Smt. Subbalakshamamma Vs Sri Arakappa

THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.12.2024 PASSED IN R.A. NO.27/2022 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

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JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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NC: 2025:KHC:41580 RSA No. 963 of 2025

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HC-KAR

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ORAL JUDGMENT

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This matter is filed for admission. Heard the learned counsel appearing for the respective parties.

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This second appeal is filed against the concurrent

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finding of the Trial Court in dismissing the suit and confirming the same by the First Appellate Court.

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The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of declaration to declare that sale deed dated 09.08.1972 as null and void and consequential relief of permanent injunction by restraining the defendants from interfering with the suit schedule property, it is contended that suit schedule property is a vacant site which was originally granted to the father of the plaintiff by name Kondaiah by then Kyathanahalli Panchayath through Hakku Patra dated 01.01.1963 and he was in possession and enjoyment of the same during his lifetime. Father of the plaintiff died on 30.04.1973. After the death of the Kondaiah, the katha of the suit schedule property was changed into the name of the mother of the plaintiff. After her death, plaintiff became the

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owner and he is in possession of the suit schedule property and he has been in possession and enjoyment of the same as absolute owner. It is further stated that partition taken place between the plaintiff and his brother – Jayaramu and the suit schedule property was fallen to the share of the plaintiff. But the katha in respect to the suit schedule property stands in the name of his brother-Jayaramu since he is the elder member of the family. It is also contented that even though the defendants have no right, title and interest much less possession in or over the suit schedule property are trying to interfere with possession of the property and hence sought for the consequential relief of permanent injunction.

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It is also stated in the plaint that the plaintiff recently came to know that defendants have created some panchayat documents into the name of the second defendant colluding with the panchayat officials on the basis of the created document and also there was some litigation between the first defendant and the elder brother of the plaintiff without his knowledge. It is also contented that the first defendant is claiming the suit schedule property on the basis of the created

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void sale deed dated 09.08.1972 executed in favour of the grandfather of first defendant by name Sannashetty illegally by playing fraud on the father of the plaintiff against the conditions imposed by the granting authority and by mentioning the wrong boundary. It is also contented that suit schedule property should not be alienated within 20 years. But before the expiry of the stipulated period, the alleged sale deed was executed and thus, the same will not create any right in favour of the defendants.

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The defendants appeared and filed the written

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statement admitting that the suit schedule property is the vacant site which was granted to the father of the plaintiff by name Kondaiah by Kyathanahalli Grama Panchayath through hakku patra dated 01.01.1963 and further contended that he was in possession and enjoyment of the same as absolute owner of the scheduled property and denied all other averments made in the plaint. The suit schedule property was granted to said Kondaiah through Grama Panchayath and he was the absolute owner and the said Kondaiah sold the scheduled property to Sannaiahshetty, the grandfather of first

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defendant for the sale consideration of Rs.2,000/- through registered sale deed dated 09.08.1972 for the purpose of discharging his debts. It is also contended that on the date of sale, the possession of the property was parted with and the defendants are in possession of the suit schedule property and the very averments made in the plaint are not admitted and denied. The katha of the suit schedule property was transferred to the name of the first defendant as per the order dated 10.10.2005 and the same was challenged before the High Court by filing a Writ Petition before the High Court in W.P.No.9442/2006. The High Court upheld the order of the Taluk Panchayath in its Order dated 02.01.2007. The very contention of the plaintiff that he is not aware of all the previous proceedings is nothing but a false averments made in the plaint. Hence prayed the Court to dismiss the suit.

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The Trial Court having considered the grounds urged in the plaint as well as the written statement framed the Issues and allowed the parties to lead their evidence. The Trial Court having considered the material available on record answered the Issue Nos.1 to 3 as negative and Issue No.4 is

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answered as affirmative in coming to the conclusion that suit is barred by limitation and also an observation is made that if there is any grievances in respect of violation of the grant condition, approach the appropriate authority under the PTCL Act, which came into force on 01.01.1979. Even though Section 4 of the PTCL Act does not prescribe any period of limitation, but as the ratio laid down in the supra, plaintiff has to file the present application within prescribed period and detailed discussion was made while answering Issue No. 4 and ultimately, dismissed the suit with costs.

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The judgment and decree of the Trial Court was challenged before the Appellate Court in R.A.No.27/2022. The Appellate Court also considering the grounds urged in the appeal, formulated the points that whether the learned trial Judge has misread the provisions of Karnataka Schedule Castes and Schedule Tribes (prohibition of transfer of certain lands) Act, 1978 and erred in dismissing the suit as barred by limitation and whether the appellant proves that he could not produce the proposed additional evidence before the learned trial Court inspite of exercising due diligence and whether it

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requires interference. The Appellate Court having reassessed both oral and documentary evidence available on record and also considering the provisions of Sections 4 and 5 of the PTCL Act comes to the conclusion in paragraph 30 that thus it is very crystal clear that there is no limitation of time to invoke the provisions of the said Act. However, considering the material available on record comes to the conclusion that the Trial Court has not committed any error in dismissing the suit since the suit is barred by limitation and furthermore as per Sections 4 and 5 of SC & ST Act, the competent authority who can inquire into and resume and restore the granted land is the Assistant Commissioner and confirm the judgment of the Trial Court.

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The main contention of the counsel appearing for the appellants in this second appeal at the time of admission that the very observation made by the trial Court with regard to the limitation is concerned is erroneous and the First Appellate Court also committed an error in confirming the judgment of the Trial Court. The counsel in support of his arguments relied upon the judgment reported in (2020) 14 SCC 210 in the case of SATYAN VS DEPUTY

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COMMISSIONER AND OTHERS and brought to notice of this Court paragraphs 33 and 34 wherein discussion was made with regard to the judgment of Dharma Naika vs . Rama Naika and also the judgment of Manchegowda vs. State of Karnataka and taken note of judgment reported in (2004) 10 SCC 65 in the case of AMRENDRA PRATAP SINGH vs TEJ BAHADUR PRAJAPATI and also brought to notice of this court paragraph 34 that the period of 8 years cannot be set to be such, as to amount to such delay and latches as would make the action void, considering that it is in respect of a beneficial legislation for the Scheduled Castes and Scheduled Tribes community. The counsel also would submit that in view of the observations made by the Trial Court as well as the First Appellate Court, already approached the competent authority i.e., Assistant Commissioner invoking Section 5 of PTCL Act and hence this Court has to set aside the order of the Trial Court and the First Appellate Court with regard to the limitation is concerned.

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The counsel also relied upon the judgment reported

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in ILR 1997 KAR 1723 in the case of KARIYAPPA @

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KARIYAPPA vs THE A.C., HASSAN AND OTHERS wherein

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also discussion was made with regard Section 5.1 of the PTCL Act and this Court made an observation that the respondents 1 and 2 have rejected the claim of the petitioner solely on the ground that the land in question is only a house site, and therefore the provisions of the Act cannot be made applicable and it is held that the said view taken by respondents 1 and 2 is totally erroneous in law and unwarranted from the reading of the provisions of the Act. The Act does not make any distinction between an agricultural land or non-agricultural land or a house site.

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Per contra the counsel appearing to the respondents would vehemently contend that there is an amendment in the year 2023 in respect of limitation is concerned and also counsel would vehemently contend that when the appellant has already approached the concerned competent authority, the competent authority can exercise its right without influence by any of the observations made by the Trial Court as well as the Appellate Court. The issue is with regard to the limitation is also pending for consideration before

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both the Courts and hence, the counsel for the respondents also not disputes the submission of the counsel appearing for the appellants with regard to the limitation is concerned.

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Having heard the learned counsel appearing for the respective parties, it is not in dispute that property was allotted in favour of the person belongs to the SC community that too in the year 1963 and it is also not in dispute that there was a sale in the year 1972 and the same is questioned before the Court by filing a suit for declaration and for permanent injunction and both the Courts came to the conclusion that the plaintiff is not entitled for the relief of declaration and also the injunction and the competent authority has to decide the same invoking of Sections 4 and 5 of the Special Enactment. It is also not in dispute with regard to the application of the Special Enactment which was brought into force in the year 1979 and Sections 4 and 5 are also very clear with regard to invoking of the same. In view of the submission of the learned counsel for the respective parties and also the fact that an amendment was brought in the year 2023 with regard to the limitation is concerned, it is appropriate to expunge the discussion made

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with regard to the limitation is concerned. With this observation, the second appeal is disposed of with a direction to the appellants to pursue the matter before the Assistant Commissioner which has already been invoked by filing a appropriate application and the same is numbered as PTCL Case No.5/2025. When such being the case, the Assistant Commissioner who is the competent authority to consider the same without influenced by anything and the same has to be considered with regard to the limitation as well as the contentions urged by the appellants with regard to the violation in respect of transfer of the property and all the contentions of both the parties including limitation to be considered while passing an order.

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Sd/- (H.P.SANDESH) JUDGE

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SN

Smt. Subbalakshamamma v. Sri Arakappa

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Smt. Subbalakshamamma v. Sri Arakappa

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