Karnataka High Court
Mukthesab vs Mehaboobsab on 14 March, 2023
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RFA No. 1774 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.1774 OF 2006 (DEC-)
BETWEEN:
1. MUKTHESAB
S/O IMAMSAB BAGAWAN
SINCE DECEASED LRS.,
1A. SMT.RAJAMA W/O. MUKTHESAB MATTESAB
CHOUDARI, AGE: 65 YEARS,
OCC: HOUSEHOLD.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
1B. SMT.MAKTUMBI W/O. RAJESAB SUNNAKKI,
AGE: 52 YEARS, OCC: HOUSEHOLD.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
Digitally
signed by
ROHAN
1C. MAKTUMASAB S/O. MATTESAB COUDHARI @
ROHAN
HADIMANI
T
HADIMANI
T BAGAWAN
Date:
2023.04.06
11:29:12 -
0700
AGE: 49 YEARS,
OCC: AGRICULTURE.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
1D. SMT.LALABI D/O. MATTESAB CHOUDARI,
AGE: 43 YEARS,
OCC: TEACHER.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
1E. SMT.IMAMBU D/O. MATTESAB CHOUDARI,
AGE: 37 YEARS,
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RFA No. 1774 of 2006
OCC: TEACHER.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
1F. IMAMSAB
S/O. MATTESAB CHOUDARI,
AGE: 35 YEARS,
OCC: AGRICULTURE.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
1G. SAIDUSAB
S/O. MATTESAB CHOUDARI,
AGE: 33 YEARS,
OCC: AGRICULTURE.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
1H. AKBARSAB S/O. MATTESAB CHOUDARI,
AGE: 30 YEARS,
OCC: AGRICULTURE.
R/O WARD NO.2, AGASI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT
...APPELLANTS
(BY SMT. PADMAJA TADUPATRI, ADVOCATE FOR
SMT. GIRIJA S. HIREMATH, ADVOCATE)
AND:
1. MEHABOOBSAB S/O IMAMSAB
BAGAWAN @ CHOUDHARI
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: BADAMI, TAL: BADAMI,
BAGALKOT
2. LALSAB SAB S/O IMAMSAB
BAGAWAN @ CHOUDHARI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: NARAYANAPUR, TAL: SURAPUR,
DIST: GULABARGA.
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RFA No. 1774 of 2006
3. SMT. FAIRAJA BEGUM
HUSENSAB CHOUDHARI
AGED: MAJOR, OCC: HOSUEHOLD,
R/O. NARAYANAPUR, TAL: SURAPUR.
DIST: GULABARGA.
4. SMT. NAZAMABEGUN
ABDULSAB CHOUDHARI
AGED: MAJOR, OCC: HOUSEHOLD,
R/O. BADAMI, TAL: BADAMI,
BAGALKOT
5. SMT. SHABANABANU
MAHAMODSAB BAGAWAN,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. MAMADAPUR, TAL: BIJAPUR.
DIST: BAGALKOT
6. UTALASAB MOHAMMADSAB
BAGAWAN, AGE: MAJOR,
OCC: HOSUEHOLD, R/O. MAMADAPUR
TAL: BIJAPUR. DIST: BAGALKOT
7. ARIF MOHAMMADSAB BAGAWAN,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O. MAMADAPUR, TAL: BIJAPUR.
DIST : BAGALKOT
...RESPONDENTS
(BY SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R1 & R2)
(R3 TO R7 - SERVED)
THIS RFA IS FILED UNDER SECTION 96 R/W O 41 R 1
OF CPC AGAINST THE JUDGMENT AND DECREE DT.28.6.2006
PASSED IN O.S.NO.134/2003 ON THE FILE OF THE I ADDL.
CIVIL JUDGE (SR.DN), BAGALKOT, DISMISSING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1774 of 2006
JUDGMENT
The alternative relief of partition and separate possession of 2/7th share granted by the I Additional Civil Judge (Sr. Dn.), Bagalkot (for short, 'the Trial Court'), by its judgment and decree dated 28.06.2006 in O.S. No.134/2003, is questioned before this Court in appeal under Section 96 of the Code of Civil Procedure, 1908.
2. Defendant No.1 before the Trial Court is the appellant before the this Court. The relationship of the parties is not in dispute. One Imamsab Bagawan @ Choudhari is the father of the plaintiff and defendants No.1 and 2. Defendants No.3 to 7 are the legal heirs of the daughter of Imamsab Bagawan @ Choudhari. The properties at Sl.Nos.1 to 3 of the suit schedule 'A' are the properties in respect of which occupancy right is granted in favour of defendant No.1 i.e., the appellant before this Court. The occupancy right is granted by the Land Tribunal, Bagalkot in terms of the order dated 21.10.1975. Item Nos.4 and 5 properties of the suit schedule 'A' were -5- RFA No. 1774 of 2006 acquired by Imamsab Bagawan @ Choudhari. The suit for partition is filed on the premise that the properties at Sl.Nos.1 to 3 were originally held by the grandfather of the plaintiff as a tenant. After the demise of the grandfather, the properties were inherited by late Imamsab Bagawan @ Choudhari, who died in the year 1976. It is forthcoming from the records that Form No.7 is filed by defendant No.1, the appellant before this Court during the lifetime of late Imamsab Bagawan @ Choudhari. Said Form No.7 was filed on 21.08.1974. Pursuant to Form No.7 filed by defendant No.1, the Land Tribunal granted occupancy rights in respect of property bearing Sy.No.36/1 measuring 12 acres 32 guntas which, later, is sub-divided into three distinct survey numbers mentioned at Sl.Nos.1 to 3 of suit schedule 'A' properties.
3. The plaintiff contended that Form No.7 is filed by defendant No.1 during the lifetime of the father of the plaintiff and defendant No.1; since the property is the joint property inherited after the demise of the grandfather of -6- RFA No. 1774 of 2006 the plaintiff, the order granting occupancy rights in favour of defendant No.1 is to be construed as the order conferring benefit to all the children of late Imamsab Bagawan @ Choudhari. It is the further contention of the plaintiff that after the demise of Imamsab Bagawan @ Choudhari, the plaintiff and defendants No.1 to 3 effected partition and, in the said partition, a portion of the property is allotted to the share of the plaintiff and, in this regard, the plaintiff sought declaration of title in respect of the property bearing Sy.No.36/1/2 measuring 4 acres 10 gutnas situated at Badami, and consequential relief of injunction is also sought. In the alternative, he also sought partition in respect of the suit schedule 'A' properties which are five in numbers.
4. Defendant No.1 contested the case. Defendant No.2 supported the case of the plaintiff. Defendants No.3 to 7 filed their separate written statement and they supported the case of the plaintiff. The Trial Court concluded that the properties are the joint properties. The -7- RFA No. 1774 of 2006 contention relating to the partition among the plaintiff and defendants is not accepted by the Trial Court and the main relief of declaration and injunction is not granted. The Trial Court has granted the relief of partition which is sought in the alternative.
5. Learned counsel, Smt. Padmaja Tadapatri, appearing for the appellants submitted that the concept of 'joint family' is unknown to the Mohammedan Law and the occupancy is claimed by defendant No.1 in his individual capacity; in his Form No.7, defendant No.1 has disclosed the names of his family members i.e., his wife and children and it is his prayer that the occupancy right is to be granted by treating those persons as his family members. It is further urged that the suit is filed in the year 2004 though the father died in the year 1976 and the suit is barred by limitation. Defendant No.1 is in exclusive possession of the suit schedule properties pursuant to the order of the Land Tribunal and, as such, she would urge -8- RFA No. 1774 of 2006 that the judgment and decree passed by the Trial Court granting partition are unsustainable in the eye of law.
6. The learned counsel would further urge that the judgment cited before the Trial Court and relied upon by the Trial Court relating to grant of occupancy right and the benefit being accrued to the family members of the grantee are the judgments delivered in a case where the parties are governed by Hindu Law. She would further submit that the said judgments are not applicable to the facts of the present case where the parties are governed by Mohammedan Law where there is no concept of 'joint family'.
7. The learned counsel for the appellants would also rely upon the judgment of the Apex Court in the case of N.Padmamma & Ors. Vs. S.Ramakrishna Reddy & Ors., reported in AIR 2008 SC 2834, and also judgment of this Court in the case of Usman Sab Vs. Dastagir Sab, reported in ILR 1996 KAR 484. Referring to these two judgments, it is urged by the learned counsel for the appellants that the -9- RFA No. 1774 of 2006 finding of the Trial Court that the benefit should go to the rest of the family members is totally erroneous. She would further submit that the presumption arising in favour of defendant No.1 relating to self-acquisition is not rebutted by leading cogent evidence by the plaintiff and as such, the Trial Court ought to have dismissed the suit.
8. Learned counsel, Sri.Mrutyunjaya S Hallikeri appearing for respondents No.1 and 2 would submit that Form No.7 application filed by defendant No.1 itself would indicate that defendant No.1 was living with his brother, sister and father at the time of filing Form No.7 and there is no dispute over the fact that the properties in question at Item Nos.1 to 3 are tenanted properties and grandfather was the tenant in respect of the said properties and after his demise the father of the plaintiff inherited tenancy and since father of the plaintiff was aged by the time the Land Reforms Act was amended, he allowed his elder son to file Form No.7. Form No.7 is filed representing the children of the plaintiff's father as well as
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RFA No. 1774 of 2006the father, as such, grant of occupancy should be treated as grant for the benefit of all the children of the erstwhile tenant Imamsab. He would further submit that cultivation by one member of the family would enure to the benefit of the other members and in support of his contention he would refer to Section 2(17) of the Karnataka Land Reforms Act. He would contend that it is to be construed that defendant No.1 was cultivating the suit lands on behalf of children of Imamsab as Imamsab inherited the properties from his father.
9. It is also his contention that even while passing the order, the Land Tribunal has recognised the rights of the brothers of defendant No.1 and Land Tribunal has also noted that the tenancy was inherited by Imamsab, the father of Form No.7 applicant and in support of his contention he would refer to the judgment of the Apex Court in the case of Thimmappa Rai Vs. Ramanna Rai and Others reported in 2007 AIR SCW 3271.
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RFA No. 1774 of 2006
10. It is also submitted that defendant No.1 in the cross-examination has categorically admitted that he has filed Form No.7 representing other members of the family, namely the heirs of the deceased Imamsab, as such, the order granting occupancy should be treated as the grant in favour of all the children of deceased Imamsab.
11. This Court has considered the contentions raised at the bar and also perused the records, impugned judgment and decree and also the judgments cited.
12. From the contentions raised at the bar, the following point arises for consideration:
i. Whether the Trial Court is justified in holding that properties at Item Nos.1 to 3 are the properties over which occupancy is granted for the benefit of the plaintiff and defendants?
13. As far as Item Nos.4 and 5 properties are concerned, there is no dispute that these properties once stood in the name of Imamsab and after his demise they
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RFA No. 1774 of 2006would devolve upon plaintiff and defendants. The dispute is only confined to properties at Item Nos.1 to 3, which were granted by the Tribunal pursuant to Form No.7 filed by defendant No.1. There is no dispute over the fact that the grandfather of the plaintiff once owned property bearing Sy.No.36/1 measuring 12 acres 30 guntas and after his demise tenancy was inherited by his father i.e. Imamsab, the father of the plaintiff. It is also forthcoming from the records that the father of the plaintiff was cultivating the property as a tenant for sufficiently long time. It was due to his advanced age, defendant No.1 started managing the property bearing R.S.No.36/1. The records would reveal that defendant No.1 was living along with his father, mother, sister and when he filed Form No.7. This can be noticed from the fact that defendant No.1 has taken a defence that after the demise of the father in 1976, there was a partition among the brothers and that partition is not established. This contention would lead to the conclusion that defendant No.1 was living along with his father, mother, sister and brothers when he
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RFA No. 1774 of 2006filed Form No.7. In the written statement the defendant No.1 has not pleaded that he has acquired tenancy on his own. On the other hand, a categorical admission in the cross-examination would clearly demonstrate that defendant No.1 was cultivating the land during the lifetime of the father. Unless the tenant (father) surrenders the land in favour of the landlord and unless the landlord creates fresh tenancy, defendant No.1 cannot claim to have acquired tenancy in his individual capacity; or otherwise, the father being the tenant if he was authorized to create sub-tenancy and if he had created such tenancy in favour of one of his sons, namely defendant No.1, then the contention of defendant No.1 could have been accepted. However, it is not the case of defendant No.1 that the father has created tenancy exclusively in his favour by the landlord.
14. On overall appreciation of the materials on record, what can be noticed is that defendant No.1 was the elder member of the family, staying in the family, he
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RFA No. 1774 of 2006started managing the properties of his father along with his brothers and sister. Under the circumstance, the grant of occupancy right pursuant to Form No.7 filed by defendant No.1 should be construed as the grant in favour of all the children of late Imamsab. Form No.7 filed by defendant No.1 would also indicate that the children of his father are also residing with him and Form No.7 itself would indicate that the properties are being cultivated for the last 50 years. Defendant No.1, Form No.7 applicant was aged 32 when he filed Form No.7 in the year 1974. under the circumstance, there are no materials to hold that tenancy was exclusively acquired by defendant No.1.
15. Though it is strenuously urged by the learned counsel for the appellants that there is no concept of joint family, what is to be noticed in this case is the distinction between joint family and joint property. Though the concept of joint family is not there among Mohammedans there is no bar to hold the property jointly. The records would indicate that these properties were jointly cultivated
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RFA No. 1774 of 2006by Imamsab as long as Imamsab was healthy and fit and after he became feeble, the properties were jointly cultivated by his children. This being the position and also considering the observations in the order dated 21.10.1975 passed by the Land Tribunal wherein the Tribunal has observed that the properties are being cultivated since the time of the grandfather and the father, this Court is of the view that the order granting occupancy right in the name of defendant No.1 is to be construed as the order granting joint occupancy in favour of father of the plaintiff and his children. Even though the plaintiff has not pleaded the custom and proved the custom relating to existence of joint family, this Court is of the view that the plaintiff is in a position to establish that the properties are jointly acquired, if not, the properties are joint family properties. Under the circumstance, the judgment and decree passed by the Trial Court holding that Item Nos.1 to 3 properties are joint properties and the plaintiff is having 2/7th share cannot be said to be an erroneous order.
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RFA No. 1774 of 2006
16. As far as contention of learned counsel for the appellants based on the judgment of this Court in Usman Sab, it is to be noticed that even in that judgment this Court has never held that it is not possible for the Mohammedan to hold the property on behalf of others. What is held in that case is there is a presumption of self acquisition in case the property standing in the name of an individual who is a Mohammedan. However, that presumption is a rebuttable presumption. To rebut the presumption, what is required is a cogent evidence to show that the property was held on behalf of other members also.
17. In this case, the evidence led before the Court particularly the fact that the property was admittedly cultivated by the plaintiff's grandfather as a tenant and later by the plaintiff's father as a tenant and the defence that there was partition in the family subsequent to the death of the father, would clearly demonstrate that defendant No.1 was holding property not only for himself
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RFA No. 1774 of 2006but also for other defendants and his father. Under the circumstance, the ratio laid down in the aforementioned case, does not come to the rescue of the appellant.
18. As far as contention based on the judgment of the Apex Court in the case of N.Padmamma and Others Vs. Ramakrishna Reddy and Others reported in AIR 2008 SC 2834, this Court is of the view that the said judgment is rendered interpreting the provisions of the of Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. The discussion in that case is around Section 10 of the said Act. In this case, the parties are claiming right under the provisions of the Karnataka Land Reforms Act. Under Section 24 of Karnataka Land Reforms Act, the tenancy right is heritable. Hence, the ratio laid down in the said case cannot be made applicable here.
19. This case has got another dimension. Though Form No.7 was filed in 1974 by defendant No.1, Imamsab was alive when Form No.7 was filed. He was the tenant at that point of time. He died in the year 1976 and Form
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RFA No. 1774 of 2006No.7 was filed by eldest son i.e. defendant No.1 and when Form No.7 was filed, the father (tenant) was not in a position to personally cultivate the land and son was cultivating the land on behalf of his father who was tenant of the land. Thus, Form No.7 filed by the son should be construed as Form No.7 filed by his father. And grant of occupancy could also be construed as the grant made in favour of the father. Thus, after the death of the father, the properties would devolve upon the children. For this reason, this Court is of the view that the judgment and decree passed by the Trial Court granting 2/7th share to the plaintiff is in accordance with law.
20. The appellant has also filed an application for production of additional document, wherein the statement of the landlord before the Tribunal which was recorded in the year 1977 is sought to be produced and this Court has perused the said document. This statement given by the landlord before the Tribunal is pursuant to enquiry conducted by the Tribunal on the basis of Form No.7 filed
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RFA No. 1774 of 2006by defendant No.1. In the said statement, the landlord has given a statement that defendant No.1 is cultivating the property since last 3-4 years. This document is not much of consequence as defendant No.1 himself has admitted that the grandfather of the plaintiff and father of the plaintiff were cultivating the properties as tenants and even in Form No.7, defendant No.1 himself has urged that the properties were under cultivation for more than 50 years. For the aforementioned reasons, this Court is of the view that the said document is not necessary for adjudication of the case on hand. Accordingly, the application is dismissed.
21. Appeal is dismissed. The judgment and decree, dated 28.06.2006, passed in O.S. No.134/2003 on the file of I Additional Senior Civil Judge, Bagalkot, are confirmed.
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JUDGE KMS,SH List No.: 1 Sl No.: 44