Karnataka High Court
Veerabhadrappam Totappa Bilebal ... vs Virupaxappa Totappa Bilebal And ... on 2 March, 1998
Equivalent citations: AIR1998KANT346, ILR1998KAR2508, 1998(4)KARLJ502, AIR 1998 KARNATAKA 346, (1998) ILR (KANT) 2508 (1998) 4 KANT LJ 502, (1998) 4 KANT LJ 502
JUDGMENT
1. The L.Rs of the defendant are the appellants. The suit for partition and injunction in respect of six items of the property, claiming half share thereof, was dismissed by the Trial Court, but came to be decreed by the Appellate Court on appeal by the plaintiff. Hence, the defendant is before this Court questioning the decree of the First Appellate Court.
2. The case of the plaintiff was that the plaintiff and defendant are full brothers; originally plaintiff had three properties. There was a partition among them in 1950 and they began to live separately. But plaintiff being youngest and without any experience, as the mother was alive, continued to live with the defendant and the mother of the defendant was managing the property. While so in 1967, when the mother died, the defendant began to deny the right of the plaintiff, hence the suit came to be filed for partition.
3. The defendant contended, while admitting the relationship and also the fact that there was a partition among brothers of the plaintiff and the defendant, denied that the plaintiff began to live with the defendant. It is incorrect to say that the lands of the plaintiff as well as those of the defendant given to the mother for her maintenance during the life time were alt being cultivated jointly with the some agricultural establishment; that the defendant was in possession and the father reposed full confidence in him. Reiterating the earlier partition of 1951 and not 1950, the defendant contended further that the suit lands had been taken on lease on 6-8-1953 in his individual capacity and his name alone appears as tenant for the suit lands; the suit lands have never been taken jointly by the defendant and the plaintiff and the same have never been in joint possession; therefore the question of partition does not arise. The jurisdiction of the Civil Court is ousted to declare or to hand over possession in respect of the tenanted land in possession of the defendant. Therefore, this Court has no jurisdiction to try the suit.
4. On this pleading, the Trial Court held that the plaintiff is not entitled to half share of the tenancy rights as the plaintiff has failed to prove that he and defendant are the joint tenants. Consequently, the suit came to be dismissed. The Appellate Court, however, holding that the Civil Court has jurisdiction to try the case, found that the Trial Court on oral and documentary evidence has come to the conclusion that the plaintiff was living with the defendant along with the mother even after the partition till the death of the mother in the year 1967; Ex. P-1 has been relied upon to show that the defendant has clearly deposed that "himself and the plaintiff were living together" and the Trial Court has also relied upon the evidence of P. W. 3 another brother of the plaintiff and the defendant who has also deposed in clear terms that the plaintiff, defendant and the mother were living altogether even after the partition; these findings goes to show that the plaintiff continued to live with the defendant though there was a partition between them and the third brother. Believing the witnesses of the plaintiff and the documents filed by the plaintiff, both at the time of trial and even after the remand, the Appellate Court came to the conclusion that the suit lands are joint tenancy lands between the plaintiff and the defendant and they are not exclusively tenancy lands of the defendant and consequently they are entitled to partition of the same.
5. The question of law raised is regarding the Civil Court's jurisdiction to decide the question as to whether the leasehold right is that of a joint family or individual right of that of one of the members of the joint family?
6. This Court has already taken the view that once the tenancy is granted even to one member of the family, it is for the benefit of the family. In this case, admittedly, it is the joint tenancy. The Tribunal has declared that it is a joint tenancy or in the eye of law it is a joint tenancy, even if it is given to one of the members. In my opinion, it is only an acquisition of the property by two members of the joint family, and certainly the Civil Court has jurisdiction to decide the same. This is the view expressed by me in Rudrayya v Basayya and Others.
7. A Full Bench of this Court in Booda Poojary v Smt. Thoma Poo-jarthy and Others, has also held as follows:
"Once the occupancy rights are granted, the leasehold rights stand converted into free hold rights without damaging the rights of the occupant's family or any member thereof. It is always open to the member or members of the family to claim their share or right in Civil Court over the lands on which occupancy rights are granted by establishing their right or interest in the property".
A Division Bench of this Court in an unreported decision in R.F.A. 189 of 1996, dated 9-8-1996, has ruled the following proposition:
"That question has already been decided by the Land Tribunal while it issued an occupancy certificate. When an occupancy certificate is already issued, no question of tenancy arises thereafter and the only question is as to whether the right granted by the Land Tribunal would ensure to the benefit of the first defendant alone or to all the legal heirs. That certainly is a matter which can be decided by the Trial Court and its jurisdiction is not ousted especially when an order has already been passed by the Land Tribunal".
8. Following the aforesaid decisions, I hold that there is no merit in the second appeal and the second appeal is dismissed and the judgment and decree of the First Appellate Court is confirmed.