JEVGRA MOOLYA Vs. BALAKRISHNA ALIAS SUBRAMANYA BHAT

JUDGEMENT

(1.) This appeal has been filed by the defendants 1 and 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. P-1. 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. D-1 pursuant to the powers conferred under Section 48-A 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. D-l 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:

(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 48-A(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.