Karnataka High Court
Imamsa Chandas Gurikar And Ors vs Mohdinsa Nabisa Gurikar & Ors on 14 December, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
REGULAR FIRST APPEAL NO.588/1996
BETWEEN:
1. Imamsa Chandas Gurikar
Age: Major, R/o Bidarkundi,
Muddebihal Taluka.
(Died on 12.11.2007)
Since deceased by L.Rs.
1.a) Lalabi
W/o. Imamsa Chandsa Gurikar,
Age: 78 Years,
R/o. Bidarkundi, Tq: Muddebihal,
Dist: Bijapur, Karnataka.
(Died on 30.03.2012)
1.b) Chandasa
S/o. Imamsa Chandsa Gurikar,
Age: 48 Years,
R/o. Bidarkundi, Tq: Muddebihal,
Dist: Bijapur, Karnataka.
1.c) Davalsa
S/o. Imamsa Chandsa Gurikar,
Age: 42 Years,
R/o. Bidarkundi, Tq: Muddebihal,
Dist: Bijapur, Karnataka.
1.d) Smt. Davalabi
-: 2 :-
W/o. Rajesa Dodamani,
Age: 55 Years, R/o. Vitavalli,
Tq: & Dist: Davanageri.
1.e) Smt. Rajama
W/o. Khajesa Line,
Age: 40 Years, R/o Lane Galli,
Hungund, Dist: Bagalkot, Karnataka.
2. Rajesa Chandasa Gurikar,
Age: Major, Occ: Govt. Service,
Now at Develalpur Taluka,
Bailhongal, Belgaum Dist.
(Died on 16.07.2013)
Since deceased by L.Rs.
2.a) Masabi
W/o. Rajesa Gurikar,
Age: 70 Years, Occ: Household,
R/o. Hoovin-Hippargi,
Tq: Basavanbagewadi, Dist: Vijayapur.
2.b) Mamtazabi
W/o. Modinsab Dhavalagi,
Age: 58 Years, Occ: Household,
R/o. Sangamesh Naar, Muddebihal,
Dist: Vijayapur.
2.c) Chandasa S/o. Rajesa Gurikar,
Age: 57 Years,
Occ: Government Servant (PDO),
R/o. Hoovin-Hippargi,
Tq: Basavanbagewadi, Dist: Vijayapur.
2.d) Mahiboosab
S/o. Rajesa Gurikar,
Age: 56 Years, Occ: Teacher,
2.e) Abdul Razak
-: 3 :-
S/o. Rajesa Gurikar,
Age: 55 Years, Occ: Agriculture,
2.f) Malanbi
W/o. Vsanonali Mangoli,
Age: 48 Years, Occ: Household,
2.g) Noorjan
W/o. Babusa Motagi,
Age: 46 Years, Occ: Household,
2.h) Ramazanbi
W/o. Khajapeer Mujewar,
Age: 45 Years, Occ: Job,
2.i) Mohammad Rafiq
S/o. Rajesa Gurikar,
Age: 45 Years, Occ: Coolie,
All are R/o. Hoovin-Hippargi,
Tq: Basavan Bagewadi, Dist: Vijayapur.
3. Fatma
W/o. Lalsa Hungund,
Age: Major, Occ: Household,
R/o. Mukihal, Muddebihal,
(During the pendency of the
suit she died and her L.Rs).
4. Ameensa Lalsa Hagarigond & Shavalgi,
Age about 50 Years,
Occ: Agriculturist and Dalali,
R/o. Muddebihal.
5. Lalse Lalsa Hagargond & Dhavalagi,
Age: 39 Years, Occ: Coolie,
R/o. Muddebihal, Now at Goa.
6. Kashimsa Taranal,
-: 4 :-
Age: about 44 Years,
Occ: Household,
R/o. Mundanal, Muddebihal Taluk.
7. Lalama
W/o. Murtujasa Mulla,
Age: about 41 Years, Occ: Household,
R/o. Murnal, Muddebihal taluka.
8. Sultanama
W/o. Murtujasa Poiesh,
Age: about 38 Years, occ: Household,
R/o. at Hunashyal, Sindagli taluka,
Now at Panvel.
9. Biyamma
Since dead Rep. by LRs.
9.(a) Kashimbi
W/o. Davalsa Mulla,
Age: Major, At Post: Bidarkundi,
Tq: Muddebihal, Bijapur Dist.
(Amended as per C.O. dated 06.03.2000)
Since deceased by L.Rs.
9.(a)(1) Fatima
W/o. Nabisa Makinal,
Age 62 Years, Occ: Household,
R/o. Hiroor, Tq: Muddebihal,
Dist: Vijayapur.
9.(a)(2) Bandagisa
S/o. Davalsa Mulla,
Age: 58 Years, Occ: Retrd. Engg.,
R/o. Takalki, Tq: B. Bagewadi,
Dist: Vijayapur.
9.(a)(3) Lalsa S/o Davalsa Mulla,
-: 5 :-
Age: 45 Years, Occ: Govt. Servant,
R/o. Takalki, Tq: B Bagewadi,
Dist: Vijayapur.
9.(b) Jainama
W/o. Aminsa Gundal,
Age: Major,
R/o. Bidarkundi, Tq: Muddebihal,
Dist: Vijayapur.
10. Ladma
Since dead Rep. by L.Rs.
10.a) Lalesa
S/o. Hussainsa Kannur,
Age: 40 Years,
10.b) Hussainbe
W/o. Aminsa Muttannavar
Age: 30 Years.
10.c) Davalsa
S/o. Hussaina Kannur
Age: 28 Years.
All R/o Kannal, Basavan Bagewadi Taluka.
(Amended as per C.O. dated 25.07.2003)
11. Khadirbi
W/o. Kashimsa Patel Biradar,
Occ: Household,
R/o. Gudnal, Muddebihal Taluka.
12. Fathama W/o. Yarnal,
Occ: Household,
R/o. Takkalki,
Basavan Bagewadi Taluka. ... Appellants
-: 6 :-
(By Sri: B.B. Patil, Advocate a/w Sri A.M. Nagral, Advocate
for A-1(b to e), A-9(a)(1) to A-9(a)(3), A2(a to i), A-1, A-
9, A-3; Appeal abated against A-2 and A-6 vide order
dated 22.11.2016)
AND:
1. Mohdinsa Nabisa Gurikar,
Occ: Agriculture, R/o. Bidarkundi,
Since deceased by L.Rs.
1a) Sayyedbi
W/o. Mohinisa Gurikar,
Age: 57 Years, R/o. Bidarkundi,
Tq: Muddebihal, Dist: Bijapur.
Deceased,
"Vide order dated 31.07.2017
the L.Rs. are already on record
as Respondent No.2 to 4"
2. Moulasa Nabisa Gurikar,
Age: Major, Occ: Agriculture,
R/o. Bidarkundi.
3. Rajesa Nabisa Gurikar,
Age: Major, Occ: Agriculture,
4. Dastagirsa Nabisa Gurikar,
Age: Major, Occ: Agriculture,
All R/o Bidarkundi,
Muddebihal Taluka. ... Respondents
(By Sri: Ameet Kumar Deshpande, a/w
Sri R.M. Kulkarni, Advocates for R-2 to R-4)
*****
-: 7 :-
This Regular First Appeal is filed under Section 96 of
CPC against judgment and decree dated 29/06/1996,
passed in O.S.No.456/88, on the file of III Addl. Civil
Judge, Bijapur, dismissing the suit for partition and
separate possession.
The judgment in this appeal having been reserved
on 10/08/2017 and it being listed for Pronouncement
today, court pronounced the following:
JUDGMENT
This regular first appeal has been heard afresh pursuant to the directions issued by the Hon'ble Supreme Court in Civil Appeal No.67/2016, dated 04/01/2016.
2. This appeal is filed by the defendants, in O.S.No.456/1988, being aggrieved by the judgment and decree passed by the III Additional Civil Judge, Bijapur, dated 29/06/1996. That suit was filed by the respondents/plaintiffs seeking the relief of partition, separate possession and declaration.
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For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial Court.
3. The respondents/plaintiffs filed the suit in respect of two landed properties bearing RS.Nos.116 and 246, measuring 28 acres 30 guntas and 28 acres 11 guntas, respectively situated at Bidarkundi Village and suit houses bearing MPC Nos.75 and 76, (hereinafter referred to as "the suit schedule properties"). According to the plaintiffs, one Imamsa was the original propositus, he had two sons namely, Chandsa and Lalsa. Lalsa, the second son of the original propositus-Imamsa, died long ago without having any legal heirs. Chandsa had two wives namely, Anasarama and Rajama. Through Ansarama, Chandsa, begot a son, Nabisa, who is the husband of defendant No.1 and father of defendant Nos.2 to 5. Through his second wife, Rajama, Chandsa had six children namely, two sons who are plaintiff Nos.1 and 2 and four daughters i.e., plaintiff Nos.3 to 5 and one -: 9 :- Sahebi, the deceased mother of plaintiff Nos.6 and 7. Chandsa being the elder son of Imamsa, died leaving behind eight legal heirs namely, widow Rajama, three sons and four daughters. Ansarama, his first wife, predeceased Chandsa. Nabisa died on 17/01/1976, leaving behind his legal heirs namely, his widow and sons, defendants in the suit. His widow, Chandama died on 19/09/1988.
4. According to the plaintiffs, the suit lands were formerly walikaraki lands. The family of plaintiffs and defendants was a walikaraki family. In the erstwhile Bombay State, walikaraki lands were continued only with the officiating walikar who usually happened to be the eldest member and they were not partible. Later Bombay High Court held that the suit lands were watan lands and as such they were heritable and partible. Even then the Government of the erstwhile Bombay State did not permit walikaraki lands to be partitioned by metes and bounds and it continued only with the officiating walikar. This state of affairs continued till the reorganization of states -: 10 :- and formation of new Mysore State, on 01/11/1956, by which, four districts of north Karnataka i.e., Bijapur, Belgaum, Dharwad and Karwar, were added to Mysore State. After reorganization of State of Mysore, it was renamed Karnataka State on 01/11/1973.
5. That the Karnataka Village Offices Abolition Act, 1961, was enacted, and it came into force on 01/02/1963. ("KVOA Act, 1961", for the sake of brevity). All village offices and watans including walikaraki watans were abolished and the right to hold such offices and the emoluments attached thereto stood extinguished. The lands annexed to the village office stood resumed by the State Government subject to the right of the holders of the village offices immediately prior to the appointed date i.e., 01/02/1963, being given the right of regrant to them on payment of the occupancy price prescribed by law.
6. According to the plaintiffs the suit lands being former walikaraki lands stood resumed by the State Government on 01/02/1963, under the provisions of the -: 11 :- said Act. The suit lands were regranted in the name of defendants by Tahasildar, Muddebihal, on 24/06/1984, and the order of regrant has been confirmed by the learned Additional District Judge, Bijapur, in Misc.No.5/84 on 04/07/1988. That prior to 24/06/1984, there were number of proceedings between the plaintiffs and deceased, Nabisa in the matter of regrant of the suit lands. In some cases regrant was made in the name of Nabisa and in other cases the regrant was made in the joint names of Nabisa and plaintiff Nos.1 and 2. However, the final order regranting the suit lands was made only in the name of the present defendants and Chandabi, by the Tahasildar, Muddebihal on 24/06/1984, which has been confirmed in Misc.No.5/84 on 04/07/1988. The said judgment is only with regard to the question of regrant of the suit lands and not with regard to the question whether the plaintiffs are entitled to get their share in the said regranted lands as the legal representatives of their father, Chandsa, along with defendants. The said question was not involved in the previous proceedings referred to above. -: 12 :-
7. According to the plaintiffs, there was no partition of the suit lands as well as the suit houses mentioned above between deceased Nabisa and plaintiffs who are admittedly the legal heirs of deceased Chandsa. The parties are Muslims by religion and are governed by their personal law. Deceased Nabisa and plaintiffs have inherited the suit lands and houses as legal heirs of Chandsa in definite share as tenants in common. That MPC Nos.75 and 76 constitute a single house and the same is their ancestral property. That the plaintiffs could not have filed the suit for partition earlier as the suit lands were not partible. Therefore, the parties herein are in joint possession of the suit lands and after the death of Nabisa (and the regrant order attaining finality), they have sought for partition. That the right to sue for partition and separate possession of their shares in the suit lands accrued to the plaintiffs on 24/06/1984, when the Tahasildar, Muddebihal passed an order, regranting the suit lands in the name of defendants on 04/07/1988 and -: 13 :- when the said order was confirmed by the Additional District Judge, in Misc.Appeal No.5/84. That according to the recent decisions of this Court, the junior members of the family are entitled to claim partition in the regranted lands after the regrant is made in favour of senior member. According to the plaintiff, although the regrant is made in favour of senior member, it enures for the benefit of all the members of the family. In the instant case, regrant of suit lands has been made in favour of defendants as the legal heirs of Nabisa, who was the senior member of the family of plaintiffs and defendants. That in Misc. No.5/84, the learned Additional District Judge, Bijapur, has clearly observed that the plaintiffs are at liberty to resort to any legal remedy available to them under law to get their share by way of partition and separate possession and hence, the suit has been filed.
8. The plaintiffs have further averred that the expression walikar and shetsanadi are synonymous and hence, the lands attached to the said offices also have -: 14 :- similar consequences and therefore, walikar land and shetsanadi land are also synonymous. That the plaintiffs and the deceased Nabisa are tenants-in-common and they are enjoying the suit lands as tenants-in-common and after the death of Nabisa, the properties are with the present defendants. Plaintiffs have set out the shares in the suit lands and have contended that together they are entitled to 33/40th share in the suit lands, while the defendants are entitled 7/40th share jointly. But the defendants do not wish to give plaintiffs their share in the suit lands, although plaintiffs have demanded the same. Therefore, the suit was filed seeking a decree of partition and separate possession of 33/40th share in the suit properties in favour of plaintiffs jointly and for a declaration that they have got that share and for an enquiry regarding accounts, in respect of the income earned from their extent in the suit lands and for delivery of possession of suit lands and other incidental reliefs. -: 15 :-
9. In response to the suit summons and Court notices issued by the trial Court, defendants appeared through their Advocate, but defendant No.3 only filed his written statement, while the other defendants adopted the said written statement. In his written statement, defendant No.3 has contended that the plaintiffs have filed a false claim against the defendants that the suit is untenable, both in law and on facts. That the suit lands are not the joint properties of the family of plaintiffs and the defendants. The suit lands are exclusive properties of defendants' family. Therefore, the plaintiffs cannot claim any partition in the suit lands. That insofar as house properties are concerned, there was an oral partition which took place between plaintiff Nos.1 and 2 and deceased Nabisa, sometime in the year 1953 and house property bearing MPC No.76 was allotted to the share of the deceased Nabisa while MPC No.75 went to the share of Imamsa and Rajesa. The respective parties have been enjoying the said properties since the year 1953. Plaintiffs -: 16 :- are hence not entitled to claim partition in the suit house properties.
10. Defendants have also denied that plaintiffs and defendants are part of walikaraki family. That plaintiffs family is nowhere concerned with the walikaraki family of Bidarkundi Village, at no point of time plaintiff No.1 performed walikaraki services in his own right. After the death of Chandsa in 1953, Nabisa i.e., father of defendant Nos.1 to 4 made an application to the then Tahasildar, Muddebihal, for appointing him as the walikar of Bidarkundi Village and Nabisa was accordingly appointed as walikar of the said village under the orders of the Tahasildar, dated 20/08/1954. Against the said order, plaintiff No.1 - Imamsa, had preferred an appeal before the Pranth Officer, Bagalkot Division in WMS No.1228. The said appeal was dismissed on 30/11/1954, confirming the order of Tahasildar and Nabisa officiated as walikar of the said Bidarkundi Village, till the enforcement of the KVOA Act, 1961. That the suit lands were regranted in favour of -: 17 :- Nabisa in lieu of services rendered by him as a walikar of Bidarkundi Village. After the enforcement of the said Act, the suit lands were resumed by the State Government on 01/02/1963. Thereafter, Nabisa made an application on 29/09/1967, for regrant of the suit lands in his favour. Plaintiff No.1 also filed an application for regrant of the suit lands in favour of his family and for the family of defendants jointly, on the premise that the lands belonged to the joint family of the plaintiffs and defendants. After a keen contest for about seventeen years, the suit lands were finally regranted in favour of defendants only by rejecting the claim of plaintiff Nos.1 and 2. Thus, the regrant of the suit lands made in favour of defendants enures only to them and not to the plaintiffs. Therefore, plaintiffs cannot seek the relief of partition and separate possession of the said lands.
11. According to the defendants, the contention of the plaintiffs that the suit lands have now become partible and they are entitled to a share in the said lands is not -: 18 :- tenable, as the plaintiffs have no interest in them inasmuch as the suit lands were granted in favour of Nabisa in his individual capacity solely for walikar services rendered by him till the enforcement of KVOA Act, 1961. It is further averred that the suit houses are not joint and that the plaintiffs are not entitled to a share in the house properties. That the house properties were partitioned in the year 1953 itself and the property bearing MPC No.76 fell to the share of deceased Nabisa and property No.75 fell to the share of Imamsa and respective families have been enjoying the said houses separately since then. According to defendant No.3, it is false to contend that the families of plaintiffs and defendants have inherited the suit lands as legal heirs of Chandsa. Further, it is false to state that plaintiffs are in joint possession of suit lands along with deceased Nabisa and after his death they are in joint possession with the present defendants. That at no point of time plaintiffs were in joint possession of suit lands along with deceased Nabisa or with the present defendants. Therefore, plaintiffs have no right to sue for -: 19 :- partition and separate possession of their alleged share in the suit lands and that no right has accrued to them on 24/06/1984. Further, the defendants have denied that the plaintiffs and deceased Nabisa were tenants in common and the plaintiffs are now tenants in common with the present defendants. That at no point of time the plaintiffs were in joint possession of the suit lands along with deceased Nabisa and after his death with the present plaintiffs insofar as the suit lands are concerned. According to the defendants, plaintiffs cannot claim to be tenants in common along with defendants and hence they are not entitled to any share much less 33/40th share in the suit properties. Therefore defendants sought for dismissal of the suit.
12. On the basis of the aforesaid rival pleadings, the trial Court framed the following issues and additional issues for its consideration:
1. Whether the defendants prove the oral partition in respect of suit houses as -: 20 :- contend in Para-2 of their written statement?
2. Whether the defendants prove that the suit lands were first granted in the name of their father Nabisaheb in his individual capacity and as such they are exclusive properties of the defendants' family ?
3. Whether the plaintiffs prove that the regrant of the suit lands in favour of defendants enures for the benefit of the families of the plaintiffs and defendants, as alleged ?
4. Whether the plaintiffs prove that they were enjoying the suit lands as tenants in common along with Nabisab and after his death with the present defendants, as alleged?
5. Whether the plaintiffs are entitled to partition and separate possession of 33/40th share in the suit properties?
6. Whether the plaintiffs are entitled to the declaration sought for?
7. What decree or order?-: 21 :-
Additional issue
1. Do plaintiffs prove that the suit lands are of the joint ownership of themselves and defendants ?
13. In support of their case, second plaintiff examined himself as PW.1. Another witness was examined as PW.2. Plaintiffs produced twenty documents, which were marked as Exs.P-1 to P-20. Defendant No.3 was examined as DW.1. They produced fifteen documents, which were marked as Exs.D-1 to D-15.
14. On the basis of the said evidence, the trial Court answered issue Nos.1 and 2 'in the affirmative' and issue Nos.3 to 6 and additional issue 'in the negative' and dismissed the suit by judgment and decree dated 29/06/1996. Being aggrieved by the dismissal of the suit, plaintiffs preferred this appeal which was allowed by this Court by judgment dated 08/07/2004. The suit filed by the plaintiff was decreed. Being aggrieved by the said judgment and decree of this Court, defendants preferred Special Leave Petition before the Hon'ble Supreme Court, -: 22 :- which was converted to Civil Appeal No.67/2016, and the same was allowed on 04/01/2016, by setting aside the judgment of this Court and remanding the matter for a fresh decision in accordance with law. In its judgment, the Hon'ble Supreme Court has observed that no clear finding has been recorded by this Court on the question, whether, the land was regranted in favour of the defendants for the benefit of the families of both plaintiffs and defendants or only for defendants and, whether, there was partition in the presence of village elders. In the circumstances, the appeal has been heard at length.
15. I have heard learned counsel for the appellants and learned counsel for respondent Nos.2 to 4 and perused the material on record as well as the original record.
16. Appellants' counsel contended that the trial Court was not right in dismissing their suit. That the suit lands and the house properties are the joint properties of the families of plaintiffs as well as defendants and the plaintiffs and defendants are tenants-in-common vis-à-vis -: 23 :- the suit properties. That on the death of Chandsa, plaintiffs became entitled to claim partition and separate possession in the said properties. Drawing my attention to the genealogy, appellants' counsel submitted that one Imamsa, was the original propositus. He was holding the office of walikar. The suit lands were attached to that office as an emolument. He had two sons namely, Chandsa and Lalasa. Lalasa died as a bachelor. That Chandsa had two wives namely, Ansarama and Rajma. Ansarama predeceased Chandsa. That on the death of Imamsa, who was the original holder of the office of walikar, his elder son, Chandsa was appointed to the said office on the principle of primogeniture and the suit lands were enjoyed by the family by rendering walikarki service by him. That after the demise of Chandsa on 02/12/1953, the office of walikarki was conferred on Nabisa, being the eldest son of Chandsa. That the said conferment of the office of walikarki on Nabisa was purely on the basis of the right of primogeniture and not on his individual merit. Although, Imamsa - plaintiff No.1 had also filed an -: 24 :- application, the said application was rejected as he was not the eldest son. In fact, the challenge made to the appointment of Nabisa as walikar was also unsuccessful. But Nabisa was not conferred the office of walikar in his individual capacity, but as heir to Chandsa being the eldest son of Chandsa. He continued to hold that office on behalf of himself and on behalf of the members of the family of Chandsa including the plaintiffs and the lands were enjoyed by all of them jointly. The said lands were impartible.
17. Learned counsel for the appellants contended that after the enforcement of the KVOA Act, 1961, the village office which were hereditary village office was abolished, the lands stood resumed by the State Government. Thereafter Nabisa filed an application for regrant of the said lands exclusively in his name. But plaintiff No.1 - Imamsa, filed an application for regrant of the said lands in the names of all members of the family i.e., jointly, being the legal heirs of Chandsa. There was a -: 25 :- contest in respect of those proceedings regarding regrant and ultimately the learned District Judge conferred the regrant of the land on Nabisa reserving liberty to plaintiffs to seek partition and separate possession of the suit lands. Learned counsel contended that despite the suit lands being granted in the name of Nabisa, they are available to be partitioned between the members of the family of the plaintiffs and defendants as per their personal law.
18. By placing reliance on certain decisions of the Hon'ble Supreme Court as well as this Court, appellants' counsel emphasized that the suit lands attached to the post of walikar, which is a hereditary office, were impartiable and it is only after the abolition of the said hereditary village offices and on resumption of the said lands by the State Government and thereafter the regrant being made to Nabisa on behalf of the family members of Chandsa, the erstwhile holder of the village office, that the lands became ryotwari lands and available for partition. It is in the above background that the learned District Judge -: 26 :- in his judgment at Ex.P-1 has permitted the plaintiffs to sue for partition and separate possession of the suit lands and hence the suit has been filed within a few months after the order of the District Judge and that the right to sue for the relief of partition and separate possession became available to the plaintiffs only after the suit lands were regranted in the name of Nabisa in the year 1984. Learned counsel therefore contended that the trial Court was not right in dismissing the suit.
19. Placing reliance on several dicta of the Hon'ble Supreme Court as well as this Court on the right, title and interest of a holder of the village office vis-à-vis the lands attached to the village office, the manner in which the succession to a village office takes place and also the manner in which the lands attached to the village office could be succeeded to and the right of the family members to seek partition and separate possession in respect of those lands, he contended that in the instant case the plaintiffs along with the defendants had an interest in the -: 27 :- village office in respect of the suit lands and hence on regrant of the said lands, they are entitled to seek partition and separate possession of the suit lands in accordance with the rules of succession applicable to them under Mohammedan Law.
20. Learned counsel submitted that when Nabisa the holder of the village office filed an application for regrant, he did so as the eldest member of the family as it was on that basis that he was conferred the office of walikar and hence the regrant order would enure to the benefit of all the members heirs of the family of Chandsa - the original holder of the village office.
21. Learned counsel further submitted that there has been no partition of the suit house and that for the sake of convenience of the families the suit houses are being enjoyed separately but there has been no division of the suit houses between the families of the plaintiffs and defendants and hence the plaintiffs filed a suit seeking partition in the suit lands as well as the suit houses. -: 28 :-
22. He contended that the trial Court ought to have appreciated the nature of the suit lands, the right to enjoy the said suit lands, the historical aspects concerning, walikarki services being rendered by the family of the plaintiffs and the defendants, the succession to the office of walikar, the manner in which lands attached to that office as an emolument was being enjoyed and thereafter succeeded to by the parties herein and the provisions of the KVOA Act, 1961 under which the regrant has been made as well as the right, title and interest of the plaintiffs in the said lands and decreed the suit. But the trial Court, not having done so, has caused injustice to the plaintiffs and hence appellants' counsel contended that this Court may interfere with the findings given by the trial Court and decree the suit by allowing the appeal. Learned counsel for the appellant has placed reliance on certain decisions, which shall be adverted to later.
23. Per contra, learned counsel for the respondents supported the judgment and decree of the trial Court and -: 29 :- submitted that no doubt the original propositus, Imamsa was the holder of the office of walikar. Thereafter, his son Chandsa succeeded to the said office. But on the demise of Chandsa on 02/12/1953, Nabisa had made an application for being conferred with that office. In fact, Imamsa - plaintiff No.1 had also made a similar application. But on assessing the merit and qualification of Nabisa to hold that office, he was conferred the office of walikar and the suit lands attached to that office were being enjoyed by him and his family exclusively. That the plaintiffs have no right, title or interest in the suit lands and therefore they cannot seek partition in the said lands.
24. Learned counsel for the respondents further submitted that in fact the order conferring the office of walikar on Nabisa was challenged by plaintiff No.1 - Imamsa before the then Pranth Officer in the erstwhile Bombay State. But the said appeal was dismissed. Therefore, there could be no further controversy with regard to the Nabisa being the only holder of the office of -: 30 :- walikar. He did not hold that office for and on behalf of the other members of the family. He held it in his own capacity and exclusively, and on the abolition of the said office, Nabisa was entitled to make an application to the State Government for regrant of the suit lands after it was resumed under the provisions of KVOA Act, 1961. In fact, Imamsa also unsuccessfully made an attempt for regrant of the said lands in the joint names of plaintiffs and defendants. But the Tahasildar, Muddebihal and subsequently the learned District Judge have concurrently held that Nabisa was the only person who could have been regranted the lands and hence the plaintiffs cannot now seek partition and separate possession of the said lands.
25. As far as the house properties are concerned, learned counsel for the respondents contended that the said properties were divided between the families of the plaintiffs and defendants. The said properties were in no way concerned with the office of walikar. They were properties of the family which were inherited from the -: 31 :- ancestors and on death of Chandsa in the year 1953, plaintiffs and defendants divided the house properties and therefore the said properties could not have been sought to be partitioned in the suit filed by the plaintiffs.
26. Relying on the provisions of the Bombay (Maharshtra) Hereditary Offices Act, 1874 (hereinafter referred to as the "1874 Act"), learned counsel for the respondents contended that when Nabisa was appointed as the walikar under the provisions of the said Act particularly, under part-X of the said Act, under Sections 63 and 64, other family members could not have had any interest in the said office, so as to claim partition and separate possession. In this regard, learned counsel for the respondents placed reliance on certain judgments of the Hon'ble Supreme Court as well as this Court to contend that the findings arrived at by the trial Court are just and proper and therefore, there is no merit in this appeal.
27. In support of the above contention, learned counsel for the respondents submitted that on a reading of -: 32 :- Ex.P-1 which is relied upon by the plaintiff - appellants, it would clearly reveal that it was only Nabisa who was holding the office of walikar and consequently he was entitled to the regrant of the suit lands and the said findings given by a statutory authority is binding on the parties and cannot be interfered with by the Civil Court or even by this Court in any other proceeding such as a suit as in the instant case. In support of this submission, learned counsel for the respondents has placed reliance on certain decisions of the Hon'ble Supreme Court as well as this Court. The judicial dicta on which reliance has been placed by learned counsel for the respondents would be considered later.
28. Learned counsel for the respondents also contended that although the office of walikar is termed as a hereditary office, the conferment of the said office on Nabisa, in the instant case was not purely on the basis of heredity. That Nabisa was conferred with the said office owing to the merit and qualifications he possessed to hold -: 33 :- that office as opposed to Imamsa who had also filed an application seeking appointment to that office. In this regard, respondents' counsel drew a parallel with regard to the office of Karnam which is a village office in the erstwhile Madras State and that the conferment of the appointment to the office of Karnam, was an appointment to a post under the State which was based on merit and qualification and not purely on the basis of heredity. It is contended that if the said principles are applied in the present case, then the appointment of Nabisa to the State office in the year 1953 would conclude the matter in favour of the respondents as Nabisa was appointed as a walikar on the basis of his qualification and merit and hence he was the only person to hold that office till it was abolished under the provisions of the KVOA Act, 1961. Therefore it was only Nabisa, the holder of the office, who was entitled to the regrant of the suit lands under the said Act.
29. By way of reply, appellants' counsel contended that one cannot lose sight of the fact that the original -: 34 :- propositus - Imamsa was the holder of the office of walikar and Chandsa succeeded to that office on the basis of heredity. That a catena of decisions would reveal that the village office is a heredity office and that any appointment to the said office whether on the basis of principles of primogeniture or on any other basis would ultimately enure to the benefit of the family. Hence, learned counsel contended that the plaintiffs having an interest in the office of walikar, being the children of Chandsa, who was the erstwhile holder of the office, are entitled to seek partition and separate possession of the suit properties including the former walikarki lands which have now been regranted in the name of Nabisa as the regrant made in the name of Nabisa would enure to the benefit of the entire family of plaintiffs and defendants who are all the legal heirs of Chandsa - the original holder of the village office.
30. Having heard learned counsel for the parties and on perusal of the material on record as well as the -: 35 :- original record, the following points would arise for my consideration:
(i) Whether the suit schedule lands being attached to office of walikar and regranted to Nabisa under KVOA Act, 1961 would enure to the benefit of all the members of the family of Chandsa?
(ii) Whether the appellant-plaintiffs are entitled to seek the relief of partition and separate possession in respect of the suit lands and the house properties?
(iii) Whether the judgment and decree of the trial Court would call for any interference in this appeal?
(iv) What order?
31. The undisputed facts in the present case are, firstly, with regard to the relationship between the parties. Imamsa - the original propositus, had two sons namely, Chandsa and Lalasa. Lalasa died as a bachelor. Plaintiffs and Nabisa are the children of Chandsa. Nabisa is the eldest son of Chandsa through Anasarama - the first wife -: 36 :- of Chandsa. While plaintiff Nos.1 to 5 are the children of Chandsa through Rajama, the second wife of Chandsa and plaintiff Nos.6 and 7 are the children of Sahebi - one of the daughters of Chandsa through Rajma. It is also not in dispute that Imamsa - the original propositus, was the holder of the office of walikar. The suit lands were attached to the said office. On the demise of Imamsa, Chandsa was appointed to the office of walikar. It is only on the death of Chandsa on 02/12/1953, that a controversy arose as to the appointment of Nabisa to the office of walikar. Of course, at this stage itself it may be mentioned that no documents have been produced with regard to the appointment of Nabisa to the office of walikar as well as the rejection of Imamsa - plaintiff No.1 to that office except what has been stated in Ex.P-1.
32. Further, it is also not in dispute that on the abolition of the village office under the provisions of KVOA Act, 1961, applications for regrant of the suit lands were made both by Nabisa and Imamsa - plaintiff No.1. But the -: 37 :- regrant was sought by Nabisa in his own name. But Imamsa had sought regrant of the lands in the names of the family members of both plaintiffs as well as defendants. However, the application of plaintiff No.1 was rejected and the regrant order dated 24/06/1984 was in favour of Nabisa. The order of regrant has been confirmed by the judgment of the learned District Judge dated 04/07/1988 vide Ex.P-1. It is in that judgment itself that liberty has been reserved to the plaintiffs to seek the relief of partition and separate possession of the suit lands.
At this stage it would be necessary to consider the oral and documentary evidence let-in by the parties.
33. The oral evidence is summarized as under:
a) Rajesab Chandsa Gurikar, plaintiff No.2 has deposed as PW.1 and he has admitted the relationship between the plaintiffs and defendants. That Imamsa is his paternal grandfather. He had two sons namely, Chandsa and Lalasa. While Lalasa died issueless, Chandsa, had two wives namely, Anasarama and Rajama (mother of PW.1). -: 38 :-
Anasarama (deceased), had one son namely Nabisa (elder step brother of PW.1). Further, Nabisa and his wife Chandama had four sons, who are the defendant Nos.1 to
4. On the other hand, Rajama had six children, plaintiff Nos.1 to 5 and Sahibi, mother of plaintiff Nos.6 and 7. That Chandsa, died in the year 1953, Anasarama died in the year 1920. Rajama died in the year 1972. Nabisa died in the year 1976 and his wife Chandama, died in the year 1988. That Chandsa, owned two lands and two houses, the two lands bearing RS No.116, measures 28 acres 30 guntas and RS No.246 measures 27 acres 36 guntas. With regard to the two houses bearing Mandal Panchayath Nos.75 and 76, measures 30 ft. x 25 ft. each. Further, on the eastern side of house No.76, there is 6 ft. wide passage for approaching house No.75. Previously, Imamsa was the owner of the aforesaid properties and after his death, father of PW.1 succeeded, and subsequent to his death, Nabisa - father of defendant Nos.1 to 4, succeeded to those properties.
-: 39 :-
That walikaraki (service) is the family occupation, after Imamsa, his father - Chandsa took up the job. The aforesaid two lands are shetsanadi lands and were being enjoyed by Chandsa. After his death, suit properties were enjoyed together by plaintiff Nos.1, 2 and Nabisa, and after Nabisa's death, the properties were enjoyed by Nabisa's children. That in the year 1967, the two lands vested with the Government owing to the KVOA Act, 1961. Thereafter, plaintiff Nos.1, 2 and Nabisa, applied for regrant of the said lands. Assistant Commissioner, Bijapur, vide order dated 10/07/1968 regranted the lands in favour of plaintiff Nos.1, 2 and Nabisa. However, Nabisa, unsuccessfully challenged the order of regrant in revision before the Deputy Commissioner and later preferred miscellaneous appeal before the District Court, Bijapur. That order was challenged in the High Court of Karnataka and the matter was remanded by the High Court to District Court. However, District Court confirmed the order of Assistant Commissioner regranting the lands in the name of plaintiff Nos.1, 2 and Nabisa. The impugned order was -: 40 :- challenged by Nabisa in writ petition. During the proceedings, Nabisa demised and his legal representatives prosecuted the matter. The said writ petition was remanded to the Assistant Commissioner. But, the power of Assistant Commissioner under the Act was delegated to Taluka Tahsildar, Muddebihal. That Taluka Tahsildar, vide order dated 19/11/1981, regranted the said lands in favour of plaintiff Nos.1, 2 and defendants Nos.1 to 4. That defendants Nos.1 to 4, challenged the order of Tahsildar before the District Court, Bijapur, and the same was remanded to Tahsildar, Muddebihal, for fresh enquiry. Thereafter, Tahsildar, Muddebihal, vide order dated 24/06/1984 regranted the land in favour of defendant Nos.1 to 4. Against that order of Tahsildar, PW.1 and his brother, preferred Miscellaneous Appeal No.5/1984, before the District Judge, Bijapur. The order of Tahsildar granting land in favour of defendant Nos.1 to 4 was confirmed vide order dated 04/07/1988 by keeping open the rights of plaintiffs to seek partition and separate possession. Subsequent to that order, mother of defendants died in -: 41 :- 1988. Then the plaintiffs filed the suit for partition on 12/12/1988 seeking their 33/40th share in the suit properties.
b) In his cross-examination, PW.1 has stated that in the year 1921, Chandsa got married to Rajama after the death of Anasarama (Chandsa's first wife). PW.1 was born on 01/01/1931 and Nabisa is his elder step brother. Nabisa was cultivating the said lands jointly, but, resided in a separate house with his family. The house properties belong to the family of both plaintiffs and defendants. PW.1 has denied that the house was purchased by his father in the name of plaintiff No.1. However, PW.1 has admitted that the plaintiffs are staying in southern portion of original house, which is now house No.75 and defendants are staying in the northern portion of original house, which is now house No.76. Originally, the measurement of old single house i.e., VPC.Nos.75 and 76 was 60 ft. north to south and 25 ft. east to west. There is a passage of 6ft. in between the two houses. PW.1 has -: 42 :- stated that Rajama had six children namely, Fatma, Biyama, Ladma, Imamsa, Sahebi and Rajesa who are arrayed as plaintiffs in the suit.
c) That after the death of Chandsa, Nabisa was appointed as walikar of Bidarkundi, by Tahsildar, vide order dated 20/08/1954. PW.1 and Imamsa appealed against the order of appointment of Nabisa as walikar, which was dismissed. It is denied by PW.1 that the suit lands were granted exclusively to Nabisa, for his services as walikar, but the lands were allotted to Nabisa in his name for and on behalf of the family, as he was an elder member of the family. Suit lands are not granted to the exclusion of family members, but, it was transferred upon the death of Chandsa to Nabisa, on the basis of warsa. Warsa, is not illegal or wrong. PW.1 has denied that only Nabisa rendered the services of walikaraki, instead, PW.1 and Imamsa have also worked in the village as walikaraki. In fact, PW.1 and Imamsa were inclined to seek job as walikars. Nabisa paid required fees, which was for and on -: 43 :- behalf of the entire family. Rajesab has stated that he is not residing in Bidarakundi since the year 1964.
Prior to 01/01/1956, there was Bombay Act. At that juncture there was no necessity for the eldest male member of the family to make a fresh application to then Pranth, after the demise of his predecessor in office, for officiating walikar, he would naturally succeed to the said village office since there was rule of primogeniture prevailing at that time. The suggestion that his grandfather, Chandasa and his father Imamsab had never worked as walikar at any point of time in the past is denied. It is admitted that Nabisa, deceased father of defendants, was the eldest son to his father Chandasab. It is admitted that during the life time of Nabisab, he had applied for Walikar services and on his application, he was appointed as Walikar.
Further, even prior to making of application by Nabisa, he and deceased Nabisab were officiating as Walikars.
It is admitted that subsequent to KVOA, suit lands were resumed by the Government from Nabisa. It is denied that suit lands were re-granted to Nabisab only. It is denied that -: 44 :- they (plaintiffs) were never in possession of suit lands along with Nabisab and defendants. It is admitted that except the suit lands, plaintiffs do not have any landed properties from their forefathers. It is denied that except the defendants, nobody has any interest in the suit lands. It is denied that after the decision of District Court vide Ex.P-1, plaintiffs are not in actual possession of suit land. That it is false to suggest that, the plaintiffs have no share in the suit lands by way of partition. That it is false to say that regrant Order in favour of the defendants is for the benefit of the defendants alone. That regrant Order was made for the benefit of both the family of plaintiff and of the defendant.
It is admitted that Nabisab was appointed as Walikar on 20/08/1954, but it is not true that the suit lands were given to Nabisab in terms of salary for his services rendered as Walikar in his individual capacity. It is denied that plaintiffs have no interest/title in the suit property and partition had taken place in the year 1953 itself with regard to house property.
-: 45 :-
d) Mahadevappa, has deposed as PW.2 and has stated that father of the plaintiff No.1 had been a walikar and that he died forty years ago. Father of defendants - Nabisa, after his marriage started cultivation in half portion of walikari lands and the remaining half portion was cultivated by Chandsa. After the death of Chandsa, both the plaintiff and Nabisa continued walakari service. Suit lands are the properties belonging to both plaintiffs and defendants.
e) In his cross-examination, PW.2 has stated that Chandsa worked as a walikar, and so was Nabisa. Later, Nabisa was appointed as a walikar by the Government, because he was an elder member of the family. However, Mahadevappa has stated that both plaintiff Nos.1, 2 and Nabisa were walikars for around ten-twenty years and thereafter, the Government abolished walikaraki (service).
f) Defendant No.3, Rajesa Nabisa Gurikar, deposed as DW.1 and stated that the suit houses Nos.75 and 76 have been partitioned in December, 1953 between -: 46 :- his father, Nabisa and plaintiff Nos.1 and 2. Since then possession of both the houses have been with respective parties. He has stated that on 20/08/1956, Nabisa was appointed as walikar. The said order of appointment was challenged by the plaintiffs and the appeal was dismissed. The said lands have been in possession of Nabisa since then. After the passing of Inam Abolition Act, 1963, walikari (service) came to be abolished. The said lands were regranted after paying three times the amount of revenue amount prevailing then. Thereafter, Nabisa, challenged the order of regrant, in revision before Deputy Commissioner and the same was dismissed. Upon dismissal of revision, Nabisa, preferred miscellaneous appeal before the District Court, Bijapur. The said miscellaneous appeal also came to be dismissed. Subsequently, Nabisa filed a writ petition challenging the dismissal, in the High Court of Karnataka. Thereafter, the High Court remanded the matter to District Court. However, District Court confirmed the order of Assistant Commissioner, regranting the lands in the name of plaintiff -: 47 :- Nos.1, 2 and Nabisa. The impugned order was again challenged by Nabisa in writ petition before the High Court of Karnataka. The said writ petition was yet again remanded to the Assistant Commissioner with certain directions. Since, the power of Assistant Commissioner under the Act was delegated to Taluka Tahsildar, the Tahsildar, Muddebihal, vide order dated 19/11/1981, regranted the said lands in favor of plaintiff Nos.1, 2 and defendant Nos.1 to 4, which was challenged by the defendants before the District Court, Bijapur. The said appeal was yet again remanded back to Tahsildar, Muddebihal, for fresh enquiry. Thereafter, the land was regranted in favor of defendant Nos.1 to 4 in the year 1984 by excluding the names of plaintiffs. There were several cases filed by various parties regarding the suit lands in which the defendants were parties and not plaintiffs. Plaintiffs do not have any interest over the suit house Nos.75 & 76 and the aforesaid lands.
-: 48 :-
g) In his cross-examination, DW.1 has stated that when Chandsa demised, he was aged about fourteen- fifteen years. He has stated that he does not know who was doing walikari before Nabisa and has denied that Chandsa was a walikar. He has also admitted that prior to entering Nabisa's name as walikar in the revenue records the property was in possession of both plaintiffs and defendants. It is also elicited that, Rajesab is not aware as to who was in possession of the lands prior to his father. On the other hand, he has denied that the property was in possession his grandfather - Chandsa. It is also to be noted that Rajesab has denied that after the death of Chandsa, Nabisa being the elder son, applied for Warsa for his sole benefit and accordingly, No.1425 has been granted, which is false. DW.1 has admitted that the family was not separated at the time of his grandfather. Further, in December 1953, there was an oral partition of the only -: 49 :- house for whole family as there were no other properties. That the witnesses who were present at the time of oral partition are no more. As there were differences between the brothers, both the plaintiffs and the defendants partitioned the house. Further, DW.1 has denied that, due to old age Nabisa was a Walikar on behalf of Chandsa. He has admitted as true that, the plaintiff No.1 had applied for walikar after the death of Nabisa. Further, he has also denied that the elder son was made as a walikar, but it was based on the application of Nabisa, upon which he was made a walikar. DW.1 has also admitted that the plaintiffs have applied for regrant of suit lands in their names and in the name of Nabisa, accordingly, the same was regranted in their names. Further, DW.1 has also stated that an appeal was filed against such order of regrant seeking to grant the lands in the favour of Nabisa excluding the names of plaintiffs. That there are no documents to show that Nabisa has been named as a walikar. In contrast to what has been previously stated, DW.1 has denied that the properties were in joint possession of both plaintiffs and -: 50 :- defendants. The house properties have been partitioned and parties are residing in their respective houses.
At this stage, it is useful to refer to the documentary evidence on record.
34. The documentary evidence of plaintiffs is as under:
Ex.P-1 is the certified copy of order dated 04/07/1988, passed in Misc. Appeal No.05/1984. That appeal was filed by appellant Nos.1 and 2 herein under Section 3(2) of the KVOA Act, 1961, against the order passed by the Tahasildar, Muddebihal, dated 24/06/1984, by which the suit lands were regranted in favour of respondents. Exs.P-2 to P-6 are the record of rights in respect of Sy.No.116, measuring 28 acres 30 guntas for the period 1974-1975 onwards, in column No.9 the names of plaintiff Nos.1 and 2, Nabisa and defendant No.1 and others are shown and in column No.12(2) also, it is indicated that cultivation was by the aforesaid persons. Exs.P-7 to P-13, are the record of rights in regard to -: 51 :- Sy.No.246, measuring 27 acres 36 guntas, wherein in column Nos.9 and 12(2), identical particulars as that of Sy.No.116 are mentioned. They are also record of rights for the years 1974-1975 onwards. Ex.P-14 is the mutation extract stating that Chandsa died on 02/12/1953 and that his eldest son Nabisa has been rendering services as walikar. As per Ex.P-15, mutation entry, it is noted that on 10/07/1968, the suit lands were regranted to plaintiff Nos.1 and 2, as well as Nabisa and accordingly, mutation entries were effected on 18/01/1975. Nabisa died on 17/01/1976 and thereafter names of his legal heirs were entered in the revenue records by mutation order dated 13/07/1976, as per Ex.P-16. Pursuant to the regrant of the suit lands in the name of Nabisa, mutation entries were entered in the name of his legal heirs with a condition regarding bar on alienation as per Ex.P-17. The same was made after order dated 24/05/1984, which order was challenged before the learned District Judge in Misc. Appeal No.15/1984 and as per Ex.P-1 the order was passed by the learned District Judge at Bijapur. The -: 52 :- entries made in the record of rights by the Tahasildar is order dated 13/07/1976 (Ex.P-16) which was challenged by plaintiff No.2 before the Assistant Commissioner, Sub- Division Bijapur in Case No.RTS.AP/18/1978 and the said appeal was filed under Section 136 of Karnataka Land Revenue Act, 1964 and same was disposed off on 02/04/1979, as per Ex.P-18. The matter was remanded to Tahasildar, Muddebihal, for fresh enquiry and to dispose of the same in accordance with law, after issuance of notices to all the interested persons. Exs.P-19 and P-20, have been admitted through PW.1 and they pertain to katha extracts issued by the Panchayat with regard to the suit houses.
35. The defendants have produced the following documentary evidence: certain third parties had filed a suit against Nabisa in O.S.No.121/65 and had arrayed Nabisa as defendant No.1. Certified copy of decree passed in the said suit O.S.No.121/65, is produced Ex.D-1, similarly Ex.D-2 is certified copy of judgment passed in -: 53 :- O.S.No.71/67 and Ex.D-3 is the certified copy of judgment passed in O.S.No.163/66. Exs.D-4 to D-11 are receipts dated 19/05/1975 for payment of revenue assessment in respect of lands while Ex.D-12 indicates that suit lands are the inam lands. Ex.D-13 has been filed to indicate the delivery of food grains under the scheme of levy to the Food and Civil Supply Department, grown on the suit lands. A copy of the interim order granted by this Court in W.P.No.6672/1974, which was filed by the legal representatives of Nabisa, which matter was remanded for fresh disposal to Tahasildar, Muddebihal, is produced as Ex.D-14. Ex.D-15 is the same document as Ex.P-16, which is mutation order No.2542.
Re: Point No.1:
36. Before venturing to answer point No.1, it would be useful to refer to the decisions cited at the Bar relating to various aspects of the erstwhile village office of walikar held by persons in this part of the State; the emoluments attached to the said office; abolition of the said offices, the -: 54 :- consequences following the abolition of the village offices so as to give a finding on two aspects of the matter. Firstly, as to whether the appointment of Nabisa to the office of walikar was exclusive based on his own merit and qualification and in his individual capacity (and not based on heredity on the principle of primogeniture) so that the benefits of the said office would not enure to the other members of the family. Secondly, as to whether, the order of regrant of the suit lands made in the name of Nabisa was on the basis that Nabisa only had the right to enjoy the said lands on its regrant and not to the benefit of all other members of the family of Chandsa and that on his demise, the legal heirs of Nabisa only were entitled to succeed to the said lands.
37. In order to answer the aforesaid aspects, which would arise under point No.1, it would be useful to encapsulate the ratio of the judgments cited by the learned counsel for the respective parties at the first instance. -: 55 :-
38. Learned counsel for appellants has relied upon the following decisions in support of his submissions :-
a) Nagesh Bisto Desai v. Khando Tirmal Desai reported in (1982) 2 Supreme Court 79 (Nagesh Bisto Desai):
(i) The aforesaid was a case which arose under the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 (for short "Act 60 of 1950"). The principal question in controversy in those appeals was, as to, whether, Sections 3 and 4 of the said Act and Sections 4 and 7 of the Bombay Merged Territories Miscellaneous Alienation's Abolition Act, 1955 (for short "Act 22 of 1955"), which provided for abolition of watans and alienations in the merged territories, resumption of watan land and its regrant to the holder for the time being, which brought about a change in the tenure or the character of holding as watan land, affected the other legal incidents of the property under personal law.-: 56 :-
(ii) In the said case, the suit was filed inter alia seeking a declaration that the properties described in Schedule B and C appended to the plaint therein, situated in the district of Dharwar, in the State of Karnataka, formed an impartible estate and governed by the rule of lineal primogeniture and that the plaintiff therein being the present holder of the office of Desai was entitled to remain in full and exclusive possession and enjoyment of the suit properties and that the other members of the family had no right, title or interest therein but were only entitled to maintenance and residence. Alternatively, in the event of the Court holding that the properties described in Schedule B, C and D therein were properties belonging to the joint Hindu Family could the plaintiff claim 1/6th share in the said properties. Plaintiff's father, in that case was the last holder of the office of Desai and plaintiff claimed that he was entitled to remain in full and exclusive possession and enjoyment of the properties as watandar and that other members had no right, title or interest therein except as to maintenance as junior members.-: 57 :-
(iii) Before the Hon'ble Supreme Court it was argued that impartibility of the tenure was not an incident of the grant but the watan was impartible by custom and succession to it was governed by the rule of lineal primogeniture. The Hon'ble Supreme Court considered the question, whether impartibility of the estate and the rule of lineal primogeniture by which succession to it was governed made the suit properties self-acquired or exclusive properties of the plaintiff therein and therefore, could not be partitioned by metes and bounds between the members of the joint family. While considering the said question, the Hon'ble Court observed that the grant of watan to the eldest member of a family did not make the watan properties the exclusive property of the person who was the watandar for the time being. The said decision was in the context of the rights of persons belonging to joint Hindu family and the Hon'ble Supreme Court observed that the impartibility of the property does not per se destroy its nature as joint family property or render it the separate -: 58 :- property of the last holder, so as to destroy the right of survivorship; hence, the estate retains its character of joint family properties and devolves by the general law upon that person who, being in fact and in law joint in respect of estate, is also senior member in the senior line.
(iv) Relying upon the decision of Privy Council in the case of Anant Bhikappa Patil vs. Shankar Ramchandra Patil reported in AIR 1943 PC 196, the Hon'ble Supreme Court observed that an impartible estate is not held in coparcenary though it may be joint family property. It may devolve as joint family property or as separate property of the last male holder. In the former case, it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom e.g. lineal male primogeniture. In the latter case, jointness and survivorship are not as such in point, the estate devolves by inheritance by the last male holder in the order -: 59 :- prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom.
(v) Thereafter, the Hon'ble Supreme Court considered as to whether the estate attached to the office of the watandar was entitled to remain in full and exclusive possession and enjoyment thereof to the exclusion of the other members of the joint Hindu family and held that if the watan land attached to such an office was held to be in full exclusive possession and enjoyment of the watandar to the exclusion of the other members of the joint Hindu family, that would run counter to the scheme of the Bombay Hereditary Offices Act, 1874 (now the Maharasthra Hereditary Offices Act) (also known as "Watan Act") and is against settled legal principles. The Hon'ble Supreme Court concluded that the right of the plaintiff in that case in the watan property was subject to the rights of the other members of the family. While saying so, definition of watandar under Watandar Act, was referred to in the following terms :--: 60 :-
"'Watandar' means a person having an hereditary interest in a watan. It includes a person holding watan property acquired by him before the introduction of British Government into the locality of the watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance. It includes a person adopted by an owner of a watan or part of a watan, subject to the conditions specified in Sections 33 and 35."
(vi) After referring to the said definition the Hon'ble Supreme Court noted that if the words used in the definition are strictly and literally construed, it would mean that before a person can be said to be a watandar, he must have a hereditary interest both in the watan property and in the hereditary office, because it is these two that constitute the watan. There is no basis whatever for such a strict construction. The definition is undoubtedly in two parts: the first sets out what 'watandar' means and the other, states what is included in it and the question arises whether the primary definition i.e., the meaning portion of it, should be regarded as primary and the inclusive part as -: 61 :- illustrative or both the parts should be regarded as constituting one whole definition, the inclusive part being supplementary to the former. After discussing the controversy on the aforesaid two lines of interpretation the Hon'ble Supreme Court noted that Watan Act was designed to preserve the pre-existing rights of the members of a joint Hindu family. The word 'family' is defined in Section 4 of the Watan Act to include "each of the branches of the family descended from an original watandar" and the expression 'head of a family' is defined therein to include "the chief representative of each branch of a family".
Section 4, which defines watandar includes the members of the joint Hindu family and expression of the watan would include the members of the family other than the watandar, who are entitled to remain in possession and enjoyment of the watan property.
(vii) It was further observed that the commutation of service had not the effect of changing the nature of the tenure and that even after service, the watan office -: 62 :- ordinarily survives without liability to perform service, and on that account the character of watan property still remains attached to the grant. But the State Government may abolish the office and release the property from its character as watan property.
(viii) Further, Act 60 of 1950, had the effect of abolition of the watan, extinction of the office and modification of the right in which the land is held vide Section 3 of the said Act and the same brought about a change in the tenure or character of holding as watan land but they did not affect the other legal incidents of the property under personal law. That Sub-section (1) of Section 4 of the Act 60 of 1950, deals with regrant of watan land, Act 22 of 1955 was on similar terms. That the watan lands resumed under the aforesaid Acts had to be regranted to the holder of the watan and he was to be deemed to be an occupant.
(ix) In this context, the Hon'ble Supreme Court referred to the Watan Act and observed that it -: 63 :- contemplated two classes of persons: one is a larger class of persons belonging to the watan families having a hereditary interest in the watan property as such and, the other, smaller class of persons who were appointed as representative watandars and who were liable for the performance of duties connected with the office of such watandars. That it would not be correct to limit the word 'watandar' only to the narrow class of persons who could claim to have a hereditary interest both in the watan property and in the hereditary office. Watan property had always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property and were entitled to be called 'watandars of the same watan' within the meaning of Watan Act. That being so, the members of a joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being, and therefore the regrant of the lands to the watandar under sub-section (1) of Section 4 of the Act 60 of 1950 -: 64 :- and under Section 3 of Act 22 of 1955 must enure to the benefit of the entire joint Hindu family.
(x) The Hon'ble Supreme Court further noted that a controversy had arisen as to the purport and effect of the non obstante clause contained in Section 4 of the Bombay Inferior Village Watans Abolition Act, 1958 and ultimately referred to Lakshmi Bai Sadashiv Date and others vs. Ganesh Shankar Date and others [AIR 1977 Bombay 350 (FB)] (Lakshmi Bai Sadashiv Date), wherein a Full Bench of the Bombay High Court had upheld the view taken by Malvankar J., in the case of Dhondi Vithoba Koli vs. Mahadeo Dagdu Koli & others [AIR 1973 Bom 323] (Dhondi Vithoba Koli), wherein it was observed that the effect of non obstante clause in Section 4 was to abolish alienation and rights and incidents in respect thereof. The right of a member of joint Hindu family to ask for partition of a joint family property cannot be regarded as a right relating to grant of land as service inam or as an incident in respect thereof. The object of Section 4 was not -: 65 :- to affect in any manner rights created under the personal law relating to the parties and if the property belonged to joint Hindu family, then the normal rights of the members of the family to ask for partition were not in any way affected by reason of the non obstante clause contained in Section 4.
(xi) The Hon'ble Supreme Court accepted the interpretation given by the Bombay High Court on the non obstante clause found in the commencement of Section 4 of the said Act. After referring to sub-Section (2) of Section 4 of Act 60 of 1950 and sub-section (3) of Section 7 of Act 22 of 1955, the Hon'ble Supreme Court observed that the object of the said provisions was to impose restrictions in the matter of alienations. On regrant of the land, the holder is deemed to be an occupant and therefore the holding changes its intrinsic character and becomes ryotwari and is like any other property which is capable of being transferred or partitioned by metes and -: 66 :- bounds subject, of course, to the sanction of the Collector and on payment of the requisite amount.
b) Kalgonda Babgonda Patil vs. Balgonda Kalgonda Patil and others reported in 1989 Supp (1) Supreme Court 246 (Kalgonda Babgonda Patil):
(i) In the aforesaid case, the Hon'ble Supreme Court considered Bombay Inferior Village Watans Abolition Act, (1958 Act 1 of 1959) in the aforesaid case. That case questioned the judgment of the Division Bench of Bombay High Court, which had dismissed the suit for partition by holding that when watan (inam) rights were abolished all rights including the right of partition also stood abolished.
In that case, a contention was raised that despite there being a partition of other properties of the joint family, the watan lands continued to be the hereditary property of the family although according to the custom the watan was only in the name of the senior member of the family as the succession according to the custom was in accordance with rule of primogeniture. It was also held in the said case that -: 67 :- on the abolition of watans, the watan lands were converted into ryotwari lands and therefore, they become partible. The Hon'ble Supreme Court set aside the judgment of Bombay High Court and held that the watan lands were subject to partition and that the said lands could be partitioned, after they were converted into ryotwari lands.
c) In Shivappa Tammannappa Karaban vs.
Parasappa Hanammappa Kuraban and others
reported in 1995 Supp (1) Supreme Court Cases 162 (Shivappa Tammannappa Karaban):
(i) The controversy in the aforesaid case was under KVOA Act, 1961, wherein it was held that the right given to the person in respect of regrant is only a pre-
existing right namely, the property attached to the office and the same continues to be enjoyed and belongs to the family and it is impartible by rule of primogeniture. But on account of abolition of the office and grant of ryotwari patta, the land becomes partible subject to the conditions under Section 5(3). In that case it was held that the there -: 68 :- is no exclusive right to the property and there was no illegality in the decree of partition granted by the courts below.
d) Annasaheb Bapusaheb Patil & others vs. Balwant alias Balasaheb Babusaheb Patil (dead) by L.Rs. & heirs & others [(1995) 2 Supreme Court Cases 543] (Annasaheb Bapusaheb Patil):
(i) The aforesaid matter arose under the Maharashtra Revenue Patels (Abolition of office) Act, 1962, which came into force on 01.01.1963. Discussing the scheme of the said Act, the question considered was, whether, on regrant made under Section 5(1) of the Act, the attached watan land was characterized as self acquired property of watandar or not. Reference was made to Nagesh Bisto Desai (supra) and also to the effect of abolition and extension and modification by operation of Section 3 of Act 22 of 1955 Act (supra) and to the other decisions referred to above emanating from Bombay High Court and it was held in paragraph No.10 of the judgment -: 69 :- that by virtue of Section 3 of the said Act of 1962, the watans were abolished and all the incidents attached to the watandari including the pre-existing custom, operation of law or any decree of Court were nullified by statutory operation. Thereby, incidents attached to the watan i.e., liability to render service as Patel became extinct and the lands became ryotwari lands, the office of watan stood extinguished, the rule of primogeniture stood abolished and the land on regrant became the Hindu Joint Family property held by the watandar for and on behalf of the members of the joint Hindu family. All the members of the family became entitled to claim right to partition by survivorship and that the right to claim partition would accrue to all members of the family after it is regranted. Of course, in that case, the Hon'ble Supreme Court considered the question of adverse possession in light of Article 65 of the Schedule to the Limitation Act, 1963 and held that where possession can be referred to a lawful title, it will not be considered to be adverse and that a person who enters into possession having a lawful title, -: 70 :- cannot divest another of that title by pretending that he had no title at all.
e) Abubakar Abdul Inamdar (dead) by LRs and another vs. Harun Abdul Inamdar and others reported in (1995) 5 SCC 612 (Abubakar Abdul Inamdar):
(i) The controversy in this case again arose under Act 22 of 1955, which was also considered in the case of Nagesh Bisto Desai. In this case, the facts were that on the death of the inamdar the agricultural lands were assigned to his eldest son by certain orders passed by the Ruler of Kolhapur. The said inam lands were impartible and the lands devolved upon the eldest son by the rule of primogeniture. On the enforcement of the 1955 Act, the eldest son of the inamdar, Abubakar was regranted the properties as the watandar. His siblings laid a claim to the said lands as co-heirs of Abubakar taking the plea that by virtue of inheritance they had a share in the property as the original inamdar, Syed Abdulla was the father of -: 71 :- Abubakar but the office had devolved on Abubakar being the eldest son. It was contended that the bar of impartibility and the rule of primogeniture fell into insignificance on account of the 1955 Act. The suit had been decried even by the High Court.
(ii) It was contended before the Hon'ble Supreme Court that the parties in that case were Mohamaddens, that the estate of Syed Abdulla, the original inamdar should normally have devolved upon his children in accordance with the shares as defined under the Shariat law. But since the inam lands were impartiable and the services to the Ruler were due from the members of the family through the eldest son by the rule of primogeniture, even then the eldest son was the representative to hold the inam. Once the inam was abolished and regrant was given to Abubakar, the eldest son, the members of the family had a share in the said land as per the law of Shariat. While observing so, the Hon'ble Supreme Court repelled the contention that the legal position would alter if -: 72 :- the inamdar was a Mohammedan and the parties seeking succession were Mohammedans and not belonging to a Hindu Joint Family. The Hon'ble Supreme Court emphasized that when Abubakar was confirmed with the inam, there was no distinction created between the Inamdar being a Muslim or a Hindu and that uniformity of tradition in that regard was a good rule of reason and therefore when the land was available for division by way of inheritance, then even if one member of family was conferred with the office of Inamdar, once it was regranted to him, the members of the family could seek a share in the said estate on the premise that the conferment of office to only one member of the family was on the basis of right of primogeniture and that the said office was held as a hereditary right.
f) B.L. Sreedhar vs. K.M. Munireddy reported in (2003) 2 SCC 355 (B.L. Sreedhar):
(i) The matter arose under the KVOA Act, 1961.
It has been held by the Hon'ble Supreme Court that the -: 73 :- regrant of the resumed land in the said Act in favour of one of the family members would enure to the whole family but members relinquishing right by word or conduct, in favour of other members, would be bound by estoppel.
g) K.V. Sudharshan vs. A. Ramakrishnappa reported in (2008) 9 SCC 607 (K.V. Sudharshan):
(i) The controversy was considered under the provisions of Mysore (Religious and Charitable) Inams Abolition Act, 1955. In the said case, it was held that respondent No.1 therein was made Archaka after the death of his father because he was the eldest member of the family. Being the Archaka, he cultivated lands and obtained occupancy rights. In such circumstances, it would be highly unjust to deprive the other members of the family from getting their shares in the said land attached to the office of Archaka and such lands are also available for partition and if the occupancy rights were granted to one of the members of the family, it would not -: 74 :- disentitle the other members from claiming a right in the said lands.
h) N. Padmamma and others vs. S. Ramakrishna Reddy and others reported in (2015)1 SCC 417 (N.Padmamma):
(i) The question considered was whether the civil Court had jurisdiction to entertain a suit for partition for division of respective shares amongst the members of a joint family, when in respect of some of the lands, occupancy right had been granted in favour of one of them in terms of the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. While considering the said question, in light of the scheme of the said Act, the Hon'ble Supreme Court held at para-10 that it is well settled principle of law that possession of a co-heir is in law treated as possession of all co-heirs. If one co-
heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir cannot come in possession adversely to other co-heirs not -: 75 :- in possession, merely by any secret hostile animus on his own part and in derogation of the title of other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. In that case reliance has been placed on Kalgonda Babgonda Patil and the decision in the case of Nagesh Bisto Desai. The Hon'ble Supreme Court concluded that the grant made in favour of one of the persons of the joint family would enure to the other members as the grant is for the benefit of all. That is because the grant made in the name of the watandar did not mean that the property ceased to be joint family property.
39. Learned counsel for the appellant has also relied upon the following decisions of this Court:
a) Mohamadsa vs. Allisa reported in 1988 (2) KLJ 89 (Mohamadsa):
(i) A Division Bench of this Court considered the controversy under the provisions of the KVOA Act, 1961 in -: 76 :- an appeal that arose from the judgment and decree passed in a suit by the trial Court. The said suit was filed seeking a decree for partition and separate possession of the lands in question. The facts could be noted in detail as the said case also concerned with the office of walikar of the village as in the instant case. The lands were enjoyed by the propositus Maktumsa. He had three sons by name, Madansa, Allisa and Mashaksa @ Mashanna. Madansa had three sons by name Mohammadsa, Hanifsa and Kasimsa.
The two other sons of Maktumsa i.e., Allisa and Mashaksa @ Mashanna were the plaintiffs in the suit and the three sons of Madansa were the defendants in the suit. The suit seeking partition and separate possession was resisted by the defendants.
(ii) The Division Bench considered the consequences of abolition of village office and regrant of the lands assigned to the village office by placing reliance on another decision of the division bench of this Court in the case Shivappa Fakirappa Shetsanadi vs. -: 77 :- Kannappa Mallappa Shetsanadi reported in ILR 1987 KAR 3155 (Shivappa Fakirappa), wherein reference was made to two decisions of the Bombay High Court referred to above namely, Laxmi Bai vs. Ganesh and Nagesh Bisto Desai vs. Khando Thirmal and held that under the Act on the abolition of the village offices, regrant of the land is made to the person who was the holder of the village office immediately prior to date of appointment on payment by or on behalf of such holder to the State Government the occupancy price. The Division Bench quoted from the aforesaid judgments to hold that village office and the suit land annexed to it had been continued to be joint family property till the date on which the village office was abolished and the land was annexed to it was resumed. Further, an 'interest' in the village office means that the member of the joint family even though he may belong to a junior branch, had a right to succeed to the office in the event none was available in the senior branch to succeed to the office. Therefore, in the said case it was held that the inferior village office which was granted to the great -: 78 :- grand father of the parties and the suit land which was annexed to the said office, on abolition of the village office and resumption of the suit land as a consequence of abolition of the village office, became available for regrant and the person officiating the said office became entitled to have the land regranted. Further, the Division Bench also cited that the definition of 'holder' means a person having an interest in the said office under an existing law relating to such office and the expression 'existing law relating to a village office' includes any enactment, ordinance, rule, bye-law, regulation, order, notification, firman, hukum, vat hukum, or any instrument or any custom or usage having the force of law relating to a village office which may be in force immediately before the appointed date. Therefore, the junior members of the family having an interest under the village office must be considered as holders of the village office and a regrant made in favour of a person does not take away the right of the other persons or junior members of the family to seek partition in the suit land as per their personal law.
-: 79 :-
(iii) Dwelling on the facts of the case, the Division Bench noted that the plaintiffs as well as the defendants in the said suit being the descendants of the common propositus, Maktumsa to whom the village office was granted, also fell within the definition of 'holders of a village office' and that the plaintiffs therein had an interest in the village office under the existing law relating to village office because in the absence of heirs from the elder branch, the plaintiffs were entitled to officiate as Shetsanadis and that a regrant did not take away the right of a junior member of the family who had an interest in the village office to seek partition and possession of his share in the suit lands according to his personal law, even though the regrant was made in the name of the holder of the village office immediately prior to the date of regrant.
(iv) The Division Bench also placed reliance on Section 90 of the Indian Trust Act, illustration (b), wherein, the person would hold the lands for the benefit of himself and other members of the undivided family and -: 80 :- that the principle applies to a Mohammaden family as well holding Shet sanadi lands immediately on the appointed date by relying on a judgment of a learned Single Judge of this Court in the case of Aminsaheb Dastagirsaheb Mulla and others vs. Hussainsaheb Rasulsaheb Mulla and another in RSA No.281/1972 dated 22.06.1976. Accordingly, it was held that on the regrant of the lands in favour of the first defendant therein, the plaintiffs and defendants became the co-owners as each one of them became entitled to a share in the suit lands and the decree granted by the trial Court was affirmed.
b) Beerappa vs. Fakirappa Beerappa Bandrolli reported in ILR 2006 KAR 4170 (Beerappa):
(i) This is again a judgment of the Division Bench of this Court, reliance has been again placed on the decision of the Shivappa Fakirappa as well as the decisions of the Hon'ble Supreme Court referred to above to hold that a 'holder' of village office means a person having interest in the village office under the existing law relating -: 81 :- to the said office. An interest in the village office means and includes the right to survivorship of the members of the joint family. The right to succession by survivorship is a right accrued to the members of the joint family in respect of joint family property and therefore junior members of the family have the interest in the village office and they have to be considered as the holders of village office. Reiterating that lands attached to the village office is not available for partition till it becomes ryotwari land i.e., when it is regranted subsequent to resumption made by the State, the Division Bench held that succession to such land would be on the basis of the rules regarding succession as applicable to the parties in terms of their personal law. Further, any person holding village office will hold the said office on his behalf and also on behalf of other members of the joint family. By placing reliance on the decision in the case of Annasaheb Bapusaheb Patil, the Division Bench held, even on the abolition of watans, all the incidents attached to the watandari namely, the obligation to render service becomes extinct and the land -: 82 :- becomes ryotwari land on regrant and the office of watans become extinguished. The applicability of lineal primogeniture also would stand abolished, all members of the family would be entitled to claim right to partition by survivorship.
40. In contrast to the aforesaid judgments, learned counsel for the respondents cited three judgments namely, Venkat vs. Rama reported in (1885) ILR 8 MAD 250, Musti Venkata Jagannadha vs. Musti Veerabhadrayya reported in AIR 1922 PC 96 and Gazula Dasaratha Rama Rao vs. State of Andhra Pradesh reported in ILR 1961 SC 564 to contend that the office of the walikar, which is under consideration in this appeal is akin to the office of karnam under the Madras Hereditary Village Offices Act, 1895 and is an office under the State within the meaning of Article 16 (1) & (2) of the Constitution of India. That the said office cannot be construed to be a hereditary village office after the promulgation of the Constitution and that the conferment of the said office -: 83 :- subsequent to the enforcement of the Constitution is not on the basis of heredity, but it would depend purely on the merit of the candidate who applies for such an office.
But while considering the said proposition, the facts in each case is considered in seriatim as under:
a) In Venkat vs. Rama, the facts were that the lands forming an emolument of a hereditary village office having been separated from the office by the Government, were enfranchised and granted by the Inam Commissioner to Venkat, who had been appointed to, and, at the date of enfranchisement held, the office without possessing any hereditary claim thereto. But there is no material evidence produced by the respondents in the instant case as to the nature of the conferment of office on Nabisab or as to whether it was on the basis of his individual merit.
b) In the second of the aforesaid cases, the controversy was again regarding the office of karnam and it was held that enfranchisement in the name of a particular person insofar as right in the office of the -: 84 :- karnam was concerned, must be given full effect and that the family members of the person who was conferred with the said office could not seek partition. Once again the said decision turns on its own facts, as the conferment of the office of the karnam, though a village office, was not on the basis of heredity, but on the basis of qualification of the person to hold the said office.
c) In Gazula Dasharatha Rama Rao's case, the third decision cited by learned counsel for the respondents, it has been held that the office of village Munsiff under the Madras Hereditary Village Offices Act, 1895 is an 'office under the State' as the appointment was made by the Collector, the emoluments were granted or continued by the State and the Collector had disciplinary powers including the power to remove, suspend or dismiss him and the qualifications for appointment were laid down by the Board of Revenue. Therefore, the office was a public office.-: 85 :-
All the aforesaid three decisions are pertaining to what was once a hereditary office in the erstwhile Madras State, subsequently the said office being conferred on a particular person was based on his own merit and not on the basis of heredity based on the principle of primogeniture. The said line of decisions cannot be applied to the office of walikar as in the instant case as the same has to be considered in light of Act of 1874 and hence, those decisions cannot be applied in a stereo type fashion or straight jacket manner in the instant case.
d) G.L. Hanumantha Rao and others vs. State of Mysore and others reported in 1964 (1) Mys LJ 50 is also a judgment of the Division Bench of this Court, relied upon by learned counsel for the respondents. In the said case, the constitutional validity of the Mysore Village Offices Abolition Act, 1961 raised by persons holding the post of Shanbhogs, Patels, Karnams and other village offices or inferior village offices in light of Article 19 (1) (f) of the Constitution was considered. The Division Bench -: 86 :- held that abolished village offices are not property and no fundamental right to hold them could be claimed under Article 19 (1) (f) of the Constitution (as it then stood) and that no fundamental right granted under Article 13 (1) of the Constitution was invaded.
e) Reliance has also been placed on another Division Bench decision of this Court in the case of Malleshappa Yeshvantahappa Patil vs. Kallappa Vithoba Patil and others reported in 1970 (2) KLJ 350, wherein question arose as to whether an individual is exclusively the holder of the village office, or whether the entire joint family of which he is a member, is the holder of the village office, as such a question falls within Section 3(1) (b) of the KVOA Act, 1961. The Division Bench held that while considering the question as to in whose favour land should be regranted under Section 5 of the said Act, if a question arises as to which of such applicants is or are holder or holders of the village office, it cannot be said that such a question does not fall within Section 3(1) (b), -: 87 :- merely because those applicants had not made an application or applications in the manner provided in Rule 3 but had made the applications under Rule 5 of the rules made under KVOA Act, 1961. Rule 3 made under the said Act prescribes the manner of holding an enquiry under Section 3. Sub-rule (1) of Rule 3 provides that any person interested in the village office or in any land granted or continued in respect of or annexed to, such an office and desiring a decision on any question referred to in Section 3, may make an application to the Deputy Commissioner. Whereas sub-rule (1) of Rule 5 provides, inter alia, that a person entitled to the regrant of a land, shall make an application to the Deputy Commissioner for such regrant within three months from the date of payment of full occupancy price. The functioning of the Deputy Commissioner in this regard has been delegated to the Assistant Commissioners in-charge of Revenue Sub- Divisions and in respect of the areas within their respective jurisdiction and subsequently there has been a further delegation to the Tahasildar.
-: 88 :-
The Division Bench further held that Section 2(1) of the Act which contains the definition of 'holder of a village office', which term includes not only an individual but also the whole body of persons having interest in a village office where such village has been entered in a register or record relating to such village office is being held by such body. The word 'person' in clause (b) of Section 3(1) includes persons.
f) G.K.Basappa and others vs. Tahsildar, Shimoga and another reported in [1991 (3) Karl.L.J 401]( G.K.Basappa and others):
This is also a case, which arose under the very same subject. In this case also there were rival applications filed by the members of the same family. A dispute arose as to which of the parties had to be regranted the land attached to the village office and it is observed that when rival claims are made before the Tahasildar for regrant of the land and when such of claimants are unsuccessful in their attempt they cannot turn round and say they would be -: 89 :- entitled to the benefit that may accrue in favour of holders of the village office.
g) Yamanavva and another vs. Chandrawwa reported in 2007 (1) Kar.L.J. 626(Yamanavva and another):
In this case, it has been held that where land is granted exclusively in favour of a party, it would not be entitled for the benefit of the family, particularly when there was severance of status of joint family. In that case also the dispute was with regard to walikari land and the question was whether the family continued to remain joint. There was a concurrent finding of the Courts below that there was partition of properties between the family members and thereafter the grant was made in favour of one of the members of the family. In that context, it was held that the grant was exclusively in favour of the defendant in the said case and it would not enure to the benefit of the plaintiff as the family no longer remained joint pursuant to a partition in the family. -: 90 :-
h) In the aforesaid case, reference has been made to the decision of this Court in the case of Appanna and others vs. Lakkappa Devappa reported in 1983 (1) KLJ 482 (Appanna and others), which also pertains to walikari watans, wherein it has been held that in the case of walikarki properties, where a regrant is made in the name of one of the members of the family, who was performing the walikarki services, the grant enures to the benefit of all the holders of that office in the family and the members of the family have a right to claim partition in the said regranted land. It was further held that after the village office was abolished and the watan lands were resumed on the appointed date i.e., 01.02.1963 and thereafter the cause of action for partition would arise only in 1963 (or on a subsequent date when the land is regranted). Reliance has been placed on the full bench decision of the Bombay High Court in Lakshmi Bai Sadashiv Date and others vs. Ganesh Shankar Date and others [AIR 1977 Bombay 350 (FB)] (Laxmi Bai -: 91 :- Sadashiv Date) in coming to such conclusion. It is further observed that when lands are regranted, the same would enure to the benefit of the entire family, provided there would be no partition between the members of the family as on the date of the regrant.
In Lakshmi Bai Sadashiv Date, while considering the provisions of the Act, the Bombay High Court held that the provisions of the said Act does not affect the normal rights of a member of a Hindu family under the personal law applicable to Hindus. Thus, where the service inam was a grant to the joint Hindu family in the name of the senior member and the same was abolished it could not be contended that the right of the other members of the family relating to partition of joint family property was extinguished nor could it be contended that when the regrant was made under Section 7 in the name of the grantee, the other members had no right to ask for a share therein by way of partition.
-: 92 :-
41. Learned counsel for the respondents has placed reliance on two other decisions with regard to binding effect of a finding of fact given in proceedings under particular statutes in a civil dispute.
a) Mudakappa vs. Rudrappa and others reported in AIR 1994 SC 1190 has been pressed into service to contend that under the provisions of Karnataka Land Reforms Act, if a question would arise as to whether the joint family or one of its members is a tenant, the Tribunal would have jurisdiction to decide such question under Section 48A read with Section 133 and not the Civil Court and when the Tribunal is invested with the power and jurisdiction to adjudicate rival claim, the correctness of its order could be tested either in an appeal or by judicial review under Article 226 or Article 227 of the Constitution, as the case may be, but the finding given with regard to rival claims on tenancy rights cannot be subject to a jurisdiction once again before the Civil Court. The Civil Court will have power only to decide other issues. Learned counsel for the respondents by drawing an analogy from -: 93 :- the aforesaid decision contended that in the instant case also rival applications were filed for conferment of office of the Walikar both by Nabisa as well as Imamsa and by order dated 24/06/1954 the concerned authority conferred the office of walikar on Nabisa and challenge made to the said order before the Pranth Officer was also unsuccessful as the appeal was dismissed on 30/11/1954. Thereafter, there has been no further challenge to that order. The said conferment of office on Nabisa was in his individual capacity and not on the family of Chandsa. Consequently, the holder of the office namely, Nabisa was rightly regranted the land under the provisions of the KVOA Act, 1961 on the resumption of such land on 01/02/1963 (appointed date) and hence the findings arrived at while regranting the land to Nabisa (which were also challenged by the appellants herein before the District Court in Misc.Case No.5/1984 which appeal has also been dismissed as per Ex.P-1) would clearly imply that the questions which have gone into by those statutory authorities cannot be re-agitated in the present suit. -: 94 :-
b) In this regard, reliance has also been placed on Anjanappa and others vs. Byrappa (Since deceased) by LRs. reported in 1995 (5) Kar.L.J. 459 to contend that even under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 where a grant of occupancy right is made to the tenants of inam lands, the exclusive jurisdiction is conferred on Special Deputy Commissioner to do so and the jurisdiction of the Civil Court is ousted and when once the order of the Deputy Commissioner attains finality, the same cannot be challenged in collateral proceedings like in a suit for partition and possession of property.
c) At this stage it would be useful to also make a reference to two other judgments of this Court, one of which is Syed Basheer Ahamed vs. State of Karnataka reported in ILR 1994 KAR 159 and the other is Laxman Gowda and others vs. State of Karnataka reported in ILR KAR 1980 (2) 892 (Laxman Gowda). Of course, the said decision pertains to the prohibition of alienation of -: 95 :- service inam lands and the legality of the alienation made after enforcement of the KVOA Act, 1961 and, as to, whether, an alienee can derive any right or interest in such land. It was held that the holder or the authorized holder of the service inam land do not get any title to it when that land stood resumed to the Government under sub-section (3) of Section 4, but he gets title to it when it is regranted to him under Section 5 or 6, as the case may be. If there had been no alienation before the Act coming into force and before it was regranted, then the alienee acquires title to that land after such regrant is made to alienor.
d) While holding so, the Division Bench has traced the history of the village office in different areas of Karnataka State which were generally held hereditarily. Reference has also been made to the Bombay Hereditary Offices Act, 1874 in erstwhile Bombay State. That the emoluments of these village offices are generally in the form of lands and the alienation of such lands by the holders thereof was generally prohibited. According to the Division Bench, the -: 96 :- policy of the State in restraining alienation of service inam lands was to render permanent source of income to a hereditary village office's family, apart from any cash emoluments. Reference has also been made to the definition of watan properties under Section 4 of the Bombay Hereditary Village Office Act, 1874.
e) In Gazula Dasharatha Rama Rao vs. State of Andhra Pradesh, the Hon'ble Supreme Court held that the continuance of hereditary village offices was unconstitutional. In light of that decision, State Government enacted the KVOA Act, 1961 by which all hereditary village offices in the State were abolished. The constitutional validity of the said Act was challenged in G.L. Hanumantharao vs. State of Mysore and it was upheld and the Hon'ble Supreme Court also upheld the constitutionality of the Act in Shankar Narayan vs. State of Mysore reported in AIR 1966 SC 1571. It is not necessary to refer to the details of the conclusions arrived at in the said decisions as the same pertain to the right, -: 97 :- title and interest of an alienee of service inam land under the provisions of the act which does not arise in the instant case.
f) Thereafter, there were contrary opinions expressed by two division benches of this Court in the case of Hanumaiah vs. State of Karnataka reported in ILR 1987 KAR 550 and Chikkanarasaiah vs. Tirupataiah reported in ILR 1989 KAR 1020 and hence the matter was referred to a Full Bench which has given its opinion in the case of Syed Bhasheer Ahamed and others vs. State of Karnataka reported in ILR 1994 KAR 159 (FB), which is an opinion of the Full Bench. The said decision is also with regard to the alienation made in respect of service inam land either prior to 01/02/1963 or subsequent to 01/02/1963 upto 07/08/1978 when the principal Act was enacted and alienation made after 07/08/1978. It would not be necessary to go into the conclusions arrived at in that case as they are not relevant -: 98 :- for the purpose of determining the controversy in the present case.
42. In Laxman Gowda, the Division Bench of this Court has adverted to Bombay Act No.III of 1874 which is now called the Maharashtra Hereditary Offices Act, 1894 (1874 Act). It would be useful to briefly summarize the scheme of the said Act at this stage.
a) In Section 4 of the Act 'watan property' is defined to mean moveable or immovable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to a hereditary office. It includes a right to levy customary fees or perquisites, in money or in kind, whether at fixed times or otherwise. It includes cash payments in addition to the original watan property made voluntarily by the State Government and subject periodically to modification or withdrawal. The emphasis in the definition is on the hereditary office. The expression 'hereditary office' is -: 99 :- defined to mean every office held hereditarily for the performance of duties connected with the administration of collection of the public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration. The expression includes such office even where the services originally appertaining to it have ceased to remain. The watan property, if any, and the hereditary office and the rights and privileges attached to them together constitute the watan.
b) The definition of 'watandar' is also stated to mean 'a person having a hereditary interest in a watan. It includes a person holding watan property acquired by him either before the introduction of the British Government into the locality of the watan or, legally acquired, subsequent to such introduction and, also includes a person holding such property from him by inheritance. It also includes the person adopted by an owner of a watan or part of a watan, subject to certain conditions specified in the Act. 'Family' is defined to include each of the branches of the family -: 100 :- descended from an original watandar and the head of a family includes the chief representative of each branch of a family. 'Representative watandar' means a watandar registered by the Collector under Section 25 as having a right to perform the duties of a hereditary office. 'Officiator' means the person actually performing the duties of a hereditary office for the time being, whether he be a representative watandar or a deputy or a substitute appointed under any of the provisions of the said Act. The Act prohibits alienation of watan and watan rights. Part-III of the said act deals with commutation of watans.
c) Learned counsel for the respective parties have both contended that Bombay Act No.III of 1874 called the Bombay Hereditary Offices Act now re-named as the Maharashtra Hereditary Offices Act, apply to the village offices in question. That subsequent to the re-organisation of Karnataka State in the year 1956 and merger of the areas in which the land in question is situated in Karnataka State, the KVOA Act, 1961 would apply to the land in -: 101 :- question also. Thus, the 1874 Act or Watan Act is an Act which applies to hereditary offices, but parts VI, VII, VIII and IX of the said Act does not apply to hereditary offices of lower degree than Patel and Kulkarni, nor to watans appertaining to such offices.
d) Learned counsel for the respective parties also submit that the office of walikar is a hereditary village office of a lower degree under Section 63. In part-X of the said Act the Collector is empowered, subject to the general control of the State Government, to register the names of individual watandars as holders of the office or to register it as held by the whole body of watandars. He has to also determine when individual names are so registered, the rights, duties and responsibilities among themselves or the persons so registered, and the mode in which they shall be selected to perform the duties, whether by selection by the Collector or by defined rotation, or by election by the watandars or otherwise, as may be expedient. That in cases where the registration is made in the name of the -: 102 :- whole body of watandars, the duties to be performed have to be assigned by the Collector either severally or jointly. The Mamlatdar or Mahalkari (Tahsildar) are empowered to pass orders in regard to the appointment, remuneration, period of service, suspension etc. and other matters of discipline in the case of an inferior village hereditary office.
e) The Maharashtra Revenue Jurisdiction Act, 1876 (Act No.X of 1876) bars the jurisdiction of the Civil Court with regard to claims against the Government, with regard to any property pertaining to the office of any hereditary officers appointed or recognized under the 1874 Act or any other law for the time being in force or of any other village officer or servant or any suit to set aside or avoid any order made under Bombay Act No.III of 1874.
43. The KVOA Act, 1961 was enacted to abolish village offices in the State of Karnataka which was held hereditarily before the commencement of the Constitution and the emoluments appertaining thereto in the State of Karnataka and to provide for matters consequential and -: 103 :- incidental thereto. Under the said Act, the appointed date is 01/02/1963 under Section 2 (1) (a) of the Act. Under Section 2 (1) (b) 'authorized holder' has been defined to mean a person in whose favour a land granted or continued in respect of or annexed to, a village office by the State or a part thereof has been validly alienated permanently, whether by way of sale, gift, partition or otherwise, under the existing law relating to the such village offices. The definition of emoluments would include lands. Section 2(1) (g) defines 'holder of a village office' or 'holder' to mean a person having an interest in a village office under an existing law relating to such office.' The proviso states that where any village office has been entered in a register or record under the existing law relating to such village office, as held by the whole body of persons having interest in the village office, the whole of such body shall be deemed to be the holder. 'Inferior village officer' is defined to mean 'every village office of lower degree than that of a Patel or Village Accountant'. 'Officiator' means the person actually performing the -: 104 :- duties of a village office, whether he be a person having a right to perform the duties of such office or a substitute appointed under the existing law relating to such office. 'Unauthorized holder' is defined under Section 2(1)(m) and 'village office' is defined under Section 2(1)(n), which essentially is held hereditarily.
As it is noted from the decision of the Division Bench in Laxman Gowda's case that the village office coming under the provisions of Act No.III of 1874 including that of walikar, which is an inferior village office, subsequent to the enforcement of the KVOA Act, 1961 has to be dealt with under the provisions of the said Act. Section 3 deals with the powers of the Deputy Commissioner to decide certain questions such as, whether any person is a holder of a village office. The Deputy Commissioner will have to hold an enquiry in the prescribed manner and decide the question. Of course, the jurisdiction of the Deputy Commissioner is now conferred on the Tahsildar. Any person aggrieved by the jurisdiction of the Tahsildar could -: 105 :- appeal to the District Judge of that District within whose jurisdiction the lands are situate. Section 4 deals with the abolition of village office together with incidents thereof including resumption of all land annexed to a village office by the State. Under Section 5, the resumed land could be regranted to the holder of the village office immediately prior to the appointed date. On regrant of the said land, a ryotwari patta shall be issued and the land gets converted from an impartible estate to ryotwari land, subject to certain conditions regarding alienation. However, partition not being transfer is permissible after the land is regranted. Section 6 deals with regrant of land resumed under Section 4 to authorized holder who is an alienee of the said land. Section 7 deals with eviction of unauthorized holders, which is not relevant for the present case. The rules made under the said Act have been referred to above while referring to the decision of the Division Bench of this Court in the case of Malleshappa Yeshwantappa Patil vs. Kallappa Vithoba Patil and others reporteyd in 1970 (2) Mysore Law Journal 350. -: 106 :-
While answering point No.1, it would be useful to revisit two aspects. Firstly, as to whether the appointment of Nabisa as walikar was exclusive, based on his own merit and qualification and in his individual capacity and that his appointment to said office did not enure to the benefit of other members of the family. Secondly, as to whether the order or regrant of the suit lands made in the name of Nabisa was on the basis that, Nabisa only had the right to enjoy the said lands on its regrant and it did not enure to the benefit of all other members of the family of Chandsa. That on the demise of Nabisa, his legal heirs only were entitled to share the said lands and not the branch of plaintiffs' family.
44. On a consideration of the judgments of the Hon'ble Supreme Court as well as this Court, what emerges is that the grant of watan to the eldest member of a family would not make him the exclusive owner of the watan properties. That any member of the -: 107 :- family of watandar who has a hereditary interest, both in watan property and in the hereditary office, (as these two concomitants that constitute the watan in terms of Section 4 of the Watan Act) would be entitled to hold the said office. But in practice, the office of walikar as watandar, was conferred only on the eldest member of the family on the basis of custom by applying the rule of primogeniture applicable to such office. That the Watan Act has been enacted to preserve the pre-existing rights of the members of a joint Hindu family. The word 'family' is defined in Section 4 of the Watan Act to include "each of the branches of the family descended from an original watandar and the expression "head of the family" is defined to include the chief representative of each branch of a family. Although Section 3 of the said Act has brought about a change in the tenure or character of holding as watan land, but that did not affect the other legal incidents of the property under personal law. Further, the Hon'ble Supreme Court has held that the expression "watandar" cannot be limited to the narrow class of persons who have -: 108 :- claimed the hereditary interest both in the watan property or in the hereditary office. Watan property has always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property and were entitled to be watandars of the same watan within the meaning of Watan Act were entitled to a share in such property once it ceased to be impartible. It has also been held by the Hon'ble Supreme Court that the watan lands continued to be hereditary property of the family although according to the custom, the watan was only in the name of senior member of the family as the succession according to custom was in accordance with the rule of primogeniture. This Court has further held that an interest in the village office means, that the member of the joint family even though belonged to the junior branch in the family had a right to succeed to the office in the event none was available in the senior branch to succeed to the office. Thus, the holder of the village office under KVOA Act, 1961 would mean, a person having an interest in the -: 109 :- village office under the existing law relating to the said office, would also include junior members of the family who had interest in the village office and not restricted to only those appointed to the said office.
45. On a consideration of the judicial dicta in light of the evidence on record, it is noted that the suit schedule lands being attached to the office of walikar devolved on Nabisa on the basis of heredity on the principle of primogeniture and not in his individual capacity or on the basis of his individual merit. But that did not exclude the other members of the family of Chandsa from enjoying the suit lands with Nabisa. No material has been produced by the defendants to evidence the fact that the conferment of the office on Nabisa was on the basis of the individual merit and on a comparison of his individual merit with the other persons of the family who were also entitled to hold the said office and to the exclusion of the other junior members of his family. In the absence of any material to the effect that on 02/12/1953 on the demise of Chandsa, -: 110 :- the appointment of Nabisa to the office of walikar was on the basis of his individual merit only, it is held that the said appointment was based on the principle of rule of primogeniture and on the basis of heredity, which is as per the evidence on record. Nabisa being the eldest son of Chandsa through Ansarma, first wife of Chandsa, he was conferred the office of walikar so as to render service of the village office after the demise of Chandsa who was the walikar till his demise. It is needless to emphasise that the said village office was a hereditary office unlike that of karnam, as it obtained in erstwhile Madras Province. Therefore, it is held that the conferment of office on Nabisa was on the basis that he was the eldest son of Chandsa who was holding the office till his demise on the basis of heredity and rule of primogeniture. By that, it cannot be held that the other members of Chandsa's family had no interest in the said office. This finding is also supported by what is stated in Ex.P-1 produced by the plaintiffs, which document is also relied upon by defendants. -: 111 :-
Ex.P-1 is the judgment passed in Miscellaneous Appeal No.5/1984, dated 04/07/1988. On a reading of the said judgment, it becomes clear that Imamsa was the walikar or sanadi of Bidarkundi Village. The sanad of walikar lands, after the death of Imamsa, devolved on Chandsa his son, who worked as waliker till 1953. He died in the said year. Nabisa made an application to the Tahsildar "for appointing him as walikar of the village and also to mutate two lands in his name on the ground that he was the eldest son of Chandsa". The said application was granted. Imamsa, Nabisa's younger step brother filed an appeal before the Prant Officer, Bagalkot Sub-Division, but the same was dismissed and Nabisa's appointment was confirmed. Thereafter, Nabisa was working as walikar of the village till the abolition of village offices with effect from 01/02/1963 on coming into force of KVOA Act, 1961. After vesting of lands, Nabisa filed an application on 29/09/1967 for regrant of the lands. On 07/10/1969, Imamsa also filed an application to the Tahsildar claiming that the suit lands were the family lands -: 112 :- of Nabisa, himself and his younger brother Rajesa and the lands had stood in the name of their father and as they could not be partitioned, they were enjoyed by all the three brothers jointly. The Tahsildar, after enquiry, submitted the papers to the Assistant Commissioner who, after hearing the parties regranted the lands in the joint names of all the three brothers under Section 5(3) of KVOA Act, 1961. There were several rounds of litigation even before this Court and ultimately on remand of the matter, the Tahsildar, Muddebihal, after completing an enquiry and hearing the parties passed an order dated 24/06/1984, holding that Nabisa being the officiating walikar was alone the holder of village office as contemplated under section 5 of the Act. He passed the order regranting both the lands in favour of the respondents herein who are the legal heirs of deceased Nabisa. That order was challenged before the learned District Judge, Bijapur, in Miscellaneous Appeal No.5/1984. At paragraph Nos.12, 13, 14 and 15 of the judgment (Ex.P-1), while considering the rival contentions, no doubt -: 113 :- the learned District Judge has held that the office of walikari was conferred on Nabisa in his individual capacity and thereafter, Nabisa alone was entitled for regrant of the land and the order of regrant was made in favour of his legal representatives on his death by the Tahsildar, Muddebihal, in accordance with law. Despite the said finding in Ex.P-1, learned District Judge has opined as under:
"it is made clear that if the appellants have got right to get share by way of partition of the land, they are at liberty to resort to legal remedy available to them under law."
It is on the basis of the aforesaid liberty, the appellants filed the suit, out of which this appeal arises. Therefore, Ex.P-1 order has taken note of the fact that, the regrant of land to the holder of the office to a particular person in the family would not take away the right of the other members of the family to seek partition and separate possession. Therefore, the order of regrant of the lands in the name of Nabisa does not exclude the right of the -: 114 :- plaintiffs, who also belong to the family of Chandsa, the erstwhile holder of the village office to seek partition and separate possession of the suit lands, as they were attached to the erstwhile village office. This is because the plaintiffs also had an interest in that office, but only Nabisa being the eldest son of the family of Chandsa was appointed to the said office. Thus, the lands attached to the village office were mutated in the name of Nabisa as he was the eldest son of Chandsa and conferred the office on the basis of rule of primogeniture.
46. On a survey of the decisions of the Hon'ble Supreme Court and this Court, it is clear that the lands attached to the village office were impartible and they become partible only after they were converted into ryotwari lands. But one cannot lose sight of the fact that the lands in question are watan lands and Nabisa, Imamsa and Rajesa had an interest in the said lands as they were watan lands and it was only on the basis of the rule of primogeniture that Nabisa being the eldest son, was -: 115 :- conferred the office of walikar. In fact, Nabisa's application made in the year 1953 was also on the basis of being the eldest son of Chandsa. When Imamsa also sought for appointed as a walikar, the same was negatived as Imamsa was not the eldest son of Chandsa, who was holding the office of walikar till his demise, and not because he did not have any merit to hold the said office. Therefore, the contention of the learned counsel for the respondents that the office of walikar was conferred on Nabisa on account of him being more meritorious as compared to Imamsa cannot be accepted particularly, when no material has been produced by the respondents in that regard.
Therefore, despite the order of regrant being confirmed by the learned District Judge on 04/07/1988 in Miscellaneous Appeal No.5/1984 (Ex.P-1), the said regrant would enure to the benefit of all members of family of Chandsa who was the erstwhile holder of the office of walikar and on his demise, despite the same being -: 116 :- conferred on Nabisa who was his eldest son. Accordingly, the first aspect of point No.1 is answered.
47. The second aspect of point No.1 is, whether the regrant of the suit lands made in the name of Nabisa on the enforcement of KVOA Act, 1961 was on him individually or the other members of the family also had the benefit of said regrant. The answer firstly is that regrant of the lands in the name of Nabisa only was not on the basis that only he was entitled to appropriate the said land and enjoy the same to the exclusion of the other members of his family i.e., the other heirs of Chandsa, who was holding the office of walikar till his demise in the year 1953 as only he was conferred with the village office. But Nabisa being the heir of Chandsa who was conferred the office of walikar on the basis of rule of primogeniture, it was regranted only in his name. However, that would not imply that the other heirs of Chandsa became disentitled to enjoy the suit lands jointly along with Nabisa, -: 117 :- which they did so as heirs of Chandsa only because Nabisa was regranted the lands under KVOA Act, 1961. Re: Point No.2:
48. This point is with regard to the entitlement of the appellants to seek partition and separate possession of the lands in question. The answer given to point No.1 being that the suit schedule lands being attached to the office of walikar and being regranted to Nabisa under KVOA Act, 1961 would enure to the benefit of members of the family of Chandsa the erstwhile walikar. What emerges from the judgments referred to above with regard to the nature of the lands attached to the office, as to whether they are impartible or partible and as to whether the appellants/plaintiffs could seek partition and separate possession has to be answered. On a reading of the aforesaid judgments, what emerges is, the impartibility of the watan lands did not per se dilute its nature as joint family property or render it as separate property of the last holder of the village office so as to negate the right of -: 118 :- other members of the joint family to a share in the said property. That an impartible estate is not coparcenary property, but it is joint family property under Hindu law. Further, the watan land attached to an office cannot be excluded from the other properties of the joint family as that would run counter to the scheme of the 1874 Act or the Watan Act. Therefore, the regrant of watan land in favour of any member of the joint Hindu family would imply that it would enure to the benefit of the entire joint Hindu family. This principle would also apply to Muslim family as ruled by the Hon'ble Supreme Court. Further, the right of a member of the joint Hindu family to seek for partition of a joint family property cannot be regarded as a right relating to regrant of land as service inam or as an incident in respect thereof. Such a right is irrespective of regrant of the said land to a holder of the village office. On regrant of the land, the holder is deemed to be an occupant and therefore, the holding changes its intrinsic character and becomes ryotwari land and the land becomes capable of partition by metes and bounds -: 119 :- amongst the members of the joint family, be it Hindu or Muslim, as and when the succession opens or the right to claim partition exists. That once the office of the watandar stood extinguished, the rule of lineal primogeniture stood abolished and the land, on regrant became Hindu Joint Family property held by the watandar for and on behalf of the joint Hindu family just as other property which is in possession of a co-heir, which in law is treated as possession of all co-heirs of the joint family. This is because the grant made in favour of one of the persons of the joint family would enure to the benefit of all. This position also applies to a Muslim family also. Thus, the grant made in the name of ex-watandar or his heir does not mean that the property ceases to be joint family property so as to be excluded from partition and separate possession Thus, the regrant made in the name of an individual in the joint family would not take away the right of a junior members of the family, who had interest in the village -: 120 :- office, to seek partition and share in the suit land according to his personal law, despite the regrant being made in the name of the holder of the village office immediately prior to the date of regrant. The other members of the family of ex-watandar can seek partition of the watan lands once the same is regranted to a watandar and it becomes ryotwari lands, in terms of their personal law. Thus, on the watan lands becoming ryotwari lands, the watandari being extinguished, the applicability of rule of lineal primogeniture would also stand abolished and all the persons entitled to claim right to partition in accordance with law as per their personal law.
The decisions referred to by learned counsel for the respondents in the context of karnam under the Madras Hereditary Village Office Act, 1895 can be distinguished as the office of karnam was in the nature of an office under the State within the meaning of Article 16(1) and (2) of the Constitution of India. Under that Act, the applicability -: 121 :- of lenial primogeniture did not arise, but it was conferred after considering the individual merit and comparative merit of candidates who sought appointment to the said office. Thus the said decisions cannot be applied to the present case.
Thus, under Section 2(1)(g) of the KVOA Act, 1961, the expression 'holder of a village office' or 'holder' means a person having an interest in a village office. It also includes 'whole body of persons' having an interest in the village office, where such village has been entered in a register or record or relating to such village office being held by such body. The word 'person' in clause (b) of Section 3(1) includes persons. It is not just the eldest son of a walikar who has demised, who has an interest in the village office, but all his sons would have an interest in the office as well as the emoluments attached to such office including land, although only the eldest son is conferred the said office on the basis of rule of primogeniture and not on his individual merit being higher as opposed to the -: 122 :- merit if his other family members. In this context, the judgment in Yamanavva and another vs. Chandrawwa (supra) must be distinguished as in that case, the regrant was made exclusively in favour of defendant therein after there was a partition in the joint family. But in Appanna and others vs. Lakkappa Devappa (supra), it has been held that where a regrant is made in the name of one of one of the members of the family who was performing walikarki service, the regrant enures to the benefit of all the members in the family and the members of a family have the right to claim partition in the said regranted land just as they had the right to the village office. Therefore, the appellants herein are entitled to seek the relief of partition and separate possession even though the parties are Muslims as the Hon'ble Supreme Court has held that faith would not create any cleavage insofar as this aspect of the matter is concerned. Just as the members of a joint Hindu family would be entitled to seek partition and separate possession of the land regranted under the provisions of -: 123 :- the KVOA Act, 1961, similarly, the members of a Muslim family would be entitled to seek such a division.
However, one other contention which has been raised by learned counsel for the respondents herein is that there was a partition amongst the members of the family immediately after the demise of Chandsa, the house properties were divided and the said properties have been in the respective possession of the two families. On consideration of the oral and documentary evidence, it is noted that there was no partition, in the sense of there being division of properties amongst the family members of Chandsa. Moreover, the concept of partition and severance of status or concept of prior partition, which is in Hindu law would not apply to Muslims. The house property was given to two separate branches so that the two branches of the family would reside separately for the sake of convenience and to maintain peace in between the two branches of the family of Chandsa. That would not imply partition and separate possession of the suit -: 124 :- properties so as to result in division of the same. Therefore, it is held that the appellants/plaintiffs are entitled to seek partition and separate possession of the suit lands as well as the house properties. Accordingly, point No.2 is answered in favour of the appellants.
49. On issue No.1, the trial Court was not right in holding that the plaintiffs have not produced any material to the effect that the house properties are in joint possession with the defendants. On the other hand, the burden was on the defendants to prove that the house properties have been partitioned and the parties were in possession of their respective shares. There was no proof of the fact that there had been an oral partition in the year 1953 and that the parties were in possession of their respective portions in terms of that partition. As already observed, on the death of Chandsa, the two sub-branches of his family resided separately for the sake of convenience and peace in the family and not for the purpose of partition. As far as issue No.2 is concerned, the trial Court -: 125 :- was not right in holding that the suit lands were granted in the name of Nabisa in his individual capacity and as such, they are the exclusive properties of his heirs namely, the defendants. The trial Court has not appreciated as to under what circumstance Nabisa was appointed as a walikar i.e., being the eldest son, on the basis of the rule of primogeniture and not in his individual capacity. While answering issue No.3, the trial Court has answered the same in the negative by holding that the regrant of the suit lands does not enure to the benefit of the plaintiffs and defendants. The answer given to the said issue is also erroneous having regard to answer given to point No.1 above. Similarly, the trial Court was not right in holding that the suit lands were not enjoyed by the plaintiffs and defendants as tenants in common on the demise of Chandsa. This is because, when Chandsa died in the year 1953, the suit lands were impartible and could not be partitioned amongst his family members. In the same vein, the trial Court answered additional issue in the negative, which is also incorrect. The trial Court has held -: 126 :- that the plaintiffs are not entitled to partition and separation of 33/40th share in the suit properties and accordingly dismissed the suit, which is incorrect.
50. In view of the answer given to the aforesaid points, this appeal succeeds and it is allowed. The judgment and decree of the trial Court is set aside. The suit filed by the respondents/plaintiffs is decreed. The plaintiffs are entitled to 33/40th share in the suit properties as well as to mesne profits, in respect of which there shall be an enquiry in accordance with law.
Having regard to the relationship between the parties, they are directed to bear their respective costs.
Sd/-
JUDGE Sn/swk/S*