TMI Blog1800 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbered 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. exporting the Court to decide the suit itself a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 truly non est , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 honest 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 acquiescence had lost their right to canvas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendant is the owner of the property. XXX XXX XXX XXX 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 annulled. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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