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2000 DIGILAW 405 (KAR)

HASAM KHAN v. STATE OF KARNATAKA

2000-06-14

M.F.SALDANHA

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M. F. SALDANHA, J. ( 1 ) I have heard the learned advocates who represent the various contesting parties as also the learned government Advocate who represents the land tribunal and the state, on merits. ( 2 ) THE short controversy that has been very vigorously contested in these writ petitions is with regard to the question as to whether abdul and hasam khan who claim to be sons of deceased abdul khader and ameenabi are in fact the legal heirs of abdul khader. The issue gets rather complicated because ameenabi was earlier married to one hassan miya and the contention raised before the tribunal was to the effect that her marriage was not dissolved and that consequently, her contention that she was lawfully married to abdul khader thereafter is not liable to be upheld. There are several complicated issues that arise in this case which revolve around two main questions, the first being as to whether the earlier marriage was dissolved and if so validly and if not, what is the effect thereof and secondly, as to whether the subsequent marriage that is pleaded with abdul khader had in fact taken place and if so whether it was lawful and the last question is as to whether the two persons who claim to be the sons of abdul khader are in fact the legal heirs. In sum and substance, the status of ameenabi as the wife and of the two persons who claim to be the sons of the couple will have to be determined. Since this issue was in dispute, evidence was lead before the tribunal but, the tribunal while granting the occupancy rights held that as far as ameenabi, abdul and hasim are concerned, that the real issue with regard to whether they come within the ambit of legal heirs' of abdul khader would have to be determined by a civil court. It is really this finding that has been assailed in the present writ petitions. ( 3 ) I have heard the learned counsel who represent the contesting parties. Mr. Gunjal, learned counsel who represents ameenabi and her two sons vehemently submitted that this issue was intrinsically inter-related to the question of grant of occupancy rights and that the law is now settled that the tribunal has jurisdiction to decide all inter-related issues including questions as to whether a claimant is a legal heir or not. Mr. Gunjal, learned counsel who represents ameenabi and her two sons vehemently submitted that this issue was intrinsically inter-related to the question of grant of occupancy rights and that the law is now settled that the tribunal has jurisdiction to decide all inter-related issues including questions as to whether a claimant is a legal heir or not. He has drawn my attention to various decisions wherein the courts have expressed this view as also to the decision of the Supreme Court rendered in the year 1994 in the case of mudakappa v rudrappa and others, wherein the Supreme Court did have occasion to observe that not only does the tribunal have jurisdiction to decide these issues but, that it is desirable that it does so. ( 4 ) THE learned counsel who represents the respondents, Sri hegde hudlamane has vehemently submitted that this is one case in which the court will have to draw a distinction and he points out that where there are only inter se disputes with regard to shares between various family members or between the offspring that it is not difficult for the tribunal to examine the records and give a finding as to who would be entitled to which land and vice versa; but, he points out in the present case that the issue is entirely different insofar as since there is a very deep-seated contest that it will have to be examined not only on facts but also from the angle of muslim law and that the judicial body concerned will have to give a conclusive pronouncement with regard to the legal status of these three persons. He has also sought to rely on an earlier decision of the civil court wherein the dispute had arisen between ameenabi and respondents 2 and 3 and the civil court held that they were entitled to an injunction order as against her. His submission is therefore that in the light of this record, and in the absence of conclusive pronouncement from a competent judicial authority viz. , a civil court that ameenabi was the lawfully wedded wife of abdul khader and that abdul and hasam khan also come within the definition of 'legal heirs' of abdul khader, that they are disentitled to put forward any claim. His further contention is that the tribunal is not the competent forum to decide this particular issue. , a civil court that ameenabi was the lawfully wedded wife of abdul khader and that abdul and hasam khan also come within the definition of 'legal heirs' of abdul khader, that they are disentitled to put forward any claim. His further contention is that the tribunal is not the competent forum to decide this particular issue. ( 5 ) WHILE i do concede that in those of the cases where there is no serious adjudication that is required to be done, where the question does not arise of examining detailed evidence and above all, where the question does not arise wherein the authority is required to delve deep into the personal law that governs the community for purposes of deciding the contested issues, the tribunal may be the competent forum because as rightly pointed out by the Supreme Court the sole object is to avoid subjecting the parties to multiple legal proceedings. In the present case the situation is entirely different, because we are left with the position that the evidence both oral and documentary will have to be carefully assessed and then the legal position with regard to the status of these three persons will have to be determined. In other words, the present case is one of those exceptional situations wherein a virtual declaration of status would be required and in my considered view, having regard to the limited jurisdiction of the tribunal, which is a body empowered to decide the issues relating to grant of occupancy rights and matters incidental thereto, that it is only the civil court which is the competent forum to decide these complicated questions. ( 6 ) IN this view of the matter, i see no ground to interfere with the decision of the tribunal. However, since there is a serious claim that emanates from ameenabi, abdul and hasim khan certain additional directions would be essential. ( 7 ) THE three parties are granted the liberty of approaching the competent civil court to get the issues with regard to their status declared and if they do so within an outer limit of three months from today, then the civil court shall ensure that the suit is heard and disposed of on a priority basis within an outer limit of nine months from the date on which it is presented. The learned judge shall ensure that neither of the parties is permitted any undue delays. The civil court shall be empowered to call for the records from the tribunal and to rely upon those of the documents that it considers necessary while adjudicating the dispute. Furthermore, it shall not be necessary, in the event of the plaintiffs succeeding to thereafter formally reapproach the tribunal for modification of the earlier order and it shall be open to the civil court if the plaintiff succeeds to carve out shares that they are entitled to and pass all consequential orders, including any interim orders that may be necessary. ( 8 ) THESE are the only directions that are necessary on the present petitions which partially succeed and stand disposed of. No order as to costs. --- *** --- .