Karnataka High Court
Sri Babu Kallappa Maishale vs Smt Janavva W/O Shivaling Mang on 25 October, 2013
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 25th DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
R.S.A.No.5291 OF 2009 (Par.).
BETWEEN :
SRI BABU KALLAPPA MAISHALE
SINCE DECEASED BY HIS LRS
1. SMT. LAKKAWWA W/O BABU MAISHALE
AGE 83 yrs., OCC: HOUSEHOLD AND
AGRICULTURE
R/O JODATTI, TQ RAIBAG DIST. BELGAUM
2. VASANT S/O BABU MAINSHALE
Age:51 YRS.,
OCC.AGRICULTURE
R/O JODATTI, TQ. RAIBAG
DIST. BELGAUM
3. MARUTI S/O, BABU MAISHALE
Age:48 YRS.,
OCC.AGRICULTURE
R/O JODATTI, TQ. RAIBAG
DIST. BELGAUM
4. DILIP S/O BABU MAISHALE
Age:44 YRS.,
OCC.AGRICULTURE
R/O JODATTI, TQ. RAIBAG
2
DIST. BELGAUM
5. ASHOK S/O. BABU MAISHALE
Age:41 YRS.,
OCC.AGRICULTURE
R/O JODATTI, TQ. RAIBAG
DIST. BELGAUM
6. SMT. GOURAVVA W/O BABU MAISHALE
Age:76 YRS.,
OCC. HOUSEHOLD
R/O GOKUL NAGAR, SANGALI
MAHARASHTRA.
7. SHIVAJI S/O BABU MAISHALE
Age:52 YRS.,
OCC. BUSINESS
R/O GOKUL NAGAR, SANGALI
MAHARASHTRA.
8. RAJU S/O BABU MAISHALE
Age:49 YRS.,
OCC. NIL
R/O GOKUL NAGAR, SANGALI
MAHARASHTRA.
9. SMT. USHATAI W/O PARASHURAM MAISHALE
Age: 38 YRS.,
OCC:HOUSE HOLD WORK R/O JODATTI
TQ.RAIBAG, DIST. BELGAUM
10. KUM. VENKATESH S/O. PARASHURAM MAISHALE
Age:9 YRS.,
SINCE MINOR REP BY M/G APPELLANT NO.9.
R/O JODATTI, TQ. RAIBAG, DIST BELGAUM
3
11. KUM BASAVARAJ S/O PARASHURAM MAISHALE
Age:10 YRS.,
SINCE MINOR REP BY M/G APPELLANT NO.9.
R/O JODATTI, TQ. RAIBAG, DIST BELGAUM
12. BHAJARANG S/O. BABU MAISHALE
SINCE DECEASED BY L.R.
SMT. DRAKSHAYANI, W/O. BHAJARANG MAISHALE,
Age:40 YRS.,
R/O JODATTI,
TQ. R AIBAG, DIST. BELGAUM
13. SMT. GANGAWWA D/O. BABU MAISHALE
Age:56 YRS.,
OCC:HOUSEHOLD WORK, R/O GOKUL NAGAR,
SANGALI, MAHARASHTRA.
... APPELLANTS
(By Sri. : RAMACHANDRA MALI.)
AND
1. SMT JANAVVA W/O SHIVALING MANG
Age: 86 YRS.,
OCC:NIL, R/O JODATTI, TQ. RAIBAG, DIST.
BELGAUM, PIN - 591217
... RESPONDENT
(SERVICE HELD SUFFICIENT.)
RSA FILED U/S. 100 CPC., AGAINST THE
JUDGEMENT & DECREE DTD:10-02-2009 PASSED IN
4
R.A.NO.55/2008 ON THE FILE OF THE CIVIL
JUDGE(SR.DN) RAIBAG, DISMISSING THE APPEAL,
FILED AGAINST THE JUDGMENT DTD:20-03-2001 AND
THE DECREE PASSED IN O.S.NO.203/1992 ON THE
FILE OF THE ADDL. CIVIL JUDGE(JR.DN) RAIBAG,
DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
This second appeal is by the defendant in the suit challenging the concurrent judgments and decrees passed by the Courts below in decreeing the suit of the plaintiffs holding that he is entitled for partition and separate possession to the extent of 8 acres of land in R.S.No.55 of Jodatti village of Raibag taluk as per Sec. 54 of CPC.
2. The simple case of the plaintiff is that, 9 acres 12 guntas of agricultural land in R.S.No.55 and another land in R.S.No.56 of Jodatti village are `Devasthana' lands of `Sri.Basaveshwar Dev' of Jodatti. Her husband Shivaling Mang was cultivating 9 acres 12 guntas of land in 5 R.S.No.55 of Jodatti village as tenant. The plaintiff even after the death of her husband, has continued to cultivate the said land as tenant and defendant being her relative was helping her in cultivating the land and defendant taking advantage of the said fact has got his name entered in the revenue records and made an application to the Land Tribunal for grant of occupancy right in his favour. However, the Land Tribunal after holding an enquiry by order dt.19-10-81 granted occupancy right in respect of 8 in R.S.No.55 acres in favour of the plaintiff and remaining extent in favour of the defendant. The defendant being dissatisfied with the said order of the Land Tribunal challenged the same by preferring a writ petition before this Court. In view of amendment to the Land Reforms Act and constitution of Land Reforms Appellate Authority, the said writ petition came to be transferred to the Appellate Authority. Ultimately the said appeal came to be dismissed by the Appellate Authority on 2-3-87. Consequently order passed by the Land Tribunal vide 6 Ex.P.4 dt. 19-10-81 granting occupancy right in respect of 8 acres in R.S.No.55 in favour of the plaintiff and remaining extent in favour of the defendant became final. An entry obtained by the defendant in his name in the revenue records in place of the plaintiff continued despite the order of the Land Tribunal granting occupancy right. Taking advantage of the same, the defendant is trying to cut and remove trees standing in the suit land illegally. Therefore, plaintiff was constrained to file the present suit for partition and separate possession and division of land granted in her favour.
3. The suit was resisted by the defendant by filing written statement. During the pendency of the suit, the defendant died. His wife and children are brought on record as defendants 1A. to 1G. Defendant 1G. has filed written statement and it has been adopted by other defendants. The defendants in the written statement have denied the case of the plaintiff and contended that the 7 deceased - first defendant was cultivating the suit land as tenant till his death and during his life time he filed Form No.1 before the Land Tribunal, Raibag seeking to grant occupancy right of the suit land in his favour. The Tribunal granted occupancy right in his favour. Plaintiffs's husband Shivaling Mang without the knowledge of the deceased defendant has filed application for deletion of his name and adding his name by way of amendment and on the application filed by him, the Land Tribunal, Raibag, without considering the application on merits has made an observation that 8 acres of land has been jointly granted in favour of the plaintiff. Deceased first defendant challenged the said order before this Court in W.P.No.20222/1992 and the order of the Land Tribunal was stayed. They denied plaintiff has been cultivating the land along with the first defendant. Deceased first defendant challenged the order passed by the Appellate Authority in dismissing his appeal by filing Misc. Application before the Appellate Authority and the said 8 application has been allowed by the Appellate Authority on 30-9-90 and the appeal was renumbered as Misc.Application 39/90 and now the matter is pending before the High Court after abolition of the Land Reforms Appellate Authority. With this and other contentions the defendants prayed for dismissal of the suit.
4. The trial Court on the basis of the pleadings of the parties has framed the following issues :
1. Whether the plaintiff proves that in land R.S.No.55 of Jodatti village she has got 8 acres and same is granted by the land Tribunal ?
2. Whether plaintiff further proves that she is in joint possession along with defendant in land R.S.No.55 of Jodatti ?
3. Whether defendant proves that with regard to suit property W.P. is pending before the Hon'ble High Court of Karnataka?
4. What order or decree ?
5. Plaintiff in support of her case has examined her Power of Attorney Holder by name Laxman Shivaling Mang 9 as P.W.1 and has produced power of attorney issued in favour of said Laxman Shivaling Mang, ROR of the suit survey number and copy of the Land Tribunal at Exs. P.1 to P.4. Whereas defendants in support of their case have examined defendant 1G. as D.W.1 and a witness by name Basappa Dundappa Patil as D.W.2 and documents produced by them were marked as Exs.D.1 to D.9.
6. The Ex.P.4 - order passed by the Land Tribunal clearly discloses that the occupancy right in respect of suit Sy.No. R.S.55 measuring 8 acres was granted in favour of the plaintiff and remaining extent was granted in favour of deceased first defendant. The defendants in support of their contention that after dismissal of the appeal by the Land Reforms Appellate Authority, the original defendant filed an application before the Appellate Authority which was allowed and appeal was renumbered and therefore the matter was brought before this Court and it is pending in this Court have not produced any documents. 10
7. The trial Court considering the above material aspect of the matter has rightly decreed the suit of the plaintiff holding that the plaintiff is entitled for partition and separate possession to the extent of 8 acres of land in R.S.No.55 of Jodatti village through the Tahsildar, Raibag as per Sec. 54 of CPC.
8. Aggrieved by the said judgment and decree of the trial Court, defendants had filed R.A. No.55/2008 before the lower appellate Court. The lower appellate Court on reappreciation of the entire oral and documentary evidence on record, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Even at this stage, defendants have not produced any documents to show that order passed by the Land Tribunal vide Ex.P.4 dt. 19-10-81 granting occupancy right in respect of 8 acres in suit Sy.No. R.S. 55 of Jodatti village in favour of the plaintiff and remaining extent in 11 favour of the defendant was challenged by the defendant by preferring an appeal before the Land Reforms Appellate Authority and after dismissal of the said appeal, Misc.
application was filed which was allowed and appeal was renumbered and thereafter matter is pending before this Court.
9. It is not the case of the defendant that the plaintiff was not granted occupancy right by the Land Tribunal in respect of 8 acres of land in R.S.No.55 of Jodatti village, on the other hand it is their case that plaintiff was not cultivating any portion of land in suit Sy.No. R.S. 55 of Jodatti village and it was deceased Babu Kallappa Maishale alone was cultivating and therefore aggrieved by the Land Tribunal granting occupancy right in respect of 8 acres of land in the suit survey number in favour of the plaintiff and remaining extent in favour of the defendant, they preferred an appeal before the Land Reforms Appellate Authority and after dismissal of the said appeal, 12 a miscellaneous application was filed for recalling that order and it was allowed and appeal was renumbered and thereafter matter was brought before this Court and matter is pending here, and have not substantiated the said contention by producing documents. If that is so, I do not find any illegality or irregularity in the said judgments of the Courts below warranting my interference and I do not find any substantial question of law which arises for my consideration in this second appeal.
10. Accordingly, this appeal is dismissed as devoid of merits.
SD/-
JUDGE mgn/-