Karnataka High Court
Ningappa Bharmanna Gavada @ Patil vs Irrappa Sonappa Patil on 11 July, 2023
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R.S.A No. 5946 of 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5946 OF 2010
BETWEEN:
1. SHRI NINGAPPA BHARMANNA GAVADA @ PATIL,
AGE: ABOUT 46 YEARS, OCC: AGRICULTURE,
2. SHRI LAXMAN RAMCHANDRA GAVADA @ PATIL,
AGE: ABOUT 52 YEARS, OCC: AGRICULTURE,
Digitally
signed by
POOJA 3. SHRI NARAYAN RAMACHANDRA GAVADA @ PATIL,
POOJA DEELIP
DEELIP SAVANUR AGE: ABOUT 48 YEARS, OCC: AGRICULTURE,
SAVANUR Date:
2023.07.13
11:20:18 -
0700 4. SHRI SAMBHAJI RAMCHANDRA GAVADA @ PATIL,
AGE: ABOUT 47 YEARS, OCC: AGRICULTURE,
5. SHRI MARUTI RAMCHANDRA GAVADA @ PATIL
AGE: ABOUT 42 YEARS, OCC: AGRICULTURE,
6. SHRI MAREPPA LAXMAN GAVADA @ PATIL
(SINCE DECEASED BY HIS LEGAL HEIRS)
6A) SMT ANANDIBAI MAREPPA GAVADA @ PATIL,
AGED. ABOUT 52 YEARS, OCC. AGRICULTURE &
HOUSEHOLD WORK,
7. SHRI BABU LAXMAN GAVADA @ PATIL,
(DECEASED BY HIS LEGAL HEIRS)
7A) SMT ANJANA BABU GAVADA @ PATIL,
AGE: ABOUT 55 YEARS, OCC: AGRICULTURE &
HOUSEHOLD WORK,
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R.S.A No. 5946 of 2010
ALL ARE R/O: KARAMBAL, TQ: KHANAPUR,
DIST: BELAGAVI-591302
...APPELLANTS
(BY SRI. VISHWANATH P. ALLANNAVAR, ADV. FOR
SRI. DINESH M. KULKARNI, ADVS.)
AND:
1. SHRI IRRAPPA SONAPPA PATIL,
AGE: ABOUT 60 YEARS, OCC: AGRICULTURE,
R/O: KARAMBAL, TQ: KHANAPUR,
DIST: BELAGAVI-591302
2. THE ASSISTANT COMMISSIONER BSDN BELAGAVI
DIST: BELAGAVI.
3. THE TAHASILDAR,
KHANAPUR TALUKA, KHANAPUR-591302
DIST: BELAGAVI
4. THE REVENUE INSPECTOR,
KHANAPUR CIRCLE, KHANAPUR-591302
DIST: BELAGAVI.
5. THE VILLAGE ACCOUNTANT,
KARAMBAL VILLAGE, TAL: KHANAPUR-591302
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. SABEEL AHAMED, ADV. FOR
SRI A.S. PATIL, ADV. FOR R1
SRI. PRAVEEN K. UPPAR, HCGP FOR R2-R5)
***
THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC.,
SEEKING TO SET ASIDE THE JUDGEMENT AND DECREE PASSED BY
THE SENIOR CIVIL JUDGE, KHANAPUR IN REGULAR APPEAL NO
188/2008 (OLD NO 174/2005) DATED 24/07/2010 AND THE
JUDGMENT AND THE DECREE PASSED BY THE ADDL CIVIL JUDGE
JUNIOR DIVISION, KHANAPUR IN OS NO 84/2002 DATED 06/04/2005
AND IN THE CONSEQUENCE THE SUIT OF THE PLAINTIFFS BE
DECREED WITH COSTS THROUGHOUT.
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R.S.A No. 5946 of 2010
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
Appellants/plaintiffs feeling aggrieved by the judgment and decree passed by first Appellate Court on the file of Senior Civil Judge, Khanapur, in R.A.No.188/2008 (Old R.A.No.174/2005) dated 24.07.2010 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiffs can be stated in nutshell to the effect that plaintiffs are owners and in possession of land bearing R.S.No.119/1 measuring 33 guntas and R.S.No.119/5 measuring 1 acre 18 of Karambal village, Khanapur taluk. Smt.Bayakka Ningappa Yallur was the owner of the property and she died about 30 to 40 years back without any issues. On the death of Bayakka Ningappa Yallur, name of plaintiffs came to be entered in the records by virtue of certification of M.E.No.1461 dated 30.04.1990. Defendant No.1 Irappa Sonappa Patil without having any legal right got mutated his name for the house property to the extent of 66' X 66' of Sy.No.119/5 and constructed house illegally without the consent -4- R.S.A No. 5946 of 2010 of plaintiffs. Defendant No.1 had filed O.S.No.78/1995 on the file of Civil Judge (Jr.Dn.), Khanapur and subsequently, got withdrawn the said suit. The suit of plaintiffs in O.S.No.36/1996 was dismissed on 10.04.2001 and appeal in R.A.No.170/2001 is pending. Defendant No.1 by taking undue advantage of dismissal of O.S.No.36/1996 got mutated his name in collusion with revenue authorities and started denying the right of plaintiffs over the suit schedule properties. Therefore, the plaintiffs were constrained to institute the suit on hand for the relief claimed in the suit.
4. In response to the suit summons, defendants appeared through learned counsel. Defendant No.1 filed written statement contending that suit is not maintainable in view of Section 135 of the Karnataka Land Revenue Act. The suit of plaintiffs in O.S.No.36/1996 came to be dismissed and admitted pendency of R.A.No.170/2001. It is the case of defendant No.1 that suit schedule properties are tenanted lands of defendants and were cultivating the same as tenants under Smt.Yallur who was landlady of the schedule properties. Defendant No.1 is in actual physical possession and enjoyment of the schedule property as tenant and constructed house in an area measuring 33' X 66' assigned with GPC No.331. The certification of -5- R.S.A No. 5946 of 2010 M.E.No.1461 has been set aside by the Assistant Commissioner, Belagavi, by allowing the appeal on 26.02.2002. The defendant No.1 filed Form No.7A for grant of occupancy right in respect of the schedule properties and the same is pending consideration and in view of the provisions of the Karnataka Land Reforms Act, Civil Court has no jurisdiction to try the suit in question, since the land is vested with the Government as on 01.03.1974 in terms of Section 44 of the Karnataka Land Reforms Act. Therefore, prayed for dismissal of the suit.
5. The trial Court has framed necessary issues. Issue Nos.3 and 5 have been treated as preliminary issues. The trial Court after hearing both the sides allowed IA-4 filed by defendant Nos.2 to 4 under Order VII Rule 11(d) read with Section 151 CPC as against defendants 2 to 5. Issue No.5 was held in affirmative and the suit of plaintiffs came to be dismissed as not maintainable in view of express bar under Section 133 of the Karnataka Land Reforms Act.
6. The plaintiffs feeling aggrieved by the said order of trial Court on issue Nos.3 and 5 challenged the same before first Appellate Court on the file of Civil Judge (Sr.Dn.), Khanapur, in R.A.No.188/2008 (old No.174/2005). The first Appellate Court -6- R.S.A No. 5946 of 2010 after hearing both sides dismissed the appeal and confirmed the order of trial Court.
7. Appellants/plaintiffs challenging concurrent findings of both the Courts below on issue Nos.3 and 5 contended that both the Courts below have failed to understand the distinction between Section 135 of the Karnataka Land Revenue Act and the provisions of Section 133 of the Karnataka Land Reforms Act. The Courts below have also failed to notice the distinction between Form No.7 filed under Section 48 of the Karnataka Land Reforms Act and Form No.7A filed under Section 77A of the Karnataka Land Reforms Act. The decisions relied by both the Courts below in holding that Sections 132 and 133 of the Karnataka Land Reforms Act is applicable and the jurisdiction of the Civil Court is ousted. The Courts below have committed serious error in not properly appreciating Section 133 of the Karnataka Land Reforms Act which is not applicable for the pendency of Form No.7A before the competent authority. Therefore, prayed for allowing the appeal and to set aside the concurrent finding of both the Courts below and the suit of plaintiffs be decreed.
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8. In response to notice of appeal, defendants have appeared through learned counsel.
9. This Court by order dated 25.04.2014 framed the following substantial question of law for consideration:
"Whether the dismissal of the suit on the question of maintainability of suit in view of Section 133 of the Karnataka Land Reforms Act, 1961, is justified, more particularly, in the light of Section 133 of the Karnataka Land Reforms Act, 1961, being not applicable to the tenancy proceedings initiated under Section 7-A of Karnataka Land Reforms (Amendment), Act, and thus the judgments of the trial Court and the first Appellate Court have become perverse and illegal?"
10. Heard the arguments of both sides.
11. On careful perusal of pleadings of both the parties and the documents relied by them with the findings recorded by both the Courts below, it would go to show that issue Nos.3 and 5 have been treated as preliminary issues and IA-4 filed by defendants 2 to 5 have been heard together and the trial Court by order dated 06.04.2005 allowed IA-4 filed by defendant Nos.2 to 4 under Order VII Rule 11(d) read with Section 151 of CPC and the suit came to be rejected as against defendants 2 to
5. In view of affirmative finding on issue No.5, the suit of -8- R.S.A No. 5946 of 2010 plaintiffs came to be dismissed holding that in view of bar contemplated under Section 133 of the Karnataka Land Reforms Act, the jurisdiction of Civil Court is ousted. The first Appellate Court has affirmed the said finding recorded by trial Court.
12. The plaintiffs are claiming to be the nearest legal representatives of deceased Bayakka and on her death, the name of plaintiffs came to be recorded under M.E.No.1461 dated 30.04.1990. The earlier suit filed by defendant No.1 in O.S.No.78/1995 came to be withdrawn. The suit of plaintiffs under O.S.No.36/1996 came to be dismissed on 10.04.2001 and the appeal in R.A.No.170/2001 is pending. On the other hand, the 1st defendant has contended that he was tenant of the schedule property under Smt.Yallur and constructed residential house in an area measuring 66' X 66' and residing therein which is assigned with GPC No.331. The certification of M.E.No.1461 came to be set aside in an appeal by the order of Assistant Commissioner, Belagavi, on 26.02.2002. Therefore, the plaintiffs have no any subsisting right over the suit schedule properties. Defendant No.1 being tenant of the schedule property filed Form No.7A seeking grant of occupancy right and the same is pending on the file of Deputy Commissioner, Belagavi.
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13. The question is as to whether jurisdiction of Civil Court is ousted in view of bar contemplated under Section 133 of Karnataka Land Reforms Act and the findings of both the Courts below can be legally sustained with respect to finding recorded on issue Nos.4 and 5.
14. Learned counsel for appellants relied on co-ordinate bench judgment of this Court in SHANKARAPPA GOWDA AND ANOTHER VS. INDUDHARA GOWDA (ILR 2000 KAR 2298) wherein it has been observed and held that:
" Provisions of Section 133 are not attracted to the cases arising out of Section 77-A as the Authority which is empowered to deal with such cases is a distinct entity and cannot be equated with the Land Tribunal constituted under a separate provision of the Land Reforms Act."
In view of the principles enunciated in this decision, it is evident that the filing of declaration in Form No.7A before the Deputy Commissioner for grant of the land in question, Section 133 of the Karnataka Land Reforms Act will not apply to the proceedings under Section 77A of the Act.
15. Learned counsel for the appellants also relied on another subsequent co-ordinate bench judgment of this Court in
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R.S.A No. 5946 of 2010K.V.RUSHYASHRINGABHATTA VS. S.G.NAGENDRA AND OTHERS (ILR 2003 KAR 1643) wherein it has been observed and held that:
"Neither Section 77A nor Section 132 provides that if there be a dispute with regard to possession of agricultural land then the same can be resolved only by the authorities prescribed under Section 77A and the jurisdiction of the Civil Court will remain ousted for adjudicating such factual issues.
The Rule that the exclusion of jurisdiction of Civil Courts is not to be readily inferred is based on the theory that Civil Courts of general jurisdiction and the people have a right, unless expressly or impliedly debarred, to insist for free access to the Courts of general jurisdiction of the state.
The provisions of Section 133 of the Act do not get attracted to cases arising out of Section 77A of the Act as the authority which is empowered to deal with such cases is a distinct entity and cannot be equated with land tribunals constituted under Section 48 of the Act."
In view of the principles enunciated in these decisions, it is evident that proceedings before the Land Tribunal constituted under Section 48 of the Karnataka Land Reforms Act to decide the issue of tenancy filed under Form No.7 is different than the
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R.S.A No. 5946 of 2010proceedings before the Deputy Commissioner filed under Form 7A in terms of Section 77A of the Karnataka Land Reforms Act.
16. Learned counsel for appellant seeks to rely on the co-ordinate bench judgment of this Court in SHANKAR AND ANOTHER VS. MADHUKAR BANDOPANT AND ANOTHER (ILR 2000 KAR 1019) wherein it has been observed and held that:
" Karnataka Land Reforms Act, 1961 - Section 77-A and 133 - In a suit for specific performance the Agreement Holders filed an application under Section 133 to stay further proceedings as they have filed an application under Section 77-A for grant of land and the matter is pending before the Deputy Commissioner. The trial Court dismissed the Application holding that Section 133 will not be attracted."
17. On close reading of the principles enunciated in all the aforementioned 3 judgments of this Court, it is evident that grant of occupancy rights by the Land Tribunal constituted under Section 48 of the Karnataka Land Reforms Act to declare the tenancy rights on the basis of Form No.7 filed by the tenant is different than the proceedings before the grant of land under Section 77A of the Karnataka Land Reforms Act by the Deputy Commissioner. In the proceedings before Deputy Commissioner
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R.S.A No. 5946 of 2010on the application filed under Section 77A of the Land Reforms Act, the provisions of Section 133 of the Karnataka Land Reforms Act has no application.
18. Learned counsel for appellants filed IA-3/2013 seeking permission to produce the document under Order XLI Rule 27 of CPC. The same was taken up for hearing along with the main appeal. The 1st defendant has contended that during pendency of declaration filed by him seeking grant of land under Section 77A of the Karnataka Land Reforms Act before the Deputy Commissioner, the suit is not maintainable. The additional document sought to be produced by the appellants is the order passed by the Assistant Commissioner, Belagavi, in KLR/7A/SR/2090-Karambal dated 04.04.2007. The Assistant Commissioner, Belagavi, by exercising the power conferred in terms of Government Order No.RD 147 LRA 98 (1) dated 28.06.1999 dismissed the declaration Form filed by defendant No.1 under Section 77A of the Karnataka Land Reforms Act holding that the 1st defendant has failed to prove that he was tenant of the schedule properties. This Court can take judicial notice of the order passed by Assistant Commissioner, in view of the admitted fact that the proceedings before the Deputy Commissioner, Belagavi, on the basis of declaration filed by
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R.S.A No. 5946 of 2010defendant No.1 under Section 77A of the Karnataka Land Reforms Act was pending and the result of such application is only made known to this Court. Otherwise, also in view of the principles enunciated in the aforementioned 3 judgments of this Court, it is evident that the provisions of Section 133 of the Karnataka Land Reforms Act are not applicable to the proceedings initiated on the basis of declaration form filed under Section 77A before the competent authority. Therefore, the finding of both the Courts below that the jurisdiction of the Civil Court is ousted in terms of Section 133 of the Land Reforms Act that the proceedings initiated under Section 7A under the Karnataka Land Reforms Act cannot be legally sustained and accordingly, the substantial question of law is answered in the negative. Consequently, proceed to pass the following:
ORDER Appeal filed by appellants/plaintiffs is hereby allowed.
The judgment of the first Appellate Court on the file of Senior Civil Judge, Khanapur, in R.A.No.188/2008 (Old No.174/2005) dated 24.07.2010 which confirmed the order of trial Court dated 06.04.2005 in O.S.No.84/2002 on the file of Addl. Civil Judge (Jr.Dn.), Khanapur, is hereby set aside.
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The trial Court is directed to restore O.S.No.84/2002 on its file and to dispose of the suit in accordance with law as expeditiously as possible, since the suit is of the year 2002.
The parties to the appeal who are represented through their counsel are directed to appear before the trial Court on 03.08.2023.
The registry is directed to transmit the records with the copy of this judgment to trial Court.
(Sd/-) JUDGE Jm/-