James L. Barboza, S/o. Late Sebastian Barboza v. V. Radhakrishna Hegde, S/o. Late V. Padmavathi Heggadthi
2025-07-03
VIJAYKUMAR A.PATIL
body2025
DigiLaw.ai
ORDER : (VIJAYKUMAR A. PATIL, J.) This petition is filed seeking for the following relief : "Issue a writ of certiorari, writ or direction by setting aside the impugned order dated 20.08.2018 passed in O.S.No.354/2012 on the file of the court of the Additional Civil Judge and JMFC, Udupi vide Annexure- A and to declare the suit filed by the plaintiffs in O.S.No.354/2012 on the file of the court of the Additional Civil Judge and JMFC, Udupi is not maintainable under law." 2. Sri.Vigneshwara U., learned counsel appearing for the petitioner submits that the respondent Nos.1 to 3 filed a suit seeking the relief of declaration that the order dated 12.09.1981 passed by the Land Tribunal, Udupi, in favour of the petitioner is illegal, not binding and for other prayers. In the said suit, the petitioner filed a written statement raising a preliminary objection with regard to the maintainability of the suit. The Trial Court framed the issues, considered issue No.5 as the preliminary issue and held against the petitioner by recording an incorrect finding that the mother of the petitioner did not file any application for grant of occupancy rights as provided under Section 48A of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act') within the stipulated time. Hence, the order of the Tribunal is without jurisdiction and such order can be challenged in the suit. It is submitted that the decision of the Trial Court on issue No.5 runs contrary to Sections 132 and 133 of the Act and also the decision of the Hon'ble Supreme Court in the case of R.RAVINDRA REDDY AND ORS. Vs. H. RAMAIAH REDDY AND ORS. , [2010 AIR SCW 1435] Hence, he seeks to allow the petition by dismissing the suit. 3. Per contra, Sri.S.K.Acharya, learned counsel appearing for the respondents supports the impugned order of the Trial Court and submits that the Trial Court, by a well reasoned order has come to conclusion that the suit is maintainable by recording a finding that the petitioner has failed to place before the Court that the petitioner's mother has filed Form No.7 seeking for occupancy rights before the Tribunal and that the order of the Tribunal is without jurisdiction, null and void. Hence, the issue No.5 was held against the petitioner. He seeks to dismiss the petition. 4.
Hence, the issue No.5 was held against the petitioner. He seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioner, learned counsel for the respondents and perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 5. The respondent Nos.1 to 3 filed O.S.No.354/2012. It would be useful to extract the prayer sought in the said suit. A. To grant declaratory decree declaring that, the Order dated 12 .09.1981 passed by No. 10. Udupi land tribunal Under its proceedings No. LRY/91/166/992/TRI/3626/1981-82 in favour of 1. Victor Menezes, 2. Thomas Menezes, 3. Megdaline Menezes is void ab-intio, invalid illegal in so far as it relates to portion measuring 50 cents of S.No 468/5 situated in Shirva Village of Udupi Taluk. B. To grant the consequential relief of declaratory decree declaring that, inclusion of a portion measuring 50 cents of S.No. 468/05 situated in Shirva Village of Udupi Taluk, in the Partition Deed dated 29.06.1985 bearing document No.568/1985-86 of Udupi SRO, is void ab-initio, invalid and illegal. C. To grant the Consequential relief of declaratory decree declaring that the Will dated 29.06.1994 bearing document No.07/1994-95 of Udupi SRO, made by Thomas Menezes In favour of the 3rd, Defendant is void ab-initio, invalied and illegal. D. To direct the Tahasildar Taluk Office, Udupi to delete the aforesaid S.No.468/2005 measuring 50 Cents from the order dated 12.09.1981 passed by the 10th Udupi Land Tribunal Under its proceedings No.LRY/91/166/992/TRI/3626/1981-82 and also to delete the very same property entry from the form 10 occupancy certificate issued by the Tahasildar pursuant to the aforesaid order. E. To direct the defendants no 1 and 2 to deliver up aforesaid Partition Deed dated 29.06.1985 bearing document no.568/1985-86 of Udupi SNO, before the Sub-Registrar, Udupi, Sub-Registration District Udupi for deletion of the aforesaid property measuring 50 cents of S.No.468/5 situated in Shirva Village of Udupi Taluk, from the property schedule allotted to the share of Thomas Menezes. F. To direct the 3rd defendant to deliver up aforesaid Will dated 29.06.1994 bearing document No.87/1984- 95 of Udupi SRO., made by Thomas Menezes in favour of the 3rd Defendant, before the Sub-Registrar, Udupi, Sub-Registration District Udupi for cancellation.
F. To direct the 3rd defendant to deliver up aforesaid Will dated 29.06.1994 bearing document No.87/1984- 95 of Udupi SRO., made by Thomas Menezes in favour of the 3rd Defendant, before the Sub-Registrar, Udupi, Sub-Registration District Udupi for cancellation. G. To grant the consequential relief of permanent injunction restraining the Defendants their men, people, agents, servants and all those persons claiming through or under them from trespassing into any portion of the plaint property and interfering with Plaintiffs peaceful possession and enjoyment of the Plaint property. H. To order the Office to send copy of the decree to be passed in this case to the Sub-Registrar Udupi, Sub- registration District, Udupi for compliance of the Decree. I. To grant full cost of the suit. J. To grant such other reliefs as the Court deems fit. 6. The aforesaid prayer clearly indicates that the respondent No.1-plaintiff is seeking declaration that the order dated 12.09.1981 passed by the Land Tribunal granting occupancy right in favour of the persons mentioned in the order, is void ab initio, invalid and illegal. In other words, the respondent-plaintiff is challenging the order of the Land Tribunal granting occupancy rights in favour of the persons referred in the order dated 12.09.1981. 7. It would be useful to refer the relevant provision of law. Section 132 of the Act reads as under: "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 83, the 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." 8. Sub-section (1) of the aforesaid Section says that 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 Officers referred in the said Section.
Sub-section (1) of the aforesaid Section says that 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 Officers referred in the said Section. Sub-section (2) specifically says that no order of, the Officers referred therein shall be questioned in any civil or criminal Court. Sub-section (2) of Section 132 makes it abundantly clear that the order of the Land Tribunal cannot be challenged in the Civil Court. There is an express ouster of jurisdiction of the Civil Court when it comes to the challenge of the order of the Land Tribunal. The Hon'ble Supreme Court in the case of R.RAVINDRA REDDY, referred supra, at paragraph 30 held as under: "30. It is clear from the above that the jurisdiction of the Civil or Criminal Court or Officer or Authority stood ousted in matters where a decision had to be taken as to whether the land in question was agricultural land or not and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st April, 1974. In the instant case, the question as to whether Annaiah Reddy was an occupancy tenant or not and whether Pilla Reddy had given his consent to such claim is in the domain of the Land Tribunal and it has been correctly held by the Courts below that the Civil Court had no jurisdiction to decide such a question." 9. Keeping in mind the enunciation of law laid down by the Hon'ble Supreme Court and the law on the point, I am of the considered view that the Trial Court has committed a grave error in recording an incorrect finding that the suit is maintainable. 10. For the aforementioned reasons, I proceed to pass the following : ORDER (i) The writ petition is allowed. (ii) The impugned order dated 20.08.2018 passed in O.S.No.354/2012 by the Additional Civil Judge and JMFC, Udupi, is set aside. Issue No.5 framed by the Trial Court is held in favour of the petitioner and against the respondent-plaintiff. Consequently, the suit in O.S.No.354/2012 is dismissed as not maintainable.