Sri.H.N.Ramesha Vs Government of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DTD 22.11.24 ON IA NO.5 IN OS NO. 214/2010 ON THE FILE OF ADDL CIVIL JUDGE AND JMFC AT HUNSUR CERTIFIED COPY OF WHICH ORDER IS PRODUCED AT ANNX-A AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL ORDER

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Learned AGA accepts notice for respondents.

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With the consent of parties, the writ petition is heard for final disposal.

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This writ petition is filed by the plaintiff in O.S. No. 214/2010, challenging the order dated 22.11.2014 passed on I.A. No. 5, which is pending on the file of the Additional Civil Judge and JMFC, Hunsur.

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The petitioner instituted a suit for declaration, recovery of possession, injunction and other consequential

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reliefs against the respondents. The Trial Court recorded the evidence of the plaintiffs and the defendants. The evidence of defendant No. 4 – Tahasildar was also recorded. At that stage, defendant No. 4 – Tahasildar filed an application under Section 22 of the Karnataka Land Grabbing Prohibition Act, 2011 (hereinafter referred to as “the Act”), seeking transfer of the suit to the Special Court constituted under the said Act. The Trial Court, by the impugned order and with reference to Section 10-A of the Act, allowed the said application and ordered transfer of the suit to the Special Court.

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Sri G. Balakrishna Shastry, learned counsel appearing for the petitioners, submits that the land in question was originally granted as a darkasth in the year 1946–1947. Thereafter, the relevant records have been maintained in the office of respondent No. 4 – Tahasildar.

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5.1 It is further submitted that the land was the subject matter of proceedings under the tenancy laws, and occupancy rights were granted on 08.09.1997 in favour of H.S. Boregowda. Upon the death of H.S. Boregowda, mutation

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entries were effected under M.R. No.3/2002-03 in favour of his wife, H.K. Parvathamma.

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5.2 Learned counsel submits that the petitioners purchased the land in question from H.K. Parvathamma and her children under a registered sale deed dated 10.07.2003, and consequential mutation entries were thereafter effected in their favour. It is contended that these aspects have been admitted by respondent No. 4 – Tahasildar in the course of crossexamination.

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5.3 Learned counsel submits that the petitioners claim title to the property under registered sale deeds executed by their vendors, who had acquired rights pursuant to the grant of occupancy rights by the competent authority under the tenancy laws. In such circumstances, it cannot be contended that the land in question falls within the ambit of “land grabbing” as defined under Section 2(f) of the Act.

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Smt. Azra J. Dundge, learned AGA appearing for the respondents, vehemently opposes the submissions made by the learned counsel for the petitioners. It is submitted that the land

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in question is a lake and that the petitioners have no valid title thereto. It is further submitted that once a person is found to be in possession of Government land without any lawful entitlement, such possession would fall within the definition of “land grabbing” under the Act. Consequently, in view of the bar contained in Section 10-A of the Act, the jurisdiction of the Civil Court in respect of such land is expressly excluded.

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6.1 Learned AGA further submits that the question as to whether the land in dispute is Government land and whether the petitioners are in possession thereof without lawful entitlement are matters that require adjudication on facts and law. Such issues, it is contended, fall squarely within the jurisdiction and competence of the Special Court constituted under the Act. It is therefore submitted that the Trial Court was justified in transferring the suit to the Special Court for adjudication in accordance with law.

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I have considered the submissions made by learned

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counsel for both the parties and perused the writ papers.

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The dispute in the present writ petition pertains to the correctness and legality of the order passed by the Trial Court transferring the suit for trial before the Special Court constituted under the Act. Section 2(f) of the Act defines land grabbing reads as under:

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"'land grabbing' means every activity of grabbing of any land, without any lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licenses agreements construct unauthorized structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorized structures; and the term "to grab land" shall be construed accordingly."

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The jurisdiction of the Civil Court is barred under

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Section 10-A of the Act and the same reads as under:

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10-A. BAR OF JURISDICTION OF CIVIL COURTS:-

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No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any Government land or other matter which is required by or under this Act to be determined by a special Court.

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The bar contained in Section 10-A of the Act is attracted where a person is found to be in possession of land without any lawful entitlement and is engaged in the activity of land grabbing. Further, activities such as unlawful entry upon land, creation of illegal tenancies, lease or licence

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arrangements, or the unauthorised construction of structures would fall within the ambit of “land grabbing” as defined under the Act.

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It is only when the ingredients of “land grabbing,” as defined, are prima facie made out, the bar under Section 10-A would operate to exclude the jurisdiction of the Civil Court.

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In the present case, respondent No.4–Tahasildar, who filed the application seeking transfer of the suit, was examined as a witness in the original suit. In his examinationin-chief, respondent No. 4 contended that Survey No. 40 of Nilavagilu Kaval Village, Hanagodu Hobli, Hunsur Taluk, measuring 4 acres 29 guntas, is classified as a “lake,” having been re-categorised as such in the year 1962, and that corresponding durasthi entries were made accordingly.

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It is further contended that the petitioners are attempting to encroach upon the lake and that their possession over the subject land is disputed. However, in the course of cross-examination, respondent No.4–Tahasildar has admitted

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that Exhibits P3 to P18 are records maintained in his office. It is also admitted that the land in question, namely Survey No. 40, was originally a revenue land and was granted as a darkasth in the year 1946–1947 in favour of Namagiriyamma.

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It is further admitted that Sri H.S. Boregowda was a tenant under Namagiriyamma. Sri H.S. Boregowda had sought grant of occupancy rights, and the same were conferred in KLRF No. 36/77-78 by order dated 08.09.1977. It is also admitted that, upon the death of H.S. Boregowda, mutation entries were effected on 17.02.2003 in favour of his wife, H.K. Parvathamma. It is further admitted that Smt. H.K. Parvathamma and her children executed registered sale deeds dated 10.07.2003 in favour of the petitioners, pursuant to which the revenue records were mutated in their names.

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It is further noticed that, though respondent No.4– Tahasildar denied the possession of the petitioners, he has admitted in his cross-examination that he has not visited the land in question. It is also admitted that land revenue in respect of the subject land has been received from the petitioners.

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In view of the flow of title claimed by the petitioners, which stands substantially admitted by respondent No.4–Tahasildar in the course of cross-examination, the land in question cannot, at this stage, be said to fall within the ambit of “land grabbing” as defined under Section 2(f) of the Act. To attract the said provision, the possession must be without lawful entitlement. The admissions made by respondent No. 4 – Tahasildar in cross-examination prima facie establish a chain of title commencing from the grant made in the year 1946–1947. The bar under Section 10-A of the Act would operate only upon satisfaction of the ingredients of “land grabbing” as defined under the Act.

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In view of the above finding that the land in question does not fall within the definition of “land grabbing,” the bar under Section 10-A of the Act is not attracted to the facts of the present case. The Trial Court, without adverting to the admissions made by respondent No.4–Tahasildar in the course of cross-examination and without properly examining the scope and applicability of Section 10-A of the Act, has committed an error in transferring the suit to the Special Court.

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The petitioners, on the basis of the aforementioned chain of title, have sought declaratory reliefs. The Special Court constituted under the Act is not vested with general jurisdiction to adjudicate upon civil disputes involving declaration of title, particularly where the question as to whether the petitioners’ possession is without lawful entitlement or is traceable to a lawful flow of title constitutes a mixed question of fact and law. Such issues, in the considered view of this Court, fall within the domain of the competent Civil Court and cannot be adjudicated by the Special Court under the Act.

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19. For the above reasons, I pass the following:

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ORDER

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a. Writ petition allowed .

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b. Order dated 22.11.2024 passed on IA No.5 in O.S.No.214/2010 on the file of Additional Civil Judge and JMFC, Hunsur, is set aside.

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c. O.S.No.214/2010 is restored to the file of Additional Civil Judge and JMFC, Hunsur, and the Trial Court is directed to adjudicate the said suit in accordance with law.

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d. Contentions of all the parties are left open.

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Sd/(K. V. ARAVIND) JUDGE

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SSD List No.: 1 Sl.No.: 37

Sri.H.N.Ramesha v. Government of Karnataka

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Sri.H.N.Ramesha v. Government of Karnataka

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