Karnataka High Court
Hanmantha S/O Kallappa Talwar vs Tippanna S/O Madappa Talwar Since Decd ... on 5 July, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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RSA No. 697 of 2007
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 697 OF 2007 (DEC/INJ-)
BETWEEN:
1. HANMANTHA S/O KALLAPPA TALWAR,
AGE: 52 YEARS, OCC: AGRICULTURE,
2. SIDDAPPA S/O KALLAPPA
AGE: 47 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O: NAGAIDLAI,
TALUK: CHINCHOLI,
DISTRICT: GULBARGA-585 307
...APPELLANTS
(BY SMT. HEMA L K, ADVOCATE)
Digitally signed by
AND:
RAMESH MATHAPATI
Location: HIGH
COURT OF
KARNATAKA TIPPANNA
S/O MADAPPA TALWAR
1. SINCE DECEASED THROUGH LRS
BAKKAPPA
S/O TIPPANNA TALWAR,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O LALAGUDA-
SECUNDERAAD (A.P)-500 017
2. RATNAMMA
W/O TIPPANNA TALWAR,
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NC: 2023:KHC-K:4925
RSA No. 697 of 2007
AGE: 70 YEARS,
OCC: HOUSEHOLD,
R/O: NAGAIDLAI,
TQ: CHINCHOLI
DIST: GULBARGA-585 307
3. PARVATI
W/O RAMANNA NIRAVANCHI,
AGE: 35 YEARS,
OCC: HOUSEHOLD,
R/O NIRAVANCHI,
TALUK: HUMNABAD,
DIST: BIDAR-585 338
4. BHIMANNA
S/O MADAPPA TALWAR
SINCE DECEASED THROUGH LRS:
A. RANGAMMA W/O BHIMANNA
AGE: 40 YEARS,
OCC: HOUSEHOLD
B. VITHAL S/O BHIMANNA
AGE: 35 YEARS,
OCC: AGRICULTURE
C. ESHWARI D/O BHIMANNA
AGE: 25 YEARS,
ALL ARE R/O NAGAIDLAI,
TQ: CHINHOLLI,
DIST: KALABURAGI.
...RESPONDENTS
(BY SRI. SHIVANAND PATIL, ADVOCATE FOR R1 & R3;
APPEAL AGAINST R2 ABATED;
R4(A) TO R4(C) SERVED;
R2(2) SERVED WHO IS R3;
R2(1) SERVICE HELD SUFFICIENT VIDE ORDER DATED
26.06.2023;
R2(1) IS ALREADY ON RECORD AS R1 AND REPRESENTED BY
ADVOCATE)
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RSA No. 697 of 2007
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 3.2.2007 PASSED IN RA.NO. 4/2006 ON
THE FILE OF THE CIVIL JUDGE (SR.DN.), CHINCHOLI,
REVERSING THE JUDGMENT AND DECREE DATED 6.12.1997
PASSED IN O.S.NO. 81/1989 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), CHICHOLI AND TO DECREE THE SUIT OF THE
PLAINTIFFS AS PRAYED FOR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Kallappa instituted a suit against his brothers-- Thippanna and Bhimannna seeking for a declaration that he was the owner in possession of the land bearing Sy.No.70/1 measuring 14 acres 10 guntas, which was situate at Nagaidlai village of Chincholi Taluk. He also sought for a decree of perpetual injunction.
2. By way of amendment, Kallappa also sought for possession of the portion of the suit land in respect of which the names of defendants had been entered in the Record of Rights and over which they were claiming possession.
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3. The said suit was originally filed in the Court of Civil Judge (Jr.Dn.), Chincholi, on 20.11.1985 and numbered as O.S. No.229 of 1985 and later, it was renumbered as O.S. No.81 of 1989 on being transferred to the Court of Munsiff, Chincholi on 07.08.1989.
4. It was the case of Kallappa that Thippanna and Bhimanna were his two brothers and they were all children of Madappa, who had died about 30 years prior to the filing of the suit.
5. It was contended that his family, consisting of himself and his two brothers i.e., the defendants, had got ancestral properties partitioned among themselves equally about thirty years prior to the filing of the suit and ever since the partition, they were living separately and enjoying their respective shares. He stated that in the partition, Sy.No.97/C-3 measuring 01 acre 03 guntas and Sy.No.11/C-3 measuring 02 acres 15 guntas, both situate at Nagaidlai and Tirmalapur respectively were allotted to his share.
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6. He stated that since he was a Harijan and the Government had taken a scheme to distribute the lands to Harijan, he was given 15 acres 10 guntas in Sy.No.70/1 of Nagaidlai village on 17.10.1957 and after the said land was granted, he had invested huge sums of money and had developed the land and was in peaceful possession of the land. He stated that in order to confirm the land in favour of his sons, he had made an application to the Village Accountant in the year 1983 for changing the Khata in favour of his two sons and at that time, his brothers who had not challenged the exclusive grant made in his favour, raised objections contending that the property was a joint family property and they also had an equal share and demanded that their names be entered in Column Nos.9 and 12 of Record of Rights. It is stated that the Tahasildar, without conducting a proper inquiry and in excess of his powers, had held that the property was a joint family property and his brothers also had a share. He stated that he had preferred an appeal to the Assistant Commissioner and the Assistant Commissioner had held -6- NC: 2023:KHC-K:4925 RSA No. 697 of 2007 that the Tahasildar had no competence to decide the rights of the parties and he had upheld the order of the Tahasildar only insofar as it relates to the entering of his brothers name in Column No.12 i.e., in the Cultivator's column.
7. It was stated that he had filed a Revision before the Deputy Commissioner and the same was pending adjudication and his brothers taking advantage of these circumstances, were claiming ownership and trying to dispossess him and therefore, he was constrained to file the suit.
8. His brother/Thippanna--defendant No.1 entered appearance and contested the suit by filing a written statement. He stated that the land bearing Sy.No.70/1 i.e., the suit property had been granted to the entire family of theirs and the grant was not exclusive to Kallappa.
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9. He also stated that this granted land was also partitioned and divided into three parts at the time of partition and the middle portion of the land was granted to an extent of 04 acres 30 guntas was allotted to Kallappa, while the remaining portions to the East and West were allotted to them. Thus, it was their case that the land granted in the name of Kallappa was in fact the land granted to their family and it was also subjected to the partition amongst three of them.
10. The Trial Court, on consideration of the evidence produced before it, came to the conclusion that Kallappa had established that the land was exclusively granted to him and that he was in possession of the same. The Trial Court accordingly decreed the suit and held that Kallappa was the owner in possession of the suit land bearing Sy.No.70/1 measuring 14 acres 10 guntas and an order of injunction was also granted.
11. Being aggrieved, Thippanna preferred an appeal. -8-
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12. The Appellate Court, on re-appreciation of the evidence, came to the conclusion that the land was granted when the family was joint and therefore, it was a grant on behalf of joint family.
13. It took note of the fact that the Revenue Records included the names of the brothers of Kallappa in the Cultivator's column and it was, therefore, a grant made in favour of the joint family. The Appellate Court also came to the conclusion that the partition set up by Kallappa in the year 1957 had not been established and therefore, the property which was granted to Kallappa would have to be considered as the land granted when the family was joint and Kallappa could not, therefore, claim exclusive possession. The Appellate Court accordingly allowed the appeal and dismissed the suit.
14. As against these divergent judgments, this second appeal has been preferred and admitted to consider the following Substantial Question of Law: -9-
NC: 2023:KHC-K:4925 RSA No. 697 of 2007 " Whether a grant in favour of a member of the family enures to the benefit of all the family members as it is his exclusive property? "
15. The learned counsel for the appellant vociferously contended that when the grant was admittedly made in the name of Kallappa, in law, the land would always have to be considered as a personal grant and would not enure to the benefit of the family members. She submitted that despite this legal position, which was also enunciated in RFA No.223 of 2007 by this Court, both the Courts below had seriously erred in coming to the conclusion that the grant would enure to the benefit of the entire family.
16. The learned counsel for the respondents, on the other hand, supported the judgment and decree of the Appellate Court and sought to rely upon the evidence of PW-1 in which, he had admitted that Sy.No.11 of Tirmalapur village, which had been granted to Thippanna, was given to Kallappa as his share and this by itself
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NC: 2023:KHC-K:4925 RSA No. 697 of 2007 indicated that the family was always treating all the lands that it possessed as joint family property irrespective of in whose name the land had been granted. He also sought to rely upon the deposition of DW-1 during the course of his cross-examination to contend that even according to the plaintiff, the partition of Sy.No.70/1 into three bits had been admitted.
17. The case of Kallappa was that there had been a partition between himself and his three brothers thirty years prior to the filing of the suit. The suit was filed in the year 1989. Thus, according to this plea, the partition was effected only in the year 1959. Admittedly, the land was granted by the Government in the year 1957 and since, the family was admittedly joint, according to the above mentioned plaint averments, it will have to be considered as a land granted to all the members of the family. This is essentially because all the three brothers were living jointly and were cultivating the lands of the family jointly.
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18. In fact, the specific case of Kallappa was that after the partition, he had been allotted the land bearing Sy.No.70/1 in the year 1957. Assuming that the averment in the plaint is a mistake, Kallappa would thereafter be required to establish that there had been indeed a partition prior to the grant of land bearing Sy.No.70/1 in 1957, in which he was allotted Sy.No.97/C-3 and Sy.No.11/C-3. However, there was absolutely no evidence indicating that a partition was effected between the three brothers prior to 1957.
19. Kallappa, though alive, did not choose to examine himself to establish this partition and on his behalf, his son/Hanmanth, who was aged about forty years as of 1992 was examined. In his cross-examination, he has stated as follows:
".......It is not true to suggest that when the suit land was granted by the government, my father and my senior uncle were residing together. I do not remember when the partition took place between my father and senior
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RSA No. 697 of 2007
uncle. My grand father by name
Madappa was alive at the time of
partition. I do not remember when my grand father died. I have got the knowledge of death of my grand father. I was 10 to 12 years old when my grand father died. It is true that partition between my father and my uncles took place about 30 years back. ....."
20. As could be seen from this deposition, he was not aware as to when the partition took place between his father and his uncles. He however admits that his grand- father was alive at the time of the partition and he also admits that he was aged about 10 to 12 years when his grand-father had died. He further goes on to state that the partition between his father and his uncles took place about thirty years back. Since, he deposed in the year 1992, it is obvious that the partition that he was referring to would relate to 1962, which would be a good five years after the land had been granted.
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21. Another factor to be noticed here is that he also deposed as follows:
" ......It is true that the land bearing Sy.No.11 of Tirmalapur village was granted in tenancy in the name of deft.No.1. In that land deft.No.1 has given to me my share. ......"
22. As could be seen from this deposition, he categorically admits that Sy.No.11/C-3 of Tirmalapur village which was granted to his uncle--Thippanna i.e., defendant No.1 by virtue of tenancy, was actually given to him as his share.
23. This evidence also indicates that the family construed not only the land granted to Thippanna but also the land granted to Kallappa as joint family property.
24. A conjoint reading of the deposition and the pleadings would clearly indicate that the lands granted to Thippanna and also the land granted to Kallappa were treated as joint family properties and partitioned.
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NC: 2023:KHC-K:4925 RSA No. 697 of 2007
25. In this regard, the cross-examination of DW-1 i.e., Thippanna's son--Bakkappa would be relevant and the same reads as follows:
" ...... £ÀªÀÄä PÀPÀÌ ©üêÀÄtÚ fêÀAvÀ EzÁÝ£.É CªÀ¤UÉ E§âgÀÄ UÀAqÀÄ ªÀÄPÀ̼ÀÄ EzÀÄÝ M§â£À ºÉ¸ÀgÀÄ £ÁUÀ¥Àà E£ÉÆߧâ£À ºÉ¸g À ÀÄ «oÀ×® EzÉ E§âgÀÄ ºÉtÄÚ ªÀÄPÀ̼ÀÄ PÀÆqÀ EzÁÝg.É CªÀg® É ègÀÆ zÉÆqÀتg À ÀÄ EgÀÄvÁÛg.É CªÀ£À ºÀwÛgÀ MPÀÌ®ÄvÀ£À EzÉ. zÁªÉ d«Ää£À°è £ÀªÀÄä PÀPÀÌ ©üêÀÄtÚ¤UÉ ¥À²ª Ñ ÀÄ ¢QÌUÉ 4 JPÀgÉ 30 UÀÄAmÉ d«ÄãÀÄ §A¢zÉ. ªÀÄzsÀåzÀ°è £ÀªÀÄä PÀPÀÌ PÀ®è¥Àà¤UÉ 4 JPÀgÉ 30 UÀÄAmÉ d«ÄãÀÄ EzÉ. ¥ÀƪÀð ¨sÁUÀPÉÌ £ÀªÀÄä vÀAzÉUÉ 4 JPÀgÉ 30 UÀÄAmÉ d«ÄãÀÄ §A¢zÉ. DV£À PÁ®zÀ°è ¸Àg¥ À A À aÀgÀÄ AiÀiÁªÀ jÃwAiÀiÁV ¥Á®Ä ªÀiÁrzÁÝgÉ D jÃwAiÀiÁV £ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ CªÀgÀ CtÚ vÀªÀÄäA¢gÀÄ ºÀAaPÉÆAqÀÄ EgÀÄvÁÛg.É ¸Àzj À ¥Á®Ä FUÀ 25-30 ªÀµð À PɼU À É DVzÀÄÝ EzÀÄÝ D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ¸Àtª Ú ¤ À zÉÝ. ... ... "
26. As could be seen from this deposition, the line of questioning and the suggestions basically indicate that the plaintiff was admitting the partition. In fact, he categorically states that the partition took place about 25
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NC: 2023:KHC-K:4925 RSA No. 697 of 2007 to 30 years ago when he was very young. The suggestions made to him also indicate that there is an admission that the middle portion of the land was allotted to Kallappa.
27. If the plaintiff chose to cross-examine the son of Thippanna by suggesting the manner in which the suit land was partitioned and they also suggested that the partition took place about 25 to 30 years prior to 1996 when Thippanna's son was examined, this also indicates that the partition was much after 1957.
28. It is, therefore, clear that the suit lands were indeed the joint family properties and they had been partitioned amongst the three brothers and the contention of Kallappa that there was a partition prior to 1957 and the suit land was granted after 1957 cannot be true.
29. As far as the argument of the learned counsel that the land being a granted land, the same would have to be considered as a personal grant and would not enure to the
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NC: 2023:KHC-K:4925 RSA No. 697 of 2007 benefit of the family members as indicated in R.F.A. No.223 of 2007 [PAR] (Sri R. Venkatappa @ Venkat Raju vs. Sri Ramaiah and others - disposed of on 31.03.2022) is concerned, it is to be stated here that the grant that this Court was referring to was a grant made under the Land Grant Rules. However, the grant that had been made in favour of Kallappa, as could be seen from the orders of the Assistant Commissioner, was a land granted to Kallappa under the Hyderabad Special Laoni Rules. Obviously, the judgment rendered in the context of Karnataka Land Grant Rules cannot be made applicable to a grant made under the Hyderabad Special Laoni Rules.
30. It may also be pertinent to state here that if a land is granted to a member of a family when they are joint and when there is also evidence indicating that the land granted to another member was subjected to a partition and given to another member, it cannot be held, as a normal rule, that granted lands would be personal to the grantee.
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31. It may also be relevant to state here that the fact that Kallappa sought for possession of the land after the filing of the suit also indicates that there was a partition in which his brothers were allotted two strips of land. If Kallappa was in exclusive possession, the question of he seeking for possession of the land from his brothers would not arise and it would only indicate that there was indeed a partition in which the land granted to Kallappa was also being divided amongst the three brothers.
32. It may also be relevant to state here that no evidence is produced to indicate that an application was made seeking for grant of land on the ground that Kallappa was either landless or was deserving of land grant due to certain specific conditions. Unless there is some evidence to indicate that the grant sought for was personal to Kallappa, it cannot be assumed that the granted land would be an exclusive grant in favour of Kallappa.
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33. Thus, in the present case, it will have to be held that the grant made in favour of Kallappa would enure to the benefit of all the family members since the family was joint and was not Kallappa's exclusive property.
34. The Substantial question of Law is accordingly answered and the second appeal is dismissed confirming the judgment and decree of the Appellate Court.
Sd/-
JUDGE RK List No.: 1 Sl No.: 25