Karnataka High Court
B H Venkataswamy vs Sri Swamy Jogi on 8 August, 2022
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MSA No. 10 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
MISCELLANEOUS SECOND APPEAL NO. 10 OF 2017 (RO)
BETWEEN:
B H VENKATASWAMY
SINCE DEAD BY LRS
1. HONNAMMA
AGED ABOUT 58 YEARS
W/O LATE SRI B H VENKATASWAMY
2. VIJAYAMMA
AGED ABOUT 53 YEARS
W/O LATE SRI B H VENKATASWAMY
3. MANJULA
AGED ABOUT 41 YEARS
D/O LATE SRI B H VENKATASWAMY
4. JAGADEEHA
AGED ABOUT 30 YEARS
Digitally signed by S/O LATE SRI B H VENKATASWAMY
LAKSHMINARAYAN N
Location: High Court
of Karnataka
5. B V ROOPA
AGED ABOUT 36 YEARS
D/O LATE SRI B H VENKATASWAMY
W/O SHVIAKUMAR
RESIDENT OF NO.8/4
12TH CROSS, MAGADI ROAD
BENGALURU-560 023
6. MANI
AGED ABOUT 33 YEARS
D/O LATE SRI B H VENKATASWAMY
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MSA No. 10 of 2017
7. ANNAPOORNA
AGED ABOUT 32 YEARS
D/O LATE SRI B H VENKATASWAMY
8. BHANUPRAKASH
AGED ABOUT 37 YEARS
S/O LATE SRI B H VENKATASWAMY
9. MAMATHA
AGED ABOUT 35 YEARS
D/O LATE SRI B H VENKATASWAMY
10. SUDHEER
AGED ABOUT 33 YEARS
S/O LATE SRI B H VENKATASWAMY
11. BHARATH
AGED ABOUT 31 YEARS
S/O LATE SRI B H VENKATASWAMY
12. RASHMI
AGED ABOUT 27 YEARS
D/O LATE SRI B H VENKATASWAMY
ALL ARE RESIDENT OF
CHANNAPATNA RAILWAY GATE
HASSAN -573 201
HASSAN DISTRICT.
...APPELLANTS
(BY SRI C R GOPALASWAMY, SENIOR COUNSEL
FOR SRI CHETHAN B., ADVOCATE)
AND:
1. SRI SWAMY JOGI
AGED ABOUT 48 YEARS
S/O LATE SRI YELLAPPA JOGI
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MSA No. 10 of 2017
RESIDENT OF BESTHIHALLI
JANATHA COLONY, AMBUGA POST
SHANTHIGRAMA HOBLI
HASSAN TALUK-573 201
HASSAN DISTRICT.
2. SRI K P KANTHRAJU
MAJOR
S/O LATE SRI K PUTTARAJU
R/O KALLARE (HULASINAHALLI), K H HOBLI
ALUR TALUK-573 201
HASSAN DISTRICT.
...RESPONDENTS
(BY SRI. D R RAVISHANKAR, SENIOR COUNSEL FOR
SRI PRATHEEP K C., ADVOCATE FOR R1;
SRI BHARGAV G, ADVOCATE FOR R2)
THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.03.2016
PASSED IN RA.NO.85/2013 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND J.M.F.C, HASSAN, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 09.04.2013 PASSED IN OS.NO.399/2012 ON THE FILE OF
THE III ADDITIONAL CIVIL JUDGE AND JMFC., HASSAN,
ALLOWING THE IA.NO.3 FILED UNDER ORDER 7 RULE 11 OF
CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
JUDGMENT
This Miscellaneous Second Appeal is filed by the legal representatives of defendant No.1 challenging the judgment and decree dated 17th March, 2016 passed in Regular Appeal No.85 of 2013 by the II Additional Senior Civil Judge and JMFC, Hassan, -4- MSA No. 10 of 2017 setting aside the judgment and decree dated 09th April, 2013 passed in OS No.399 of 2012 on the file of the III Additional Civil Judge and JMFC, Hassan, allowing IA.III filed by the defendant under Order VII Rule 11 of Code of Civil Procedure.
2. For the sake of convenience, the parties in this appeal are referred to with their status and rank before the trial Court.
3. The plaintiff has filed suit in OS No.399 of 2012 seeking relief of specific performance of agreement dated 04th October, 1989. In the said suit, defendant entered appearance and filed IA.III under Order VII Rule 11 of Code of Civil Procedure seeking rejection of plaint. The said application was contested by the plaintiff by filing objection. The trial Court, after considering the material on record, by order dated 09th April, 2013 allowed the application IA.III, consequently, rejected the plaint. Being aggrieved by the same, the plaintiff has preferred Regular Appeal No.85 of 2013 on the file of the II Additional Senior Civil Judge and JMFC, Hassan and the said appeal was contested by the legal representatives of the defendants. The First Appellate Court, after considering the material on record, by its judgment and decree dated 17th March, 2016, set aside the order dated 09th April, 2013 in Original Suit No.399 of 2012 and restored the -5- MSA No. 10 of 2017 suit on its file and further directed the trial Court to dispose the suit after framing necessary issues and providing opportunity to both the parties. Feeling aggrieved by the judgment and decree dated 17th March, 2016 in Regular Appeal No.85 of 2013, the legal representatives of the defendant No.1 have presented this Miscellaneous Second Appeal.
4. Heard Sri C.R. Gopalaswamy, learned Senior Counsel on behalf of Sri Chethan B, learned counsel appearing for the appellant and Sri D.R. Ravishankar, learned Senior counsel appearing for Sri Pratheep K.C. for the respondent No.1 and Sri Bhargav G., learned counsel appearing for respondent No.2.
5. Sri C.R. Gopalaswamy, learned Senior Counsel appearing for the appellant contended that since the agreement dated 04th October, 1989 is a void document in view of the provision contained under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, the trial Court rightly rejected the plaint and in that view of the matter, interference made by the First Appellate Court restoring the suit on its file is incorrect and the same requires to be interfered with in this appeal.
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6. Per contra Sri D.R. Ravishankar, learned Senior counsel appearing for the respondent No.1 invited the attention of the Court to the relevant portion of the sale agreement dated 04th October, 1989 and submitted that the said clause providing for accruing right to the parties, is a contingent agreement and as such, in view of the law declared by the Division Bench of this Court in the case of SMT. S. GOWRAMMA v. MR. N. NARANASWAMY AND OTHERS made in Regular First Appeal NO.396 of 2018 decided on 13th January, 2020, the impugned judgment and decree dated 17th March, 2016 passed by the First Appellate Court is just and proper and does not call for interference in this appeal. The learned Senior Counsel also invited the attention of the Court to the judgment of the Division Bench of this Court in the case of K.C. VIJAYARAGHAVA REDDY v. GOPALAPPA made in Regular First Appeal No.1766 of 2013 decided on 30th October, 2015 and argued that in view of the permission granted by the Assistant Commissioner to the grantee to alienate the schedule land, the suit for specific performance is maintainable and as such, he argued that the trial Court had committed an error in rejecting the plaint. Inviting the attention of the Court to the judgment of this Court in the case of D.B. THAGARAJ v. SRI JAYAPPA AND ANOTHER -7- MSA No. 10 of 2017 reported in ILR 2020 KAR. 4723 and by referring to paragraphs 24 and 25 of the judgment, the learned Senior Counsel argued that the judgment and decree passed by the First Appellate Court relegating to the parties to adduce evidence before the trial Court is just and proper and as such, no interference is called for in this appeal.
7. Having heard the learned counsel appearing for the parties I have carefully considered the finding recorded by the trial Court while rejecting the plaint, by allowing IA.III. In this regard, I have carefully considered the relevant clause which provides for execution of the sale deed pursuant to the agreement of sale dated 04th October, 1989, which reads as under:
"¸ÀzÀj C£ÀĸÀÆa ¸ÀévÀÄÛ RÄ¶Ì d«ÄãÁVzÀÄÝ £À£Àß ¸ÀéAiÀiÁfðvÀªÁzÀ d«ÄãÁVgÀÄvÀÛzÉ ªÀÄvÀÄÛ ¸ÀzÀj d«ÄãÀÄ £À£ÀUÉ zÀgÀSÁ¸ÀÄÛ ªÀÄÆ®PÀ ªÀÄAdÆgÁVgÀÄvÀÛzÉ. ¸ÀzÀjà d«ÄãÀÄ vÀÄAqÀÄ ¨sÀÆ«Ä PÁ¬ÄzÉUÀ£ÀéAiÀÄPÉÆ̼À¥ÀqÀĪÀÅzÀjAzÀ, £ÉÆÃAzÁ¬Ät C¢üPÁjUÀ¼ÀªÀgÀ ªÀÄÄAzÉ ªÉÄîÌAqÀ ¸Áé«Ä eÉÆÃVAiÀĪÀjUÉ PÁ£ÀÆ£ÀÄ jÃvÁå £ÉÆÃAzÁ¬Ät ªÀiÁr¹PÉÆqÀ®Ä ¸ÀzÀj d«Ää£À £ÉÆÃAzÁ¬ÄtÂAiÀÄ §UÉÎ PÁ£ÀƤ£À «Äw ¸Àr®ªÁzÀ £ÀAvÀgÀ £Á£ÀÄ ¸ÀzÀj C£ÀĸÀÆa ¸ÀévÀÛ£ÀÄß ªÉÄîÌAqÀ ¤ªÀÄUÉ PÀæªÀĪÁzÀ PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß -8- MSA No. 10 of 2017 §gɹ, G¥À£ÉÆÃzÀuÁ¢üPÁjUÀ¼ÀªÀgÀ gÀÆ§Ä gÀÆ§Ä £ÉÆÃAzÁ¬Ät ªÀiÁr¹PÉÆqÀ®Ä §zÀÞ£ÁVgÀÄvÉÛãÉ. F §UÉÎ ¸ÀzÀjà d«Ää£À ªÉÄÃ¯É AiÀiÁªÀÅzÉà jÃwAiÀÄ vÀAmÉ vÀPÀgÁgÀÄUÀ®Ä §AzÀ°è £Á£Éà £À£Àß ¸ÀéAvÀ Rað¤AzÀ §UɺÀj¹PÉÆqÀ®Ä §zÀÞ£ÁVgÀÄvÉÛãÉ. ¸ÀzÀjà d«ÄãÀÄ £À£Àß ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°èzÀÄÝ, FªÀgÉUÉ AiÀiÁªÀÅzÉà jÃwAiÀÄ, PÀæAiÀÄ, DzsÁgÀ ¨sÉÆÃUÀå ªÀUÉÊgÉ ªÀiÁrPÉÆnÖgÀĪÀÅ¢¯Áè. ¸ÀzÀjà d«ÄãÀ£ÀÄß F ¢ªÀ¸À £Á£ÀÄ ¤ªÀÄä ¸Áé¢üãÀPÉÌ ªÀ»¹PÉÆnÖgÀÄvÉÛãÉ. E£ÀÄß ªÀÄÄAzÉ ¸ÀzÀjà d«Ää£À §UÉÎ ¸ÀA§AzsÀ¥ÀlÖ E¯ÁSÉAiÀÄ°è PÀAzÁAiÀÄ ªÀUÉÊgÉ ±ÀÄ®Ì ºÁUÀÆ vÉjUÉUÀ¼À£ÀÄß ¸ÀeÁ ¤ÃªÉà ¥Á«Û ªÀiÁrPÉƼÀîvÀPÀÌzÀÄÝ. ºÁUÀÆ ¸ÀzÀjà d«ÄãÀ£ÀÄß ¤ÃªÀÅUÀ¼ÀÄ ¤ªÀÄä ªÀA±À¥ÁgÀA¥ÀgÀåªÁV ¸ÀÄR¢AzÀ fÃvÀgÀÄ ¥ÁµÁuÁ¢ü ªÀUÉÊgÉUÀ¼À£ÀÄß C£ÀĨsÀ«¹PÉÆAqÀÄ ºÉÆÃUÀvÀPÀÌzÀÄÝ, JAzÀÄ £À£Àß DvÀä ¸ÀAvÉÆõÀ¢AzÀ §gɹPÉÆlÖ d«Ää£À PÀæAiÀÄ M¥ÀàAzÀzÀ PÀgÁgÀÄ ¥ÀvÀæ ¸À»."
(emphasis supplied)
8. In this regard, I have carefully applied my mind with regard to the impugned order passed on IA.III. Undisputably, issues have not been framed by the trial Court while considering IA.III. It is also well-settled principle in law, in a catena of decisions, that, while considering the application filed by the defendant under Order VII Rule 11 of Code of Civil Procedure, it is the duty of the Court to look into the averments made in the plaint alone and should not be disturbed or guided by the -9- MSA No. 10 of 2017 averments made in the defence statement. Undisptuably, in the case on hand, an agreement of sale has been entered into pertaining to the land granted under PTCL Act. During the interregnum, the agreement of sale dated 04th October, 1989 has been entered into between the parties. The clause in the agreement which provides for execution of sale deed by the defendant in favour of plaintiff, is only after the prior permission from the Government. It is also specifically stated in the agreement that the possession has been given to the defendant. In this regard, it is useful to deduce the dictum of this Court in the case of SMT. S. GOWRAMMA (supra), wherein at paragraph 10 of the judgment, it is observed thus:
"10. The fact that the plaintiff had filed the suit seeking the aforesaid reliefs in respect of the suit schedule property is not in dispute. As already mentioned, learned counsel for the appellant - plaintiff has drawn our attention to the contents of the plaint and to the cause of action which had arisen for the plaintiff to file the suit seeking a declaratory as well as consequential relief of injunction. It is also noted that the defendants who claim to be grantees of the suit schedule land have not approached the Assistant Commissioner seeking any relief under the provisions of the PTCL Act. On the other hand, it is the plaintiff herein, who had the benefit of a General Power of Attorney being executed in respect of the land in
- 10 -MSA No. 10 of 2017
question in his favour by the defendants, under which, possession of the land was also given to him and which General Power of Attorney was later revoked, gave a cause of action to the plaintiff to seek cancellation, revocation and validation of the General Power of Attorney as well as the consequential relief of permanent injunction. There is no remedy available to an alienee, transferee or a beneficiary of granted land under the provisions of the PTCL Act. The PTCL Act is an enactment in the realm of social justice, so as to prevent the grant of land made in favour of Scheduled Castes and Scheduled Tribes from being alienated or transferred in any manner as referred to in the said Act. However if there has been a transfer of granted land and the grantee is the person who belongs to Scheduled Caste or Scheduled Tribe, remedy is provided under the Act for a grantee of such a land who has transferred such land, to approach the Assistant Commissioner seeking a declaration that such a transfer is null and void and seek for resumption and restoration of the granted land. But if the transferee, alienee or a beneficiary from a grantee, even if it is in respect of a land granted to a Scheduled Caste or Scheduled Tribe is concerned, decides to seek a remedy, vis-à-vis, such granted land, the only forum available is to file a suit in view of Section 9 of the CPC. This is particularly so when the grantee has not approached the concerned authority under the PTCL Act to seek resumption and restoration of such transferred land. That is exactly what the appellant has done in the instant case. There is a bar for filing a suit by a grantee, vis-à-vis, transfer of a granted land, as a forum is provided under the provisions of the PTCL Act,
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namely, the Assistant Commissioner and thereafter, the Deputy Commissioner, to consider the validity or otherwise of the transfer. But in the suit filed by the plaintiff herein, the question is not with regard to the validity or otherwise of the grant; what would have to be considered in the suit is with regard to the action of the defendant which has given rise to a cause of action to file the suit by the14 plaintiff and as to whether the plaintiff is entitled to the reliefs sought. The trial Court ought to have appreciated the subtle distinction in the instant case, instead of being carried away by the provisions of the PTCL Act and rejecting the plaint. Ultimately, whether the plaintiff is entitled to the reliefs sought for in the plaint or not, is one to be considered after a trial and hearing the parties. The plaint could not have been rejected at the threshold on the basis of the application filed by the respondents - defendants and by coming to a conclusion that under Section 4(2) of the PTCL Act, there was a prohibition for transfer of the suit schedule land. That is a matter which could have been determined after trial. The trial Court could not have ventured to give such a finding, as jurisdiction to try such a dispute is vested under the Act with the Assistant Commissioner and with the Deputy Commissioner in an appeal at the instance of a grantee only within the meaning of PTCL Act. The trial Court could not have considered the validity or otherwise of the transfer of the granted land in the instant case. It is for the grantee to establish before the Assistant Commissioner that he belongs to the Scheduled Caste and Scheduled Tribe community, that he was a grantee and that he was a transferor of granted land and therefore,
- 12 -MSA No. 10 of 2017
entitled to get the same declared as null and void and resumption and restoration under Section 4 read with Section 5 of the PTCL Act. In the instant case he has not done so. But the plaintiff being aggrieved by the action of the defendant had filed the suit seeking the aforesaid reliefs. If the plaintiff was not entitled to the said reliefs it could have been so considered only after a trial not by rejecting the plaint. In the absence of the defendant approaching the authorities under the PTCL Act, the plaintiff's plaint seeking the aforesaid reliefs could not have been rejected."
9. In the event, if the arguments advanced by Sri C.R. Gopalaswamy, learned Senior Counsel is accepted, then there is no remedy for the respondent-plaintiff to urge his grievance. In that view of the matter, the law laid down by the Constitutional Bench of Hon'ble Supreme Court in the case of DHULABHAI AND OTHERS v. THE STATE OF MADHYA PRADESH AND ANOTHER reported in AIR 1969 SC 78 wherein the Hon'ble Apex Court has laid down the guide lines with regard to the jurisdiction of the Civil Court. The same is extracted below:
"35. Neither of the two cases of Firm of Illuri Subayya(1) or Kamla Mills(2) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:-
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(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all ques- tions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
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MSA No. 10 of 2017
(4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
10. Having taken note of the judgment of the Hon'ble Apex Court in the case of DHULABHAI (supra) and on consideration of the ratio laid down by this Court with regard to the remedy available to the purchaser in respect of land that come under the purview of PTCL Act, the trial Court has erred in allowing application IA.III by rejecting the plaint. This view of mine is also supported by the judgment of Division Bench of this
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MSA No. 10 of 2017 Court in the case of K.C. VIJAYARAGHAVA REDDY (supra), wherein it is held that there is no option for the plaintiff/agreement holder to file suit seeking specific performance. In this regard, it is apt to deduce the observation made at paragraph 5 of the said judgment. The same reads thus:
"5. From the aforementioned facts, it is clear that the defendants are belonging to schedule tribe. The schedule property was granted to the father of the 1st defendant free of cost. Therefore, without permission of the government, the property cannot be alienated. The parties are fully aware of this legal position. There is specific recital in the agreement of sale that the sale has to be completed after obtaining permission. After entering into the agreement of sale and receiving Rs.15 lakhs as advance under the agreement, a requisite permission was to be obtained before alienation of the property. What is prohibited under law is to sell the property without permission. The permission is to be obtained before the sale deed is executed. When the 1st defendant's father after entering into the agreement of sale refused to execute the sale deed, the plaintiff has no option except to file the suit for specific performance. If the decree is passed and the schedule property is to be conveyed, it is only for such execution of sale deed, permission is required. Therefore, the trial court did not properly appreciate the legal position and came to the conclusion that without permission of the government, the sale deed
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cannot be executed. Hence, the trial Court held that the suit is not maintainable. The order passed by the trial Court is contrary to law and accordingly it is hereby set aside."
11. Taking into consideration the law declared by the Division Bench of this Court in the case of K.V. VIJAYARAGHAVA REDDY (supra) and applying the same to the case on hand, I am of the view that the trial Court has committed an error in allowing the appeal without allowing the parties to adduce evidence on triable issues. In this regard, the First Appellate Court has rightly interfered with the order dated 09th April, 2013 passed by the trial Court in Original Suit No.399 of 2012 and directed the trial Court to frame necessary issues taking into consideration the issue involved in the suit, on merits. In that view of the matter, I do not find any reasonable ground to interfere with the well-reasoned Judgment of the First Appellate Court. Accordingly, the appeal stands dismissed.
Sd/-
JUDGE LNN