Karnataka High Court
Narayana And Others vs A. Sadashiva And Others on 18 September, 1999
Equivalent citations: ILR2000KAR487, 2000(5)KARLJ334
Author: S.R. Venkatesha Murthy
Bench: S.R. Venkatesha Murthy
JUDGMENT S.R. Venkatesha Murthy, J.
1. This appeal is directed against the judgment dated 21-7-1998 in R.A. No. 41 of 1989 on the file of the II Additional District Judge, Dakshina Kannada setting aside the judgment and decree in O.S. No. 266 of 1983 on the file of the II Additional Civil Judge, Dakshina Kannada.
2. The parties are referred according to their array in the Trial Court.
3. The plaintiff instituted O.S. No. 266 of 1983 for partition and separate possession of the plaint A Schedule properties and for 8 shares out of 27 equal shares in the property in question. A contention was raised that the tenancy on the basis of which occupancy rights were conferred in favour of the first respondent's father and one Muttu Hengsu was a joint family tenancy and so, plaintiff was entitled to a share in the lands in question. The Trial Court found in favour of the plaintiff and granted a decree as prayed for. The appeal by the defendant-Sadashiva S/o Shyamba Bhandari namely, the first respondent herein was allowed by the Appellate Court and the learned Civil Judge was directed to dispose of the suit on the basis of a decision in Mudakappa v Rudrappa and Others. Hence this miscellaneous second appeal.
4. The contention raised by the plaintiff is that the decision in Mudakappa's case, referred to above, does not apply to the facts of the case as the occupancy rights were conferred long before the institution of the suit and there is no matter pending, calling for reference to the Land Tribunal for adjudication. Reliance was placed upon two decisions of this Court where the decision in Mudakappa's case referred to above, has been distinguished. In Jarappa Poojari and Others v Smt. Ramakku and Others, an identical question came up before this Court and the Division Bench of this Court in paras 6 and 7 of the judgment observed as follows:
"Even otherwise, no question of tenancy arises in this case. 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 enure 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".
This decision has been followed in Veerabhadrappa Totappa Bilebal (deceased) by L.Rs v Virupaxappa Totappa Bilebal and Another, wherein this Court on the decision of this Court in Booda Poojary v Smt. Thoma Poojarthi and Others, a Full Bench decision, wherein it was observed that when once the occupancy rights are granted, the leasehold rights stand converted into freehold rights without damaging the rights of the occupant's family or any member thereof and 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.
5. Apparently, the decision in Mudakappa's case, supra, was rendered in a pending matter and all the observations in that pending matter related to the jurisdiction of the Civil Court to decide the issue when rival claims to tenancy were raised. In the instant case, the contention is that the tenancy claimed by the first respondent was for and on behalf of the joint family and so the plaintiffs are entitled to a share in the properties in respect of which occupancy rights are already conferred on husband of the first respondent by the Land Tribunal. Apparently the Land Reforms Act contains no provision for reviewing the claim or for recalling the claim for tenancy rights, after a long distance of time as in this case, to consider the only question as to whether the tenancy on the basis of which occupancy rights were conferred, were joint family rights or individual right. It is essentially a question of fact as to whether the tenancy rights on the basis of which the first respondent sought and obtained occupancy rights was a joint family tenancy or not and it is for the Trial Court to decide the issue when the proceedings before the Land Tribunal stood terminated long before the litigation in question. Apparently the decision in Mudakappa's case, supra, case would apply to matters which are only pending and not in respect of matters which are concluded as in this case. In the circumstances, the order made by the learned District Judge setting aside the judgment and decree in O.S. No. 266 of 1983 and directing the Trial Court to reopen the matter for disposal in accordance with the decision in Mudakappa's case, supra, cannot be sustained and is set aside. The learned District Judge shall consider the matter on merits and dispose of the same in accordance with law.