Second appeal by plaintiff denied injunction over land where the defendants' predecessor held occupancy rights granted by the Land Tribunal. The court held civil courts cannot sit in judgment over Tribunal findings; appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO. 621 OF 2016 (INJ)
BETWEEN:
ALKA SHEDTHY, D/O UMA SHEDTHY, AGED ABOUT 51 YEARS, R/AT ASODU VILLAGE, KUNDAPUR TALUK, REP. BY HER POWER OF ATTORNEY HOLDER SMT.UMA V SHEDTHY, W/O LATE V.V. SHETTY, AGED ABOUT 79 YEARS, R/AT AT ASODU VILLAGE, KUNDAPUR TALUK – 570 201.
…APPELLANT
(BY SRI. S SHAKER SHETTY.,ADVOCATE)
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
AND:
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NOS.2 TO 6 ARE CHILDREN OF NO.1 AND ALL ARE RESIDING AT ASODU VILLAGE, KUNDAPURA TALUK – 570 201.
…RESPONDENTS
(BY SRI.NAVEEN S.,ADVOCATE FOR SRI.H JAYAKARA SHETTY., ADVOCATE FOR R1, 4& 6; R2,R3 & R5 ARE SERVED AND UNREPRESENTED)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.12.2015 PASSED IN R.A NO.3/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.11.2006 PASSED IN OS NO.181/2001 ON THE FILE OF THE II ADDL. CIVIL JUDGE (JR.DN.) AND JMFC., KUNDAPURA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Assailing the concurrent findings of the facts
recorded by the Court below, the plaintiff is before this Court in the Regular Second Appeal.
before the trial Court for the sake of convenience.
NC: 2024:KHC:31668 RSA No. 621 of 2016
item No.1 to 4 and 6 of the suit schedule properties and other lands as tenant. After coming into force of the Karnataka Land Reforms Act, 1961, (‘Land Reforms Act’ for short) Form No.7 was filed by Manja Poojary and his wife in respect of Item Nos. 1, 2, 3 and 6 and non suit properties.
the following issues:
2. Is their any interference by the defendants as alleged?
3. Is the she entitled for the relief of perpetual injunction as prayed for?
4. What order or decree?”
examined her mother as P.W.1 and marked documents at Ex.P1 to Ex.P17. On the other hand, defendant No.5
examined himself as D.W.1 and marked documents at Ex.D1 to Ex.D9.
6 and partially decreed the suit of the plaintiff, holding
NC: 2024:KHC:31668 RSA No. 621 of 2016
that the plaintiff has proved her possession over Item Nos.
5 and 7 of the suit schedule properties.
injunction in respect of suit Item Nos.1, 2, 3, 4 and 6, the plaintiff preferred appeal before the First Appellate Court. The First Appellate Court, while re-appreciating the entire oral and documentary evidence, concurred with the judgment and decree of the trial Court. Aggrieved, the plaintiff is before this Court in the Second Appeal.
appearing for the appellant and Sri Naveen S., learned counsel appearing for Sri H Jayakara Shetty, learned counsel for respondent Nos. 1, 4 and 6 and perused the judgment and decree of the Courts below.
No.7 nor the order of the Tribunal indicates the identity of
the property by furnishing the boundaries.
ii. That properties mentioned in Form No.7, properties mentioned in the order of the Land Tribunal and the suit properties are different properties and the defendants having not given any identity of the properties before the Land Tribunal, in the said circumstances, the order of the Tribunal has no bearing on the appellant.
iii. That the Courts below have erred in not holding that
when possession is concerned, identity of the property is a must and neither in Form No.7 nor in the order of the Land Tribunal nor in the written statement, the defendant have given the identity of the property, on which, have claimed their right.
iv. That the Tribunal had no jurisdiction to grant occupancy right in favour of Manja Poojary and the defendants, when Manja Poojary had not filed Form No.7
v. That there arises substantial questions of law to be framed by this Court, more particularly, in light of the
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questions of law framed in the appeal memo and in the
circumstances made out by the appellant.
vi. Learned counsel for the appellant has placed reliance on the following decisions:
1 (2005) 7 SCC 653
2 ILR 2008 KAR 2809
3 ILR 2002 KAR 62
4 (2013) 7 SCC 490
Tribunal in favour of the father of the defendants and husband of defendant No.1, learned counsel submits that there arises no substantial question of law to be framed warranting any interference under Section 100 CPC in this Second Appeal.
No.1-Manja Poojary and Item No.1, 2, 3 and 6 are the
very same survey number.
NC: 2024:KHC:31668 RSA No. 621 of 2016
boundaries of the suit properties and the properties granted in favour of Manja Poojary.
“25. Therefore, the Tribunal has the exclusive jurisdiction to decide the question of tenancy and the question whether the tenancy claimed belongs exclusively to an individual or it belongs to a joint family. The Civil Court's jurisdiction to decide these questions is completely barred. The question whether a particular property is a joint family property or self
5 ILR 2004 KAR 3355
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acquisition of a member of the joint family is a matter which exclusively falls within the jurisdiction of a Civil Court. The Tribunal has no jurisdiction to go into and decide the said question. In a suit for partition it is always open to a party to the suit to contend that a particular item of the property is not a joint family property but it is a self acquired property. The Civil Court has the jurisdiction to decide the said question and if the property is held to be a self acquired property no decree for partition shall be granted. If the subject matter of such suit for partition is a land in respect of which occupancy rights has been granted under the provisions of the Karnataka Land Reforms Act and if partition of the said property is sought for in the suit, the Civil Court has the jurisdiction to go into the question whether the said property is a joint family property or not. If in such proceedings it is contended by the person to whom occupancy rights has been granted that it is his exclusive property and not a joint family property. Civil Court certainly has the jurisdiction to go into the question whether the said property is a joint family property or the self acquisition or separate property of the persons in whose favour occupancy rights has been granted. Merely because it is contended in such a suit that it is a self acquired property of the person in whose favour the occupancy rights has been granted, the Civil Court's jurisdiction to entertain a suit in respect of the said
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property is not ousted or excluded. While grating the occupancy rights if the Tribunal has decided the question whether the person claiming that occupancy rights is claiming it on behalf of the joint family or exclusively for himself, then, on a suit for partition the Civil Court cannot sit in judgment over the said finding recorded by the Land Tribunal nor it can adjudicate the said controversy afresh ignoring the finding of the Tribunal. In such a event the Civil Court is bound to accept the finding of the Tribunal and give effect to the same acting on the said finding. If the Tribunal in such proceedings has recorded a finding that it is the self acquisition or exclusive right of the person whom the occupancy rights is granted rejecting the claim of the rival claimant that it is a joint family tenancy that by itself would not oust the jurisdiction of Civil Court to entertain a suit for partition. If a suit is filed after entertaining the suit the Court may decline to grant relief to the plaintiff who is claiming a share in the said property on the ground that it is not a joint family property but it is the exclusive property of the person in whose favour the occupancy rights has been granted. If the Tribunal has not gone into the said question and has granted occupancy rights in a suit filed for partition in respect of the land it is open to the Civil Court to go into the question whether the said property is a joint family property or not.
x x x
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28. The legal position that emerges from the said provisions, decisions and discussion be stated as under:-
(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision
of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claims by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does not decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition.”
(Emphasis supplied)
possession in item Nos.1, 2, 3 and 6 of the suit schedule properties, the Trial Court and the First Appellate Court
have rightly arrived at a conclusion that the plaintiff is entitled for injunction in respect of item Nos.5 and 7 and refused to grant injunction order in respect of item Nos.1, 2, 3 and 6 of the suit schedule properties, holding that the Land Tribunal has granted occupancy rights in favour of Manja Poojary and Form No.10 has been issued accordingly.
“ UÁæªÀÄ ¸À.£ÀA. «¹ÛÃt𠻸Éì J.¸ÉA. C¸ÉÆÃqÀÄ 14-11 0-32 14-10 0-15 14-10 0-10 14-8 0-10 14-2© 0-35 14-40 0-50 14-3 0-29 14-9 0-16 10-10 0-12 10-2 0-22 10-13J 0-74”
measurement shown in the present suit are different, the
plaintiff claims to be in possession of the properties in the light of the partition entered into between his family members and the defendants are claiming the title on the basis of the order passed by the Land Tribunal marked at Ex.D.5, the plaintiff has failed to prove the possession in respect of item Nos.1, 2, 3 and 6, without overcoming Ex.D.5.
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DAVALSAB was pertaining to the Form No.7 application
and the Division Bench of this Court arrived at a conclusion that the Code of Civil Procedure, 1908 is not made applicable to the proceedings before the Land Tribunal. The decision of the Division Bench of this Court in the case of A.G.LAKSHMINARAYANA was pertaining to Section 48A of the Karnataka Land Reforms Act, 1961. Another decision of the Apex Court relied by the appellant in the case of M.B.RAMESH was pertaining to the issue regarding validity of the Will and the under Section 63(c) of the Succession Act, 1955 and section 68 of the Indian Evidence Act, 1872. The above decisions placed reliance by the learned counsel for the appellant are distinguishable and not applicable to the present facts and circumstances of the case.
assessed the entire oral and documentary evidence and refused to grant injunction in respect of Item Nos. 1, 2, 3 & 6, this Court is of the considered view that there is no
NC: 2024:KHC:31668 RSA No. 621 of 2016
infirmity or irregularity in the orders passed by the Courts
below warranting any interference under Section 100 CPC and no substantial question of law arises for consideration to be dealt with under Section 100 CPC. For the forgoing
reasons, this Court passes the following -
ORDER
i) The regular second appeal is hereby dismissed .
ii) The judgment and decree of the Courts below
stands confirmed .
Sd/(K.S. HEMALEKHA) JUDGE
Bsv
List No.: 2 Sl No.: 7
2 issues framed by the court
Whether the plaintiff proved possession over suit items 1-4 and 6 despite occupancy rights granted to the defendants' predecessor by the Land Tribunal under Form No.10?
Whether the Civil Court can sit in judgment over the Land Tribunal's grant of occupancy rights in a suit for injunction?
Colour shows how this judgement treated each authority
Devashyam (dead) by lrs vs. P Savithramama and othersDistinguished¶21
(2005) 7 SCC 653 · Who else cites this
Davalsab vs. The State of KarnatakaDistinguished¶21
ILR 2008 KAR 2809 · Who else cites this
A.G.Lakshminarayana vs. State of KarnatakaDistinguished¶21
ILR 2002 KAR 62 · Who else cites this
M.B.Ramesh (dead) by LRS. vs K.M.Veeraje Urs (dead) by Lrs and othersDistinguished¶21
(2013) 7 SCC 490 · Who else cites this
Sri Parushuram Nemani Kuduchakar Vs. Smt. Shantabai RamachandraRelied on¶16
ILR 2004 KAR 3355 · Who else cites this
6 provisions across 5 enactments
Alka Shedthy
Narsi Poojarthi
Paddu Poojarthi
Sadhu Poojarthi
Gulabi Poojarthi
Chandra Poojary
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
