Kallappa vs Chitramma
2022 Latest Caselaw 7856 Kant

                                                    -1-




                                                                 RSA No. 1217 of 2020


                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 01ST DAY OF JUNE, 2022

                                                   BEFORE
                              THE HON'BLE MR JUSTICE RAVI V HOSMANI
                           REGULAR SECOND APPEAL NO. 1217 OF 2020 (INJ)

                      BETWEEN:

                      1.    KALLAPPA
                            S/O DODDAGUNDI PAKKIRAPPA,
                            AGED ABOUT 46 YEARS,
                            AGRICULTURIST
                            JIRALEKOPPA VILLAGE, KASABA HOBLI,
                            SORABA TALUK-577 429
                            SHIVAMOGGA DISTRICT.

                                                                          ...APPELLANT

                      (BY SRI. S.V.PRAKASH.,ADVOCATE)

                      AND:

                      1.    CHITRAMMA
                            W/O RUDRAPPA GOWDA,
                            AGED ABOUT 60 YEARS,


                      2.    RENUKAMMA
Digitally signed by
VEENA KUMARI B              W/O VEERESH GOWDA,
Location: High
Court of Karnataka          AGED ABOUT 43 YEARS,

                      3.    ABHISHEK
                            S/O VEERESH GOWDA,
                            AGED ABOUT 21 YEARS,

                      4.    ANUSHA
                            D/O VEERESH GOWDA,
                            AGED ABOUT 19 YEARS,
                              -2-




                                       RSA No. 1217 of 2020


5.   MADHU
     S/O RUDRAPPA GOWDA,
     AGED ABOUT 37 YEARS,

6.   JYOTHI
     W/O SOMASHEKHARAPPA GOWDA,
     AGED ABOUT 52 YEARS,

7.   SUJATHA
     D/O RUDRAPPA GOWDA,
     AGED ABOUT 26 YEARS,

     RESPONDENTS 1 TO 7 ARE
     RESIDENTS OF JIRALEKOPPA VILLAG
     KASABA HOBLI
     SORABA TALUK-577 429
     SHIVAMOGGA DISTRICT.

8.   VEERESH GOWDA
     S/O BANGARAPPA GOWDA,
     AGED ABOUT 59 YEARS,


9.   SURESH GOWDA
     S/O BANGARAPPA GOWDA,
     AGED ABOUT 57 YEARS,

10. PUTTARAJA GOWDA
    S/O BANGARAPPA GOWDA,
    AGED ABOUT 55 YEARS,

11. MALLAPPA GOWDA
    S/O BANGARAPPA GOWDA,
    AGED ABOUT 53 YEARS,

     RESPONDENTS 8 TO 11 ARE
     R/AT YALAVALLI VILLAGE,
     KASABA HOBLI,
     SORABA TALUK-577429
     SHIVAMOGGA DISTRICT.
                                             ...RESPONDENTS
                               -3-




                                        RSA No. 1217 of 2020


     THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 09.03.2020 PASSED IN
R.A.No.24/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, SORABA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT    AND    DECREE    DATED   10.01.2019     PASSED   IN
O.S.No.132/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC,
SORABA.


     THIS RSA COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:


                       JUDGMENT

Challenging judgment and decree dated 09.03.2020

passed in R.A.No.24/2019 by Senior Civil Judge, JMFC,

Soraba, dismissing appeal and confirming judgment and

decree dated 10.01.2019 passed in O.S.No.132/2010 by

Civil Judge & JMFC, Soraba, this appeal is filed.

2. Appellant was plaintiff in original suit and

appellant in first appeal. While respondents herein were

defendants no.1 to 9 in suit and respondents no.1 to 9 in

first appeal. For sake of convenience, they shall be

hereinafter referred as per their ranks in original suit.

RSA No. 1217 of 2020

3. O.S.No.132/2010 was filed by plaintiff seeking

for relief of permanent injunction against interference with

their cultivation of land bearing Survey No.43 of

Jiralekoppa village, Soraba, measuring 3 acres 28 guntas

('suit property' for short).

4. In plaint, it was stated that plaintiff and his

family members were in possession of suit property and

cultivation of suit property from time of his father. It was

stated that considering Form-7 filed by plaintiff's father,

Land Tribunal granted occupancy rights to him to an

extent of 01 acre in Sy.No.43. It was further stated that

plaintiff had filed Form-7 for 02 acres 28 guntas in same

survey number, which is pending consideration before

Land Tribunal. When defendant sought to interfere with

possession and cultivation of plaintiff, suit was filed.

5. Upon service of summons, defendants entered

appearance and filed written statement denying

proceedings before Land Tribunal and also plaintiff's

RSA No. 1217 of 2020

possession over suit property and also contended that Civil

Court did not have jurisdiction to try suit.

6. Based on pleadings, trial Court framed following

issues:

ISSUES

1. "Whether the plaintiff proves that he and his family members were in joint possession and enjoyment of suit schedule property as on the date of filing the suit?

2. Whether the plaintiff proves that from 05.06.2010, the Defendants have been causing obstruction to the plaintiff and his family members while cultivating the suit schedule property and have also tried to dispossess them?

3. Whether the plaintiff is entitled to the relief sought for?

4. What decree or order?"

7. Plaintiff examined himself as PW.1 and two

other witnesses as PWs.2 & PW3. Exs.P.1 & P.2 were

marked. On behalf of defendants, defendant no.1 was

examined as DW.1.

RSA No. 1217 of 2020

8. On consideration, trial Court answered issues

no. 1 to 3 in negative and issue no.4 by dismissing suit.

Main reason assigned by trial Court for dismissal of suit

was jurisdiction to pass interim order vested with Land

Tribunal as per Section 48(C) of Karnataka Land Reforms

Act, and therefore, Civil Court was not having jurisdiction

to entertain suit for injunction.

Challenging said judgment and decree, plaintiff filed

R.A. No.24/2019 on several grounds. On consideration of

grounds urged, first appellate Court framed following

points for consideration:

POINTS

1. "Whether the trial Court was justified in holding that plaintiff was not in possession and enjoyment of the suit schedule property as on date of suit and that there was in interference?

2. Whether the impugned judgment and decree is perverse, capricious and calls for interference? If so, what order or direction?

3. What order or direction?"

RSA No. 1217 of 2020

9. On re-appreciation of evidence and concurring

with reasons stated by trial Court, first appellate Court

dismissed appeal. Against concurrent findings, appellant is

before this Court in Second Appeal.

10. Sri. Umesh Mulimani, Advocate appearing for

Sri. S.V. Prakash, learned counsel for appellant submitted

that dismissal of suit by trial Court was not justified and

was passed without taking note of law declared by Division

Bench of this Court in case of K. Ravindranatha Shetty

Vs. Smt. Maire Hengasa reported in 2004 (2) KCCR

1254.

11. Learned counsel further submitted that

dismissal of suit at threshold without considering evidence

on record was not justified and submits that following

substantial questions of law arise for consideration before

this Court:

i) Whether judgment and decree passed by first appellate court is in consonance with Order XLI Rule 31, in as much as

RSA No. 1217 of 2020

it failed to re-appreciate entire evidence on record which is sine-qua- non for disposal of appeals filed under Section 96 of Code of Civil Procedure?

ii) Whether on facts and in circumstances of case, impugned judgment and decree of first appellate Court confirming judgment and decree of trial court is sustainable in law?

iii) Whether first appellate court is justified in holding that plaintiff failed to prove his possession and enjoyment of suit schedule property as on he date of suit and prior to it discarding documentary evidence Ex.P.2 to Ex.P.8, E.P17, Ex.P21 and Ex.P22?

iv)    Whether first appellate court is justified
       in confirming judgment and decree
       passed        by        trial        court     discarding

material evidence placed before it by plaintiff/appellant?

v) Whether first appellate court is justified in dismissing appeal of plaintiff without

RSA No. 1217 of 2020

considering facts and evidence placed before it that plaintiff and discarding documentary evidence before it by plaintiff regarding his possession and enjoyment for relief of perpetual injunction?

12. Admittedly, plaintiff's claim for grant of

occupancy rights in respect of suit schedule property is

pending before Land Tribunal, Soraba. Section 132 of

Karnataka Land Reforms Act creates bar against Civil

Court entertaining suit in respect of any question which is

required to be settled under provisions of Act.

Section 48(C) of Karnataka Land Reforms Act

empowers Land Tribunals to entertain applications for

temporary injunction. Said provision reads as follows:

"48C. Interim Orders.--(1) The Tribunal may, when it considers it just and proper and subject to such terms and conditions as it may impose, issue interlocutory orders in the nature of temporary injunction or appointment of Receiver concerning 2 [the dwelling house in respect of which an application is made under section 38 or]2 the land in respect of which an application is made under section 48A. 2. Inserted by Act 3 of 1982 w .e.f. 1.1.1979. (2) The Tribunal may at any time revoke or modify the order issued by it under subsection (1). 3 [(3) Subject to the provisions of sub-section (2), the order of the Tribunal shall be final."

- 10 -

RSA No. 1217 of 2020

Further Section 132 reads as follows:

"132. Bar of jurisdiction.--(1) No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by 1[x x x]1, the Deputy Commissioner, 2[an officer authorised under sub-section (1) of section 77, the Assistant Commissioner, the prescribed authority under section 83,]23[the Tribunal]34[the Tahsildar]4, the 5[Karnataka Appellate Tribunal]5 or the State Government in exercise of their powers of control."

Since as per Section 48(C) above, Land Tribunal is

empowered to pass interim orders in nature of temporary

injunction and Section 48(C)(iii) provides for finality to

such orders, bar of jurisdiction of civil Courts stipulated in

Section 132 would come into play.

Division Bench of this Court in case of Siddaiah Vs.

Malleshappa reported in 1978 (2) KLJ 127 has held as

follows:

"13. Under Sec. 48C of the Act Land Tribunals are empowered to issue interim orders in the nature of temporary injunctions. But such orders can only be issued to persons who are parties to the proceeding before the Tribunal. Since it is not stated that the defendants are parties to the proceedings said to be pending before the concerned Land Tribunal that Tribunal cannot issue any interim order against them. The intention of the legislature, by incorporating these provisions--Secs. 48C, 132 and 133 of the Act--was not to prevent persons claiming

- 11 -

RSA No. 1217 of 2020

to be cultivators of agricultural lands or tenants from claiming injunctive reliefs in civil Courts against those who are total strangers to the lands."

13. Admittedly, plaintiff is claiming to be tenant of

land in question and is seeking injunction against

defendants. In plaint, it is stated that land original

belonged to one Bangarappa Gowda S/o Erappa Gowda,

father of defendant no.1 and defendants no.6 to 9.

Defendants no.2 to 5 are children of defendant no.1. As

plaintiff is seeking for injunction against original

owner/legal representatives, only Land Tribunal would be

vested with jurisdiction to entertain application.

14. In view of above, dismissal of suit as barred by

jurisdiction by trial Court and concurred with by first

appellate Court would be just and proper. No substantial

question of law arises for consideration in this appeal.

Accordingly, appeal is dismissed.

Sd/-

JUDGE BVK