(V. Gopala Gowda, and Uday Umesh Lalit, JJ.)
Shrikrishna Vijaya Saw Mill Rep. By Its Partners __________ Appellant
v.
Subhash @ Maharudra & Ors. ______________________ Respondent(s)
Civil Appeal No(s). 941 OF 2016, [Arising out of S.L.P. (C) Nos. 31382 of 2014], decided on February 5, 2016
The Order of the court was delivered by
Order
1. Leave granted.
2. Heard learned counsel for the parties.
3. Aggrieved by the judgment and order dated 9.10.2013 passed by the High Court of Karnataka, Dharwad Bench, in Regular Second Appeal No. 5694 of 2010 whereby the High Court affirming the finding of fact recorded by the first appellate court set aside the judgment and decree dated 10.08.2005 in Original Suit No. 219/1998 passed by the Additional Civil Judge (Jr. Division), Nipani, the plaintiff-appellant through its partners is before this Court, challenging the same on various legal grounds.
4. The facts, in brief, are that the plaintiff-appellant herein filed a suit for permanent injunction against the original defendant, namely, Bayawa (since deceased) through her legal representatives contending inter alia that the suit schedule property was taken on lease by the predecessor of the plaintiff/appellant-firm as a tenant. The Trial Court decreed the said suit in favour of the plaintiff-appellant recording a categorical finding on the basis of oral and documentary evidence placed before it that the plaintiff-firm is entitled for relief of permanent injunction and the legal representatives of the deceased defendant and any other persons on behalf of them are restrained from causing any kind of obstruction to the peaceful possession and enjoyment of the plaintiff over the suit property.
5. Dissatisfied with the judgment and decree passed by the trial court, the legal representatives of the deceased defendant-respondents filed Regular Appeal No. 86/2005 before the District Judge, Fast Track Court-I, Chikodi. The first appellate court, after taking into consideration the proceedings in an earlier suit between the same parties arising from issuance of notice by the Tehsildar to close the saw mill, is of the view that the agricultural land cannot be permitted to be used by the occupants for some other purpose and provisions of Section 95 of Karnataka Land Revenue Act of 1964 are attracted to protect the agricultural land and the revenue officers, forest officers are entitled to take action for closure of such mill. It further recorded a finding that even though the plaintiff-appellant firm has established its settled possession but it is not permissible under the provisions of Section 95 of the Karnataka Land Revenue Act, 1964 to run the Saw Mill since the land has remained as an agricultural land and the trial court erred in holding that the plaintiff firm is in settled possession and it cannot be evicted without due process of law. Further, the first appellate court is of the view that Section 132 of the Karnataka Land Reforms Act, 1961 bars the jurisdiction of civil Court and the suit involving the question to be decided by the land Tribunal shall not be tried by the civil Court and no civil Court shall decide the question of such tenancy and such question requires to be referred to land Tribunal. Thus, the said jurisdiction is vested with the land Tribunal but not with civil Court and the trial court erred in granting the injunction against the legal representatives of the deceased defendant and thereby indirectly restrained the government officials from taking any action. Eventually, the first appellate court allowed the appeal filed by the legal representatives of the deceased defendant-respondents herein setting aside the judgment and decree passed by the trial court only on the ground of jurisdiction.
6. Being aggrieved of the judgment and order of the first appellate court the plaintiff-appellant filed Regular Second Appeal. In the said Regular Second Appeal the High Court has affirmed the finding of fact recorded by the first appellate court on the contentious issue in the judgment and dismissed the Second Appeal on the ground that no justifiable grounds are made out to admit the second appeal inasmuch as no substantial question of law arises for its consideration. The High Court while dismissing the appeal took into consideration the fact that in an earlier round of litigation between the same parties, on appeal filed by the Tahsildar, the decree passed by the Trial Court in O.S. No. 16/84 was set aside by the first appellate Court in R.A. No. 64 of 1986 on the ground of non-joinder of necessary parties. Thereafter, in Regular Second Appeal No. 1065/1991 preferred by the appellant herein the High Court of Karnataka confirmed the decision of the appellate court summarily dismissing the second appeal filed by the plaintiff-appellant. The High Court failed to appreciate that the earlier suit was dismissed by the first appellate court on the ground that the suit was bad for non-joinder of necessary parties.
7. Learned counsel for the appellant submits that the High Court failed to appreciate that since the present suit was for permanent injunction and the only relevant issue in the suit is whether the plaintiff proves that he is in lawful possession of the suit property as on the date of institution of the Original Suit. It is an admitted position and the trial court has categorically recorded a finding of fact that the plaintiff-appellant is in possession of the suit schedule property.
8. On the other hand, learned counsel appearing on behalf of the respondents relying upon the judgment(s) and order(s) passed by the first appellate court and the High Court in the earlier round of litigation between the parties in respect of the same schedule property submits that the finding of fact recorded by the Courts below are on the material facts and the evidence placed before it by the parties and the same should not be interfered with by this Court in exercise of its appellate jurisdiction. Referring to Order VII Rule 1(e) of the Code of Civil Procedure he further submits that the plaint shall contain the facts constituting the cause of action, however, nowhere in the plaint the plaintiff-appellant herein has stated any of the facts which can be termed as material so as to give rise to a cause of action for filing the suit for permanent injunction against the defendants-respondents herein.
9. Having heard learned counsel for the parties and in view of the facts and circumstances of the case, in our considered opinion, the first appellate court and the High Court have erred in dismissing the suit for permanent injunction filed by the plaintiff-appellant herein. The High Court misconceived itself by placing reliance on the judgment and decree passed in R.S.A. No. 1065/1991 inasmuch the first appellate court has dismissed the appeal on the ground of non-joinder of the necessary parties. Hence, we set aside the impugned judgment(s) and order(s) passed by the first appellate court as well as the High Court in Regular Second Appeal and uphold the judgment and decree passed by the Trial Court decreeing the suit in favour of the plaintiff-appellant herein.
10. While allowing this appeal, we reserve the liberty to the respondents to evict the appellant from the suit schedule property by instituting appropriate original suit/appropriate proceedings before the competent Court/Authority. Further, we give liberty to the respondents to take appropriate proceedings before the competent Authority against the appellant for change of land use other than agricultural purposes, including seeking cancellation of license obtained by them for running the Saw Mill in the agricultural property.
11. With the aforesaid observation and liberty to the respondents, the appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 31382/2014
(Arising out of impugned final judgment and order dated 09/10/2013 in RSA No. 5694/2010 passed by the High Court of Karnataka Circuit Bencha at Dharwad)
Shrikrishna Vijaya Saw Mill Rep. By Its Partners … Petitioner(s);
v.
Subhash @ Maharudra & Ors. … Respondent(s).
(with interim relief and office report)
Decided on February 5, 2016
(Before V. Gopala Gowda and Uday Umesh Lalit, JJ.)
For Petitioner(s)
Mr. S.N. Bhat, AOR
For Respondent(s)
Mr. Nishanth Patil, Adv.
Mr. B. Subrahmanya Prasad, Adv.
UPON hearing the counsel the Court made the following
ORDER
12. Leave granted.
13. The appeal is allowed in terms of the signed order.
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