1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH MISCELLANEOUS SECOND APPEAL NO.76/2023 BETWEEN: SMT. RAJAMMA, SINCE DEAD, REPRESENTED BY HER LRS. 1. SRI. NAGARAJU, S/O LATE MUNIYAPPA, AGED ABOUT 47 YEARS. 2. SRI. ASHOK, S/O LATE MUNIYAPPA, AGED ABOUT 44 YEARS. 3. SRI. SRANGAPANI, S/O LATE MUNIYAPPA, AGED ABOUT 42 YEARS. ALL ARE R/AT NO.224, 15TH CROSS, ANANDAPURA, JEEVAN BHEEMA NAGAR, NEW THIPPASANDRA, BENGALURU-560 075. … APPELLANTS (BY SRI. CHANDRASHEKAR C., ADVOCATE) AND: SMT. MUNIYAMMA, W/O LATE EARAPPA, AGED ABOUT 76 YEARS, R/AT SY.NO.16/2, HAGADUR, R 2 IMMADIHALLI VILALGE, K.R.PURAM HOBLI, BENGALURU EAST TALUK, BENGALURU-560 066. … RESPONDENT (BY SRI M.MADHUSUDAN, ADVOCATE) THIS M.S.A. IS FILED UNDER SECTION 100 READ WITH ORDER 43 RULE 1 AND 2 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.02.2023 PASSED IN R.A.NO.114/2022 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE APPEAL AND REJECTING THE JUDGMENT AND AWARD DATED 18.10.2022 PASSED IN O.S.NO.1127/2019 ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, WITH A DIRECTION TO TRIAL COURT TO DECIDE THE CASE ON MERITS AFTER FULL FLEDGED TRIAL. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.07.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV JUDGMENT This Miscellaneous Second Appeal is filed under Order 43 Rule 1(4) of CPC, praying this Court to set aside the order passed by the Appellate Court in R.A.No.114/2022, on the file of the IV Additional Senior Civil Judge, Bangalore Rural District, Bangalore dated 24.02.2023, in setting aside the order passed by the Trial Court in O.S.No.1127/2019, entertaining an application filed under Order 7 Rule 11(d) read with Sections 9 and 11 of CPC. 3 2. The factual matrix of the case of the defendants while filing an application under Order 7 Rule 11(d) read with Sections 9 and 11 of CPC, it is contended that the present suit against the defendants for the relief of permanent injunction not to dispossess the plaintiff without due process of law is hit by Section 11 of CPC. It is further contended that the Assistant Commissioner under Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (‘PTCL Act’ for short) has decided about the issue and defendants Nos.2 to 5 are put in possession of the suit schedule property. It is further contended that Sections 4 and 5 of the PTCL Act bars the suit and therefore the same is liable to be rejected. It is also contended that the order of the Assistant Commissioner is upheld by the Hon’ble Apex Court and therefore the suit of the plaintiff is not maintainable and hence prayed the Trial Court to reject the plaint. 3. In pursuance of the said application, the plaintiff has filed the objection statement contenting that the plaintiff is in possession of the suit schedule property and there is no any transfer of possession to the defendants and yet to deliver the possession. It is contended that the plaintiff is the absolute 4 owner of the schedule property and defendants Nos.2 to 4 do not have any right over the same. It is contended that the application is false, frivolous and the same is liable to be rejected. 4. The Trial Court having considered the grounds which have been urged in the application, formulated the point whether the plaint is liable to be rejected as barred by PTCL Act, 1978? The Trial Court having considered the material available on record and also the pleadings of the parties, comes to the conclusion that the Assistant Commissioner has passed an order restoring the property and directed to hand over the possession of the suit schedule property to the legal heirs of the original grantee and invoked Section 5 of the PTCL Act and also held that the provisions of Section 5(2) of the PTCL Act makes a clear bar that no proceedings can be initiated before the Civil Court and no injunction order can be passed by the Civil Court with respect to proceedings taken or to be taken by the Assistant Commissioner. It is also held that when the Assistant Commissioner order is confirmed by the Apex Court, there cannot be any injunction suit and in view of bar under Section 5 of the PTCL Act, no suit can 5 be entertained and hence, allowed the application and rejected the plaint. 5. Being aggrieved by the said order, an appeal is filed by the plaintiff before the Appellate Court in R.A.No.114/2022. The Appellate Court having considered the grounds urged in the appeal memo as well as respective submissions, formulated the point whether the Trial Court committed an error in allowing the application filed under Order 7 Rule 11(d) of CPC and erred in failing to appreciate, what are all the procedure to be followed while taking possession of unauthorized occupation and also ignored Section 39 of the Karnataka Land Revenue Act and whether the same has to be set aside? The First Appellate Court having re-assessed the material available on record, while considering the appeal, reproduced the entire Section 5 of the PTCL Act and comes to the conclusion that enquiry is required to be conducted by giving an opportunity to the person, who is in possession and also discussed Section 39 of the Karnataka Land Revenue Act and reproduced the same in the order. Having considered the same, comes to the conclusion that in view of the provisions, the revenue authority has to serve the notice to a person who is in occupation of the Government land and after 6 serving the notice, get the possession by evicting him from the possession. The Appellate Court also taken note of that the relief sought is for permanent injunction and that cannot dispossess her without due process of law. The Appellate Court comes to the conclusion that only mutation entries are carried out in the names of the respondents based on legal proceedings, but actual physical possession was not delivered in terms of the order of the Assistant Commissioner. The possession of the plaintiff is settled and unless possession is taken in accordance with law, there cannot be any dispossession without due process of law and only the Government has to hand over the possession to the original grantee i.e., legal heirs. No documents have been produced to indicate that possession is handed over and still possession is with the plaintiff and hence set aside the order of the Trial Court and as a result, rejected the application filed under Order 7 Rule 11(d) of CPC and directed the Trial Court to decide the case on merits after full-fledged trial. 6. Being aggrieved by the reversal order, the present appeal is filed before this Court. 7 7. The learned counsel for the appellants would vehemently contend that when the sale was set aside by the Assistant Commissioner and the same was upheld by the Hon’ble Apex Court, the assertion of the plaintiff that she is in possession of the said property is misconceived. The learned counsel also brought to the notice of this Court that the said finding of the Appellate Court is contrary to Section 5 of the PTCL Act and also Section 9 of CPC. The learned counsel contend that the Appellate Court has ignored that as per the plaint averments alone, exfacie the jurisdiction of the Civil Court is barred under Section 5 of the PTCL Act. The learned counsel would contend that the earlier suit in O.S.No.189/2019 was dismissed as not maintainable and the suit in O.S.No.1127/2019 is also not maintainable. The learned counsel contend that the Appellate Court did not apply the judicial mind while passing such an order and hence prayed this Court to frame a substantial question of law that the order passed by the Appellate Court is against Section 5 of PTCL Act and Section 9 of CPC. 8. The learned counsel for the appellants in support of his arguments relied upon the judgment of this Court in the case of SMT. NARASAMMA AND OTHERS v. K.V. RAMPRASAD 8 AND ANOTHER reported in ILR 2012 KAR 4261 and referring this judgment would contend that this Court in detail discussed the scope of Sections 4 and 5 of the PTCL Act and also Order 7 Rule 11(d) of CPC regarding application for rejection of plaint and contend that there cannot be any proceedings. 9. Per contra, the learned counsel for the respondent in his arguments would vehemently contend that the Appellate Court in detail discussed the same and the suit is maintainable, since the possession is not taken in accordance with law and though the sale was set aside and the property is restored to the Government and directed to deliver the possession to the legal heirs of the original grantee, but till date the possession is not delivered. The learned counsel would also contend that the suit is only for the limited purpose i.e., for the relief of permanent injunction not to dispossess and dispossession must be under due process of law and when there is no any possession taken under due process of law, the suit is maintainable. The learned counsel contend that when an application is filed for restoration of property and the same is pending for consideration, the very contention of the learned counsel for the appellants that possession already been taken, cannot be accepted and suit is 9 maintainable till taking of possession in accordance with law. The learned counsel in support of his arguments, relied upon the Division Bench judgment of this Court passed in R.F.A.No.310/2018 dated 10.02.2020. 10. In reply to the arguments of the learned counsel for the respondent, the learned counsel for the appellants brought to the notice of this Court by producing two RTC extracts, wherein revenue entries are in the name of the appellant and contend that the same is not challenged. 11. Having heard the learned counsel for the appellants and the learned counsel for the respondent, the points that would arise for the consideration of this Court are: (i) Whether the First Appellate Court committed an error in ignoring the provisions of Sections 4 and 5 of the PTCL Act and Section 9 of CPC? (ii) What order? Point No.(i): 12. Having considered the factual aspects of the case is concerned, it is not in dispute that the land was granted in the year 1942. It is also not in dispute that the property was sold in 10 the year 1951 and the plaintiff is in settled possession from 1951 onwards. It is also not in dispute that the proceedings was initiated before the Assistant Commissioner and the Assistant Commissioner has restored the property in favour of the Government, vide order dated 15.03.2002, allowing the appeal. Having perused the order, it is very clear that the property was restored to the Government and also made an observation in the order that the sale deed is set aside invoking Section 5(1)(a) of the PTCL Act and all encumbrances are cleared and property was taken to the Government and direction was given under Section 5(1)(b) of the PTCL Act that the property has to be restored to the original grantees by taking the possession. This order was challenged before the Deputy Commissioner and the Deputy Commissioner set aside the order of the Assistant Commissioner. Being aggrieved by the same, the appellants preferred W.P.No.6021/2004 before this Court and writ petition was allowed and the order of the Deputy Commissioner was set aside. It is not in dispute that as against W.P.No.6021/2004, W.A.No.2989/2009 was filed and writ appeal was also dismissed. The same was challenged before the Apex Court in SLP (Civil) No.9522/2010 and the same was also dismissed. Hence, it is 11 clear that declaring the sale deed as void and also restoring the property to the Government is not in dispute. The order of the Assistant Commissioner has attained its finality. 13. Having perused the order of the Assistant Commissioner, a specific direction is given to take the possession and hand over the same to the original grantee’s legal heirs, but the same is not effected till date. It is also not in dispute that an application is filed in 2024 and not yet taken possession from the plaintiff. The Trial Court in paragraph No.14, extracted the order of the Assistant Commissioner and having extracted the order, made an observation that, no doubt, there is a bar under Section 5(2) of the PTCL Act that no proceedings can be initiated before the Civil Court and no injunction order can be passed by the Civil Court with respect to proceedings taken or to be taken by the Assistant Commissioner. It is also observed that no such proceedings is pending before the Assistant Commissioner as on the date of filing of the suit in 2019. But now an application is filed seeking delivery of possession and the same is not effected. When such being the 12 case, this Court would like to extract the provisions of Section 5 of the PTCL Act, which reads as follows: 5. Resumption and restitution of granted lands.- (1) Where, on application by any interested person or on information given in writing by any person or suo-motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of section 4, he may,- (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard; (b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land. 13 (1-A) After an enquiry referred to in sub-section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly. (2) Subject to the orders of the Deputy Commissioner under section 5-A, any order passed under sub-section (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act. (3) For the purposes of this section, where any granted land is in the possession of a person, other then the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of section 4. 14. Having perused this proviso, it is very clear that when the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4 of the Special enactment, to declare the same as null and void. Section 5(1)(a) of the PTCL Act is very clear that by 14 order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed. Hence, procedure is prescribed to take possession of such land and evict all persons, but not yet evicted the person who is in possession. The further proviso is also very clear that no such order shall be made except after giving the person affected a reasonable opportunity of being heard and this further proviso is very clear that an opportunity has to be given before taking the possession. No doubt, Section 5(1)(b) is very clear that restore such land to the original grantee or his legal heir and there is an order to that effect. This proviso is very clear that such land shall be deemed to have vested in the Government free from all encumbrances and such order is passed by the Assistant Commissioner and also further it is very clear that Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the Rules relating to grant of lands. Section 5(2) of the PTCL Act is also very clear that if any proceedings initiated under Sections 5(1) and 5(1-A) shall be final and shall not be questioned in any Court of law and no injunction shall be granted by any Court in respect of any proceedings. 15 15. In the case on hand, already proceedings have been completed. But as on the date of filing of the suit, no such proceedings is pending for taking of possession i.e., on 2019 and also injunction is sought only for the limited purpose that possession cannot be taken without due process of law. The relief is also sought to prevent the authority in taking of illegal possession and not for taking the possession under due process of law. When such being the case, the approach of the Appellate Court is not erroneous. The Appellate Court in paragraph No.22 taken note of Section 5 of the PTCL Act empowers the Assistant Commissioner to do all things and acts in case documents came into existence by violating PTCL Act. It also empowers the mode of taking possession, the mode of taking possession is prescribed under Rule 3(6) of Karnataka SC/ST Rules, 1979 and the same is also reproduced and discussion was made. The First Appellate Court also taken note of Section 39 of the Karnataka Land Revenue Act, 1964 for taking further action as provided under Section 5 of the PTCL Act in paragraph Nos.23 and 24. Section 39(i) of the Karnataka Land Revenue is clear that by serving a notice on the person or persons in possession requiring them within such time as may appear reasonable after receipt of the 16 said notice to vacate the land. If such notice is not obeyed, then pass an order deputing a subordinate officer to remove any person who may refuse to vacate the same. But no such enquiry is held and also taken any decision. The fact that now an application is filed in 2024 is not in dispute. When such being the material available on record, it is very clear that for unauthorized occupation of Government land, the Revenue Authority has to serve the notice to a person who is in the occupation of Government land and after serving the notice, get the possession by evicting him from the possession. The Appellate Court considered the material on record that possession was not taken and no document is produced before the Trial Court or before the Appellate Court for having taken possession. The Assistant Commissioner order is also very clear to take the possession and hand over the same to the legal heirs and no such proceedings was taken place and possession is still with the plaintiff and hence taken note of the fact that no such material of conducting of mahazar at the spot in the presence of the plaintiff as well as the respondents and possession was taken to the Government and then handed over to the original grantee or legal heirs and the same is observed in paragraph No.35. 17 Hence, I do not find any error committed by the Appellate Court in setting aside the order passed by the Trial Court and rejecting the application filed under Order 7 Rule 11(d) of CPC. The suit for bare injunction is maintainable. 16. No doubt, the learned counsel for the appellants relied upon the judgment of this Court in the case of Smt. Narasamma (supra), wherein discussion was made with regard to Sections 4 and 5 of the PTCL Act and Order 7 Rule 11 of CPC and the same is not applicable to the facts of the case on hand considering the issue involved between the parties. 17. The learned counsel for the respondent also relied upon the Division Bench judgment of this Court passed in R.F.A.No.310/2018 and the factual aspects of the said case is different and distinguished. In the said judgment, it is held that the jurisdiction of the Assistant Commissioner under Section 5 of the PTCL Act is to make an enquiry, as deemed necessary, in order to ascertain, as to, whether, there was a transfer of any granted lands in violation of Section 4 of the PTCL Act and the same has already been done. Insofar as facts of the said case is concerned, it is with regard to the issue of fraudulent transfer 18 and hence held that the Civil Court has got jurisdiction in order to decide the issue of fraudulent transfer and in that case permission was taken under Section 4 of the special enactment and the property was sold. The only issue was with regard to whether the sale deed was obtained in a fraudulent act and in this case, the Division Bench held that the suit is maintainable. But in the case on hand, the plaintiff is in settled possession from 1951 onwards and when the possession was not taken in accordance with law and also under due process of law, for the limited purpose, the suit is maintainable and hence the very contention of the learned counsel for the appellants cannot be accepted. 18. However, it is made clear that if possession is taken in accordance with law i.e., under due process of law, since an application is pending before the authority for taking possession and if an opportunity is given and possession is taken under due process of law, then suit is not maintainable and till then, the suit is maintainable and hence the order impugned does not suffer from any legal infirmity. Hence, I do not find any ground to set aside the order of the First Appellate Court. 19 Point No.(ii): 19. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. Sd/- (H.P. SANDESH) JUDGE MD