Karnataka High Court
Smt S Gowramma vs Mr N Narayanaswamy on 13 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13th DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL No.396 of 2018 (DEC)
BETWEEN :
SMT.S.GOWRAMMA
WIFE OF RAMANJINI
AGED ABOUT 46 YEARS
RESIDING AT NO.341
4TH MAIN, OMBR LAYOUT
DODDABANASAWADI POST
BENGALURU - 560 043. ... APPELLANT
(BY SRI.M.SHIVAPRAKASH, ADVOCATE)
AND:
1. MR.N.NARAYANASWAMY
SON OF LATE.MUNIYAPPA
AGED ABOUT 48 YEARS
2. SMT.PILLAMMA
WIFE OF LATE RAMAIAH
AGED ABOUT 62 YEARS
3. MR.NARAYANAPPA
SON OF LATE CHIKKAHANUMANTHAPPA
AGED ABOUT 68 YEARS
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THE RESPONDENTS ARE ALL
RESIDING AT KANNAMANGALA
VILLAGE, KASABA HOBLI
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 110.
... RESPONDENTS
(BY SRI.H.R.ANANTHAKRISHNA MURTHY,
ADVOCATE FOR R-1 TO R-3)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 READ WITH ORDER XLI RULE 1 OF CIVIL
PROCEDURE CODE AGAINST THE ORDERS ON IA NO.3
DATED 08.01.2018 PASSED IN OS. NO.719/2016 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,
DEVANAHALLI ALLOWING THE IA NO.3 FILED UNDER
ORDER 7 RULE 11[d] R/W. SEC.151 OF CPC., FOR
REJECTION OF PLAINT AND ETC.
THIS REGULAR FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, NAGARATHNA J., DELIVERED
THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with consent of learned counsel for the parties, it is heard finally.
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2. The appellant is the plaintiff, while the respondents were the defendants in O.S.No.719/2016. The said suit was filed by the appellant seeking the following reliefs :
"Wherefore, it is humbly prayed by the plaintiff that this Hon'ble Court may be pleased to :
a) Cancel the registered Revocation of General Power of Attorney dated 24.09.2016 registered at No. DNH-4-00511-2016-17, in CD.No.DNHD617, at Book-IV, dated 24.09.2016 registered before the Office of the Sub-Registrar, Devanahalli, with respect to the Schedule Property.
b) Declare that registered Irrevocable General Power of Attorney dated 06.07.2013, registered as No.DNH-4-00243-2013-14, in CD.No.DNHD334, at Book-IV, dated 06.07.2013, registered before the Office of the Sub-Registrar, Devanahalli, as legal and valid document executed in favour of the plaintiff with respect to the Schedule Property.
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c) Pass permanent injunction restraining the defendants, their legal heirs, representatives, assigns and anybody claiming through them from interfering with the peaceful possession of the plaintiff with respect to the schedule property, till the death of the defendants.
d) Pass such other and further relief.
e) Award such other and further reliefs, which this Hon'ble Court may deem fit and proper, in the interest of justice and equity.
SCHEDULE PROPERTY All the piece and parcel of Immovable Property bearing Survey No.139, measuring to an extent of 1 Acre, situated at Kannamangala Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District bounded on the:
East by : Government Road, West by : Land bearing Sy. Nos.73 and 114 North by : Land bearing Sy. No138 South by : Land bearing Sy. No.140 5
Present Market Value of the Schedule Property is Rs.2,50,00,000/- (Rupees Two Crores Fifty Lakhs Only)"
3. Briefly stated, the facts are that the appellant
- plaintiff filed the aforesaid O.S.No.719/2016 seeking the aforesaid declaratory and consequential reliefs. Learned counsel for the appellant during the course of his submission has made available a copy of the plaint filed in O.S.719/2016.
4. In response to the suit summons and Court notices, the defendants appeared and filed their written statement. In addition, they filed an application under Order VII Rule 11(d) read with Section 151 of CPC seeking rejection of the plaint, contending that the suit in respect of the suit schedule property was not maintainable in view of Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the PTCL Act) read with Section 9 of CPC. By the impugned order, the trial 6 Court has allowed the application (I.A.No.3) and rejected the plaint.
5. The appellant being aggrieved by the order and decree dated 08.01.2018 by the Senior Civil Judge and JMFC at Devanahalli, passed on I.A.No.3, which was an application filed by the defendants under Order 7 Rule 11(d) read with Section 151 of the Code of Civil Procedure (CPC), by which the plaint filed by the appellant was rejected, has preferred this appeal.
6. We have heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record.
7. Appellant's counsel drew our attention to the reliefs sought in the suit in respect of the suit schedule property and contended that the defendants had executed a General Power of Attorney dated 06.07.2013 in favour of the appellant - plaintiff. However, the same was also revoked on 24.09.2016. That pursuant to the General 7 Power of Attorney executed in favour of the plaintiff on 06.07.2013, possession of the suit schedule property was also handed over to the appellant. That the subsequent revocation of the General Power of Attorney on 24.09.2016 was null and void. Hence, a declaration was sought that the revocation of the General Power of Attorney was null and void and to cancel the said document; consequently to declare that the irrevocable General Power of Attorney dated 06.07.2013 was valid and legal and consequently, relief of permanent injunction was sought. He submitted that the defendants as well as the trial Court had misdirected themselves by relying on Section 4 of the PTCL Act, to seek rejection of the plaint. He drew our attention to Section 4 of the PTCL Act to contend that the said provision prohibits any agreement, contract or instrument for transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant. Also any transfer of the said land after the commencement of the Act by a grantee without previous 8 permission of the Government is null and void. That the provisions of Sub-section (1) and (2) shall also apply to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority.
The PTCL Act further provides for resumption and restoration of granted lands. The same can be by an application being made by any person or suo motu by the Assistant Commissioner, if he is satisfied that the transfer of any granted land was null and void under Sub-Section (1) of Section 4, after holding an enquiry. As against the order passed by the Assistant Commissioner, appeal is provided under Section 5-A to the Deputy Commissioner, and the order of the Deputy Commissioner is final. The aforesaid provisions would enable a grantee of granted land, as defined under Section 3(1)(b) of the said Act, to approach the Assistant Commissioner vis-à-vis transfer of any granted land as defined under Section 3(1)(e) of the Act. However, in the instant case, the suit was filed by the plaintiff seeking a declaratory and consequential relief. Such reliefs could only be sought before a Civil Court as 9 per Section 9 of the CPC. He contended that the provisions of the PTCL Act do not prohibit the filing of an original suit in respect of granted land by an alienee or a beneficiary of the said land, when such benefit has been conferred by the grant. It is for the grantee to approach the Assistant Commissioner under Section 5 of the said Act or suo motu proceedings could be initiated by the Assistant Commissioner so as to invalidate a transfer or treat it to be null and void having regard to the terms and conditions prescribed under Section 5 of the Act. But as far as any other relief being sought in respect of such land although it may be a granted land is only by a Civil Court. That is exactly what was sought by the plaintiff in the instant case. But the trial Court on the basis of the provisions of the PTCL Act, has rejected the plaint. That the trial Court has misdirected itself on the provisions of the PTCL Act and thereby rejected the plaint. He submitted that the plaintiff had a valid cause of action to approach the trial Court to seek the aforesaid reliefs and the PTCL Act is not a bar under Order VII Rule 11(d) for filing of the suit. Learned 10 counsel for the appellant contended that the impugned order and decree may be set aside and the suit may be restored on the file of the trial Court for being adjudicated upon, in accordance with law.
8. Per contra, learned counsel for the respondents/defendants supported the order and decree of the trial Court and contended that the trial Court was right in rejecting the plaint as the suit schedule property is granted land, which had been granted to a person belonging to the Scheduled Caste/Scheduled Tribe, that there was a transfer in respect of the granted land, that the provisions of PTCL Act were applicable and therefore, the trial Court had no jurisdiction to entertain the suit, as the suit was barred by law. Therefore, there is no merit in this appeal and hence, the appeal may be dismissed.
9. Having heard learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration :
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i) Whether the trial Court was justified in rejecting the plaint filed in O.S.No.719/2016 under order VII Rule 11 of CPC on the premise that there was a bar to the maintainability of such a suit in view of the provisions of the PTCL Act which is applicable to the suit schedule land ?
ii) What order ?
10. The fact that the plaintiff had filed the suit seeking the aforesaid reliefs in respect of the suit schedule property is not in dispute. As already mentioned, learned counsel for the appellant - plaintiff has drawn our attention to the contents of the plaint and to the cause of action which had arisen for the plaintiff to file the suit seeking a declaratory as well as consequential relief of injunction. It is also noted that the defendants who claim to be grantees of the suit schedule land have not approached the Assistant Commissioner seeking any relief under the provisions of the PTCL Act. On the other hand, it 12 is the plaintiff herein, who had the benefit of a General Power of Attorney being executed in respect of the land in question in his favour by the defendants, under which, possession of the land was also given to him and which General Power of Attorney was later revoked, gave a cause of action to the plaintiff to seek cancellation, revocation and validation of the General Power of Attorney as well as the consequential relief of permanent injunction. There is no remedy available to an alienee, transferee or a beneficiary of granted land under the provisions of the PTCL Act. The PTCL Act is an enactment in the realm of social justice, so as to prevent the grant of land made in favour of Scheduled Castes and Scheduled Tribes from being alienated or transferred in any manner as referred to in the said Act. However if there has been a transfer of granted land and the grantee is the person who belongs to Scheduled Caste or Scheduled Tribe, remedy is provided under the Act for a grantee of such a land who has transferred such land, to approach the Assistant Commissioner seeking a declaration that such a transfer is 13 null and void and seek for resumption and restoration of the granted land. But if the transferee, alienee or a beneficiary from a grantee, even if it is in respect of a land granted to a Scheduled Caste or Scheduled Tribe is concerned, decides to seek a remedy, vis-à-vis, such granted land, the only forum available is to file a suit in view of Section 9 of the CPC. This is particularly so when the grantee has not approached the concerned authority under the PTCL Act to seek resumption and restoration of such transferred land. That is exactly what the appellant has done in the instant case. There is a bar for filing a suit by a grantee, vis-à-vis, transfer of a granted land, as a forum is provided under the provisions of the PTCL Act, namely, the Assistant Commissioner and thereafter, the Deputy Commissioner, to consider the validity or otherwise of the transfer. But in the suit filed by the plaintiff herein, the question is not with regard to the validity or otherwise of the grant; what would have to be considered in the suit is with regard to the action of the defendant which has given rise to a cause of action to file the suit by the 14 plaintiff and as to whether the plaintiff is entitled to the reliefs sought. The trial Court ought to have appreciated the subtle distinction in the instant case, instead of being carried away by the provisions of the PTCL Act and rejecting the plaint. Ultimately, whether the plaintiff is entitled to the reliefs sought for in the plaint or not, is one to be considered after a trial and hearing the parties. The plaint could not have been rejected at the threshold on the basis of the application filed by the respondents -
defendants and by coming to a conclusion that under Section 4(2) of the PTCL Act, there was a prohibition for transfer of the suit schedule land. That is a matter which could have been determined after trial. The trial Court could not have ventured to give such a finding, as jurisdiction to try such a dispute is vested under the Act with the Assistant Commissioner and with the Deputy Commissioner in an appeal at the instance of a grantee only within the meaning of PTCL Act. The trial Court could not have considered the validity or otherwise of the transfer of the granted land in the instant case. It is for 15 the grantee to establish before the Assistant Commissioner that he belongs to the Scheduled Caste and Scheduled Tribe community, that he was a grantee and that he was a transferor of granted land and therefore, entitled to get the same declared as null and void and resumption and restoration under Section 4 read with Section 5 of the PTCL Act. In the instant case he has not done so. But the plaintiff being aggrieved by the action of the defendant had filed the suit seeking the aforesaid reliefs. If the plaintiff was not entitled to the said reliefs it could have been so considered only after a trial not by rejecting the plaint. In the absence of the defendant approaching the authorities under the PTCL Act, the plaintiff's plaint seeking the aforesaid reliefs could not have been rejected.
11. The aforesaid aspects of the case having not been appreciated by the trial Court, we find that the trial Court has laid a misplaced emphasis on the provisions of the PTCL Act and has rejected the plaint. 16
12. Having regard to the factual matrix of this case, it is emphasized that the Assistant Commissioner under Section 5 of the PTCL Act is not empowered to adjudicate on the reliefs sought for by the plaintiff in the suit at the instance of the plaintiff just as the trial Court is not empowered to adjudicate upon the validity or otherwise of transfer of granted land as per PTCL Act which power is vested with the Assistant Commissioner under Section 5 read with Section 4 of the PTCL Act.
13. Hence, the impugned order and decree of the trial Court is set aside; O.S.No.719/2016 is restored on the file of the trial Court.
14. Since the parties are represented by their respective counsel, they are directed to appear before the concerned trial Court on 02nd March, 2020, without expecting any separate notices from the said Court. The trial Court to dispose of the suit in accordance with law. 17
In view of the remand of the matter to the trial Court, the Registry to refund the full Court fee paid by the appellant, to the appellant forthwith, as per Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958.
Sd/-
JUDGE Sd/-
JUDGE Mgn/-