R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1743/2009 BETWEEN:
SRI MAHABALA BABU KUKYAN S/O LATE BABU POOJARY SINCE DEAD BY LRS 1(a) SMT. VINAYA MAHABAL KUKIAN AGED 71 YEARS No.1102/2003, NORTH SIDE HIRANANDANI MEADOWS GLADIES ALVARES ROAD THANE (WEST)-400 610.
1(b) SMT. HARINAKSHI V SANIL AGED 53 YEARS No.701, DIVYA GUNJAN GAURAV GARDENS KANDIVI (W) MUMBAI - 400 067.
1(c) SMT.NALINAKSHI S. KOTIAN AGED 51 YEARS A-3/502 VIHANG GARDEN OPP. RAYMONDS, POKHARAN R D No.1 THANE (W) 400 606.
1(d) SRI ASHIT MAHABAL KUKIAN AGED 47 YEARS 1102/03 NORTH SIDE HIRANANDANI MEADOWS GLADIES ALVARES ROAD THANE (W) -400610. ...APPELLANTS (BY SRI K CHANDRANATH ARIGA, ADVOCATE) AND:
1.SMT RATHI K POOJARTHI W/O LATE KUDUPA POOJARTY, ADULT, SINCE DEAD BY LRS 1(a) HARISHCHANDRA K AMIN S/O LATE KARIYAPPA D POOJARY AGED ABOUT 62 YEARS RESIDING AT HARI OM APARTMENT 5TH FLOOR, HOLEYANGADI POST AND VILLAGE MANGALORE TALUK, D.K.
2.SMT. GULABI W/O VASU ANCHAN R/AT INDIRA NAGAR, HALEYANGADI, MANGALORE TALUK-574 146.
3.SMT. SHESHAMMA W/O NARAYANA POOJARY, ADULT, R/O NEW MUNDEVO HOUSE, GANJIMUT, MANGALORE TALUK-574 144.
4.KOTI KOTIAN ADULT, HUSBAND OF LATE SMT.LAXMI R/O. NEW MUNDEVO HOUSE GANJIMUT, MANGALORE TALUK-574 144.
5.SMT. LATHA ADULT, D/O LATE NAGI BEHIND MANGATHRAM PETROL BUNK BANDUP, MUMBAI-78.
6.SANJU ADULT, S/O LATE NAGI BEHIND MANGATHRAM PETROL BUNK BANDUP, MUMBAI-78. ...RESPONDENTS (BY SRI K CHANDRASHEKAR, ADVOCATE FOR R-1(A), SRI ANANDRAMA K, ADVOCATE FOR R-5 & 6, R-2 & R-3, ARE SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.09.2009 PASSED IN R.A.No.12/2008 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, D.K, MANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:04.12.2007 PASSED IN O.S.19/2001 ON THE FILE OF THE I ADDL. CIVIL JUDGE (SR.DN) MANGALORE.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the Judgment and decree passed by the I Additional District Judge, D.K. Mangalore, in R.A.No.12/2008 dated 05.09.2009 on which date appeal came to be dismissed, wherein the Judgment and decree dated 04.12.2007 passed by the I Additional Civil Judge (Sr.Dn), Mangalore in O.S.No.19/2001 came to be confirmed. The defendant is appellant.
2. In order to avoid confusion and overlapping, parties are referred to in accordance with the rankings held by them in trial court.
3. Suit is for partition of the suit schedule property wherein plaintiff claimed his right for a share. The bone of contention between the parties in this case is tenancy and its legal effects in respect of a joint Hindu family.
4. The proceedings before the learned Senior Civil Judge in O.S.No.19/2001 came to be initiated because of the claim to 1/6th share by one Mahabala Babu Kukyan, aged 62 years, son of Babu Poojari, who was residing at Mumbai at that point of time.
5. The relationship between the plaintiff and defendants are that they are siblings, as Mahabala Babu Kukyan- s/o Babu Poojari, plaintiff, defendant No.1- Rathi K Poojarthi, wife of Kudupa Poojari, defendant No.2-Gulabi, daughter of Babu Poojari, defendant No.3 -Sheshamma, d/o Babu Poojari, defendant No.4-Koti Kotian, husband of Laxmi, defendant No.5-Latha and defendant No.6 –Sanju, son of Nagi are the members related to each other and members of joint Hindu Family. The plaintiff claims himself at par with the off springs of Babu Poojari and claims a share from the joint family property said to have belonged to the family that was headed by Babu Poojari and his ancestors in the capacity of tenant. The landed property bearing eight survey numbers with sub division numbers of the respective extent totaling to 2 acres and 54 cents of land situated at Haleyangady Village, Mangalore Taluk (1 gunta = 2 ½ cents) for reckoning extent.
6. The claim of the plaintiff is that plaintiff, second defendant and third defendant are the children of Babu Poojari who was holding agricultural property of ancestors and after the death of Babu Poojari, eldest son Kudupa Poojari, husband of defendant No.1 continued to cultivate the land. It is also stated that said land was subjected to jurisdiction of the Land Tribunal in the proceedings initiated under Form No.7 by Kudupa Poojari.
7. At this juncture, it is necessary to mention that the development that has taken place i.e., Kudupa Poojari, son of Babu Poojari upon his death whatever the rights he obtained over the schedule property were being represented for the purpose of proceedings by one Smt.Rathi Poojarthi.
8. Kudupa Poojari is said to be tenant of the property under Adangal from erstwhile land owner and upon death of Kudupa Poojari his rights devolved on Smt.Rathi Poojarthi. She is also dead. In the circumstances the further claim of the plaintiff is that she executed gift deed of the suit schedule property in favour of Harishchandra K Amin, who is said to be her sister’s son. Regard being had to the fact that the bone of contention between the parties falling under the plaintiff and his siblings on the side of the defendants that the suit schedule property are joint family properties and all of them are entitled for their specific share. Regard being had to the fact that the plaintiff’s share is said to be 1/6th out of the same. The branch of Kudupa Poojari claims that the schedule property were never a subject matter before the Land Tribunal in the capacity of a sole tenancy. On the other hand the schedule property belonged to entire family of decedents of Babu Poojari which include siblings of plaintiff and defendants.
9. Materially, it is not in dispute between the parties that the schedule property was the subject matter of proceedings before the Land Tribunal. The schedule property consists of several item of land. The learned I Additional Civil Judge, Mangalore dismissed the suit (O.S.No.19/2001) filed by the plaintiff.
10. It concluded that suit schedule property were never joint family property and the tenancy of Kudupa Poojari and grant of the same in LRT CR 704/78-79 dated 31.07.1979 because of which it is a separate property of Kudupa Poojari and it was not available for partition as the question of joint possession or co- parcenary and other incidents of joint family in respect of the properties did not exist.
11. Learned I Additional District Judge, Mangalore disposed of R.A.No.12/2008 preferred by the plaintiff by dismissing the same on 05.09.2009, thereby confirming the Judgment and decree passed by the learned Civil Judge, Senior Division, Mangalore wherein the appellate court also found that the suit schedule property no longer a joint family property paving way for partition. Hence, the present appeal is by appellants raising the following substantial questions of law:
(1) Whether the finding of the trial court that it is not possible to determine the nature of tenancy in the absence of Form No.7 and Form No.10 under the Land Reforms Act, even if the order of the Land Tribunal and copy of Form No.7 is available, is correct?
(2) Whether the appreciation of fact by the trial court that the plaintiff has not proved that the schedule properties are joint tenancy properties in spite of the claimant admitting the joint family tenancy under Exhibit P.9, P.10 and P.11, is correct?
(3) Whether the finding of the first appellate Court that since the appellant has not challenged the order of the Land Tribunal granting occupancy right is not challenged, appellant failed to establish that the properties are joint family properties is correct?
(4) Whether the first appellate court is right in holding that there is no documentary evidence of joint family tenancy, even after the brother of the appellant states and admits of tenancy being joint in Exhibit P.9, P.10 and P.11?”
But on perusing the file, I find sole substantial question of law would be:
Whether all kind of grant of land and benefits in the form of lands by the Government to a member(person) are deemed to be joint family property or self acquired property of that member (person)?
12. Learned counsel for appellant Sri. Chandranath Ariga would submit that both the trial Judge in O.S.No.19/2001 and the first appellate Judge in R.A.No.12/2008 committed similar kind of mistakes holding that the schedule property was not available for partition. Learned counsel would further submit that provisions of law are misapplied and perversity in the Judgments deserve to be lifted out. Learned counsel would further submit that the order of the joint family property has been mistreated as separate property. The factors and the circumstances straightaway provide that the schedule property as being held by members of the joint family that included plaintiff and defendant.
13. Learned counsel would further submit that the learned appellate Judge who concurred with the finding of the learned trial Judge ought to have considered the principles of joint family in the larger perspective rather than reading it in a narrow mode contrary to the principles applicable for joint Hindu family.
14. Learned counsel Sri. Chandrashekar for respondent would submit that suit schedule property form the separate property of Kudupa Poojari who is no more and who was the absolute owner of the schedule property at the time of his death. The schedule property devolved upon Rathi Poojarthi who is the wife of Kudupa Poojari. Thereafter it is stated that she gifted away the schedule property to one Harishchandra K Amin who is said to be Rathi Poojarthi’s sister’s son.
15. Thus, the claim and contention, right, interest, title whatsoever is stated to have what was standing in favour of Kudupa Poojari stands transferred to Harishchandra K Amin. Thus, the said respondent No.1 –Harishchandra K Amin at present is said to have stepped into the shoes of Rathi Poojarthi who was standing in the shoes of Kudupa Poojari.
16. Learned counsel for respondent would also submit that Chalageni that was held by Kudupa Poojari was independent from the family of his father Babu Poojari and none of the off springs of Babu Poojari except Kudupa Poojari had any interest, right, title whether joint or exclusive with them and property that was not available for partition is sought to be partitioned.
17. In the circumstances of the case, grant of land is not disputed. The Land Tribunal in its order dated LRT CR 704/78-79 conferred occupancy rights on Kudupa Poojari in respect of the schedule property by allowing Form No.7 that was filed by Kudupa Poojari.
18. Learned counsel for appellants would submit that appeal insofar as concurrent findings are concerned, the legal principle is answered by the Apex Court in the case of Jagadish Singh Vs. Natthu Singh (AIR 1992 Supreme Court 1604), wherein it is held at para-8 as under:
“8. In our opinion, the High Court was right in its view. The notices must be presumed to have been served as contemplated by S.27 of the General Clauses Act. As to the jurisdiction of the High Court to re-appreciate evidence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. We find no substance in the first contention.”
19. Sri.Anandrama, learned counsel for respondents 5 and 6 would submit that respondents 5 and 6 are the children of Nagi and they are entitled for a share as well. Further he would submit that matters on concurrent findings of fact is not entertained by the High Court and he relied on the decision of the Apex Court in the case of Suresh Kumar through GPA Vs. Anil Kakaria and others (AIR 2017 Supreme Court 5239) wherein it is held at paras 14 and 15 as under:
“14. In our considered opinion, the findings recorded by the three Courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal and it was rightly held by the High Court also.
15. It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law.”
20. At this juncture, it is necessary to observe that “documents Exs.D1 to D71 marked before the trial Court are destroyed.” Thus, original exhibits are not forthcoming in this case. However, insofar as plaintiff’s pleadings is concerned, “Exs.P24 to P29 are levy paid receipts.” However, the important document is Ex.D63-order of Land Tribunal. Copy of the said document is available in the paper book and I have perused the same.
21. By virtue of subsequent development, documents are destroyed as reported by the trial court. Thus, the core of contention of the appellants/ plaintiffs is, Chalageni that was granted to Kudupa Poojary did not exclusively meant for him. On the other hand, it is meant for the entire joint family and the benefit should enure to all the members of the joint family. However, in the consideration of other aspects, it is necessary to observe that there is no denial of relationship among the parties.
22. The only point that is being adjudicated by the plaintiffs/appellants is regarding the effect of grant as to whether the benefit enure to the family members. It is the submission of learned counsel for respondents that, it should be treated as exclusive property of Kudupa Poojary that devolved on his wife Rathi Poojarthi and thereafter, being gifted to Harishchandra K. Amin who is said to be her sister’s son. It is further necessary to place on record that there is no contention regarding the existence of title by act of parties earlier to the land entering to the jurisdiction of the Land Tribunal. By virtue of passing of Land Reforms Act, the tenanted lands vested in the Government and rights were conferred on the tillers/ farmers cultivating the lands on tenancy whose occupancy rights were conferred by virtue of they being tenants as on 1.3.1974.
23. It is necessary to remember that the violations of the rights of occupancy rights that were conferred on a tenant, subjected to he being continued in the avocation of agriculture at the relevant point of time irrespective of the extent and nature of agricultural land. It cannot be forgotten for a while that the land falling under tenancy invariably fell under the jurisdiction of Karnataka Land Reforms Act. More particularly, the Land Tribunal adjudicate on Form No.7 by virtue of the Original Act and Form No. 7-A as per the Amended Act of 1998.
24. Insofar as oral evidence of the parties are concerned, no doubt they reiterated the averments made in the plaint and written statement.
25. In this connection, it is necessary to mention that in the written statement filed by the defendants who are the respondents herein, apart from denying the averments made in the plaint regarding the joint family property, states that plaintiff used to send money for development of agricultural property. The claim of joint possession is stoutly denied by the contesting defendants.
26. On the other hand, as per the admission of defendants, it is seen that Kudupa Poojary obtained scheduled property from personal capacity from its original owner and after coming into force of the Land Reforms Act, he has given declaration in respect of the scheduled land and during the pendency of declaration, he died living behind his wife Rathi Poojarthi who also died and now the matter is represented by one Harishchandra K. Amin, who is stated to be the nominee/donee for the scheduled property from Rathi Poojarthi.
27. Thus, it is quite clear and straight that according to the defendants no mediatory persons were meddling with the schedule property or in occupation and the plaintiff’s claim the property as belonging to joint family and sought for partition that came to be dismissed by the Trial Court and confirmed by the First Appellate Court as well. Under the circumstances of such admitted version, oral evidence of defendant No.1 is worth for a cursory glance.
28. The oral evidence of defendant No.1 is not by the said Kudupa Poojary for the very reason that he was dead and succeeded by his wife Rathi Poojarthi, who also did not appear before the Court. On the other hand, her relative one Ravindra Kumar deposed on behalf of defendant No.1.
29. It is necessary to mention that copy of Ex.D63- Order of Land Tribunal, Mangalore, is available at page No.58 of the paper book and both the learned counsel for the appellants and respondent Nos.1, 3 and 4 confirmed that the document available at page No.58 is a copy of original order that was filed before the trial court by the defendants. The proceedings in LRTCR: 704:78-79/1718:77-78 dated 31.3.1979 makes the following amply clear:
The proceedings related to Form No.7 and grant of occupancy rights in respect of Survey No.12/8 measuring 0-18 guntas.
30. The Land Tribunal has considered that, Form No.7 dated 25.11.2004 was filed by one Kudupa Poojary, S/o. Babu Poojari, Parangadi House, Haleyangadi Post. The owner Savithri Acharthi, appeared before the Tribunal and stated that during the relevant point of time, he was not tenant and her husband was cultivating the land. Kudupa Poojary asserted before the Land Tribunal that he was a tenant of Savithri Acharthi and cultivating the schedule property in Survey No.12/8 and he also tells about the share of crops offered by him to the landlord.
31. After perusing RTC extracts produced and levy register relating to the year 1973-1974, the Land Tribunal conferred the occupancy rights in respect of eight survey numbers totaling to 2 acres and 54 cents. The aspects that came under the per view for consideration of grant of land are: (a) agricultural land subject to tenancy; (b) Form No.7 or Form No.7- A as the case were allowed to be filed before the Land Tribunal.
32. The applicant established that on the relevant time i..e on 1.3.1974 he was cultivating the land as a tenant and not the other aspects. In this connection, adangal was relied upon, it was marked as Ex.D2 and that is said to be an authorization or certificate issued by Land Tribunal to the tenant. This Adangal is also said to be one document among those destroyed.
33. Learned counsel for appellants would submit vehemently that Adangal is the main document to determine the rights of the defendants. It is necessary to mention that the main document or the prime document is the RTC extract to establish the tenancy as on 1.3.1974. In the present case, the said fact is concluded beyond dispute. It is also necessary to make a mention that when the land comes under the purview of the Land Reforms Act and Rules governing the Land Reforms Act that matters and not the documents which is inconsistent or prerogative of provisions of Land Reforms Act.
34. Insofar as grant is concerned, the application of the same is whether it is joint family property and it enure to the benefit of all the members of joint family or whether it belongs to an individual in whose favour it is granted and the same cannot be claimed by the others and whether the land granted under Land Reforms Act and Grant Rules should be considered as a joint family property as it is family occupation, unless the family is split and became nuclear. In the present case, the family is claimed to be joint family by the plaintiff and that is denied by the defendants. However, court cannot loose sight of presumption of joint ness and also to understand that a joint family comes into existence by birth and not by agreement like any partnership firm. Even a member of the joint family doing agriculture and not earning and depends on the income of the joint family he is also entitled for a share as right is given by birth and not by participation in business or actively earning. In a joint family, co-parceners or members contribute to the joint family, rather circumstances of contribution not only in the form of money but in any form in respect of joint family property that matters. In the circumstances, neither the Trial Court nor the First Appellate Court have bothered to examine the nature of grant of the schedule property. Grant is not disputed. However, the benefit of the same is disputed.
35. The learned counsel for respondents would submit that amount send by the plaintiff to his brother Kudupa Poojari by money orders at the most have not exceeded Rs.50/- at a time.
36. Thus, it is found that both the Trial Court and the First Appellate Court have erred seriously in coming to the conclusion that the property granted was exclusively meant for the defendant No.1 (Kudupa Poojari and his wife Rathi Poojarthi).
37. It is seen that the brother of Kudupa Poojari also objected. However, learned counsel for respondents would submit that he never approached before the land tribunal. Thus, there are no factors to rule out that the grant was being made for the entire family and not exclusively for Kudupa Poojari.
38. Another development is, the suit was filed against Rathi Poojarthi, w/o Kudupa Poojary by virtue of death of Kudupa Poojary at the time of filing of the suit. Later, by virtue of her death, Harishchandra K. Amin came on record claiming that the property was gifted to him. He is stated to be sister’s son of Rathi Poojarthi. In the circumstances, it is seen that he came on record under Order I Rule 10 CPC. It is necessary to mention that he has not come on record either under Order 22 Rule 4 CPC or under Order 22 Rule 10 CPC.
39. Another point to be considered is, the contesting defendants are: defendant No.2- Gulabi; Defendant No.3-Sheshamma; defendant No.4-Koti Kotian; defendant No.5-Latha, D/o Nagi and defendant No.6- Sanju S/o.Nagi are the siblings of Kudupa Poojari and that Harishchandra K. AMin is the sister’s son of Rathi Poojarthi.
40. Thus grant or prize or awards given in recognition of skill, performance or gallantry normally will be personal and considered as self occupied. Similarly, grant of land under Form No.7 to a tenant in accordance with the provisions of Land Reforms Act, normally would be for the family jointly. However, in the facts and circumstances of the case, it is established to be a one for joint family. Hence, the substantial question of law is answered accordingly.
41. Thus, in my firm view, the property was available for partition and the judgments and decree rejecting the prayer of the plaintiff for partition is liable to be set aside and suit is to be decreed.
42. Learned counsel for respondent No.1 in the course of dictation of the judgment would submit that Ex.D2 –Adangal also is the document that has been destroyed when it was in the custody of the court below and submits that unless the document is produced he cannot go ahead with the case. In this connection, I am reminded of the fact that the appeal is of the year 2009, admitted on 11.8.2016 and there was no objection raised by the learned counsel for respondent No.1. Moreover, after half of the dictation is over, seeking time is not proper. Further, it is necessary to observe that the document Adangal is said to be authorised by landlord and for getting the land under tenancy. In the circumstances, the proceedings of tenancy are not disputed and the fact of passing of the order by the Land Tribunal is also not objected.
43. For the foregoing reasons, the appeal is allowed.
Judgment and decree dated 5.9.2009 passed in R.A.No.12/2008 by the I Additional Principal District Judge, D.K. Mangalore, and the judgment and decree dated 4.12.2007 passed in O.S.No.19/2001 by the I Additional Civil Judge (Senior Division), D.K. Mangalore, are set aside.
The suit in O.S.No.19/2001 filed by the plaintiff is decreed.
Send back the records to the trial Court.
SBN/tsn* Sd/- JUDGE