Huluvadi G. Ramesh, J.

1. The plaintiff had filed a suit for injunction against the defendants before the Munsiff at Bhadravathi seeking for a permanent injunction against the defendants who are the appellants herein in respect of property in Sy.No.60 to the extent of 5.11 acres and in Sy.No. 61 to the extent of 5 acres wet land situate in Madishetty Village of Bhadravathi Taluk.

2. It is pleaded in the plaint that plaintiff is the owner in possession and cultivating the suit schedule property which is the ancestral property of the plaintiff's father Narayana Rao and after the death of Narayana Rao, the plaintiffs name had been mutated in the RTC and mutation extracts and the plaintiff's property was also attached to the Village Patel's office. After the death of the plaintiffs father, the plaintiff along with his mother filed an application before the Assistant Commissioner for re-grant of the land under Section 5 of the Inams Act. The Assistant Commissioner rejected the application at the first instance against which appeal was preferred in the District Court, Shimoga in Misc. Appeal 5/1980. The District Judge allowed the application and directed the Assistant Commissioner to consider the case. After enquiry, the Assistant Commissioner passed a re-grant order on 13.3.1985 and after re-grant, the plaintiffs name has been mutated in the Record of Rights and the mutation extracts. Further, it is pleaded that the defendants having no manner of right, title or interest over the suit schedule property in respect of the same, have been trying to interfere with the peaceful possession and enjoyment of the property. The defendants have made series of attempts to grab the property and have filed application before the Land Tribunal stating that they are the tenants of the property. It is further pleaded in the plaint that the Assistant Commissioner had no power to make an enquiry as the plaint schedule properties were attach to the Patel's Inam Land and thereafter the katha and pahani were separated in the name of the plaintiff. The defendants have preferred appeal before the Assistant Commissioner during 1988-89 who has dismissed the appeal against which, the defendants have not preferred any appeal, It is also urged that the defendants at no point of time, were cultivating or were in possession of the property. It is the plaintiff who was cultivating the land. Contending that the defendants are powerful and influential and have made futile attempts to displace the plaintiff, the suit came to be filed seeking for permanent injunction.

3. It appears the defendants though were served with notice and had appeared through a counsel, they have not filed the written statement. Ultimately the trial court decreed the suit of the plaintiff. Being aggrieved by the same, appeal was preferred before the Civil Judge (Sr. Dvn), Bhadravathi in RA 15/1998. The said Court confirmed the decree passed by the trial court and dismissed the appeal. Hence this appeal by the defendants.

4. At the time of admission, the following substantial question of law was framed on 4.3.2003 for consideration: 'Whether Sections 132 & 134 of the Karnataka Land Reforms Act are a prohibition to pass a decree in a permanent injunction suit?'.

5. Heard the counsel for the respective parties.

6. It is the argument of the defendants/appellants' counsel that the trial court as well as the lower appellate court have erred in disposing of the matter when pendency issue was there without referring the same to the Land Tribunal for its finding and both the courts below ought not have proceeded to dispose of the matter by granting permanent injunction which is contrary to provisions of Sections 132 and 133 of the Land Reforms Act. In support of his argument, learned Counsel relied upon a Division Bench judgment in the case of Mallayya Murigayya v. Puttappa Shivappa 1976(1) KLJ 369 to contend that when there is an issue of tenancy in a suit for permanent injunction, the same has to be referred to the Land Tribunal irrespective of the fact that the person who claims to be the tenant is a plaintiff or defendant Learned Counsel also relied on the decision in the case of K. Ravindranatha Shetty and Anr. v. Smt Maire Hengasu and Anr. ILR 1004 KAR 1615.

7. Per contra, counsel for the plaintiff/respondent vehemently contended that there is no such issue being raised by the trial court regarding tenancy nor the defendants filed their written statement to contend that they are the tenants of the suit property. Since there was no such issue available, question of referring the matter to the Land Tribunal does not arise and in support of his argument, learned Counsel relied on the decision in the case of Poovani Poojary v. Narayana Bhat and Anr. 1977(1) KLJ 69 and submitted that no substantial question of law arises for consideration and when there is no such pleading by the defendant no issue has been framed. Accordingly, he sought for dismissal of the appeal.

8. There is also an additional IA filed along with the some documents seeking permission to lead evidence under Order 41 Rule 27, CPC. The trial court is shown to have seen the documents produced on behalf of the plaintiff that there is a re-grant order in favour of the plaintiff and the suit property was changed in his name and there is also evidence to this effect. Further, referring to the record of rights, mutation register and also the order of re-grant and the pahani copies, the trial court was of the view that the plaintiff was in lawful possession of the suit property. Holding that there is nothing to discard the case of the plaintiff which remains unchallenged and also having noted that the defendants are interfering with the enjoyment of the suit property, the trial court has passed an order of permanent injunction by decreeing the suit.

9. The lower appellate court on the question whether the plaintiff is in lawful possession and enjoyment, referring to the decision reported in ILR 2000 KAR 2287 to the effect that the jurisdiction of the civil court to decide the question of injunction cannot be stopped by referring question of tenancy to the Land tribunal, and also based on the fact that the suit was pending before the trial court for more than six years and though the defendants have appeared through a counsel they have not filed the written statement and that they are not interested in contesting the case, has disposed of the appeal rejecting the prayer of the defendants seeking for an opportunity to file the written statement and to contest the matter.

10. I may refer to Section 133 of the Land Reforms Act which reads:

Section: 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 office 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 said land from prior to 1st March, 1974;

(ii) No 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;

(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 (1) 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.

11. In Mallayya Murigayya's case cited supra, the Division Bench of this Court has held that Section 133 as amended in 1976 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 by the Tribunal. Section 133 applies to all such cases irrespective of the fact that the person who claims to be the tenant is plaintiff or defendant. In that view of the matter, the decision relied upon the lower appellate court reported in ILR 2000 KAR 2287 is a per-incurium judgment. Further, in K. Ravindranatha Shetty's case cited supra , the Division Bench of this Court has held that in any suit if the defendant pleads tenancy, the issue relating to tenancy should be referred to the Land Tribunal under Section 133 of the Land Reforms Act. It has also held that the Single Judge cannot question or differ with the opinion of the Division Bench or a larger Bench unless he is of the opinion that such an opinion is contrary to the law declared by the Supreme Court. It appears, that before the lower appellate court the Division Bench Judgment has not been cited. But, the fact remains that a per-incurium judgment has been considered and order has been passed.

12. Before the lower appellate court the defendants have made an attempt to obtain an order of remand and for permission to file written statement which of course was not considered by the said court on the ground that even after six years of filing of the suit by the plaintiff, the defendants did not evince interest to file written statement. However, it is not as if the order passed is an exparte order, the suit was contested through a counsel but, without filing the pleadings and leading evidence. It is well settled that any amount of submission without pleading or evidence would be ineffective. But, is (sic) having regard to the factual position that the order passed by the trial court as well as the lower appellate court in ignoring the mandate of Section 133 and also relying upon a per-incurium judgment requires interference.

13. It is also now submitted that the appellants herein who are said to be the tenants in respect of the suit properties are said to have obtained an order of grant of occupancy rights in their favour before the Land Tribunal and it is also the submission of the counsel for the appellants that Form 7 was filed seeking occupancy rights and that their application was not rejected, rather, their application was kept pending till the grant of land in favour of the plaintiff. After enquiry, the Tribunal has granted occupancy rights against which writ petition is said to have been filed by the plaintiff which is pending before this Court. It appears, at the first instance, as also noted in the plaint itself, the plaintiff himself made a reference that the defendants are claiming interest over the property as tenants though he has denied the same. But, when such a fact was pleaded and admittedly it was an agricultural land, the trial court, as a matter of abundant caution or as a matter of procedure ought to have ascertained whether injunction could be granted or not in view of the clear bar provided under Section 133 of the Land Reforms Act although it was quite evident even as per the plaint that defendants are claiming as tenants falsely.

14. An error has been committed by the trial court in disposing of the matter even knowing that the defendants' case is that of tenancy though they had not filed a written statement pleading the same but they have defended the case through the counsel (sic) Subsequently, relying upon a per incurium judgment the lower appellate court also concluded that in a suit for injunction, Section 133 of the Land Reforms Act is not a bar. However, in view of the ratio laid down by this Court in Ravindrnatha Shetty's case in respect of injunction suits as well as in other suits, if there is a tenancy issue in question, naturally the Tribunal has to give a finding on this and later the Civil Court has to dispose of the case according to law.

15. In view of the same, the finding of the trial court as well as the lower appellate court though are concurrent, have to be set aside while remanding the matter to the trial court by giving an opportunity to the defendants to file their written statement and to contest the same.

16. In the result, while answering the substantial question of law raised in favour of the appellants, the appeal is allowed. Judgment and decree of both the courts are set aside. Matter is remanded to the trial court by giving an opportunity to the defendants to file their written statement and to contest the suit. However, it is needless to say that the decision in the writ petition will have an effect on the decision in the suit for which the trial court may have to await. Parties to bear their own costs.