Ningappa Bharmanna Gavada @ Patil vs Irrappa Sonappa Patil
2023 Latest Caselaw 4237 Kant

                                                    -1-
                                                            R.S.A No. 5946 of 2010




                                 IN THE HIGH COURT OF KARNATAKA

                                           DHARWAD BENCH

                              DATED THIS THE 11TH DAY OF JULY, 2023

                                                 BEFORE

                               THE HON'BLE MR JUSTICE ANIL B KATTI

                            REGULAR SECOND APPEAL NO. 5946 OF 2010
                       BETWEEN:

                       1.   SHRI NINGAPPA BHARMANNA GAVADA @ PATIL,
                            AGE: ABOUT 46 YEARS, OCC: AGRICULTURE,

                       2.   SHRI LAXMAN RAMCHANDRA GAVADA @ PATIL,
                            AGE: ABOUT 52 YEARS, OCC: AGRICULTURE,
          Digitally
          signed by
          POOJA        3.   SHRI NARAYAN RAMACHANDRA GAVADA @ PATIL,
POOJA     DEELIP
DEELIP    SAVANUR           AGE: ABOUT 48 YEARS, OCC: AGRICULTURE,
SAVANUR   Date:
          2023.07.13
          11:20:18 -
          0700         4.   SHRI SAMBHAJI RAMCHANDRA GAVADA @ PATIL,
                            AGE: ABOUT 47 YEARS, OCC: AGRICULTURE,

                       5.   SHRI MARUTI RAMCHANDRA GAVADA @ PATIL
                            AGE: ABOUT 42 YEARS, OCC: AGRICULTURE,

                       6.   SHRI MAREPPA LAXMAN GAVADA @ PATIL

                            (SINCE DECEASED BY HIS LEGAL HEIRS)

                            6A) SMT ANANDIBAI MAREPPA GAVADA @ PATIL,
                                AGED. ABOUT 52 YEARS, OCC. AGRICULTURE &
                                HOUSEHOLD WORK,

                       7.   SHRI BABU LAXMAN GAVADA @ PATIL,

                            (DECEASED BY HIS LEGAL HEIRS)

                            7A) SMT ANJANA BABU GAVADA @ PATIL,
                                AGE: ABOUT 55 YEARS, OCC: AGRICULTURE &
                                HOUSEHOLD WORK,
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                                      R.S.A No. 5946 of 2010




     ALL ARE R/O: KARAMBAL, TQ: KHANAPUR,
     DIST: BELAGAVI-591302

                                                 ...APPELLANTS

(BY SRI. VISHWANATH P. ALLANNAVAR, ADV. FOR
    SRI. DINESH M. KULKARNI, ADVS.)

AND:

1.     SHRI IRRAPPA SONAPPA PATIL,
       AGE: ABOUT 60 YEARS, OCC: AGRICULTURE,
       R/O: KARAMBAL, TQ: KHANAPUR,
       DIST: BELAGAVI-591302

2.     THE ASSISTANT COMMISSIONER BSDN BELAGAVI
       DIST: BELAGAVI.

3.     THE TAHASILDAR,
       KHANAPUR TALUKA, KHANAPUR-591302
       DIST: BELAGAVI

4.     THE REVENUE INSPECTOR,
       KHANAPUR CIRCLE, KHANAPUR-591302
       DIST: BELAGAVI.

5.     THE VILLAGE ACCOUNTANT,
       KARAMBAL VILLAGE, TAL: KHANAPUR-591302
       DIST: BELAGAVI.
                                                ...RESPONDENTS

(BY SRI. SABEEL AHAMED, ADV. FOR
    SRI A.S. PATIL, ADV. FOR R1
    SRI. PRAVEEN K. UPPAR, HCGP FOR R2-R5)

                            ***
     THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC.,
SEEKING TO SET ASIDE THE JUDGEMENT AND DECREE PASSED BY
THE SENIOR CIVIL JUDGE, KHANAPUR IN REGULAR APPEAL NO
188/2008 (OLD NO 174/2005) DATED 24/07/2010 AND THE
JUDGMENT AND THE DECREE PASSED BY THE ADDL CIVIL JUDGE
JUNIOR DIVISION, KHANAPUR IN OS NO 84/2002 DATED 06/04/2005
AND IN THE CONSEQUENCE THE SUIT OF THE PLAINTIFFS BE
DECREED WITH COSTS THROUGHOUT.
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                                         R.S.A No. 5946 of 2010



     THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:

                           JUDGMENT

Appellants/plaintiffs feeling aggrieved by the judgment

and decree passed by first Appellate Court on the file of Senior

Civil Judge, Khanapur, in R.A.No.188/2008 (Old

R.A.No.174/2005) dated 24.07.2010 preferred this appeal.

2. Parties to the appeal are referred with their ranks as

assigned in the trial Court for the sake of convenience.

3. The factual matrix leading to the case of plaintiffs

can be stated in nutshell to the effect that plaintiffs are owners

and in possession of land bearing R.S.No.119/1 measuring

33 guntas and R.S.No.119/5 measuring 1 acre 18 of Karambal

village, Khanapur taluk. Smt.Bayakka Ningappa Yallur was the

owner of the property and she died about 30 to 40 years back

without any issues. On the death of Bayakka Ningappa Yallur,

name of plaintiffs came to be entered in the records by virtue of

certification of M.E.No.1461 dated 30.04.1990. Defendant No.1

Irappa Sonappa Patil without having any legal right got mutated

his name for the house property to the extent of 66' X 66' of

Sy.No.119/5 and constructed house illegally without the consent

R.S.A No. 5946 of 2010

of plaintiffs. Defendant No.1 had filed O.S.No.78/1995 on the

file of Civil Judge (Jr.Dn.), Khanapur and subsequently, got

withdrawn the said suit. The suit of plaintiffs in O.S.No.36/1996

was dismissed on 10.04.2001 and appeal in R.A.No.170/2001 is

pending. Defendant No.1 by taking undue advantage of

dismissal of O.S.No.36/1996 got mutated his name in collusion

with revenue authorities and started denying the right of

plaintiffs over the suit schedule properties. Therefore, the

plaintiffs were constrained to institute the suit on hand for the

relief claimed in the suit.

4. In response to the suit summons, defendants

appeared through learned counsel. Defendant No.1 filed written

statement contending that suit is not maintainable in view of

Section 135 of the Karnataka Land Revenue Act. The suit of

plaintiffs in O.S.No.36/1996 came to be dismissed and admitted

pendency of R.A.No.170/2001. It is the case of defendant No.1

that suit schedule properties are tenanted lands of defendants

and were cultivating the same as tenants under Smt.Yallur who

was landlady of the schedule properties. Defendant No.1 is in

actual physical possession and enjoyment of the schedule

property as tenant and constructed house in an area measuring

33' X 66' assigned with GPC No.331. The certification of

R.S.A No. 5946 of 2010

M.E.No.1461 has been set aside by the Assistant Commissioner,

Belagavi, by allowing the appeal on 26.02.2002. The defendant

No.1 filed Form No.7A for grant of occupancy right in respect of

the schedule properties and the same is pending consideration

and in view of the provisions of the Karnataka Land Reforms

Act, Civil Court has no jurisdiction to try the suit in question,

since the land is vested with the Government as on 01.03.1974

in terms of Section 44 of the Karnataka Land Reforms Act.

Therefore, prayed for dismissal of the suit.

5. The trial Court has framed necessary issues. Issue

Nos.3 and 5 have been treated as preliminary issues. The trial

Court after hearing both the sides allowed IA-4 filed by

defendant Nos.2 to 4 under Order VII Rule 11(d) read with

Section 151 CPC as against defendants 2 to 5. Issue No.5 was

held in affirmative and the suit of plaintiffs came to be

dismissed as not maintainable in view of express bar under

Section 133 of the Karnataka Land Reforms Act.

6. The plaintiffs feeling aggrieved by the said order of

trial Court on issue Nos.3 and 5 challenged the same before first

Appellate Court on the file of Civil Judge (Sr.Dn.), Khanapur, in

R.A.No.188/2008 (old No.174/2005). The first Appellate Court

R.S.A No. 5946 of 2010

after hearing both sides dismissed the appeal and confirmed the

order of trial Court.

7. Appellants/plaintiffs challenging concurrent findings

of both the Courts below on issue Nos.3 and 5 contended that

both the Courts below have failed to understand the distinction

between Section 135 of the Karnataka Land Revenue Act and

the provisions of Section 133 of the Karnataka Land Reforms

Act. The Courts below have also failed to notice the distinction

between Form No.7 filed under Section 48 of the Karnataka

Land Reforms Act and Form No.7A filed under Section 77A of

the Karnataka Land Reforms Act. The decisions relied by both

the Courts below in holding that Sections 132 and 133 of the

Karnataka Land Reforms Act is applicable and the jurisdiction of

the Civil Court is ousted. The Courts below have committed

serious error in not properly appreciating Section 133 of the

Karnataka Land Reforms Act which is not applicable for the

pendency of Form No.7A before the competent authority.

Therefore, prayed for allowing the appeal and to set aside the

concurrent finding of both the Courts below and the suit of

plaintiffs be decreed.

R.S.A No. 5946 of 2010

8. In response to notice of appeal, defendants have

appeared through learned counsel.

9. This Court by order dated 25.04.2014 framed the

following substantial question of law for consideration:

"Whether the dismissal of the suit on the question of maintainability of suit in view of Section 133 of the Karnataka Land Reforms Act, 1961, is justified, more particularly, in the light of Section 133 of the Karnataka Land Reforms Act, 1961, being not applicable to the tenancy proceedings initiated under Section 7-A of Karnataka Land Reforms (Amendment), Act, and thus the judgments of the trial Court and the first Appellate Court have become perverse and illegal?"

10. Heard the arguments of both sides.

11. On careful perusal of pleadings of both the parties

and the documents relied by them with the findings recorded by

both the Courts below, it would go to show that issue Nos.3 and

5 have been treated as preliminary issues and IA-4 filed by

defendants 2 to 5 have been heard together and the trial Court

by order dated 06.04.2005 allowed IA-4 filed by defendant

Nos.2 to 4 under Order VII Rule 11(d) read with Section 151 of

CPC and the suit came to be rejected as against defendants 2 to

5. In view of affirmative finding on issue No.5, the suit of

R.S.A No. 5946 of 2010

plaintiffs came to be dismissed holding that in view of bar

contemplated under Section 133 of the Karnataka Land Reforms

Act, the jurisdiction of Civil Court is ousted. The first Appellate

Court has affirmed the said finding recorded by trial Court.

12. The plaintiffs are claiming to be the nearest legal

representatives of deceased Bayakka and on her death, the

name of plaintiffs came to be recorded under M.E.No.1461

dated 30.04.1990. The earlier suit filed by defendant No.1 in

O.S.No.78/1995 came to be withdrawn. The suit of plaintiffs

under O.S.No.36/1996 came to be dismissed on 10.04.2001

and the appeal in R.A.No.170/2001 is pending. On the other

hand, the 1st defendant has contended that he was tenant of

the schedule property under Smt.Yallur and constructed

residential house in an area measuring 66' X 66' and residing

therein which is assigned with GPC No.331. The certification of

M.E.No.1461 came to be set aside in an appeal by the order of

Assistant Commissioner, Belagavi, on 26.02.2002. Therefore,

the plaintiffs have no any subsisting right over the suit schedule

properties. Defendant No.1 being tenant of the schedule

property filed Form No.7A seeking grant of occupancy right and

the same is pending on the file of Deputy Commissioner,

Belagavi.

R.S.A No. 5946 of 2010

13. The question is as to whether jurisdiction of Civil

Court is ousted in view of bar contemplated under Section 133

of Karnataka Land Reforms Act and the findings of both the

Courts below can be legally sustained with respect to finding

recorded on issue Nos.4 and 5.

14. Learned counsel for appellants relied on co-ordinate

bench judgment of this Court in SHANKARAPPA GOWDA AND

ANOTHER VS. INDUDHARA GOWDA (ILR 2000 KAR 2298)

wherein it has been observed and held that:

" Provisions of Section 133 are not attracted to the cases arising out of Section 77-A as the Authority which is empowered to deal with such cases is a distinct entity and cannot be equated with the Land Tribunal constituted under a separate provision of the Land Reforms Act."

In view of the principles enunciated in this decision, it is

evident that the filing of declaration in Form No.7A before the

Deputy Commissioner for grant of the land in question, Section

133 of the Karnataka Land Reforms Act will not apply to the

proceedings under Section 77A of the Act.

15. Learned counsel for the appellants also relied on

another subsequent co-ordinate bench judgment of this Court in

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R.S.A No. 5946 of 2010

K.V.RUSHYASHRINGABHATTA VS. S.G.NAGENDRA AND

OTHERS (ILR 2003 KAR 1643) wherein it has been observed

and held that:

"Neither Section 77A nor Section 132 provides that if there be a dispute with regard to possession of agricultural land then the same can be resolved only by the authorities prescribed under Section 77A and the jurisdiction of the Civil Court will remain ousted for adjudicating such factual issues.

The Rule that the exclusion of jurisdiction of Civil Courts is not to be readily inferred is based on the theory that Civil Courts of general jurisdiction and the people have a right, unless expressly or impliedly debarred, to insist for free access to the Courts of general jurisdiction of the state.

The provisions of Section 133 of the Act do not get attracted to cases arising out of Section 77A of the Act as the authority which is empowered to deal with such cases is a distinct entity and cannot be equated with land tribunals constituted under Section 48 of the Act."

In view of the principles enunciated in these decisions, it

is evident that proceedings before the Land Tribunal constituted

under Section 48 of the Karnataka Land Reforms Act to decide

the issue of tenancy filed under Form No.7 is different than the

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R.S.A No. 5946 of 2010

proceedings before the Deputy Commissioner filed under Form

7A in terms of Section 77A of the Karnataka Land Reforms Act.

16. Learned counsel for appellant seeks to rely on the

co-ordinate bench judgment of this Court in SHANKAR AND

ANOTHER VS. MADHUKAR BANDOPANT AND ANOTHER

(ILR 2000 KAR 1019) wherein it has been observed and held

that:

" Karnataka Land Reforms Act, 1961 - Section 77-A and 133 - In a suit for specific performance the Agreement Holders filed an application under Section 133 to stay further proceedings as they have filed an application under Section 77-A for grant of land and the matter is pending before the Deputy Commissioner. The trial Court dismissed the Application holding that Section 133 will not be attracted."

17. On close reading of the principles enunciated in all

the aforementioned 3 judgments of this Court, it is evident that

grant of occupancy rights by the Land Tribunal constituted

under Section 48 of the Karnataka Land Reforms Act to declare

the tenancy rights on the basis of Form No.7 filed by the tenant

is different than the proceedings before the grant of land under

Section 77A of the Karnataka Land Reforms Act by the Deputy

Commissioner. In the proceedings before Deputy Commissioner

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R.S.A No. 5946 of 2010

on the application filed under Section 77A of the Land Reforms

Act, the provisions of Section 133 of the Karnataka Land

Reforms Act has no application.

18. Learned counsel for appellants filed IA-3/2013

seeking permission to produce the document under Order XLI

Rule 27 of CPC. The same was taken up for hearing along with

the main appeal. The 1st defendant has contended that during

pendency of declaration filed by him seeking grant of land under

Section 77A of the Karnataka Land Reforms Act before the

Deputy Commissioner, the suit is not maintainable. The

additional document sought to be produced by the appellants is

the order passed by the Assistant Commissioner, Belagavi, in

KLR/7A/SR/2090-Karambal dated 04.04.2007. The Assistant

Commissioner, Belagavi, by exercising the power conferred in

terms of Government Order No.RD 147 LRA 98 (1) dated

28.06.1999 dismissed the declaration Form filed by defendant

No.1 under Section 77A of the Karnataka Land Reforms Act

holding that the 1st defendant has failed to prove that he was

tenant of the schedule properties. This Court can take judicial

notice of the order passed by Assistant Commissioner, in view

of the admitted fact that the proceedings before the Deputy

Commissioner, Belagavi, on the basis of declaration filed by

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R.S.A No. 5946 of 2010

defendant No.1 under Section 77A of the Karnataka Land

Reforms Act was pending and the result of such application is

only made known to this Court. Otherwise, also in view of the

principles enunciated in the aforementioned 3 judgments of this

Court, it is evident that the provisions of Section 133 of the

Karnataka Land Reforms Act are not applicable to the

proceedings initiated on the basis of declaration form filed under

Section 77A before the competent authority. Therefore, the

finding of both the Courts below that the jurisdiction of the Civil

Court is ousted in terms of Section 133 of the Land Reforms Act

that the proceedings initiated under Section 7A under the

Karnataka Land Reforms Act cannot be legally sustained and

accordingly, the substantial question of law is answered in the

negative. Consequently, proceed to pass the following:

ORDER

Appeal filed by appellants/plaintiffs is hereby allowed.

The judgment of the first Appellate Court on the file of

Senior Civil Judge, Khanapur, in R.A.No.188/2008 (Old

No.174/2005) dated 24.07.2010 which confirmed the order of

trial Court dated 06.04.2005 in O.S.No.84/2002 on the file of

Addl. Civil Judge (Jr.Dn.), Khanapur, is hereby set aside.

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R.S.A No. 5946 of 2010

The trial Court is directed to restore O.S.No.84/2002 on

its file and to dispose of the suit in accordance with law as

expeditiously as possible, since the suit is of the year 2002.

The parties to the appeal who are represented through

their counsel are directed to appear before the trial Court on

03.08.2023.

The registry is directed to transmit the records with the

copy of this judgment to trial Court.

(Sd/-) JUDGE

Jm/-