Karnataka High Court
Hafijabi W/O Mahaboobjansab Bannur vs Meharumbi W/O Abdulrahimansab Bannur on 23 August, 2012
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 23RD DAY OF AUGUST 2012
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
R.S.A. No.5440/2009
BETWEEN:
1. Hafijabi,
w/o Mahaboobjansab Bannur,
age: 63 years, Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
2. Usmanghani Mahaboobjansab Bannur,
Age: 49 years, Occ: Mechanic.
r/o Gadag, Dist: Gadag-582 101.
3. Iqbal, S/o Mehaboobjansab Bannur,
Age: 38 years,Occ: Mechanic.
r/o Gadag, Dist: Gadag-582 101.
4. Shakilbanu W/o Shoutati Kalasapur,
Age: 46 years, Occ:Household work.
r/o Gadag, Dist: Gadag-582 101.
5. Zaheeda W/o Abdulkhandar Sayyad,
Age: 43 years. Occ:Household work.
r/o Gadag, Dist: Gadag-582 101.
6. Waheeda W/o Khadarsab Basari.
Age: 40 years, Occ: Household work.
R/o Hubli, Dist: Dharwad-580 001.
7. Fatima D/o Mahaboobjansab Bannur,
Age: 37 years, Occ:Household work.
2
r/o Gadag, Dist: Gadag-582 101.
8. Basira D/o Mahaboobjansab Bannur,
Age: 35 years, Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
9. Pachchasab S/o Ghanasayyedsab Bannur,
Since deceased by his LRs:
9(a). Munirabi @ Dadibi
w/o Pachchasab Bannur,
age: 69 years. Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
9(b). Sulemansab S/o Pachchasab Bannur,
Age: 41 years, Occ: KSRTC Bus Driver.
r/o Gadag, Dist: Gadag-582 101.
9(c) Mahammadyusuf,
s/o Pachchasab Bannur,
age: 47 years, Occ: Private Driver.
r/o Gadag, Dist: Gadag-582 101.
9(d) Mahammad Rafiq,
S/o Pachchasab Bannur,
Age: 47 years, Occ: Pvt.Service.
R/o Gadag, Dist: Gadag-582 101.
9(e) Jakir S/o Pachchasab Bannur,
Age: 42 years, Occ: Auto Driver.
r/o Gadag, Dist: Gadag-582 101.
9(f) Pachchabi W/o Gulabsab Dekhjani,
Age: 29 years, Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
10. Abdulsamadsab,
S/o Ghanasayyadsab Bannur,
Since deceased by his LRs:
3
10(a) Smt Meharunbi W/o Abdulsamadsab Bannur.
Age: 69 years, Occ:Household work.
r/o Gadag, Dist: Gadag-582 101.
10(b) Mahammad Jaffar,
s/o Abdulsamadsab Bannur,
Age: 48 years, Occ: Private Service,
r/o Gadag, Dist: Gadag-582 101.
10(c) Khaleel, S/o Abdulsamadsab Bannur,
Age: 48 years. Occ: Business.
r/o Gadag, Dist: Gadag-582 101.
10(d) Irfan S/o Abdulsamadsab Bannur,
Age: 69 years, Occ: Mechanic.
r/o Gadag, Dist: Gadag-582 101.
10(e) Sadique S/o Abdulsamadsab Bannur,
Age: 41 years, Occ: Mechanic.
r/o Gadag, Dist: Gadag-582 101.
10(f) Azeem S/o Abdulsamadsab Bannur,
Age: 39 years, Occ: Mechanic.
r/o Gadag, Dist: Gadag-582 101.
10(g) Hajarambi W/o Ibrahmsab Bannur,
Age: 52 years, Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
10(h) Shamshadbegum w/o Babusab Jagirdar,
Age: 43 years, Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
11. Gulamhussensab, s/o Ghanasayyadsab Bannur,
age: 55 years, Occ: KSRTC Bus Driver.
r/o Gadag, Dist: Gadag-582 101.
12. Noorjanbi @ Noorbi.
w/o Abdulgafarsab Khaji,
4
Age: 72 years, Occ:Household work.
r/o Gadag, Dist: Gadag-582 101.
13. Rabiyabi W/o Pachchasab @ Bashasab Mulla.
Age: 62 years, Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
14. Mahaboobi W/o Bashasab Hosaritti,
Age: 70 years, Occ:Household work.
r/o Gadag, Dist: Gadag-582 101.
15. Fatimabi W/o Rafiqsab Sayyad,
Age: 66 years, Occ:Household work.
R/o Dharwad,
Dist: Dharwad-580 001. ... APPELLANTS
(By Sri Chandrashekar Patil, Adv.)
AND:
1. Meharumbi W/o Abdulrahimansab Bannur,
Age: 53 years, Occ: Household work.
r/o Gadag, Dist: Gadag-582 101.
2. Noorjahanbi W/o Ahamadsab Bannur,
Age: 61 years, Occ:Household work.
r/o Gadag, Dist: Gadag-582 101.
3. Salimbi W/o Hayatkhan Pulli,
Age: 61 years, Occ:Household work.
R/o Laxmeshwar,
Tq: Shirahatti-582 116.
4. Abdulkarim S/o Ahammadsab Bannur,
Age: 43 years, Occ: Business.
r/o Gadag, Dist: Gadag-582 101... RESPONDENTS
(By Sri V. G. Bhat, Adv. for R.1, R.3 and R.4,
R-2 served)
5
This RSA is filed under Section 100 of CPC, praying
to set-aside the Judgment and Decree passed by the
learned District and Sessions Judge, Gadag, dated
18.6.2009 in R.A.No.41/2006, confirming the Judgment
and Decree passed by the learned Civil Judge (Sr.Dn.),
Gadag, in O.S.No.24/1998 dated 31.8.2006 and dismiss
the suit of the plaintiff, and etc.
The appeal coming on for Orders, this day, the Court
delivered the following:
JUDGMENT
The defendants in O.S.24/1998 have filed this appeal assailing the judgment and decree passed in R.A.No.41/2006, dated 18.6.2009, by the District and Sessions Judge Gadag, affirming the judgment and decree passed by the learned Addl. Civil Judge (Sr.Dn), Gadag, in O.S.No.24/1998, dated 31.8.2006.
For the sake of convenience, the parties shall be referred to in terms of their status before the Trial Court.
2. It is the case of the respondents-plaintiffs, that one Pachchabi had purchased suit 1(A) property which was a single strip of land on 5.3.1931 and suit 1(B) house property was purchased on 16.2.1918. Pachchabi died in the year 1966 leaving behind two sons, namely, 6 Ghansayyedsab and Abdul karimsab. Both are entitled to an equal share in the suit properties. Ghansayyedsab died on 24.4.1988 leaving behind his sons, Mahaboobjansab and defendant Nos. 9 to 11 and daughters defendant Nos.12 to 15 as his heirs. Mahaboobjansab died leaving behind his widow defendant-1, sons defendant Nos.2 and 3 and daughters defendant Nos.4 to 8.
3. That Abdulkarim sab died shortly after the death of Pachchabi leaving behind him two sons Abdulrahemansab, Ahamedsab, his two wives Rahamatbi and Marimbi and a daughter defendant No.3. Abdulrahamansab died issueless leaving behind his widow Meharumbi-plaintiff No.1. Ahmedsab died leaving behind his widow plaintiff No.2 and a son plaintiff No.4. The suit land is Devasthan Inam land of Sri Veeranarayana Deva and it is an inam land. That late Pachchabi was a tenant from 5.7.1958 to 1964 to 1965. On her death in the year 1966, her elder son Ghanasayyed sab filed an application before the Taluk Land Tribunal on 25.1.1977, as the legal 7 heir and successor to Pachchabi on behalf of the family. That Ghanasayyed sab admitted before the Land Tribunal that there was no partition in the family of Ghanasayyedsab and Abdulkarim sab. That the parents being Mohammadans, succession opens after the death of the propositus. That Ghanasayyedsab being the elder brother, filed an application before the Land Tribunal on behalf of the family. That his younger brother Abdulkarimsab died soon after his mother Pachchabi died. That the two wives of Abdulkarimsab were Pardanasin ladies. That the first son of Rehamatbi was Abdul Rehamansab and the second son, Ahmedsab also died leaving behind a daughter. Plaintiff No.3 was born to Marimbi. Under the circumstances, Ghanasayyedsab was managing the affairs of the family, which remained joint but were residing separately for the sake of food and convenience. That the suit 1(B) is house property and suit 1(A) are the landed properties.
8
4. Taking advantage of the innocence of the family members of the Abdulkarimsab, the defendants and their predecessors in collusion with one another managed the suit properties to the detriment of the plaintiffs. That in the first week of February 1988, they were shocked to note that the record of rights were standing in the names of family members of Ghanasayyedsab. Therefore, they sought half share in the suit properties, but the defendants gave an evasive reply. Therefore, the plaintiffs filed the suit seeking partition and separate possession of their half share in the suit properties.
5. On service of suit summons, the defendants appeared and filed their written statement admitting the genealogy and the relationship of the parties. They also admitted that the land belonged to Sri Veeranarayana Temple, but contended that Ghanasayyedsab was cultivating the land as a tenant. Neither his brother Abdulkarim nor their mother had any interest in the land nor were they cultivating it in any manner, either jointly or 9 exclusively. After the coming into force of the Karnataka Land Reforms (Amendment) Act, 1974, the whole land vested with the State Government free from all rights. Ghanasayyedsab applied to the Land Tribunal for grant of occupancy rights. The Tribunal on enquiry, passed the order granting occupancy rights in his name. That Ghanasayyedsab is the absolute owner of the entire land. Even his wife and children had no interest in the land during his lifetime. Abdulkarimsab was not the tenant of that land either jointly or in any other capacity. Therefore, he or his heirs were not entitled for grant of occupancy rights.
6. After the death of Ghanasayyedsab, the suit land was partitioned among the male members of his heirs. His female members had relinquished their share in the land. After partition, defendants are independently enjoying their lands. Plaintiffs have no share or interest in the lands. That the suit house is inherited by Ghanasayyedsab and his brother Abdulkarimsab. That 10 during their lifetime, it was partitioned by metes and bounds. After the death of Ghanasayyedsab and his brother Abdulkarimsab, plaintiffs are residing in the portion of the suit property. That there is no cause of action for the plaintiffs to file the suit. That, when Form No.7 was filed by Ghanasayyedsab the grant of occupancy rights was on the basis of his self-cultivation and not joint cultivation. Therefore, the plaintiffs have no right, title and interest in the suit lands and hence they sought for dismissal of the suit.
7. On the basis of the rival pleadings, the Trial Court framed the following issues and additional issues:
1. Whether plaintiffs prove that the suit properties are the joint properties of the plaintiffs and the defendants having inherited them from their ancestor Pachchabi?
2. Whether the defendants prove that the suit land was a tenanted land whose occupancy has been granted by the Land Tribunal, Gadag, under its No.KLR SR 89, and that they are its absolute owners?
3. Whether they further prove that they have paid the occupancy price of the suit land by obtaining loan from the PLD Bank?11
4. Whether the defendants prove that there was a partition in the suit house long back between the parties, and as such, plaintiffs have no right to claim further partition?
5. Whether the plaintiffs are entitled to claim any reliefs?
6. What order or decree?
Additional Issues:
1. Whether the suit property granted in favour of the Ghanasayyedsab is in his individual capacity or to the joint family?
2. Whether the plantiff proves that occupancy rights granted to the family of Ghanasayyedsab also is available for partition?
3. Whether this court has jurisdiction to effect partition in view of the order of the Land Tribunal?
8. In support of their case, plaintiffs examined two witnesses as PW.1 and PW.2 and produced eighteen documents which were marked as Ex.P.1 to Ex.P.18, while the defendants did not let in any evidence.
9. On the basis of the evidence on record, the Trial Court decreed the suit of the plaintiffs by holding 12 that, the plaintiffs are entitled to half-share in the suit property by metes and bounds.
10. Being aggrieved by the said Judgment and Decree, the defendants preferred R.A.No.41/2006 before the District and Sessions Judge at Gadag. The I Appellate Court after hearing both sides, framed the following points for its consideration:
1. Whether the findings rendered by the court below in decreeing the suit could be said to be not judicious, unsustainable, arbitrary, perverse and capricious?
2. What order?
It answered point No.1 in the negative and dismissed the appeal.
11. Being aggrieved by the concurrent findings of the judgment and decrees of the courts below, the defendants have preferred this Second Appeal. 13
12. I have heard the learned Counsel for the appellants and the learned Counsel for the respondent Nos.1, 3 and 4 and perused the material on record.
13. It is contended on behalf of the appellants, that grant of occupancy rights was made in the name of Ghanasayyedsab. The said grant has been made in his name in his individual capacity. No other person of the family is entitled to the benefit of the grant of occupancy rights. That the parties in this appeal are Mohammedans and are bound by Mohammedan Law of succession. There is no concept of a joint family as envisaged under the Hindu Law as far as Mohammedans are concerned. Therefore, it is only Ghanasayyedsab who was entitled to the enjoyment and possession of the suit lands. As far as the house property is concerned, it has been divided between the parties and that the plaintiffs are entitled to half share in the said item. But in so far as the suit lands are concerned, it fall within the scope of the order grant of occupancy rights by the Land Tribunal, it is only 14 Ghanasayyedsab who was entitled to the suit lands and thereafter his heirs. That the trial Court as well as the I Appellate Court have lost sight of this aspect of the matter and has treated the order of occupancy rights which has been in the name of Ghanasayyedsab, as enuring to the benefit of the entire family and has accordingly partitioned the suit lands giving half share to the plaintiffs, which is incorrect. It is also contended that as to whether the parties are entitled to a share in the lands which are granted by the Land Tribunal, it is only the Land Tribunal which has the exclusive jurisdiction to decide the proprietary or possessory rights over a particular piece of land and that the Trial Court could not have entered into adjudication of the said issue. In support of this contention, reliance is placed on a decision of the Apex Court in (2009) 1 SCC 626, Ishwaragouda v.
Mallikarjun Gowda. Therefore, it is contended that substantial questions of law arise in this appeal calling for intervention of this Court.
15
14. Per contra, learned Counsel for respondents-1, 3 and 4 has stated that the relationship between the parties is not in dispute. It is also not in dispute that the Pachchabi died in the year 1966 leaving behind two sons. The application for grant of occupancy rights was made by Ghanasayyedsab as a tenant not in his own right but as an inheritor of the tenancy rights, as the original tenant was Pachchabi and that on her death in the year 1966 both her sons, viz., Ghanasayyedsab and Abdulkarimsab were entitled to succeed to the tenancy. This is in terms of Section 24 of the Karnataka Land Reforms Act. The lands stood vested with the State Government on the enforcement of the Karnataka Land Reforms (Amendment) Act, 1974. Thereafter, Ghanasayyedsab made an application for grant of occupancy rights. The fact that only he made the application, would not imply that it was in his individual capacity. He made it for and on behalf of the entire family. That Abdulkrimsab died soon after the death of his mother, Pachchabi. Therefore, the order of the Land Tribunal granting occupancy rights in name of 16 Ghanasayyedsab as heir to the original tenant, in which event all the family members of the original tenant have a right to the said property. In support of this submission, reliance is placed on 2003 (1) KCCR 699 and 2011(2) KCCR 1097. He therefore contend that no substantial question of law arise in this appeal which may be dismissed.
15. Having heard the learned Counsel on both sides and on perusal of the material on record, it is noted that the mother of the Ghanasayyedsab and Abdulkarimsab was Pachchabi, who was a tenant cultivating the suit lands. She died in the year 1966 leaving behind two persons as her legal heirs. In law, both of them were entitled to cultivate the lands in question which admittedly are tenanted lands. It is not in dispute that Pachchabi was cultivating the suit land and thereafter the rights to cultivate the land was inherited by both her sons. After the enforcement of the Land Reforms (Amendment) Act, 1974, an application was filed by 17 Ghanasayyedsab seeking grant of occupancy rights. At this stage, it is significant to note that, the said application was not made as a cultivator of the said land in his individual capacity but as an inheritor of the tenancy, as it is not in dispute that Pachchabi, his mother was cultivating the lands during her lifetime. Therefore, under Section 24 of the Karnataka Land Reforms (Amendment) Act, 1974, on the death of the tenant Pachchabi, the tenancy rights continued with her heirs on the same terms and conditions on which the deceased tenant was holding the tenancy during her lifetime. Since the tenancy rights were inheritable, the application made by Ghanasayyedsab was not in his individual capacity as the cultivator, but as an inheritor of the tenancy and therefore the grant of tenancy rights was also not in his individual name but would enure to the benefit of the family of the erstwhile tenant, Pachchabi. It is in this context, both the Trial Court as well as the I Appellate Court have partitioned the suit lands to an extent of one half share in the names of heirs of 18 Ghanasayyedsab and Abdulkarimsab, i.e. half share has been given to the heirs of Abdulkarimsab-plaintiffs.
16. In the decision relied upon by the learned Counsel for the appellants in (2009) 1 SCC 626, with regard to the jurisdiction of the Civil Court to decide on the proprietary rights or possessory rights for a particular piece of land is concerned, the facts were that one Laxmibai was the tenant of R.S.No.40 measuring 18 acres 32 Guntas, situated at Harlapur village, in Gadag Taluk. On the death of Laxmibai, her grandsons, has inherited the suit land and it was under the cultivation of the predecessor-in-title of the appellants and the respondents therein. On the enforcement of Karnataka Land Reforms Amendment Act, 1974, father of respondents- Basanagowda, filed Form No.7 for grant of occupancy rights on the ground that he was in actual cultivation of the entire land. Father of the appellants-Parwategowda, had also simultaneously filed an application under Form No.7 claiming that the said land was being cultivated 19 jointly by the family, i.e. the family of the appellants as well as the respondents. Both the applications were registered on the file of the Land Tribunal, Gadag. The Land Tribunal passed the order holding that both the applicants were jointly cultivating the lands and were entitled to occupancy rights in the said land. The said order was assailed by the respondents before this Court by way of writ petition. The said writ petition was dismissed. The writ appeal filed was also dismissed.
The respondents therein had also filed a suit for declaration of title and possession in respect of the disputed land in O.S.No.131/2008 before the Civil Judge, Gadag. The said suit was decreed against which, the appellants had filed Regular Appeal which was allowed holding that the Civil Court had no jurisdiction to entertain the suit for declaration of title and possession which is within the exclusive jurisdiction of the Land Tribunal. The respondents filed Second Appeal before this Court. Relying on the decision of Balawwa vs. Hasanabi, this Court set 20 aside the judgment of the Appellate Court and remanded the matter to the I-Appellate Court to decide the matter in accordance with law and having regard to the observations made in the decision. Being aggrieved by the judgment of this Court, appellants therein had filed Special Leave Petition. It is in that context, the Supreme Court has held that, the Civil Court has no jurisdiction to decide as to whether the joint family or one of the members of the joint family was tenant when that question was considered finally and authoritatively on merits by the Land Tribunal.
17. The facts of the said case are quite distinct from the facts of the present case. In the instant case, there was only one Form No.7 which was filed, unlike in the case referred to above where two Form No.7 were filed and the grant of occupancy rights in the instant case is to an inheritor of the tenancy based on the fact that he had inherited the tenancy rights from his mother just as the other son of Pachchabi was also equally entitled to inherit the tenancy. Merely because there was no separate 21 Form-7 filed on behalf of Abdulkarimsab it cannot be held that the heirs of Abdulkarimsab had lost their tenancy rights and therefore, the grant of occupancy rights was in the individual name of Ghanasayyedsab. It is significant to notice that AbdulKarimsab may have joined his brother in filing Form No.7 but for his premature death. Even if he had filed a separate form No.7, it would also have been for and on behalf of the family as an inheritor of tenancy, just as the Form No.7 filed by Ghanasyyedsab.
18. In this context, it would be relevant to refer to the two decisions of this Court, wherein it has been stated that when the tenancy rights devolves it is not on only one of the heirs, but, on all the heirs who are entitled to a share in the said tenancy rights, vide 2011 (2) KCCR 1097. Similarly, in 2003(1) KCCR 699 it has been held that, where the tenancy stood in the name of the mother, one son alone cannot claim exclusive right of grant of tenancy. In fact, the Tribunal in the said case had jointly granted the occupancy rights in the names of both 22 petitioner and the first respondent therein. Therefore, the revision petition was dismissed.
19. In view of the above discussion, no substantial question of law arises in this appeal. The appeal is dismissed. No costs.
Sd/-
JUDGE Sub