Allowed

V.Christopher v. Saranya B.Rajendran

Kerala HC12 Jan 2018OP(C)/148/2016

Case brief

AI extract

What is this about?

This writ petition under Article 227 assailed an order dismissing a preliminary objection on maintainability regarding a suit challenging a land sale by Scheduled Tribes. The High Court held the lower court failed to discuss bar of jurisdiction provisions under the 1975 and 1999 Acts, set aside the order, and directed the trial court to decide maintainability.

What did the court decide?

Impugned order set aside; direction to Munsiff to enter specific findings on maintainability under Section 20 of 1999 Act.

V.Christopher Vs Saranya B.Rajendran — Land Acquisition | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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FRIDAY, THE 12TH DAY OF JANUARY 2018 / 22ND POUSHA, 1939

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OP(C).No. 148 of 2016 - O

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AGAINST THE ORDER/JUDGMENT IN OS 1951/2010 of PRL.M.C.,TRIVANDRUM DATED 08-12-2015

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PETITIONER(S)/1ST DEFENDANT

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V.CHRISTOPHER, AGED 50 YEARS S/O.VINCENT,T.C.27/1913,PUTHEN ROAD JUNCTION,VANCHIYOOR,THIRUVANANTHAPURAM.

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BY ADVS.SRI.R.T.PRADEEP SMT.M.BINDUDAS

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RESPONDENT(S)/PLAINTIFF & DEFENDANTS 2 AND 3:

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SARANYA B.RAJENDRAN, AGED 24 YEARS,

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D/O.G.RAJENDRAN KANI,DHANYA,MARANVILAKOM, KARUMAM,THIRUVANANTHAPURAM-695002.

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BABY PRIYA.G.S,AGED ABOUT 48 YEARS,

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D/O.SUSEELA,DHANYA MARANVILAKOM,KARUMAM,THIRUVANANTHAPURAM-695002.

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M.SUSEELA,AGED 68 YEARS,

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D/O.PADMANABHAN KANI,ANANTHA VILAS, KOLLAYI.P.O,NEDUMANGADU,THIRUVANANTHAPURAM-695541.

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R1 BY ADV. SRI.M.SREEKUMAR

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R2,R3 BY ADV. SRI.S.PRAKASH

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 148 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE AMENDED PLAINT IN O.S.1951/2010 BEFORE THE COURT OF PRINCIPAL MUNSIFF, THIRUVANANTHAPURAM.

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EXHIBIT P2 TRUE COPY OF WRITTEN STATEMENT DATED 15.6.2011

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EXHIBIT P3 TRUE COPY OF ADDITIONAL WRITTEN STATEMENT DATED 08.6.2015

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EXHIBIT P4 TRUE COPY OF WRITTEN STATEMENT FILED BY 2ND RESPONDENT NIL DATED

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EXHIBIT P5 TRUE COPY OF ORDER DATED 8.12.2015 IN O.S.1951/2010 BEFORE THE COURT OF PRINCIPAL MUNSIFF,THIRUVANANTHAPURAM.

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RESPONDENT(S) EXHIBITS:

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NIL /TRUE COPY/ PA TO JUDGE

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dkr

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ASHOK MENON, J.

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O.P. (Civil) No. 148 of 2016

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------------------------------------------Dated this the 12^th day of January, 2018

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J U D G M E N T

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By this petition under Article 227 of the Constitution of India, the petitioner assails the order of the learned Principal Munsiff, Thiruvananthapuram in O.S.No.1951/2010 dated 08-12-2015, where the preliminary question of maintainability raised by the petitioner as the first defendant, was answered against him.

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The facts in brief are thus: The plaintiff in the above-

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said suit challenged the sale deed No.2898/1989, in favour of the petitioner herein, among other grounds, also on the ground that the sale is invalid in view of the specific provisions under Sections 4 and 5 of the Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975, because the requisite sanction from the District Collector has not been obtained before the sale deed was executed in favour of the petitioner herein by defendants 2 and 3, who are other owners of the property. The learned Munsiff considered the preliminary objection and decided, vide the impugned Ext.P5 order that, being a civil suit for

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OP (C) 148/2016

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declaration pertaining to the rights of a minor to challenge the sale by her natural guardian, without the requisite sanction, effected during her minority, the issue cannot be decided by the District Collector under the provisions of the Act. The objection raised regarding the non-maintainability of the suit was brushed aside. 3. The respondents were served with notice and all of them appeared. Counter affidavit is filed by the first respondent. Heard the learned Counsel for the petitioner and the respondents. Documents perused.

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The question that arise for consideration is whether the learned Munsiff was justified in brushing aside the objections regarding the maintainability of the suit vide the impugned order.

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It is pertinent to note that Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 ('The 1975 Act' for brevity) has been repealed by Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (Kerala) ('The 1999 Act' for brevity). On a reading of the impugned order, it is seen that neither the scope of Section 21 of the 1975 Act nor the repeal of the 1975 Act by the 1999 Act

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OP (C) 148/2016

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has been discussed by the learned Munsiff. Section 21 of the 1975 Act reads as follows:-

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Bar of jurisdiction of civil courts.- No civil court shall have jurisdiction to decide or deal with any question or to determine any matter which is, by or under this Act required to be settled, decided or dealt with or to be determined by the competent authority or the Revenue Divisional Officer.

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According to Section 20 of the 1999 Act, also, there is a specific bar of jurisdiction of civil court, and is identically worded as Section 21 of the 1975 Act. Under Section 4 of the 1999 Act also, there is restriction on sale, the relevant provision reads thus:-

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“4. Notwithstanding anything to the contrary contained in any other law, or in any contract, custom or usage, or in any judgment, decree, or order of any Court, any transfer effected by a member of the Scheduled Tribe, of land possessed, enjoyed or owned by him on or after the commencement of this Act, to a person other than a member of a Scheduled Tribe, without the previous consent in writing of the competent authority, shall be invalid.”

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OP (C) 148/2016

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The word 'Land” is defined in Section 2(b) of the 1999

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Act as an “Agricultural Land”. A reading of the plaint, Ext.P1, indicates that the main challenge of the sale deed is on the ground of violation of Sections 4 and 5 of the 1975 Act. There are also analogous provisions in the 1999 Act. Unfortunately, the learned Munsiff has not discussed the scope of barring provisions under either Acts. Ext.P5 order is, therefore, not sustainable and is liable

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to be set aside. I do not venture to enter any finding on maintainability of the suit or the applicability of the aforesaid Acts. The scope and applicability of the 1999 Act has to be considered and determined by the Court below. The learned Munsiff is hereby directed to enter specific findings regarding the maintainability of suit under Section 20 of the 1999 Act, and proceed in accordance with law, as expeditiously as possible. With the above observation, the petition is disposed of. No costs.

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Sd/-

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ASHOK MENON Judge

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dkr True copy PA to Judge

V.Christopher v. Saranya B.Rajendran

Case brief

What is this about?

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V.Christopher v. Saranya B.Rajendran

Case brief

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