Karnataka High Court
Siddappa A/F Kariyappa Pujar vs Shri. Basavaraj S/O Puttappa ... on 18 March, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION No.82216/2013 (GM-CPC)
BETWEEN:
1.SIDDAPPA
A/F KARIYAPPA PUJAR
AGE: 45 YEARS,
OCC: BUSINESS,
R/O. VIDYANAGAR,
HAVERI
2.SMT.VIDAYLAKSHMI
W/O K.HARISH
AGE: 43 YEARS,
OCC: HOUSEHOLD,
D.NO.3680/14,
`ANJALI NILAYA'
HOUSING BOARD COLONY
DAVANGARI
3.SMT.SAROJA
W/O SATISH MAJJAGI
AGE: 39 YEARS,
OCC: HOUSEHOLD,
R/O. JOG YALLAPUR,
TQ. & DIST: DHARWAD ..PETITIONERS
2
(BY SRI.N.P.VIVEKMEHTA, ADVOCATE)
AND:
1.SHRI.BASAVARAJ
S/O PUTTAPPA GORAPPANAVAR
AGE: 36 YEARS,
OCC: BUSINESS,
VIDAYNAGAR,
HAVERI
2.SMT.MALATI M BOGALI
AGE: 47 YEARS,
OCC: HOUSEHOLD,
R/O.VIDAY NAGAR,
HAVERI
3.SMT.ANITA
W/O SIDDALINGAPPA
HONNAPANAVAR
AGE: 41 YEARS,
OCC: HOUSEHOLD,
R/O. NEAR GURUBHAVAN,
RAJENDRA NAGAR,
HAVERI
4.TATA MOTORS
BELLAD ENGINEERINGS,
VIDYA NAGAR, P.B. ROAD,
HAVERI,
BY ITS MANAGER.
5.MAHALAKSHMI STEEL CENTRE
PROP.BABULAL CHOWADRI &
BROTHERS
R/O. VIDYANAGAR,
P.B.ROAD,
3
HAVERI
6.HINDUSTAN AUTO WORKS
PROP.SALIM,
R/O.P.B.ROAD, HAVERI
7.K.BABU CEMENT WORKS
R/O.P.B.ROAD, HAVERI
BY ITS MANAGER.
8.BABAJAN TIRE WORKS
R/O.P.B.ROAD, HAVERI,
BY ITS MANAGER.
9.KHADRI AUTO WORKS
PROP.ILAYATH KHADRI
R/O.P.B.ROAD,
HAVERI ..RESPONDENTS
(BY SRI.SHRIKANT T. PATIL, ADVOCATE FOR C/R1, R-
2 TO R-5, R-7, R-8 ARE SERVED, NOTICE TO R-6 & R-
9 DISPENSED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO SET ASIDE ORDER OF THE COURT OF SENIOR
CIVIL JUDGE, HAVERI DATED:12/08/2013 PASSED
ON I.A.NO.17 IN O.S.NO.14/2008 VIDE ANNEXURE-E
AND ALLOW THE I.A.NO.17.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
4
ORDER
Heard learned advocates appearing for the parties. Perused the order impugned in this writ petition whereunder trial court has dismissed I.A.17 filed by first defendant seeking stay of the entire suit by invoking section 132 and 133 of the Karnataka Land Reforms Act, 1961.
2. It is the contention of Sri.N.P.Vivekmehta, learned counsel appearing for petitioners that Sy.No.253 measuring 2 acres 37 guntas which has been described as item No.2(b) in the plaint schedule is the self acquired property of deceased applicant Sri.Kariyappa namely adopted father of first defendant and who is also his grandfather and said Sri.Kariyappa had applied for grant of occupancy rights and same had been granted which was set aside by this court and matter has now been remanded back to the Land Tribunal for being adjudicated on merits and during the 5 pendency of the said proceedings before the Land Tribunal Sri.Kariyappa expired and wife and daughter of Sri.Kariyappa have filed an application to come on record in those proceedings apart from first defendant himself. He would contend as to whether said land is a tenanted land or not is to be adjudicated by Land Tribunal and issue regarding tenancy cannot be gone into by a Civil Court on account of bar contained under section 132 of the Karnataka Land Reforms Act and Civil court should not examine any issue regarding tenancy in respect of the said land and it has to stay the suit under section 133 of Karnataka Land Reforms Act. He submits an application was filed for stay of proceedings before Civil Court and trial court has erroneously rejected the said application. Hence he prays for allowing the writ petition by setting aside the order passed by trial court and prays for allowing I.A.17. In support of his submission he has relied upon the Judgment of Hon'ble Apex Court in the case of 6 Ishwaragouda and others Vs Mallikarjun Gowda and others reported in (2009) 1 SCC 626.
3. Per contra Sri.Srikant T. Patil, learned counsel appearing for caveator/R-1 would support the order passed by trial court and contends that after grant of occupancy rights by tribunal it is for the Civil Court to examine as to the nature of right claimed by parties and as such Civil Court would be fully competent to adjudicate as to whether the said property in question would enure to the benefit of joint family or it belonged to deceased Sri.Kariyappa alone. Hence, he would support the order passed by trial court and in support of his submission he has relied upon the following two Judgments:
1. ILR 2000 Karnataka 675 - Smt.Neelavva Vs Rudrayya
2. 2003 (4)KCCR 2642 - Montu Dalmeda Vs Poul Dalmeda 7
4. Perusal of the pleadings would indicate that plaintiff has sought for partition and separate possession of properties described in paragraphs 2(a) to 2(f) and one of the items of property which is the bone of contention in this writ petition is described as item No.2(b) which measures 2 acres 37 guntas and is situated in Sy.No.253. It is an undisputed fact that deceased Sri.Kariyappa had filed an application seeking for grant of occupancy rights in respect of said land and it was initially granted in his favour. If the matter had reached finality then the issue relating to the said property namely as to whether it enures to the benefit of individual or joint family would have been in the domain of Civil Court as rightly contended by Sri.Srikant T.Patil. However, in the instant case it can be noticed the issue is at large namely the issue regarding tenancy has been kept open and this court while setting aside the order of granting occupancy rights in favour of Sri.Kariyappa 8 (first defendant's adopted father) has remanded the matter back to the Land Tribunal for fresh adjudication. During the pendency of the proceedings before Land Tribunal Sri.Kariyappa expired. Hence, his wife, daughters Smt.Neelamma and Smt.Renuka have come on record as legal heirs of deceased Sri.Kariyappa apart from first defendant(writ petitioner) who is claiming to be adopted son of deceased Sri.Kariyappa. The issue as to whether it is a tenanted land is still at large.
5. Under section 132 of the Karnataka Land Reforms Act, 1961 no Civil court shall have jurisdiction to settle, decide or deal with the question which is by or under the said Act is required to be settled, decided or dealt by the Land Tribunal. Section 133 of the Karnataka Land Reforms Act, 1961 would indicate that when such land which is the subject matter of adjudication by a Land Tribunal then the course left open to the Civil Court is to stay the proceedings. Infact 9 under identical circumstances issue as to whether individual is a tenant or joint family is the tenant of the property came up for consideration before the Apex Court in Ishwaragouda and others Vs Mallikarjun Gowda and others reported in (2009) 1 SCC 626 the question that came to be formulated by their Lordships at paragraph 11 reads as under:
"Whether the jurisdiction of the Civil Court is ousted in view of Section 133 of the Karnataka Land Reforms Act to decide whether an individual is a tenant or the joint family is the tenant of the disputed land the same being within the exclusive jurisdiction of the Land Tribunal?".
6. After considering the contentions and also noticing its earlier Judgment in Mudakappa Vs Rudrappa and others reported in (1994)2 SCC 57 it was held as under:
"7. It is seen that the words `tenant', `the Tribunal' and `the joint family' have been 10 defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 133 and not by the civil court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Article 227, as the case may be. But it cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the civil court. It is clear from Section 48-A(5) and Section 112-B(bbb) read with Section 133, that the decision of the Tribunal is final under Section 133 (iii). The civil court has power only to decide other 11 issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court".
7. In the light of the law laid down by Hon'ble Apex Court when the facts on hand are examined it would clearly indicate that the issue regarding the land in question being tenanted land or not or whether it enures to the benefit of joint family or not is a issue which has not been adjudicated or decided by Land Tribunal. It is still at the stage of adjudication. In that view of the matter I am of the considered view that section 133 of the Karnataka Land Reforms Act, 1961 squarely applies and as such trial court cannot examine the said issue with regard to said survey number which is described as item No.2(b) of the plaint schedule and which is under consideration by tribunal. 12
8. Insofar as Judgment relied upon by learned counsel appearing for respondent I am of the considered view that it would not come to his rescue inasmuch as in the said Judgment it was noticed by Co-ordinate Bench of this court that question as to whether the question of right claimed by defendant therein by virtue of grant made by Land Tribunal is one that accrued to the benefit of joint family or not was held to be adjudicated by a Civil Court in the background of the fact that Land Tribunal had already adjudicated the said issue regarding tenancy. Issue in the said case was whether such right determined by Land tribunal would enure to the joint family or not was a issue at large. Hence, Co-ordinate Bench of this court held in that case that order of remand made by trial court to the Land Tribunal to adjudicate said issue was unsustainable. However, as already noticed herein above this court is not faced with such a situation. The issue regarding tenancy is itself at large and not yet decided by the Land 13 Tribunal. Hence, Civil Court's jurisdiction is ousted. However prayer of the writ petitioner/tenant that entire suit requires to be stayed cannot be accepted or in other words I.A.17 requires to be allowed in part only.
For the reasons aforestated following order is passed:
ORDER
1. Writ Petition is hereby allowed in part.
2. Order passed by trial court dated 12.08.2013 vide Annexure-E insofar as dismissing I.A.17 filed under section 132 and 133 of the Karnataka Land Reforms Act, 1961 is hereby allowed in part.
3. Proceedings before the trial court insofar as adjudication relates to item No.2(b) of the plaint schedule stands stayed.
4. In view of the fact that suit is pending from 2008 and it is at the stage of trial, trial court is hereby directed 14 to expeditiously dispose of the suit at any rate within a period of one year from date of receipt of certified copy of this order and also by keeping in mind order XVII of C.P.C and impose cost as provided there under in the event of either of the parties not co-
operating with trial court in expeditious disposal of the suit.
Ordered accordingly.
SD/-
JUDGE SBN