Karnataka High Court
G Hafeez S/O Ghoush Shareef vs K Asif S/O Sri G Khaleel on 22 April, 2010
Equivalent citations: AIR 2010 (NOC) 1052 (KAR.), 2010 (3) AIR KAR R 630
Author: Aravind Kumar
Bench: Aravind Kumar
69$, IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 22"" DAY OF APRIL, BEFORE THE HON'BLE MR. JUSTICE .. CIVIL REVISION PETITIG_NAAO1\f_Q. «T2661 Q1§fTs:z009T BETWEEN : 1. .. «}.ALL'~ARE RESIDING AT NO. 10. SR1. G. HAFEEZ, s/0. SR1. GHOUSH ' AGED ABOUT 59 Y£:;'_A~R_S. SRLALLAH BAKESH, O s /0. SR1. GHOUSH .s1~1AREEF,_ " AGED ABQIJT 57 SRI__.A_N. N.1ssz5ca " sro. sm L;;,HO'ig'sH AGED AB'o';:T..5'6. . SR1) G."KUsHNUi)HV,' " -~ " " s/0. SR1; GHOUSH OOSHAREEF, AGED ABQU"I'~5'5 YEARS. - NAGARAJA GUPHXO LAYOUT, BANNERGHATTA ROAD. ' - 'T '' BANGALQ_R1«}560 030. . . .PE'l'ITION]E3RS Sfxbrahmanya, Adv. for H8. Dhanaraj, Upasana Associates) "SR1. K. ASIF. S/O. SR1. G. KHALEEL, AGED ABOUT 39 YEARS, RESIDING AT NO. 44/8, 2"" CROSS. ldiSrr'1'i*sse'd'. ~ _ This Civil Revision Petition is filed under Section 1 15 of CPC, against the Order dated 25.08.2009 passed in O.S.NO.15734/2005 on the file Of the XIII Addl;"«C'i.t_y~.vClVi1 Judge, Mayohall Unit, Bangalore, (CCH 22), d~i~sn:iissit1g' the application filed under order 7 Rule 11 (d) Code,:"'of:'"'E',iV'il Procedure. This petition having been heard coming on for pronouncement of "orde_rS, this_"d.ay_th§;,Court made the following: " 0 R ., This is a defendants' petitionllcliluelstioning the correctness of the order Additional City Civil Judge; 2";g?'Ba:igaie1§e. :'d'at,ed.T' 25-8-2009 in interlocutory application filed by the rende:.erit],petiaenere (defendants) under Order VII Rule (d) tlA1e~Cod'e. Civil Procedure, 1908 came to be are referred to as per their ranks before 2 _ Civil"'Cou__i't. facts in nut shell are as follows: ., ;P1aintiffs sought for an order of perpetual e._inju'1iction against the defendants, their men, agents, 2 representatives, henchmen in O.S.No.1573-4/2005. The said fix" suit was contested by the defendants. During the pendency of the suit an application under Order Vll Rule r/W Section 1510f Code of Civil Procedure the defendants with a prayer to rejeetthe' Vlsamelfisgg barred by law. The said applicat'§.on:;'_'_Aw=as affidavit of 4"] d€f€I'1dElI1JE>.~.V1't'~..WaSA.V'CQT1tCV1'1fl'éACi£ViE~~~ the affidavit that in respect property the defendants' father had of agricultural land on tenancy basisgfromzd during 1965 and vlfiigtelvvas' cultivating the land by giving was also contended that father It}-;'Khaleel had filed an application for registrationcf.occtzplaney rights before land Tribunal and bylflolrder dated 19-4-1989 had ordered late registered as occupant of the Schedule property; ~'l1hellsaid order came to be set aside by this Court W.P..Nd.25423/ 1993 by order dated 19-9-2001 and same be set aside at the instance of the mutt and was .reh1itted back to the Land Tribunal. The matter is being adjudicated by the Special Deputy Commissioner for Abolition of Inarns as the land was a Devaday.a~.V_l'arid_ and during pendency of adjudication before said G.Khaleel expired on 17~7~2004_,a»nd4 his were. prosecuting the proceedings be"fore,l_lt it Commissioner. 2.2. It was contended by----th:ev--Defendlants,.that when the matter was pending the plaintiffs have filed the presentsuit of the defendants . It was also; _st1_itl.':schedu1e property was in joint pézzvssession,o.f"'bot«h:"plaintiffs and defendants and the defendants_.haVe"ali'eady*Hgot impleaded themselves before the andlias such the plea regarding joint tenancy has btevlreferred to the Land Tribunal under Section 133 of Act, 1961. Hence it was contended that g the suit was not rnaintainable and barred by law. it The said application came to be resisted by the and it was contended that defendants cannot be W permitted to preempt the trial by means of the present application, particularly when evidence has already been recorded in the main suit. It was also conte.nded.__'_to' avoid adjudication of the matter the application. hara.ss"___ the plaintiffs and to defeat the rights X: T 2.4. On the basis ofVith'e..V_%rival the trial Court framed the following poi11ts'p_:for"-irts consideration: 1. Whetherthe plaJrlt:--i.s 'll-ial)le&t'ohe."1'ejected; as barred 2. \Nh:at"t:'r'dég-:2 ' 2.5. arguments of respective advocatesgg nth-'E: CoVu'rtV:la_ele'w by its order dated 25-8»2009, dis:niss'ed_ the 'apptliieation. It is is questioned by the defendants in this 7_ReVision Petition. Suit inasmuch as under Section 3 the land vests with the State and person in possession will continue. in possession of the land and what is required before the Special Deputy Comrriissioner'"beioteii grant " occupancy rights will be with reference' hlistol-y::Ve_and."'~. --: nature of holding of the lai'\lVg'1-..__fP1~ of under Section 5 of Inatns draw the attention of this 5-2-2006 passed by Special Depiity allowing the impleading to come on record in the deceased Khaleel i.e.. father deliiosed before the Tribunal that all his bro'theVrs_";{defen'dants in the suit and revision ' V' "petitvi.onei-as 'herei1i}"'were assisting him in his agricultural "'Qpe'ratio,1f1s_é%andas such he would contend under proviso to Section Act the defendants are deemed to be in 'possession along with the plaintiffs. He would contend that _li£.Vthef5Civil Court is allowed to record a finding about his possession while adjudicating the suit it will have a bearing a/ on proceedings before Special Deputy Commissioner and as such he contends that suit is to be held as barred In support of his submissions he would rely upon judgment: V (1) 2009 (4) AIR Kar. 21. Smt.i\/Iallainrna (11) ILR 1994 Ka'r,V.23OA;t""' J Karnataka VGop'a::Ia.11{S_ihna Rao. ,(HeadNote:A]V * 7 um (1'9'fir7)'§:1§ez;irsc{; 1- ____ H .Satyapa1 [para 5) (iv) 'AIR i 9 Mudakappaiiurdrappa and others. [para 12) (v) 1996 (6) 129. (SC) 9 IiIEt1,du1%appa"'.7s. Rudrappa and others. (Head Note] 5; Sri.D'Sa learned counsel appearing for " responderi"t plaintiffs would submit that revision is not a A'-»._'""substit'uti.on for appeal and the order in question can be only under three situations contemplated under 10 clauses (a), (b) and {C} of Section 115 of Code of Civil Proceedure for the purposes of interference Vand*._porder questioned herein can be examined only back ground. Thus he would contend that order'imp*ugn:ed_in_: revision petition does not come :_"wit'hii1 -any" "ith*ese."' categories and hence suppmlftapthell'order below. Elaborating his contend that there is no 'll'/iysore {Religious and Charitable) Inaxns [_.Xbolit'ion:l:'ict' such the plaint cannot be 1 1(d}. He would l"_of"jurisdiction would not be a bar to would submit that what is required to be whether there is a bar under any 'law the suitland if so what is the bar. Ampiifying his lvonlthis point he would contend that under the Inains Act, 1955 there is no bar for the Civil Court totry th.ell:'suit and once the land Vests with the State under ' it y:.l&éectio.i'1 3 the ownership will be decided by the Tribunal for purposes of grant of occupancy rights possession would be &/ iii] (iv) (V) (V3. l. 12 2006 AIR SCW 863 Owners 8: Parties, Vessel M.V. Forltuii-ef--:E';Xpress & Ors. [pm"a 11:3: 12) i 2005 {3} KCCR I602 Doddamrna Vs. ' 'ltl'1l3rs \ * it ' ~ ii ILR 1994 Kar 25o5:iTf. A B.V.Subbaohari Vs'; «§:;K:"J.oyabpa;A (para 5, 8, 9. 11, I4 & 1'5-)._ f_ 2009(2) Kccnfi :30. _ V V. jf Tribunal Chincholi, r3uiha:~ga--._o:st:§.i,¢t._ A * A B31' and another. in Rajlasthan page 12. heard the learned counsel for the parties the fol3.o'\mT_ng' points"arise for my consideration: V .. rejection of the piaint in O.S.No.I57'34/2005 Whether there is a prohibition under any law for under Order VII Rule 11[d] of the Code of Civil Procedure. 1908 and if so whether the plaint in @/ question is liable to be rejected'? E3 {ii} Whether the order dated 25~8~2009 passed by XIII Additional City Civil Judge, Bangalore, rejecting LA. filed under Order VIl_4wR_:u.1e*-._vll(d) suffers from any infirmity? (iii) To what order'? 7. In order to decide.»th._e_uq1iestions of_ hereinabove it would be neces'saryoy_ytoV" relevant provisions of law pressed" also some of the judgments relevant And same are narrated in it is: or LAW The d'm¥soré {Religious And Charitable) _ Inamsfibolition Act, 1955 Consequences_ of the vesting of an the State._ (1) When the notification sub~section (4) of Section 14 in respect of any inam has been published in ii the Mysore Gazette, then, notwithstanding anything contained in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from We ( (b) /.-x _. " a) 14 the date of vesting, and save as otherwise expressly provided in this Act, the following consequences shall ensure, namely:~ the provisions of the Land relating to alienated holdingshishall -- deemed to have bee_n~~ repealed' 'All application to the inam; and: the of the l[Land RevenueA"Co'de and lothelri enactments applicable to uinalienated villages shall ,app1yl-t'o..th--e said inainz all rights, title"vesting in the inarndar; =in"C1udir1g""those in all communal 'lands, uncultivated lands, '' ..vvl1ethe_r arise-spseld or not, Waste lands. pa'st_ur*-e. lan'ds," forests, mines and minerals, quarries'; -------- rivers and streams, tanks and *.ii:"riga,tior1 works, fisheries and ferries, shali " and be vested absoiutely in the a 'State of Mysore, free from all " V encumbrances; the inamdar shall cease to have any interest in the interests @,. inam other than the 15 expressly saved by or under the provisions of this Act; [d] XXXXX [h] XXXXX .... , {2} 'A'N'othi'ng contained in sub--section (I) operate as bar the recovery by the of any sum which becomes due to bim before the date of vesting by virtue of his rights as inamdar and any such sum shail be recoverable by him by any process of law «A, Section 5. Permanent tenants to as 16 which but for this Act would be available: to him. occupants on certain :eonditions.;{1j_.: to the provisions of s1V1b1~--section. (:23, 2 ev_e1?yv"~ permanent tenant. _of..the iizamwdarg effect on and fi*oInd"the ,date"o1A°d_ resting, be entitied tov¥i:§e~._ oecupant in respect of he was a permanent before the date oif"V._esti'ng1::- _V oPro~:ridet}, 'no'"*pcrson who has been .adrni{ted:"into_:pos'session of any land by an the first day of July 149/}§3,e..sha1l,A"'.. except where the Deputy E V' Qomnfissiorier after an examination of a1} the '«.cire"urnstances otherwise directs, be entitled 1 Vto Eieregistered as an occupant in respectof ~ ~ land. : In addition to the annual land revenue payable in respect of' the land, a permanent tenant entitled to be registered as an occupant of any land under subsection (1), %/ l7 shall be liable to pay to the Government, as premium for acquisition of ownership ofhthe land, an amount equal to twenty times land revenue. The amount of premium' be payable in not more than ,an.1:ru[ai't','r l instalments along the it revenue and in default the amount due shall be..r'ecoveera7b3e as Ian" arrears of land revenue due .on»t.he°land in respect of which it,is' payable. I[Provided that 2t«..:lperrrilanent tenant entitledto be registere_d_eeas"§'an occupant of lai'1d.,__uii1,der.sub:section {.1} is shown as a -occupant in the settlement register records referred to in Section -I l'7so~f~7the 2[Land Revenue Code, or where-..the rent paid by a permanent tenant elntitled to be registered as an occupant sub--section (1) is not more than the revenue no premium shall be payable under this sub--section.}; 2["5A. Protected tenant to be registered as occupant on certain conditions._(1) Subject to the provision of sub--section (2), every Q,» 18 protected tenant shall on and from the .-date of vesting be entitled to be registered' occupant in respect of all lands of _ was a protected tenant imme'diately' the date of vesting. ~ (2) In addition t*o,_the annual land_: payable 1n lieispect or a protected bu"-»centitled'~e be reg1stei*ed of any land nynder be liable to to the premium for "'4ovl§f1e.Iship of that land, .... 'equal; to fifty times such by plus in the case of lands 'c£as'sAifie"Cl--.._'"'as dry but possessing propertydof the Governmenthw _[i)Where two crops of paddy Rupees three hundred can be raised in 3 year or and thirty per acre. where sugarcane can be raised. {ii} Where one crop of paddy Rupees two hundred Can be raised in a year. and twenty per acre. (iii) Where semi--dry crops Rupees one hundred can be grown. and ten per acre. 19 The amount of premium shall be payahlae'ei_n not more than ten annual instalments the annual land revenue and in payment the amount d_ues_shall"b'e"reVeoycrabie an arrear of land in." respect of which itis pay-al_3ll'e.] Section 30.Enquiries qtxy-VV:ytphe"-~..'1'riI:>l1inal Deputy Commissioriei".___[ of every enquiry under this ---the provisions of the, V. Reforms Act, 196}. by the Tribunals under .... 'mtzttltis mutandis apply} supplied by me) 3[(2] 'Il"heV_VVDeputyf Commissioner may, by general or 'E . special' authorise any officer not below the A of a Tahsildar subordinate to him to hold if on his behalf, under this Act: Provided that the Deputy Commissioner may in H respect of any enquiry held by any such officer, direct such officer to hold a fresh or further enquiry or himself hold a fresh or further enquiry km, " t "£24}:[a) if in his opinion a fresh or further enquiry is necessary. 3[[3)] In respect of every enquiry under the Deputy Commissioner the provisioris Karnataka Land Revenue summary enquiry under " V' 3{(4)} No legal practitionershall be__allovv=ed*:..t'o"appear any proceedings _urVid.e1*.._»_this' «Act before the Tribunal or De7_puty :.C..QI1f'1.ffl issioner.] Section.3_3_; ":(iourts Barred ~ " V V (1.) or other proceeding rshallwlie' the Government for any "a._ct'done'- 'purporting to be done under this Ac-cor any rule thereunder. A No suit, prosecution or other p:'r'o'ceeding shall lie against any officer or * Lfiservant of the Government for any act done or purporting to be done under this Acct or any rule thereunder Without the previous sanction of the Government 21 (b) No officer or servant of the Government shall be liable in respect of any such act in any civil or criminal proceeding, if the act was done faith in the course of the eXecu'ti3ori'of,1't-he§~'. . duties or the discharge of the l' imposed by or under this ;Avc"t._ ~i' -- . "V ' (3) No suit, prose'cnti.on or otl1er'fprAo._cee.ding shall be institutedctigainslt officer or servant for any act done or under this Act V' or if-tlierleunder, after the Emonthislllfroni the date of -- cornpl'ained of. Under Sectic_n_3O of the above Act the provisions of Reforms Act, 1961 applicable in so far as to --the'l'ribunals under the said Act is also made 'appliclableitovan enquiry under lnams Abolition Act, 1955. °Karnataka Land Reforms Act, 1961 'Section 48A: Enquiry by the Tribunal, etc._ (1) Every person entitled to be registered as an 22 occupant under Section 45 may make_..__an application to the Tribunal in this beha1f._4v~I§v*er3rVv such application shall", save as provide§i"'in.V'_~ _ Act, be made 3[before the expiry of a pperiiodipipof months from the date of the" eomnrzenioeiiient-.iof Section 1 of the KaInatak€{_'tA~La1id"" 77: [Amendment] Act, 3978.! (2) On receipt of the pa,.pVpiication,h' the...Tr§bunaJ shall publishflorp t:a1;Visé;~. pubiished a public notice ;;;'tttaeti¢§iiiage-ivinkglgach the land is sitiuajted ifaltldlord and a¥.1 other interest in the Land H the date specified in V the" Tlibunai shall ais-o issue «to the persons mentioned applievatioh and also to such others as t 'V vmay apppearpto it to be interested in the land. ' of the application, the form .o:_f__-the 'V the manner of pubiishing or serving t,,.'\tt;s:"" notices and 3.1} other matters concerned _ " iherewith shall be such as may" prescribed. 1['i'1'1e Tribunal may for valid sufficient reasons permit the tenant to ' amend the application] 23 (4) Where no objection is filed, the Tribunal may, after such verification as it considers necessary, by order, either grant or a, application. (5) Where an objection is' mfiledt validity of the applicant'-s or in a rival claim, enquiry, determinelllliaby _orde'r-, person entitled to regi'st_eredVV--»p'as. occupant and pass orders accordingly. " 2[(5:A}' there 'objection in respect .. "of the flc'l'ai_rn;§ the Tribunal may at once granting the application as " .regards_&that:_par't"and proceed separately in respectof tlhevother part objected to.] T Theworder of the Tribunal under this it it shall be final and the Tribunal shall} 'T a copy of every order passed by it to the 'r_Tahsildar and the parties concerned: [Provided that the Tribunal may, on the application of any of the parties, for reasons to be recorded in writing, correct any clerical 7 24 or arithmetical mistakes in any order passed by it:} Provided further that the on its own or on the applicationHof"anyf_off"the parties, for reasons to correct the extent of land by it after causing' after giving an oppdorifjiifinity of to the concerned ._part,ie's.'} " _ _ a [7] The Vpersonwto be an occupant '1-paylj tofltheyffitateyyyifyfGovernment as 1. equal to fifteen times _' iricome referred to in sub if « seetionf[2}.._of..S--ection 47 in the case of A Bf'..VCiass and C Class lands referred to L_Parts A of Schedule I and twenty A 'times such income in the case of D Class it - referred to in the said Part A, plus the 'iafhount, if any, payable under sub~section "V 4(3) of that section: Provided that the premium payabie by a dfdpferinanent tenant shall be six times the difference between the rent and the land revenue of the land. 25 (8) Where no application is made within the time allowed under subsection {1),____the right of any person to be registered' occupant shall have no effect. Section 133. Suits, proceedings, etc..""«'ii1vo1§iiig M questions required to bee »decié;ie<i1"'cE)y if Tribunal.__( 1) Notwithstanding ' in:'any9:lraW'?1.c_ if for the time being in force,___.w_ (i) no Civil or criIniria1_ court' 'or__offi7cer or authority ---.._"sfhal;lt, suit case or proceedings 'A-la: land [xxxxx] _ _AiftiecideetheL'questi'on whether such land is l « land and whether the dpersoia to be in possession is or 'notfla tenant of the said land from prior it "to 1st March, 1974; court or officer or authority shall ' -.«-'stay such suit or proceedings insofar as such question is concerned and refer the W same to the Tribunal for decision; 26 {iii} all interim orders issued or made by such court, officer or authority, Whether in___the nature of temporary injunction appointment of a Receiver or concerning the land shall standdiclissoiited -- or vacated, as the caseemay he; V' (iv) the Tribunal shall referred to c_1au_sev_: "and communicate its___:dec_ision to" 3 court, officer or'---._a}--1th~orit3'i'. 'Th_e"~decision of the Tribunal shall._be"fiiia1.;~«._:" t 1 _ (2) 2:111-'ii "'suh1section (1) shall :th_eac'iviI orwcriminal court or the 'officer' from proceeding with the case;or.peroceedings in respect of any mettefether than that referred to in that ' 2 s't1b--secti'on.] e-Karnataka Land Reforms Ruies, it 1'7. Procedure to be followed by the Tribunal." (1) The tribunai shall in respect "of applications made to it follow the same procedure as specified for a summary enquiry under Section 34 of the Karnataka fr» 27 Land Revenue Act, 1964 subject to the condition that the records of the proceedings shall be maintained in a language understood by all its members. (2) Order sheet shall beMgneinteiheeiljjjabyi the 'es Chairman in respect eachj.cé3,se_.heard..eDhy:c f the tribunal. nothing ihlit the[e'e<12iY*t'o--d'ei;y<e ' proceedings of the.¢.,oAl:'C1'il)unale._rel.ati_n§;:VV't'o" the conduct of the case_._.._V:' (3) When a meeting as ,afcl_j:our1a:ed; 'the date. time and place ofllearirigjeofl' 'adjourned meeting shall made i15;fiov\fn.._to parties present iiii sigwn'ature"'ohtained on the order (4) the enquiry of each case A shall "'oe__noted by the chairman immediately hearing or the holding of spot ' by the tribunal. V315) 'The opposite party shall be allowed to cross~ ' examine the Witness and if it does not Wish to so cross--examine, a note shall be made accordingly. A brief summary of the evidence 28 given by each witness shall be recorded by the Chairman. (6) if there a.re more applications than registration of occupancy rights by persons in respect of the sameppfthloset' cases shall be clubbed'--together:"land~Ca common order passed. A ' [7] Prayer on an interlocfitoryhapplicationihaslto be considered by:y..thev._t1<ibuna1'vstrjdtly in relation to th'-err'e_l'iefs (8) The Vorde__r_ s.ignfed,llinlladdition to the tttt by.::'thel._lllolther members of the the case. All shall be speaking orders, namely, tltiep polilntsl for decision, the decisions and the reasons for the decisions A mentioned. The orders shall be pronounced in the open court. x No member of the tribunal shall participate i_n the deliberations or decision of a ca.se in which he is personally interested. 29 9. Though several judgments are cited at the_..i3ar the same having been perused by this Couri:,":l:'ft.5ilV:oi,i{ing judgments would throw light on the questions hereinabove which requires to be :r.ietermined_:. t_he'instant T if case and as such the following deeisiorisilare O' (i) AIR 2003 so 3174fi"I{ame1a._l&. t vs. K31'. Eshwara Sa 5; others...:?afa_ 15 8:' 16 15. Order VII, Ruled' has limited application. It-n.1.,ij1st'beiw.psfiovvri'~.tl1at the suit is - ---- -vbarredlllitinderg"lavvf Such a coriclusion A i.'riulst7be_V'v-from the averments made in O' the clauses in Order Vll, Ruled opinion, should not be mixed 3» up. in a given case, an application A'«.for:'rejection of the plaint may be filed on it one ground specified in various _~*su.b§clauses thereof, a clear finding to that " effect must be arrived at. What would be O relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot 16. 30 be any addition or subtraction. Absence of jurisdiction on the part of a court can___ be invoked at different stages and different provisions of the Code. Rule 11 of the Code is one, Order'?.Xl'{;wRule l 2 is another. For the purpose of 11 [d] of the codegivao amountlllofevidaeiice can be looked into_.__4_l:"Theyissueson risierit of the matter ~.ari«se between the parties would realm of the cou;1;f;at_ shall not be astibj'eCt§rriati.ter--._<* of an "order under the said'.;pr,o'Visiofi':'-,c_ . * " _ VTheeV.'.p*riiiciples of res judicata. when attracted, would bar another suit in View of Sectionvflmli of the Code. The question "v..4_°i,ni{ol'Ving a mixed question of law and fact A may require not only examination of l the plaint but also other evidence and the 1 order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. I It is one thing to say that.V'e'..flilg averments made in the plaint on discloses no cause of action, '7!:)__uutf-i_ti' is another thing to say that Ru discloses cause of action, t'hee-'sa'1ne~i_s' b.af1#eci:14i_' by a law. The deoisionps._._ren_ciered .b"y*.:thisi§ Court as also by "...ltfV:'1"1I"iC;:VL1S;V:"I;Iighvr'CQuI'tS are not uniform in the broad principle. which fieuvllejd out therefrom i§s"'tl1.atft.-tehe' atiithatlllstage would not ____ V' or enter into a tact of law. In the event. the the court is found to be v'barr'edl law, meaning thereby, the l' subj'eet:Lnfiai;ter thereof, the application for rvegistration of plaint should be entertained. " - siiiieegiiji 7:2ooi9il%(4) AIR R 21 _ ~ Sgnt. Mallamma vs. Channegowda 8: others. H 45.The Courts below have declined to grant the relief of possession to the plaintiff similarly on the ground that the Land 32 Tribunal has granted occupancy rights in favour of the 31'" respondent and therefore he is in possession. As such in View ba.r contained in the aforenief1'tion'.e:cl1' Sections the trial Court cannot C' said aspect of the mattj;rf No. reading of the above that the Civil <:'C--o_gurtll'-shall it jurisdiction to deal any lq'uies'i'ionEiqvhich is required .t'o.,_l:)e _sett'l-ed lor.._decided the authorities rrientioned 132 and sub--section 1 * f1V:i'I'tl1f;l',_ 2 clear that no the mentioned in question in any .Civil'3Z3o1i1*t»glolrglflrirninal Court and Section .__133 i'u_rther:_4'1naig'es it clear by specifically nient1oning'v.that the Civil Court or Criminal C_ourt"'sh..a1l' not decide the question as to A zwhether the land is not a agricultural land it "*4:""'_and'V:*w*hether the person claiming to be in ~*nossession is or is not a tenant of the said it land from prior to l-3~--~l97'4. 46. A careful reading of the aforesaid clause (1) of subsection (1) of Section 133 therefore gives an indication as Q/_,,. 33 to the exclusion of the jurisdiction of the Civil Court to deal with the questions referred to above in clause (1) of Se(:tVio._ri~._ 133 of subsection (1). u _.__ (iii) AIR 1973 Karnataka page 136 para. it Mudakappa. vs. Rudrappa 12. Section 132 provides ho dii'c:v:1",V shall have jurisdiction se_tt1e,t decide with d any question which is by o'r.._t1r3der required to be settled, decided or«"d'e_a1t:tvith.A by the "Deputy Commissioner, the JA_\ssis.tar1t __C'om.1i1--issioner, the Tr.,ibu"ria}; 7AfI'ahs»i,1:dar,A '._'t1'1"edV Karnataka Revenue Appellate' the State Government in exercise ~'po';vers under the Act. It also fiirther uproV_v'ides V" that no order of the Deputy "'tCommis.sioner,'Wthe Assistant Commissioner, the C Tahsilclar, the Karnataka Revenue it '- 'Ap1de1'i'a:teA',Tribuna} or the State Government made d'"und_er the Act shall be questioned in any Civil or AA yCr.imina1 Court. The consequence of an ddagricultural land being held by a lessee immediately prior to 1~O3-4974 is that with effect on and from the said date, it would stand Q'/M. 34 transferred to and become vested in the State Government by virtue of S. 44 {1} of the Act. ffhe tenants holding such lands, would as aga_in.stf State Government, be entitled only to sucli or privileges and would be subjectilto conditions as provided by or"imrler--'_Lth.e" other rights or privileges which to them in such landsrilbeforellllthe against the landlord or perso.n'&"w'ould. Cease and would not be.__enforc'e'ablej"against"the State Government. Under-'ASS. the:l_Act,.Vevery tenant would be entitled:.sub}.ect"to,_su.c_h.:.re'strictions and conditioris impos_ed.'"by*: the Act to be registered "lag fan o.ccupéant...irl respect of the lands of'whi.chVh'e.vaas 'ten-arit~"before the date of vesting and which' he h_.ad:_'be:e'n cultivating personally. Sec. 48-A prescribhuzsAthelprocedure to be followed by a ._"*'.e1fsor1,s entitled------«to be re istered as an occu ant ml' _ _A P _un.der'«Se*c1__:ion 45. For securing such registration, tlrzrurnake an application to the Tribunal A'--.._convstit'1i:ted under the Act for that pu_rpose in accordance with law. Under subsection (5) of S. it lll"4p8--A, where an objection is filed disputing the validity of the applicant's claim or setting up a rival claim, the Tribunal is required to hold an 35 enquiry and determine whether the applicant is entitled to be registered as an occupant or not. Sec. 112 (B) expressly requires the Tribunal..:_:to_ make necessary verification or hold an all cases relating to registration of a occupant under S. 48--A, S. :~13'3----of the that when, in any suit kor a land, the question whether an agricultural land or.:"wheth'er filflperson claiming to be in p'o..ssesysi'o1i oris not 'ate'nant of the said land prior arises for consideration, sucli'q.ii:estion_shouldbe referred to the lforzzr the suit or procee€dinVvg"s_».lsvhlould/'fi'be"d.,iSpofse'd of in accordance -' Tribunal on the above question. this case. one person ap_plies"' fo1'V_..regi.stration of the lands as an in"his..individual name and three others apllplyy iforvregistration of the said lands in their with the other applicant as joint A *~.._occupants, it becomes the duty of the Tribunal to decide whether only one of them was the sole it ;*tenant of the lands in question before the 'appointed day or whether all of them were jointly in possession of the iands as tenants. Without ma/r 36 deciding the said question, it would not be possible for the Tribunal to make an effective order under S. 48--A of the Act. In order to the said question, it becomes necessary"'fofr'..._tiic_:Vu Tribunal to decide whether the H question was held by one at then} or--tb,y all the applicants jointly. We hlavle to under 8. 48--A, the Tribunal hasthat regard to the scope of s_ectio1T1.lq""v'l«lhelri§ever a statute confers a, tluty ornlllanliaui-horityl to decide a question and all 'right on an individual or individuals "assumed that the by implication conferred power to decide all issues *xvhich._Vfare"vi.nci_dental and ancillaiy to the rnai"11_ lqL1es'£ion'A* decide. Otherwise the Tribunal _:'wii,l.:-- have"':to keep all the applications untilvV--s.u<:h issues are decided by the Civil there is no procedure prescribed by tofrefer such issues for the decision of the A=~..__Civii~ We do not think that it would be reasonable to hold that the Tribunal should await it ll"-the decision of the Civil Court on such issues, in 'view of sub--section (5) of S. 48--A, which requires the Tribunal to hold an enquiry into all rival 37 claims made in respect of the registration of the occupancy rights in respect of the agricultural lands before disposing of the applications it. We therefore hold that the Land A' competent to decide for the purpose K of the applications under it Whether the lease--ho1d rightszwefre held. 7-I: by the appellant or by tlie.j_oint"fariii1y of the appellant and thelll"iresponde'nts"i beforem the partition took place'. andl"tlie_rea'fter all them as co--tenants till _It is its duty to do so under The could not therefforcjswibe Ciyil Court in View of s. 132 t"i'tii'e°*Act;-»l'i'.-: ,' e (iv?) A112' diesels) 1.2_9i=ara 7 3: s. .Ru_el'i*&i?Pa Chap_telr"lIlI heading is conferment of ton ..... ..te3:1ants. A conspectus of the p1'oyisioi*1's establishes the gamut of operation of '5'__the*4ll}-'lctfinamely, eonferment of ownership of rights of the lands vested in the State Goyernment. The pre-existing right, title and it "'ir1terest of the landlord in relation to the lands in 4 39 the State Government free from all encumbrances. Pending finalisation of the registration with the State Government of a tenant, his possessioricof the land is protected and he should dispossessed. Section 45 gives right to . to be registered as an occupant..o.f_:f'lan-d ._oif-W specified conditions enurneratedf_ii'1 the provisions of the succeed_in-gpzChapter., tenant who is personally._cu.ltivating -shall, with effect from the date:_of entitled to be registered as occu_par1_t.,.vVii~i_respect' of the lands of which a __.p'eri;r1'anent tenant, protected teriant for sub-tenant before -the of vesting. preexisting tenancy yvvithvv--._predecessor landlord have been, new rights have been preated' theA"sta't.ute which would be ensued ._the rX"ct....greating direct tenancy relationship __ State as a tenant. Section 49--A "-f'.__coristitutes" the forum and enjoins it to enquire A'--..__into' application registered by it. it should direct every person entitled to be registered as an if VS"-occupant under Section 45 to make an 'appli8cation to the Tribunal in that behalf within the time specified thereunder. On receipt of such 40 application, the Tribunal should publish or cause to be published a public notice in the villagegin which the land is situated calling upo'nVV_i'-the_ landlord and all other persons having in the land to appear before it on date. Personal notice shall , persons named in the app'lica[t_ion or found to be entitled to.»iVbe__.hea1'd,"By of Explanation II to Section'V'2..V:(.'"i 1) if the being cultivated by or onbehalflofiejointl «family or by any one of the family, it should be» deerneds family is personally the " joint family is, therefci§r:e,,::4the'tenan'§.,,--land,- theland is lawfully in ocVcupatior'iVV.of,:th,e"j_oint'family as a tenant. Sub- sectiati' {5} of 3.18-A postulates that when an objectioimi-s 'filed: disputing the validity of the ..'la~pp1icant's or set up a rival claim, the ,Tr*ibuna_l"*shall, after enquiry, determine, by order, p'e.rso;n"entitled to be registered as tenant and A"-._pass' orders accordingly. Therefore, when rival clairiis were set up for tenancy right and A Vldepntitlement for registration, it is incumbent upon the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. %/it 41 Thereon an order should accordingly be made by the Tribunal and it would become final. Thereby it is clear that the Act extinguishes the pre--exist_ing_ right, title and interest of the landowners-asVV»l,we,ll,r as those who were inducted into possessioinvbglzllthe' erstwhile landholders. The new-.righ_ts ha-ve been if created in the Act itself in faviouiif' the personal cultivation ,t'(3..__ claiin" regist'i"ati:Q_1.1 tenants so as to continulesto enjoy it-)c(.i'a,:1paney rights as a tenan't.,.Vas enumierated under Veéeetion 45. A forum was creat.-ed is enjoined to enquire into not-onl_'y* the land but also the %_entit.leme--nt?fi)'r registration as a tenant. VVl1€l"i~ rival tenancy rights have been -. set "i been empowered with jurisdiction 'ito'5dccide"that question as to who is the tenant irifpossession of the land prior to the of vestirxg---and entitled to be registered as a .tena'nt' the State Government and its decision The Civil Court's jurisdiction under A'--.._Sec_tion}= 9 of C.P.C. by necessary implication, therefore, stood excluded. H 8. It is seen that the words 'tenant', 'the Tribunal', and 'the joint family' have been defined under the Act. If one of the members of the family ., 42 cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose wheth4erV_i"the_ appellant or joint family is the question should be decided by the Tribunaiiallone' K under Section 48--A read 'Se-ction and not by the Civil Court. it is needlessito 1n~er"1t_ionf T when the Tribunal cons'tit_utedl'under hiasl been invested with the to determine the riyialx claitns; lsh_ou1d record the evidence and so that its correctness could 1 v»te'sted_ an appeal or by 226 or under A1'ticl--e as .thejcase 'riiaylbe. But that cannot, bylknecessaryf-irnplicatio1';g-Sbe concluded that when rival' .__claims~._la're for tenancy rights, the jurisdiction .015 Tribunal is ousted or its _ is of the decision once over by the cia:ei1e«c-oetim It is clear from Section 48--A(5) and "~l'.Secti:on__1Vll:'2'iB(bbb) read with Section 133. that the A '--decisionolf the Tribunal is final under Section 133, th'a_t":the decision of the Tribunal is final under it 'l"Section 133(iii). The Civil Court has power only to llldecide other issues. It is, therefore, difficult to accept the contention that the rival claims for 43 tenancy rights or the nature of the tenancy are rasclussyztggmmtaa;saCivi1est- Owners and Parties. Vessel M.V. Express & others. 11. From the aforesai_d,it is "' the plaint cannot be rejected jjonothue'basispalof:o f the allegations made by4'the~.defenlCi.ant it written statement'--V.or~._pin a11~._ ap.pl'i_catiofi' for rejection of__ the p1aint,, The lCO11}ft_lE1aS to read the entire plaingt és~1..a.x3m.p1e to find out cause of action and it cannot be rejected by _ = exercising the powers under '' " Ordervli, 'Rule 11 of the Code. Essentially, whetherlllllllthe plaint discloses a cause of is a question of fact which has to be 'ill-"gathered on the basis of the averments lirilade in the plaint in its entirely taking 1 those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts 44 are required to be stated but not the evidence except in certain cases where ___the pleadings relied on are in regard»-.y¢lto misrepresentation, fraud, willful " undue influence or of the same -- long as the plaint discloses psoTrne_io'pinitonliof Ru the Judge the plaintiff llnotr cannot be a ground for 'i'eject»ioriA.:of tijhel plaint. In the pres'ent» case," the ..Vave;r:nents made in the,p1aint',"'as'--has_2beeri'noticed by us, do discllolse. V action and, therefore, the-v:i«l:igl1- rightly said tha"t4tl:;e'po{ye1?s VII, Rule 11 of cannot 'be--vexercised for rejection of -_ the ifiled .t1'1e plaintiff-- appellants. _ Court could not have taken the aid of Section 10 of the Code for stay oflV'tl'1"eV suit as there is no previously ir'istituted suit pending in a competent court A the parties raising directly and . 'substantially the same issues as raised in AA _ Z the present suit. ._ V V 179') 20 _' Doddamma vs. Muniyamma 8: others. 05 (3) KCCR page 1602 para 21 I 45 [21] It is clear from the above said provisions of the Inams Abolition Act and the provisions of the Land Reforms Act that so far as the the tenants are concerned, the provisions---.of.__tlile__" Kamataka Land Reforms Act are similar to. the provisions of the Inams AbolitionAet the it provisions may not be simi'lar';re:spect' olftt-h.é?1./.t owners of the lands' u_ndera_ Reforms Act and InaIri"'i':holdersV" inainoars under the Inamsvfiibolition "i--£owever;" so far as the tenants are coricern'e_(fj:i,he'aefieetof the above said proceedings is Vfro'rnltthepitappointed date, the relationship of tenant ceases and the Government and thetterzanti conferment of occupancy right a's,p'er 'the'~provisions of the Inams Abolition ,. Thelntoebjectppcof the Inams Abolition Act as 'V.ralre.ady"cu11ed out from the observations made in tMa:i1lrya3t's~.y¢iase (2004) (3) KLJ 570) is to see that A' _the_ 'application attached to the iI1ElII1S are abolished by vesting of the property in the State A " the tenants would get occupancy right under V' the Inams Abolition Act and in substance, there is change of tenure and property would vest with the State absolutely free from all encumbrances and § 46 the relationship of landlord and tenant ceases and on conferrnent of occupancy right, the tenant would get the right under the Inarns AbolitionV.Act. While considering the provisions of the _ Land Reforms Act and dealing with the _ as to whether the occupancy inc favour of a member of the fa'm_ill5r_ to the benefit of all the mernl:3evrs.'_Aoi'lfVthe' and whether a civil suit"'can be and separate possessiontt in respect flof the occupancy nmmatis ":l?rgr.\ét1a:ed under the Karnataka Land C it fine Hon'ble Supreme" "Balawwa and Another [2000] 9 SCC 27.2, has obse_1'ved'~as~fo'1lows: ~ - Having'«e3:amined the provisions of the Karnataka Land Reforms Act and the aforesaid-utswo judgements of this Court, we have no doubt in our mind that the Civil _ cannot e said to be ousted of the ~v.Jiur.i'sdiction, in granting the relief sought for. is too well settled that when a Special .A Tribunal is created under a special statute 1 and the jurisdiction of the Civil Court is sought to be ousted under the said statute, it is only a respect of those reliefs which would be granted by the Special Tribunal under the special statute, the jurisdiction of the Civil Court cannot be said to be ousted. 47 8.Looking at the provisions of Section of the Karnataka Land Reforms Act an"d_fth'e,v relief which is sought for in the present_,'ea_s'e, " it is difficult to hoid that the Tribt1na1"h'ad'."*'--..' ' the jurisdiction to grant the said..,reiief».l,s'o_as to oust the jurisdictionrriofthe Civ'i1§Coi1_rt. Under Section 48--~A, the Trii;>u'na1.,can50nly_f grant the relief of declaring" the'--Q'g.c,upan"c.y"'~. right in favour offa-n applicant provided the preconditions for sanie 'are, s~atisfied, namely, that the land._waus inthe 'possession of the tenant .concerned'*on..the relevant date. That being --the p-_os.§tioii,_'i.an~d the Tribunal under the Land'Re-forrns.,Aet»..not having the jurisdiction to-.grant relief ofvgpartition, the Civ_i.l~C_ourt§, itSE,If ~ha*s'_ji~.the"j' jurisdiction to entertain._. the ?:~uit_..for T partition. The first c?'onienti'o'n ,of.fjt.h'e..learned Counsel for the appellants is'; th-ereforeggdevoid of any force. -.9. the second contention, as it appears, j_'the--.__Vd»e,cision of the learned Trial "Judge " granvting the relief of partition in respectof t'wo"houses has not been assailed. , The "p].¢;intii;f is one of the daughters of ' IinaInsab'.""Defendant 1 happens to be the ywidow of the son of Imamsab and Defendant is-.h',e husband of the other daughter of the ' Irnamsab. All these persons had a right ~ * infithe property left by Imamsab. In this View .. of the matter, the High Court was fully ' .. " justified in coming to the conclusion that the so~called order of the Land Tribunal under the Karnataka Land Reforms Act would enure to the benefit of the other members who were otherwise eligible for a share in the property in question. Therefore, we see no 48 infirmity with that conclusion so as to be interfered with by this Court." A Division Bench of this Court in Appi Belch.adt_hi_ and Others Vs. Sheshi Belchadthi and {2} KLJ 565 has observed as follows:- "18. The questions such as, the-_eX;istencej_ of f a joint family, the rights'--.o'f the ._rnernber~s" thereof, the position and" power; of the" manager, and the~v..ojr'1~ature of --the_ property acquired by them alrenot so "sijmple fgto the decided by a" sumrn'a"1yo_:enquiry. that too without theassistanc,e"*-oft trained lawyers. The joint Hindu Faniiiy jor'--,ACo.pa_rcenary is a creature of Hindu law, 'Thej'"st'atus of every Hindi'a«.._FWni§ly ..'pre.sumed be joint, joint in, ~. 'worship jj sand" estate. That p-'res_.u'mption"'-figsA "'s.tron--ger in the case of ____ _Vbr'other_s, '0nce"--the___vfaxnily is proved to be that presumptiotn continues until it is 1't':butf6LL4'ThOS€'*W'h0 allege separation must prove is.~--'adrnitted that there was a "sepa_1'ation some point of time. The . qu'estion* as to whether a particular family go retains,' its. character of jointness at a f particuladrdddftime is a difficult question for '<dec"ision. Mere severance in food and pjtivorship does not effect a separation of the ._ fainily nor separate residence by members V operates as a severance of the joint status. " We are only mentioning some of these principal features to impress upon that the decision on these questions requires a lot of brooding even by Courts of law. One couid 49 only images the difficulties of Tribunals without proper wherewithal." The same principle is reiterated Division Bench of this Court in GfurL1.vap'pa""'--, ' and Another Vs. Manjappa _Ittl.engsuf'ar1d Others, iLR 1985 (1) Kar"38.6g. It isvclear tram it the above said observations jj.rr'tade"-by:this,_f Court that effect ofg abolition -of, "tlie" relationship of landlord and tenantor .vestif_:1g of the property in tl1e'S=tate and'con_fei*--nient of occupancy right on the .tena'nt._EW'oult:l only result in therchange""of _:tenu_1ar of the" tenant as the same----.._vvo_uld §_1ot'*-.a;'ffec,t the personal inagm of the parties-.vi'Wh_en-there is a rival claim before the.Landffribunalgwith regard to the fa-:*-tuthat ithe te'nan"cyj_'~isV individual or joint fanfaily §tenancy,'_the.. 'jl--'ri'bunal is bound to decide=Vthle.. sair;'t._'Cy..1estion' While considering p_the=.ri'val;,applicatio'ns_v filed by the members of the-. I*'£o,vvever,l"When application nfor c_oi1fern1:e_nt ofloccupancy right is filed by one 7.of~the- me_rn_bers'»»o.f the family, conferrnent of their o_cc"u_plancyl"'_.right on the said applicant, would not preclude the other members of the if '~family"to_con,tend that the said tenancy is the ' joint familyutenancy and that they are entitled 'tOe.partition and separate possession of the Under the Inams Abolition Act, no 'power is given to the competent authority to >paS's a decree for partition and what is , llflrequired to be considered by the authorities is only as to whether the applicant is entitled to conferment of occupancy right as a tenant under Section 5 of the Inams Abolition Act, which is relevant for the purpose of this case to decide the question as to whether he was a permanent tenant on the date of vesting. In a 50 recent decision of this Court where there was divergent opinion between two Judges of this Court and the matter was referred to a third bench, the learned Judge has observ.ed'~._as_ follows in Sri Parashuram Kuduchakar and Others Vs. Smt. _S3hantfabaii~'.._._" . Ramachandra Kuduchakar and Othuersg». ILR' 2004 Kar 3325, after refe.rred to"t"he--.ar~el'evant if provisions of the Karrghataka . Land « "{i] The Tribunal alone has the e§_rclL1.sive jurisdiction to decidethe quest_ion-- 'whether a person is a, tenant...o"r._not of "the land in question, the _civil, "Court has no jurisdiction or 'poWe_r*to decide the same. {ii} lglf ._»_riva«l, lnfiade before Land F'.efo_rinsV 'I='1'ibuii'1aI' one 'party contending that V ____ "the, "te'nancy'*right.s___ exclusively belongs to h'im*$_e1f "i:'gind"»anoth_er"contending that the ten.anc"y- exclusively belongs to himself and a.nother'«.cont.ending that tenancy rights "belongi'n_sl to joint family and therefore all of "themfi are entitled to grant of occupancy jg rights;..the Tribunal has the jurisdiction to go ' into thellllllquestion whether tenancy rights '«.c'lai'm__ed belongs exclusively to one of the .lK.nieinber of the joint family or it belongs to '-t'hef=joint family, as it is incidental and "necessary to decide the question of grant of occupancy rights. (iii) If before grant of occupancy rights the Tribunal adjudicates the rivai claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not Si belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said findingand record a finding contrary to the one recorded. by the Tribunal in a suit for partition..." ~ " (iv) if tenancy is not disputed"~--..or:.A_1"riyal' claims by members of the joint jfaniilyfare not if of put forth agitated, after grant of A' rights by the Tribunal. 7._C'iyill'~Co1.1rt.y entertain a suit for partition in.t.respectl';ofl such property, decide*~.whether such property is a joint family property or. the separate property of the ,appl1"can.t to 'wh.oo1 the occupancy right -is ,grante'cl., and grant a decree for partit_.ion.... iiii "l{V} if c;'uestionl'o'ffltenancy belonging to -tl1evVjoirit"family._ is raised before the Land 'l'ribunal:'and.__ t'he--~ Tribunal does not decide 't1f_1e Vvsaid flquestion one way or other and leav_es~it'- toxbe decided by Civil Court; Civil pp Courtais not precluded from going into the ' said question after the tenancy rights has V =_be_e'n__ granted in favour of one of the if-«._.c'iairn_ants, while considering the relief of ' partition. the Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition". %/. 52 The Court has referred to the provisions of Sections 2{i'7) and 2 (34) of the Karnataka Land Reforms Act. which defines "joint family" and "tenant". Facts of the present case and Findinggétdi'6fij*g:--..fe§tits
Formulated:
10. Plaintiffs instituted eeitgett C)':»$.1»\zfoie_.:1bf:'i}7(3;¥1V/u2CiO5i.___ against the defendants for re1i_ef was contended in the suit thatihtheirdi' was granted and was in possession of theggpropertygh to be filed on 26-2-2005. the defendants by fiiing and contending that defendants are of the joint family and the application was filed by deceased G.Khaiee1 on behaif of the entire fainilgftand as such the suit was not maintainable.
statement was also filed contending that it _ theyiihareveoevapplicants in the proceedings before the Special 'A V""fl1f)eprt1ty Commissioner and thus with an intention to grab suit schedule property the plaintiffs have filed the suit ' 53 against the defendants who are also in joint possession. Accordingly they had sought for dismissal of the suit:
11. The consideration of an application..1.1n:derfélrder VII Rule ll[d) as held by the Hon'ble Katnala's case referred to supra; would "be-I'within:"1irnited7.__ "
jurisdiction. It must be shown _t'hatll'*s.uit is any law and conclusion that hasltoilbearrived:at Court would be with referenceyto the plaint. As held therein there lafdd'iti:onl.'jorl"subtraction. If it is found that is barred under any law Keeping in View these principles "enunvcia_teldl. Hon'ble Supreme Court it is to Abe e.:;a1ni11ed "the____fa,cts of the present case as to whether theere, is... under any law for the plaint being rejected. has fairly conceded that bar available Uehundelr Section 133 of the Land Reforms Act is conspicuously it lf_'abse"nt under the Inams Abolition Act, 1955. Thus, in the instant case it can be held that there is no bar under any of All the provisions of Inarns Abolition Act, 1955 for the suit being W/A 54 tried by a Civil Court as found in Section 133 of Karnataka {and Reforms Act.
12. The alternate plea made by the learned" for the petitioner which is to the effect that vesting of Inam land in the State; l't'he; '..po.ss.ess;,m.i'of'"thefp if tenants continue with theijn it would contend that on behalf of the family application of the defendants they also having been made Commissioner are deernecl 'p,ossTess1'on of the suit schedule property as joint tenants xxathéplaintiffs. A perusal of the Form No.7'~i:.filed befo'i°-ehthe: Tribunal dated 31----3~1984 by Late G:.yKhaleel.ywo'u1_d reveal that it was filed in the name of seen from the perusal of the records that at T_ear1ier.. of time when the Tribunal granted the A lvffoccupancy right on 19-4-1989 in favour of G.Khaleel no claim was set up by the defendants. Defendants have contended that their father i.e., Gouse Shariff was the tenant 55 and after his demise all his children continue to be in joint possession. The fact remains that occupancy rights was earlier granted in favour of G.Kha_leel. It is true that the said order came to be set aside by W.P.NO.25423/1993 by order darted 1S3%i9-vé:(}.{)§"V:and.c:it1'1e"V"*--.V matter is now pending beforef'ithelliifapeciall:"--.£)'eputy."'~. "
Commissioner for adjudicati¢;§'*--~.Vafres}:
Commissioner While ac'ij.udicatinVg=th'e_. _i1n1.)lead_ing§ application of the defendant has to the following effect in the 0«3;ljl'er:
isVrnade"_"'c'iear that the observations Iriade;h'erein-_do_vno{" influence in finding 'fact' and taking de¢is_i6n iiijme matter"
which ingeffeet ._W'ouldv'mean that as to whether the revision petitioners _are in joint possession or not is required to be dconlsicleied..Vatx.ltl*1e final stage and not, at that stage. Now coming to the decision of this Court in the Doddarnma referred to supra it has been held that conferment of occupancy rights on one of the members of 56 the family would not preclude the other members of the fainiiy to contend that said tenancy is the joint family tenancy and that they are entitled to partition andisiepaarate possession of their shares. It has also been judgment that no power is given togthe coinpeltentwlatiitiioritylx'~-- to pass a decree for partition. Howexger,-i'the_i'ssue°1fega;:,ding." joint tenancy or otherwise a llmatter to adjudicated by the Special De_puty 'C_omrnissi_on_e§r. However, this does not preclude ._fm:;n proceeding with the suit as held4the_rein""to gfoliofwingzirieifectz _ disputed or rival g ' clairrishfi? of the joint family are not agitated, after grant of occupancf rights by the Tribunal. Civil Court caniventertain a suit for partition in of such property, decide whether A property is a joint family property or g. the separate property of the applicant to 1' whom the occupancy right is granted, and we grant a decree for partition."
57
14. As held by the Honfble Supreme Court in the judgments referred to in Owners and Parties' Kamala's case supra the averrnents in th'e*-- atone should disclose as to whether there' is pdljaint be rejected . In View of the considered opinion that on of "the rnade' the plaint it discloses that 'bar fdurideyiginy law for the plaint being rejected. it point No.1 is answered, Vtlérobibition Under any law for 'Order VII Rule 11 (£1) of Code of it perusal of the order passed by the trial Court it .is't-_seen'that said order does not suffer from " V"-veithver' j;1trisdictionai****error or it suffers from any material suit being at the stage of further cross P.W.1 it would not be desirable to reject the 3"~'««___V'p1aint the basis of the averments made in the written A j's,taten'1ent and which cannot also be embarked upon by this it .C.durt. Hence, question No.2 formulated hereinabove is