Gurunath Bheemappa Byakodi vs Bheemappa Basappa Myageri @ … on 2 March, 2009

AIDV. 153013? R}. TO R5 85 RS ‘PO R10)

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‘I’HiS PETITION Is FILED U/S 115 OF’ CPC A<::;a'IvI~i;¢;<IfT"*rIIE
ORDER DATED 13.09.2007 PASSED ON PRELIMINޤR'{ IN

OS,NO.336/2007 ON TEH FILE OF' THE III ASDIQCIVEL:
(JR.DN.) HUBLI, ANSWERING THE Issup NO.3_-{NV-N};§?(3A'§fIVE A__I~¥D
HOLDING THAT THE SUIT FILED I-#'OR""I!*«£JtJNCTIO'bI__ Is-IwEI,L T

MAINTAINABLE BEFORE COURT.

THIS PETITION COMING ON… FOR ” §«I.E§ARiNG *i’HIS,_I§?A§{, TI: >

COURT MADE THE FOLLOWING: ‘~
=.V_

The petitioner is this; the order

dated 13.9.2007.’passed”‘ii:I– By the said

order, the the preliminary issue against
the pefifidger_hém_ii1′–j.h01biiIIIg’ihat the suit filed by the piainfifi

for i1]_§tii§!f3(_A311iOi’1x isv before the Civi} Court.

.;r’

‘ the learned Counsel for the paxties and

papers.

“The mspandents hcmin were before the trial Court

suivt” flied for permanent injunction in O.S.N0.336/200?.

Lane said suit, the right claimed is in mspect of Sy:No.

VT Him”-’86’/1+2+3/A/1 measuring 3 acres 8 guntaas of Pals Village,

.4

Hubli Taluk. In the piajnt, certain avezments

regard to the pmceedings being pending_–~i3efe}~13: _

Tribunal, Hubli, in KLRI SRPI 16.

4. The defendants seetement
however contended that Teiflce .questvieAz1Vés a subject
matter of proceedings the Civil Court
womd be pzec133ci§’;::;:1L matter in View of
the pmvisiosfie 133 of the Karnataka
Land ‘.Act’). It is in that context, the
issue to of the suit was framed and the
same j»v.2zs;_.coesi:;1e;1t2htfI .pre]1m’ 211′ my issue. Before the trial

. . ‘as well as the defendants relied on the

‘1L!.e¥:i$3ié:;v.:§)fe fiiiisfliourt to put forth their contention. in the

decisien the plainfifl” in the case of SHANKARAPPA

:<:0KAN}3:___¥-vs- NARASINGARAMA KOKANE AND ANOTHER

in 1988(1) Kb} 54, the purpom: of Section 133 stating

it would Completely bar the jnrisciiction of the cm: Ceurt

2has been indicated. However, the Tribunal noticing the

decisions cited by the learned Counsel for the piaintifl' in the

«,1

case sf T ULASAMMA —vs- SRIgHVASAN— HR 1995 KAR 1328

and in the casa of B.V. SUBBACHARI -~vs–~ B.K. ILR

1994 KAR 2505, has come to the conclusion

maintainable. —

5. Though the said decisio31s”‘hav.e&_ i)§§fi~. . i

the Tribunal, What n=:qum’:’ s to be 11::)’ii§:c:(L1_Ti£:’T in

the case of TULASAMMA (ILR KAR of the V

said deciskrns and in the dc:::isidi1.,_ the i2ar1ie:r.~ iiccisian in

the cas§§”<$f nefcrmd to. Even after

refeningté «the– of SUBBACHARI, the ultimate

pfincipk: in TULASAMMNS case is

_tA:1:1e£at':,_.":* when the issue relating to

projected, it would be open for the Civil

the suit and if the issue relating to tenancy is

_.invo1§ed; '§hé provisions of Section 133 of the Act would apply.

r Therefore, the position of law is clear that the bar as

K cgfhtainefi under Section 133 of the Act would be applicable if

there is a i$S11€ relating 1:0 tenancy in respect of the property

J!

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t

'~ 31.192. of the '

6
as arising under the Act since the land being tenanted and

occupancy fight if any is to be considered

Tribunal. It is needless to mention that in such “a it.

would be open for the parties possesshionl ‘ j

possession by seeking injunction evex;

and as such the legal right is V” V x I

7. in the pre-se1?.t facts, \§vrhvé1t.;equi:esh_te be} noticed is

that even in the light’ fieeisielg on by the trial

Court, trial Court is to secure
details as -1 Ielating to the case indicated in
the plsint ham’ ass as Veentended by the defendants. On

‘e, if the trial Court opines that the issue

as contemplated under the Act arises in

of schedule pmperty, the jurisdiction of the

‘sciviz was be batted under Section 133 of the Act and

V’ Vthe ilmtirhe matter would have to be referred back to the Land

‘ to consider the ease of the parties.

3;

“3

8. Thcrefom, to the said extent, the elder ixnpqgned in

{he present pefition being unsustainable is set asidr~:_’.’=

issue is remitted back to the trial Court with__–‘$§ Ste.»

securt: the records relating to the __t::a.s¢ i;:1(_§t’iVcé;a1:::.’ii_’:v 1

before the Lana Txibunal and onv’obtva_j_’i1′ iiizgitiié }ié,t’s;i1s« ‘

consicltzr the same. If the iss’:ic”qf tenanéy” is i:i:1i?és1%*6dVVVhéu)Vce11i’

the parties to the suit in mspectiéfvvezj pifiopetty, the
Civil Court would ha\VIe_.x:t0_A does not have the
jurisdiction to proceed :ti1&’i7¢::a.1f’tefii'”,’. Iiiatter would have

to be to the Land Txibunal or
o£henvi*$t:,V thei be in a position to process!

with the mai*.te1jV.V V _ ‘
,, Acenrdingiy, ‘tvhe ctition stands disposed ofwith no order

,as’.to costs. .<

Sd/-«
Judge

K – bms