Bharmani Mayappa Patil vs Laxmiabi W/O. Vishnu Naik
2022 Latest Caselaw 669 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
       DATED THIS THE 14TH DAY OF JANUARY 2022
                         BEFORE
 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
                  M.S.A.NO.100065/2014
BETWEEN
1.   BHARMANI MAYAPPA PATIL
     SINCE DECEASED BY HIS LRS.,

1(A)   SRI RAJU S/O BHARMANI PATIL,
       AGE : 55 YEARS, OCC: AGRIL.,
       R/O NO.272, GANESHPET, JUNE,
       BELAGAVI.

       YASAVANT MAYAPPA PATIL
       SINCE DECEASED BY HIS LRS

2.     SMT.SUNITA W/O YASHVANT PATIL,
       AGE : 50 YEARS, OCC: HOUSEHOLD WORK,
       R/O 273, GANESH PET JUNE, BELGAUM,
       DIST: BELGAUM.

3.     KUMAR YALLAPPA S/O YASHVANT PATIL
       AGE: 42 YEARS, OCC: STUDENT,
       R/O. 273, GANESH PET, JUNE
       BELGAUM, DIST: BELGAUM .

4.     KUMAR SANTOSH S/O YASHVANT PATIL
       AGE: 35 YEARS, OCC: STUDENT,
       R/O. 273, GANESH PET, JUNE
       BELGAUM, DIST: BELGAUM.

5.     RACHANDRA MAYAPPA PATIL
       AGE: 60 YEARS, OCC: AGRICULTURE,
       R/O 272, GANESH PET, JUNE
       DIST: BELGAUM, DIST: BELGAUM.

6.     BABU MAYAPPA PATIL
       AGE: 53 YEARS, OCC: AGRICULTURE,
       R/O. 273, GANESH PET, JUNE BELGAUM
       DIST: BELGAUM.
                                          ...APPELLANTS
(BY SRI SHARAD V.MAGADUM AND P.F.NADAF, ADVTS.)
                             2




AND
LAXMIABI W/O. VISHNU NAIK
SINCE DECEASED BY HIS LRS

1.   SHRI LAXMAN S/O. VISHNU NAIK
     AGE: 52 YEARS, OCC: BUSINESS
     R/O H.NO.4908/1B, DHARWAD ROAD,
     MAHADWAR ROAD, BELGAUM .

2.   SHRI VIJAY S/O VISHNU NAIK
     AGE: 50 YEARS, OCC: BUSINESS
     R/O. H.NO.4908/1B DHARWAD ROAD
     MAHADWAR ROAD, BELGAUM.

3.   SHIR SANJAY S/O VISHNU NAIK
     AGE: 48 YEARS, OCC: BUSINESS
     R/O. H.NO.4908/1B DHARWAD ROAD
     MAHADWAR ROAD, BELGAUM.

4.   SHRI PARASHRAM S/O VISHNU NAIK
     AGE: 46 YEARS, OCC: BUSINESS,
     R/O. H.NO.4908/1B, DHARWAD ROAD,
     MAHADWAR ROAD, BELGAUM.

5.   SUNIL S/O. VISHNU NAIK ,
     AGE: 44 YEARS, OCC: BUSINESS,
     R/O. H.NO.4908/1B, DHARWAD ROAD,
     MAHADWAR ROAD, BELGAUM.

6.   SMT.SUNANADA W/O ASHOK DHAMNEKAR,
     AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
     R/O. KARUR VILLAGE, SHIVAJI NAGAR,
     MALAD (EAST) MUMBAI.
                                        ... RESPONDENTS
(NOTICE TO RESPONDENT NOS.1 TO 5 : SERVED)
(NOTICE TO RESPONDENT NO.6: HELD SUFFICIENT.

      THIS MSA IS FILED UNDER ORDER LXIII RULE 1(U) OF
CPC., PRAYING THIS COURT TO SET ASIDE THE JUDGEMENT
AND DECREE DATED 20.11.2012 PASSED IN R.A.NO.39/2010
ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, BELGAUM
AND CONFIRM THE JUDGEMENT AND DECREE DATED
24.02.2010 PASSED IN O.S.NO.739/2004 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC., AT BELGAUM.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                   3




                          : JUDGMENT :

This captioned miscellaneous second appeal is

filed by the defendants questioning the remand order

passed by the Appellate Court in R.A.No.39/2010.

2. Respondents/plaintiff Nos.1 to 5 along with

deceased mother Smt.Laxmibai filed a suit for

declaration and for consequential relief of injunction by

contending that the occupancy rights granted by the

Land Tribunal is not binding on the respondents/

plaintiff's share. The present appellants who are

defendants contested the proceedings by specifically

contending that the suit is not maintainable in view of

Sections 132 and 133 of the Karnataka Land Revenue

Act.

3. The Trial Court having assessed the

evidence has answered Issue No.2 in the affirmative

and has held that the grant of occupancy rights and

the enquiry is squarely contemplated under the

provisions of Sections 44 and 45 of the Karnataka

Land Revenue Act, 1961. Any order that would be

passed by the Land Tribunal has to be agitated under

the writ jurisdiction. Therefore, the Trial Court by

answering issue No.2 has proceeded to dismiss the

suit by holding that the suit is not maintainable.

4. Being aggrieved by the judgment and

decree of the Trial Court, the respondents/plaintiffs

preferred an appeal. The Appellate Court on re-

appreciation of oral and documentary evidence has

remitted the matter with a direction to frame an

additional issue in regard to tenancy as contended by

the defendant in his written statement and thereafter

refer the said issue to the Land Tribunal, Belagavi for

its decision. Consequently the Appellate Court has held

that till then Court has to stay the further proceedings

of the suit. It is this remand order which is under

challenge.

5. Heard learned counsel for the appellant and

perused the order under challenge and also additional

documents produced by the appellants, wherein the

order passed by the Land Tribunal dated 12.02.2013 is

also placed on record. The operative portion of the

order passed by the Appellate Court would be useful to

examine the controversy between the parties, which

reads as follows:

": ORDER :

This regular appeal is allowed.

Consequently, impugned judgment and decree dated 24.2.2010 passed in O.S.No.739/2004 on the file of Prl.Civil Judge Jr.Dn., Belgaum is hereby set aside.

Matters is remanded to lower court U/P 41 rule 23A of CPC.

Court below is directed to readmit suit to its original number and frame one additional issue with regard to tenancy as contended by defendants No.1, 3 and 4 in their written statement and thereafter refer said issue to land Tribunal Belgaum for its decision, till then court below is directed to stay further proceedings of this suit.

Further, it is directed that, court below shall dispose of suit on merits in accordance with law, after receipt of decision from land Tribunal Belgaum on the issue of tenancy.

All parties are before this court, therefore parties are directed to appear before trial court on or before 15.12.2012 without waiting for fresh notice from trial court.

No orders as to cost.

Office to draw decree accordingly.

Office is directed to send back L.C.R. forthwith along with certified copy of this entire judgment."

6. The operative portion has to be examined

in the light of controversy between the parties. The

subject matter of the suit is an agricultural land, which

the defendant claim that it is a tenanted land and

therefore the parties were found to be litigating before

the Land Tribunal. The trial court having examined the

materials on record has come to the conclusion that, if

the Land Tribunal conferred the occupancy rights,

respondents/plaintiffs cannot question the said order

contending that it is not binding on their share. If the

parties are litigating before the Land Tribunal, then it

is a trite law that there is a bar under Section 133(2)

of the Karnataka Land Reforms Act, 1961.

7. If the prayer sought in the plaint is taken

into consideration, this court is of the view that

Section 133(2) of the Act is squarely applicable to the

present case on hand. By seeking a relief of

declaration that order passed by the Land Tribunal

would not bind the plaintiffs share, Plaintiffs are

virtually seeking nullifying of the order passed by the

Land Tribunal indirectly. The additional documents

which are placed on record by the appellants/

defendants clearly reveal that the Land Tribunal after

remand has passed a fresh order on 12.02.2013

conferring occupancy rights which was granted earlier.

Though respondents/plaintiffs are not parties to the

Land Tribunal proceedings, the other branch of

respondent's family have contested the proceedings. If

the respondents/plaintiffs are really aggrieved by the

order of the Land Tribunal conferring occupancy rights

in favour of the appellants/defendants, then nothing

prevents the respondents/plaintiffs in questioning the

order of the Land Tribunal before the appropriate

forum. This court has to also take note of the fact

that, if the Land Tribunal has conferred the occupancy

rights by order dated 12.02.2013, then it pre-

supposes that the land in question stood vested with

the State as on 01.03.1974 under Section 44(1) of the

Act. These significant details which are purely in the

nature of question of law are not at all adverted to by

the first appellate court. Therefore, I am of the view

that the remand order passed by the first appellate

court by directing the trial court to refer the matter to

Land Tribunal and seek an opinion from the Land

Tribunal is not only perverse, capricious and palpably

erroneous but the same is contrary to Section 132 of

the Act.

8. The civil court in the event any suit is filed

is required to refer the issue to the Land Tribunal. In

the present case on hand, the matter was already

ceased before the Land Tribunal and the parties were

litigating before the Land Tribunal and on enquiry, the

Land Tribunal has passed an order conferring

occupancy right in favour of the tenants. This court is

unable to understand as to how respondents/plaintiffs

can maintain a suit in the present form. The trial court

has rightly adverted to all these relevant aspects and

has rightly dismissed the suit.

9. Therefore, on examination of material on

record, I am of the view that remand order passed by

the first appellate court suffers from perversity. The

first appellate court was required to decide the case on

merits rather than remanding the matter with such a

direction. Therefore, I am of the view that the remand

order is not at all sustainable. Hence, I proceed to

pass the following:

ORDER

The appeal is allowed. The remand order dated 20.11.2012 passed by the I Additional Senior Civil Judge, Belagavi in R.A.No.39/2010 is set aside.

The matter is remanded back to the first appellate court and the first appellate court shall hear the matter on merits and decide the case bearing in mind the principles enumerated under Order 41 Rule 30 and 31 of CPC.

Sd/-

JUDGE EM/MBS