Sri Dayananda Poojary Vs. Sri Surendra T Mendon - Court Judgment

Excerpt:
1 in the high court of karnataka at bengaluru r dated this the26h day of july, 2024 before the hon'ble mr. justice h.p. sandesh r.s.a. no.283/2018 (pos) between:1. . sri dayananda poojary s/o. late koosa poojary, aged about64years. 2 . sri. indra pojarthy s/o. late koosa poojary, aged about62years. 3 . sri. gangadhara poojary s/o. late koosa poojary, aged about60years. 4 . sri. ekanatha poojary s/o. late koosa poojary, aged about48years. appellants no.1 to4are residing at nayampalli, puttur village, udupi taluk and district, pin:576. 101. … appellants (by sri s.prakash shetty, advocate) 2 and:1. . sri surendra t. mendon s/o. late taniya gurikara, aged about58years. 2 . sri. sharath mendon s/o. late shekar t. mendon, aged about38years. 3 . sri. sheetal mandon s/o. late shekar t. mendon,.....

Judgment:

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE26H DAY OF JULY, 2024 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.S.A. NO.283/2018 (POS) BETWEEN:

1. . SRI DAYANANDA POOJARY S/O. LATE KOOSA POOJARY, AGED ABOUT64YEARS. 2 . SRI. INDRA POJARTHY S/O. LATE KOOSA POOJARY, AGED ABOUT62YEARS. 3 . SRI. GANGADHARA POOJARY S/O. LATE KOOSA POOJARY, AGED ABOUT60YEARS. 4 . SRI. EKANATHA POOJARY S/O. LATE KOOSA POOJARY, AGED ABOUT48YEARS. APPELLANTS NO.1 TO4ARE RESIDING AT NAYAMPALLI, PUTTUR VILLAGE, UDUPI TALUK AND DISTRICT, PIN:

576. 101. … APPELLANTS (BY SRI S.PRAKASH SHETTY, ADVOCATE) 2 AND:

1. . SRI SURENDRA T. MENDON S/O. LATE TANIYA GURIKARA, AGED ABOUT58YEARS. 2 . SRI. SHARATH MENDON S/O. LATE SHEKAR T. MENDON, AGED ABOUT38YEARS. 3 . SRI. SHEETAL MANDON S/O. LATE SHEKAR T. MENDON, AGED ABOUT36YEARS. 4 . SRI. VIKRANTH S/O. LATE SHEKAR T. MENDON, AGED ABOUT33YEARS. RESPONDENTS NO.1 TO4ARE RESIDING AT ”SARASWATH HEIGHTS” FLOT NO.502, KADABETTU, UDUPI TALUK AND DISTRICT-576 101. 5 . TARA K. KANCHA D/O. LATE TANIYA GURIKARA AGED ABOUT62YEARS. 6 . JAYALAXMI S. SUVARNA D/O. LATE TANIYA GURIKARA AGED ABOUT60YEARS. 7 . YASHODA N. SALIAN D/O. LATE. TANIYA GURIKARA AGED ABOUT49YEARS. 8 . SHASHIKANTHA T. MENDON D/O. LATE. TANIYA GURIKARA AGED ABOUT47YEARS. 3 RESPONDENTS NO.5 TO8ARE RESIDING AT D.No.1-4-46K1, GUNDIBAIL, KUNJIBETTU POST, UDUPI TALUK AND DISTRICT-576 101. 9 . SRI. VENKATESH T. MENDON S/O LATE TANIYA GURIKARA AGED ABOUT73YEARS R/AT SUMUKHA, KOLA, MALPE – 576 108, UDUPI TALUK AND DISTRICT. … RESPONDENTS (BY SRI B.S.PRASAD, ADVOCATE FOR C/R1 TO R8; R9 SERVED) THIS R.S.A. IS FILED UNDER SECTION100OF CPC, AGAINST THE

JUDGMENT

AND DECREE DATED1612.2017 PASSED IN R.A.NO.15/2017 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE

JUDGMENT

AND DECREE DATED0812.2016 PASSED IN O.S.NO.54/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ON2407.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE H.P.SANDESH4CAV

JUDGMENT

(PER: HON'BLE MR JUSTICE H.P.SANDESH) 1. This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court granting the relief of possession of suit ‘A’ schedule property bearing Sy.No.124/2A of 10 cents in Puttur village, Udupi taluk as described in the schedule.

2. Heard the learned counsel appearing for the appellants and the learned counsel appearing for respondents.

3. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

4. The factual matrix of the case of the plaintiffs while seeking the relief of possession that defendant No.2 is the brother of the plaintiffs and he did not choose to join along with the plaintiffs hence, he has been arrayed as defendant No.2. It is the case of the plaintiffs that they are 5 the owners of 10 cents of land bearing Sy.No.124/2A of Puttur village of Udupi taluk bounded as per plaint ‘A’ schedule. The suit schedule property has been inherited by the plaintiffs along with defendant No.2 and they are the owners. In the suit ‘A’ schedule property which is a non- agricultural land, having tiled building bearing D.No.4/2010 and 4-10A totally measuring 10 cents which was a part of entire Sy.No.124/2A, 55 cents and extent of 45 cents have been granted to the mother of defendant No.1 namely Akkamma Poojarthy by the Land Tribunal. It is contended that the Land Tribunal granted occupancy right in the name of Akkamma Poojarthy on 21.05.1981 in Sy.No.124/2 except the plaint ‘A’ schedule property. In fact, in the plaint ‘A’ schedule property which is belonging to the plaintiffs and defendant No.2 wherein the house and tea stall are occupied by defendant No.1. The plaintiffs contend that defendant No.1 and his brothers and sisters preferred writ petition in W.P.No.5134/1995 before the High Court 6 against the order of the Land Tribunal which came to be dismissed on 08.09.2000. On 04.12.2008, defendant No.1 and his family members have entered a registered partition deed wherein plaint ‘A’ schedule property of these plaintiffs have not been find a place and not been allotted to the share of any person since it is the property of the plaintiffs. It is contended that they permitted defendant No.1 and his family members to continue in possession of plaint ‘A’ schedule property out of sympathy in fact, defendant No.1 promised to make alternative arrangement with regard to plaint ‘A’ schedule property to which plaintiffs got issued registered notice on 06.12.2006. Inspite of service of notice, defendant No.1’s family members failed to surrender the vacant possession of plaint ‘A’ schedule property. Hence, they are liable to pay mesne profits of Rs.4,000/- from December 2006.

5. It is further contended that after service of notice, defendant No.1 and his family members got issued a 7 reply on 02.01.2007 contending that the entire 10 cents of land is vested with the National Highway authorities since more than 45 years. It is further contended that defendant No.1 was not in possession of plaint ‘A’ schedule property and there was no any small tiled building. The plaintiffs have no right to withdraw permission with effect from 31.12.2006 due to absence of property. In fact further negotiations were held on 01.03.2007 and defendant No.1 instead of surrendering 10 cents of land and building to plaintiffs, admitted to give 20 cents of land situated in Sy.No.182/1B2 of Puttur village, Udupi taluk and also cash of Rs.25,000/- in exchange to the 10 cents of property. Accordingly, Rs.10,000/- was paid to the plaintiffs through plaintiff No.1. After this part performance of agreement, defendant No.1 did not comply with the agreement. As such plaintiff was once again forced to give notice which was duly served on defendant No.1. It is contended that instead of complying the lawful demand of plaintiff, 8 defendant No.1 got issued false reply on 06.08.2009 and Sy.No.182/1B2 has not been handed over to the present plaintiffs. As such, they got every right over the present suit ‘A’ schedule property. The plaintiffs contended that the legal notice was once again served on defendant No.1 to hand over the vacant possession since from 01.09.2009, his possession has become illegal and plaintiffs are entitled to have mesne profits to the tune of Rs.4,000/-.

6. In pursuance of the suit summons, defendant No.1 appeared and filed his written statement. Defendant No.2 though served, he did not choose to file any written statement. Defendant No.1, in the written statement, denied the averments made in the plaint. The contention of defendant No.1 that the plaintiffs have contended that the Land Tribunal has granted Sy.No.124/2 to an extent of 45 cents is admitted but at the same time the 10 cents of land in the same survey number is vested with the plaintiffs is specifically denied. Defendant No.1 further contends that 9 the question of deleting of 10 cents of land as pleaded by plaintiffs as per the order of the Land Tribunal is false. However, defendant No.1 contends that 10 cents of agricultural land was acquired by the National Highway and there is no any building. It is contended that entire Sy.No.124/2A is standing in the name of Angara Poojary and not in the name of first defendant. Defendant No.1 also denied with regard to the settlement and compromise arrived between the plaintiffs and defendant No.1 with regard to Sy.No.124/2A and 124/2AP2. It is contended that notice of termination is not proper and hence, the plaintiffs have no right over the suit ‘A’ schedule property.

7. The Trial Court taking into note of the pleadings of the parties, framed the following Issues:

1. Whether the plaintiffs prove that they are the owners of plaint ‘A’ schedule property, along with 2nd defendant?. 10 2. Whether the 1st defendant proves that the plaint ‘A’ schedule property is vested in the National Highway Authority?.

3. Whether the plaintiffs further prove that the 1st defendant had agreed to give 20 cents of land bearing S.No.182/1B2 of Puttur village and sum of Rs.25,000/- instead of surrendering the plaint A schedule property?.

4. Whether the plaintiffs prove that the 1st defendant is liable to surrender the plaint A schedule property to them and liable to pay mesne profits at the rate of Rs.4,000/- per month from 01.09.2009?.

5. Whether the plaintiffs are entitled for a declaratory decree as prayed for in the plaint along with the 2nd defendant?.

6. What order or decree?. 11 8. The Trial Court after considering the pleadings of the parties allowed the parties to lead their evidence. In order to prove the case of the plaintiffs, plaintiff No.1 got examined himself as PW1 and got marked the documents at Ex.P1 to P12. On the other hand, legal representatives of defendant No.1 are examined as DW1 and DW2 and got marked the documents at Ex.D1 to D6. The Trial Court having taken note of both oral and documentary evidence placed on record and particularly the admission on the part of DW1 and DW2 comes to the conclusion that plaintiffs have proved that they are the owners of suit ‘A’ schedule property along with defendant No.2 and answered Issue No.2 as negative holding that defendant No.1 fails to prove that the suit schedule property was vested in the National Highway and also comes to the conclusion that Issue No.3 does not arise and decreed the suit of the plaintiffs.

9. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the defendants 12 in R.A.No.15/2017. The First Appellate Court having considered the grounds urged in the appeal framed the following Points for consideration:

1. Whether the appellants have made out sufficient ground to condone the delay in filing the appeal?.

2. Whether the appellants have made out sufficient ground to receive additional documents as sought for in I.A.No.VII?.

3. Whether the respondents/plaintiffs proved that they are the owners of the plaint ‘A’ schedule property along with 2nd defendant?.

4. Whether the 1st appellant/1st defendant proved that plaint ‘A’ schedule property is vested in National Highway Authority?.

5. Whether the judgment and decree dated 08.12.2016 passed by the Trial Court in O.S.No.54/2009 is perverse, capricious, 13 improper and not on application of law and on facts, and thus, deserves to be set aside?.

6. What order?.

10. The First Appellate Court reassessing both oral and documentary evidence placed on record answered particularly Point No.3 that the plaintiffs have proved that they are the owners of suit ‘A’ schedule property along with defendant No.2 and did not accept the contention of the appellants and thereby confirmed the judgment and decree of the Trial Court by dismissing the appeal. Being aggrieved by the concurrent finding of the Trial Court and the First Appellate Court, the present second appeal is filed before this Court by the legal representatives of defendant No.1.

11. The grounds urged in this appeal by the counsel for the appellants that order passed by both the Courts is illegal and contrary to law. The counsel would vehemently 14 contend that the appellants are the Chalgeni tenants in respect of 10 cents of land. There is a registered Chalgeni chit in favour of the father of the appellants. The said aspect has not been considered by both the Courts. The appellants are entitled to be continued in possession. Hence, the very suit itself is not maintainable. The order passed by both the Courts requires interference. It is contended that father of the appellants filed Form No.7A under Section 77 of the Karnataka Land Reforms Act (here after referred as ‘KLR Act’) in the year 1999. The said application was pending before the Land Tribunal when O.S.No.54/2009 was filed in the Court of Additional Senior Civil Judge, Udupi. The said issue was not framed by the Trial Court. It is also contended that application was filed stating that suit is not maintainable. The said application was rejected. It is contended that the Trial Court has filed to consider Sections 132 and 133 of the KLR Act. It is also contended that while disposing of the original suit, the 15 application filed under Section 77 was pending for consideration before the Land Tribunal. Thus, the Trial Court ought not to have entertained the suit and ought to have dismissed the same in view of Sections 132 and 133 of the KLR Act. It is also contended that there is no identification of land and boundaries has not been furnished and under such circumstances, no injunction can be granted without identification of the land. Hence, both the Courts have failed to consider the fact that there was no valid document in accordance with law. It is also contended that the appellants have filed an appeal in Appeal No.1372/2017 before the Karnataka Appellate Tribunal, Bengaluru. Form No.7A filed by the father of the appellants is pending consideration before the Karnataka Appellate Tribunal. The said appeal is continuation of original proceedings. Hence, the Trial Court ought not to have entertained the suit. Hence, it requires interference of this Court. 16

12. This Court having heard the learned counsel appearing for the appellants at the time of admission, framed the following substantial questions of law:

1. Whether the Courts below were correct and justified in passing judgment and decree for possession against appellants through plea had been raised by appellants of filing of Form No.7A as contemplated under Section 77A of the Karnataka Land Reforms Act, 1961?.

2. Whether suit filed by the respondents for possession of suit schedule property (10 cents) was not maintainable before Civil Court on account of Form No.7A having been filed by appellants and in the teeth of Sections 132 and 133 of Karnataka Land Reforms Act, 1961?.

3. Whether suit filed by respondents-plaintiffs for possession was maintainable after Form No.7 filed by appellants/ their predecessors claiming occupancy rights in respect of 55 cents in which proceedings, an extent of 45 cents alone 17 was granted and thereby application filed in Form No.7A under Section 77A of the Karnataka Land Reforms Act, 1961 would not bar the jurisdiction of Civil Court by entering such suit?.

4. Whether successive applications filed by applicant in Form No.7 or 7A in respect of same property would bar the jurisdiction of Civil Court?.

13. The learned counsel appearing for the appellants during the course of arguments, reiterated the grounds urged in the appeal memo and contend that when the suit is filed for the recovery of possession, the Trial Court erroneously decreed the suit of the plaintiffs and the First Appellate Court also erroneously confirmed the judgment and decree of the Trial Court because the very suit itself is not maintainable since Form 7A filed before the Land Tribunal is pending and application filed under Section 77A of the KLR Act has not yet considered. The counsel also 18 would vehemently contend that the property is not identified and hence, both the Courts have committed an error in entertaining the suit and granting the relief of possession and hence, it requires interference of this Court.

14. The counsel appearing for appellant relied upon the judgment reported in 1976 SCC ONLINE KAR57of the division bench in case of Mallayya Murigeyya Nadivinamath V/s Puttappa Shivappa Mosali wherein discussion was made with regard to Section 133 of KLR Act as it stands now take away the jurisdiction of civil or officer or authority to decide the question whether a land is an agricultural land or not and whether a person claiming to be in possession is or is not a tenant of the said land from prior to 01.03.1974 and having made the discussion held that question has to be referred to the tribunal for its decision.

15. The counsel also relied upon the judgment of this Court reported in AIR1988KAR123in case of Koraga Marakala and another V/s Smt. Kamala and 19 others and counsel brought to notice of this Court discussion made in paragraph No.6, 7, 16 and 30 wherein it is held that Section 133 KLR Act certain modification was made in Karnataka Act 27 of 1976. When the reference was made held that the same is still operative since it has not been repealed. If so, construed, again question of tenancy has to be referred to the Tribunal by virtue of Section 3 of Act 31 of 1974.

16. The counsel for the appellants in support of his arguments, relied upon the judgment reported in ILR2004KAR1615in the case of K RAVINDRANATHA SHETTY AND ANOTHER vs SMT.MAIRE HENGASU AND ANOTHER and referring this judgment, the counsel would vehemently contend that in a suit, if an issue of tenancy is raised by the defendant, such issue should necessarily be referred to the Land Tribunal as required under Section 133 of the KLR Act and hence, the suit is not maintainable. The counsel also relied upon the judgment of this Court 20 reported in LAWS (KAR) 2016 1 164 in the case of G GOPAL KRISHNA vs K BASHEER and referring this judgment also the counsel would vehemently contend that this Court taken note of Section 133 of the KLR Act and also an observation is made that it is not in dispute that the suit property has been a subject matter of proceedings under the Act. Form No.7A has been filed by the plaintiff under Section 77-A of the Act seeking grant of the land in question under the provisions of that Section. The matter is pending adjudication before the Assistant Commissioner on remand from the Karnataka Appellate Tribunal as the earlier order passed by the Assistant Commissioner on 07.04.2001 has been set aside by the Tribunal. The counsel referring these judgments would vehemently contend that the judgment and decree passed by both the Courts is erroneous and hence, it requires interference of this Court.

17. Per contra, the learned counsel appearing for the respondents/plaintiffs would vehemently contend that Form 21 No.7A filed was rejected. The counsel also would vehemently contend that both the Courts have taken note of the fact that the Land Tribunal order is only to the extent of 45 cents and not to the extent of 55 cents as claimed. Hence, the suit is field for the recovery of possession to the extent of 10 cents which is in possession of the appellants herein. The counsel would vehemently contend that DW1 and DW2 categorically admitted that RTCs stand in the name of the plaintiffs in terms of Ex.P2 and also categorically admitted that in terms of Ex.P11, partition was effected between the members of the family of the defendants wherein 10 cents of land was not included for partition and hence, it is clear that the appellants are not claiming any right in respect of 10 cents of land. The counsel also would vehemently contend that though the appellants claimed that the suit schedule property is vested with the National Highway, nothing is placed on record to show the same. Hence, both the Courts have taken note of 22 the said fact into consideration and decreed the suit in their favour. The counsel also would vehemently contend that, the writ petition filed by the mother of the appellants was dismissed and the same attained its finality regarding not granting of the land to the extent of 10 cents in favour of the appellants. Thus, now, they cannot contend that same is pending before the Court. The counsel also would vehemently contend that when the application in Form No.7 was not considered in respect of 10 cents of land, filing of one more application in Form No.7A does not arise.

18. The counsel for respondent in support of his arguments, relied upon the judgment reported in ILR2002KAR1442in the case of VENKATAPPA vs RAMAKKA and referring this judgment would vehemently contend that the suit need not to be stayed only because the person claiming to be a tenant has filed an application in Form No.7-A, because the Deputy Commissioner only grants lands and not the occupancy rights under Section 77-A. 23

19. The counsel brought to notice of this Court when the claim to the extent of 45 cents was granted out of 55 cents and the same is challenged by the father of the appellants in W.P.No.5134/95 and the same was dismissed by this Court and it has attained its finality. Now, cannot contend that they are the tenants and matter can be referred to the Tribunal to decide the same.

20. The counsel also in support of his argument, he relied upon the judgment reported in ILR1994KAR2505in case of B.V.Subbachari V/s B.K.Joyappa wherein also considering Section 133 of KLR Act this Court held that question of tenancy not relevant, factum of possession relevant, civil Court has jurisdiction to entertain suit for injunction and pass appropriate interim orders, effect of Section 133 of KLR Act on injunction suits, re-thinking necessary.

21. The counsel also relied upon the judgment reported in ILR2000KAR2298in case of Shankarappa 24 Gowda and another V/s Indudhara Gowda wherein the discussion was made with regard to Section 77-A and Section 133 of KLR Act, provisions of Section 133 of KLR Act are not attracted to the cases arising out of Sectoin 77- A as the authority which is empowered to deal with such cases is a distinct entity and cannot be equated with the Land Tribunal constituted under a separate provision of the Land Reforms Act.

22. The counsel also relied upon the judgment reported in ILR2003KAR1643in case of K.V.Rushyashringabhatta V/s S.G.Nagendra and others and held that provisions of Section 133 of KLR Act do not get attracted to the cases arising out of Section 77-A of the Act as the authority which is empowered to deal with such cases is a distinct entity and cannot be equated with land tribunals under Section 48 of the Act.

23. The counsel also relied upon the order passed in W.P.No.9952/2014 dated 1st day of October, 2015 and 25 brought to notice of this Court paragraph No.5 wherein distinguished that it has been made it clear that the provisions of Section 133 of KLR Act do not get attracted to cases arising out of Section 77A of the Act as the authority which is empowered to deal with such cases is a distinct entity and cannot be equated with Land Tribunal constituted under Section 49 of the Act.

24. The counsel also relied upon the judgment reported in ILR2000KAR1019in case of Shankar and another V/s Madhukar Bandopant and another and discussion was made with regard to the Karnataka Land Reforms Act, 1961 and Section 77-A and 133 of KLR Act wherein also it is held that when the suit was filed for the relief of specific performance and an application filed under Section 133 of KLR Act to stay further proceedings as they have filed under Section 77-A for grant of land and the matter is pending before the Deputy Commissioner. The Trial Court dismissed the application holding that Section 26 133 of KLR Act will not be attracted in division High Court held that under Section 77-A, the Deputy Commissioner only grants the land and if conditions mentioned in that Section are fulfilled, but he does not grant occupancy rights to a tenant and hence the provisions of Section 133 of KLR Act are not attracted.

25. The counsel having relied upon these judgments would vehemently contend that when the application was filed under Form No.7 which was rejected in respect of 10 cents of land of suit schedule property and the same was challenged before this Court in the writ petition and the same was dismissed and application filed under Form No.7- A is distinct as held by the Court. When both are distinct, question of invoking Section 133 of the KLR Act does not arise.

26. Having heard the appellant’s counsel and also the counsel appearing for the respondent and also in keeping the grounds urged in the second appeal and also 27 the judgment relied upon by the respective counsel and also the substantial question of law framed by this Court has to analyze the material available on record. The first substantial question of law is with regard to filing of Form No.7A as contemplated under Section 77A of KLR Act and in keeping the said provision, this Court has to analyze whether the Courts below were correct and justified in passing the judgment and decree for possession and also when the suit was filed by the plaintiffs for possession, whether the same was not maintainable in view of Form No.7A having been filed, whether there is a bar under Section 132 and 133 of KLR Act and whether the suit is maintainable after Form No.7, the predecessors claiming occupancy right in respect of 55 cents in which proceedings, extent of 45 cents was granted and thereby an application filed under Form No.7A and Section 77A of KLR Act would not bar the jurisdiction of civil Court by entering said suit and whether the successive application filed by the 28 applicant in Form No.7A in respect of the same property will bar the jurisdiction of the civil Court and all these 4 substantial question of law are considered together and all of them are interconnected.

27. It is not in dispute that earlier an application is filed in Form No.7 both by the son and mother and also no dispute that the same was allowed in part of his mother and application of son was not pressed, though it is contended that the same was rejected and with regard to the said fact is concerned a discussion was made by this Court in the writ petition filed by the father when the 10 cents of land was rejected in W.P.No.5134/1995. It is also not in dispute that the said Koosa Poojary is one of petitioner in W.P.No.5134/1995 wherein categorical discussion was made when the rejection to an extent of 10 cents was made by the land tribunal. Having discussed the material on record, dismissed the writ petition. Hence, it is clear that with regard to the 10 cents of land is concerned, when the 29 Form No.7 was filed rejected and the same attained its finality.

28. It is the contention now that an application filed under Form No.7A invoking Section 77A of KLR Act. No doubt the counsel appearing for the appellant relied upon the judgment of the 1976 of Mallayya Murigeyya Nadivinamath V/s Puttappa Shivappa Mosali and also the judgment of the Koraga Marakala and another V/s Smt. Kamala and others and also the judgment reported in ILR2004KAR1615and so also the judgment of this Court G GOPAL KRISHNA vs K BASHEER wherein in case of jurisdiction under Section 133 of KLR Act was discussed in detail. No doubt there is no dispute with regard to the settled principles that when the application is pending before the Tribunal when the claim was made that grant jurisdiction is vested with land tribunal confirming the occupancy right. The Trial Court shall refer the question to the decision of the tribunal in accordance with provisions of 30 Section 133 of KLR Act and there is a bar. No dispute with regard to the said ratio and principle. It is also important to note that when the tenancy application was filed and rejected to an extent of 10 cents of land which is the subject matter of the suit. I have already pointed out that the writ petition also rejected the claim of the Form No.7 which was filed by the said Koosa Poojary and has attained its finality as contended by the counsel for respondent.

29. It is also important to note that the judgments which have been relied upon by the counsel for the respondent also throughout from 1994 to 2015 referred above, categorically held that civil Court has jurisdiction to entertain the suit for injunction and pass appropriate orders and categorically held that provision of Section 133 are not attracted the cases arising out of Section 77A of KLR Act as the authority which is empowered to deal with the cases in a distinct entity and cannot be equated with the land tribunal constituted under a separate provisions of Land 31 Reforms Act. In the case on hand, it has to be noted that no dispute that Form No.7A is filed invoking Section 77A of KLR Act and the same was also rejected. The counsel appearing for the appellant would submits that the same is questioned before the KAT and the matter is still pending. But, the law is very clear that suit need not be stayed only because the person claiming to be a tenant has filed an application in Form No.7A, because the Deputy Commissioner only grants lands and not the occupancy rights under Section 77A as held in the judgment Venkatappa V/s Ramakka and even it is held in a case of K.V.Rushyashringabhatta V/s S.G.Nagendra and others and also discussion was made with regard to Form No.7 filed for grant of occupancy rights when the same is pending before the land tribunal. In the case on hand, application filed under Form No.7 is not pending and it has reached its finality and also discussed with regard to the effect of section 77A R/w Section 132 of the Act. When an 32 application is filed under Form No.7A and categorically held that provisions of the Section 133 of the Act do not attracted to cases arising out of Section 77A of the Act as the authority which is empowered to deal with such cases is a distinct entity and cannot be equated with land tribunal constituted under Section 48 of the Act and the same is also re-iterated in the judgment of Sanjeeva Shetty V/s Sri.Shekar Shetty in W.P.No.9952/2014 and so also earlier judgment in Shankar and another V/s Madhukar Bandopant and another and in the judgment referred supra ILR2000KAR1019wherein also held that under Section 77A the Deputy Commissioner only grants land if condition mentioned in that sections are fulfilled, but he does not grant occupancy right to a tenant and hence the provision under Section 133 are not attracted.

30. This Court would like to rely upon the judgment reported in 2015 SCC online KAR5407in case of Veerabadra V/s State of Karnataka wherein also similar 33 question was arosed before the division bench regarding Form No.7A and confirmed the judgment of the single judge in coming to the conclusion that when the Form No.7 was rejected by the land tribunal which has been confirmed by the division bench of this Court, the appellants have no right to file an application again invoking Form No.7A of the Act and held that Form No.7A could not have been filed by the appellants because Form No.7A can be filed only if a tenant could not file Form No.7 for the reasons beyond his control. In view of categorical observation made by this Court that Form No.7A cannot be invoked when the Form No.7 was rejected.

31. This Court would like to rely upon the judgment of this Court in W.P.No.23806/2012 dated 20th day of July 2012 discussed with regard to when Form No.7A was invoked, the provisions of Section 77A of Karnataka Land Reforms Act, 1961, discussion made in the paragraph No.3 that when the application was dismissed under Form No.7 34 and the same is attained its finality and if a person invoked Section 77A of the Act and the same being entitled to be registered as occupant of such land and Section 45 or 49, had failed to apply for registration of occupancy rights in respect of such land under sub-Section (1) of Section 48-A within the period specified and also discussion made that once an application was rejected on merits and petitioner being the son of unsuccessful applicant who had suffered an order earlier by the land tribunal cannot maintain an application in Form No.7A and prescribed authority cannot entertain such an application as per Section 77A of the Act and dismissed the same.

32. The single Judge of this Court also in the R.S.A.No.5946/2010 dated 11th day of July 2023 wherein also similar factual aspects was discussed with regard to the filing of Form No.7A for grant of occupancy right in respect of suit schedule properties and discussion was made with regard to Section 133 and wherein also relied 35 upon the judgment reported in ILR2000KAR2298in case of Shankarappa Gowda and another V/s Indudhara Gowda regarding Section 133 and also cases arising out of Section 77A as the authority which is empower to deal with such cases is a distinct entity and cannot be equated with the land tribunal constituted under a separate provisions of land reforms Act, relying upon this judgment also set-aside the judgment of the Trial Court and First Appellate Court in coming to the conclusion that the finding of the courts below that it attracts section 133 in respect of proceedings initiated under Section 7A is not sustainable under law.

33. Having considered the material available on record and also the principles laid down in the judgments referred supra by both the appellant’s counsel as well as the respondent’s counsel and also judgment relied upon by this Court, it is very clear that once an application is filed under Form No.7 was rejected to an extent of 10 cents 36 which is the subject matter of suit was rejected, the same was questioned before the Court in writ petition and writ petition was also dismissed and it has reached its finality. Though contend that an application is filed under Form No.7A invoking Section 77A of the Act and granting authority is distinct and throughout from 1994 onwards this Court categorically held that both are distinct entity and admittedly when Form No.7A was rejected, matter is pending before the KAT. The very contention of the appellant that the matter is liable to refer to tribunal cannot be accepted and matter is not pending before Tribunal and an application is pending before the Deputy Commissioner invoking Form No.7A and the same is distinct and the division bench of this Court also categorically held that once Form No.7 is rejected and cannot file one more application under Form 7A. The division bench also categorically held that once the application was rejected by the Land Tribunal under Form No.7, the appellants have no right to file again 37 invoking Form No.7A of the Act and could not have been filed by the appellants because Form No.7A can be filed only if a tenant could not file Form No.7 for the reasons beyond his control and when such finding was given and held that cannot maintain an application under Section 7A, question of invoking Section 133 of the Act does not arise as contended by the appellant’s counsel.

34. Apart from that, material available on record and both the Courts have taken note of the admission on the part of DW1 and DW2 categorically held that RTC which is marked as Ex.P2 stands in the name of the plaintiffs and also taken note of Ex.P11 wherein partition was taken place between the appellant’s family not included 10 cents of land and only they partitioned the property to an extent of 45 cents which was granted when the Form No.7 was filed before the Land Tribunal and also categorical admission was given by the DW1 in the evidence also that the respondents have claimed the possession to the extent of only 10 cents 38 and also admitted with regard to non-inclusion of 10 cents of land in Ex.P11. The DW1 also categorically admitted that before filing the suit, they have issued the notice and also admitted that in suit schedule property they are residing and having hotel building and also there is a surrounding land. Hence, the contention of the appellant’s counsel that the property is not identified cannot be accepted since he categorically admitted in the suit schedule property consists of house, hotel and surrounding area. Even DW2 categorically admits in the cross-examination that the Plaintiff were land lord to some property and his father has filed the writ petition before the High Court and the same came to be dismissed and also admits that the plaintiffs made the claim to surrender the property which is in their possession and also categorically DW2 admits that the matter was disposed of in the High Court and dispute with regard to 10 cents of land are now over and this admission takes away the case of the appellants and also admitted 39 that if questioned based on the documents placed by them, they are not going to have any right as of ownership over the suit property. This witness also admits that property is not included in their family partition and also admits that RTC is not standing in their name. He also admits that the RTC stands in the name of the Plaintiffs and also admits the Ex.P7 certified copy of the registered partition. Taking into note of the admission on the part of the DW1 and DW2 also, the Trial Court considered the material on record and no perversity in the finding of both the Courts. The very contention that the property is not identified as contended by the counsel for appellant also cannot be accepted. He categorically admits that the suit schedule property consists of the house in which they are residing and also the hotel is located and also the surrounding area and identity of the property is also admitted by the witnesses and now cannot contend that property is not identified. Hence, I do not find any merit in the appeal to reverse the finding of the Trial 40 Court as well as the First Appellate Court. Both the Courts have taken note of the said fact into consideration. In view of the discussion made above, I answered substantial question of law Nos.1 and 2 as negative and answered substantial question of law No.3 as affirmative that Section 133 of the Act is not a bar to file a suit and suit is maintainable and answered the substantial question of law No.4 accordingly as there is no bar in view of filing of an application under Section 7A.

35. In view of the discussions made above, I pass the following:

ORDER

The Second Appeal is dismissed. Sd/- JUDGE SN