Karnataka High Court

Dr.Narasimhalu Nandini Memorial ... vs Janatha Trust, A Charitable Trust on 17 March, 2022

Bench: Anant Ramanath Hegde

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF MARCH, 2022

                       BEFORE

  THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                CRP.NO.200024/2018

BETWEEN:


1. DR NARASIMHALU NANDINI MEMORIAL
EDUCATION TRUST
H.NO.1-7-7, NEAR GOAL MARKET, STAIN ROAD
RAICHUR, THROUGH ITS MANAGING TRUSTEE
DR.MAHALINGA B, S/O B S BALAPPA
AGED ABOUT 65 YEARS
OCC: MEDICAL PRACTITIONER.


2. DR MAHALINGA B
S/O ALTE B S BALAPPA
AGED ABOUT 65 YEARS
OCC: MEDICAL PRACTITIONER
MANAGING TRUSTEE OF DR.NARASIMHALU
NANDINI MEMORIAL EDUCATION TRUST
NANDINI HOSPITAL, UDYA NAGARA
STATION ROAD, RAICHUR - 584101.           .... Petitioners


(BY SHIVAKUMAR KALLOOR, ADV.)


AND:

JANATHA TRUST, A CHARITABLE TRUST
HAVING ITS REGISTERED OFFICE AT NO: 42,
ANAND RAO CIRCLE, SHESHADRI ROAD
GANDHINAGAR, BANGALORE - 560009
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THROUGH ITS MANAGING TRUSTEE,

SRI C PRABHAKAR, S/O LATE CHIKKE GOWDA
AGED ABOUT 55 YEARS, R/O NO.89, 6TH CROSS,
CHANAKYA ROAD, CONCORDE GARDEN CITY
RAJARAJESHWARI NAGAR,
BANGALORE - 560059 .. since dead by His L.R.

Rupesh P
s/o late Prabhakar C
Age: 23 years, Occ: Agriculture
& Social Worker,
r/o at No.612, 6th Stage,
Second Block, Banashankari,
Bangalore - 560098.
                                                  .. Respondent


(BY SRI K S CHANDRAHASA, ADV.)




      This Petition is filed under Section 115 of CPC praying to

allow the Civil Revision Petition and set aside the impugned

order Annexure - E dated 14.12.2017 passed by Addl. Civil

Judge & JMFC-III, Raichur in O.S.No.287/2015 and dismiss the

suit of the plaintiff i.e. O.S. No.287/2015 on the file of addl.

Civil Judge & JMFC-III, Raichur in ends of justice and equity.



      This petition coming on for Orders, this day, the Court

made the following:-
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                          ORDER

Though the matter is listed for orders, with the

consent of the learned counsel for parties, the case is

taken for final hearing and heard the petitioner and

respondents.

2. Instant petition is filed invoking Section 115 of

the Code of Civil Procedure wherein an application filed by

the defendants in I.A.II invoking Order VII rule 11(d) of

Code of Civil Procedure in O.S.287/2015 on the file of the

Addl. Civil Judge & JMFC-III, Raichur is rejected. Being

aggrieved by the said order rejecting the application filed

under Order VII Rule 11(d) of Code of Civil Procedure,

(Code for short) the defendants are before this Court

invoking Section 115 of the Code.

3. Brief Facts of the case are as under:

The plaintiff which is a Trust filed a suit for ejectment

against the defendants. The 1st defendant is a Trust and

2nd defendant is the managing trustee of the said Trust.

The suit is filed on the premise that the suit schedule

property is leased in favour of the 1st defendant-Trust in

terms of the registered lease deed dated 8.11.2011.

According to the plaintiff, the tenure of the lease is 3

years. It is urged that tenure came to an end on

30.09.2014. After issuing notice, the plaintiff filed a suit for

ejectment. The suit schedule property is described as

under:

SUIT SCHEDULE PROPERTY

Four buildings situated in the lands, bearing Sy.Nos.20, 22 and 36 of Rampur village, Tq. Raichur, totally measuring 15 acres 33 guntas together with the open land adjoining the said buildings as mentioned above, which are in existence since 1964, and the plinth area of four buildings are as described hereinbelow.

1. 153' North-South, 100' East-west

2. 75' North-South, 100' East-West

3. 125' North-South, 60' East-West

4. 100' North-South, 50' East-West

4. Though the registered lease deed is not

produced, there is no dispute about the fact that the

plaintiff which is a trust is running an educational

institution in the schedule property.

5. The defendants having appeared before the

Court, filed an application in I.A.II invoking Order VII

Rule 11(D) CPC. The defendants contend that the suit is

not maintainable in view of the bar contained in Sections 5

and 133 of the Karnataka Land Reforms Act. This

application was opposed by the plaintiff. The defendants

have contended that the land is agricultural land excluding

the buildings located in Sy. Nos.20, 22 and 36 of Rampur

Village, Raichur District. The total extent of the land in

these three survey numbers is 15 acres 33 guntas. It is

stated that there are four buildings in the said lands since

1964 and the extent of the said buildings are provided in

the suit schedule. The defendants would contend that

excluding the buildings located in the above-mentioned

survey numbers, the remaining area is agricultural land.

Since lease in respect of agricultural land is prohibited

under the provisions of the Karnataka Land reforms Act,

the lease is void and it is also contended that in case there

is a dispute whether the lands are agricultural or non-

agricultural and the said dispute is to be adjudicated by

the Land Tribunal under the provisions of the Karnataka

Land Reforms Act. On this premise, it is urged that Trial

Court has no jurisdiction to try the suit and the suit is to

be dismissed invoking Order VII Rule 11(2) of the Code.

6. Plaintiff on the other hand contended that the

entire land is leased in favour of the 1st defendant - Trust

to run educational institution and it is urged that buildings

are located in the suit land since 1964. The remaining

land is not agricultural and the same is used as land meant

for the benefit of school-going children to be used as a

playground and to carry out co-curricular activities. On

this ground, it is urged that land is not agricultural land

and the suit is maintainable. In addition to this, it is

contended that the plaint does not contain the statement

as to the nature of the land. Under the circumstances,

going by the averments made in the plaint, there is no

reason to invoke Order VII Rule 11(d) CPC. It is further

contended by the plaintiff that the application under Order

VII Rule 11(d) CPC is to be considered based on the

averments made in the plaint, not based on the contention

in the written statement. It is also submitted that the

written statement was not filed when IA II was filed

invoking Order VII Rule 11(d) of the Code. The written

statement came to be filed by the defendants only after

the dismissal of I.A.II. In terms of the impugned order,

the learned trial Judge has held that the application

invoking Order VII Rule 11(d) of the Code is not

maintainable on the ground that the leased property

comprises 4 buildings. The Trial Court has concluded that

the land is not agricultural and as such, the application

seeking rejection of the plaint is rejected.

7. Learned counsel for the petitioners elaborating

his submissions based on grounds urged in the petition,

would place reliance on the following three decisions:

(i) RUKHYUABI W/O DR. N M JAFFAR v. LAND TRIBUNAL (1st) KARKAL. D.K. & ORS (2012(4) AIR KAR R 191)

(ii) GOWRAMMA (SMT.) AND OTHERS vs. MUNIKRISHNAPPA (SMT.) (SINCE DECEASED BY LRS.) AND ANOTHER (HCR 2016 KANT 548)

(iii) ISHWARAGOUDA AND OTHERS vs MALLIKARJUN GOWDA AND OTHERS ((2009)1 SCC 626)

8. Placing reliance on the aforementioned

judgments, the learned counsel would urge that the Civil

Court has no jurisdiction to decide the controversy

involved in the case and prayed to allow the petition and

consequently, to reject the plaint.

9. This Court has considered the aforementioned

three judgments.

10. In the first Judgment in Rukhyuabi's case

(supra) it is noticed that the lease was granted in terms in

the year 1953. The Court has come to the conclusion

based on the recitals in the lease deed that apart from the

building located in the land, the agricultural land was also

leased in favour of the tenant. This Judgment is delivered

interpreting the recitals in the lease deed of 1953 which

was placed for consideration before the Court. The ratio

cannot be applied to this case where this Court is to

consider the lease deed of 2011.

11. Referring to the case of Gowramma supra, by

referring to Section 133 of the Karnataka Land Reforms

Act, it is urged that the jurisdiction of the Civil Court is

ousted in respect of all questions which are to be decided

by the Land Tribunal under Section 133 of the Land

Tribunals Act.

12. There is no dispute that if a question has to be

decided whether the land is agricultural or not, then that

question has to be decided by the Tribunal under Section

133 of the Karnataka Land Reforms Act. However, in this

case, the plaint averment does not say whether the land is

agricultural land or non-agricultural land. Thus, the Court

cannot assume by reading the plaint that the Court is

required to consider whether the dispute is relating to the

nature of the land. The dispute in the case on hand, as

made out in the plaint, is in respect of rights and liabilities

of the parties under the registered lease agreement of the

year 2011. There is no dispute over the fact that the

defendant's institution is running an educational institution

in the said land. It is not the case of the defendants-

institution that it is carrying out agricultural activities.

Under the circumstances, by going through the averments

made in the plaint, it cannot be said that the disputed

question to be tried is relating to the nature of the land.

13. Referring to the Judgment of Ishwara gouda

And Others case (supra), it is contended that the Tribunal

alone is given exclusive jurisdiction to decide the question

as to whether the land is agricultural or non-agricultural.

14. Again as discussed earlier, by reading the

averments made in the plaint, the Court is not required to

get into the question of whether the land is agricultural

land or not. Under the circumstances, this Court is of the

opinion that the judgments referred supra does not come

to the rescue of the defendant that the plaint is to be

rejected based on the averments to urge made in the said

plaint.

15. Learned counsel for the petitioner would refer to

Section 5 of the Karnataka Land Reforms Act which reads

as under:

5. Prohibition of leases, etc.-(1) Save as provided in this Act, after the date of commencement of the Amendment Act, no tenancy shall be created or continued in respect of any land nor shall any land be leased for any period whatsoever.

(a) a tenancy created or continued by a soldier or seaman if such tenancy is created or continued while he is serving as a soldier or a seaman or within three months before he became a soldier or a seaman.

(b) to any land leased after the commencement of the Karnataka Land Reforms (Amendment) Act, 1995 in the districts of Uttara Kannada and Dakshina Kannada by landowners or persons registered as occupants under the provisions of this Act to utilise the land for aquaculture for a period not exceeding twenty years, at such lease rent as may be determined by mutual agreement between the parties and such agreement shall be registered and a copy thereof shall be sent to the Deputy Commissioner within fifteen days from the date of such registration.) (3) Every lease (created) under sub- section (2) shall be in writing).

16. There is no dispute over the fact that the

Karnataka Land Reforms Act prohibits lease in favour of

agricultural land on or after 01.03.1974. The defendants-

institution having entered into a registered agreement in

respect of this land to run an educational institution in

respect of the land covered in the said registered lease

agreement, now cannot turn around and contend that the

land is not agricultural. If it is not agricultural land, the

defendants-institution could not have run educational

institutions at all. There is no dispute that the defendants

are running educational institutions in the said premises

since 2005. When that is the case, the defendants cannot