G HAFEEZ Vs. K ASIF

JUDGEMENT

(1.) This is a defendants' revision petition questioning the correctness of the order passed by the XIII Additional City Civil Judge, Bangalore, dated 25-8-2009 in O.S.No. 15734/2005 where under interlocutory application filed by the revision petitioners (defendants) under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 came to be dismissed.

(2.) The parties are referred to as per their ranks before Civil Court. The facts in nut shell are as follows: 2.1 Plaintiffs sought for an order of perpetual injunction against the defendants, their men, agents, representatives, henchmen in O.S.No. 15734/2005. The said suit was contested by the defendants. During the pendency of the suit an application under Order VII, Rule 11 (d) r/w Section 151 of Code of Civil Procedure 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 Mahasamstanam during 1965 and during his life time 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.25423/1993 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 beiore the Special Deputy Commissioner.

(3.) Sri.Subramanya would contend that all the defendants have impleaded themselves before the Special Deputy Commissioner, by order dated 5-6-2006. He would contend that under Section 30 of the Mysore (Religious and Charitable) Inams Abolition Act, 1955, (hereinafter referred to as Inams Abolition Act, 1955), the provisions of Section 48A of Karnataka Land Reforms Act, r/w Rule 17 of the Karnataka Land Reforms Rules are made applicable. He would fairly submit that Section 32 of 1955 Act is not in pari materia with Section 133 of the Land Reforms Act and fairly concedes provision of Section 133 of the Land Reforms Act cannot be made applicable to the facts of the present case. Elaborating his submissions he would contend that prohibition under law as contemplated under Order VII, Rule 11(d) would be Section 3 and Section 5 of Inams Abolition Act, which prohibits the Court from proceeding with the Civil Suit inasmuch as under Section 3 the land vests with the State and person in possession will continue to be in possession of the land and what is required to be enquired before the Special Deputy Commissioner before grant of occupancy rights will be with reference to the history and nature of holding of the land for grant of occupancy right under Section 5 of Inams Abolition Act. He would draw the attention of this Court to the order dated 5-2-2006 passed by Special Deputy Commissioner while allowing the impleading application of the defendants to come on record in the said proceedings to contend that deceased Khaleel i.e., father of the plaintiffs had deposed before the Tribunal that all his brothers (defendants in the suit and revision petitioners herein) were assisting him in his agricultural operations and as such he would contend under proviso to Section 3 of 1955 Act the defendants are deemed to be in possession along with the plaintiffs. He would contend that if the Civil Court is allowed to record a finding about his possession while adjudicating the suit it will have a bearing on proceedings before Special Deputy Commissioner and as such he contends that suit is to be held as barred by law. In support of his submissions he would rely upon the following judgment: (i) 2009 (4) AIR Kar R 21, SmtMallamma v. Chenne Gowda. (Para 45) (ii) ILR 1994 Kar 230:(1994 Lab IC 1351), Karnataka Bank v. T.Gopalaksihna Rao (Head Note A) (iii) (1977) 4 SCC 467 : AIR 1977 SC 2421, T.Arivandandam v. T.V.Satyapal (para 5) (iv) AIR 1978 Kar 136, Mudakappa v. Rudrappa and others, (para 12) (v) 1996 (6) Kar LJ 129 (SC): (AIR 1994 SC 1190), Mudukappa v. Rudrappa and others. (Head Note)