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2012 DIGILAW 901 (KAR)

Umesh Shetty v. Sesi

2012-10-19

RAVI MALIMATH

body2012
JUDGMENT RAVI MALIMATH, J.—The case of the plaintiff is that he is the owner in possession and enjoyment of the suit schedule properties. That it was allotted to the plaintiff’s mother in a partition deed dated 04.08.1969. After her death, the plaintiff and the other three children are the only legal heirs to succeed to all her assets and as a co-owner/co-sharer. Ever since the date of the partition deed, the plaintiff’s mother is in possession and enjoyment of the same. The said lands were never leased to any body and to any tenant. In the month of December 1995, the plaintiff came to know that the 2nd defendant proposed to acquire a portion of the plaint survey number for the purpose of industrial development. Ascertaining the facts, he came to know that the Land Tribunal has granted occupancy right of the plaint property to the 1st defendant’s husband late Sri. Uggappa Poojary as per order dated 30.09.1981. Under these circumstances, the present suit has been filed seeking for a declaration, declaring that the order of the Land Tribunal dated 30.09.1981 granting occupancy right in respect of plaint properties to the 1st defendant’s husband is illegal, null and void and for a consequential permanent prohibitory injunction. The defendants on appearance denied the plaint averments. 2. The trial Court framed the following issues for consideration: (1) Whether the plaintiff proves that plaintiff is entitled for declaration that Order of Land Tribunal dated 30.9.1981, passed in L.R.T. No. 638/79-80 is illegal and void and not binding on plaintiff? (2) Whether the plaintiff proves that defendants be restrained from claiming any right in suit schedule property on the basis of LRT Order? (3) Whether the plaintiff proves that D-2 be restrained from dispossessing the plaintiff from suit property without initiating any acquisition proceedings? (4) Whether the plaintiff proves that this Court has got jurisdiction to try this suit? (5) Whether the defendants prove that court-fee paid is insufficient? (6) What Decree or Order? 3. It recorded its findings as follows: 1. Issue No. 1-In the affirmative 2. Issue No. 2-In the affirmative 3. Issue No. 3-In the affirmative 4. Issue No. 4-In the affirmative 5. Issue No. 5-In the affirmative 6. (5) Whether the defendants prove that court-fee paid is insufficient? (6) What Decree or Order? 3. It recorded its findings as follows: 1. Issue No. 1-In the affirmative 2. Issue No. 2-In the affirmative 3. Issue No. 3-In the affirmative 4. Issue No. 4-In the affirmative 5. Issue No. 5-In the affirmative 6. Issue No. 6-as per the final order” In support of the plaintiff’s case, he was examined as PW-1 and another witness was examined as PW-2 and Ex.P1 to Ex.P14 were marked on his behalf. The 1st defendant examined herself as DW-1 and yet another witness was examined on her behalf. Ex.D1 to Ex.D12 were got marked on her behalf. On contest, the trial Court decreed the suit.3. Aggrieved by the same, the defendants preferred an appeal. The same was allowed and the judgment and decree passed by the trial Court was set aside and the suit of the plaintiff was dismissed. Aggrieved by the same, the plaintiff has filed the present appeal. 4. By the order dated 05.02.2010, the appeal was admitted to consider the following two substantial questions of law: “(1) Whether the Courts below justified in rejecting the suit on the ground of limitation without there being an issue in this regard? (2) Whether the law as laid down in Jingra Moolya vs. Balakrishna, ILR 1995 KAR 1825 is a good law?” 5. Heard the learned counsels and examined the records. 6. Of the issues framed by the trial Court, Issue No. 4 was as to whether the plaintiff proves that the Court has jurisdiction to try this suit. The trial Court while considering the issue was of the view that the Tribunal has no jurisdiction to grant any occupancy right when the applicant has not filed any application regarding the survey property. The Land Tribunal suo moto granted occupancy rights in favour of the 1st defendant regarding the plaint schedule property in the absence of the plaintiff or his mother. Hence, by placing reliance on the judgments referred to therein, the trial Court was of the view that the Court has jurisdiction to try the suit. 7. Under the circumstances, the 1st substantial question of law framed by this Court as to “whether the Courts below justified in rejecting the suit on the ground of limitation without there being an issue in this regard” would not arise for consideration. 7. Under the circumstances, the 1st substantial question of law framed by this Court as to “whether the Courts below justified in rejecting the suit on the ground of limitation without there being an issue in this regard” would not arise for consideration. If it does arise, it would be a secondary issue. The primary issue which the Court would have to consider is with regard to the jurisdiction of the Court to try the suit or otherwise and the maintainability of the suit itself. 8. I have heard the learned Counsels on this issue. They submit that the 1st substantial question of law does not arise for consideration. Hence, the 1st substantial question of law is substituted by the following: “Whether the suit of the plaintiff in the facts and circumstances of the case is maintainable in law?” 9. In order to consider the maintainability of the suit, it is relevant to consider the prayer made by the plaintiff in the suit. It is for a declaration that the order of the Land Tribunal granting occupancy right in respect of the plaint properties to the 1st defendant’s husband is illegal, null and void. 10. Sections 132 and 133 of the Karnataka Land Reforms Act, 1961 reads as follows: “132. Bar of jurisdiction.—(1) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by, the Deputy Commissioner, an officer authorised under sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control. (2) No order of, the Deputy Commissioner, an officer authorised under sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83, the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any civil or criminal Court. 133. (2) No order of, the Deputy Commissioner, an officer authorised under sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83, the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any civil or criminal Court. 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 officer or authority shall, in any suit, case or proceedings concerning a land decide the question whether such land is or 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; (ii) such Court or officer or authority shall stay such suit or proceedings insofar 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. Catena of judgments have been rendered by the Hon’ble Supreme Court as well as by this Court where it is held that a Civil Court has no jurisdiction to try such a suit. The law on question being clear and unambiguous, the suit of the plaintiff would not be maintainable. No suit can lie seeking for a declaration that the order of the Land Tribunal is null and void. In fact, no suit would lie under any proceedings initiated or to be initiated before the Land Tribunal. Under the circumstances, the 1st substantial question of law is answered by holding that the Civil Court has no jurisdiction to try the suit. 12. In fact, no suit would lie under any proceedings initiated or to be initiated before the Land Tribunal. Under the circumstances, the 1st substantial question of law is answered by holding that the Civil Court has no jurisdiction to try the suit. 12. The second substantial question of law is as to “whether the law as laid down in Jingra Moolya vs. Balakrishna (supra) is a good law”. 13. In the said case, the contesting defendants had not filed any application for grant of occupancy right in respect of the suit land. It is also evident that the plaintiff and defendant No. 3, who are admittedly the owners of the land, were not parties to the proceedings and at no stage they were served with any notice in this regard. In this view of the matter, it was held that the order of the Tribunal to the extent it pertains to the suit land is without jurisdiction and void. As such, it confers no right on the defendants-appellants in respect thereof. 14. The question of law is as to whether this judgment is good law. I ‘am of the considered view that the question of declaring the judgment to be good law or otherwise would not arise for consideration in this facts and circumstances of the case. What was held by the learned Single Judge in the said judgment was that the order passed by the Land Tribunal in the facts of that case is without jurisdiction and void. However, that is not the case in the present appeal. There is no assumption or lack of jurisdiction as pleaded by the plaintiff. It is not the case of the plaintiff that the order of the Land Tribunal is null and void for the reasons pleaded therein. But on the contrary, for a specific decree that it is null and void. On such an assumption that an order of a Court is null and void, the necessary consequences are sought to be applied. In the present case, there is no assumption as such made by the plaintiff nor is it their case. The specific case in terms of the pleading is for a specific declaration that the order of the Land Tribunal is bad. Under these circumstances, the question of holding whether the judgment reported in Jingra Moolya vs. Balakrishna (supra) is a good law would not arise for consideration. The specific case in terms of the pleading is for a specific declaration that the order of the Land Tribunal is bad. Under these circumstances, the question of holding whether the judgment reported in Jingra Moolya vs. Balakrishna (supra) is a good law would not arise for consideration. Under the circumstances, the 2nd substantial question of law is answered accordingly. 15. When there is a specific bar under the statute for the civil Court to try the suit, the trial Court did not have jurisdiction to try the suit. In view of the answers to the substantial questions of law, the appeal would necessarily have to fail. 16. For the aforesaid reasons, the judgment and decree dated 08.06.2007 passed in R.A. No. 672/2004 by the Presiding Officer, Fast Track Court, Mangalore as well as the judgment and decree dated 23.07.1999 passed in O.S. No. 674/1996 by the V Additional Civil Judge (Jr. Dn.), Mangalore are set aside. Consequently, the suit of the plaintiff is dismissed.