IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.80/2013 BETWEEN:
SMT.RATHI SHEDTHI AGED 74 YEARS W/O KORAGA SHETTY RESIDING AT BARKE HOUSE PARENKILA, SEEMANTHOOR POST PANJINDKA, VIA MULKI MANGALORE TALUK D.K.DISTRICT – 574 195.
(BY SRI. K. SHRIHARI, ADVOCATE FOR M/S.LEX JUSTICA) AND:
1. SHEENA SHETTY AGED 79 YEARS S/O LATE HONNU SHETTY RESIDING AT D 5/1 JALANIDHI BANGOOR NAGAR, GOREGOAN WEST, MUMBAI -90.
2. VASANTHA SHETTY AGED 64 YEARS S/O LATE HONNU SHETTY RESIDING AT ROYAL SAMRAT B WING, 6TH FLOOR NEAR CINIMEX THEATRE ….APPELLANT JAVAHAR NAGAR’ BOMBAY (MUMBAI) – 62.
…RESPONDENTS (BY SRI H JAYAKARA SHETTY, ADVOCATE FOR R-1 SRI K CHANDRANATH ARIGA, ADVOCATE FOR R-2) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.10.2012 PASSED IN R.A.No.4/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 17.9.2010 PASSED IN O.S. No.3/2008 ON THE FILE OF THE CIVIL JUDGE AND J.M.F.C., MOODBIDRI.
THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for Admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
This appeal by the 1st defendant/appellant is directed against the judgment and decree dated 18.10.2012 passed by the Senior Civil Judge and ACJM, Karkala, in Regular Appeal No.4/2011, wherein the Appeal filed by 1st defendant/appellant came to be dismissed by virtue of dismissal of IA No.2 filed under Order 41 Rule 3A read with Section 151 CPC, by virtue of which, the judgment and decree passed by the Civil Judge and JMFC, Moodbidri, in O.S.No.3/2008 dated 17.09.2010 came to be confirmed wherein the suit of the plaintiff was decreed.
2. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as stood before the Trial Court.
3. Originally, suit was filed by the plaintiff-Sheena Shetty for partition of the suit ‘A’ schedule properties. The suit is among the siblings being the children of Narsi Shedthi who was dead on the date of filing of the suit.
The suit was filed by one Sheena Shetty son of Narsi Shedthi who is admittedly claimed to be tenant of the suit schedule properties. Upon her death, defendant No.1 -Rathi Shedthi filed Form No.7 for grant of occupancy rights in LRT 595/80-81 claiming occupancy rights by virtue of her status as a tenant over the schedule properties. Initially, Narsi Shedthi was said to be a tenant within the meaning of Land Reforms Act, from 1964. However, she died during the year 1971. Thus the said Rathi Shedthi filed and pursued Form No.7 before the Land Tribunal. Said Form No.7 came to be allowed and occupancy rights of the lands were granted to her on 28.7.1981.
4. Plaintiff Sheena Shetty filed suit for partition of schedule properties in O.S.No.3/2008 claiming that schedule properties belong to himself, his brother and his sister Rathi Shedthi. By virtue of the suit being decreed, plaintiff was held entitled for 1/3rd share in the suit schedule properties. Regard being had to the fact that defendant No.1 Rathi Shedthi and defendant No.2 Vasanth Shetty were also held entitled for 1/3rd share for each of them.
5. Substance of the plaint is that, originally Narsi Shedthi, mother of the plaintiff was the tenant in the schedule properties under the land lord within the meaning of Land Reforms Act. However, the defendant No.1 -Rathi Shedthi resisted the claim for partition contending that the schedule properties granted to her was absolute and there is no question of distribution or sharing the same as the joint family properties or otherwise.
6. As the suit was decreed against the appellant and her share came to be confined for 1/3rd, she preferred an appeal before the First Appellate Court in RA 4/2011. But the said appeal was preferred after a delay of 96 days and she filed an application under order 41 Rule 3(A) CPC seeking condonation of delay on the ground of her ill health as the doctor has advised complete rest when she is supposed to file an appeal.
7. The learned First Appellate Judge dismissed IA No.2 by not accepting the reasons stated by her. Thus, by virtue of dismissal of IA No.2, the Regular Appeal was dismissed as barred by limitation. It is in this connection, appellant preferred this appeal which has come up today for Admission.
8. Learned counsel for the 1st defendant/ appellant would submit that the appellant prayed for an opportunity before the First Appellate court and the reasons for delay is the reasons which are beyond her control as she is not feeling well and the doctor has advised her to take rest. Further she had claimed that she had a good case on merits.
9. Learned counsel for respondents objected the same.
10. In the overall context and circumstances of the case, finally points boils down to seeking an opportunity to context the case on merits. I find that this should have been a case for disposing of on merits, of course, by granting opportunity to the appellant before the First Appellate Court by condoning the delay. But the learned Appellate Judge erred in dismissing the main matter at the preliminary stage. Thus, the said judgment deserves to be set aside and is done.
11. Nextly, regarding further disposal of the case as the pure point of law is involved in the matter there is no hard and past rule when the matter has to be remanded to the trial court. On the other hand, as far as possible, remanding the matters to the Trial Court or First Appellate Court are to be restricted, unless there are compelling circumstances. In the circumstances of the case, I find that the only point of law would be the benefit of grant of rights of tenancy or occupancy rights over the schedule properties would enure to the benefit of appellant/1st defendant exclusively or the fruits go to all the three viz., plaintiff, defendant No.1 and respondents 1 and 2 in this appeal. When it matters disposal of this Regular Second Appeal the substantial question that crop-up is, Whether in the circumstances of the grant of occupancy rights over the suit schedule properties enure to the benefit of the entire family consisted of plaintiff and defendant 1 and 2?
12. At this juncture, it is necessary to mention that among the off- springs of deceased Narsi Shedthi, one daughter (appellant) and two sons namely respondents 1 and 2 under the appeal.
13. Learned counsel for appellant/defendant No.1 would submit that, plaintiff and second defendant had abandoned the schedule properties as they had settled in Mumbai. Narsi Shedthi was the mother and it was the appellant/defendant No.1 who was looking after her mother and the schedule properties as well. Learned counsel would further submit that Rathi Shedthi (defendant No.1) was cultivating the schedule properties exclusively. Having gone away from home town and settled in Mumbai, Sheena Shetty or Vasantha shetty did not become owner of the schedule properties nor they are agriculturists. Under these circumstances, the contention of the learned counsel for appellant/ defendant No.1 is that the respondents did not fall under the category of tenants, agriculturists or cultivated the properties.
14. Learned counsel for appellant/defendant No.1 also relied on Section 61 of the Land Reforms Act and the definition of ‘ To cultivate’ as defined under Section 2 Sub Section 10 of the said Act. The said provision of law are as under:
Section 2 (10) “To Cultivate” with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression “uncultivated” shall be construed correspondingly.
15. The only legal point that occurs is, the legal effect of grant of occupancy rights to one member of a family as to whether it confines to that member, person or enure to the benefit of the family. In this connection, there is no controversy between the parties to the effect that Narsi Shedthi was the tenant over the schedule properties and she was cultivating the said lands as tenant.
16. Learned counsel for respondents 1 and 2 herein would submit that it is settled position of law that whenever grant or occupancy rights are granted to a person who is a member of a joint family it enure to the benefit of all the members.
17. In this connection, learned counsel for respondents 1 and 2 has relied upon the following citations.
(i) In the case of Balawwa and another Vs. Hasanabi and others (ILR 2000 Karnataka 4809);
(ii) Thimmappa Rai Vs. Ramanna Rai and others (2007 AIR SCW 3271) and (iii) N.Padmamma and others Vs. S.Ramakrishna Reddy and others [ (2015) 1 Supreme Court Cases 417] 18. In the context and circumstances of the case, it is not a lady cultivating herself and filing Form No.7 to get the occupancy rights. She is the daughter of Narsi Shedthi, who is the mother of two sons, viz., Sheena Shetty and Vasanth Shetty.
19. Insofar as the grant of occupancy rights is concerned, that has been the bone of contention between the parties. Regarding the benefit of grant, there are grants of category which purely fall for the benefit of the grantee exclusively, such are gains by virtue of skill art in various fields like Gallantry awards which fall to the exclusive benefit of the grantee and no other member of the family just by virtue of relationship seek the share in the consequential benefit of the grant.
20. In the case on hand, let alone granting of occupancy rights. Even the appellant did not file an application claiming rights of tenancy individually i.e. on her own behalf she filed it because she is the daughter of Narsi Shedthi. In any number of words, the properties or benefit granted to her was as the off- spring of Narsi Shedthi. But never recognizing her individual right. Even in the decision relied upon by the learned counsel for the respondents, the benefit of grant in the name of a particular member does not confine for his exclusive benefit. On the other hand, he holds it for himself and other members who are placed in the same foot. Incidentally, 1/3rd in the present case.
21. The contention of the appellant/defendant No.1 that what was inherited by the appellant was tenancy rights and the respondents were excluded from it cannot be accepted. At the end, I find that learned trial Judge applied proper knowledge of law and decreed the suit for open to be divided into three shares and insofar as learned First Appellate Judge is concerned, he rejected the appeal on the point of limitation without adjudicating the matter on merits. However, this Court has analyzed the case, legal position and finds that the grant of occupancy rights under Land Reforms Act in favour for the appellant/defendant No.1 being the daughter of Narsi Shedhti was not exclusively for her and it stands for all the parties who are the off springs of Narsi Shedthi.
22. In the result, the grant of occupancy rights over the schedule properties enure to the benefit of the family members of Narsi Shedthi who are plaintiff and defdendants 1 and 2. Hence, I answer the substantial question of law accordingly.
23. For the foregoing reasons, the appeal filed by the appellant is rejected.
tsn* Sd/- JUDGE