit.

Learned Counsel for the appellants submits that the lower appellate Court has not considered the case on merits. The Court below ought to have decided the jurisdiction of the Civil Court to entertain the suit because the question of tenancy is involved.

It is evident that the lower appellate Court has not considered any of the contentions urged by the appellants. It has decided the appeal on the basis of the orders passed in certain writ petitions filed by the defendant/appellants herein seeking a direction to the Land Tribunal for early disposal of his application filed in form No. 7 for grant of occupancy right.

It is well established that the first appeal is a continuation of the suit. Sitting as a Court of first appeal, duty is cast on the Court to deal with all issues and evidence led by the parties before recording its findings. First appeal has to be decided both on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the appellate Court has to address all the issues of law and fact and decide the appeal by giving reasons. Material was available before the lower appellate Court relating to the tenancy issue. In such a situation, the lower appellate Court ought to have first answered the question as to the maintainability of the suit when the application filed by the defendant for grant of occupancy right in respect of the land in question is pending before the Land Tribunal. This essential question of law has not been decided. Without answering this question, the lower appellate Court has proceeded to dismiss the appeal. I am of the view that the lower appellate Court has to decide the matter afresh. In the result, the appeal succeeds and it is accordingly allowed. The judgment and decree in R.A. No. 103/2007 dated 19.12.2009 on the file of the Principal District Judge, Bangalore Rural District, Bangalore, is hereby set aside and the matter is remitted back to the lower appellate Court for fresh disposal in accordance with law. All the contentions are kept open. No costs.