Jingra Moolya Vs. Balakrishna - Court Judgment

Excerpt:
karnataka land reforms act, 1961 - sections 48a, 132 & 133 : karnataka land reforms rules, 1974 - rule 19 - no suo motu jurisdiction invested on tribunal, adjudication of claim of occupancy right, only if application filed in time ; else right lost under section 48a(8) - order without jurisdiction & nullity, of no consequence in determining rights in respect of concerned land.; (i) it is quite clear that the tribunal can assume jurisdiction to adjudicate the claim of occupancy right, inter alia, only if an application to the said effect is filed by the person concerned within the prescribed time. if no such application is filed, then, the right of occupancy, even if admissible in respect of any piece of land, is lost because section 48a(8) provides that : 'where no application is made within the time allowed under sub-section (1), the right of any person to be registered as an occupant shall have no effect.' the legislature has not invested the tribunal to exercise any suo motu jurisdiction in this regard. ; in the present case, the contesting defendants had not filed any application for grant of occupancy right in respect of the suit land. it is also evident that the plaintiff and defendant-3, who are admittedly the owners of the land, were not the parties to the proceedings and at no stage they were served with any notice in this regard. in this view of the matter, it has to be held that the order of the tribunal to the extent it pertains to the suit land is without jurisdiction and void. as such, it confers no right on the defendants-appellants in respect thereof....the lower appellate court has rightly held that the order of the tribunal conferring occupancy right on the contesting defendants being without jurisdiction and nullity, is of no consequence for determining their rights pertaining to the suit land. - section 8: [h.n. nagamohan das,j] general rules of succession in case of males -petitioners claim that they are surviving legal representatives of deceased 2nd plaintiff -2nd respondent died without leaving any relations specified in class of schedule to section 8 of the hindu succession act - petitioners come under class ii of schedule to section 8 of the act and want to come on record as surviving legal representative of deceased 2nd plaintiff trial court dismissed applications held, if all the persons mentioned in an entry are alive then the property of the deceased shall devolve on all of them in equal shares. admittedly, in the instant case the relatives specified in the first entry that is the father of deceased is not alive. therefore, the relatives specified in the second entry will succeed to the estate of deceased the first three persons specified in second entry are not alive. but the second plaintiff who is the sister of the deceased is alive and the property of the deceased shall devolve only on her. the petitioners are admittedly the sons and daughters of brothers of deceased and they come under fourth entry. when the relation specified in the second entry are alive, then they shall be preferred over the petitioners. therefore, the petitioners are not entitled to come on record as legal representatives of deceased second plaintiff.g.c. bharuka, j.1. this appeal has been filed by the defendants nos.1 & 2. the suit is one for grant of permanent injunction restraining defendant from interfering with the suit land in sy.no. 217 as fully described in the schedule to the plaint. the judgment and decree of the trial court dismissing the suit has been reversed by the lower appellate court.2. as is evident from the pleadings of the parties and the findings of the courts below, the plaintiff and defendant-3 being brothers are the owners of the suit land as patta holders. this fact is also evident from the patta extract ex.p1. the contesting first defendant, who is the appellant has prayed for the grant of relief on the ground that he has been granted occupancy right by the tribunal under its order dated 31.5.1977 ex.d1 pursuant to the powers conferred under section 48a of the karnataka land reforms act, 1961 (hereinafter in short 'the act') and as such he is in lawful possession of the same. the order of the tribunal ex.d1 was repudiated by the plaintiff by asserting that the same was without jurisdiction to the extent it relates to the suit property. this being so, it is submitted that no right can accrue in favour of the contesting defendants, pursuant to the said documents. the trial court refused to enter into the question of validity of the tribunal's order in view of the bar contained under sections 132 and 133 of the act and thereby dismissed the suit. but, the lower appellate court for the reasons set out in the impugned judgment has found the order of the tribunal to be a nullity and has accordingly decreed the suit. keeping in view these findings, the present appeal was admitted for considering the following substantial questions of law:'i) whether the lower appellate court was justified in reversing the judgment and decree of the trial court totally ignoring the order of the tribunal granting occupancy rights to defendant-1 under ext.d1?ii) whether the lower appellate court was justified in drawing the presumption of actual possession from the title of the plaintiff and defendant-3 to the suit land without finding that they were in actual possession and totally ignoring the order of the tribunal granting occupancy rights?iii) whether it was competent for the lower appellate court to go behind the grant of occupancy rights by the tribunal and find that fraud was practised on the tribunal in obtaining it when he had not pleaded?'admittedly, the plaintiff and defendant-3 are the owners of the land as patta holders. it is not the case of the contesting defendants that they were in possession over the land as tenants under the plaintiff and defendant-3 though in the written statement they have said that they were tenants in respect of the properties over which occupancy rights were granted by the tribunal. but, from the order of the tribunal ex.d1, as noticed by the lower appellate court, though the contesting defendants had claimed occupancy right by filing an application to that effect in form no. 7 in respect of survey numbers 11/8, 11/18, 13/18, 13/33, 13/35, 13/28, 13/23, 94 and 13/36 of idya village, but, they did not claim occupancy right in respect of suit land sy.no.87 of idya village. it is also found from the order of the tribunal that the plaintiff and defendant-1, who are admittedly the owners, were not parties before the tribunal. from the order of the tribunal, it is apparent that in respect of the suit land the contesting defendants were conferred with occupancy right on the basis of the report of the surveyor. in para-6 of his deposition dw-1 has admitted that at the time the surveyor surveyed and measured the land only he and his father were present and no persons on behalf of the plaintiff were present on the suit land. keeping in view these facts, it has to be ascertained whether the order of the tribunal ex.d1 had been passed by the tribunal within its jurisdiction or it was a nullity thereby creating no right in favour of the person the same was passed. section 48a of the act reads as under:'48a enquiry by the tribunal, etc.-1) every person entitled to be registered as an occupant under section 45 may make an application to the tribunal in this behalf. every such application shall, save as provided in this act, be made (before the expiry of a period of six months from the date of commencement of section 1 of karnataka land reforms (amendment) act, 1978).(2) on receipt of the application, the tribunal shall publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and ad other persons having an interest in the land to appear before it on the date specified in the notice. the tribunal shall also issue individual notices to the persons mentioned in the application and also to such others as may appear to it to be interested in the land.'rule 19 of the land reforms rules, 1974, reads as under:'19. form of application and notice.-(1) the application under sub-section (1) of section 48a shall be in form 7. the application shall furnish particulars of alt the lands held under each separate tenancy in one or more than one taluk in respect of which the applicant claims to be entitled to be registered as an occupant. where the lands are situated in more than one taluk, the application shall be filed before the tribunal of the taluk where the greater part of the lands are situated. on receipt of the application, the tahsildar shall send extracts of the applications to the tribunals concerned. so far as the lands in his taluk are concerned, the tahsildar shall verify the particulars mentioned in the application with reference to the revenue records including the record of rights wherever they are prepared and also note the same on the application. the public notice and the individual notice referred to in sub-section (2) of the said section shall be in form 8 and form 9 respectively.(2) such notice in addition to being served in the manner laid down in rule 42 shall also be published in the chavadi of the village concerned and in the offices of the village panchayat and the tahsildar for a period of not less than thirty days.'3. from the above noticed provisions it is quite clear that the tribunal can assume jurisdiction to adjudicate the claim of occupancy right, inter alia, only if an application to the said effect is filed by the person concerned within the prescribed time. if no such application is filed, then, the right of occupancy, even if admissible in respect of any piece of land, is lost because section 48a(8) provides that 'where no application is made within the time allowed under sub-section (1), the right of any person to be registered as an occupant shall have no effect.' the legislature has not invested the tribunal to exercise any suo motu jurisdiction in this regard. further the grant of such right depends upon establishing of certain foundational facts which can be determined only after notices are served on the persons interested in the land. in the present case, as is found from ex,d-1, the contesting defendants had not filed any application for grant of occupancy right in respect of the suit land, it is also evident that the plaintiff and defendant-3, who are admittedly the owners of the land, were not the parties to the proceedings and at no stage they were served with any notice in this regard. in this view of the matter, it has to be held that the order of the tribunal to the extent it pertains to the suit land is without jurisdiction and void. as such, it confers no right on the defendants - appellants in respect thereof.4. now the question is that even if the order of the tribunal is found to be without jurisdiction and consequently a nullity, will the provisions of sections 132 and 133 of the act will still operate as a jurisdictional bar against the civil court in declaring it to be so and has to take the said order as final for considering the rights of the parties. in this connection, i may usefully refer to the law laid down by the supreme court in the case of kiran singh v. chaman paswan and ors., : [1955]1scr117 , wherein it has been held that it is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. the said decision has been relied upon by the supreme court in its subsequent decisions viz. sunder .dass v. ram prakash, : [1977]3scr60 , mahadeo prasad singh v. ram lochan and ors., air 1981 sc 146: paras 33 & 34. and messrs east india corporation v. shree1 meenakshi mills ltd., : [1991]2scr310 . keeping in view the law laid down by the supreme court as noticed above, in my opinion, the lower appellate court has rightly held that the order of the tribunal conferring occupancy right on the contesting defendants being without jurisdiction and nullity, is of no consequence for determining their rights pertaining to the suit land. that being the situation, the contesting defendants having admitted that plaintiff and defendant-3 are the owners of the land and there being no acceptable evidence to the effect that the rightful owners are not in possession thereof, the court below has rightly declared that the plaintiff and defendant-3 are in lawful possession of the suit land. so far as the decision cited by the learned counsel in the case of shivappa bheemappa v. nagappa bheemappa, 1983(2) klj248, is concerned, in my opinion, it is not of much consequence because in this case the order of the tribunal was not found to be without jurisdiction and thereby a nullity.5. for the reasons aforesaid, i find no merit in this appeal which is accordingly dismissed. no costs.