Allowed

Prabhavathi Shedthi v. Sumathi @ Radha Narayana Pai

Karnataka HC11 Jan 2021WP/464/2021

Case brief

AI extract

What is this about?

High Court of Karnataka quashed the lower court order refusing to refer land nature and possessory rights questions to the Land Tribunal. Court held that under Sections 132 and 133 of the Karnataka Land Reforms Act, these issues must be decided by the Tribunal.

What did the court decide?

The impugned order is set at naught; the lower judge is directed to refer the question regarding the nature of the land and possessory rights to the Land Tribunal within three months.

Prabhavathi Shedthi Vs Sumathi @ Radha Narayana Pai — Land Acquisition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

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WRIT PETITION NO.464 OF 2021(GM-CPC)

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BETWEEN:

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PRABHAVATHI SHEDTHI AGED ABOUT 73 YEARS

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SRI K NAVEENCHANDRA SHETTY AGED ABOUT 48 YEARS

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SMT. NAYANA SHETTY AGED ABOUT 46 YEARS

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SMT. VINAYA SHETTY AGED ABOUT 44 YEARS

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PETITIONERS NO.1 IS THE WIFE AND 2 TO 4 ARE THE CHILDREN OF LATE RAGHAVA SHETTY, ALL ARE R/AT NAIVEDHYA, KATTERMARU, KABETTU, KARKALAKASABA VILLAGE, KARKALA TALUK, UDUPI DISTRICT.

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SMT. RAMA V SHET Y, AGED ABOUT 70 YEARS,

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SRI PRAVEEN SHETTY AGED ABOUT 46 YEARS,

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SMT. VINATHI V SHETTY, AGED ABOUT 44 YEARS,

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PETITIONER NO.7 IS THE WIFE AND PETITIONERS 5 AND 6 ARE THE CHILDREN OF LATE K VITTALA SHETTY, R/AT KATTEMARU, KABETTU, KARKALA KASABA 574104, KARKALA TALUK, UDUPI DISTRICT.

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...PETITIONERS (BY SRI. CHANDRAKANTH ARIGA K, ADVOCATE)

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AND:

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SUMATHI @ RADHA NARAYANA PAI AGED ABOUT 77 YEARS W/O LATE NARAYANA PAI KABETTU, KARKALA KASBA VILLAGE, KARKALA TLAUK 574104, UDUPI DISTRICT.

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SRI SRINIVAS NAYARANA, AGED ABOUT 58 YEARS, S/O LATE NARAYANA S PAI, SRIVASAVI 2-85-3, NEAR ST. ANNA ENGLISH MEDIUM SCHOOL, KELARI CHURCH ROAD, NEERMARGA, MANGALORE 575029.

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SRI MADHUKAR NARAYANA PAI, AGED ABOUT 54 YEARS, S/O LATE NARAYAN S PAI, R/AT SRI DAMODA -62/6, BALEBAIL SAGA ROAD, BEJAI POST, MANGALORE 575004.

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SMT. VIDYA GANESH MALYA, AGED ABOUT 58 YEARS, W/O SRI B GANESYH MALYA, R/AT GAVI 2-85/2, KELARI CHURCH ROAD, NEERMARGA PEDAMALE POST, MANGALORE 575029.

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SRI VISHWANATH M PAI, AGED ABOUT 62 YEARS, R/AT SRI DAMODAR NIVAS, KABETTU ROAD, SALMARA, KARKALA, UDUPI DISTRICT 574104.

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SMT. SHOBHA @ RADHIKA MOHAN PRABHU, AGED ABOUT 57 YEARS, W/O LATE MOHAN N PRABHU, E-16 SHANTHI HOUSING CO OPERATIVE SOCIETY, MOGALLANE, MAHIM, MUMBAI 400016.

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SMT. SUDHA @ ANITHA YOGISH BHAKTHA, AGED ABOUT 53 YEARS, W/O SRI YOGISH D BHAKTHA, SHARADA SAMPYA, PUTTUR 574204.

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SMT. GEETHA S KAMATH, AGED ABOUT 50 YEARS, W/O SRI SHIVAKUMAR K KAMATH, DARBE PUTTUR 574201.

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SRI UPENDRA KAMATH, AGED ABOUT 70 YEARS, S/O LATE KRISHNA KAMATH, HADIMANE, KABETTU ROAD, SALMARA, KARKALA KASABA 571404, KARKALA TALUK, UDUPI DISTRICT.

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10.SRI YASHWANTH KAMATH, AGED ABOUT 67 YEARS, S/O LATE KRISHNA KAMATH, HADIMANE, KABETTU ROAD, SALMARA, KARKALAKASABA 571404, KARKALA TALUK, UDUPI DISTRICT. 11.SRI SUDHAKAR KAMATH, AGED ABOUT 67 YEARS, S/O LATE VITTAPPA KAMATH, HADIMANE, KABETTU ROAD, SALMARA, KARKALA KASABA 571404, KARKALA TALUK, UDUPI DISTRICT.

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12.SRI. RAMESH KAMATH, AGED ABOUT 79 YEARS, S/O LATE VITTAPPA KAMATH, HADIMANE, KABETTU ROAD, SALMARA, KARKALA KASABA – 571 404, KARKALA TALUK, UDUPI DISTRICT. … RESPONDENTS (BY SRI.PRASANNA V R, ADVOCATE FOR R1-R8; NOTICE TO OTHER RESPONDENTS ARE DISPENSED WITH; V.C.O DATED 11.01.2021)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 04.11.2020 IN O.S.NO.112/2017 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA ON THE PRELIMINARY ISSUE (ANNEXUREM) AND ETC.,

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THIS PETITION COMING ON FOR ORDERS THIS DAY THROUGH PHYSICAL HEARING, THE COURT MADE THE FOLLOWING:-

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ORDER

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Petitioners being the defendants in an injunctive suit in O.S.No.112/2017 are knocking at the doors of the Writ Court for assailing the order dated 04.11.2020 a copy whereof is at Annexure-M whereby issue No.4 having been answered against them, the learned trial Judge has refused to refer the subject questions to the Land Tribunal for adjudication.

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The contenting respondents are represented by their learned counsel who vehemently opposes the writ petition making submission in justification of the impugned order and the reasons on which it has been constructed.

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Having heard the learned counsel for the

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parties and having perused the petition papers, this Court grants indulgence in the mater as under and for the following reasons:

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a) The issue No.4 essentially is a question relating to nature of the suit land and the nature of the possessory rights of the respondent-plaintiffs; there is force in the contention of learned counsel for the petitioners that in view of the provisions of Section 132 & 133 of the Karnataka Land Reforms Act, 1961 as interpreted by a series of decisions of this Court, the said question namely, whether the land is agricultural or not and whether it is tenanted or not are to be considered only by the Land Tribunal, the same being the mandate of the legislature and not the Civil Courts.

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b) The vehement contention of learned counsel for the Respondent-plaintiffs that there is abundant evidentiary material on record to show that the land is no longer agricultural and that the Mulageni in question being one for the construction of the structure thereon, the above questions do not arise at all, is bit difficult to countenance; the very pleadings of the parties clearly show

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that the questions which the petitioners had raised before the Court below essentially fall within the realm of Section 133 of the Act and secondly, whether question should be answered this way or that way depends upon the evidentiary material which Civil court cannot look into to answer the same, as rightly contended by the learned counsel for the petitioners.

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c) The Apex Court in DHULABHAI & OTHERS Vs.

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STATE OF MADHYA PRADESH & ANOTHER, AIR 1969

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SC 78, has laid down the principles interpreting a provision again to Section 133 of the Karnataka Land Reforms Act, 1961 and held that where special rights are created and a special Tribunal is also constituted by the legislature, the jurisdiction of the Civil Court to treat the subject stands ousted and that the questions touching the said rights will ordinarily be decided by the statutory Tribunal.

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In the above circumstances, this writ petition succeeds; the impugned order is set at naught; learned judge of the Court below is requested to refer the question as to nature of the land and as to nature of the possessory right of the respondent – plaintiffs, to the jurisdictional

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land tribunal forthwith and that said tribunal shall decide the same within an outer limit of three months after hearing both the sides & send the report to the learned judge of the Court below for consideration in the suit.

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It is made clear that the exercises to be undertaken pursuant to this judgment shall not come in the way of learned judge treating the request of the respondent plaintiffs for the grant of any interim protection or the like.

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No costs.

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Sd/JUDGE

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Bsv

Prabhavathi Shedthi v. Sumathi @ Radha Narayana Pai

Case brief

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What did the court decide?

Prabhavathi Shedthi v. Sumathi @ Radha Narayana Pai

Case brief

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