IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL No.1532 OF 2016 BETWEEN:
SMT. HEMAVATHI, W/O ANNI DEVADIGA, AGED ABOUT 46 YEARS, R/O VENKAPPA MOILY COMPOUND, NANTHOOR PADAVU, PADMASHRI CROSS ROAD, KULSHEKAR POST, MANGALORE – 575 005.
D.K. DISTRICT.
(BY SRI. SACHIN B.S., ADVOCATE) AND:
1. SMT. SARASWATHI, W/O LATE NARAYANA, AGED ABOUT 69 YEARS, 2. HARISHA, S/O LATE NARAYANA, AGED ABOUT 44 YEARS, …APPELLANT 3. SHIVARAMA, S/O LATE NARAYANA, AGED ABOUT 42 YEARS, 4. DINESHA, S/O LATE NARAYANA, AGED ABOUT 40 YEARS, 5. CHANDRAHASA, S/O LATE NARAYANA, AGED ABOUT 38 YEARS, ALL ARE R/O PADAVU NANTHOOR, KULSHEKAR POST, MANGALORE – 575 005, D.K. DISTRICT. ... RESPONDENTS (BY SRI. K. ANANDA RAMA, ADV. FOR C/R1-R5 (CP NO.508/16)) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.06.2016, PASSED IN R.A.NO.12/2011 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND JMFC, MANGALURU, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.02.2011 PASSED IN OS NO.208/1998 ON THE FILE OF THE PRL. CIVIL JUDGE, MANGALORE D.K. AND JMFC.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal of the defendant arises out of the judgment and decree dated 15.06.2016 passed by the III Additional Senior Civil Judge & JMFC, Mangaluru, D.K., in R.A.No.12/2011. By the impugned judgment and decree, the First Appellate Court has confirmed the judgment and decree dated 02.02.2011 passed by the Principal Civil Judge, Mangaluru in O.S.No.208/1998. In turn the said judgment and decree the trial court decreed the suit of present respondents for partition and separate possession of their 3/8th share in the suit schedule property.
2. For the purpose of convenience, henceforth the parties will be referred to with their ranks before the trial court. The subject matter of the suit was land bearing Sy.No.60/5, measuring 18 cents, situated in Padavu Village, Mangaluru Taluk.
3. Plaintiffs are the wife and children of one Narayana Devadiga. Defendant is the daughter of one Venkappa Maistry and Veeramma. Venkappa Maistry had married one Veeramma. Out of that wedlock he had two daughters namely Kamala and Sharada.
4. After the death of his first wife Veeramma, Venkappa Maistry married the mother of the defendant whose name was also Veeramma. By the time said Veeramma married Venkappa Maistry, she was already married to one Venkappa Moily and through such marriage, she had a son by name Narayana. The first plaintiff is the wife and plaintiffs 2 to 5 are children of said Narayana.
5. Sy.No.60/5 consisted of 25 cents. Initially Venkappa Maistry was the tenant of the said property.
Venkappa Maistry died in the year 1969 intestate. Thereafter, Veeramma and Hemavathi continued to cultivate the land. Venkappa Maistry’s daughters Kamala and Sharada relinquished their 1/4th share in the land in favour of Veeramma, their step mother vide Ex.P10 the registered Release Deed dated 18.07.1974.
6. On the application of Veeramma, the Land Tribunal granted occupancy right to Veeramma and the defendant in LRT No.98/78-79 under Ex.D3. Under the registered settlement deed dated 11.08.1980 (Ex.P1), Veeramma settled 7 guntas of land out of Sy.No.60/5 in favour of her son Narayana. Veeramma died on 20.07.1997. Narayana pre-deceased Veeramma in the year 1987.
7. The present defendant namely Hemavathi filed O.S.No.658/1999 against the present plaintiffs for permanent injunction claiming that Veeramma has bequeathed the suit schedule property to her under the registered Will dated 18.08.1995. After adjudication, vide Ex.P20 judgment dated 06.07.2005 the said suit came to be dismissed. She challenged the said judgment and decree in R.A.No.108/2005 which also came to be dismissed on 13.11.2014. The said matter is pending before this court in RSA 296/2015 and the present defendant is the appellant there.
8. The plaintiffs filed O.S.No.208/1998 contending that as on the date of death of Veeramma, she had 3/4th share in the suit schedule property. They further contended that on her death, the defendant and Narayana being Class-I heirs, were entitled to 3/8th share each.
9. The defendant contested the suit denying the relationship of Narayana and Veeramma and claiming that Veeramma has bequeathed her entire estate under the registered Will Ex.D35 in favour of the defendant, therefore, the plaintiffs are not entitled to any share.
10. The parties adduced evidence. The trial court after hearing the parties, relying on the admission of the defendant’s husband in O.S.No.658/1999 held that fact that Narayana was son of Veeramma was proved. Trial court held that on the death of Venkappa Maistry, Kamala, Sharada, defendant and Veeramma were entitled to 1/4th share in the estate of Venkappa Maistry and Kamala and Sharada had relinquished their 1/4th share each in favour of Veeramma. Therefore, her interest in the property was 3/4th share.
11. The trial court relying on the observation of the court in O.S.No.658/1999 and the evidence adduced in the case on hand held that the Will Ex.D.35 is not proved. It further held that in the absence of proof of Will, Narayana and defendant will get equal half share in the estate of Veeramma and half share of Narayana devolves on the plaintiffs and thus decreed the suit.
12. The defendant challenged the said judgment and decree in R.A.No.12/2011 before the III Additional Senior Civil Judge & JMFC., Mangaluru, D.K. The First Appellate Court concurring with the reasoning and findings of the trial court, by the impugned judgment and decree dismissed the appeal.
13. Sri.Sachin.B.S, learned counsel for the appellant/defendant seeks to assail the impugned Judgment and Decree on the following grounds:
i) Plaintiffs claim the property by virtue of the order of the Land Tribunal-Ex.D.3. However, the said order is reversed by this court in a writ petition filed by the landlord and the matter is remanded to the Land Tribunal. Therefore, the land is vested in the Government and not available for partition;
ii) The relationship of Narayana with Venkappa Maistry was not proved;
iii) The release deed-Ex.P.10 executed by Veeramma and the release deed executed by Kamala and Sharada were also questioned and they were not proved.
According to the learned counsel for the appellant, they constitute the substantial question of law.
14. Per contra, learned counsel for respondents submits that both the Courts below, on proper appreciation of the evidence with sound reasonings have held that the relationship between the parties is proved and the Will set up by the defendant is not proved and such question of fact cannot be called in question in this second appeal.
15. Learned counsel further submits that the pendency of the proceedings before the Tribunal will not come in the way of disposal of this appeal. He further submits that the appellant did not challenge the order rejecting her application under Section 133 of the Karnataka Land Reforms Act and therefore, now that order has attained finality.
16. So far as the relationship, he submits that in O.S.No.658/1999, the defendant’s husband who tendered evidence as her power of attorney holder clearly admitted the relationship of Narayana with Veeramma and there is no substantial question of law to admit the appeal.
17. In SANTOSH HAZARI v/s.
PURUSHOTTAM TIWARI (DEAD) BY L.Rs (AIR 2001 SC 965), the Hon’ble Supreme Court has held that the question of fact does not become the substantial question of law. It is held that on question of facts, the first appellate court is the last court. It was further held that a question of law will not become the substantial question of law unless the foundation is laid for it in the pleadings and question emerges from sustainable findings of the facts before the court below. Having regard to the rival contentions and facts of the case, the question is whether the case involves a substantial question of law for hearing.
18. The defendant herself filed O.S.No.658/1999 against the present plaintiffs in respect of very same property for permanent injunction. In that suit, her husband tendered evidence as her power of attorney holder. The deposition is marked at Ex.P.11. Ex.P.11 shows that in his cross-examination, her husband unequivocally admitted that the present first plaintiff’s husband Narayana was the son of Veeramma. Having regard to Section 18 of the Evidence Act, the said statement becomes an admission by the defendant of this case.
19. Apart from that Veeramma and the defendant themselves together settled 7 guntas of land in favour of Narayana under Ex.P.1-registered settlement deed on 11.08.1980. Defendant did not challenge that settlement deed. Even in this suit, she did not file any counter-claim seeking relief of cancellation of the settlement deed dated 11.08.1980 or challenging the release deed executed by Kamala and Sharada. Thus, those documents bind her.
20. Ex.P.1-the settlement deed clearly discloses the relationship of Narayana with Veeramma. Being a party to the said document, it was not open again to the defendant to question the relationship. Therefore, the courts below rightly held that relationship is proved.
21. The very fact of defendant contending that Veeramma has bequeathed the property in her favour under the Will amounts to an admission on her part that Veeramma was the absolute owner of the said property. In view of Kamala and Sharada releasing their 1/4th share each and Veeramma herself having 1/4th share as the legal representative of Venkappa Maistry, her share in the property was 3/4th.
22. Defendant was owning only 1/4th share.
Thus, Veeramma was the absolute owner of 3/4th share in the suit schedule property. On her death, defendant and Narayana being her class-I heirs, were entitled to equal share which comes to 3/8. Therefore, the courts below granted them 3/8 share.
23. So far as the bar of Section 133 to entertain the suit, as on the date of the institution of the suit, the Land Tribunal order was in force. The records show that raising the same contentions, defendant filed I.A.No.4 under Sections 132 and 133 of the Karnataka Land Reforms Act before the trial court to stay the suit until the matter is decided by the Land Tribunal. The trial court vide order dated 17.08.2009, dismissed the said application.
24. Thereafter, again before the first appellate court, they filed I.A.No.6 claiming the same relief which also came to be dismissed on 14.08.2013. Defendant did not choose to amend her pleadings to plead the bar of Section 133 for the suit. Therefore, that order attained finality.
25. Section 133 of the Karnataka Land Reforms Act reads as follows:
133. Suits, proceedings, etc., involving questions required to be decided by the Tribunal.—(1) Notwithstanding anything in any law for the time being in force,— (i) no Civil or Criminal Court or officer or Authority shall, in any suit, case or proceedings concerning a land, decide the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March 1974;
(ii) such Court or officer or Authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the Tribunal for decision;
(iii) all interim orders issued or made by such Court, officer or Authority, whether in the nature of temporary injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be;
(iv) the Tribunal shall decide the question referred to it under clause (i) and communicate its decision to such Court, officer or Authority. The decision of the Tribunal shall be final.
(2) Nothing in sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub- section.
26. A perusal of Section 133 makes it clear that in a suit, if court is called upon to decide the nature of the property namely whether that is an agricultural property or not or whether there is a relationship of landlord and tenant between the parties, the suit has to be stayed.
27. In this case, there was no dispute between the parties that the property is the agricultural land and there was no issue of tenancy between the parties. Taking into consideration that aspect, the applications were rejected and even first appellate court dealt with the said objection in Para No.33 of the Judgment.
28. As held by the Supreme Court in SANTOSH HAZARI’s case supra, unless there is foundation laid in the proceedings, a question of law does not become a substantial question of law. Even otherwise, since the rival claimant in the Land Tribunal proceedings is not a party to this proceedings, the Judgment in this case does not bind him. Whatever Judgment is passed in this case will be subject to the proceedings before the Land Tribunal. If the landlord succeeds in the said proceedings, he may take action in accordance with law to reap the benefit of that order.
29. There is no substantial question of law to admit the appeal. Therefore, the appeal is dismissed. In view of dismissal of appeal, I.A.No.1/2016 and I.A.No.1/2019 are disposed of.
Sd/- JUDGE Np/bnv