Karnataka High Court
A R Anand vs Kodira Thara Machaiah on 15 November, 2017
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2017
BEFORE
THE HON' BLE MRS JUSTICE B.V. NAGARATHNA
R.S.A. NO.464 OF 2017
BETWEEN:
A.R. ANAND
S/O LATE RAMACHAR
74 YEARS
R/AT AMBATTY VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT - 571 218
... APPELLANT
(BY SRI.KARUMBAIAH T.A., ADV.)
AND:
1. KODIRA THARA MACHAIAH
W/O LATE K.M. MACHAIAH
66 YEARS
R/AT KASTHURI ESTATE
PULIYERI VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT - 571 218
2. KODIRA M. BHARATH BHEEMAIAH
S/O LATE K.M. MACHAIAH
43 YEARS
R/AT KASTHURI ESTATE
PULIYERI VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT - 571 218
2
3. CHENDRIMADA SUSHEELA
W/O C.G. SUBRAMANI
69 YEARS
R/AT 100/82, 'D' CROSS, II MAIN
VIJAYANAGARA I STAGE
MYSORE - 10
... RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE ORDER DATED 31.01.2017 PASSED ON IA
NO.1 IN RA NO.2/2016 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, KODAGU - MADIKERI,
SITTING AT VIRAJPET, DISMISSING THE NO.1 FILED
UNDER SECTION 5 OF LIMITATION ACT AND
CONSEQUENTLY DISMISSING THE APPEAL FILED
AGAINST THE ORDER DATED 13.04.2015 PASSED ON IA
NO.VII IN OS NO.102/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE, VIRAJPET ALLOWING IA VII FILED UNDER
ORDER 7 RULE 11 OF CPC., FOR REJECTION OF PLAINT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appellant was the plaintiff in O.S. No.102/2013. He has assailed order dated 31.01.2017 passed by the II Additional District and Sessions Judge, Kodagu, Madikeri sitting at Virajpet, on the application filed under Section 5 of the Limitation Act, 1963. By that order, the application seeking condonation of delay 3 of 450 days in filing the appeal was dismissed. Consequently, R.A.No.2/2016 was also dismissed.
2. The appeal, said R.A.No.2/2016 was filed assailing the order passed on an application filed by the respondents - defendants in the suit under Order VII Rule 11 of Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint on the premise that the suit was not maintainable and that the Civil Court has no jurisdiction to entertain the suit, having regard to the Sections 112(A) and (B), 132, and 133 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as "the Act") for the sake of brevity. By order dated 13.04.2015, the Senior Civil Judge, JMFC, Virajpet allowed the said application and being aggrieved by that order RA No.2/2016 was preferred by the appellant herein.
3. I have heard learned counsel for the appellant - plaintiff. He submits that the appellant herein had filed Form No.7 in respect of three survey 4 numbers namely Sy.Nos.69, 70 and 72 of the Ambatty village, Virajpet taluk. That the land Tribunal had granted occupancy right in respect of Sy.Nos.70 and 72, but in respect of Sy.No.69, the Land Tribunal had rejected his application on the premise that the said land was not an agricultural land. The said order of the land Tribunal was assailed before this Court and thereafter the matter was also considered by the Hon'ble Supreme Court. That the order of the Land Tribunal declining to grant the occupancy rights in respect of Sy.No.69 had attained finality. Learned counsel further submits that in the circumstances, the appellant filed the suit O.S. No.102/2013 seeking a declaration that he is the tenant of Sy.No.69 and that the Trial Court ought to have considered the suit on merits instead of rejecting the plaint. Learned counsel for the appellant further submits that on an erroneous impression, the appellant herein preferred miscellaneous appeal before the Appellate Court rather than a regular appeal 5 assailing the order passed under Order VII Rule 11 of CPC., and the said miscellaneous appeal being dismissed on the ground of maintainability, the appellant preferred R.A.No.2/2016. He submitted that the delay of 450 days in filing the regular appeal was due to bonafide and unintentional reasons, on account of prosecuting the appeal before the wrong forum and therefore, the Appellate Court ought to have condoned the delay in filing the regular appeal. The dismissal of the application seeking condonation of delay resulting in dismissal of the regular appeal has caused prejudice to the appellant. Appellant's counsel therefore, submits that this Court may intervene in the matter as substantial questions of law would arise in the appeal. He has also drawn my attention to the fact that the First Appellate Court has dismissed the application filed under Section 5 of the Limitation Act, 1963 with costs of Rs.25,000/- which was wholly unwarranted and is exorbitant.
6
4. Having heard learned counsel for the appellant and on perusal of the material on record, it is noted that the appellant sought the following reliefs in the suit;
"a) for declaration that the plaintiff is a tenant who has been granted Occupancy right in respect of the wet lands Sy.No.70 and 72 of Ambatty Village and has acquired the possessor title in respect of the schedule property by continuous and peaceful possession as a matter of right since 1967.
b) Permanent injunction against the defendants, their men, agents and all others connected with them directly or indirectly from trespassing upon or in anyway disturbing the possession of the schedule property by the plaintiff.
c) Court costs and such other reliefs as the Court deems fit in the circumstances of the case."7
5. The relief sought by the appellant in the suit is to declare him to be a tenant, who has been granted occupancy rights in respect of wet land in Sy.Nos.70 and 72. The said suit was not maintainable having regard to the fact that the Land Tribunal has already granted occupancy rights in respect of the Sy.Nos.70 and 72 of Ambatty village. Therefore, it was unnecessary for the appellant to seek a declaration from the Trial Court to the effect that he has been tenant who was granted the occupancy rights in respect of Sy.Nos.70 and 72.
6. The maintainability of the suit was questioned by the defendants by filing an application under Order VII Rule 11(a) of CPC., which was allowed by order dated 13.04.2015, having regard to the Sections 112(A) and (B), 132 and 133 of the Act.
7. Learned counsel for the appellant submits that the land Tribunal did not grant occupancy rights in 8 respect of Sy.No.69 and that the land in Sy.No.69 is bane land attached to Sy.Nos.70 and 72 in respect of which occupancy rights were granted. But, the prayer sought by the appellant is to declare him to be the tenant in respect of Sy.Nos.70 and 72. Such a declaration by the Civil Court is wholly unwarranted, having regard to the fact that the Land Tribunal has already granted occupancy rights to the appellant in respect of the said Survey numbers.
8. This Court in the case of Mudakappa Vs. Rudrappa and others reported in AIR 1978 Kar 136 has held that such a suit is not maintainable under Section 133 of the Act. The said decision has been upheld by the Hon'ble Supreme Court in the case of Mudakappa Vs. Rudrappa and others reported in AIR 1994 SC 1190. In this regard, reliance could be placed on another decision of this Court (Dharwad Bench) in the case of G.Gopala Krishna Vs. 9 K.Basheer, reported in ILR 2016 Kar 3906. Therefore, the Trial Court rightly rejected the plaint under Order VII Rule 11(a) of CPC. Although the First Appellate Court has dismissed the appeal consequent to dismissal of I.A.No.1 filed under Section 5 of the Limitation Act, 1963, seeking condonation of delay of 450 days in filing the appeal. Nevertheless, I find that the suit not being maintainable, in the first instance, the First Appellate Court could not have entertained the appeal on the ground of maintainability of the suit. Therefore, I find that no substantial question of law would arise in this second appeal although the First Appellate Court dismissed the regular appeal after dismissing the application seeking condonation of delay of 450 days in filing the appeal.
9. It is reiterated that the appellant herein had filed the suit which was not maintainable by dragging the defendants before the Trial Court and thereafter by 10 filing miscellaneous appeal and subsequently, regular appeal and keeping in mind the proceedings that has been initiated one or the other by the appellant herein, the First Appellate Court dismissed the appeal by awarding costs of Rs.25,000/- payable to the respondents. I do not think that the award of costs to the respondents could be considered to be unreasonable or arbitrary. As the respondents have been unnecessarily dragged to litigation before the three Courts, I do not think it proper to direct them to appear before this Court only for the purpose of modifying the award of costs to them. Such a thing would be not in the interest of justice.
In the circumstances, the appeal is dismissed. Consequently, the applications I.A.Nos.1/2017 and 3/2017 are also dismissed.
Sd/-
JUDGE GH