Karnataka High Court
Sri Thimmayya vs Choudappa on 22 June, 2022
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
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RSA No. 380 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO. 380 OF 2022 (PAR)
BETWEEN:
SRI THIMMAYYA S/O PAKIRAPPA
AGED ABOUT 69 YEARS, AGRICULTURIST, TALVAR
R/O BAVIHATTI ROAD, N.R.PURA TOWN & POST
CHIKKAMAGALURU-577 134. ...APPELLANT
[BY SRI SHRAVAN MADHAV K.P., ADVOCATE (PH)]
AND:
1. CHOUDAPPA S/O PAKIRAPPA
AGED ABOUT 65 YEARS
RETIRED GOVERNMENT EMPLOYEE
R/O OPP. GUTHAMMMA TEMPLE
HALE PETE, N.R.PURA, CHIKKAMAGALURU-577 134.
2. HANUMANTHAPPA S/O PAKIRAPPA
AGED ABOUT 65 YEARS, R/O BAVIHATTI ROAD
N.R.PURA TOWN & POST
CHIKKAMAGALURU-577 134.
3. THIMMAMMA D/O PAKIRAPPA
W/O VEERABHADRAPPA, AGED ABOUT 71 YEARS
Digitally signed by
VEENA KUMARI B R/O SARASWATHI NAGAR, 3RD CROSS, BIRUR,
Location: High KADUR TALUK, CHIKKAMAGALURU-577 116.
Court of Karnataka
...RESPONDENTS
[BY SRI SHAMANNA B.H., AND SRI A.S.GIRISH, ADVOCATES
FOR C/R1(PH)]
THIS R.S.A IS FILED UNDER SECTION 100 OF CPC 1908.,
AGAINST THE JUDGMENT AND DECREE DATED 18.10.2021 PASSED
IN R.A.NO.5/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., N.R.PURA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 29.01.2019 PASSED IN
O.S.NO.104/2012 ON THE FILE OF THE CIVIL JUDGE AND JMFC.,
N.R.PURA.
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RSA No. 380 of 2022
THIS RSA COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 18.10.2021 passed in R.A.No.5/2020 by Senior Civil Judge & JMFC., N.R.Pura, confirming judgment and decree dated 29.01.2019 passed in O.S.No.104.2012 by Civil Judge & JMFC., N.R.Pura, appellant has filed this appeal.
2. Appellant was defendant no.3 in suit and appellant in first appeal. Respondent no.1 herein was plaintiff in suit and respondent no.1 in first appeal. While respondents no.2 and 3 herein were defendants no.1 and 2 in suit and respondents no.2 and 3 in first appeal. For sake of convenience, parties shall hereinafter be referred to as per their ranks in original suit.
3. O.S.No.104/2012 was filed seeking for relief of partition and separate possession of 1/4th share of plaintiff in suit schedule properties. In plaint, it was stated that plaintiff and defendants were brothers and sisters. Suit schedule properties were ancestral joint family properties of their father Phakirappa son of Basappa, Sirigalale village and were talavaru Inam lands. -3- RSA No. 380 of 2022 Upon his death, plaintiff and defendants inherited same, but, taking advantage of fact that plaintiff was a government employee on transferable job and not residing at village, defendants no.1 to 3 illegally got their names entered in record of rights as per partition. It was stated that there was no partition effected insofar as suit schedule properties and hence, plaintiff was entitled for 1/4th share in same.
4. Despite service of suit summons, defendant no.2 failed to enter appearance. He was placed ex-parte. Defendants no.1 and 3 filed separate written statements. While defendant no.1 admitted plaint averments and supported plaintiff's case, whereas defendant no.3 opposed suit by denying plaint averments, but relationship with plaintiff was admitted. Even item no.4 as being joint family property was admitted, defendant no.3 claimed item nos.2 and 3 are suit properties as being granted under provisions of Karnataka Village Offices Abolition Act, 1961, ( hereinafter referred to as 'KVOA Act' for short)as per orders of tahsildar, N.R.pura. Khata was also mutated in his name and therefore, he was absolute owner. Alleging collusion between plaintiff and defendant no.1, he -4- RSA No. 380 of 2022 sought for dismissal of suit insofar as items no.2 and 3 of suit schedule properties.
5. Based on pleadings, trial Court framed following issues:
1. "Whether plaintiff proves that suit schedule property item No.1 to 3 are joint family properties of himself and defendants?
2. Whether the plaintiff proves that he got share in the suit schedule properties of item No.1 to 3?
3. Whether the plaintiff is entitled for the relief claimed?
4. What order or decree?"
Additional Issue
1. Whether the defendant No.3 proves that items 1 to 3 are his self acquired property?
6. Thereafter, plaintiff examined himself and another witness as PWs. 1 and 2 and got marked Exhibits P.1 to P.32. Defendant no.1 examined himself as DW.1 and got marked Exhibits D.1 to D9.
7. On consideration, trial Court answered issues no.1 to 3 in affirmative, addl. Issue no.1 in negative and issue no.4 by decreeing suit holding plaintiff and each of defendants entitled -5- RSA No. 380 of 2022 for 1/4th share each in items no.1 to 4 of suit schedule properties.
8. Aggrieved by same, defendant no.3 filed R.A.No.5/2020 on several grounds. It was contended that impugned judgment and decree was opposed to law and facts passed without proper appreciation. It was specifically contended that trial Court erred in concluding that all suit schedule properties are liable for partition. It erred in ignoring fact that defendant no.3 had exclusively filed application for re- grant of items no.2 and 3 and that there was re-grant in his individual name. It also erred in not properly appreciating fact that talavarike work was carried out only by defendant no.3.
9. Based on contentions first appellate Court framed following points for consideration:
1. "Whether the trial court has committed an error in holding that, the suit schedule properties are ancestral joint family properties of plaintiff and defendants and the plaintiff is entitled for 1/4th share in the suit schedule property ?
2. Whether the judgment and decree of the trial court required interference?
3. What order?"-6- RSA No. 380 of 2022
10. However, without proper appreciation, first appellate Court answered points no.1 and 2 in negative and point no.3 by dismissing appeal.
11. Against concurrent findings, defendant no.3 is in appeal.
12. Sri Shravan Madhav K.P., learned counsel for defendant no.3 submitted that impugned judgment and decree passed by both Courts were erroneous, and contrary to law calling for interference. It was submitted that both Courts erred in concluding that all suit schedule properties were liable for partition. It was submitted that by leading documentary evidence, defendant no.3 had established that items no.2 and 3 of suit schedule properties were his individual properties, as they were granted in his individual name.
13. It was also contended that admittedly, plaintiff was in government service and not carrying out talavarike work. Therefore, could not claim re-granted Inam lands as joint family property.
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14. In the light of above submissions, learned counsel proposed following substantial questions of law for consideration:
i) Whether both Courts erred in not properly appreciating Sections 4, 6 and 7 of Inams Abolition Act while concluding that suit schedule properties were liable for partition?
ii) Whether both Courts erred in not properly appreciating documentary evidence led by defendant No.3 which established that items no.2 and 3 were granted to him exclusively and thus his self-acquired properties?
15. Sri B.H. Shamanna and Sri A.S. Girish, learned counsel for caveator/plaintiff supported impugned judgments and decree and opposed appeal. It was submitted that both Courts on appreciation of evidence had arrived at finding of fact that all suit schedule properties were joint family properties. On said finding suit was decreed. As same was on proper appreciation of evidence on record and applicable law, none of substantial questions of law proposed, arose for consideration and sought for dismissal of appeal.
16. Heard learned counsel, perused impugned judgment and decree and record.
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17. From above submission, relationship between parties is not in dispute. It is also not in dispute that their father Phakirappa was holder of village office namely talavarike. After his death, defendant no.3 was appointed to said office. Only ground on which defendant no.3 opposed suit claim for partition was that items no.2 and 3 were granted to him in his individual name under provisions of KVOA Act.
18. Insofar as claim for partition in service Inam lands, Hon'ble Supreme Court in following decisions held as follows:
i. Nagesh Bishto Desai Vs. Khando Tirmal Desai reported in AIR 1982 SC 887, wherein it was held that mere fact that an estate is impartible does not make it separate and exclusive property of holder, after re-grant it becomes estate of family and partible among all members of joint family.
ii. Anant Kibe & others Vs. Purushottam Rao and others reported in AIR 1984 SC 1121, wherein it is held that being ancestral impartible estate devolving by rule of primogeniture, constitutes joint family property and after re-grant such inam lands become partible.
iii. Kalagonda Babgonda Patil Vs. Balgonda Kalgonda Patil and others reported in AIR 1989 SC 1042, wherein it is held that after abolition of inams, property enures for benefit of Joint Family and its members are entitled to claim partition and possession, since such watan lands were not partitioned earlier and -9- RSA No. 380 of 2022 continued to be joint family estate due to embargo attached to such inam lands and as they were not partible.
iv. Shivappa Tammanna Karaban Vs. Parasappa Hanammappa Kuraban and others reported in 1994 AIR SCW 5031, wherein it is held that watan property attached to office of sanadi continues to be Joint family property for benefit of H.U.F. and Watandar has no exclusive right to property. Such property is partible subject to conditions under Sec. 5(3) of K.V.O. Abolition Act, 1961.
19. Even this Court in following decisions has held as under:
1. Shivappa Fakirappa Shetsanadi Vs. Kannappa Mallappa Shetsanadi reported in ILR 1987 Kar. 3155, and Beerappa Vs. Fakirappa Beerappa Bandrolli and others reported in ILR 2006 KAR. 4170, and unreported decision in the case of Meerasab Imamsab Sanadi Vs. Smt. Hanifbi Appalal Sanadi & others in R.S.A.No.862/1984, wherein it is held that junior members of family are also 'holders of village office" and after abolition of village office, resumption and re-grant under Section 5, land becomes available for partition and junior members entitled to seek partition as per their personal law.
2. B.L. Sreedhar and others Vs. K.M. Munireddy reported in AIR 2003 S.C.578, wherein it is held that where an office is attached to joint family, any person holding that office will be holding the same on his behalf and also on behalf of other members of joint family and an interest in office means and includes right to survivorship of members of joint family."
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RSA No. 380 of 2022
20. In view of above settled legal position Inam lands become partible after re-grant. Both Courts have held that all family members were performing talavarike work. Therefore, there is no gain say in defendant no.3 claiming items no.2 and 3 to be his self-acquired properties. Re-granted lands would be joint family properties and be available for partition from date of re-grant. Therefore, concurrent conclusions arrived at by both Courts about above legal position is fully justified. Hence, no substantial questions of law arise for consideration.
For the foregoing reasons, appeal is dismissed. In view of dismissal of main appeal, I.A.No.1/2022 do not survive for consideration.
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JUDGE Psg*