Karnataka High Court
Doddamma vs Muniyamma And Ors. on 24 November, 2004
Equivalent citations: ILR2005KAR568, 2005(1)KARLJ503, AIRONLINE 2006 SC 39, 2005 AIR KAR R 257, 2005 A I H C 954, (2005) 1 KANT LJ 503, 2005 AIR - KANT. H. C. R. 257, (2005) 2 ICC 616 (2005) 3 KCCR 1602, (2005) 3 KCCR 1602
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT V.G. Sabhahit, J.
1. These appeals by the plaintiff are directed against the judgment and decree passed by the I Addl. Civil Judge, (Sr.Dn.) Bangalore, in R.A.No. 207/97 and 2/98 dated 18.12.99 setting aside the judgment and decree passed by the Court of Civil Judge (Jr.Dn.) Bangalore, in O.S.No. 50/87 dated 26.11.1997 and dismissing the suit of the plaintiff.
2. The essential facts of the case leading upto these appeals with reference to the rank of the parties before the Trial Court are as follows:
The plaintiff filed the suit for partition and separate possession of half share in the suit schedule properties by metes and bounds averring that one Buddappa. The grandfather of the plaintiff had three sons by name Thimmappa, Thayappa and Junjappa. They had ancestral properties and were living together enjoying the ancestral properties. After some time Junjappa the youngest son of Buddappa took his share in the joint family property and started living separately. The other two sons Thimmappa and Thayappa have taken their shares jointly and they have not partitioned the property between them. The plaintiff was the only issue to Thayappa, he had no male issues. Thayappa died about ten years next before filing of the suit. The suit filed on 7.2.1987. Thimmappa the brother of the plaintiffs after expiry about two years next before filing of the suit. After the death of her father and mother the plaintiff was living in the house in which father was living and Thimmaiah was looking after her. Thimmaiah, promised to give her share in the family properties and hence after the marriage of the plaintiff, the plaintiff was living in her parents house. The marriage of the plaintiff was performed by her father Thayappa her husband was living with her parents. But after some years after the death of Thayappa without tolerating the trouble given by the plaintiff's sons, plaintiff was driven out of house and plaintiff went out of the house. After the death of Thimmaiah, the defendant drove out the defendants from her house and demanded her share in the suit schedule properties.
3. The defendant who had promised to give her share started evading to partition the property under one pretext or the other. The plaintiff is entitled to half share in the suit schedule property as they are the Joint family properties of their father and his brother Thimmaiah. Her father and Thimmaiah were living together after Junjappa their younger brother separated from the family. The katha in respect of the suit schedule properties stands in the name of Thimmaiah as he was the elder brother. The lands bearing No. 20 measuring 0.10 guntas, Sy.No. 17 measuring 0.19 guntas, Sy.No. 216 measuring 2.12 guntas, Sy.No. 221 measuring 0.05 guntas, Sy.No. 49 measuring 1.32 guntas, Sy.No. 3/1 measuring 3.36 guntas and Sy.No. 3/2 measuring 3.38 guntas are the ancestral properties. Out of the income of the ancestral properties, the father of the plaintiff and Thimmaiah have purchased some land which is more fully described in the schedule and therefore all the suit schedule properties are the joint family properties in which the plaintiff is entitled to half share. It is further averred that after the plaintiff demanded partition and separate possession of her share in the suit schedule properties, defendants are trying to alienate some of the items of the suit schedule properties with an intention to deprive her right and if they do so the purchaser will take possession of the same which will give rise to complication and purchaser claims to be bonafide purchase for value. Accordingly the suit was filed. The plaint was got amended in view of certain alienations made during the pendency of the suit by including para-2b to the effect that the plaintiff's father and his brother Thimmaiah sold the property situated at Ulumenahalli and thereafter out of that amount they purchased 12 acres of land at Kommeghatta in the name of Thimmaiah as he is the eldest male member in the joint family and the property situated at Kommeghatta is the joint family property. The plaintiff's father and Thimmaiah were cultivating the land situated at Kommeghatta during the life time of plaintiff's father. The property situated at Bettanapalya were being cultivated by their family since long time by their father Thayappa and Thimmaiah were together cultivating the land situated at Bettanapalya since the time of plaintiff's childhood and after the death of Thayappa plaintiff's father Thimmaiah got the property granted in his name situated at Bettanapalya and also the joint family property. Land situated at Bhemankuppe village as joint family properties in which 2 acres of land had fallen to the share of Junjappa Thimmaiah's brother. Junjappa's wife is still cultivating 2 acres of land in Sy.No. 221. It is further averred that the plaintiff's father Thayappa and his brother Thimmaiah were jointly cultivating the lands.
4. The schedule to the plaint comprises of seven items of land. The defendants resisted the suit. Defendants 1 to 7 filed common written statement averring that suit is not maintainable either in law or in facts. The relief sought for by the plaintiff for half share and metes and bounds cannot be granted. There was no joint family property nor nucleus as alleged or otherwise neither the plaintiff nor the father of the defendants has right over the suit property. The plaintiff is an utter stranger and she is in no way related either to Thimmaiah, Thayappa and Junjappa. Late Thimmaiah the father of the defendants and nobody else has or had any right over the same and muchless the plaintiff. Hence, the suit is liable to be dismissed.
5. The averments made in the plaint that Junjappa went out of the family taking ancestral properties is false and baseless and the other averments that Thimmaiah and Thayappa remained joint and cultivated the properties and schedule properties are the joint family properties are false. It is averred that Thimmaiah husband of the first defendant and father of defendants 2 to 7 was the absolute owner and in peaceful possession and enjoyment of items No. 1 to 5 of schedule properties. On 1.1.1965 the said lands were granted to late Thimmaiah by the Special Deputy Commissioner, Inam Abolition, Bangalore. All the revenue records were standing in the name of Thimmaiah and he was cultivating the same. Item Nos. 6 and 7 was purchased by Thimmaiah on 12.3.1965 by his self-acquisition. During the life time of Thimmaiah father of the defendants, he has executed a registered Will dated 28.1.1981 in favour of defendants bequeathing all the properties owned by him. Thimmaiah died during the first week of February, 1981 and defendants have succeeded to the estate of late Thimmaiah and they are in peaceful possession and enjoyment of the respective portions of the properties and the revenue records are standing in the name of the defendants who have become absolute owners of the schedule properties and in terms of the registered deed executed by Thimmaiah. All the defendants are enjoying the schedule properties exclusively and absolutely. The other averments made in the plaint were denied as false and it was averred that there is no cause of action for the suit and the plaintiff is not entitled to any share in any of the schedule properties. Defendant No. 8 filed the written statement averring that the plaintiff is an utter stranger and she is no way related to defendant No. 8 and all the ancestral properties are self-acquired properties of late Thimmaiah. The allegation made in the plaint that defendant sold item Nos. 1 to 5 of the suit schedule properties during the pendency of the suit and defendant No. 8 purchased the property knowing fully about the suit are false and all the allegations regarding such purchase are denied. He is a bonafide purchaser for value and plaintiff has no title over the property.
6. The Trial Court framed appropriate issues. On behalf of the plaintiff, the plaintiff was examined as PW.1 and she also examined PWs.2 to 5 and got marked Exs.P1 to P11. On behalf of the defendants, first defendant was examined as DW.1 and he also examined DW.2 and got marked Exs.D1 to D39. The Trial Court after considering the contention of the counsel appearing for the parties and the material on record answered the issues in favour of the plaintiff and decreed the suit of the plaintiff with cost declaring that the plaintiff is entitled to half share in the suit schedule properties and the sale deed executed in favour of the 8th defendant is not binding on the plaintiff and accordingly passed the preliminary decree by judgment dated 26.11.1997. Being aggrieved by the said judgment and decree defendants 1 to 7 preferred RA.No. 207/97 on the file of the Addl.Civil Judge Sr.Dn., Bangalore and the 8th defendant preferred RA.2/98 on the file of the same Court and the first appellate Court by common judgment dated 18.12.1999 allowed both the appeals and set aside the judgment and decree passed by the Trial Court in O.S.No. 50/87 dated 26.11.1997 and dismissed the suit of the plaintiff. Being aggrieved by the said judgment and decree of the first appellate Court in RA.No. 207/97, RSA. 170/2000 is filed by the plaintiff and being aggrieved by the judgment and decree of the first appellate Court in RA.2/98, RSA.287/2000 is filed. This Court by order dated 27.6.2000 admitted the appeal RSA. 170/2000 for consideration of the following substantial question of law:
"Whether in facts the property granted under the Karnataka (Personal & Miscellaneous Inam Abolition Act), the individual Thimmaiaha family member, enure to the benefit of the family and if so, is liable for partition".
7. RSA.287/2000 is posted for hearing along with RSA.170/ 2000 and the first appellate Court in view of the finding given in RA.207/97 has held that RA.2/98 is also entitled to be allowed as the suit is dismissed and wherefore the same substantial question of law also arises in RSA.287/2000. Therefore, the answer to the question of law framed in R.SA.170/2000 would answer the question that arises for consideration in RSA.287/2000.
8. I have heard the learned Counsel appearing for the parties in detail.
9. The learned Counsel appearing for the plaintiff-appellant in both the appeals submitted that the trial Court has decreed the suit and the first appellate Court set aside the judgment and decree holding that the Civil Court has no jurisdiction to go into the question as to the order passed in favour of Thimmaiah would not enure to the benefit of the family as it is for the competent authority under the Act to decide as to whether the tenancy is individual or joint family tenancy and further held that in view of the fact that Civil Court has no jurisdiction to decide the status of the property as to whether it is joint family property in respect of items 1, 3, 4 and 5 the plaintiff had failed to prove that other items of schedule properties are joint family properties and has dismissed the suit of the plaintiff by setting aside the judgment and decree passed by the Trial Court. The learned Counsel submitted that it is well settled that the conferment of tenancy right under the Inam Abolition Act would enure to the benefit of the family as the competent authority under the Act has no jurisdiction to decide the question as to whether the said tenancy was individual or joint family tenancy and competent authority has no jurisdiction to grant a decree for partition. The learned Counsel further submitted that the decision of the first appellate Court is contrary to the decisions of this Court wherein it is clearly held that question as to whether the tenancy is individual or joint family tenancy falls within the domain of the Civil Court and the competent authority under the Act is not competent to pass a decree for partition and it is open to the Civil Court to go into the question and when tenancy right has been conferred upon a member of the family it is open to the other members to contend before the Civil Court that the said tenancy is joint family tenancy and the plaintiff is entitled to partition and separate possession of the share of the plaintiff in the said property.
10. The learned Counsel has relied upon the following decision in support of her contentions:
1. SHIVAPPA FAKIRAPPA SHETSANADI v. KANNAPPA MALLAPPA SHETSANADI., ILR 1987 KAR 3156
2. APPANNA AND ORS. v. LAKKAPPA DEVAPPA, 1983(1) KLJ 482
3. PATEL VEERABHADRAPPA v. BASAMMA.,
4. MOHAMADSA AND ORS. v. ALLISA AND ORS., 1988(2) KLJ 89
5. V. CHANNANARASIMHAIAH v. ADDL.TAHSILDAR, BANGALORE NORTH TALUK AND ORS.,
6. FAKIRAPPA BAILAPPA KAMBAR v. KRISTAPPA BAILAPPA KAMBAR., 1985 ILR 3062
7. NARAYANA AND ORS. v. A. SADASHIVA AND ORS., 2000(5) Kar.LJ, 334
8. BOODA POOJARY v. SMT.THOMA POOJARTHI AND ORS., 1992(2) Kar.LJ 307
9. VEERABHADRAPPA AND ORS. v. VIRUPAXAPPA TOTAPPA BILEBAL AND ANR.,
10. NARAYAN &OTHERS v.. A. SADASHIVA AND ORS., ILR 2000 KAR 487
11. MUDAKAPPA v. RUDRAPPA AND ORS.,
11. The learned Counsel appearing for defendants 1 to 7 submitted that the first appellate Court was perfectly justified in holding in so far as item Nos. 1, 3, 4 and 5 are concerned since tenancy right has been conferred under Section 10 of Karnataka (Personal and Miscellaneous Inams Abolition Act) 1954 (for short 'the Inams Abolition Act') in favour of Thimmaiah, the Civil Court has no jurisdiction to the said finding and having regard to the provisions of the Inams Abolition Act which is entirely different from the Village Offices Abolition Act and the Karnataka Land Reforms Act. The first appellate Court was justified in holding that in respect of items 1,2,4 and 5 the Civil Court had no jurisdiction to decide the question as to whether the tenancy is individual or joint family tenant and regarding other items of properties, there is a clear finding that there is no evidence regarding nucleus of the joint family property to acquire property in the name of Thimmaiah and wherefor the finding on the other items of schedule property is also justified. He has relied upon the following decisions:
1. KEMPAMMA v. KEMPANNA, 1964(2) Mys.LJ 444
2. T. SRIRANGACHAR v. STATE OF MYSORE., 1966(1) Mys.LJ. 655
3. MANIKYAM v. R. THIMMIAH., 1983(1) 328
4. STUMPP SCHEDULE & SOMAPPA (P) LTD., v. CHANDRAPPA.,
5. BALASAHEB VENKATESH KHASBAGH @ KULKARNI v. LAND TRIBUNAL.,
6. KRISHNAMURTHY v. HEMANNA.,
7. ANJANAPPA AND ORS. v. BYRAPPA (SINCE DECEASED) BY LRS., 1995(5) Kar.LJ., 459
8. PUSHPAGIRI MATH v. KOPPARAJU VEERABHADRA RAO., (1996(5) SC 590)
12. He has also relied upon the decision of this Court In MUNIRAJ AND ANR. v. KARNATAKA APPELLATE TRIBUNAL, BANGALORE., 2004(3) Kar.LJ 570 The learned Counsel submitted that in view of the specific provisions of the Inams Abolition Act as distinguished from the provisions of the Village Offices Abolition Act and the Karnataka Land Reforms Act, the decisions rendered under the Village Officers Abolition Act and the Karnataka Land Reforms Act would not be helpful in respect of the cases covered by the Inams Abolition Act as the provisions regarding vesting and extinguishment of right and conferment of tenancy right is entirely different under the Inams Abolition Act and the decisions relied upon by him pertain to the Inams Abolition Act and the decisions relied upon by the learned Counsel appearing for the plaintiff mostly are under the Karnataka Land Reforms Act and Village Offices Abolition Act and would not be applicable to the facts of the present case as the conferment of tenancy right is under the Inams Abolition Act.
13. The learned Counsel appearing for defendant No. 8 submitted that he is a bonafide purchaser for value and the first appellate Court was justified in dismissing the suit of the plaintiff.
14. I have given anxious consideration to the contentions of the learned Counsel appearing for the parties and perused the decisions relied upon by the learned Counsels. The effect of the provisions of the Inams Abolition Act has been considered in the case of MUNIRAJ v. KAT BANGALORE (2004(3) KAR.LJ 570) as follows:
"The Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 (hereinafter referred to as 'the Act' for brevity) was passed with the intention of abolishing all the inams. Section 3 of the Act provides that the consequences of vesting among other things being that all rights of Inamdar Stands abolished and the entire inam vests in the State of Mysore absolutely free from all encumbrances. However, the "Act" confers rights in favour of certain categories of tenants, cultivating the lands, under the Inamdar under Sections 4, 5 and 6; On holders of minor Inam under Sections 7 and 8 and on the Inamdar under Section 9. Apart from the inamdar and the tenants, under Section 12 every owner of a private building is entitled to keep the building; and under Section 13 of the Act a third party is entitled to keep the converted lands, provided the conversion is effected, according to law: But the "tenants" and the "Inamdar" are required under the Act to make applications before the jurisdictional authority (The Special Deputy Commissioner for Inams Abolition, later the land Tribunal for some time now again the Deputy Commissioner) to have their rights declared. So also the owner of a private building if there is a dispute regarding his ownership".
15. The Full Bench of this Court in SRI RANGACHAR v. STATE OF MYSORE, 1966(1) Mys.LJ. 655 cited by the learned Counsel appearing for defendants 1 to 7 has also been considered the effect of the provisions of the Inams Abolition Act with reference to the provisions of Sections 3, 4 to 10 of the Inams Abolition Act and held as follows:
"8. Section 3 of the Inams Abolition Act enumerates the consequences of vesting of an Inam in the State of publication of a notification under Sub-section(4) of Section 1 of the Act in the Mysore Gazette. All rights, title and interest vested in the Inamdar cease and stand vested absolutely in the State Government, free from all encumbrances. Section 14 however saves such rights (specified therein) as the Inamdar might have created prior to the date of vesting. Sections 4 and 5 respectively confer rights on the Kadim tenants and permanent tenants to be registered as occupants. Sections 7 and 8 provide for the recognition of the rights of holders of minor inams and for their registration. Section 9 specifies the kinds of lands and buildings to which the inamdar is entitled to be registered as occupant. Section 9A confers an identical right on the tenants of the inamdar other than the tenants entitled to be registered as occupants under Sections 4, 5 and 6 of the Act. Section 10 deals with the determination of claims under Sections 4,5,6,7,8,9 and 9A and lays down.
"1) The Deputy Commissioner shall examine the nature and history of all lands in respect of which a kadim tenant, a permanent tenant, a quasi-permanent tenant, the holder of a minor inam or an inamdar who becomes entitled to be registered as occupant under Sections 4,5,6,7 and 9 or the holder of a minor inam claims to be registered as holder under Section 8 (or in respect of which any person claims to be continued as tenant under Section 9A) as the case may be, and decide in respect of which lands the claims should be allowed.
2) A tenant found to be in possession of any land on the first day of July, 1948, shall be presumed to be a quasi-permanent tenant, unless the Inamdar proves that such tenant is not a quasi-permanent tenant as defined in Clause(14) of Sub-section (1) of Section 2".
16. In the present case, the material on record clearly shows that the order has been passed under the Inams Abolition Act though the order conferring occupancy right in favour of Thimmaiah has not been produced. The endorsement issued as per Ex.D1 and D2 would show that occupancy right in respect of item Nos. 1,3,4 and 5 has been conferred in favour of Thimmaiah under Section 10 of the Inams Abolition Act, 1954. The first appellate Court has held that in view of the provisions of the Inams Abolition Act and the decision of the Supreme Court in the case of PUSHPAGIRI MATH v. KOPPARAJU VEERABHADRA RAO (supra) and the decision in MUDUKAPPA v. RUDRAPPA (supra) though rendered under the Land Reforms Act is equally applicable to the provisions of the Inams Abolition Act and has also relied upon the decision in STUMPP SCHEDULE & SOMAPPA (P) Ltd. v. CHANDRAPPA (supra) in holding that the order granting, registration of occupancy right under Section 10 of the Inams Abolition Act is final and conclusive under the Act and Civil Court has no jurisdiction to reopen the matter. In Pushpagiri Math's case, it is clear that the question that arose for consideration by the Supreme Court about the right of the owner and the inam holder and as to whether even after vesting and regrant of the land the owner can enforce the Service and it was held that by statutory operation of the provisions of the Act the pre-existing right or interest held by the inamdar and the Institution stood extinguished and conferment of ryotwari patta under Section 7 read with Section 3 becomes conclusive between the parties and therefore the Court held that the jurisdiction of the Civil Court to declare title to the inam land by necessary implication, stood excluded. Under those circumstances, the respondent cannot claim any exclusive title to the property as an owner and lay claim for declaration of title on that basis and has accordingly set aside the order passed by the High Court.
17. In Stumpp Schedule's case it has been observed that the Inams Abolition Act attaches finality to the orders granting registration of occupancy rights as 'Kadim' tenant, permanent tenant or any other tenant is within the exclusive Jurisdiction of the special authority constituted under the Inams Abolition Act which is a special enactment and its order is appealable to the prescribed authority and then it becomes final. It is therefore, legitimate to infer that by reason of the provisions of Section 28 r/w. Section 3(3) of the Inams Abolition Act, the adjudication as to registration of occupancy right in respect of the land which immediately before the date of vesting was properly included in the holding of the applicant becomes final and conclusive under the Inams Abolition Act and suit is maintainable for declaration of title and consequential rectification of entries in the record of rights is maintainable and is one of the remedies provided under Section 135 of the Karnataka Land Revenue Act, 1964. It is summarised in the said decision that such inams are abolished and the lands vested in the State Government, the only right preserved to the parties is to apply for registration of occupancy rights either as 'Kadim' tenant, permanent tenant or other tenants recognised under the law and when such applications are made, the Special Deputy Commissioner who is the statutory authority constituted under the Inams Abolition Act is required to make an enquiry and grant relief. In view of the provisions of the Inams Abolition Act finality is attached to the orders granting registration of occupancy rights and it amounts to an implied exclusion of the jurisdiction of Civil Courts as the provisions of the Act is a complete code by itself and it provides machinery for adjudicating the rights of parties with appellate forum to correct the errors of the adjudicating authority and Civil Court cannot still exercise general jurisdiction over the same dispute.
18. In the decision of this Court in ANJANAPPA AND ORS. v. BYRAPPA (SINCE DECEASED) BY LRs. (supra) this Court has reiterated that grant of occupancy right for tenants of inam lands, exclusive jurisdiction conferred on Special Deputy Commissioner and ousting of jurisdiction of Civil Court, finality of order passed by Special Deputy Commissioner subject to appeal to Tribunal, rival claims for occupancy right in respect of land when orders are passed by the Special Deputy Commissioner granting occupancy right in favour of one claimant individually and not as representing joint Hindu family and order of Special Deputy Commissioner is not challengeable in collateral proceedings like suit for partition and possession of property. In the said case, there was rival claim for conferment of occupancy right by the members of the family and the Special Deputy Commissioner under the Act had conferred occupancy right in favour of one person in his individual capacity and not in his representative capacity as Manager of the joint family. In the said case there was a rival claim before the competent authority under the Inams Abolition Act and competent authority had granted occupancy right in favour of one of the applicants and it was held that the Civil Court has no jurisdiction to alter the said order by holding that the plaintiffs are entitled to l/3rd share in the schedule properties. While considering the question this Court has reiterated the principles laid down in the Full Bench decision reported in 1996(1) MYS.L.J 655 and has also dealt with the provisions of the Inams Abolition Act while considering the regular second appeal and ultimately the Court has held that having regard to the finality of the order passed under Section 10 of the Inam Abolition Act by the Special Deputy Commissioner it is not open to the Civil Court to give a decision contrary to that of the Special Deputy Commissioner. It is also clear from the decision of this Court in KRISHNAMURTHY v. HEMANNA (supra) that the adjudication of the rights of the tenant is given exclusively to the competent authority under the Act and no jurisdiction is given to the Civil Court to entertain a suit for declaration of title and possession in respect of the lands vested in the Government. In the said case this Court was considering the regular first appeal against the judgment and decree passed by the trial Court. In the said case the Court has negatived the contention that there is some action of concurrent jurisdiction in the Civil Court and the Deputy Commissioner to adjudicate claim under the provisions of the Inams Abolition Act and this Court following the Full Bench decision in Srirangachar's case has held that decision of the Deputy Commissioner under Section 10 of the Mysore (Personal and Miscellaneous) Inams Abolition Act that certain land should be registered under Sections 4, 5, 6 and 9 of the Act is final subject to the decision in appeal and if such decision is rendered in conformity with the provisions of the Act and the Rules made thereunder. The Civil Court is ceased to have jurisdiction to question of title when once the Government under the Inams Abolition Act became the owner of the property and also question is to be decided only by the Special Forum created under the Act and it was ultimately concluded that it was not possible to accept the contention that the order passed by the appellate authority under the Act is valid and it is binding on the appellants who have stepped into the shoes of Hemanna in the said case and on facts it was held that in the said case plaintiffs have not produced any document to evidence their possession neither the plaintiffs nor the predecessors in title had established their possession on the date of the suit. In that view the Court below was justified in refusing to grant injunction and accordingly, the appeal was dismissed.
19. In the decision in S. KEMPAMMA's case (1964(2) Mys.L.J. 444), the Division Bench of this Court has held that in view of the provisions of Section 5 of the Inams Abolition Act, after vesting of the rights with the Government, the only right given to permanent or kadim tenant is to make an application for grant under Sections 5,6,7 of the Inams Abolition Act and the Civil Court has no jurisdiction to decide the said question as to whether the person claiming to be a tenant is entitled to conferment of occupancy right under the provisions of the Inams Act as the said power has been conferred upon the competent authority under the Inams Abolition Act, i.e, the Special Deputy Commissioner. It is observed that the only ownership the plaintiff could have claimed in the suit lands was the ownership of permanent tenant of those lands and wherefore, the suit was not maintainable. In the case of MANIKYAM C. v. R. THIMMAIAH (Supra), while considering the second appeal wherein the question was as to whether the Civil Court had jurisdiction to decide the question of title in respect of the house situate on inam land, it was held that in view of the provisions of the Inams Abolition Act, the Civil Court had no jurisdiction to decide the question of title with regard to the house standing in the property as the said jurisdiction has been given to the competent authority.
20. The provisions of Section 3 of the Inams Abolition Act, reads as follows:
"3. Consequences of the vesting of an inam in the State :-(1) When the notification under Sub-section (4) of Section 1 in respect of any inam has been published in the Mysore Gazette, then notwithstanding anything contained in any contract, grant or other instrument or in any other law for the time being in force with effect on and from the date of vesting, and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely:-
xxx
(i) The relationship of landlord and tenant shall, as between the inamdar and a kadim tenant or permanent tenant or quasi -permanent tenant, be extinguished.
xxx
(ii) Kadim tenants, permanent tenants and quasi - permanent tenants in the inam and persons holding under them and holders of minor inams shall, as against the Government, be entitled only to such rights and privileges be subject to such conditions as are provided for by or under this Act; and any other rights and privileges which may have accrued to them in the inam before the date of vesting against the inamdar shall cease and determine and shall not be enforceable against the Government or such inamdar."
In the present case, we are concerned with the conferment of occupancy right of a permanent tenant as it is the case of the defendants that occupancy rights had been granted as a permanent tenant in favour of Thimmaiah and Section 5 of the Inams Abolition Act reads as follows:
"5. Permanent tenants to be registered as occupants on certain conditions:-(1) Subject to the provisions of Sub-section (2), every permanent tenant of the inamdar shall, with effect on and from the date of vesting, be entitled to be registered as an occupant in respect of all lands of which he was a permanent tenant immediately before the date of vesting;
Provided that no person who has been admitted into possession of any land by an inamdar on or after the first day of July 1948, shall except where the Deputy Commissioner after an examination of all the circumstances otherwise directs, be entitled to be registered as an occupant in respect of such land."
Section 44 of the Land Reforms Act, 1961, dealing with vesting of the lands in the State Government reads as follows:-
"44. Vesting of lands in the State Government :- (1) All lands held by or in the possession of tenants (including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued) immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted under Section 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government.
Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely:-
xxx
(g) Permanent tenants, protected tenants and other tenants holding such lands shall, as against the State Government, be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under this Act, and any other rights and privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person shall cease and determine and shall not be enforceable against the State Government."
Section 45 of the Land Reforms Act, confers right, on the tenants to be registered as occupants of lands on certain conditions and under Section 132 of the Land Reforms Act, there is a bar of jurisdiction on the Civil Court to exercise the power exercisable by the Land Tribunal or Deputy Commissioner or Assistant Commissioner. As per Section 133 of the Land Reforms Act, the question of tenancy can be decided only by the Land Tribunal and if any question arises about the question of tenancy, the same has to be referred to the Land Tribunal. Section 133(i) reads as follows:-
"133. Suits, proceedings, etc., involving questions required to be decided by the Tribunal (1) - Notwithstanding anything in any law for the time being in force-
(1) No Civil or Criminal Court or officer or Authority shall, in any suit, case or proceedings concerning a land, decide the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March 1974.
xxx (2) Nothing in Sub-section (1) shall preclude the civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub-section."
21. It is clear from the above said provisions of the Inams Abolition Act and the provisions of the Land Reforms Act that so far as the rights of the tenants are concerned, the provisions of the Karnataka Land Reforms Act are similar to the provisions of the Inams Abolition Act though the provisions may not be similar in respect of the owners of the lands under Karnataka Land Reforms Act and Inam holders and inamdars under the Inams Abolition Act. However, so far as the tenants are concerned, the effect of the above said proceedings is that from the appointed date, the relationship of the landlord and tenant ceases and the property vests with the Government and the tenant is entitled to conferment of occupancy right as per the provisions of the Inams Abolition Act. The object of the Inams Abolition Act as already culled out from the observations made in MUNIRAJ's case (2004(3) KLJ 570) is to see that the applications attached to the imams are abolished by vesting of the property in the State and the tenants would get occupancy right under the Inams Abolition Act and in substance, there is change of tenure and the property would vest with the State absolutely free from all encumbrances and the relationship of landlord and tenant ceases and on conferment of occupancy right, the tenant would get the right under the Inams Abolition Act. While considering the provisions of the Karnataka Land Reforms Act and dealing with the question as to whether the occupancy right granted in favour of a member of the joint family would enure to the benefit of all the members of the joint family and whether a civil suit can be filed for partition and separate possession in respect of the occupancy right that is granted under the Karnataka Land Reforms Act, the Hon'ble Supreme Court in the case of BALAWWA AND ANR. v. HASANABI AND ORS., has observed as follows:-
"7. Having examined the provisions of the Karnataka Land Reforms Act and the aforesaid two judgments of this Court, we have no doubt in our mind that the Civil Court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well settled that when a Special Tribunal is created under a special statute and the jurisdiction of the Civil Court is sought to be ousted under the said statute, it is only in respect of those reliefs which would be granted by the Special Tribunal under the special statute, the jurisdiction of the Civil Court cannot be said to be ousted.
8. Looking at the provisions of Section 48-A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the Civil Court. Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an applicant provided the preconditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned Counsel for the appellants is, therefore, devoid of any force.
9. Coming to the second contention, as it appears, the decision of the learned Trial Judge granting the relief of partition in respect of two houses has not been assailed. The plaintiff is one of the daughters of Imamsab. Defendant 1 happens to be the widow of the son of Imamsab and Defendant 3 is the husband of the other daughter of the said Imamsab. All these persons had a right in the property left by Imamsab. In this view of the matter, the High Court was fully justified in coming to the conclusion that the so-called order of the Land Tribunal under the Karnataka Land Reforms Act would enure to the benefit of the other members who were otherwise eligible for a share in the property in question. Therefore, we see no infirmity with that conclusion so as to be interfered with by this Court."
A division Bench of this Court in APPI BELCHADTHI AND ORS. v. SHESHI BELCHADTHI AND ORS., 1982 (2) KLJ 565 has observed as follows:-
"18. The questions such as, the existence of a joint family, the rights of the members thereof, the position and power of the manager, and the nature of the property acquired by them are not so simple to be decided by a summary enquiry, and that too without the assistance of trained lawyers. The joint Hindu Family or coparcenary is a creature of Hindu Law. The status of every Hindu family is presumed to be joint, joint in food, worship and estate. That presumption is stronger in the case of brothers. Once the family is proved to be joint, that presumption continues until it is rebutted. Those who allege separation must prove unless it is admitted that there was a separation at some point of time. The question as to whether a particular family retains its character of jointness at a particular time is a difficult question for decision. Mere severance in food and worship does not effect a separation of the family nor separate residence by members operates as a severance of the joint status. We are only mentioning some of these principal features to impress upon that the decision on these questions requires a lot of brooding even by Courts of law. One could only images the difficulties of Tribunals without proper wherewithal."
The same principle is reiterated by the Division Bench of this Court in GURUVAPPA AND ANR. v. MANJAPPU HENGSU AND ORS., It is clear from the above said observations made by this Court that effect of abolition of the relationship of landlord and tenant or vesting of the property in the State and conferment of occupancy right on the tenant would only result in the change of tenular of the tenant as the same would not affect the personal inam of the parties. When there is a rival claim before the Land Tribunal with regard to the fact that the tenancy is individual or joint family tenancy, the Tribunal is bound to decide the said question while considering the rival applications filed by the members of the family. However, when, application for conferment of occupancy right is filed by one of the members of the family, conferment of the occupancy right on the said applicant, would not preclude the other members of the family to contend that the said tenancy is the joint family tenancy and that they are entitled to partition and separate possession of the shares. Under the Inams Abolition Act, no power is given to the competent authority to pass a decree for partition and what is required to be considered by the authorities is only as to whether the applicant is entitled to conferment of occupancy right as a tenant under Section 5 of the Inams Abolition Act, which is relevant for the purpose of this case to decide the question as to whether he was a permanent tenant on the date of vesting. In a recent decision of this Court where there was divergent opinion between two Judges of this Court and the matter was referred to a third bench, the learned Judge has observed as follows in SRI PARASHURAM NEMANI KUDUCHAKAR AND ORS. v. SMT. SHANTABAI RAMACHANDRA KUDUCHAKAR AND ORS., after referred to the relevant provisions of the Karnataka Land Reforms Act:
"(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) if tenancy is not disputed or rival claims by members of the joint family are not put forth agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) if the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does not decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.
(vi) the Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition".
The Court has referred to the provisions of Sections 2(17) and 2(34) of the Karnataka land Reforms Act, which defines "joint family" and "tenant".
22. It is clear from the order passed by the first appellate Court that the first appellate Court had relied upon the decision in MUDUKAPPA v. RUDRAPPA AND ORS. (supra) and also the decision of the Hon'ble Supreme Court in PUSPAGIRI MATH v. KOPPARAJU VEERABHADRA RAO (Supra). The decision in Mudukappa's case has been explained in the later decision in BALAWWA's case referred to above. The decision in PUSHPAGIRI MATH's case would clearly show that the principles laid down in the said case deals with the relationship of the owner and the inam holder and as to whether services would cease after vesting of the property with the Government. However, the question as to whether the members of the joint family can claim partition and possession of the property in respect of which occupancy right has been conferred on one of the members of the family on an application under Section 10 of the Inams Abolition Act, has not considered specifically in the said case. In view of the above said finding that abolition of the relationship of the landlord and tenant on vesting of the land with the State and conferment of the occupancy right as per the provisions of the Inams Abolition Act after vesting of the land and protection of the rights of the tenant to that extent is similar as referred to above under the Karnataka Land Reforms Act and the Inams Abolition Act, the observations made in a case dealing with conferment of occupancy right in favour of a member of the joint family under the Karnataka Land Reforms Act, would equally apply to the case wherein a member of the joint family has been conferred occupancy right as a permanent tenant under the Inams Abolition Act. It is clear from a perusal of the oral and documentary evidence adduced by the parties that apart from producing Exs. D1 and D2, the endorsements issued to the effect that occupancy right has been conferred under Section 10 of the Inams Abolition Act, the defendants have not produced the order granting occupancy rights under Section 10 of the Inams Abolition Act to show that the said conferment of occupancy right was in the individual capacity and not as a member of the joint family or to show that the said question had been gone into and decided by the competent authority. Therefore, in the absence of the said order produced by the defendants, it is clear that mere endorsements, Exs.D1 and D2 would not itself show that the said question has been considered by the competent authority and there were rival claims. No other member of the family had filed application for conferment of occupancy right as a tenant under Section 5 of the Inams Abolition Act and wherefore, it is clear that the first appellate Court was not at all justified in holding that the suit was not maintainable in respect of item Nos. 1,3,4 and 5 and that the same had to be decided by the competent authority under the Inams Abolition Act. The finding given by the first appellate Court that the Civil Court has no jurisdiction to decide the question as to whether the plaintiff is entitled to seek for partition and separate possession in respect of the properties for which occupancy right has been conferred upon a member of the joint family has to set aside by holding that the Civil Court has jurisdiction in view of the above said decisions. So far as the other findings regarding item Nos. 2,6 and 7 of the suit properties are concerned, it is the specific case of the plaintiff that the said properties have been purchased out of the joint family property at item Nos. 1,3,4 and 5. As the appellate Court held that the Civil Court had no jurisdiction to decide the question as to whether conferment of occupancy right was in individual capacity or as a member of the joint family and the suit was not maintainable in respect of the said items, the appellate Court has consequently held that the question of consideration of the contention of the plaintiff that the properties comprised in item Nos. 4 6 and 7 were purchased out of the nucleus of the joint family properties 1,3,4 and 5 would not arise. Therefore, when the finding of the first appellate Court regarding the suit properties at item Nos. 1,3,4 and 5 is set aside, consequently, the finding regarding the suit properties at Item Nos. 2,6 and 7 is also liable to be set aside as it is clear that if the Court comes to the conclusion on the basis of the material that in item Nos. 1,3,4 and 5, the plaintiff is entitled to share, the contention of the plaintiff that item Nos. 2, 6 and 7 were purchased out of the income of the said properties has to be considered by the Court. In view of the fact that the first appellate Court has to consider the question as to whether the plaintiff has proved that she is entitled to share as claimed in the plaint in the schedule properties in view of the fact that the finding of the first appellate Court regarding jurisdiction of the Civil Court to decide the contentions raised by the plaintiff in the suit has been negatived by this Court and it is held that the Civil Court has jurisdiction to decide the said question and since this Court cannot appreciate the evidence of the parties in a second appeal, it is clear that it would appropriate that the matter is now remitted to the first appellate Court for fresh disposal of the appeals in accordance with law. Accordingly, in view of the fact that the judgment and decree passed in R.A.No. 207/1997 is liable to be set aside, the finding given in R.A.No 2/1998 is also liable to be set aside as the said appeal is filed in respect of the finding given in respect of defendant No. 8. Accordingly, I answer the substantial question of law by holding that the Civil Court has jurisdiction to decide as to whether conferment to tenancy right under Section 10 of the Inams Abolition Act, in favour of Thimmaiah is his self-acquired property or joint family property as alleged by the plaintiff and accordingly, pass the following Order:-
The appeals are allowed in part. The finding given by the first appellate Court that the Civil Court has no jurisdiction to decide the question as to whether the occupancy right granted in favour of Thimmaiah is in respect of individual tenancy or the joint family tenancy is set aside and it is held that the Civil Court has jurisdiction to decide the question as to whether conferment of tenancy right under Section 10 of the Inams Abolition Act, in favour of Thimmaiah is his self-acquired property or the joint family property and the first appellate Court is directed to dispose of the appeals in accordance with law. R.A. Nos. 207/1997 and R.A No. 2/1998 are remanded to the Court of the I Addl. Civil Judge, Bangalore, for fresh disposal in accordance with law.
Learned counsel appearing for the parties submit that as the order granting occupancy right to Thimmaiah under Section 10 of the Inams Abolition Act has not been produced and only endorsements have been produced as per Exs.D1 and D2, the parties may be permitted to produce the original or the certified copy of the order before the first appellate Court by filing an application for additional evidence in accordance with law, the same shall be considered in accordance with law.
To avoid any delay, parties are directed to appear on 15.12.2004 before First Appellate Court to seek further instructions without any need of issuing fresh notice by the first appellate Court.
Any observation made in this order on the question as to whether conferment of occupancy right in favour of Thimmaiah was in his individual capacity or as a member of the joint family property, shall not influence the first appellate Court while disposing of the appeals in accordance with law. Having regard to the facts and circumstances of the case, the parties are directed to bear their own cost in both the appeals.
Let a copy of this order along with the Lower Court Records be transmitted to the first appellate Court forthwith.