IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.214/2014 BETWEEN:
SRI A SHIVANNA S/O LATE AKKAIAH AGED 71 YEARS R/A.SATHEGALA VILLAGE KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT – 571 313.
…APPELLANT (BY SRI DATTA PRASAD, FOR SRI P N MANMOHAN, ADVOCATE) AND:
SRI A GURUSHANTHA S/O LATE AKKAIAH AGED ABOUT 68 YEARS R/A. SATHEGALA VILLAGE KOLLEGALA TALUK CHAMARAJANAGAR DISTRICT – 571 313.
(BY SRI K S UDAYA, FOR SRI C M NAGABUSHANA, ADVOCATE) ...RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:16.11.2013 PASSED IN R.A.No.13/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., KOLLEGAL, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.3.2009 PASSED IN OS.No.18/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC., KOLLEGALA.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the plaintiff/appellant is directed against the judgment and decree dated 16-11-2013 passed in R.A.No.13/2012 by the learned Senior Civil Judge and JMFC, Kollegal, wherein appeal preferred by the defendant came to be allowed and the judgment and decree of the trial Court passed in O.S.No.18/2007 on 26.3.2009 was set aside and consequently, suit of the plaintiff was dismissed.
2. In order to avoid confusion and overlapping, the parties are referred with reference to their respective status and ranking before the trial court.
3. Originally, plaintiff-Shivanna, S/o Akkaiah filed a suit in O.S.No.8/2007 on 6.2.2008 before the learned Principal Civil Judge (Jr.Dn) and JMFC, Kollegala, for the relief of declaration of title and permanent injunction against the defendant, who is said to be his brother. It is contended that plaintiff was cultivating the suit property as a tenant and occupancy rights were granted to him and it is his self acquired property and enjoying the same as an absolute owner. It is further contended that his father has no properties except a small residential house that in the year 1965 there was a partition among the plaintiff defendant and his father.
4. The subject matter of the suit is an agricultural property bearing Survey No.1290, measuring 1.74 acres situate at Sathegala village, Kollegal Taluk, assessed at Rs.6.77.
5. The defendant resisted the claim of the plaintiff by filing written statement denying the averments made and contending that after partition he is in possession and enjoyment of the eastern 87 cents in the suit property. He also contended that suit is barred by limitation.
6. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 3, DWs 1 and 2 and documentary evidence of Ex.P1 to P14 and Ex.D1 to D9. With this learned trial Judge decreed the suit of the plaintiff declaring that the plaintiff as the owner in possession of the schedule property and defendant was restrained by means of permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff over the schedule property.
7. Defendant took the matter in appeal and questioned the judgment decreeing the suit in favour of the plaintiff in R.A.No.13/2008 before the learned Civil Judge (Sr.Dn) and JMFC, Kollegala, who has allowed the appeal preferred by the defendant and set aside the judgment and decree passed by the trial Court in O.S.No.18/2007 dated 26.3.2009 as a result suit stood dismissed, which is challenged in this appeal by the plaintiff.
8. While admitting the appeal, this Court framed the following substantial questions of law on 13.8.2015:
(i) Whether the Appellate Court was justified in allowing the appeal and setting aside the judgment and decree passed in O.S.No.18/2007 dated 26.3.2009 by examining the issue of prior partition, which was not the plea of defendant?
OR Whether the Appellate Court was justified in traveling beyond the pleadings of the parties?
(ii) Whether the Lower Appellate Court was justified in arriving at a conclusion that plaintiff has to prove there was no disruption in the joint family status, though defendant had pleaded that suit schedule property was divided between himself and plaintiff on 23.7.2004 itself?
9. Learned counsel Sri. Dattaprasad, for Sri.
P.N.Manmohan, for the appellant would submit that the learned First Appellate Judge has exceeded the jurisdiction by adjudicating the point that was not the bone of contention. He would further submit that the matter has been stretched beyond pleadings and the issues. Whereas the case of the defendant that was neither pleaded nor urged was taken into consideration and a finding was given against the plaintiff. Learned counsel would further submit that first Appellate Judge went unnoticed about the conferring of title over the property by Land Tribunal and gave a finding against law and facts.
10. Per contra, learned counsel for defendant Sri.
K.S. Uday for Sri.C.M.Nagabushana, for respondent would submit that the judgment and decree passed by the learned First Appellate Judge overruling the judgment and decree passed by the trial Judge in O.S.No.18/2007 on 26.03.2009 is perfectly in order and it stands the test of reasonability and also legality. It is neither perverse nor capricious nor arbitrary. The learned First Appellate Judge has rightly held in his reasoning that agricultural property granted to a member of the family is not exclusively to the grantee, on the other hand, it enure to the benefit of the joint family under the law relating to joint family among the Hindus.
11. In the context and circumstances of the case, the substantial questions of law are reframed on as under:
(i) Whether the judgment and decree passed by the trial judge in O.S.No.18/2007 on 26.03.2009 is in accordance with the established principles of Joint Hindu Family and the law relating to ancestral and joint family properties?
(ii) Whether the First Appellate Judge was correct in appreciating the principles regarding the nature of grant and bringing the contentions regarding the effect of grant when it was not pleaded?
12. Before adverting on the other circumstances, among the exhibits, Ex.P1 is the occupancy certificate issued by the Land Tribunal, Kollegal in LRF INA CR: 1660/82-83 dated 18.8.1982, wherein, the land bearing survey No.1290 to the extent of 01 acre 17 guntas, assessed at Rs.6.77 granted in LRA 47/79-80 on 25-05- 1982. Admitted fact is that, plaintiff- Shivanna and the defendant- Gurushantha are the sons of Akkaiah who is no more. The order of the Land Tribunal as per Ex.P1 is not disputed. However, the plaintiff claims it as his sole and exclusive property. Per contra, the defendant claim that it was not meant for plaintiff alone and the benefit enures to the every member of the family and that the claim of plaintiff is opposed to established conventional principles of Joint Hindu Family according to Mitakshara Hindu Law. The application for grant of occupancy rights was said to have been filed by Mr. Akkaiah, father of the plaintiff and defendant (learned counsel for the defendant submitted that the plaintiff himself has admitted that the application was filed by his father Akkaiah). It was submitted that notice issued by the Land Tribunal was addressed to Akkaiah, father of the plaintiff and the defendant as per Ex.D6.
13. The grant of land by bodies established by the Government, more particularly, the Land Tribunal constituted under the Inams Abolition Act, the occupancy rights are granted for those who fulfill the eligibility criteria as prescribed by the said Act.
14. Now the question is, whether the grant order enure to the benefit of the plaintiff alone or whether the fruits of the grant are to be distributed among all the members of a joint family. The claim of the defendant is not regarding joint family properties or otherwise. On the other hand, defendant pleads and asserts that the schedule property was subjected to partition as per Ex.D1, which is said to have been effected before the Panchayat on 23.7.2004. Regard being had to the fact that the order of the Land Tribunal was made on 18.8.2002. Thus, the partition is claimed to have been effected in the joint family after the period of 22 years from the date of grant of the subject matter in favour of the plaintiff-Shivanna.
15. Now that the submission of the counsel for the appellant is that, it was not the question of nature of property that was pleaded by the defendant. On the other hand, it is the claim that it has been subjected to partition. It is necessary to categorise certain grants which are exclusively meant for individuals, on the basis of the skill, gallantry, sports or culture and the related in which for the performance and the achievement and in recognition of the same, awards will be given and it may carry the grant of properties by the government or the governmental authorities. Such kind of grants are exclusively available to the person to whom it was granted.
16. The learned counsel for appellant submitted that the grant of land is for the exclusive benefit of the plaintiff in contrast to the submissions made by learned counsel for defendant that it enure to the benefit of the entire family.
17. Parties are brothers and the suit is filed for declaration of title and possession when they are Hindus and claimed partition has been effected, the basis for claim of share in the partition is that, it is effected among the members of the joint Hindu family. Thus, whether the partition is legal or impartial or not and that is a different aspect. Now the ingredients of the matter are: (1) grant of agricultural land to the plaintiff (2) defendant-Gurushantha, is the brother of the plaintiff- Shivanna and (3) the suit was filed by the plaintiff claiming exclusive rights of ownership and possession and the partition was effected earlier, thus it was in straight division wherein the defendant claims that he was allotted eastern portion.
18. On watching the above aspects, invariably, it suggests that in the context and circumstances, the schedule property was never a grant made exclusively for the plaintiff. The application is said to have been filed by the father of the plaintiff and defendant and it is disputed as well. Even the fact of making application by father or the member of the family does not make difference. It is necessary to mention that Ex.D6 is said to be the notice issued by the Land Tribunal, to Akkaiah, which is said to be the name of the father of the plaintiff and defendant. However, by looking at the name, he was addressed as Smt. Akkaiah that does not make any difference.
19. Ex.D8 is said to be the Xerox copy of the order wherein the applicant is shown as ‘Akkaiah’. However, the appeal is preferred by one Gurushantha in RA No.24/2005-2006 by which time, father of the plaintiff and defendant is stated to be dead on 01.9.1990 and respondent No.2 is Shivanna. It was submitted by learned counsel for appellant that plaintiff Shivanna is elder brother. Thus, in this case, the consideration would be from two angles. In case, partition was effected as per Ex.D1, shares would follow. If the partition was not effected, the parties should remain in joint possession.
20. The effecting or otherwise of partition is not dominant aspect of the present case.
21. The question would be, whether it was granted to the benefit of the entire family or to the plaintiff exclusively. This point of question considering the nature and circumstances of the case need not be pleaded and substantial question of law that controls the litigation it could be framed in Regular Second Appeal under Section 100 of CPC.
22. Thus, the trial Judge in OS No.18/2007 decreed the suit of the plaintiff regard being had to the fact that the First Appellate Judge in his sound reasoned order has come to a right finding in allowing the appeal and consequently dismissing the suit of the plaintiff. The substantial questions of law are answered accordingly.
23. Therefore, I do not find any irregularity, infirmity or defects in the judgment and decree passed by the learned First Appellate Judge in R.A.No.13/2012 on 16-11-2013. Appeal is devoid of merits and it is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE tsn*