State of Karnataka and Others vs A. Seetharam Shetty

A.S. Bopanna, J.—The appellants are before this Court assailing the judgment dated 22.02.2008 passed in O.S. No. 30/2000 and the judgment dated 23.04.2009 passed in R.A. No. 6/2009. By the judgments of the Court below, the claim of the plaintiff in respect of the suit schedule property has been accepted and the injunction as prayed has been granted.

It is necessary to notice at this stage that in the suit, the appellants No. 1 to 4 herein were arrayed as the defendants and it is the said defendants alone who had filed the Regular Appeal before the Lower Appellate Court. However, during the pendency of this appeal, the appellant No. 5 represented by its Partner had filed an application in I.A. No. 1/14 seeking that they be impleaded as appellants to this appeal. This Court has already allowed the application by the order dated 20.10.2014 and the appellant No. 5 has thus come on record since they have by their application indicated that they have certain right in respect of the property which is the subject matter of the suit. In that light, the contentions of the parties would have to be taken into consideration.

The respondent though served has remained unrepresented.

In the light of the contention which has been putforth, the following substantial question of law would arise for consideration in this appeal:--

"Whether in a civil proceedings in respect of an item of land which was the subject matter of the proceedings before the Land Tribunal under the provisions of the Karnataka Land Reforms Act, the Civil Courts would have the jurisdiction to test the validity or otherwise of the orders passed by the Land Tribunal or the Land Reforms Appellate Authority and thereafter consider the rights of the parties in respect of such land if right thereto is claimed in a civil suit?". 5. In respect of the substantial question raised herein, I have heard the learned counsel appearing for appellant No. 5 as also the learned Government Advocate appearing for the appellants No. 1 to 4 and perused the appeal papers.

The plaintiff was before the trial Court in the suit in O.S. No. 30/2000 seeking for a declaration that the suit schedule property absolutely belongs to the plaintiff and in consequence thereof, an order of injunction has been sought. The suit schedule property described therein is the property bearing Sy. No. 124 measuring 36 cents situate in Attavara Village of Mangalore City Corporation. The fact that the predecessors of the plaintiff had filed an application in Form No. 7 under the Karnataka Land Reforms Act before the Land Tribunal, Mangalore Taluk registered as L.R.T. No. 1023/75-76 and the proceedings have concluded is not in dispute.

In the said proceedings, in addition to the suit schedule property herein, there were three other items of the property regarding which occupancy right had been sought. The Land Tribunal, by the order dated 13.10.1987 had granted the occupancy right in respect of all the four items of the property including the property bearing Sy. No. 124 measuring 36 cents which is the suit schedule property. The said order of the Land Tribunal was assailed by the landlord before the Land Reforms Appellate Tribunal, Mangalore. The Land Reforms Appellate Tribunal by its judgment dated 19.12.1989 though, did not interfere with the order of the Land Tribunal in respect of other three items of the land which had been granted, in respect of the land bearing Sy. No. 124 measuring 36 cents which is the subject matter herein, the contention that it is a paramboke land belonging to the Government was accepted and the order of the Land Tribunal was therefore set aside to the said extent. It is in that view, the plaintiff did not have the benefit of continuing to have occupancy right in respect of the said item of the land under the provisions of Karnataka Land Reforms Act. It is in that circumstance, the suit was filed by the plaintiff seeking for the declaration as has been noted above.

As noticed, only the appellants No. 1 to 4 herein were arrayed as defendants to the suit as it was admittedly Government land. The defendants though were granted sufficient opportunity, did not choose to file their written statement but, had only produced the documents relating to the proceedings before the Land Reforms Appellate Tribunal and the order of the Land Reforms Appellate Tribunal being confirmed by this Court. The said orders were marked as Exs.-D1 to D4.

Though the defendants did not file their written statement or tender evidence, considering the fact that the substantial question as raised herein for consideration is a question which touches upon the very jurisdiction of the Civil Courts to consider the validity or otherwise of the order passed by the Tribunals constituted under the Karnataka Land Reforms Act, the question could be easily considered by this Court even, in the absence of there being oral evidence on behalf of the defendants since, the stand that the suit schedule property is a paramboke Government land is a foregone conclusion, even if the case of the plaintiff is accepted.

Therefore, on the question as to whether the Civil Court would have the jurisdiction or not to decide the correctness or otherwise of the order passed by Land Tribunal, it need not detain this Court for log since, the learned counsel for appellant No. 5 has brought to the notice of this Court the decision of this Court in the case of Shivappa Bhimappa and Anr. v. Nagappa Bhimappa (1983 [2] Kar.L.J. 248) wherein, this Court has considered this question and has held that the Civil Court would not have the jurisdiction to entertain a suit to consider the validity of the order passed by the Land Tribunal.

If the said position of law is kept in view and the judgment dated 22.02.2008 passed in O.S. No. 30/2000 which has been upheld by the Lower Appellate Court is perused, the trial Court in order to declare the right in favour of the plaintiff has in fact considered as to whether the order passed by the Land Reforms Appellate Authority is valid in law. To that extent, an observation has been made by the trial Court that when the Lower Appellate Court had noticed certain orders passed by the Land Tribunal, it could not have upheld the portion of the order and set aside only the other portion. Such conclusion reached by the trial Court is wholly erroneous and without jurisdiction.

On the other hand, what was required to be considered by the trial Court was when the Land Reforms Appellate Authority had excluded the land bearing Sy. No. 124 measuring 36 cents from the order of the Land Tribunal on the ground that it is paramboke land belonging to the Government, whereby the land would not be tenanted land whether, in such circumstance, the Civil Court could have entertained the claim of the plaintiff claiming any right over the suit schedule property which was not a tenanted land and therefore had been excluded from the proceedings before the Land Tribunal. Such right should have been determined instead of finding fault with the order passed by the Land Reforms Appellate Authority and thereafter, granting the relief. Since, such error has been committed by the trial Court which is contrary to law; the substantial question of law raised herein would have to be answered in favour of the appellants. If that be the position, the judgments impugned herein passed by the trial Court as well as the Lower Appellate Court would not be sustainable in its present form and would have to be set aside.

Even after arriving at such conclusion, the question before this Court is also with regard to the course that is to be adopted. In a normal circumstance, it would have been sufficient for this Court to allow the appeal and set aside the judgments of the Court below. However, while answering the substantial question, I have noticed that on the suit schedule land being excluded from the proceedings before the Land Tribunal, the land would not be a tenanted land under Karnataka Land Reforms Act. Hence, an independent right as claimed by the plaintiff in respect of Government land was required to be considered. If that be the position, the suit would have to be restored to the file of the trial Court by remanding the matter to frame appropriate issues by allowing the parties to putforth their contention by way of written statement and thereafter, to come to a conclusion whether the plaintiff has made out any right in respect of the suit schedule property as the said land had been excluded from the proceedings before the Land Tribunal as not being a tenanted land.

Further, since the appellant No. 5 is also claiming certain right over the said property as having been granted to them by the Government and since this Court has already accepted them to be a proper and necessary party, they would also have to be arrayed as defendant to the suit, they be permitted to raise their contentions before the trial Court and thereafter, a conclusion would have to be reached.

In that view, the judgment dated 22.02.2008 passed in O.S. No. 30/2000 and the judgment dated 23.04.2009 passed in R.A. No. 6/2009 are set aside. The suit in O.S. No. 30/2000 is restored to the file of the I Additional Civil Judge, Senior Division, Mangalore. The appellant No. 5 shall be impleaded as defendant No. 5 to the suit without any further application being filed before the trial Court. The appellants herein shall appear before the trial Court on 06.04.2015 as the first date. The trial Court shall however issue summons to the plaintiff since, he has remained unrepresented before this Court. The trial Court shall permit all the defendants to file their written statement, frame issues and thereafter, proceed with the matter in accordance with law.

In terms of the above, the appeal is allowed in part.