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For Rejection of Plaint under code of civil procedure only plaint averrments have to be taken into consideration

Hafeez and Ors Vs. Asif and Ors – Karnataka High Court Order on Apr 22 2010 Reported 2010 (5) KarLJ 60 Hon’ble Justice: Aravind Kumar, J. This is a defendants' revision petition questioning the correctness of the….. lower court order where under interlocutory application filed by the revision petitioners (defendants) under Order 7, Rule 11(d) of the Code of Civil Procedure, 1908 came to be dismissed.


FACTS OF CASE:- Plaintiffs sought for an order of perpetual injunction against the defendants, their men, agents, representatives, henchmen ………. The said suit was contested by the defendants. During the pendency of the suit an application under Order 7, Rule 11(d) read with Section 151 of the Civil Procedure Code, 1908 came to be filed by the defendants with a prayer to reject the plaint as same is barred by law. The said application was supported by an affidavit of 4th defendant. It was contended in the said affidavit that in respect of suit
schedule property the defendants' father had taken 15 guntas of agricultural land on tenancy basis from Kolad Mutt Mahasamsthanam during 1965 and during his lifetime he was cultivating the land by giving half share to the mutt. It was also contended that father of the plaintiffs late G. Khaleel had filed an application for registration of occupancy rights before land Tribunal and the Tribunal by order dated 19-4-1989 had ordered late G. Khaleel to be registered as occupant of the Schedule property. The said order came to be set aside by this Court in W.P. No. 25423 of 1993 by order dated 19-9-2001 and same came to be set aside at the instance of the mutt and was remitted back to the Land Tribunal. The matter is being adjudicated by the Special Deputy Commissioner for Abolition of Inams as the land was a Devadaya land and during pendency of adjudication before Tribunal, above said G. Khaleel expired on 17-7-2004 and his legal heirs were prosecuting the proceedings before the Special Deputy Commissioner. It was contended by the defendants that when the matter was pending before the Tribunal, the plaintiffs have filed the present suit to deprive the rights of the defendants. It was also contended that suit schedule property was in joint possession of both plaintiffs and defendants and the defendants have already got impleaded themselves before the Tribunal and as such the plea regarding joint tenancy has to be referred to the Land Tribunal under Section 133 of the Karnataka Land Reforms Act, 1961. Hence it was contended that the suit was not maintainable and barred by law.


COURT OBSERVATIONS AND CITED CITATIONS

Though several judgments are cited at the bar the same having been perused by this Court, following judgments would throw light on the questions formulated hereinabove which requires to be determined in the instant case and as such the following decisions are extracted.

Kamala and Others, v K.T. Eshwarappa and Others, AIR 2008 SC 3174 case, paras 15 and 16 "15. Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Rule 11 of Order 7 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code. Order 7, Rule 11 of the Code is one, Order 14, Rule 2 is another.


16. For the purpose of invoking Order 7, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. All issues shall not be the subject-matter of an order under the said provision. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out there from is that the Court at
the stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the Court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for registration of plaint should be entertained".

Smt. Mallamma v Chenne Gowda, 2009(1) AIR Kar. 21; case:

"45. The Courts below have declined to grant the relief of possession to the plaintiff similarly on the ground that the land Tribunal has granted occupancy rights in favour of the 3rd respondent and therefore he is in possession. As such in view of the bar contained in the aforementioned sections the Trial Court cannot examine the said aspect of the matter. No doubt, a plain reading of the above provisions indicate that the Civil Court shall have no jurisdiction to deal with any question which is required to be settled or decided by the authorities mentioned in Section 132 and sub-section (2) further makes it clear that no order of the authorities mentioned therein shall be called in question in any Civil Court or Criminal Court and Section 133 further makes it clear by specifically mentioning that the Civil Court or Criminal Court shall not decide the question as to whether the land is not a agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1-3-1974.
46. A careful reading of the aforesaid clause (i) of sub-section (1) of Section 133 therefore gives an indication as to the exclusion of the jurisdiction of the Civil Court to deal with the questions referred to above in clause (i) of sub-section (1) of Section 133.



Mudakappa v Rudrappa, AIR 1978 Kant. 136:

"12. Section 132 provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Deputy Commissioner, the Assistant Commissioner, the Tribunal, the Tahsildar, the Karnataka Revenue Appellate Tribunal or the State Government in exercise of their powers under the Act. It also further provides that no order of the Deputy Commissioner, the Assistant Commissioner, the Tribunal, the Tahsildar, the Karnataka Revenue Appellate Tribunal or the State Government made under the Act shall be questioned in any Civil or Criminal Court. The consequence of an agricultural land being held by a lessee immediately prior to 1-3-1974 is that with effect on and from the said date, it would stand transferred to and become vested in the State Government by virtue of Section 44(1) of the Act. The tenants holding such lands, would as against the State Government, be entitled only to such rights or privileges and would be subject to such conditions as provided by or under the Act. Any other rights or privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person would cease and would not be enforceable against the State Government. Under Section 45 of the Act, every tenant would be entitled subject to such restrictions and conditions that are imposed by the Act to be registered as an occupant in respect of the lands of which he was a tenant before the date of vesting and which he had been cultivating personally. Section 48-A prescribes the procedure to be followed by a person entitled to be registered as an occupant under Section 45. For securing such registration, he has to make an application to the Tribunal constituted under the Act for that purpose in accordance with law. Under sub-section (5) of Section 48-A, where an objection is filed disputing the validity of the applicant claim or setting up a rival claim, the Tribunal is required to hold an enquiry and determine whether the applicant is entitled to be registered as an occupant or not. Section 112(B) expressly requires the Tribunal to make necessary verification or hold an enquiry in all cases relating to registration of a tenant as an occupant under Section 48-A. Section 133 of the Act, states that when, in any suit or proceedings concerning a land, the question whether such land is or is not an agricultural land or whether the person claiming to be in possession is or is not a tenant of the said land prior to 1st March, 1974, arises for consideration, such question should be referred to the Tribunal for its decision and the suit or proceedings should be disposed of in accordance with the finding of the Tribunal on the above question. When, as in this case, one person applies for registration of the lands as an occupant in his individual name and three others apply for registration of the said lands in their name along with the other applicants as joint occupants, it becomes the duty of the Tribunal to decide whether only one of them was the sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants. Without deciding the said question, it would not be possible for the Tribunal to make an effective order under Section 48-A of the Act. In order to decide the said question, it becomes necessary for the Tribunal to decide whether the tenancy in question was held by one of them exclusively or by all the applicants jointly. We have to hold that under Section 48-A, the Tribunal has that power having regard to the scope of that section. Whenever a statute confers a duty on an authority to decide a question and a corresponding right on an individual or individuals it has to be assumed that the statute, has, by necessary implication conferred on that authority the power to decide all issues which are incidental and ancillary to the main question to be decided. Otherwise the Tribunal will have to keep all the applications pending until such issues are decided by the Civil Court. In fact there is no procedure prescribed by the Act to refer such issues for the decision of the Civil Court. We do not think that it would be reasonable to hold that the Tribunal should await the decision of the Civil Court on such issues, in view of sub-section (5) of Section 48-A, which requires the Tribunal to hold an enquiry into all rival claims made in respect of the registration of the occupancy rights in respect of the agricultural lands before disposing of the applications made to it. We, therefore hold that the land Tribunal is competent to decide for the purpose of disposing of the applications under Section 48-A the question whether the leasehold rights were held exclusively by the appellant or by the joint family consisting of the appellant and the respondents before the partition took place and thereafter by all of them as co-tenants till the appointed day. It is its duty to do so under the Act. The said question could not therefore be decided by the Civil Court in view of Section 132 of the Act".


Mudakappa v Rudrappa, 1996(6) Kar. L.J. 129 (SC), paras 7 and 8:

"7. In Chapter III heading is conferment of ownership on tenants. A conspectus of the provisions establishes the gamut of operation of the Act, namely, conferment of ownership of tenancy rights of the lands vested in the State Government. The pre-existing right, title and interest of the landlord in relation to the lands in possession of the tenant, even against whom a decree or order for eviction or a certification for assumption was made or issued immediately prior to the date of the commencement of the Amendment Act other than the lands held by them under leases permitted under Section 5, with effect on and from the said date, i.e., March 1, 1974 stand transferred to and vested in the State Government. In other words the pre-existing relationship of the tenant with the landlord stood extinguished from the date of vesting in the State Government. By operation of non obstante clause of sub-section (2) of Section 44, the lands which were resumed by or in any contract, grant or other instrument or in any other law for the time being in force with effect on and from the date of vesting and save as otherwise expressly provided in the Act shall cease. The consequences enumerated thereunder shall ensue, namely, all rights, title and interest held by the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances. Consequently the pre-existing right, title or an interest of the owners of such lands shall cease and be vested absolutely in the State Government free from all encumbrances. Pending finalisation of the registration with the State Government of a tenant, his possession of the land is protected and he should not be dispossessed. Section 45 gives right to the tenant to be registered as an occupant of land on specified conditions enumerated in Section 45 and the provisions of the succeeding Chapter. Every tenant who is personally cultivating the land shall, with effect from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting. The pre-existing tenancy rights with predecessor landlord have been extinguished and new rights have been created by the statute which would be ensued under the Act creating direct tenancy relationship with the State as a tenant. Section 48-A constitutes the forum and enjoins it to enquire into the application registered by it. It should direct every person entitled to be registered as an occupant under Section 45 to make an application to the Tribunal in that behalf within the time specified thereunder. On receipt of such application, the Tribunal should publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the specified date. Personal notice shall be served on the persons named in the application or otherwise found to be entitled to be heard. By operation of Explanation II to Section 2(A)(11) if the land is being cultivated by or on behalf of the joint family or by any one of the members of the joint family, it should be deemed that the joint family is personally cultivating the land. The Joint family is, therefore, the tenant and the land is lawfully in occupation of the joint family as a tenant. Sub-section (5) of Section 48-A postulates that when an objection is filed disputing the validity of the applicant's claim or set up a rival claim, the Tribunal shall, after enquiry, determine, by order, the person entitled to be registered as tenant and pass orders accordingly. Therefore, when rival claims were set up for tenancy right and entitlement for registration, it is incumbent upon the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. Thereon an order should accordingly be made by the Tribunal and it would become final. Thereby it is clear that the Act extinguishes the pre-existing right, title and interest of the landowners as well as those who were inducted into possession by the erstwhile landholders. The new rights have been created in the Act itself in favour of the tenant in personal cultivation to claim registration as tenants so as to continue to enjoy the occupancy rights as a tenant as enumerated under Section 45. A forum was created and the forum is enjoined to enquire into not only the nature of the land but also the entitlement for registration as a tenant. When inter se rival claims for tenancy rights have been set up, it has been empowered with jurisdiction to decide that question as to who is the tenant in possession of the land prior to the date of vesting and entitled to be registered as a tenant with the State Government and its decision shall be final. The Civil Court's jurisdiction under Section 9 of CPC by necessary implication, therefore, stood excluded.

8. It is seen that the words tenant', 'the Tribunal' and the 'joint family have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Article 227, as the case may be. But that cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from Section 48-A(5) and Section 112(B)(bbb) read with Section 133, that the decision of the Tribunal is final under Section 133(l)(iii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to dealt with by the Civil Court".



Mayar (H.K.) Limited and Others v Owners and Parties, Vessel M.V. Fortune Express and Others, AIR 2006 SC 1828 : case, Paras 11 and 12:

"11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order 7, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.

12. Similarly, the Court could not have taken the aid of Section 10 of the Code for stay of the suit as there is no previously instituted suit pending in a Competent Court between the parties raising directly and substantially the same issues as raised in the present suit".



Doddamma v Muniyamma and Others, 2005(3) KCCR 1602; case, para 21:

"(21) It is clear from the above said provisions of the Inams Abolition Act and the provisions of the Land Reforms Act that so far as the rights of the tenants are concerned, the provisions of the Karnataka Land Reforms Act are similar to the provisions of the Inams Abolition Act though the provisions may not be similar in respect of the owners of the land under Karnataka Land Reforms Act and Inam holders and inamdars under the Inams Abolition Act. However, so far as the tenants are concerned, the effect of the above said proceedings is that from the appointed date, the relationship of the landlord and tenant ceases and the property vests with the Government and the tenant is entitled to conferment of occupancy right as per the provisions of the Inams Abolition Act. The object of the Inams Abolition Act as already culled out from the observations made in Muniraj and Another v Karnataka Appellate Tribunal, Bangalore and Others, 2004(3) Kar. L.J. 570 is to see that the application attached to the inams are abolished by vesting of the property in the State and the tenants would get occupancy right under the Inams Abolition Act and in substance, there is change of tenure and property would vest with the State absolutely free from all encumbrances and the relationship of landlord and tenant ceases and on conferment of occupancy right, the tenant would get the right under the Inams Abolition Act. While considering the provisions of the Karnataka Land Reforms Act and dealing with the question as to whether the occupancy right granted in favour of a member of the joint family would ensure to the benefit of all the members of the Joint Family and whether a civil suit can be filed for partition and separate possession in respect of the occupancy right that is granted under the Karnataka Land Reforms Act, the Hon'ble Supreme Court in the case of Balawwa and Another v Hasanabi and Others, (2000)9 SCC 272 has observed as follows:-
"7. Having examined the provisions of the Karnataka Land Reforms Act and the aforesaid two judgments of this Court, we have no doubt in our mind that the Civil Court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well-settled that when a special Tribunal is created under a special statute and the jurisdiction of the Civil Court is sought to be ousted under the said statute, it is only a respect of those reliefs which would be granted by the Special Tribunal under the special statute, the jurisdiction of the Civil Court cannot be said to be ousted. 8. Looking at the provisions of Section 48-A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the Civil Court. Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an applicant provided the preconditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position, and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned Counsel for the appellants is, therefore, devoid of any force. 9. Coming to the second contention, as it appears, the decision of the learned Trial Judge granting the relief of partition in respect of two houses has not been assailed. The plaintiff is one of the daughters of Imamsab. Defendant 1 happens to be the widow of the son of Imamsab and defendant 3 is the husband of the other daughter of the said Imamsab. All these persons had a right in the property left by Imamsab. In this view of the matter, the High Court as fully justified in coming to the conclusion that the so-called order of the Land Tribunal under the Karnataka Land Reforms Act would enure to the benefit of the other members who were otherwise eligible for a share in the property in question. Therefore, we see no infirmity with that conclusion so as to be interfered with by this Court"".


A Division Bench of this Court in Appi Belchadthi and Others v Sheshi Belchadthi and Others, 1982(2) Kar. L.J. 565 (DB); has observed as follows:- "18. The questions such as, the existence of a joint family, the rights of the members thereof, the position and power of the manager, and the nature of the property acquired by them are not so simple to the decided by a summary enquiry, and that too without the assistance of trained lawyers. The Joint Hindu Family or coparcenary is a creature of Hindu law. The status of every Hindu family is presumed to be joint, joint in food, worship and estate. That presumption is stronger in the case of brothers. Once the family is proved to be joint, that presumption continues until it is rebutted. Those who allege separation must prove unless it is admitted that there was a separation at some point of time. The question as to whether a particular family retains its character of jointness at a particular time is a difficult question for decision. Mere severance in food and worship does not effect a separation of the family nor separate residence by members operates as a severance of the joint status. We are only mentioning some of these principal features to impress upon that the decision on these questions requires a lot of brooding even by Courts of law. One could only imagine the difficulties of Tribunals without proper wherewithal".


The same principle is reiterated by the Division Bench of this Court in K. Guruvappa and Another v Smt. Manjappa Hengsu and Others, 1985(1) Kar. L.J. 51 (DB): ILR 1985 Kar. 386 (DB). It is clear from the above said observations made by this Court that effect of abolition of the relationship of landlord and tenant or vesting of the property in the State and conferment of occupancy right on the tenant would only result in the change of tenular of the tenant as the same would not affect the personal inam of the parties. When there is a rival claim before the Land Tribunal with regard to the fact that the tenancy is individual or joint family tenancy, the Tribunal is bound to decide the said question while considering the rival applications filed by the members of the family. However, when application for conferment of occupancy right is filed by one of the members of the family, conferment of the occupancy right on the said applicant, would not preclude and other members of the family to contend that the said tenancy is the joint family tenancy and that they are entitled to partition and separate possession of the shares. Under the Inams Abolition Act, no power is given to the Competent Authority to pass a decree for partition and what is required to be considered by the authorities is only as to whether the applicant is entitled to conferment of occupancy right as a tenant under Section 5 of the Inams Abolition Act, which is relevant for the purpose of this case to decide the question as to whether he was a permanent tenant on the date of vesting.

In a recent decision of this Court where there was divergent opinion between two Judges of this Court and the matter was referred to a third Bench, the learned Judge has observed as follows in Parushuram Nemani Kuduchakar and Others, v Smt. Shantabai Ramachandra Kuduchakar, 2004(6) Kar. L.J. 275: ILR 2004 Kar. 3355; after referred to the relevant provisions of the Karnataka Land Reforms Act:
"(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claims by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does not decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition".


DECISION:- A perusal of the order passed by the Trial Court it is seen that said order does not suffer from either jurisdictional error or it suffers from any material irregularity. The suit being at the stage of further cross-examination of P. W. 1 it would not be desirable to reject the plaint on the basis of the averments made in the written statement and which cannot also be embarked upon by this Court. Hence, ………… is answered by holding that the order of the Court below does not suffer from any error or infirmity. ……… Accordingly, the following order is passed: The revision petition is dismissed as devoid of merits.

CASE LAW ON LAND LAWS

KARNATAKA LAND LAWS