IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA REGULAR SECOND APPEAL No.1114/2011(PAR) BETWEEN:
1. SMT. SHARADA, 80 YEARS, W/O LATE GENU NARAYANA SHEREGAR, 2. K NAGESH 53 YEARS, S/O LATE GENU NARAYANA SHEREGAR 3. KIRAN KUMAR K 45 YEARS, S/O LATE GENU NARAYANA SHEREGAR 4. SMT. K. CHANDRAVATHI 61 YEARS, W/O HEMANTH V RAO A. No.1 TO 4 RESIDING AT HEMACHANDRA BEHIND ADARSHA HOSPITAL FISH MARKET ROAD, KUNDAPURA-576201..
5. SMT. K. ROHINI 59 YEARS, W/O DEVENDRA SHEREGARA KALATHUR CHANDRANAGAR, 6. SMT. KALYANI, 56 YEARS, W/O K. CHANDRASHEKAR SRI KRISHNA SOORNALLI ROAD, KUNDAPURA-576201.
7. SMT. K. YASHODHA 50 YEARS, W/O PRADEEP NAYAK MANIKANTA PRINTERS TELLAR ROAD, KARKALA-574104.
8. SMT. K. VARIJA 50 YEARS, W/O PRAKASH BOLAR MANGALORE TEMPLE RAOD, NEAR MANGALA STORES MANGALORE-575001.
... APPELLANTS (BY SRI AJITH A SHETTY, ADVOCATE FOR SRI A. ANAND SHETTY, ADVOCATE) AND:
1. SMT. SULOCHANA, 72 YEARS, W/O BALAYYA SHEREGARA 2. SMT. SUMITRA PADIYAR 70 YEARS, D/O LATE GENU SUBBANNA SHEREGARA, 3. SMT. PREMA 59 YEARS, W/O SUDHIR, D/O LATE GENU SUBBANNA SHEREGARA 4. SMT. MANORAMA 56 YEARS, W/O SUNDER D/O LATE GENU SUBBANNA SHEREGARA 5. SMT. MALATHI 50 YEARS, W/O KISHORE RAO D/O LATE GENU SUBBANNA SHEREGARA 6. MR. G. KRISHNAYYA 68 YEARS, S/O LATE GENU SUBBANNA SHEREGARA 7. G. SADASHIVA 44 YEARS, S/O LATE GENU SUBBANNA SHEREGARA No.1 RESIDES BEHIND KUNDESHWARA TEMPLE ROAD, KUNDAPURA.
No.2 RESIDES AT MOODKERE, BASROOR PO, KUNDAPURA TALUK, Nos. 3 TO 7 RESIDES AT FISH MARKET ROAD, KUNDAPURA-576201.
8. ALIKAHN 52 YEARS, S/O C P ABUKAR SAHEB MOODKERI FISH MARKET ROAD, KUNDAPURA-576201.
... RESPONDENTS (BY SRI VYASA RAO K. S., ADVOCATE FOR R6 & R7;
R1, R2,R3, R5 AND R8 ARE SERVED BUT UNREPRESENTED; VIDE ORDER DATED 23/03/2015 SERVICE OF NOTICE ON R4 IS HELD SUFFICIENT) ….
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.01.2011 PASSED IN R.A.NO.46/2003 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 30.07.2003 PASSED IN O.S.NO.385/1986 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (JR.DN.)& JMFC, KUNDAPURA.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The legal representatives of the original plaintiff filed the present Regular Second Appeal against the judgment and decree dated 18.01.2011 dismissing R.A.No.46/2003 on the file of the Senior Civil Judge, Kundapura, confirming the judgment and decree dated 30.07.2003 made in O.S.No.385/1986 on the file of the II Addl. Civil Judge (Jr.Dn.) and JMFC, Kundapura, dismissing the suit filed by the original plaintiff for partition and separate possession.
2. The original plaintiff-Genu Narayan Sheregara filed O.S.No.385/1986 for partition and separate possession against the defendants in respect of the suit schedule properties claiming ½ share, contending that the suit schedule properties are the joint family properties of plaintiff, defendant No.1 and one Govinda Sheregara. The said Govinda Sheregar died long back without leaving behind any legal heirs. The suit schedule properties are in joint possession and enjoyment of the plaintiff and defendant No.1. The plaintiff and defendants partitioned their joint family muli and mulageni properties through a registered deed dated 03.11.1947. At that time, suit schedule properties which were only chalageni lands were of no consequence and they were also not partible one. Hence, the suit schedule properties were not included in the partition deed. It is further contended that, after promulgation of Karnataka Land Reforms Act, the first defendant being the senior most member of the family had filed an application for grant of occupancy rights in respect of the suit schedule properties for the benefit of the joint family. Accordingly, the Land Tribunal granted occupancy right in the name of the first defendant.
The plaintiff got 1/2 share. Inspite of repeated demands, the first defendant has not effected the partition. Therefore, suit came to be filed.
3. The first defendant filed written statement. Except the relationship between the parties and partition deed dated 03.11.1947, denied the entire plaint averments and contended that the suit schedule properties are his absolute properties. After the partition, he obtained the chalageni lease of some items of suit schedule properties from one Madappa Holla. He has not taken the chalageni lease as a member of the joint family. After the promulgation of Karnataka Land Reforms Act, 1961, in his personal capacity he had filed an application for grant of occupancy right. The original plaintiff had also filed an application claiming the occupancy right in respect of the very same properties to which the defendant No.1 had filed the application. The land tribunal clubbed both the applications and passed a common order granting occupancy right in his favour and rejected the application filed by the original plaintiff. In the order, the Land Tribunal rejected the claim of the plaintiff and the order passed by the Land Tribunal has reached finality and binding on the plaintiff. It is contended by the defendant No.1 that item Nos.1 and 12 of the suit schedule properties are his absolute muli right, item Nos.1, 4, 10 and 11 does not belong to him and item No.7 was acquired for formation of road. The plaintiff was not in possession of the suit schedule properties at any point of time and they are not joint family properties. The plaintiff has no right in the suit schedule properties and therefore, sought for dismissal of the suit. During pendency of the suit, both the original plaintiff and the first defendant died and their legal representatives were brought on record.
4. Based on the aforesaid pleadings, the Trial Court framed the following issues:
“1. Whether LR’s of plaintiff prove that “A” schedule properties belong to undivided Hindu Mithakshara joint family consisted of plaintiff, defendant No.1 and Genu Govinda Sheregara and plaintiff is in joint possession of the said properties?
2. Whether the LR’s 1st defendant proves that he is the absolute holder of the lands, mentioned in item No.2 and 12 of “A” schedule properties in his individual capacity and plaintiff has no right, title or interest over the properties?
3. Whether LR’s of plaintiff proves that plaint “A” schedule properties are liable to be partitioned into 2 fair and equal shares?
4. Whether the LR’s of the plaintiff are entitled for the relief as prayed in the plaint?
5. What order or decree?”
5. In order to prove their case, plaintiffs were examined as P.W.1 and P.W.2 and marked the documents Exs.P.1 to 12.
The defendant examined as D.W.1 and marked Exs.D.1 to D.4.
6. The Trial Court, considering both the oral and documentary evidence on record, recorded a finding that, ‘the legal representatives of the original plaintiff failed to prove that ‘A’ schedule property belongs to Hindu undivided Mithakshara joint family consisting of plaintiff, defendant No.1 and Genu Govinda Sheregara, and plaintiff is not in possession of the suit schedule properties. The legal representatives of defendant No.1 proved that the first defendant is the absolute holder of the lands mentioned in item Nos.2 and 12 of ‘A’ schedule properties in his individual capacity and plaintiff has no right, title or interest over the properties and the legal representatives of the plaintiff failed to prove that ‘A’ schedule properties are liable to be partitioned into two fair and equal shares and failed to prove that they are entitled to any relief. Accordingly, the Trial Court, by the judgment and decree dated 30.07.2003, dismissed the suit with costs.
7. Aggrieved by the said judgment and decree passed the Trial Court, the legal representatives of the original plaintiff filed R.A.No.46/2003 before the Senior Civil Judge, Kundapura. The learned lower Appellate Judge, after framing the points for determination as contemplated under Order XLI Rule 31 of the Code of Civil Procedure, proceeded to hold that the plaintiff failed to prove that the suit schedule properties were cultivated on chalageni lease as on 03.11.1947 and further failed to prove that the occupancy rights granted to deceased defendant No.1 for and on behalf of the joint family, and further the legal representatives of defendant No.1 proved that the occupancy right in respect of the suit schedule properties was granted to deceased defendant No.1 in his individual capacity. Accordingly, the lower appellate Court, by the impugned judgment and decree dated 18.01.2011, dismissed the appeal.
8. Being aggrieved by the concurrent finding of facts recorded by the Courts below, the appellant did not deter from preferring the present appeal as a last ditch attempt.
9. I have heard the learned counsel for the parties to the lis.
10. Sri Ajith A. Shetty, Advocate for Sri A. Anand Shetty, learned counsel for the appellants/plaintiffs contended that the impugned judgment and decree passed by the Courts below dismissing the suit of the plaintiffs for the relief of partition and separate possession, is erroneous and contrary to the material on record and liable to be set-aside. He further contended that both the Courts below failed to notice that in Ex.C.2/Form-7 filed by late Genu Subbanna Sheregar source of tenancy was mentioned as ancestral and possession was shown as more than 80 years. Age of the applicant was shown as 58 years as on the date of application. Therefore, there is no conflict with the entries. The statement made in Form-7 is admission of a party. Further, when the suit reached the stage of trial, the first defendant died. Therefore, admission made in Form-7 could not be confronted to him. Therefore, the Courts below were not justified in dismissing the suit.
11. He further contended that both the Courts below failed to notice that the admission made in Form-7 clearly establishes the chalageni right in an ancestral tenancy right automatically becomes the joint family tenancy right. Merely because the Land Tribunal has granted the occupancy right in the name of one member of the family, the other members of the family cannot be deprived of the right for a partition and separate possession. He further contended that both the Courts below failed to notice that the first defendant being a senior member of the family, has filed Form-7 on behalf of the entire joint family members. Once occupancy right is granted, automatically all members are entitled to the benefit of occupancy right granted to the senior member of the family. Therefore, both the Courts below ought to have allowed the suit. Therefore, he sought to allow the appeal.
12. In support of his contentions, learned counsel relied upon the judgment of this Court in the case of Chikkarangaiah and others vs. Gurusiddaiah and others reported in (2011)2 KCCR 1097.
13. Per contra, Sri Vyasa Rao K.S. learned counsel for respondent Nos.6 and 7/defendant Nos.1(g) and (h) sought to justify the impugned judgment and decree passed by the Courts below and contended that the plaintiffs have not come to the Court with clean hand and suppressed the material facts. He contended that the original plaintiff also filed separate Form-7 along with the defendant No.1. The Land Tribunal, clubbed both the applications and passed a common order granting occupancy right in favour of the first defendant and rejected the application filed by the plaintiff, as per Ex.C.4. The said order has reached finality. Therefore, question of joint possession as members of the joint family as alleged would not arise. Therefore, he sought to dismiss the appeal.
14. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
15. It is the specific case of the plaintiff that the original plaintiff, defendant No.1 and one Govinda Sheregara, are the members of joint family. The first defendant, being the senior most member of the family, filed an application for grant of occupancy rights in respect of the suit schedule properties on behalf of the joint family. Once the land Tribunal granted occupancy rights, the plaintiff and other members are entitled to share in the suit schedule properties. It is the specific contention of the first defendant in his written statement that there was a partition in the joint family of plaintiff and defendants earlier, i.e., on 03.11.1947. After partition, the defendant No.1 has obtained chalageni lease of some of the items of the suit schedule properties from one Madappa Holla and has not taken chalageni lease as member of joint family. After promulgation of Karnataka Land Reforms Act, the defendant filed Form-7 in his individual capacity and the plaintiff also filed separate application claiming occupancy rights. The Land Tribunal, by clubbing the applications filed by the plaintiff and defendant No.1, by the Order dated 08.04.1981 rejected the application filed by the plaintiff and granted occupancy right in favour of the first defendant. The said order passed by the Land Tribunal ahs reached finality.
16. The Trial Court considering the entire material on record, recorded a finding that, “P.W.1 in his evidence has deposed that defendant No.1 being elder member and Yajamana of the joint family had filed an application for grant of occupancy right of the suit schedule properties and the Land Tribunal has granted occupancy right of the suit schedule properties in the name of the defendant No.1 in his capacity as a member of the joint family. Admittedly, the joint family of the plaintiff consists of three members, they are, plaintiff, defendant No.1 and one Genu Govinda Sheregara. Among them, Genu Govinda Sheregara is the eldest son. He died on 24.07.1984. The defendant No.1 has produced the death certificate of Genu Govinda Sheregara which is marked as Ex.D.2. So it is very clear that when the Land Reforms Act came into force, defendant No.1 was not senior most member in the family. It is Genu Govinda Sheregara who was the senior member of the family. So, the contention of the plaintiff that the defendant No.1 being the senior most member and Yajamana of the joint family had filed an application for the occupancy right cannot be accepted. There is no evidence on record to show that even after the partition as per Ex.D.1, the members of the joint family were cultivating the suit schedule properties jointly till the Land Reforms Act came into force. Neither there is documentary evidence nor cogent and corroborative. Defendant No.1 has contended that he was residing separately even before the partition as per Ex.D.1. In Ex.D.1, it is clearly stated that defendant No.1 was residing separately even before the partition. The statement given by defendant No.1 before the Land Tribunal is marked as Ex.C.1.
In the statement the defendant No.1 has clearly stated that the plaintiff was not in possession of the suit schedule properties at any material point of time and he further deposed that the owners of the suit schedule ‘A’ properties had filed the suit bearing O.S.No.22/56 against him for the recovery of rent amount and he alone had paid the arrears of rent to its owners. From Ex.C.2, it is very clear that before the Land Tribunal, defendant No.1 specifically contended that he was taken the suit schedule properties on lease in his personal capacity. P.W.1 in his evidence has not denied that the owners of the suit schedule properties had filed the suit for recovery of arrears of rent only against defendant No.1 and he alone paid the rent to its owners. In Ex.C.2, defendant No.1 has given data about the members of his family as wife- 1, minor children-3, unmarried daughters-3. These data in Ex.C.2 clearly goes to show that defendant No.1 had filed Ex.C.2 only for the benefit of himself, his wife and children and not for the benefit of the joint family members. This Court, in ILR 1999 KAR 831 with regard to occupancy rights granted to only one members-he claimed exclusive right over that land. Held-‘where tenancy rights have been acquired by a member of a family, such rights shall be held to be for the benefit of the entire family’. The said judgment is not applicable to the case on hand, for a very simple reason, that is, in this instant case, the plaintiff and the defendant No.1 are not the members of undivided Hindu joint family. The joint family of the plaintiff and defendant No.1 had caused partition as per Ex.D.2 in the year 1947. The LR’s of plaintiff have failed to prove that the suit schedule properties are the joint family properties of the plaintiff and defendant No.1. On the other hand, the LRs of the defendant No.1 have proved that the suit schedule plropeties are their exclusive properties. Accordingly, answered the issue No.1 in the negative and issue No.2 in the affirmative and ultimately, dismissed the suit.
17. On an Appeal filed by the legal representatives of the plaintiff, the lower appellate Court framed the points for determination as contemplated under Order XLI Rule 31 which reads as under:
1. Whether the plaintiffs prove that the suit schedule properties were cultivated on chalgeni lease as on 03.11.1947?
2. Whether plaintiffs prove that the occupancy right of suit schedule property granted to deceased defendant No.1 for and on behalf of the joint family?
3. Whether LRs of defendant No.1 prove that the occupancy right of suit schedule property granted to deceased defendant No.1 in his individual capacity?
4. Whether the plaintiffs entitled for mesne profits?
5. Whether the plaintiffs entitled for partition of ½ share in suit schedule property?
6. Whether it is just and necessary to intervene the impugned judgment and decree?
7. What order?
18. After reconsidering the entire oral and documentary evidence on record, the lower appellate Court recorded a finding that, “the chalageni lease of the properties were secured when joint family status was intact and first defendant continued to cultivate those properties jointly subsequent to the partition on 03.11.1947 and that both oral and documentary evidence placed on record establishes that the occupancy right in respect of suit schedule properties was granted to the first defendant in his individual capacity and not on behalf of the joint family”.
19. Both the Courts below concurrently held that the suit schedule properties are the exclusive properties of first defendant in whose favour the Land Tribunal granted occupancy right on 08.04.1981 while rejecting application filed by the plaintiff for occupancy right in respect of same properties as per Ex.C4. The Order passed by the Land Tribunal rejecting the application filed by the plaintiff and allowing the defendant’s application has reached finality.
20. The material on record clearly depicts that both the plaintiff and the first defendant filed separate application Form-7 claiming occupancy right in respect of the suit schedule properties in their individual capacity. The Land Tribunal considering the entire material on record, rejected the claim of the plaintiff and held that the first defendant has proved his tenancy as on 01.03.1947 and granted occupancy rights on 08.04.1981 as per Ex.C.4. The said order has reached finality which clearly indicates that the claim of the plaintiff that defendant filed Form 7 on behalf of the joint family would falsify and the said fact of rejection of the application has been suppressed in the plaint by the plaintiff.
21. The judgment relied upon by the learned counsel in the case of Chikkarangaiah stated supra, it was a case where one of the joint family members filed an application for grant of occupancy rights and it was granted. The said judgment has no application to the facts and circumstances of the present case. Admittedly, in the present case plaintiff also filed separate application along with the defendant claiming occupancy right. When the plaintiff’s application was rejected on 08.04.1981 and occupancy rights was granted in favour of the 1ST defendant on the separate application filed in his individual capacity and the said order has reached finality, the judgment relied upon by the learned counsel for the petitioner has no application to the case on hand.
22. Both the Courts below considering the oral and documentary evidence on record by a well crafted judgment and decree proceeded to hold that the legal representatives of the original plaintiff failed to prove that ‘A’ suit schedule properties belongs to undivided Hindu Mithakshara family consisting of plaintiff, defendant No.1 and Govinda Sheregara and plaintiff is in joint possession of the property and the legal representatives of the first defendant proved that the first defendant is the absolute owner of the lands mentioned in ‘A’ schedule properties in his individual capacity. The plaintiff has no right, title and interest over the suit schedule properties and the legal representatives of the plaintiff are not entitled to any partition as claimed. Accordingly, suit came to be dismissed. Such a finding of fact recorded by the Courts below cannot be interfered with by this Court in view of Ex.C.4. A careful perusal of the judgment and decree of the Courts below reveals that the plaintiff has not made out any substantial question of law to admit the Regular Second Appeal in exercise of powers under Section 100 of the Code of Civil Procedure. Accordingly, the appeal is dismissed as devoid of merit at the stage of admission.
Ordered accordingly.
Sd/-
Judge kcm