Karnataka High Court
Chikkarangaiah vs Gurusiddaiah on 8 December, 2010
Equivalent citations: 2011 (2) AIR KAR R 176
Author: Subhash B.Adi
Bench: Subhash B.Adi
V[By' S§fi';Shev1~;ar Efiietty. AdV.,}
1', daiah
Smt. Narasarnma {dead}
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8'1" DAY OF DECEMBER
BEFORE V
THE HONBLE MRJUSTICE sUBHAsH.VE'_)3pV1"'--T.::: . _
REGULAR FIRST APPEAL1No.y363/'zoos-.1 " 'V
BETWEZEN:
1 . Sri.Chikkaranga1'ah
S / 0 Late Rangaiah
Since deceased Rep. by his 8»: _ } '
Successor in interest " '
Dr. Mohan §ChaVr}-:1ra¢=Prasa€i "
Aged abomE'35 'fiieagrsv _ 2 it ,
Residingiat NO.8'26; 20'-E"-'vA"Main"v,'
8'" block, KotaL;1angaia., " 1'
I"3a11§§ét1oI'~E» so "1; "E1:
2. Sri. B._KjDor*eswamy's».y "
S/o Lake KadaiVah'» _
Aged about 75 years;
C Chikkarafigaiah
I_J"p§parahal1i, T1LIm}:ur~. .. APPELLANTS
S / 0 Late Rangaiah
V. " Aged about 55 years
_ v.Re'$-:.1dIr1g at Harijana Colony
Upparahalli, Tumkur.
W / 0 Sn. Chkkkarangaiah
Aged about 50 years
Residing at Harijana Colony
s
to
z
Upparahaiiy Extr1..
Tumkur (LR's not brought on record}
Sri. Mohan Chandraprasacl
S/o D.K.Do1'eswamy
Aged about 35 years
Residing at No.826
8%" bIock, Koramangala >-
Bangalore.
Smt. Gayathramma
W / o Sri. N.Narasimiaha
Aged about 39 years
Respo11dent No. 5 &8 'residing " '
At 61-1} cross, Sampige"Roa.r_:i " V
Channabasaveswara Layout "
U13Daraha11i, Tumkur,-V" . V = *
S11. N . N araé.im1:iaiaI1., .
S/ o S1'i.N.Na$'aiéIha__ » 'T _
Aged aboL2t4T7 years. '
Both: are resid§r1.g"ai 69?' "or_os.s _'
Salznpige Road ' _ " __
ChanfiabasMaves_wa.r'a Lit
U pparahalli, .Tumki:.r." n
Sci. Ev3.L1'J.Nagab'hu§;havniah
S"/o Sf} N...Narasimhaiah
: 'Leei1,11'er,~GoV:. Arts College,
" . H. R'o.aciv, 'FuI_1'gkur.
' ';'_-'»'_:"'i . S.vG.'Sig1d'alingaswamy
S 2'15) S1ji.. S I G. Gangadharaiah
Aged Vabout 37 years
V' .VWo;~ki11g In LIC Office Tumkur
R/at Charmabasaveshwara Layout
£71" Cross, Upparahalii
"T Tu mku 1'
Smt. Chikkamma
W / 0 Sri. Ugraiah
Aged about 72 years
R/o at Gowdahally
Beiiavi Hobli
'1':.m'1kur Taiuk
SiI1(1€ deceased
Represented by her LR's
1. Ugraiah
S / 0 Late Chikkanna
Aged about 75 years
2. Rajanna
S / o Ugraiah
Aged about 40 years .
Smt. Shivamma
W/0 Gangaiah A
Aged about_38.yearfs
Smt. " '
W/0 Liilgalfaju V
Agedr..abou_t"3€~:,years' d'
dd
S/0'Ugraiah_ " "
Aged 'aboauf; 2':1_y"ca1-»sV '
,_:3311V1'L*.. Rathr1a.11'1ma V
,_ ..... ..'
A ' 2 , Ag_ed_3Q 'years
. V NE are 1egaE._hei'1's°_o.f_dsjeeased
Smt. Chik1,<_ar111a.. rV<:spondent No.8
are resi.'{1i11g at Crowdihalli
. ..Bfe1!avi._Hob1§, 'FuI:1kur Takuk.
__ " S21 Smhyanarayana
_ e._S';T_o"':-we' G-.C.Veez"anna
__"'Age<:1 about 26 years
.. " E3-fo 1..a1.e Jayamma
D / o "L-ate rangaiah
" Godihaiii Belkavi Hobli
'£'urnkur Taluk.
S.K. Venkata Reddy, Adv. for R8 to R--11; R~12 served; M/s
N.R.Naik & Assts.,AdVs. for R--13(a) to (C) )
This Regular First Appeal is filed under Sectionlllélfi
Against the judgment and decree dated 2.2.200i§._lpass.edl1r1_ ll
O.S.No. 193/ 2001 on the file of the Prl. Civil J_u*dge::'(~Sr;'Dr1..] 3;
OJ Tumkur, decreeing the suit filed' lt5y"the respondent No.
herein by holding that he is entitled for partition and~-separated.
possession of 1/7"" share in the suit schedul.e properties. «. V
This Appeal coming on for dictating of j_udgrnent--.::thi's 'day, l
the Court delivered following:
ggnemini
__._._._._._....s..
This appeal:is~:1;;y:~ 2 against the
judgment and Lon the file of Principal
cuntJudgeisn£fiyt?fifinku£eafi$izgifioos.
2. Palrtiels per their ranking in the trial
court. l M V V 2
l2espon_dent the plaintiff. Respondent Nos.2 to
13..a1:e"th<; 'r.eniainin--g defendants. Suit is one for partition and
separate"possessjio.iiof 1 /3"' share in the suit schedule property.
4. Case of the plaintiff is that, one Rangaiah had three
four daughters viz., Chikkarangaiah -- defendant No.1,
ll.'j~Vt__Huchla;1rangaiah -- defendant No.13, Gurusiddaiah -- plaintiff,
tlhilikamma -- defendant No.9, Jayamma -- defendant No.10's
mother, Huccharangainma -- defendant No.11 and Garudamma
'plaiI1tiff;"as"such, themplaintiff was constrained to file a suit
" this pCou1*t_.f:' They are the sisters of the plaintiff and defendant
r«.1¢sV'_,7; .,8rand 14 were made parties as they had purchased the
of the property from defendant No.1,.
%»s~z.
-- defendant No.12. The suit schedule property item Nos.1.h to 5
are the ancestral properties of Rangaiah, who is the fatherV_V'o:fi~he
plaintiff. The schedule '1' property was a tenanted _
Rangaiah cultivated the same as tenant; forrnore"th'an';t%t3:'yearst:
After his death, first defendant being
as Manager of Hindu Joint Fami]y'started..
along with the plaintiff as a coming
into force of the KamataAk:ar" ._Act (hereinafter
referred to as 'the Adi}, he jgxzupancy rights
by filing an la-;1ld on behalf of the
joint family. mother of defendant
No.1, defeindant to the interest of the
plaintiff andin eollus.i_on:'ysritlifelefendant No.2 -- Doreswamy, he
started creating 'docuvmefnts and finally denied the share of
for partitionfand separate possession.
5:-.._Defeririafnt Nos.9 to 12 were impleaded as per the order
No.1. Defendant No. It has converted the suit property into sites
by spending huge amount. Plaintiff with intention to
the property of defendant No.1 has filed a false suit. _. t
8. Defendant No.4 adopted the written St3.féITdé:I_if'fif.ed_byu 2.
the defendant No.2.
9. Defendant Nos.5, 6 and:8g_ arefthe"purchasers: of;
sites from defendant Nos.1 to Vappearedflitlirough
Advocate, filed written that, prior to
the purchase of to 4:, they had
Verified the got portion of the
suit propertievsf" their favour for valuable
consideration. "to 12, who are the sisters of
plaintiff, they also filed' separate written statement admitting the
'g.enea1oVgy.aij'd also admitted that, their father died in 1967, they
No.}1 property is granted in favour of defendant
E""'V'No.1 as-ah the joint family and now they are married
residing: in their husbands' houses. But being the
of Rangaiah, they are entitled for legitimate share in
h property. Defendant No.14 contended that, he is the
honafide purchaser of portion of item No.1 property. Defendant
No. 13 remained absent and was placed exparte.
defendant No.1 and in view of the same, the piaintiff has no
right to claim any share in the suit schedule property.
15. He also contended that, the Civil
jurisdiction to decide, whether the land._wa:4_:.l if
defendant or was cultivated by the pl«ain7t_iffand
whether the tenancy is individualllorldtp is ajoint 'tenancy. * it
Such issues have to be decided Land
Tribunal. The Act expressly"eiicli.1depsiftlie of the Civil
Court and as suCh;-- tinder" Code of Civil
Procedure, the been ousted, the
Civil Court o_u_ght'~ the Case of the plaintiff
as regard 'suit in respect of item No.1 of the
property, as theglsaid the jurisdiction of the Civil
Court. pin this regar.d_:.Vhe referred to the provisions of Section 2
lu)'*._of the Act, the definition of "to cultivate
personaillyi' that. "to cultivate personally" means
cultivate 1._anei one's own account (i) by one's own labour, or
_. labour of any member of one's family. or (iii) by hired
servants on wages payable in cash or kind, but not
crop share, under the personal supervision of oneself or by
rriember of one's family. He relied on Section .?.(12) of the Act.
it the definition of "family" and submitted that the definition of
:
[*J
to
personal knowledge, as such, there is no bar of examining l?W»»i
though as Power of Attorney, whatever stated by PW-1 ts»
basis of persona} knowiedge and such evidence M
Learned Counsel further submitted thaththe
on the undisputed documents and
defendant No.1 has decreed the.»suit. therellisf
calls for interference by this Court. V l V dd
28. In the light of the the points that
arise for consideration are: H V' V 'V
1. Whether ""the::.Cftvil jurisdiction to grant
relief as alatr_rted'forV plainttjj"?
2. Whether 'tne_oVgVrant. .of.ocr:upancy rights in favour of
defendant No.-.1. vi.-3 *--.._-_3e"p__arate, exclusive and not
available forparti ' t "
3. ; Whether the"e'vic:lence of Power of Attorney Holder
'5ge)§a'mtned on .be_hc.uf of the platntff is acceptable?
1/Vl1eflteVr"'the Power of Attorney holder of defendant
_ 1';Tg."l._ "ca'n__.sr'gn the written statement and lead
'evidence'?
. wt" ,
" :,»-,;§oINT
It is not in dispute that, Rangaiah had three sons and
Vfourlldaughters. Plaintiff, defendant Nos} and 13 are the sons.
u]lL)efendant Nos.9, ll. 12 and defendant No.10's mother are
daughters. Defendant No.2 is the brother of Rangaiah.
I
"I7
n23w
Defendant No.3 is the wife of defendant No.1. Defendant No.4 is
the son of second defendant. Defendant Nos.5, 6, 7,
are the purchasers. in this case, the dispute is as _
item No.1 of the suit schedule prope_rt1y.__ itern"l'slo;1.V"ofv"suit"
schedule property is a tenanted propeI*tyj."e..:Itf'isf 'inf
dispute that, by Virtue of Section':_44-_p of the 'Act, A..lan_dHpstood
vested in the State. Defendant no. has -filed an applieation for
grant of occupancy rights as 'in' he has stated
that: V f V
"A5550 30 :S:$5§F"i'f€FOEZ§
at pp '_ pp y
555.; 3Z°~?'..% '20 '"«2dJ:§§3 . "
He also states. been cultivated for last 30 years.
This application' and as on 24.5.1977, he
'was ag€Sl: yearsV"as_.per E.'X.P2O. It cannot be said that, he was
A'ou1tiyating_upeIsonally for last 30 years. it necessarily means
that ~hi's._pfatherv'.wa~s'cultivating and after his father, he continued
V he cultivation; "Now the statement of defendant No.1 for grant
-fofoccupancyff rights before the Tribunal is marked as Ex.P20. In
he states as under:
T "My father was in possession of about 2 Acres 26
Guntas in Survey No.17/3A and 3 of Upparahally
having taken the service on lease from Haralappa. He
was a tenant for over 30 years prior to his death in the
year 1968. I was cultivating the land along with my
-33-
POINT NO.2:
35. Considering these decisions and also consi--deriiig"' ~
evidence on record in this case, whenthe_defe'ndant'_fv1\lo';']Chas
claimed occupancy rights as having inherited'~the1s_arn_e' frornhis]:
father, plaintiff being one of the
heritable, it devolves not only on on_e_l::the__pheirs; itfiidevolved
on all the heirs. May be, not have filed an
application for grant Qfvgocctipafltfiy "being the estate
of the deceased, succession, by
survivorshipgitv the deceased, plaintiff
being one is also entitled to the share.
No doubt, dlefendfantlfhadll Claimed exclusive cultivation
independ_er1t.of 1'V1it':s"._fjrV3.Vli1'V.1'E?I"V§':3.1'1f'1 had claimed his tenancy not by
'inheritariceiikbtlt acquisition by himself, if the other heirs had
clairned the said grant, the Civil Court could not
lvfhave deicidedthie said issue, but it is not a case here that the
'Ad.ef€I1Clantx had claimed his exclusive separate tenancy, but
claimed as successor to his father, it cannot be said
C of the successors alone is entitled for grant particularly
the light of the definition "to cultivate personally."
-36,
ORDER
Appeal fails and same is dismissed. Since the pa1'tié::s«_g1*.e close relatives and considering the circuIr1st3.nces_._"1 fiAfi(1.:'L:"ih3';i<.--_ V. there should not be order of cost, accordingly, r1Q"c"1"tiei_': the cost.
KNM/~