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2020 DIGILAW 1726 (KAR)

Shivanavva v. Mallappa

2020-09-04

B.M.SHYAM PRASAD

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JUDGMENT B.M. Shyam Prasad, J. - This Civil Revision Petition is filed by the petitioners defendants in O.S. No.2/2016 on the file of the Additional Senior Civil Judge and JMFC, Mudhol (for short, 'the Civil Court'). The petitioners have challenged the order dated 10.10.2018 whereby, the Civil Court has rejected the petitioners' application under Order VII Rule 11(d) of CPC for rejection of the plaint. 2. The learned counsel for the petitioners and the learned counsel for the respondent are heard and with their consent the petition is taken up for final disposal. The learned counsels for the petitioners and the learned counsel for the respondent submit that the undisputed facts are that: (i) the suit schedule lands viz., land in Sy. No.20/1, and 20/2 of Varchagal, Mudhol Taluk together measuring about 5 acres 12 guntas was purchased by Sri.Basappa S/o. Hanumappa Kanikanni in the year 1954 from Sri.Narayan Krishnaji Deshpande and Sri.Venkatesh Ramachandra Deshpande. (ii) Sri.Basappa S/o. Hanumappa Kanikanni and another Sri.Shivalingappa S/o. Ramappa Manikshetty each filed Form No.7 for grant of occupancy rights to these lands with the revenue records for the subject lands showing that these lands vested with the State after the Karnataka Land Reforms Act coming into force. (iii) the Land Tribunal by its order dated 22.03.1976 granted occupancy rights to Sri.Basappa S/o. Hanumappa Kanikanni. (iv) Sri.Shivalingappa S/o. Ramappa Manikshetty impugned this order dated 22.03.1976 in Writ Petition No.18148/1985. This writ petition was allowed with the order dated 27.10.1992 being quashed and the matter remanded back to the Land Tribunal for reconsideration of the applications submitted by Sri.Basappa S/o. Hanumappa Kanikanni and Sri.Shivalingappa S/o. Ramappa Manikshetty. (v) on remand, the plaintiff respondent, Sri.Mallappa S/o. Hanamappa Parannavar appeared before the Land Tribunal, and gave a statement on the basis that he was a legatee under the Will dated 14.11.1979 executed by Sri.Basappa S/o. Hanumappa Kanikanni. (vi) the plaintiff respondent stated before the Land Tribunal that the application by Sri.Basappa S/o.Hanumappa Kanikanni was not maintainable because he was the owner of the property and the application filed by him in Form No.7 be rejected as withdrawn. (vii) the Land Tribunal granted occupancy rights to Sri.Shivalingappa S/o. Ramappa Manikshetty in the premise that he was in possession of the subject properties as a tenant as of the effective date. (viii) the plaintiff respondent Sri.Mallappa Hanamappa Parannavar challenged the Land Tribunal's order dated 25.06.1997 in Writ Petition No.21660/1997. (vii) the Land Tribunal granted occupancy rights to Sri.Shivalingappa S/o. Ramappa Manikshetty in the premise that he was in possession of the subject properties as a tenant as of the effective date. (viii) the plaintiff respondent Sri.Mallappa Hanamappa Parannavar challenged the Land Tribunal's order dated 25.06.1997 in Writ Petition No.21660/1997. This Court dismissed the Writ Petition on 08.08.2006 holding inter alia that the plaintiff did not have the locus to challenge the Tribunal's order granting occupancy rights to Sri.Shivalingappa S/o. Ramappa Manikshetty. (ix) the order dated 08.08.2006 in Writ Petition No.21660/1997 has attained finality. The first and second petitioners first and second defendants are the sons of Sri.Shivalingappa S/o. Ramappa Manikshetty. 3. It is seen that the plaintiff respondent has filed the present suit in the year 2016, which is almost after a decade from the date of disposal of the Writ Petition in W.P. No.21660/1997, seeking declaration of title to the subject properties and for permanent injunction. The plaintiff respondent has adverted to these admitted facts, but has sought to substantiate his prayer for declaration of title and permanent injunction asserting that he is in possession of the subject properties as a legatee and his rights as a legatee under the Will dated 14.11.1979 would prevail over the Land Tribunal's order dated 25.06.1997 in favour of Sri.Shivalingappa S/o. Ramappa Manikshetty. 4. The petitioners defendants have contended that the question of title to, and possession of, the subject properties on the basis of grant of occupancy rights vide the order dated 25.06.1997, which is in the premise that Sri.Shivalingappa S/o. Ramappa Manikshetty was in the possession of the land as of the effective date, has attained finality. The question of title and possession of the properties, even based on the purported Will executed by Sri.Basappa S/o. Hanumappa Kanikanni cannot be revisited and there is a specific bar under the provisions of the Karnataka Land Reforms Act. 5. The Civil Court has referred to the settled law as regards the consideration of an application under Order VII Rule 11 of CPC, i.e., (a) only the plaint averments will have to be looked into, (b) the veracity of the plaint averments cannot be decided while deciding the application under Order VII Rule 11 of CPC and (c) the defendants' defence cannot be considered. The Civil Court has opined that when the merits of the petitioner's application is thus examined, the plaintiff respondent's suit, which is found in the Will dated 14.11.1979, could be sustained under the provisions of the Specific Relief Act, 1963. 6. The Civil Court, in arriving at this conclusion, has neither considered the questions that have been finally decided in the previous proceedings, and the effect of such decisions inter se parties, nor the provisions of the Karnataka Land Reforms Act, 1961 on the jurisdiction of the Civil Court to entertain a suit. The Civil Court should have considered whether the suit would be barred in the context of the facts and circumstances of the case, which are mostly uncontested, and the relevant provisions of the Karnataka Land Reforms Act, 1961. Therefore, the rejection of the petitioners' application would be irregular. As such, this Court is of the considered view that the impugned order should be set aside and the application filed by the petitioners under Order VII Rule 11 of CPC restored to the board of the Civil Court for fresh consideration in the light of the observations made by this Court. For the foregoing, the following order: ORDER (i) The petition is allowed in part. (ii) The impugned order dated 10.10.2018 in O.S. No.2/2016 on the file of the Additional Senior Civil Judge and JMFC, Mudhol is set aside. (iii) The application filed by the petitioners defendants under Order VII Rule 11(d) of CPC is restored to be considered on merits.