Karnataka High Court
Giriyavva W/O.Hanamanth Pammar, @ ... vs Shivappa S/O.Ramappa Pammar @ Lamani, ... on 21 March, 2023
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RFA No. 3089 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.3089 OF 2010 (PAR-)
BETWEEN:
1. SMT. GIRIYAVVA
W/O. HANAMANTH
PAMMAR @LAMANI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. JALAGERI THANDA,
TQ: BADAMI,
DIST: BAGALKOT
SINCE DECEASED REPRESENTED BY LRS
KRISHNAPPA
S/O HANAMATH PAMMAR @LAMANI,
SINCE DECEASED BY HIS LRS,
2. KAMALAVVA W/O KRISHNAPPA
Digitally
signed by
ROHAN
PAMMAR @LAMANI,
ROHAN
HADIMANI
T
HADIMANI T
Date:
2023.04.15
AGE: 37 YEARS,
12:15:09 -
0700
OCC: HOURSEHOLD,
R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
3. GANAPATI
S/O. KRISHNAPPA PAMMAR,
@ LAMANI,
AGE: 15 YEARS, MINOR,
R/O. JALAGERI THANDA,
TQ: BADAMI,
DIST: BAGALKOT.
4. SHARADA D/O. KRISHNAPPA PAMMAR
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RFA No. 3089 of 2010
@LAMANI, AGE: 12 YEARS MINOR,
R/O. JALAGERI THANDA,
TQ: BADAMI,
DIST: BAGALKOT.
5. GANGAVVA
D/O. KRISHNAPPA PAMMAR
@ LAMANI,
AGE: 11 YEARS, MINOR,
R/O. JALAGERI THANDA,
TQ: BADAMI,
DIST: BAGALKOT.
6. MAHADEVI
D/O. KRISHNAPPA PAMMAR
@LAMANI,
AGE: 9 YEARS, MINOR,
R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
7. RAJU
S/O. KRISHNAPPA PAMMAR
@LAMANI,
AGE: 7 YEARS, MINOR,
R/O. JALAGERI THANDA,
TQ: BADAMI,
DIST: BAGALKOT.
8. RAMESH
S/O. HANAMANTH PAMMAR
@LAMANI,
AGE: 33 YEARS,
OCC: TAILOR, R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
9. SURESH
S/O HANAMATH PAMMAR
@LAMANI,
AGE: 33 YEARS,
OCC: COOLIE, R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
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RFA No. 3089 of 2010
10. SMT. SHIVAKKA
W/O DYAVAPPA PAMMAR
@LAMANI,
AGE: 54 YEARS,
OCC: HOUSEHOLD,
R/O.JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
11. GOPAL
D/O DYAVAPPA PAMMAR
@LAMANI,
AGE: 39 YEARS, OCC: COOLIE,
R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
11A KAVITA
. W/O KUMAR RATHOD,
AGE ABOUT 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MUCHKHANDI THANDA L.T-1
TQ.DIST. BAGALKOT-587301.
12. SHANKAR
S/O DYAVAPPA PAMMAR
@LAMANI,
AGE: 27 YEARS,
OCC: COOLIE, R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
13. SMT. PEERAVVA
W/O KRISHNAPPA RATHOD,
AGE ABOUT 42 YEARS,
OCC HOUSEHOLD WORK,
R/O. MUCHKHANDI THANDA,
TQ. DIST: BAGALKOT.
14. RENUKA W/O SHIVAPPA RATHOD,
AGE ABOUT 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MUCHKHANDI THANDA,
TQ. DIST: BAGALKOT.
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RFA No. 3089 of 2010
15. SMT. SHANTAWWA W/O. SHANKAR RATHOD,
AGE ABOUT 31 YEARS,
OCC: HOUSEHOLD WORK,
R/O. MUCHKHANDI THANDA,
TQ. DIST: BAGALKOT.
...APPELLANTS
(BY SRI. RAVI S. BALIKAI, ADVOCATE
SRI. K. ANANDKUMAR, ADVOCATE)
AND:
1. SHIVAPPA S/O. RAMAPPA PAMMAR
@LAMANI, AGE: 44 YEARS,
OCC: AGRICULTURE, R/O. JALAGERI THANDA,
TQ: BADAM, DIST: BAGALKOT.
2. HEERAPPA S/O SHIVAPPA PAMMAR
@LAMANI, AGE ABOUT 27 YEAR,
OCC: STUDENT, R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
3. GURAPPA S/O SHIVAPPA PAMMAR
@LAMANI, AGE ABOUT 24 YEARS,
OCC: DRIVER, R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
4. MOHAN S/O SHIVAPPA PAMMAR
@LAMANI, AGE ABOUT 22YEARS,
OCC: STUDENT, R/O. JALAGERI THANDA,
TQ: BADAMI, DIST: BAGALKOT.
...RESPONDENTS
(BY ANAND R. KOLLI, ADVOCATE FOR C/R1 TO C/R4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DTD:04-08-2010
PASSED IN O.S.NO.69/2006(OLD NO.237/2003) ON THE FILE
OF THE CIVIL JUDGE(SR.DN.) BADAMI, DISMISSING THE SUIT
FILED FOR PARTITION AND POSSESSION WITH PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 3089 of 2010
JUDGMENT
Heard the learned counsel for the appellants and the learned counsel for the respondents.
2. The plaintiffs in O.S. No.69/2006 on the file of the Senior Civil Judge, Badami (for short, 'the Trial Court') are in appeal. The plaintiffs are aggrieved by the dismissal of the suit.
3. The suit was filed for the relief of partition and separate possession. The admitted genealogy of the parties read as under:
Heerappa (dead) Gujaravva (dead) Ramappa Dyavappa Hanamanth (died in 1988) (died on 8.2.99) (died on 24.1.94) Giriyavva (P1) Choudavva Shivakka (Plff. 5) (died 6 years back) Shivappa (deft.1) Krishnappa Ramesh Suresh (died) (P-3) (P-4) Heerappa Gurappa Mohan (D.2) (D.3) (D.4) Gopal Shankar Peeravva Renuka Shantavva.
(P-6) (P-7) (P-8) (P-9) (P-10) -6- RFA No. 3089 of 2010
4. The suit is filed in respect of four immoveable properties listed in schedule 'B'. There is no dispute over the fact that the occupancy right is granted in respect of the suit schedule properties by the jurisdictional Land Tribunal. As far as item Nos.1, 2 and 3 properties are concerned, Form-7 is filed by Ramappa, the eldest son of propositus Heerappa, and occupancy is granted in his name.
5. As far as item No.4 property is concerned, Form No.7 is filed by Dyavapa, the second son of propositus Heerappa, and the occupancy is granted in his name.
6. The third son Hanamanth has not filed any Form No.7. The suit is filed by the children of Dyvappa referred above and also the children of Hanamanth referred above. The suit is filed against the branch of Ramappa, the eldest son.
7. The defendants have contested the case on the premise that item Nos.1, 2 and 3 properties are the -7- RFA No. 3089 of 2010 properties over which occupancy is granted by the jurisdictional Land Tribunal exclusively to Ramappa and based on this, they prayed for dismissal of the suit.
8. The Trial Court accepted the contentions of the contesting defendants and has held that item Nos.1 to 3 properties are the self-acquired properties of Ramappa and the suit even in respect of item No.4 property is also dismissed though Dyvappa, in whose favour occupancy is granted, has sought for partition in the said property contending that the said property is the joint family property.
9. Aggrieved by the dismissal of the suit, plaintiffs are in appeal.
10. Sri. Ravi S.Balikai, learned counsel appearing for the appellants, contends that the Tribunal ignored the fact that the propositus Heerappa was the tenant in respect of the properties and tenancy devolves on his sons under Section 24 of the Karnataka Land Reforms Act, and -8- RFA No. 3089 of 2010 occupancy granted in the name of one of the sons should be treated as grant of occupancy on behalf of the remaining sons of the propositus Heerappa. And, that being the position, the Trial Court erred in dismissing the suit.
11. Sri. Anand R.Kolli, the learned counsel appearing for the respondents would contend that the Trial Court is justified in dismissing the suit as occupancy granted in the name of Ramappa cannot be construed as occupancy for the benefit of the remaining children of the propositus Heerappa.
12. This Court has considered the rival contentions raised at the Bar, and perused the impugned judgment and decree, and also the records placed before the court.
13. Sri. Ravi S.Balikai, learned counsel would refer to Exs.P.34, 35, 36 & 37, the property records pertaining to the suit schedule properties for the year 1930 to 1950.
By referring to these documents, he would contend that -9- RFA No. 3089 of 2010 the aforesaid item Nos.1, 2 and 4 properties are concerned, it would disclose that the properties stood in the name of Heerappa, the propositus of the family, and he was the tenant in respect of the said properties. He would further contend that there is no dispute over the fact that Heerappa had three sons, Ramappa, Dyavappa and Hanamanth and after the death of Heerappa, the tenenacy would devolve upon his three sons. He would further contend that the defendants have not established the division of the properties after demise of Heerappa and on this premise he would contend that the plaintiffs have established the fact that the tenancy is a joint family tenancy inherited by after the demise of Heerappa. As far as item No.3 property i.e., the property bearing Sy.No.139/2 is concerned he would refer to Form No.7 filed by Ramappa, which would indicate that the possession of the suit property was with Ramappa for more than 100 years and referring to this, he would contend that this property is also held by the family for 100 years and tenancy is inherited. In support of this
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RFA No. 3089 of 2010contention, he would refer to the evidence of D.W.2 to 4, who admitted, in their cross-examination, that the property is inherited after the demise of Heerapa.
14. Sri Anand R.Kolli, learned counsel appearing for the respondents would contend that the tenancy was not inherited as far as item No.3 property bearing Sy.No.139/2 is concerned; even the record of rights produced by the plaintiffs themselves would indicate that the name of Heerappa was never recorded as a tenant and the fact that Form No.7 is filed by Ramappa exclusively would indicate that the property is not inherited after the demise of Heerappa. He would further contend that two years prior to the grant of occupancy in favour of the respondent, the occupancy was granted in respect of property bearing Sy.No.107 measuring 12 acres 18 guntas in favour of Dyavappa. In Form No.7, the application filed by Dyvappa, he himself has admitted that his children and his brother Hanamanth and Giriyavva are the family members and by referring to this, he would contend that
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RFA No. 3089 of 2010Ramappa was separated and he was not the member of the joint family of Dyvappa and Hanamanth.
15. Considering the material on record and the contentions raised before the Court, the following point arises for consideration:
Whether the Trial Court is justified in holding that the suit schedule properties are the joint family properties and granting a decree for partition in respect of all the suit schedule properties?
16. There is no difficulty in holding that the properties at Sl.No.1, 2 and 4 are the properties which were held by Heerappa as a tenant, and after the demise of Heerappa, tenancy would devolve upon all the three children. The contesting defendants have failed to establish that there was a division of the tenancy after the demise of Heerappa and, that being the position, this Court is of the view that grant of occupancy in respect of item Nos.1, 2 and 4 properties is to be treated as grant of
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RFA No. 3089 of 2010occupancy in favour of the three children of propositus Heerappa. That being the position, the Trial Court erred in dismissing the suit in respect of the above three properties.
17. As far as item No.3 property i.e. property bearing Sy.No.139/2 measuring 7 acres 19 guntas is concerned, it is to be noticed that this property is not the property held by Heerappa. Though in Form No.7 filed by Ramappa, a reference is made stating that this property was under cultivation for 100 years, by that endorsement in Form No.7, it cannot be construed that Heerappa was holding the property. If at all Heerappa was holding the property, as in case of other three properties, his name would have found place in the record of rights in respect of property bearing Sy.No.139/2 as a tenant. Such an entry is not forthcoming. The evidence on record though do not establish the division of the properties among the sons of Heerappa, it is well-settled proposition of Hindu Law that every joint family need not possess the joint family
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RFA No. 3089 of 2010properties and it is also possible for an undivided member of a Hindu family to acquire individual property. Since occupancy is claimed by Ramappa in his individual capacity and since occupancy is granted in his individual name, and also considering the fact that in Form No.7 filed by Dyvappa, Dyavappa himself has indicated that his children and his brother Hanamanth and Giriyavva are the family members and would further indicate that Ramappa was living separately, the occupancy granted in favour of Ramappa in respect of Sy.No.139/2 is to be construed as grant in favour of Ramappa and the property was held by him in his exclusive capacity and the same cannot be treated as joint family property.
18. As far as the contention of Sri. Ravi S.Balikai that some of the witnesses examined on behalf of the defendants themselves have admitted that the suit schedule properties are the ancestral properties are concerned, this Court of the view that the admission cannot rebut the inference arising from the declaration
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RFA No. 3089 of 2010made in Form No.7 filed by Dyavappa and the inference arising from the record of rights produced by the plaintiffs themselves.
19. Under these circumstances, this Court is of the view that the judgment and decree of the Trial Court have to set aside in part and the appeal has to be allowed in part granting a decree for partition in respect of item Nos.1, 2 and 4 properties and the suit is to be dismissed in respect of item No.3 property.
Accordingly, the appeal is allowed in part, the impugned judgment and decree are set aside. The suit is decreed in respect of item Nos.1, 2 and 4 properties and the suit in respect of item No.3 property is dismissed.
Since there is a prayer for mesne profits, this Court is of the view that there shall be a preliminary decree to ascertain the profits payable to the parties to the proceedings.
Sd/-
JUDGE KMS, List No.: 1 Sl No.: 37