Karnataka High Court
Sri Dayananda Poojary vs Sri Surendra T Mendon on 26 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.283/2018 (POS)
BETWEEN:
1. SRI DAYANANDA POOJARY
S/O. LATE KOOSA POOJARY,
AGED ABOUT 64 YEARS.
2. SRI. INDRA POJARTHY
S/O. LATE KOOSA POOJARY,
AGED ABOUT 62 YEARS.
3. SRI. GANGADHARA POOJARY
S/O. LATE KOOSA POOJARY,
AGED ABOUT 60 YEARS.
4. SRI. EKANATHA POOJARY
S/O. LATE KOOSA POOJARY,
AGED ABOUT 48 YEARS.
APPELLANTS NO.1 TO 4 ARE
RESIDING AT NAYAMPALLI,
PUTTUR VILLAGE,
UDUPI TALUK AND DISTRICT,
PIN: 576 101.
... APPELLANTS
(BY SRI S.PRAKASH SHETTY, ADVOCATE)
2
AND:
1. SRI SURENDRA T. MENDON
S/O. LATE TANIYA GURIKARA,
AGED ABOUT 58 YEARS.
2. SRI. SHARATH MENDON
S/O. LATE SHEKAR T. MENDON,
AGED ABOUT 38 YEARS.
3. SRI. SHEETAL MANDON
S/O. LATE SHEKAR T. MENDON,
AGED ABOUT 36 YEARS.
4. SRI. VIKRANTH
S/O. LATE SHEKAR T. MENDON,
AGED ABOUT 33 YEARS.
RESPONDENTS NO.1 TO 4 ARE
RESIDING AT "SARASWATH HEIGHTS"
FLOT NO.502, KADABETTU,
UDUPI TALUK AND DISTRICT-576 101.
5. TARA K. KANCHA
D/O. LATE TANIYA GURIKARA
AGED ABOUT 62 YEARS.
6. JAYALAXMI S. SUVARNA
D/O. LATE TANIYA GURIKARA
AGED ABOUT 60 YEARS.
7. YASHODA N. SALIAN
D/O. LATE. TANIYA GURIKARA
AGED ABOUT 49 YEARS.
8. SHASHIKANTHA T. MENDON
D/O. LATE. TANIYA GURIKARA
AGED ABOUT 47 YEARS.
3
RESPONDENTS NO.5 TO 8 ARE
RESIDING AT D.NO. 1-4-46K1,
GUNDIBAIL, KUNJIBETTU POST,
UDUPI TALUK AND DISTRICT-576 101.
9. SRI. VENKATESH T. MENDON
S/O LATE TANIYA GURIKARA
AGED ABOUT 73 YEARS
R/AT SUMUKHA, KOLA,
MALPE - 576 108,
UDUPI TALUK AND DISTRICT.
... RESPONDENTS
(BY SRI B.S.PRASAD, ADVOCATE FOR C/R1 TO R8;
R9 SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 16.12.2017
PASSED IN R.A.NO.15/2017 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 08.12.2016
PASSED IN O.S.NO.54/2009 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, UDUPI.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.07.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
4
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE H.P.SANDESH)
1. This second appeal is filed against the concurrent
finding of the Trial Court as well as the First Appellate Court
granting the relief of possession of suit 'A' schedule
property bearing Sy.No.124/2A of 10 cents in Puttur village,
Udupi taluk as described in the schedule.
2. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for
respondents.
3. The parties are referred to as per their original
rankings before the Trial Court to avoid confusion and for
the convenience of the Court.
4. The factual matrix of the case of the plaintiffs
while seeking the relief of possession that defendant No.2 is
the brother of the plaintiffs and he did not choose to join
along with the plaintiffs hence, he has been arrayed as
defendant No.2. It is the case of the plaintiffs that they are
the owners of 10 cents of land bearing Sy.No.124/2A of
Puttur village of Udupi taluk bounded as per plaint 'A'
schedule. The suit schedule property has been inherited by
the plaintiffs along with defendant No.2 and they are the
owners. In the suit 'A' schedule property which is a non-
agricultural land, having tiled building bearing D.No.4/2010
and 4-10A totally measuring 10 cents which was a part of
entire Sy.No.124/2A, 55 cents and extent of 45 cents have
been granted to the mother of defendant No.1 namely
Akkamma Poojarthy by the Land Tribunal. It is contended
that the Land Tribunal granted occupancy right in the name
of Akkamma Poojarthy on 21.05.1981 in Sy.No.124/2
except the plaint 'A' schedule property. In fact, in the
plaint 'A' schedule property which is belonging to the
plaintiffs and defendant No.2 wherein the house and tea
stall are occupied by defendant No.1. The plaintiffs contend
that defendant No.1 and his brothers and sisters preferred
writ petition in W.P.No.5134/1995 before the High Court
against the order of the Land Tribunal which came to be
dismissed on 08.09.2000. On 04.12.2008, defendant No.1
and his family members have entered a registered partition
deed wherein plaint 'A' schedule property of these plaintiffs
have not been find a place and not been allotted to the
share of any person since it is the property of the plaintiffs.
It is contended that they permitted defendant No.1 and his
family members to continue in possession of plaint 'A'
schedule property out of sympathy in fact, defendant No.1
promised to make alternative arrangement with regard to
plaint 'A' schedule property to which plaintiffs got issued
registered notice on 06.12.2006. Inspite of service of
notice, defendant No.1's family members failed to surrender
the vacant possession of plaint 'A' schedule property.
Hence, they are liable to pay mesne profits of Rs.4,000/-
from December 2006.
5. It is further contended that after service of
notice, defendant No.1 and his family members got issued a
reply on 02.01.2007 contending that the entire 10 cents of
land is vested with the National Highway authorities since
more than 45 years. It is further contended that defendant
No.1 was not in possession of plaint 'A' schedule property
and there was no any small tiled building. The plaintiffs
have no right to withdraw permission with effect from
31.12.2006 due to absence of property. In fact further
negotiations were held on 01.03.2007 and defendant No.1
instead of surrendering 10 cents of land and building to
plaintiffs, admitted to give 20 cents of land situated in
Sy.No.182/1B2 of Puttur village, Udupi taluk and also cash
of Rs.25,000/- in exchange to the 10 cents of property.
Accordingly, Rs.10,000/- was paid to the plaintiffs through
plaintiff No.1. After this part performance of agreement,
defendant No.1 did not comply with the agreement. As
such plaintiff was once again forced to give notice which
was duly served on defendant No.1. It is contended that
instead of complying the lawful demand of plaintiff,
defendant No.1 got issued false reply on 06.08.2009 and
Sy.No.182/1B2 has not been handed over to the present
plaintiffs. As such, they got every right over the present
suit 'A' schedule property. The plaintiffs contended that the
legal notice was once again served on defendant No.1 to
hand over the vacant possession since from 01.09.2009, his
possession has become illegal and plaintiffs are entitled to
have mesne profits to the tune of Rs.4,000/-.
6. In pursuance of the suit summons, defendant
No.1 appeared and filed his written statement. Defendant
No.2 though served, he did not choose to file any written
statement. Defendant No.1, in the written statement,
denied the averments made in the plaint. The contention of
defendant No.1 that the plaintiffs have contended that the
Land Tribunal has granted Sy.No.124/2 to an extent of 45
cents is admitted but at the same time the 10 cents of land
in the same survey number is vested with the plaintiffs is
specifically denied. Defendant No.1 further contends that
the question of deleting of 10 cents of land as pleaded by
plaintiffs as per the order of the Land Tribunal is false.
However, defendant No.1 contends that 10 cents of
agricultural land was acquired by the National Highway and
there is no any building. It is contended that entire
Sy.No.124/2A is standing in the name of Angara Poojary
and not in the name of first defendant. Defendant No.1
also denied with regard to the settlement and compromise
arrived between the plaintiffs and defendant No.1 with
regard to Sy.No.124/2A and 124/2AP2. It is contended
that notice of termination is not proper and hence, the
plaintiffs have no right over the suit 'A' schedule property.
7. The Trial Court taking into note of the pleadings
of the parties, framed the following Issues:
1. Whether the plaintiffs prove that they are
the owners of plaint 'A' schedule property,
along with 2nd defendant?
2. Whether the 1st defendant proves that the
plaint 'A' schedule property is vested in the
National Highway Authority?
3. Whether the plaintiffs further prove that
the 1st defendant had agreed to give 20
cents of land bearing S.No.182/1B2 of
Puttur village and sum of Rs.25,000/-
instead of surrendering the plaint A
schedule property?
4. Whether the plaintiffs prove that the 1st
defendant is liable to surrender the plaint A
schedule property to them and liable to pay
mesne profits at the rate of Rs.4,000/- per
month from 01.09.2009?
5. Whether the plaintiffs are entitled for a
declaratory decree as prayed for in the
plaint along with the 2nd defendant?
6. What order or decree?
8. The Trial Court after considering the pleadings of
the parties allowed the parties to lead their evidence. In
order to prove the case of the plaintiffs, plaintiff No.1 got
examined himself as PW1 and got marked the documents at
Ex.P1 to P12. On the other hand, legal representatives of
defendant No.1 are examined as DW1 and DW2 and got
marked the documents at Ex.D1 to D6. The Trial Court
having taken note of both oral and documentary evidence
placed on record and particularly the admission on the part
of DW1 and DW2 comes to the conclusion that plaintiffs
have proved that they are the owners of suit 'A' schedule
property along with defendant No.2 and answered Issue
No.2 as negative holding that defendant No.1 fails to prove
that the suit schedule property was vested in the National
Highway and also comes to the conclusion that Issue No.3
does not arise and decreed the suit of the plaintiffs.
9. Being aggrieved by the judgment and decree of
the Trial Court, an appeal was preferred by the defendants
in R.A.No.15/2017. The First Appellate Court having
considered the grounds urged in the appeal framed the
following Points for consideration:
1. Whether the appellants have made out
sufficient ground to condone the delay in filing
the appeal?
2. Whether the appellants have made out
sufficient ground to receive additional
documents as sought for in I.A.No.VII?
3. Whether the respondents/plaintiffs proved that
they are the owners of the plaint 'A' schedule
property along with 2nd defendant?
4. Whether the 1st appellant/1st defendant proved
that plaint 'A' schedule property is vested in
National Highway Authority?
5. Whether the judgment and decree dated
08.12.2016 passed by the Trial Court in
O.S.No.54/2009 is perverse, capricious,
improper and not on application of law and on
facts, and thus, deserves to be set aside?
6. What order?
10. The First Appellate Court reassessing both oral
and documentary evidence placed on record answered
particularly Point No.3 that the plaintiffs have proved that
they are the owners of suit 'A' schedule property along with
defendant No.2 and did not accept the contention of the
appellants and thereby confirmed the judgment and decree
of the Trial Court by dismissing the appeal. Being
aggrieved by the concurrent finding of the Trial Court and
the First Appellate Court, the present second appeal is filed
before this Court by the legal representatives of defendant
No.1.
11. The grounds urged in this appeal by the counsel
for the appellants that order passed by both the Courts is
illegal and contrary to law. The counsel would vehemently
contend that the appellants are the Chalgeni tenants in
respect of 10 cents of land. There is a registered Chalgeni
chit in favour of the father of the appellants. The said
aspect has not been considered by both the Courts. The
appellants are entitled to be continued in possession.
Hence, the very suit itself is not maintainable. The order
passed by both the Courts requires interference. It is
contended that father of the appellants filed Form No.7A
under Section 77 of the Karnataka Land Reforms Act (here
after referred as 'KLR Act') in the year 1999. The said
application was pending before the Land Tribunal when
O.S.No.54/2009 was filed in the Court of Additional Senior
Civil Judge, Udupi. The said issue was not framed by the
Trial Court. It is also contended that application was filed
stating that suit is not maintainable. The said application
was rejected. It is contended that the Trial Court has filed
to consider Sections 132 and 133 of the KLR Act. It is also
contended that while disposing of the original suit, the
application filed under Section 77 was pending for
consideration before the Land Tribunal. Thus, the Trial
Court ought not to have entertained the suit and ought to
have dismissed the same in view of Sections 132 and 133
of the KLR Act. It is also contended that there is no
identification of land and boundaries has not been furnished
and under such circumstances, no injunction can be granted
without identification of the land. Hence, both the Courts
have failed to consider the fact that there was no valid
document in accordance with law. It is also contended that
the appellants have filed an appeal in Appeal No.1372/2017
before the Karnataka Appellate Tribunal, Bengaluru. Form
No.7A filed by the father of the appellants is pending
consideration before the Karnataka Appellate Tribunal. The
said appeal is continuation of original proceedings. Hence,
the Trial Court ought not to have entertained the suit.
Hence, it requires interference of this Court.
12. This Court having heard the learned counsel
appearing for the appellants at the time of admission,
framed the following substantial questions of law:
1. Whether the Courts below were correct and
justified in passing judgment and decree for
possession against appellants through plea had
been raised by appellants of filing of Form
No.7A as contemplated under Section 77A of
the Karnataka Land Reforms Act, 1961?
2. Whether suit filed by the respondents for
possession of suit schedule property (10 cents)
was not maintainable before Civil Court on
account of Form No.7A having been filed by
appellants and in the teeth of Sections 132
and 133 of Karnataka Land Reforms Act,
1961?
3. Whether suit filed by respondents-plaintiffs for
possession was maintainable after Form No.7
filed by appellants/ their predecessors claiming
occupancy rights in respect of 55 cents in
which proceedings, an extent of 45 cents alone
was granted and thereby application filed in
Form No.7A under Section 77A of the
Karnataka Land Reforms Act, 1961 would not
bar the jurisdiction of Civil Court by entering
such suit?
4. Whether successive applications filed by
applicant in Form No.7 or 7A in respect of
same property would bar the jurisdiction of
Civil Court?
13. The learned counsel appearing for the appellants
during the course of arguments, reiterated the grounds
urged in the appeal memo and contend that when the suit
is filed for the recovery of possession, the Trial Court
erroneously decreed the suit of the plaintiffs and the First
Appellate Court also erroneously confirmed the judgment
and decree of the Trial Court because the very suit itself is
not maintainable since Form 7A filed before the Land
Tribunal is pending and application filed under Section 77A
of the KLR Act has not yet considered. The counsel also
would vehemently contend that the property is not
identified and hence, both the Courts have committed an
error in entertaining the suit and granting the relief of
possession and hence, it requires interference of this Court.
14. The counsel appearing for appellant relied upon
the judgment reported in 1976 SCC ONLINE KAR 57 of
the division bench in case of Mallayya Murigeyya
Nadivinamath V/s Puttappa Shivappa Mosali wherein
discussion was made with regard to Section 133 of KLR Act
as it stands now take away the jurisdiction of civil or officer
or authority to decide the question whether a land is an
agricultural land or not and whether a person claiming to be
in possession is or is not a tenant of the said land from prior
to 01.03.1974 and having made the discussion held that
question has to be referred to the tribunal for its decision.
15. The counsel also relied upon the judgment of
this Court reported in AIR 1988 KAR 123 in case of
Koraga Marakala and another V/s Smt. Kamala and
others and counsel brought to notice of this Court
discussion made in paragraph No.6, 7, 16 and 30 wherein it
is held that Section 133 KLR Act certain modification was
made in Karnataka Act 27 of 1976. When the reference was
made held that the same is still operative since it has not
been repealed. If so, construed, again question of tenancy
has to be referred to the Tribunal by virtue of Section 3 of
Act 31 of 1974.
16. The counsel for the appellants in support of his
arguments, relied upon the judgment reported in ILR 2004
KAR 1615 in the case of K RAVINDRANATHA SHETTY
AND ANOTHER vs SMT.MAIRE HENGASU AND
ANOTHER and referring this judgment, the counsel would
vehemently contend that in a suit, if an issue of tenancy is
raised by the defendant, such issue should necessarily be
referred to the Land Tribunal as required under Section 133
of the KLR Act and hence, the suit is not maintainable. The
counsel also relied upon the judgment of this Court
reported in LAWS (KAR) 2016 1 164 in the case of G
GOPAL KRISHNA vs K BASHEER and referring this
judgment also the counsel would vehemently contend that
this Court taken note of Section 133 of the KLR Act and also
an observation is made that it is not in dispute that the suit
property has been a subject matter of proceedings under
the Act. Form No.7A has been filed by the plaintiff under
Section 77-A of the Act seeking grant of the land in
question under the provisions of that Section. The matter is
pending adjudication before the Assistant Commissioner on
remand from the Karnataka Appellate Tribunal as the
earlier order passed by the Assistant Commissioner on
07.04.2001 has been set aside by the Tribunal. The counsel
referring these judgments would vehemently contend that
the judgment and decree passed by both the Courts is
erroneous and hence, it requires interference of this Court.
17. Per contra, the learned counsel appearing for the
respondents/plaintiffs would vehemently contend that Form
No.7A filed was rejected. The counsel also would
vehemently contend that both the Courts have taken note
of the fact that the Land Tribunal order is only to the
extent of 45 cents and not to the extent of 55 cents as
claimed. Hence, the suit is field for the recovery of
possession to the extent of 10 cents which is in possession
of the appellants herein. The counsel would vehemently
contend that DW1 and DW2 categorically admitted that
RTCs stand in the name of the plaintiffs in terms of Ex.P2
and also categorically admitted that in terms of Ex.P11,
partition was effected between the members of the family
of the defendants wherein 10 cents of land was not included
for partition and hence, it is clear that the appellants are
not claiming any right in respect of 10 cents of land. The
counsel also would vehemently contend that though the
appellants claimed that the suit schedule property is vested
with the National Highway, nothing is placed on record to
show the same. Hence, both the Courts have taken note of
the said fact into consideration and decreed the suit in their
favour. The counsel also would vehemently contend that,
the writ petition filed by the mother of the appellants was
dismissed and the same attained its finality regarding not
granting of the land to the extent of 10 cents in favour of
the appellants. Thus, now, they cannot contend that same
is pending before the Court. The counsel also would
vehemently contend that when the application in Form No.7
was not considered in respect of 10 cents of land, filing of
one more application in Form No.7A does not arise.
18. The counsel for respondent in support of his
arguments, relied upon the judgment reported in ILR 2002
KAR 1442 in the case of VENKATAPPA vs RAMAKKA and
referring this judgment would vehemently contend that the
suit need not to be stayed only because the person claiming
to be a tenant has filed an application in Form No.7-A,
because the Deputy Commissioner only grants lands and
not the occupancy rights under Section 77-A.
19. The counsel brought to notice of this Court when
the claim to the extent of 45 cents was granted out of 55
cents and the same is challenged by the father of the
appellants in W.P.No.5134/95 and the same was dismissed
by this Court and it has attained its finality. Now, cannot
contend that they are the tenants and matter can be
referred to the Tribunal to decide the same.
20. The counsel also in support of his argument, he
relied upon the judgment reported in ILR 1994 KAR 2505
in case of B.V.Subbachari V/s B.K.Joyappa wherein also
considering Section 133 of KLR Act this Court held that
question of tenancy not relevant, factum of possession
relevant, civil Court has jurisdiction to entertain suit for
injunction and pass appropriate interim orders, effect of
Section 133 of KLR Act on injunction suits, re-thinking
necessary.
21. The counsel also relied upon the judgment
reported in ILR 2000 KAR 2298 in case of Shankarappa
Gowda and another V/s Indudhara Gowda wherein the
discussion was made with regard to Section 77-A and
Section 133 of KLR Act, provisions of Section 133 of KLR
Act are not attracted to the cases arising out of Sectoin 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.
22. The counsel also relied upon the judgment
reported in ILR 2003 KAR 1643 in case of
K.V.Rushyashringabhatta V/s S.G.Nagendra and
others and held that provisions of Section 133 of KLR Act
do not get attracted to the cases arising out of Section 77-A
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 under Section 48 of the Act.
23. The counsel also relied upon the order passed in
W.P.No.9952/2014 dated 1st day of October, 2015 and
brought to notice of this Court paragraph No.5 wherein
distinguished that it has been made it clear that the
provisions of Section 133 of KLR 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 Tribunal constituted
under Section 49 of the Act.
24. The counsel also relied upon the judgment
reported in ILR 2000 KAR 1019 in case of Shankar and
another V/s Madhukar Bandopant and another and
discussion was made with regard to the Karnataka Land
Reforms Act, 1961 and Section 77-A and 133 of KLR Act
wherein also it is held that when the suit was filed for the
relief of specific performance and an application filed under
Section 133 of KLR Act to stay further proceedings as they
have filed 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 of KLR Act will not be attracted in division High Court
held that under Section 77-A, the Deputy Commissioner
only grants the land and if conditions mentioned in that
Section are fulfilled, but he does not grant occupancy rights
to a tenant and hence the provisions of Section 133 of KLR
Act are not attracted.
25. The counsel having relied upon these judgments
would vehemently contend that when the application was
filed under Form No.7 which was rejected in respect of 10
cents of land of suit schedule property and the same was
challenged before this Court in the writ petition and the
same was dismissed and application filed under Form No.7-
A is distinct as held by the Court. When both are distinct,
question of invoking Section 133 of the KLR Act does not
arise.
26. Having heard the appellant's counsel and also
the counsel appearing for the respondent and also in
keeping the grounds urged in the second appeal and also
the judgment relied upon by the respective counsel and
also the substantial question of law framed by this Court
has to analyze the material available on record. The first
substantial question of law is with regard to filing of Form
No.7A as contemplated under Section 77A of KLR Act and in
keeping the said provision, this Court has to analyze
whether the Courts below were correct and justified in
passing the judgment and decree for possession and also
when the suit was filed by the plaintiffs for possession,
whether the same was not maintainable in view of Form
No.7A having been filed, whether there is a bar under
Section 132 and 133 of KLR Act and whether the suit is
maintainable after Form No.7, the predecessors claiming
occupancy right in respect of 55 cents in which proceedings,
extent of 45 cents was granted and thereby an application
filed under Form No.7A and Section 77A of KLR Act would
not bar the jurisdiction of civil Court by entering said suit
and whether the successive application filed by the
applicant in Form No.7A in respect of the same property will
bar the jurisdiction of the civil Court and all these 4
substantial question of law are considered together and all
of them are interconnected.
27. It is not in dispute that earlier an application is
filed in Form No.7 both by the son and mother and also no
dispute that the same was allowed in part of his mother and
application of son was not pressed, though it is contended
that the same was rejected and with regard to the said fact
is concerned a discussion was made by this Court in the
writ petition filed by the father when the 10 cents of land
was rejected in W.P.No.5134/1995. It is also not in dispute
that the said Koosa Poojary is one of petitioner in
W.P.No.5134/1995 wherein categorical discussion was
made when the rejection to an extent of 10 cents was made
by the land tribunal. Having discussed the material on
record, dismissed the writ petition. Hence, it is clear that
with regard to the 10 cents of land is concerned, when the
Form No.7 was filed rejected and the same attained its
finality.
28. It is the contention now that an application filed
under Form No.7A invoking Section 77A of KLR Act. No
doubt the counsel appearing for the appellant relied upon
the judgment of the 1976 of Mallayya Murigeyya
Nadivinamath V/s Puttappa Shivappa Mosali and also
the judgment of the Koraga Marakala and another V/s
Smt. Kamala and others and also the judgment reported
in ILR 2004 KAR 1615 and so also the judgment of this
Court G GOPAL KRISHNA vs K BASHEER wherein in case
of jurisdiction under Section 133 of KLR Act was discussed
in detail. No doubt there is no dispute with regard to the
settled principles that when the application is pending
before the Tribunal when the claim was made that grant
jurisdiction is vested with land tribunal confirming the
occupancy right. The Trial Court shall refer the question to
the decision of the tribunal in accordance with provisions of
Section 133 of KLR Act and there is a bar. No dispute with
regard to the said ratio and principle. It is also important to
note that when the tenancy application was filed and
rejected to an extent of 10 cents of land which is the
subject matter of the suit. I have already pointed out that
the writ petition also rejected the claim of the Form No.7
which was filed by the said Koosa Poojary and has attained
its finality as contended by the counsel for respondent.
29. It is also important to note that the judgments
which have been relied upon by the counsel for the
respondent also throughout from 1994 to 2015 referred
above, categorically held that civil Court has jurisdiction to
entertain the suit for injunction and pass appropriate orders
and categorically held that provision of Section 133 are not
attracted the cases arising out of Section 77A of KLR Act as
the authority which is empowered to deal with the cases in
a distinct entity and cannot be equated with the land
tribunal constituted under a separate provisions of Land
Reforms Act. In the case on hand, it has to be noted that
no dispute that Form No.7A is filed invoking Section 77A of
KLR Act and the same was also rejected. The counsel
appearing for the appellant would submits that the same is
questioned before the KAT and the matter is still pending.
But, the law is very clear that suit need not be stayed only
because the person claiming to be a tenant has filed an
application in Form No.7A, because the Deputy
Commissioner only grants lands and not the occupancy
rights under Section 77A as held in the judgment
Venkatappa V/s Ramakka and even it is held in a case of
K.V.Rushyashringabhatta V/s S.G.Nagendra and
others and also discussion was made with regard to Form
No.7 filed for grant of occupancy rights when the same is
pending before the land tribunal. In the case on hand,
application filed under Form No.7 is not pending and it has
reached its finality and also discussed with regard to the
effect of section 77A R/w Section 132 of the Act. When an
application is filed under Form No.7A and categorically held
that provisions of the Section 133 of the Act do not
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 tribunal
constituted under Section 48 of the Act and the same is
also re-iterated in the judgment of Sanjeeva Shetty V/s
Sri.Shekar Shetty in W.P.No.9952/2014 and so also earlier
judgment in Shankar and another V/s Madhukar Bandopant
and another and in the judgment referred supra ILR 2000
KAR 1019 wherein also held that under Section 77A the
Deputy Commissioner only grants land if condition
mentioned in that sections are fulfilled, but he does not
grant occupancy right to a tenant and hence the provision
under Section 133 are not attracted.
30. This Court would like to rely upon the judgment
reported in 2015 SCC online KAR 5407 in case of
Veerabadra V/s State of Karnataka wherein also similar
question was arosed before the division bench regarding
Form No.7A and confirmed the judgment of the single judge
in coming to the conclusion that when the Form No.7 was
rejected by the land tribunal which has been confirmed by
the division bench of this Court, the appellants have no
right to file an application again invoking Form No.7A of the
Act and held that Form No.7A could not have been filed by
the appellants because Form No.7A can be filed only if a
tenant could not file Form No.7 for the reasons beyond his
control. In view of categorical observation made by this
Court that Form No.7A cannot be invoked when the Form
No.7 was rejected.
31. This Court would like to rely upon the judgment
of this Court in W.P.No.23806/2012 dated 20th day of July
2012 discussed with regard to when Form No.7A was
invoked, the provisions of Section 77A of Karnataka Land
Reforms Act, 1961, discussion made in the paragraph No.3
that when the application was dismissed under Form No.7
and the same is attained its finality and if a person invoked
Section 77A of the Act and the same being entitled to be
registered as occupant of such land and Section 45 or 49,
had failed to apply for registration of occupancy rights in
respect of such land under sub-Section (1) of Section 48-A
within the period specified and also discussion made that
once an application was rejected on merits and petitioner
being the son of unsuccessful applicant who had suffered an
order earlier by the land tribunal cannot maintain an
application in Form No.7A and prescribed authority cannot
entertain such an application as per Section 77A of the Act
and dismissed the same.
32. The single Judge of this Court also in the
R.S.A.No.5946/2010 dated 11th day of July 2023 wherein
also similar factual aspects was discussed with regard to
the filing of Form No.7A for grant of occupancy right in
respect of suit schedule properties and discussion was
made with regard to Section 133 and wherein also relied
upon the judgment reported in ILR 2000 KAR 2298 in
case of Shankarappa Gowda and another V/s
Indudhara Gowda regarding Section 133 and also cases
arising out of Section 77A as the authority which is
empower to deal with such cases is a distinct entity and
cannot be equated with the land tribunal constituted under
a separate provisions of land reforms Act, relying upon this
judgment also set-aside the judgment of the Trial Court and
First Appellate Court in coming to the conclusion that the
finding of the courts below that it attracts section 133 in
respect of proceedings initiated under Section 7A is not
sustainable under law.
33. Having considered the material available on
record and also the principles laid down in the judgments
referred supra by both the appellant's counsel as well as
the respondent's counsel and also judgment relied upon by
this Court, it is very clear that once an application is filed
under Form No.7 was rejected to an extent of 10 cents
which is the subject matter of suit was rejected, the same
was questioned before the Court in writ petition and writ
petition was also dismissed and it has reached its finality.
Though contend that an application is filed under Form
No.7A invoking Section 77A of the Act and granting
authority is distinct and throughout from 1994 onwards this
Court categorically held that both are distinct entity and
admittedly when Form No.7A was rejected, matter is
pending before the KAT. The very contention of the
appellant that the matter is liable to refer to tribunal cannot
be accepted and matter is not pending before Tribunal and
an application is pending before the Deputy Commissioner
invoking Form No.7A and the same is distinct and the
division bench of this Court also categorically held that once
Form No.7 is rejected and cannot file one more application
under Form 7A. The division bench also categorically held
that once the application was rejected by the Land Tribunal
under Form No.7, the appellants have no right to file again
invoking Form No.7A of the Act and could not have been
filed by the appellants because Form No.7A can be filed
only if a tenant could not file Form No.7 for the reasons
beyond his control and when such finding was given and
held that cannot maintain an application under Section 7A,
question of invoking Section 133 of the Act does not arise
as contended by the appellant's counsel.
34. Apart from that, material available on record and
both the Courts have taken note of the admission on the
part of DW1 and DW2 categorically held that RTC which is
marked as Ex.P2 stands in the name of the plaintiffs and
also taken note of Ex.P11 wherein partition was taken place
between the appellant's family not included 10 cents of land
and only they partitioned the property to an extent of 45
cents which was granted when the Form No.7 was filed
before the Land Tribunal and also categorical admission was
given by the DW1 in the evidence also that the respondents
have claimed the possession to the extent of only 10 cents
and also admitted with regard to non-inclusion of 10 cents
of land in Ex.P11. The DW1 also categorically admitted that
before filing the suit, they have issued the notice and also
admitted that in suit schedule property they are residing
and having hotel building and also there is a surrounding
land. Hence, the contention of the appellant's counsel that
the property is not identified cannot be accepted since he
categorically admitted in the suit schedule property consists
of house, hotel and surrounding area. Even DW2
categorically admits in the cross-examination that the
Plaintiff were land lord to some property and his father has
filed the writ petition before the High Court and the same
came to be dismissed and also admits that the plaintiffs
made the claim to surrender the property which is in their
possession and also categorically DW2 admits that the
matter was disposed of in the High Court and dispute with
regard to 10 cents of land are now over and this admission
takes away the case of the appellants and also admitted
that if questioned based on the documents placed by them,
they are not going to have any right as of ownership over
the suit property. This witness also admits that property is
not included in their family partition and also admits that
RTC is not standing in their name. He also admits that the
RTC stands in the name of the Plaintiffs and also admits the
Ex.P7 certified copy of the registered partition. Taking into
note of the admission on the part of the DW1 and DW2
also, the Trial Court considered the material on record and
no perversity in the finding of both the Courts. The very
contention that the property is not identified as contended
by the counsel for appellant also cannot be accepted. He
categorically admits that the suit schedule property consists
of the house in which they are residing and also the hotel is
located and also the surrounding area and identity of the
property is also admitted by the witnesses and now cannot
contend that property is not identified. Hence, I do not find
any merit in the appeal to reverse the finding of the Trial
Court as well as the First Appellate Court. Both the Courts
have taken note of the said fact into consideration. In view
of the discussion made above, I answered substantial
question of law Nos.1 and 2 as negative and answered
substantial question of law No.3 as affirmative that Section
133 of the Act is not a bar to file a suit and suit is
maintainable and answered the substantial question of law
No.4 accordingly as there is no bar in view of filing of an
application under Section 7A.
35. In view of the discussions made above, I pass
the following:
ORDER
The Second Appeal is dismissed.
Sd/-
JUDGE
SN
