Karnataka High Court
Vishnu S/O Irappa Ilager vs Smt.Buddavva W/O Yallappa Ilager on 26 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:14076
RSA No. 100608 of 2019
IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100608 OF 2019 (PAR)
BETWEEN:
1. VISHNU S/O. IRAPPA ILAGER,
AGE:77 YEARS, OCC:AGRICULTURE,
SINCE DEAD BY LRS.
1A. LAXMI VISHNU ELIGER,
AGE: 51 YEARS, OCC: HOUSEWIFE,
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-58710..
1B. BABY VISHNU ELIGER,
AGE: 46 YEARS, OCC: HOUSEWIFE,
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-578103.
MANJANNA
E 1C. SHARADA VISHNU ELIGER,
AGE: 42 YEARS, OCC: HOUSEWIFE,
Digitally signed by
MANJANNA E R/O. SECTOR NO.48, NAVANAGAR,
Location: HIGH
COURT OF
KARNATAKA
BAGALKOT-578103.
DHARWAD
1D. RAJSHEKAR VISHNU ELIGER,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-578103.
1E. PRAKASH VISHNU ELIGER,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-578103.
1F. SHANTAMMA RAJKUMAR ELIGER,
AGE: 39 YEARS, OCC: HOUSEWIFE,
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NC: 2024:KHC-D:14076
RSA No. 100608 of 2019
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-578103.
1G. PALLAVI RAJKUMAR ELIGER,
AGE: 22 YEARS, OCC: HOUSEWIFE,
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-578103.
1H. CHETAN RAJKUMAR ELIGER,
AGE: 18 YEARS, OCC: STUDENT,
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-578103.
SMT. NAGAMMA W/O FAKIRAPPA ILAGER
SINCE DIED
SMT.YAMANAVVA W/O.TIPPANNA ILAGER
SINCE DIED
2. IRESH S/O. TIPPANNA ILAGER,
AGE: 12 YEARS, OCC: NIL,
3. GYANAMMA D/O. TIPPANNA ILAGER,
AGE: 14 YEARS, OCC: NIL,
4. LAXMI D/O. TIPPANNA ILAGER,
AGE: 16 YEARS, OCC: NIL,
ALL ARE R/O. SECOT NO.48,
NAVANAGAR, BAGALKOT-578103
(APPELLANT NO.2 TO 4 ARE MINOR
REPRESENTED BY THE APPELLANT NO.1
GRANDFATHER.)
...APPELLANTS
(BY SRI VITTHAL S. TELI AND
SHRIKANT R. SATTIGERI, ADVOCATES FOR A1(A TO H)
VIDE ORDER DATED 28.02.2023
APPEAL STANDS ABATED AS AGAINST A1)
AND:
1. SMT. BUDDAVVA W/O. YALLAPPA ILAGER
AGE:83 YEARS, OCC:HOUSEWIFE,
2. SMT. KRISHNAMMA W/O. RAMANNA
AGE:78 YEARS, OCC:HOUSEWIFE
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NC: 2024:KHC-D:14076
RSA No. 100608 of 2019
3. SMT. MALLAMMA W/O. KAMBANNA ILAGER
AGE:73 YEARS, OCC:HOUSEWIFE
RESPONDENTS NO.1 TO 3 ARE
R/O. SECTOR NO.48, NAVANAGAR,
BAGALKOT-578103.
4. P. MALLIKARJUN REDDY
AGE:60 YEARS, OCC:AGRICULTURE
& BUSIENSS,
R/O: H.NO.184E/34, 3RD CROSS,
NEHRU COLONY,
GANDHI NAGAR, BELLARY-583103.
...RESPONDENTS
(BY SRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR C/R1;
SRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R2 AND R3;
R4 - NOTICE SERVED.)
THIS REGULAR SECOND APPEAL IS FILED UNDER ORDER XLII
RULE 1 READ WITH SECTION 100 OF CODE OF CIVIL PROCEDURE,
1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
28.06.2019 PASSED IN R.A.NO.34/2012 BY THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT AND THE JUDGMENT
AND DECREE DATED 07.03.2012 IN O.S.NO.298/2006 PASSED BY
THE I ADDITIONAL SENIOR CIVIL JUDGE, BAGALKOT AND ETC.,.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
1. This regular second appeal is filed by defendants No.1 to 6 challenging the judgment and decree dated 28.06.2019, passed in R.A.No.34/2012, by the II Additional District and Sessions Judge, Bagalkot (for short, 'First Appellate Court'), and the judgment and decree dated -4- NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 07.03.2012, passed in O.S.No.298/2006, by the I Additional Senior Civil Judge, Bagalkot (for short, 'the trial Court').
2. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court.
3. Plaintiffs have filed suit for partition and separate possession claiming 1/5th share each in the suit schedule properties by claiming that the suit schedule properties are joint family and ancestral properties. Irappa is the original propositus and the plaintiffs are daughters, the defendant No.1 and husband of defendant No.2 are sons. Defendants No.3 to 6 are legal heirs of Fakkirappa and defendant No.2. Defendant No.7 is the purchaser of suit properties. It is stated that the original propositus-Irappa has filed application Form No.7 before the Land Tribunal for grant of occupancy rights and during the pendency of the said application before the Land Tribunal, he died. Thereafter, defendant No.1 and husband of defendant No.2 have been impleaded in the said proceedings. The Land Tribunal granted occupancy rights in the name of defendants No.1 -5- NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 and husband of defendant No.2 enuring to benefit of joint family. Therefore, plaintiffs are contending that the suit schedule properties are joint family and ancestral properties, and hence, they are having a claim of share of 1/5th each. Hence, they filed suit for partition and separate possession by metes and bounds.
4. Defendant No.1 has filed written statement and defendants No.2 to 6 have filed memo adopting the written statements filed by defendant No.1. Defendants No.1 to 6 have taken contention that the suit schedule properties are not joint family and ancestral properties, but that properties are self acquired properties of defendants No.1 and 2. Therefore, plaintiffs are not having share in the suit schedule properties. Further submitted that grant of occupancy rights by the Land Tribunal is not for and on behalf of joint family, but it is exclusively to defendant No.1 and husband of defendant No.2.
5. Further submitted that plaintiffs are the married daughters, hence, they are not entitled to claim in the suit schedule properties as they are excluded from the family as -6- NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 per Section 2(12) of the Karnataka Land Reforms Act, 1961, (for short, 'the Act'). The suit item Nos.2 to 9 granted in the name of husband of plaintiff No.1 but properties are belonging to the defendants' family as such grant made in the name of husband of plaintiff No.1, therefore, defendants No.1 and 2 have a share in that, therefore, filed counterclaim to this effect. Therefore, pray to dismiss the suit and allow the counterclaim.
6. The trial Court based on the pleadings, has framed the following issues:
1. Whether plaintiffs prove that the genealogy pleaded in suit schedule 'A' is proper and correct?
2. Whether plaintiffs prove that suit house property is a joint family property and as such they are entitled to claim 1/5th share by metes and bounds or alternatively in the compensation amount already reveived by the defendants in LAC No.171/1999 and also enhanced compensation amount in LAC No.1375/2000?
3. Whether plaintiffs prove that land Survey No.436/B and 437/A are exclusively belongs to them as occupancy rights are exclusively granted by Land Tribunal in favour of deceased Yallappa alone?-7-
NC: 2024:KHC-D:14076 RSA No. 100608 of 2019
4. Whether plaintiffs prove that the sale of lands Sy.Nos. 314/A, 315/A, 313/A and 313/B in favour of defendant No.7 on 13.4.1988 by defendant No.1 and his deceased brother Fakirappa, is illegal and the said transaction does not bind the interest of the plaintiffs?
5. Whether defendants prove that in respect of R.S.No.247 there were proceedings held on KLR SR dated 12.11.2003 before Land Tribunal, Bagalkot and occupancy rights were granted exclusively by the Land Tribunal in respect of an area measuring 5 Ac. 14 Gs. Hence it is their self acquired property?
6. Whether defendants prove that Sy.No.436/B and 437/A of Asundi villages are ancestral properties liable for partition and unless and until these lands are not included as suit schedule properties, his suit is not maintainable?
7. Whether defendants prove that the court fee paid by the plaintiffs is not proper?
8. Whether defendants prove that suit is bad for non- joinder of necessary parties?
9. Whether plaintiffs are entitled to get partition relief?
10. Whether defendants are entitled for counter claim relief?
11. Whether plaintiffs are entitled for partition of 1/5th share each or in the compensation amount?
12. What order or decree?
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 Additional Issue
1. Whether defendant No.7 proves that he is bonafide purchaser for valuable consideration?
7. The trial Court after receiving evidence from both sides has decreed the suit there by granted 1/5th share each to the plaintiffs in the suit item No.1 of 'B' schedule properties or in the compensation amount received by the defendants in LAC No.171/1999 and also in enhanced the compensation. Further plaintiffs are granted 1/5th share each in suit item Nos.6 and 7 of 'B' schedule properties. Defendant No.1 is entitled to 1/5th share in suit item Nos.1, 6, and 7 and defendants No.2 to 6 together are entitled for 1/5th share in suit item Nos.1, 6 and 7. It is further declared that plaintiff No.1 is the exclusive owner of suit item Nos.8 and 9 of 'B' schedule properties, and consequently, dismissed the counterclaim of defendants No.1 to 6 so far as item Nos.8 and 9 of 'B' schedule properties. The trial Court assigned the reason that Irappa in his lifetime has filed an application for grant of occupancy rights. Therefore, the suit properties are joint family and ancestral properties and the Land Tribunal has not made any observations in this regard. -9-
NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 Accordingly decided the suit that the plaintiffs are entitled to 1/5th share each in the properties. Further observed and gave findings that suit item Nos.8 and 9 properties were granted exclusively to the husband of plaintiff No.1 and they are not properties belonging to the family of Irappa. Therefore, negatived the contention taken by defendants No.1 to 6 so far as suit item Nos.8 and 9 of the 'B' scheduled properties. Therefore, the trial Court has decreed the suit as above stated.
8. Being aggrieved by it, defendants No. 1, 2 and 3 have filed regular appeal before the First Appellate Court. The First Appellate Court has dismissed the appeal confirming the judgment and decree passed by the trial Court. The First Appellate Court has also endorsed the view taken by the trial Court that Irappa has filed application Form No.7 in his lifetime and therefore, suit properties are joint family and ancestral properties. Accordingly, affirmed the view taken by the trial Court. Further, upon re-appreciating the evidence on record, the findings that suit item Nos.8 and 9 properties were granted in the name of the
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 husband of plaintiff No.1 and accordingly affirmed dismissal of the counterclaim.
9. Against these concurrent findings of the fact, defendants No.1 to 6 have preferred this second appeal. This Court on 22.10.2019 while admitting the appeal, has formulated the following substantial questions of law:
1) Whether the courts below are justified in holding that the suit for partition and separate possession in respect of land properties granted under the Karnataka Land Reforms Act, 1961 is maintainable before the Civil Court as per Sections 132 and 133 of the Act?
2) Whether the courts below are justified in not considering the married daughters are not entitled to any share in properties granted by the land tribunal as per Section 2(12) R/w. Section 24 of the Karnataka Land Reforms Act, 1961?
3) Any other substantial question of law arises at the time of hearing?
10. Learned counsel for the appellants/defendants submitted that the plaintiffs being married daughters are not entitled to share in the suit schedule properties, as they are not coming within the definition of family as per the Section
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 2(12) of the Act. Further submitted that Civil Court does not have jurisdiction as per the Sections 132 and 133 of the Act to decide the plaintiffs are entitled to share in the properties as it is exclusive jurisdiction of the Land Tribunal.
11. In support of the arguments, learned counsel for the appellants/defendants places reliance on the following judgments of the Hon'ble Supreme Court:
1) Ishwaragouda and Others Vs. Mallikarjun Gowda and Other1
2) Nimbavva and Ors Vs. Channaveerayya and Ors2
3) Jayamma Vs. Maria Bai Dead by Proposed LRS And Another3
4) Mudakappa Vs. Rudrappa and Others4
12. On the other hand, learned counsel for the respondents/plaintiffs submitted that Civil Court has jurisdiction to decide the shares to be allotted in the suit schedule properties, when it is not considered by the Land Tribunal. The Civil court has not considered tenancy and the 1 (2009) 1 SCC 626 2 MANU/KA/3854/2013 3 (2004) SCC 459 4 (1994) SCC 57
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 inheritability of tenancy, but only determined shares to be allotted. Therefore, the Civil Court has jurisdiction where a suit is filed for partition. Hence, justified the judgment and decree passed by both the trial Court and the First Appellate Court.
13. Learned counsel for the respondents/plaintiffs places reliance on the following judgments of fthe Hon'ble Apex Court and this Court:
1) Kanna Timma Kanaji Madiwad (dead) Through Legal Representatives Vs. Ramachandra Timmayya Hegde5
2) Thimmappa Rai Vs. Ramanna Rai and Others 6
3) Ramesh Sangappa Ragha @ Raghannnavar and Another vs. Smt.Kushanavva @ Hemalata W/o of Somashekhar Battal and Others7
4) Sri.Chikkarangaiah S/o Late Rangaiah Since Rep by His LR And Successor in Interest Dr.Mohan Chandra Prasad and Another Vs. Sri.Gurusiddaiah S/o Late Rangaiah and Others8 5 (2021) 14 SCC 309 6 2007 AIR SCW 3271 7 RFA No.100274/2017, D.D.05.10.2020 8 2010 SCC ONLINE KAR. 3692
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019
5) Ishwaragouda and Others Vs. Mallikarjun Gowda and 9 Others ANALYSES
14. Section 2(12) of the Act defines as follows:
"Family "
(a) In the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) In the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;)
15. Section 2(17) of the Act defines as follows:
17. "Joint family" means in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the 9 (2009) SCC 626
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 members of which are by custom joint in estate or residence;
16. As per the Section 2(17) of the Act, in the case of persons governed by Hindu law, an undivided Hindu joint family means a group or unit, the members of which are by custom joint in estate or residence. Therefore, definition of Section 2(17) is larger than Section 2(12) of the Act so far as the concept of undivided Hindu joint family is concerned.
17. In the case of Sangappa Kalyanappa Bangi vs Land Tribunal, Jamkhandi10 at para 5 is held as follows:
5. This case gives rise to a difficult and doubtful question, whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, would be invalid under the provisions of Section 21 of the Land Reforms Act. What is prohibited under Section 21 of the Act is that there cannot be any sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be entitled to partition and sub-divide the land leased 10 (1998) 7 SCC 294
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 subject to certain conditions. Section 24 of the Act declares that when a tenant dies, the landlord is deemed to continue the tenancy to the heirs of such tenant on the same terms and conditions on which the tenant was holding at the time of his death. We have to read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in Section 21. If he is a member of the joint family, then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition. Again, as to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator.
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise.
(emphasis applied)
18. Therefore, considering Section 2(17) of the Act, principles of law laid down in the above case, the married daughter are also considered as coparceners entitled for share in the suit schedule properties and as per the principles of law laid down above, who are the family members who are coparceners are entitled for inheritance is governed by their personal laws but not by the provisions of the Act. Plaintiffs, being daughters of Irappa are coparceners and are entitled to share in the properties. Therefore, in this regard, both the Court rightly held that plaintiffs are entitled to share in the properties.
19. Upon considering the judgment of this Court in the case of Nagappa S/o Jatta Naik Vs. Smt. Mahadevi W/o Manjunath Naik11, wherein it is held in the similar 11 RSA No.100164/2018 D.D.21.06.2024
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 facts and circumstances that the married daughters are also entitled for partition in the tenanted lands, by referring to various judgments of the Hon'ble Supreme Court, and it was held that married daughters are also entitled for partition in the suit properties in the tenanted lands and Civil Court has jurisdiction.
20. Further, the Division Bench of this Court in the case of Ramesh Sangappa Ragha @ Raghannavar (supra) also held that the married daughter is entitled to share in the suit properties and Civil Court has jurisdiction.
21. Then the question comes to consider as to whether the Civil Court has jurisdiction to decide the share in the suit for partition in respect of tenanted land is concerned is no more res-integra in view of law laid down by the Hon'ble Supreme Court, in the case of Thimmappa Rai (supra). The Hon'ble Supreme Court, while dealing with the jurisdiction of the Civil Court and the Land Tribunal so far as considering the powers of the Civil Court while deciding the suit for partition or portioning the tenanted lands are concerned, held as follows at para 19, 20, 21, 28 and 29:
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019
19. We have noticed hereinbefore that upon constitution of the Land Tribunal, a declaration was filed by the appellant himself categorically admitting and acknowledging his possession to be for and on behalf of all the members of the family. There was no lis pending before the Land Tribunal on the said issue and the Court was not required to enter into the question as to whether the said properties belong to the parties hereto jointly or the appellant herein exclusively. It is on the basis of the said declaration and keeping in view the fact that lease had been granted in favour of the appellant herein, it was declared to be an occupancy right in terms of Section 45 and Section 48A of the said Act. Form No. 7 to which our attention has been drawn does not militate against the contention of the plaintiff that such a declaration on the part of the appellant is not impermissible in law.
20. A certificate of registration granted in favour of a tenant as an occupant under Section 55(1) of the Karnataka Land Reforms Act, 1961 and Rule 21 of the Karnataka Land Reform Rules, 1974 as specified in form 10 also is not of much significance. Submission of Ms. Suri that the Civil Courts have no jurisdiction in this behalf cannot be accepted. It may be true that in terms of Section 48A of the 1961 Act, the Tribunal has jurisdiction to go into all questions of tenancy, grant or refusal of occupancy right and rival claims in respect of their leasehold right, but this would not mean that although there had been no determination as such by the learned Tribunal and parties proceeded on the basis of the
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 admission made by the appellant himself that the Schedule (B) Properties were jointly possessed by the parties, a suit for partition would not be maintainable.
21. Strong reliance has been placed by Ms. Suri on a full bench decision of the Karnataka High Court in Booda Poojary v Thomu Poojarthy reported in ILR 1992 Kar. 1359, wherein it was held;
"... The legal position that emerges is, while deciding the rights of rival claimants, if it becomes necessary to decide questions incidental and or ancillary to the main question to be decided, the main question being who is entitled to be registered as an occupant, the Tribunal has to necessarily examine the question as to whether the applicant is a tenant or not and without deciding such question it cannot effectively discharge its duty of disposing of the applications filed under Section 48A of the Act. The grant of occupancy rights by the Tribunal to an individual in respect of joint family tenanted lands will not have the effect of converting that into a separate property of that individual nor the occupancy rights granted in respect of personal tenancy of that individual would acquire a different character."
28. To the same effect, a division bench of this Court in Balawwa and Another v Hasanabi and Others [(2000) 9 SCC 272], wherein the law was stated in the following terms;
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 "7. Having examined the provisions of the Karnataka Land Reforms Act and the aforesaid two judgments of this Court, we have no doubt in our mind that the civil court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well settled that when a Special Tribunal is created under a special statute and the jurisdiction of the civil court is sought to be ousted under the said statute, it is only in respect of those reliefs which could be granted by the Special Tribunal under the special statute, the jurisdiction of the civil court cannot be said to be ousted.
8. Looking at the provisions of Section 48-A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the civil court. Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an applicant provided the preconditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the civil court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned counsel for the appellants is, therefore, devoid of any force."
(emphasis applied)
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29. Reliance, however, has been placed by Ms. Suri on Mudakappa v Rudrappa and Ors.[(1994) 2 SCC 57]. The said decision has been noticed in Balawwa (supra). In Mudakappa (supra) itself it was held that such a question can be gone into by the Tribunal. It was no doubt opined that civil court's jurisdiction under Section 99, Code of Civil Procedure by necessary implication stood ousted, but, apart from the fact that it was rendered in a case where the decision of the Land Tribunal was in question but in this case the tribunal had proceeded to grant certificate of occupancy right having regard to the declarations made by all the members of the family, the suit for partition in our opinion was maintainable. Furthermore, the question as to whether the Civil Court had jurisdiction or not was not in issue in the suit. Such a contention has also not been raised before the High Court.
22. In this case, the Supreme Court considered the Jayamma and Mudakappa (supra) cases and held that it cannot be said that the Civil Court cannot have jurisdiction in deciding the share of tenanted land is concerned among the coparceners where there was no occasion for the Land Tribunal to consider that aspect. Therefore, the question raised by the learned counsel for the appellant by placing
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 reliance on Jayamma (supra) and Mudakappa (supra) cases is answered in Thimmappa Rai (supra) case.
23. Further, this Court in the case of Sri.Chikkarangaiah (supra) while dealing with similar circumstances of the case has held at para 30 to 38 as follows:
30. The undisputed material produced before the Tribunal and order of the Tribunal clearly shows that the father of the Defendant No. 1 was cultivating the land and after the death of father, Defendant No. 1 has been cultivating the land. It is in this context, Section 24 of the Act requires to be noticed. If a tenant dies intestate, tenancy devolves on the heirs. Before amendment to Section 24, the other heirs were also included, however, by virtue of amendment Act of 1.3.1974, it confined only to the heirs of tenant. If father of Defendant No. 1 was admittedly cultivating the land as a tenant, and after his death, Defendant No. 1 is cultivating as a heir, if the Defendant No. 1 has also not disputed before the Tribunal that his cultivation is traceable to his father''s cultivation and it devolved on him as a heir as admitted by him, it cannot be said that, it excludes other heirs of the original tenant and that issue requires to be decided by the Tribunal.
31. No doubt, Sections 132 and 133 of the Act exclude the jurisdiction of the Civil Court in respect of the
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 matter, which are required to be decided by the Tribunal or authority under the Act. It is not a case where the Civil Court is required to decide as to whether the land is an agricultural land, as to whether the party claiming is a tenant and seeks grant of occupancy rights or as to whether the person claiming to be in possession or not. The issue in this case is whether the admitted grant made by the Tribunal is for the family or joint family or it is granted exclusively. The Civil Court is not required to go into the question as to whether Defendant No. 1 was cultivating or not, whether the Plaintiff was cultivating or not, but if it is granted in favour of a member of the family or member of a joint family and if the tenancy was of Joint family or the family, person personally cultivating, which includes cultivation by a member of the family and also member of the Joint family. On the basis of admitted facts, if it is a grant in favour of a member of joint family, and the other members of joint family claim their share as heir of original tenant, there is no bar in deciding the shares of the members of the joint family. The Civil Court without going into the question, which is required to be decided by the Tribunal, amongst the members of the members of the family or joint family, if tenancy is granted in favour of one of the members of the joint family, all that the Civil Court decides is, whether they are the members of the joint family, whether they are entitled to the respective share. The documentary evidence referred to above, which are not in dispute as they are part of the records before the Tribunal and what is held by the Tribunal, if all these documents are considered, it is clear from these documents that (sic) Rangaiah, father of Defendant No. 1
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 was cultivating the land and (sic) cultivated the land till 1967; (ii) Defendant No. 1 claimed his cultivation after the death of Rangaiah; (iii) Defendant No. 1 claimed cultivation as a heir of Rangaiah. If the cultivation by Defendant No. 1 is as a heir of Rangaiah, he cannot exclude the other heirs as the tenancy being heritable and if it has been inherited by the Defendant No. 1, it means that the other members have also inherited. There is no prohibition under the Act for making an application for grant of occupancy rights by one of the members of the family or joint family, if the cultivation is by one of the members of the family or the joint family, such cultivation is called as cultivation personally. It does not mean that the rights of the other members of the Joint family are excluded or got extinguished. Cultivation on 1.3.1974 does not mean only as on 1.3.1974, but cultivation prior to 1.3.1974. If the tenancy is inherited, it is inherited by all the heirs and not only one or few heirs. The statement of Defendant No. 1 before the Tribunal, his written statement before the Tribunal and the order of the Tribunal, they are conclusive and clear, they establish that the father''s name was entered in the revenue record till his death. Thereafter the name of the Defendant No. 1 is not entered, but it is cultivated by him. He does not dispute that he has not independently acquired the tenancy rights and independently he has cultivated, if that is so, it does not become his separate property. No doubt, under the Hindu Law, even a co-parcener can hold a separate property. But when the Defendant No. 1 does not dispute that his cultivation is traceable only through his father, it cannot be held that, he being one of the heirs, the other heirs
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 deemed to have been excluded only because he alone has made application.
32. In case of rival claims, necessarily there are two claims and if there are two claims, as to who is cultivating, is the question, which is required to be decided. It is in this context, the decision relied by the learned Counsel for Defendant No. 1 particularly Mudakappa''s case (supra) at para-7 assumes importance wherein the Apex Court has held as under:
7. It is seen that the words ''tenant'' ''the Tribunal'' and ''the joint family'' have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the Appellant or joint family is the tenant, the question should be decided by the Tribunal alone u/s 48A read with Section 133 and not by the civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by Judicial review under Article 226 or under Article 227, as the case may be.
But it cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the civil Court. It is clear from Section 48A(5) and Section 11 2B(bbb) read with Section 133, that the decision of the Tribunal is final u/s 133(iii). The civil Court has power only to decide other
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court.
However, no such issues, which required to be decided by the Tribunal or the authority under the Act, are called upon to be decided by the Civil Court, as such, on admitted facts, if the tenancy is a joint family tenancy, the other heirs do have the right in the said property.
33. The decision in Ishwaragouda''s case (supra) is also a case where the Tribunal had decided the issue and once it is decided, it is not open to the Civil Court to decide the said issue once again on the ground that, it is a joint family cultivation. It is in this context, the Apex Court has observed as under:
17. ...Thus in view of the aforesaid decision, we hold that the civil Court had no jurisdiction to decide as to whether the Joint family or one of the members was a tenant, when that question was considered finally and authoritatively on merits by the Land Tribunal, Gadag.
Therefore, we are of the view that the learned Additional Sessions Judge, Dharwad, was perfectly justified in view of ouster of jurisdiction of the civil Court u/s 133 of the Act, in setting aside the judgment of the Trial Court to this extent.
34. Here it is not a case where the issue has been finally decided by the Tribunal. In the judgment reported in AIR 1978 Kar 136, the question was whether leasehold rights are joint family or individual. This Court
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 has held that, in case if the dispute as regard to leasehold rights arises, the competent authority is the Tribunal and not the Civil Court.
POINT No. 2:
35. Considering these decisions and also considering the evidence on record in this case, when the Defendant No. 1 has claimed occupancy rights as having inherited the same from his father, Plaintiff being one of the heirs, the tenancy being heritable, it devolves not only on one of the heirs, but it devolved on all the heirs. May be, the other heirs might not have filed an application for grant of occupancy rights, but it being the estate of the deceased, he having died intestate, by succession, by survivorship, it devolves on the heirs of the deceased, Plaintiff being one of the Class I heirs, he is also entitled to the share. No doubt, if the Defendant had claimed exclusive cultivation independent of his father and had claimed his tenancy not by inheritance, but by acquisition by himself, if the other heirs had claimed right out of the said grant, the Civil Court could not have decided the said issue, but it is not a case here that the Defendant No. 1 had claimed his exclusive separate tenancy, but he having claimed as successor to his father, it cannot be said that one of the successors alone is entitled for grant particularly in the light of the definition "to cultivate personally." POINT NO. 3:
36. No doubt, the Power of Attorney may not have the personal knowledge of the party, as his evidence cannot become an evidence of a party, on whose behalf he deposes. But if he has the personal knowledge of the facts
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 and from out of his personal knowledge if he speaks, it cannot be said that his evidence is not acceptable. P.W.-1 though is a Power of Attorney Holder, he has been examined on behalf of the Plaintiff, who is incapable of speaking. But the evidence of P.W.-1 also shows that P.W.-1 being a close relative, he has the personal knowledge of the facts and the facts within his knowledge has been spoken to by P.W.-1. I do not find that the evidence required to be discarded, even otherwise also, without even going into the evidence of P.W.-1, materials produced on record are not disputed by Defendant No. 1 and they clearly clinches the issue and prove the case of the Plaintiff.
POINT NO. 4:
37. As far as the Power of Attorney of Defendant No. 1 filing the written statement, it is alleged that the Power of Attorney has come into existence after the written statement is filed, as on the date of filing of the written statement, he had no power. But Defendant No. 1 has not disputed having conferred authority on the Power of Attorney, he has rectified his authority. In these circumstances, though the Power of Attorney could not have filed the written statement, as he had no authority, but Defendant No. 1 having rectified, it is not necessary to go into the said issue.
38 Considering these evidence on record, I find that, (i) the Plaintiff has proved that the cultivation by the Defendant No. 1 is on behalf of the joint family; (ii) he has claimed occupancy rights as a heir of Rangaiah; (iii) Civil Court has only considered as to whether the cultivation is
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 by the family, member of the joint family or not and it has not gone into the issue of tenancy. In these circumstances, the grant made in favour of Defendant No. 1 is for and on behalf of the joint family and the other heirs of Rangaiah, who have succeeded to his estate, are entitled for the share.
24. Therefore, where the Land Tribunal had no occasion to deal with issues regarding the heritability of the tenanted lands, and if the entitlement of the share in the partition concerned is not decided by the Tribunal, then the Civil Court has jurisdiction to decide the inheritance and partition among the coparceners.
25. In the case of Jayamma (supra), the question for consideration are different. In Jayamma's case the appellant had filed an application under section 276 of the Indian Succession Act, 1925, for grant of letter of administration with a copy of the Will annexed. The respondents being wife and children of the testator, denied the fact of execution of Will and hence the application was converted into a suit. Though the trial Court decreed the suit, but the appeal was allowed by the High Court while holding that the application in question was not maintainable
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 in view of section 61 of the KLR Act, 1961, for the subject matter of testament being agricultural land, with occupancy rights which could have been assigned. The appellant legatee under the Will is a stranger and not a member of the testator's joint family. Therefore, the claim put by the appellant was turned down. Therefore, the factual matrix involved in Jayamma's case (supra) are different from the present case. Hence not applicable to the case in hand.
26. In Mudakappa's case (supra), the facts are that the plaintiff filed a suit for injunction against the defendant's uncles. The trial Court disposed of the suit; during pending appeal Karnataka Land Reforms (Amendment) Act No.1 of 1974 came into force; section 45- A conferred jurisdiction on the tribunal to decide the question of tenancy and nature of agricultural land and Civil Court was directed under section 173 to decide the other questions in the suit. The District Judge by order referred the matter to the tribunal and the tribunal found that the tenancy was in favour of the joint family and not to the plaintiff alone. Therefore the District Judge had dismissed the appeal. In the
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 Miscellaneous Second Appeal the Division Bench of this Court has dismissed the appeal. Therefore, the plaintiff preferred appeal before the Hon'ble Supreme Court and the Hon'ble Supreme Court has dismissed the appeal by holding that the Civil Court has jurisdiction to decide whether the grant of occupancy rights would enure to the benefit of joint family or exclusively for the grantees. The Hon'ble Supreme Court in paragraph No.7 has held as follows:
It is seen that the words 'tenant', 'the Tribunal', and 'the joint family' have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or Joint family is the tenant, that question should be decided by the Tribunal alone under Section 48-A read with Section 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Article 227, as the case may be. But that cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from Section 48A(5) and Section 112B(bbb) read with Section 133, that the decision of the Tribunal is final Under Section 133(iii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court.
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 Therefore, when the nature of tenancy is decided by the tribunal, then once again the Civil Court cannot go into that question is the dictum of the Hon'ble Supreme Court in Mudakappa's case (supra).
27. But considering the present set of facts and circumstances, in the case before the Civil Court, there is no question of nature of tenancy or tenancy rights involved before the Civil Court, but already decided by the tribunal; but the tribunal had no occasion to deal with as to whether the married daughters are entitled inheritance in the tenancy property or not. Thus, both the trial Court and the First Appellate Court have held that the plaintiffs in the line of succession being daughters are entitled for half share and accordingly decided the rights of the plaintiffs and defendants, but not the nature of tenancy or tenancy rights. Therefore having difference found in factual matrix in the above stated case in Jayamma and Mudakappa and in the present case, the above said judgments are not applicable to the present case on hand. The same thing is reiterated in Ishwargouda's case (supra). In Ishwargouda's case it is
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 held that the question of considering the land whether is or is not agricultural land and whether the person claiming possession is or is not tenant of the land, shall vest only in the land tribunal and suit is not maintainable. But here the nature of tenancy, tenancy rights whether the land is agricultural land or not are all decided by the land tribunal. Therefore, the question is the inheritance to succeed in the properties which are tenanted lands and that is only by following the provisions under the personal law and not by the KLR Act as held in Sangappa's case (supra). Therefore the facts and circumstances in Ishwargouda's case are different from the instant case. Hence not applicable to the present case helping the case of the appellants/defendants.
28. Nimbavva's case is also considered in the subsequent judgments by the Hon'ble Supreme Court and also by subsequent judgment of this Court and held that married daughters are entitled for share in the tenanted land where it is proved that the land granted is enuring to the benefit of joint family. Therefore Nimbavva's case is also not helpful to the appellants/defendants.
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019
29. Section 132 of the KLR Act bars jurisdiction of Civil Court where the maters are exclusively to be dealt with by the land tribunal or Deputy Commissioner or any revenue officials, then those question cannot be decided by the Civil Court. Section 132 says, suits, proceedings etc., involving the questions required to be decided by the tribunal, shall be only dealt with by the tribunal, but not by Civil Courts. The land tribunal is having power to decide the question whether the land is agricultural land, the nature of land, the nature of tenancy whether on the appointed date the person claiming to be tenant was tenant or not etc., to decide the tenancy rights. Regarding this, the Civil Court does not have jurisdiction, but in the present case these questions are not once again raised before the Civil Court. What the Civil Court has decided is with regard to civil rights of claiming partition in the joint family and ancestral properties. This question was supposed to be considered by the land tribunal, but there was no occasion for the land tribunal to deal with these aspects. Therefore the Civil Court has jurisdiction to decide the inheritance of tenancy lands which is not dealt with by
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 the land tribunal. According to the law of succession to be governed as per their personal laws and therefore this is decided by the Civil Court.
30. In the present case Irappa filed Form No.7 before the land tribunal and during pendency of the said application before the land tribunal, he died. Then defendant No.1 and husband of defendant No.2 have been impleaded in the said proceedings. The land tribunal granted occupancy rights in the name of applicants who are defendants No.1 and husband of defendant No.2. The question is whether the grant of occupancy rights by land tribunal is enuring to the benefit of joint family or not and that was not decided by the tribunal. Therefore, this question was raised in the Civil Court by filing suit for partition. The land tribunal has already decided the tenancy rights, nature of tenancy, who was the tenant on the appointed date i.e., 01.03.1974, vesting of land etc., but had no occasion to deal with whether conferment of occupancy rights would enure to the benefit of joint family or not and what the matter is left by the land tribunal is decided by the Civil Court in this case. The
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 plaintiffs have been impeladed in the proceedings pending before the Land Reforms Appellate Authority. But the appellate authority has also not decided regarding whether the confirmation of occupancy rights would enure to the joint family or not and that issue was left unanswered.
31. Therefore, as per the dictum of the Hon'ble Supreme Court discussed above, the Civil Court has jurisdiction to deal with whether the suit schedule properties are partiable properties and belongs to joint family and ancestral properties and the rights of coparcenary according to the Hindu Succession Act are all dealt with by the Civil Court. Therefore the appeal having been found with no merits, by answering the substantial questions of law No.1 and 2 in the affirmative, it is held that the Civil Court has jurisdiction to decide the issue of partition of the suit schedule properties and the married daughters are also entitled for share being coparceners. Therefore, the judgment and decree passed by the trial Court and the First Appellate Court shall not be interfered with. Hence the
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NC: 2024:KHC-D:14076 RSA No. 100608 of 2019 appeal is found to be devoid of merit. Accordingly it is liable to be dismissed. Hence I proceed to pass the following:
ORDER
i) The appeal is dismissed.
ii) The judgment and decree dated 28.06.2019, passed in R.A.No.34/2012, by the II Additional District and Sessions Judge, Bagalkot and the judgment and decree dated 07.03.2012, passed in O.S.No.298/2006, by the I Additional Senior Civil Judge, Bagalkot, are hereby confirmed.
iii) No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
AC-para 1 to 24.
MRK-para 25 to end.
CT:GSM
List No.: 1 Sl No.: 27