Smt. Lakshmi, Radhakrishna Murthy and Rajaratna vs Sanamma, Akkaiah, Ammani and Gunda

Ram Mohan Reddy, J.—The Respondents though served, are absent and unrepresented.

The Petitioner instituted O. S. 286/2008 before the Prl. Civil Judge (Jr. Dn.), Udupi, for mandatory injunction directing the Defendants/ Respondents to remove the granite pillars and the barbed wire fence put up at the two places, one on the northern boundary of the plaint ''A'' schedule property and the other en the northern edge of the pathway in question, alleging that the 2nd Plaintiff entered into an agreement with one Basava, the father of Defendants 1 to 3, and another, Gunda, the 4th Defendant/4th Respondent entitling to a right of permanent passage for ingress and egress to and from the Plaintiffs property. That suit, though contested, Defendants 1 and 2 admitted the agreement, nevertheless filed I. A. No. 5 under Order 14 Rule 2 CPC to frame a preliminary issue over maintainability of the suit, on the premise, that the land in question of which a permanent pathway is sought belongs to scheduled caste and therefore the agreement for a permanent pathway being an alienation is hit by the provisions of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act for short PTCL Act, and the trial Court did not have the jurisdiction to entertain the suit. That application was opposed by filing statement of objections of the Petitioner interlaid contending that the question as to whether or not the agreement was hit by the provisions of the ''FTCL'' Act, is required to be adjudicated by the Assistant Commissioner under the said provisions of PTCL Act and not the Civil Court. In addition, it was contended that the suit was one for mandatory injunction relating to passage way for ingress and egress to and from the Plaintiffs property. The court below by order dt. 5/9/2009, Annex E, allowed the I. A. and framed a preliminary issue casting the burden on the Defendants to prove whether the court has no jurisdiction to entertain the suit as expressly barred u/s 4 & 5 of the ''PTCL'' Act. Hence this writ petition.

There is force in the submission of Sri. S.R. Hegde Hudlamane, learned Counsel for the Petitioner. A bare perusal of Sections 4 & 5 of the PTCL Act discloses that it is for the authorities constituted under that Act to adjudicate on whether or not the agreement is a transaction alienating land granted to the Scheduled Caste and Scheduled Tribe, would be hit by the provisions of the Act. Admittedly such an exercise has not been undertaken by the Assistant Commissioner either at the instance of the Defendants or suo mottu, hence it is too farfetched for the Respondents/Defendants to contend that the suit is hit by the provisions of the PTCL Act. Suffice it to state that the court below misdirected itself in the matter of framing an issue over maintainability of the suit on the premise that it was hit by the provisions of the PTCL Act.

In the result, petition is allowed. The order dt. 5/9/2009 and the preliminary issue, Annex, E 1, are quashed. I. A. 5 is rejected.