Sanath Kumar vs Mr. N. Ramesh Rao and Others

Ram Mohan Reddy, J.—The rejection of 1st Defendant''s I.A. No. 4 u/s 10 CPC read with Section 132 & 133 of the Karnataka Land Reforms Act, 1961, in O.S. No. 83/04 by order dt. 6/3/2009 of the Prl. Civil Judge (Jr. Dn.). Bantwal, D.K., is called in question in this petition.

The suit schedule property is described as Sy. No. 27/2, Southern portion, Nanja, extent Order 66, of which, the Petitioner''s father by name Shanthiraja Poovani, it is asserted in the plaint was a monthly tenant. It is not in dispute that in the suit, the court has framed as many as 12 issues of which the 1st issue relates to whether the Plaintiff proves that the father of the Petitioner was a monthly tenant of the suit schedule property. It is also not in dispute that the Petitioner made an application u/s 77A of the Karnataka Land Reforms Act, 1961, for grant of land asserting that immediately before 1st day of March 1974 was in actual possession and cultivation of the land which was vested in the State u/s 44 and though entitled to be registered as occupant of such land u/s 45 or 49 failed to apply for registration of occupancy rights in respect of such lands under Sub-Section 1 of Section 48A within the stipulated period and continues to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997. That application when rejected, was carried in appeal before the Karnataka Appellate Tribunal, whence the appeal was dismissed leading to filing of a writ petition which too when dismissed, is presently in a writ appeal which is pending before the Division Bench of this Court.

In the suit, the Petitioner, arraigned as 1st Defendant, filed I.A. No. 4 u/s 10 of CPC r/w Section 132 & 133 of the Karnataka Land Reforms Act, for short Act, to stay further proceedings until disposal of the claim u/s 77A of the Act, interalia alleging that the Petitioner''s claim was in respect of tenancy rights over the agricultural lands being the suit schedule property over which any decision of the Civil court is barred u/s 132 and Section 133 of the Act. That application was opposed by filing objections contending that the application is not maintainable. The trial Court having noticed the facts supra, concluded that it could not stay the proceedings in the suit filed earlier to the proceedings for grant of land, on the same subject-matter between the same parties and as there was no stay order in the writ appeal, the question of staying further proceedings in the suit did not arise and accordingly rejected the application by the order impugned.

Heard the learned Counsel for the parties, perused the pleadings and examined the order impugned.

Section 132 reads thus:

Bar of jurisdiction - (1) No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Deputy Commissioner, an officer authorised under Sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority u/s 83, the Tribunal the Tahsildar, the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control.

(2) No order of the Deputy Commissioner, an officer authorised under Sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority u/s 83, the Tribunal, the Tahsildar, the Karnataka Appellate Tribunal or the State Government made under this Act shall be questioned in any civil or criminal court.

Clause (i) of Sub-Section 1 of Section 133 of the Karnataka Land Reforms Act, 1961, for short Act, bars the Civil or Criminal Court or officer or Authority, in any suit, case or proceeding concerning a land, to decide the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of said land from prior to 1st day of March 1974, while Sub-clause (ii) states that such Court or Officer or Authority shall stay such suit or proceeding in so far as such question is concerned and refer the same to the Tribunal for decision. Sub-section (2) stipulates that nothing in Sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that Sub-section.

In the factual context, it is necessary to extract Section 77A of the Act, which reads thus:

Grant of land in certain cases - (1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or any other officer authorised by the State Government in this behalf is satisfied after holding such enquiry as he deems fit, that a person.

(i) was, immediately before the first day of March, 1974 in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government u/s 44 and

(ii) being entitled to be registered as an occupant of such land u/s 45 or 49 has failed to apply for registration of occupancy rights in respect of such land under Sub-section (1) of Section 48A within the period specified therein, and

(iii) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act, 1997, grant the land to such person subject to such restrictions and conditions and in the manner, as may he prescribed.

(2) The provisions of Sub-Sections 2A and 2B of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under Sub-section (1)

Provided that the land so granted together with the land already held by such person shall not exceed 2 hectares or D class of land or its equivalent thereto.

The facts of this case, when viewed in the light of the provisions of the Act. clearly discloses that the 1st Defendant/Petitioner claims to be in possession and cultivation of the suit schedule property before the 1st day of March 1974 and that the same is vested in the State Government u/s 44 entitled to be registered as an occupant u/s 45 or 49, failed to apply for registration of occupancy rights under Sub-section (1) of Section 48A within the period specified and having continued in actual possession and cultivation, has sought for grant of the land. Thus the question as to whether the suit schedule property is agricultural or not and whether the 1st Defendant/Petitioner is a tenant or not arises for decision making in the suit instituted by the Respondents 1 to 5 as is obvious from the 1st issue framed in the suit. Therefore it cannot but be said that the civil court has no jurisdiction to settle the dispute or deal with the said questions. It may be that the Petitioner has suffered a rejection of the application for grant of land at the hands of the Deputy Commissioner, Appellate Tribunal in the appeal, and a learned Single Judge in the writ petition, nevertheless, the lis between the parties is still alive in the writ appeal and therefore must await the decision of the Division Bench.

In my considered opinion, the reasons, findings and conclusions arrived at by the court below in rejecting the I.A. No. 4 by the order impugned, are unsustainable and hence calls for interference.

In the result, the writ petition is allowed. The order dt. 6/3/2009, Annex. F, rejecting the Petitioner''s I.A. No. 4 is quashed. I.A. No. 4 is allowed. ''The further proceeding in the suit is stayed until disposal of the writ appeal.