Karnataka High Court
Bukka Suvarna vs Akkani Poojarthi And Ors. on 5 July, 2001
Equivalent citations: ILR2002KAR851, 2002(1)KARLJ126
Author: N. Kumar
Bench: N. Kumar
ORDER
The Court
1. The petitioner has challenged in this revision petition the order dated 6th December, 2000 on I.A. No. 10 filed under Sections 9, 10, 94(e) and 151 of the CPC read with Sections 77-A, 132 and 133 of the Karnataka Land Reforms Act, 1961 seeking to stay the further proceedings in original suit in O.S. No. 450 of 1997 pending on the file of the learned II Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Udupi. The said application has been allowed and aggrieved by the same, the plaintiff has preferred this revision petition before this Court.
2. The plaintiff has filed the original suit in O.S. No. 450 of 1997 against the respondents herein for possession of the suit schedule property. The suit schedule property is a building consisting of shop situated in S. No. 152/9 of Udyavara Village, Udupi Taluk. The defendants have filed the written statement and denied the claim of the plaintiff. The relevant portion of the written statement, which is relevant for deciding . the controversy between the parties, reads as hereunder:
"That this defendant admits that late Kanthappa Poojary was a monthly building tenant under the plaintiff on a rent of Rs. 30/-per month. The leasehold comprises of two shop rooms (not one), two rooms behind the said two shop rooms and one more room behind the said two rooms. There is no 'Muchige' or ceiling for the rooms behind the shop rooms. The three rooms referred to above, behind the shop rooms are used by the defendants for their residential purpose. The two rooms constituting portion of the residential portion were constructed by Kanthappa Poojary with the consent of the plaintiff at a cost of about Rs. 10,000.00 at that time. This was about 32 years ago. One more room behind the two rooms (residential portion) was constructed by the defendants about 17 years back at a cost of about Rs. 5,000.00. The said room has got tin sheet roof. The said construction again was with the consent of the plaintiff. Electricity supply/connection to the premises was also obtained by the 2nd defendant at his own cost".
3. It is thereafter the above application in I.A. No. 10 was filed by the defendants contending that Akkani Poojarthi, the first defendant has filed an application in Form 7-A before the Deputy Commissioner, Udupi, for being registered as an occupant in respect of the plaint survey number, where the plaint premises is situated and also stated that the subject-matter of the dispute for adjudication before the Deputy Commissioner, Udupi District and in the above suit is common and the party to the proceedings also one and the same and therefore all further proceedings in the suit has to be stayed pending disposal of the application in Form 7-A before the Deputy Commissioner, Udupi. The plaintiff opposed the said application by filing a detailed statement of objections. The learned Trial Judge after considering the rival contentions and also after considering the several judgments relied on by both the parties has held that though Section 133 of the Karnataka Land Reforms Act is not applicable to the facts of the case, Section 10 of the CPC is applicable and therefore he has stayed all further proceedings in the suit pending disposal of the tenancy matter pending before the Deputy Commissioner, Udupi District. Aggrieved by the said order, the plaintiff has filed this revision petition.
4. Learned Counsel for the petitioner submitted that a bare reading of the plaint discloses that the subject-matter of the suit is not a land as defined under the Karnataka Land Reforms Act and therefore the Karnataka Land Reforms Act has no application to the subject-matter of the suit. He also pointed out that in the written statement filed by the defendants, they have categorically admitted that they are in possession of the suit schedule property, which is a residential house consists of two shops. Therefore, a plea of tenancy under the Karnataka Land Reforms Act is not available to them at all. The defendants have not stated the said plea in their written statement. It is only in the application for the first time such plea is taken with the sole intention of dragging the proceedings endlessly. The application lacks bow fides and however the Court below ignoring these admitted facts has stayed the further proceedings in the suit.
5. Learned Counsel for the respondents submitted that though it is admitted in their written statement that they are in possession of shops and residential building, around the said shops and residential building lies on vacant land, which is an agricultural land and a Form 7-A has been filed before the Deputy Commissioner for registration of occupancy right in respect of the said land in view of Section 133 of the Karnataka Land Reforms Act. He submitted that the Civil Court has no jurisdiction to decide the said issue. In that view of the matter, the impugned order is legal and valid and does not call for interference.
6. In view of the rival contentions, it is necessary to find out whether merely because an application in Form 7-A is filed before the Deputy Commissioner, the Civil Court can blindly stay the proceedings without even going to the claim of the plaintiff or without satisfying itself whether there is any prima facie case of tenancy made out before staying the proceedings. In this context, it is useful to refer a decision in the case of Thomas Antony v Varkey Varkey , where it has been held as hereunder:
". . . . While making a reference to the Tribunal mandatory the legislature cannot be said to have intended that even a patently frivolous, mala fide and illegal plea of tenancy taken by a party merely to delay the proceeding and to remain in possession of the property is also to be referred to the Tribunal. The statutory provisions, in our considered view, envisage a case where a bona fide and legally sustainable plea of tenancy is taken by the party, that question shall be referred to the Tribunal....".
Again the Supreme Court has held as hereunder:
"We reiterate that a Civil Court is not obliged to make a reference to the Land Tribunal as per Section 125(3) of the Act merely because a party has raised a contention that he is a tenant or a kudikidappukaran, and the Civil Court has power to consider whether such contention has been raised without any legal foundation or with only the intention to gain time by protracting the litigation. If the Civil Court is of opinion that there is not even a remote possibility of the plea being upheld the Court can proceed to dispose of the suit without resorting to the circumlocuted route via the Land Tribunal".
7. In view of the above decision of the Supreme Court on the point that it was obligatory on the part of the Court to Find out what exactly the plea of the defendants as set out in the written statement. A reading of the written statement discloses that the plea on tenancy under the provisions of the Karnataka Land Reforms Act is not at all pleaded. On the contrary, the specific case pleaded is that they are in occupation of the suit schedule property, which consists of two shops and several rooms behind the said shops, which they have constructed at considerable cost and for which they have taken electrical connection. The aforesaid categorical statement in the written statement makes it clear that the suit schedule property which is the subject-matter of the suit is not a land as defined under the provisions of the Karnataka Land Reforms Act, but it is a building. If that is so, the Trial Court has blindly ignored this undisputed fact and has blindly stayed the further proceedings solely on the ground that the defendants have filed an application in Form 7-A before the Deputy Commissioner. Therefore, the order passed by the Court below cannot be sustained as it is contrary to law. In that view of the matter, the impugned order cannot be sustained. Accordingly, it is set aside. Hence, I pass the following:
ORDER
(i) The CRP is allowed.
(ii) The impugned order is set aside. (iii) The Court shall proceed with the suit on its merits without waiting for any decision of the Special Deputy Commissioner on the application in Form 7-A filed by the respondents before him.