Karnataka High Court
Gangubai W/O. Maruti Ghadi vs Rama Sateri Ghadi on 9 October, 2019
Equivalent citations: AIRONLINE 2019 KAR 1959, 2020 AIR CC 610 (KAD) 2020 (1) AKR 102, 2020 (1) AKR 102
Author: Alok Aradhe
Bench: Alok Aradhe
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 9th day of October 2019
Present
THE HON'BLE MR.JUSTICE ALOK ARADHE
and
THE HON'BLE MR.JUSTICE P.G.M. PATIL
R.F.A. No.4106 of 2012 (DEC & INJ.)
BETWEEN:
1. SMT.GANGUBAI W/O.MARUTI GHADI,
AGE : 76 YEARS, OCC : HOUSEHOLD WORK,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
2. SHRI.LAXMAN MARUTI GHADI,
SINCE DECEASED BY HIS LRs.
2A. SMT.KASU W/O.LAXMAN GHADI,
AGE : 65 YEARS, OCC : HOUSEHOLD WORK,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
2B. SHRI.ANIL S/O.LAXMAN GHADI,
AGE : 45 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
2
2C. SHRI.NAGESH W/O.LAXMAN GHADI,
AGE : 43 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
2D. SHRI MARUTI S/O.LAXMAN GHADI,
AGE : 40 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
2E. SMT.KOUSALYA W/O.APPANNA DHABALE,
AGE : 35 YEARS, OCC : HOUSEHOLD WORK,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
3. SHRI.GAJANAN S/O.MARUTI GHADI,
SINCE DECEASED BY HIS LRs.
3A. SMT.LAXMI W/O.GAJANAN GHADI,
AGE : 55 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
3B. SMT. SHASHIKALA W/O.PUNDALIK BIRJE,
AGE : 35 YEARS, OCC : AGRICULTURE,
R/O.SHIROLI FATHA, KOLHAPUR,
TAL : DISTRICT : KOLHAPUR,
MAHARASTRA STATE.
3C. SHRI GUNDU S/O.GAJANAN GHADI,
AGE : 25 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
3
PIN-591 302.
3D. MISS. CHAYA D/O.GAJANAN GHADI,
AGE : 19 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
4. SHRI SATERI S/O.MARUTI GHADI,
SINCE DECEASED BY HIS LRs.
4A. SMT.SAVITA W/O.SATERI GHADI,
AGE : 40 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
4B. SHRI SANJAY S/O.SATERI GHADI,
AGE : 24 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
5. SHRI MOHAN S/O.MARUTI GHADI,
AGE : 40 YEARS, OCC : AGRICULTURE,
R/O.GHADI GALLI, KHANAPUR,
TAL : KHANAPUR, DISTRICT : BELGAUM,
PIN-591 302.
...APPELLANTS
(BY SRI.R.M.HIREMATH AND
SRI.HARISH S.MAIGUR, ADVS.)
AND:
1. SHRI RAMA SATERI GHADI,
AGE : 47 YEARS, OCC : AGRICULTURE,
CLAIMING TO BE
4
R/O.KHANAPUR, TAL : KHANAPUR,
BUT RESIDING AT SHINOLI,
TALUK : CHANDAGAD, PIN-416509.
2. SMT. LADI @ RUKMINI W/O.VITHAL SAHUKAR,
AGE : 49 YEARS, OCC : HOUSEHOLD WORK,
R/O.SHINOLI, TAL : CHANDAGAD,
PIN-416509.
3. THE KHANAPUR CO-OPERATIVE BANK,
REPRESENTED BY ITS GENERAL MANAGER,
AT /TAL : KHANAPUR, DIST : BELGAUM,
PIN : 591 302.
4. SHRI RAJESH DATTU SAVALEKAR,
AGE : 38 YEARS, OCC : BUSINESS,
R/O.RAVIWARPETH, KHANAPUR,
TAL : KANAPUR, DIST : BELAGAUM,
PIN - 591302.
...RESPONDENTS
(By SRI. SANGRAM S. KULKARNI, ADV. FOR R1,R2;
R3 SERVED; R4- SERVICE HELD SUFFICIENT)
THIS RFA FILED U/S. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DTD:11.04.2012 PASSED IN
O.S.NO.134/2008 (OLD NO. O.S. 208/2005) ON THE FILE
OF THE SENIOR CIVIL JUDGE KHANAPUR, DECREEING THE
SUIT FILED FOR DECLARATION & CONSEQUENTIAL RELIEF
OF INJUNCTION.
THIS RFA COMING ON FOR FINAL HEARING
THIS DAY, ALOK ARADHE, J, DELIVERED THE
FOLLOWING:
5
JUDGMENT
This appeal has been filed by the defendants under section 96 of the Code of Civil Procedure, 1908, being aggrieved by the judgment and decree dated 11.04.2012 passed by the trial Court by which suit filed by respondents No.1 and 2 has been decreed.
2. Facts giving rise the filing of this appeal briefly stated are that respondents No.1 and 2 filed the suit seeking relief of declaration and permanent injunction. The claim in the suit was based on the ground that the plaintiffs are the owners of agricultural land bearing R.S.No.30/2 situate at Khanapur, measuring 3 acres and 38 guntas. It was further pleaded that the plaintiffs and defendants No.1 to 5 belong to Ghadi family of Khanapur and are members of joint family. It was also pleaded that father of plaintiffs namely Sateri Laxman Ghadi was brother of father of defendants No. 2 to 5 namely Maruthi. 6 Deceased Maruthi married one Smt.Laxmibai. Out of the wedlock, defendant No.2 namely Laxman was born. After the death of aforesaid Laxmibai, deceased Maruthi again got married to Smt.Gangubai namely defendant No.1. The defendants No.3 to 5 are her children. It was also pleaded that defendant No.6 is stranger to the Ghadi family and has been arrayed as party to the suit, as he claims to be in possession of the some area of the suit land.
3. It was averred that the suit property is governed by the provisions of Karnataka Land Reforms Act. Initially the suit land was in cultivating possession of deceased Sateri, namely father of plaintiffs as a tenant and after his death, members of aforesaid joint family continued to be in joint possession of suit land. It was also mentioned that Sateri and Maruthi were jointly cultivating the land in question and in possession of the suit lands and no partition had taken 7 place between the plaintiffs and defendants No.1 to 5. It is the stand of the plaintiffs that though the land was granted in favour of defendants No.1 to 5 as occupants under the Karnataka Land Reforms Act, however, it enures for the benefit of all the members of family, including the plaintiffs.
4. Thus, the plaintiffs and defendants No.1 to 5 being joint owners are in possession of the land jointly. However, on 07.11.2010, defendants obstructed the plaintiffs in carrying out agricultural operations and denied the joint title of the plaintiffs over the suit land. Thereupon, the plaintiffs filed the suit seeking relief of declaration that they are joint owners of suit property against defendants No.1 to 5 and consequential relief of permanent injunction
5. The defendants No.1 to 5 filed the written statement in which the averments made in the plaint were denied. It was pleaded that one Sateri was the 8 brother of Maruthi, their father, and the aforesaid Sateri had left behind him only one daughter viz., Mogra Bai, who was married to one Dondiba Jadhav. It was pleaded that except Mogra Bai, the deceased did not had any legal heirs and the plaintiffs are in no way related to Sateri. It was pleaded that defendant No.6 is the purchaser and he is in possession of area which he has purchased. It is averred that after the death of Sateri and Maruthi, defendants No.1 to 5 are in cultivating possession of the suit land and they made an application to the Land tribunal, Khanapur, for grant of occupancy rights by filing a declaration in form No.7. It was also stated that Mogra Bai did not claim any right, title or interest in the tenancy rights and gave her consent for grant of occupancy rights in favour of defendants No.2 to 5. It was also pointed out that the Land Tribunal had granted occupancy rights to defendants No.2 to 5 only and plaintiffs are neither the joint possession nor the joint owners of the land. It 9 was also pleaded that defendants have got converted an area of 20 guntas out of the suit land for non- agricultural use. An objection with regard to maintainability of the suit with regard to the non- joinder of necessary parties was also taken and it was also stated that the plaintiffs have not challenged the transfer deeds. It was also pleaded that the plaint does not disclose any cause of action.
6. The Trial Court, on the basis of the pleadings of the parties, framed the issues and thereafter framed additional issues on 06.06.2008 and 17.03.2011. The Trial Court thereafter, recorded the evidence of the parties. The plaintiffs examined P.W.1- Rama Sateri Ghadi and P.W.2-Vishnu Mahadev, the Head Master of the school, whereas the defendants examined Mohan Maruti Ghadi as D.W.1 and Rajesh dattu @ Dattatreya Savalekar as D.W.2. The trial Court decreed the suit of the plaintiffs and it was held 10 that they are joint owners of the suit land. However, the Trial Court invoked the provisions of Order VII Rule 7 of the Code of Civil Procedure, and granted the relief of partition and held that the plaintiffs are entitled to get half share in the suit property.
7. Learned counsel for the appellants submitted that the plaintiffs have not produced any document to prove their identity. It is pointed out that summons were served to them in the State of Maharashtra and the plaintiffs are not residents of Khanapur. It is also pointed out that Ex.P.8 does not disclose the name of the father of the plaintiff No.1. it is also submitted that even if Ex.P8 is relied upon, it discloses the date of birth of plaintiff No.1 as 01.05.1958, whereas plaintiff No.1, at the time of deposition of his evidence, has mentioned his age as 32 years only, whereas the same ought to have been 51 years. It is also submitted that the plaintiffs never 11 submitted the application for grant of tenancy right in Form No.7 and the defendants No.2 to 5 alone made aforesaid application in which Mogra Bai submitted that she has no objection to grant occupancy rights in respect of the land in question in favour of defendants No.2 to 5. it is also pointed out that in the voters' list viz., Exs.D.8 to D.12, the name of defendants alone is show and the name of plaintiff does not appear which shows that the plaintiffs are not the residents of Khanapur. It is further submitted that the Tahsildar had no authority to issue the survivorship certificate- Ex.P.9. Attention of this Court has also been invited to paragraph 2 of the cross-examination of P.W.1 viz., Rama Sateri Ghadi and it has been pointed out that he has admitted that Sateri had only one daughter viz., Mogra Bai. However, the aforesaid admission has not been taken into account by the trial Court. It is further argued that no relatives were examined to prove that the plaintiffs are the members of the joint family. 12 Lastly, it is urged that in any case, the Trial Court grossly erred in invoking the provisions of Order VII Rule 7 of the Code of Civil Procedure and in granting the relief of partition instead of declaration of joint ownership and injunction as prayed for by the plaintiffs.
8. On the other hand, learned counsel for the respondents as supported the judgment and decree passed by the trial Court. It is argued that he Trial Court, on the basis of meticulous appreciation of the evidence on record, has recorded the findings and, in fact, the finding that the plaintiffs have half share in the suit land is based on an admission made by D.W.1 viz., Mohan Ghadi. It is further submitted that grant of occupancy rights in respect of suit land in favour of defendants No.2 to 5 enures to the benefit of the entire family and the plaintiffs had adduced evidence to show that plaintiffs and defendants No.2 to 5 were 13 the members of the joint family. It is submitted that the trial court was well within its right to mould the relief under Order VII Rule 7 of the Code of Civil Procedure and to grant the relief of partition. In respect of the aforesaid submissions, reliance has been placed on the Division Bench decisions of this Court in the case of Rangappa Vs. Jayamma, ILR 1987 KAR 2889 and in the case of Shivappa Fakirappa Shetsanadi Vs. Kannappa Mallappa Shetsanadi, ILR 1987 KAR 3155.
9. We have considered the submissions made on both sides and have scanned the record. We are conscious of the fact that first appeal is a valuable right of the appellant and all the questions of fact and law decided by the Trial Court are open for reconsideration and the Court should deal with all the issues and the evidence led by the parties before recording its findings (See B.M.Narayana Gowda Vs. 14 Shantamma, (2011)15 SCC 476; and Vinod Kumar Vs. Gangadhar (2015)1 SCC 391)
10. After careful scrutiny of the pleadings of the parties and the evidence adduced by them, following issues arise for our consideration in this appeal:
i) whether the plaintiffs are the children of deceased Sateri?
ii) whether the plaintiffs and defendants No.2 to 5 are the members of the joint family and whether plaintiffs have half share in the said land?
iii) whether occupancy rights granted in favour of defendants No.2 to 5 would enure to the favour of plaintiffs as well, as they are the members of the joint family?
iv) whether the Trial court, in exercise of powers under Order VII Rule 7 of the Code of Civil Procedure in a suit for declaration and injunction, would have granted the relief of partition?15
Now, we shall proceed to deal with the issues ad- seriatum.
11. Admittedly, defendants No.1 to 5, in their written statement, have pleaded that Maruthi was having a brother viz., Sateri. However, their stand is that plaintiffs are not the children of the deceased Sateri and the deceased Sateri was having only one daughter viz., Mogra Bai who was married to one Dondiba Jadhav. From the perusal of the school certificate-Ex.P.8, which is a public document, it is evident that name of father of plaintiff No.1 viz., Rama Sateri Ghadi, who studied in Government Marathi Model School, Khanapur, has been mentioned as 'Sateri Ghadi'. From perusal of Ex.P.9 viz., the Survivorship Certificate issued by the Tahasildar it is axiomatic that aforesaid Sateri Laxman Ghadi expired on 05.02.1963 leaving behind the daughters and sons namely the plaintiffs in the suit. Ex.P.10 is also a 16 transfer certificate issued by the Head Master, Government Marathi Model School, Khanapur, where the name of father of Rama Sateri Ghadi is shown as 'Sateri Ghadi' and the aforesaid transfer certificate was issued as per the order of the Trial Court dated 18.09.2010. It is pertinent to mention that the Head Master of the School has been examined as P.W.2, who has stated that Exs.P.8 and P.10 have been issued on the basis of the entries made in the records of the school. In any case, Exs.P.8 and P.10 are public documents and their certified copies have been produced. Therefore, the aforesaid documents have been duly proved which shows that plaintiff No.1 is the son of Sateri. Thus, from the aforesaid material available on record, it is evident that Maruthi and Sateri Ghadi were real brothers and plaintiffs are sons of Sateri. Thus, the first issue has to be answered in the affirmative.
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12. Admittedly, it is not the case of either of the parties that the land has been subjected to partition. We have carefully perused evidence of P.W.1 viz., Rama Sateri Ghadi, who in his cross-examination, has admitted that Sateri had only one daughter viz., Mogra Bai. However, in his further cross-examination, he has admitted that he is the son of Sateri. However, it is pertinent to mention that no challenge to the aforesaid statement has been made in further cross- examination of P.W.1. It is well settled in law that if a statement is made and no challenge is made to the same, in the further cross-examination, the same is taken to be accepted (see Muddasani Venkata Narsaiah Vs. Muddasani Sarojana, (2016)12 SCC
288). It is also pertinent to mention here that D.W.1 viz., Mohan Maruti Ghadi, in his cross-examination, has admitted that his father's name was Maruti and his uncle's name was Sateri and both of them were in joint cultivation and possession and their names were 18 recorded in the revenue records. It has further been admitted by D.W.1 that Maruti and his brother Sateri, who is the uncle of D.W.1, each had half share in the suit property. Thus, from the aforesaid material available on record, it is evident that plaintiffs have been able to prove that they had half share in the suit land. Therefore, the inevitable conclusion is that the plaintiffs and defendants No.2 to 5 are members of the joint family and are co-owners in respect of the land in question. Accordingly, the second issue is answered.
13. In Shivappa Fakirappa Shetsanadi's case (supra), the Division Bench of this Court has held that where grant is made in favour of one of the members of the family it enures to the benefit of all the members of the family. We are in agreement with the view taken by the Division Bench in Shivappa Fakirappa Shetsanadi's case (supra). Therefore occupancy rights granted in favour of defendant Nos.2 19 to 5 shall enure to the benefit of plaintiffs. Accordingly, the third issue is answered.
14. Now, we may advert to the question of grant of relief of partition by the trial court. Admittedly, the plaintiffs had filed the suit seeking the relief of declaration with regard to their joint ownership in respect of the land in question and for permanent injunction restraining the defendants from ousting the plaintiff from the joint possession. However, it is pertinent to note that the Trial Court, while decreeing the suit, has granted a decree of declaration that the plaintiffs are joint owners of the suit land. However, by exercising power under Order VII Rule 7 of the Code of civil Procedure, relief of partition has been granted and it has been held that the plaintiffs are entitled to get half share in the suit property and it has been directed that the partition shall be effected under section 54 of the Code of Civil 20 Procedure by appointment of a Court Commissioner. The Supreme Court in Rajendra Tiwary Vs. Basudeo Prasad and Another reported in AIR 2002 SC 136, while dealing with the scope and ambit of Order VII Rule 7 of the Code of Civil Procedure, has held that where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties; however, under the said provisions, a relief larger than the one claimed by the plaintiff in the suit cannot be granted.
15. Similarly, the Division Bench of this Court in the case of Rangappa (supra) has held that the court while moulding the relief must take care to see that the relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit; the court 21 has to further see that it occasions no prejudice or causes embarrassment to the other side and it is not larger than the one claimed in the suit, even if the plaintiff is really entitled to it, unless and until he amends the plaint and it should not barred by time on the date of presentation of the plaint. However, in the instant case, the trial Court has not adverted to any of the aforesaid aspects of the matter, and in a cryptic and cavalier manner by merely referring to Order VII Rule 7 of the Code of Civil Procedure has granted the relief of partition by taking recourse to Order VII Rule
7. No reasons have been assigned by the Trial Court for granting the relief of partition. Therefore, the judgment and decree passed by the trial Court to the aforesaid extent cannot be sustained in the eye of law. Accordingly, issue No.4 is answered.
16. So far as the submission made on behalf of the appellant that the Tahsildar was not competent to issue Ex.P.9 is concerned, suffice it to say that Ex.P.9 22 is the survivorship certificate and not the succession certificate and the Tahasildar is competent to issue survivor ship certificate. Similarly, the contention that Ex.P.8 does not disclose the name of the father of plaintiff No.1 is factually incorrect as the name of the father of plaintiff No.1 has been disclosed as Sateri Ghadi in Ex.P.8. It is trite law that evidence has to be read as a whole. Even though P.W.1, in the cross- examination, has stated that Sateri had only one daughter viz., Mogra Bai, however, in examination-in- chief and in later part of the examination-in-chief, he has clearly stated that he is the son of Sateri to which no challenge has been made in further cross- examination. Therefore, the aforesaid statement is to be taken as accepted. The alleged admission on behalf of P.W.1 is of no assistance to the appellant in the fact-situation of the case. The suit is in respect of the land measuring 3 acres and 38 guntas and therefore, non-production of document in respect of house 23 property or non-mentioning of the name of the appellants in the voter's list is of no consequence as possession of one of the joint owners is treated to be possession on behalf of all the joint owners in law and for that joint owner need not be a resident of the place where the property is situate. Therefore, the aforesaid contention is also of no assistance under the facts and circumstances of the case.
17. The Trial court on the basis of the meticulous appreciation of the evidence on record, has recorded the findings. The aforesaid findings are based on evidence on record and cannot be said to be perverse. We concur with the view taken by the trial Court on the basis of the evidence on record. In view of the preceding analysis, the impugned judgment and decree deserves to be modified and it is declared that plaintiffs are joint owners of the suit land along with defendants No.1 to 5. In view of the well settled legal 24 position that a co-owner deemed to be in possession of the joint property, respondents No.2 to 5 are restrained from forcibly ousting the plaintiffs from joint possession of the suit land. The impugned decree insofar as it pertains to grant of relief of partition is hereby set aside.
18. Accordingly, the appeal is disposed off. In the facts and circumstances of the case, there shall be no order as to costs.
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