LAKSHMI W/O. LATE BALAKRISHNAMURTHY, RADHAKRISHNA MURTHY S/O. LATE BALAKRISHNAMURHIY AND RAJARATNA D/O. LATE BALAKRISHNAMURTHY Vs. SANAMMA S/O. LATE BASAVA, AKKAIAH D/O. LATE BASAVA, AMMANI D/O. LATE BASAVA AND GUNDA S/O. BASAVANNA

JUDGEMENT

(1.) THE Respondents though served, are absent and unrepresented.

(2.) THE Petitioner instituted O. S. 286/2008 before the Prl. Civil Judge (Jr. Dn.), Udupi, for mandatory injunction directing the Defendants/ Respondents to remove the granite pillars and the barbed wire fence put up at the two places, one on the northern boundary of the plaint 'A' schedule property and the other en the northern edge of the pathway in question, alleging that the 2nd Plaintiff entered into an agreement with one Basava, the father of Defendants 1 to 3, and another, Gunda, the 4th Defendant/4th Respondent entitling to a right of permanent passage for ingress and egress to and from the Plaintiffs property. That suit, though contested, Defendants 1 and 2 admitted the agreement, nevertheless filed I. A. No. 5 under Order 14 Rule 2 Code of Civil Procedure to frame a preliminary issue over maintainability of the suit, on the premise, that the land in question of which a permanent pathway is sought belongs to scheduled caste and therefore the agreement for a permanent pathway being an alienation is hit by the provisions of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act for short PTCL Act, and the trial Court did not have the jurisdiction to entertain the suit. That application was opposed by filing statement of objections of the Petitioner interlaid contending that the question as to whether or not the agreement was hit by the provisions of the 'FTCL' Act, is required to be adjudicated by the Assistant Commissioner under the said provisions of PTCL Act and not the Civil Court. In addition, it was contended that the suit was one for mandatory injunction relating to passage way for ingress and egress to and from the Plaintiffs property. The court below by order dt. 5/9/2009, Annex E, allowed the I. A. and framed a preliminary issue casting the burden on the Defendants to prove whether the court has no jurisdiction to entertain the suit as expressly barred under Section 4 and 5 of the 'PTCL' Act. Hence this writ petition.

(3.) IN the result, petition is allowed. The order dt. 5/9/2009 and the preliminary issue, Annex, E 1, are quashed. I. A. 5 is rejected.