Karnataka High Court
Meenakshi vs Khayamunnissa Begum And Ors on 3 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 03RD DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
CIVIL REVISION PETITION No.200011/2021
BETWEEN
MEENAKSHI D/O NATHAENIAL RAJ
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O MANGALPET BIDAR, THROUGH HER SPA
SHRI SHASHIKUMAR S/O SHAMRAO POLICE PATIL
AGE 48 YEARS, OCCU AGRICULTURE
R/O VILLAGE CHOWLI G.P NO. 53,
TQ. AND DIST. BIDAR-585401.
...PETITIONER
(BY SRI.ZAMERUDDIN, ADVOCATE)
AND
1. KHAYAMUNNISSA BEGUM W/O ISMAIL KHAN
AGE: 72 YEARS, OCC: HOUSEHOLD
2. MY AYUB KHAN S/O ISMAIL KHAN
AGE: 48 YEARS, OCC: BUSINESS,
3. MD HABIB KHAN S/O ISMAIL KHAN
AGE: 44 YEAR, OCC: BUSINESS,
4 . SMT SHAHEEN KHATUM W/O M A MUJEEB
AGE: 48 YEARS, OCC: HOUSEHOLD
2
ALL ARE R/O H.NO. A-8-179 MULTANI COLONY
TASKAR ROAD, BIDAR-585401.
5. SHRI ABDUL HAMEED S/O OSMAN SAB
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O ALIAYABAD
TQ AND BIDAR 585401
6. MANNAN S/O ABDUL KHADEER
AGE: 50 YEARS, OCC: AGRICULTURE
R/O. NAUBAD
TQ. AND DIST. BIDAR-585401.
...RESPONDENTS
THIS CIVIL REVISION PETITION FILED UNDER
SECTION 115 OF THE CPC PRAYING TO CALL FOR THE
RECORDS AND SET ASIDE THE IMPUGNED ORDER ON
I.A.NO.III ANNEXURE-Q DATED 12.04.2021 PASSED BY
PRL. SENIOR CIVIL JUDGE AND CJM, BIDAR IN
O.S.NO.10/2017.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
The Civil Revision Petition is filed by the defendant
No.1/petitioner aggrieved by the order dated 12/04/2021
passed in O.S.NO.10/2017 on the file of the Principal
Senior Civil Judge and CJM, Bidar (for short 'the Trial
Court').
2. Brief facts leading up to filing of the present
petition are that, the plaintiffs who are the respondent
Nos.1 to 4 herein have filed the suit in O.S.No.10/2017 for
relief of declaration and injunction on the premise that the
plaintiff No.1 is the original owner of land in Sy.No.68
measuring 2 acres 30 guntas of Aliabad village, Taluk and
District Bidar, having purchased the same under a deed of
sale. That the name of the plaintiff No.1 was mutated in
the revenue records. Plaintiff Nos.2 to 4 are the sons and
daughters of the plaintiff No.1 and their name is also
appearing in the RTC as such they are also owner of the
land. The land being agricultural land is cultivated by the
plaintiffs. That the defendants having no concern with the
ownership or possession over the suit land. That the
defendants alleged to be the owners in Sy.No.68/u which
is away from the suit land. The sketch map prepared by
the ADLR office shows the land belonged to defendants,
which is alleged to have been converted into non-
agricultural land, and the defendants have made a lay out
and sold the plots formed thereon. That there was a suit
in OS.No.86/2016 filed by the defendant showing the
plaintiff No.1 as owner of land of 2 acre 10 guntas which
ended in the compromise in the year 2016. In the said
compromise defendants have shown the boundaries of the
plaintiff's land. The plaintiffs learning about this had
preferred Regular Appeal in RA.No.20/2016 which was
disposed of on 06/06/2016. Aggrieved by the said
judgment, plaintiffs had preferred Regular Second Appeal
in RSA.No.200192/2016 and the same was disposed of on
18/11/2016, in which the plaintiff has been permitted to
file independent suit seeking a appropriate relief.
Therefore, the present suit is filed.
3. The defendant No.1/petitioner herein appeared
and filed written statement disputing the claim of the
plaintiffs. Apart from denying the case of the plaintiffs at
para-4 of the written statement, the defendant
No.1/petitoner has contended that the plaintiffs had
purchased tenanted land during pendency of the
proceedings before the Land Tribunal, Bidar. The father of
the defendant had filed Form No.7 before the Land
Tribunal in file No.LRM/168/74-75 on 01/03/1974. Further
at para-18 of the written statement the defendant No.1
has contended that the matter of tenancy rights is still
pending before the Tribunal. In the case
No.LRM/CR/168/1974-75, in which vendor of the plaintiffs
is a party. Therefore, the Civil Court has no jurisdiction to
entertain the suit for declaration of the suit land and for
permanent injunction.
4. Issues have been framed. Matter is set down
for recording evidence of the plaintiffs. In the meanwhile,
the defendant No.1 had filed an application under Order 7
Rule 11 (d) of CPC seeking rejection of the plaint. Thus, it
is contended when the matter pertaining to issue of
occupancy rights is still pending consideration before the
Tribunal, the Civil Court would not get jurisdiction and on
that premise he seeks rejection of the plaint. Objection
statement of the said application filed by the plaintiffs.
5. The Trial Court, by its order impugned herein
has rejected the said application. The Trial Court having
adverted to the pleadings, affidavit accompanying the
application and the objection filed thereon has held that
the question raised by the defendant No.1 has to be dealt
with after conducting the trial. Referring to the pleadings,
the Trial Court has also stated that issue No.7 framed
involves both question of law and facts requiring a trial.
Therefore, dismissed the application. Aggrieved by the
same, the present petition is filed by the defendant No.1.
6. Sri Zamruddin, learned counsel for the
petitioner reiterating the grounds urged in the petition,
relying upon the judgment of the Apex Court in the case of
R. Ravindra Reddy & Ors. v. H. Ramaiah Reddy &
Ors. in Special Leave Petition (Civil) No.6286/2009,
submits that the Apex Court in the said judgment.
Adverting to the controversy which arose on account of
decision on a preliminary issue with regard to
maintainability of the suit in view of Section 132(2) of the
Karnataka Land Reforms Act, has held that the Civil Court
has no jurisdiction in view of provision under Section
132(2) of the Karnataka Land Reforms Act. Relying upon
the said judgment the learned counsel submits that, even
in the present case, the objection before the Tribunal with
respect to that Form No.7 filed by the deceased father of
the defendant No.1 as far as back in the year 1974 is still
pending consideration and until decision, determination of
the said application, the suit shall not be maintained and
the same requires to be dismissed. Therefore, he submits
that application filed under Order 7 Rule 11(d) CPC has to
be considered as the same barred by law.
7. Per contra, Sri Shivakumar Kallor, learned
counsel for the respondents submits that an application
under Order 7 Rule 11(d) CPC cannot be entertained under
the facts and circumstances of the matter as there is no
statement in the plaint making it non maintainable. In the
light of specific provision under Order 7 Rule 11(d) CPC
requiring to consider only the plaint averments he submits
that an application filed under Order 7 Rule 11(d) CPC
based on the defense material cannot be considered.
Therefore, he submits that the Trial Court made no error in
rejecting the said application.
8. On the basis of the rival submissions of the
learned counsel for the parties, the following point that
arises for consideration is;
"Whether the Trial Court has committed any
illegality or irregularity in rejecting the
application under Order 7 Rule 11(d) CPC"?
9. It is settled law that an application under Order
7 Rule 11(d) CPC can be maintained and entertained only
on the basis of plaint averments the defense which could
be raised by the defendants cannot be the ground to reject
the plaint.
10. In the instant case, it is a specific contention of
the petitioner that the suit is not maintainable in view of
the pendency of the application in Form No.7 before the
Land Tribunal. As such, the proceedings in OS.No.10/2010
filed by the plaintiffs for declaration and injunction are
barred in view of provision of Section 132(2) of the
Karnataka Land Reforms Act. He also submits that in view
of the law laid down by the Apex Court in the Ravindra
Reddy (supra), the Trial Court ought to have allowed the
said application rejecting the plaint.
11. There is no averments or any admission in the
plaint regarding pendency of the proceedings before the
Land Tribunal. The pendency application before the
Tribunal is the defense specifically set up by the defendant
in para-4 and 18 of the written statement. There is no
whisper with regard to any such pendency in the plaint, in
the said situation Order 7 rule 11(d) cannot be pressed
into service.
12. Therefore, the application under 7 Rule 11(d)
CPC is prima facie not maintainable and rejection of the
same by the Trial Court cannot be faulted with.
An application under Order 7 Rule 11 (d) is only for
the limited and substantive purpose of rejecting the plaint.
Case of this nature where the defendant seeks to oust
jurisdiction of the Civil Court having recourse under
Section 132(2) of the Karnataka Land Reforms Act, by
specifically pleading about the pendency of the tenancy
petition has to be gone into by framing a specific issue
thereon. In the light of the above, the point raised is
answered accordingly and the following order.
ORDER
i. The Civil Revision Petition
No.200011/2021 filed by the defendant
No.1/petitioner is dismissed.
ii. All contentions are kept open for the
parties to raise before the Trial Court.
iii. The defendants are also at liberty to
request the issue of jurisdiction to be
determined as preliminary issue.
Sd/-
JUDGE
mkm
