Karnataka High Court
Mrs Pushpa vs Mrs. Gangu Poojarthi on 13 August, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
RSA No.633/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
REGULAR SECOND APPEAL NO.633 OF 2018 (PAR)
BETWEEN:
1. MRS. PUSHPA
AGED 61 YEARS
D/O LATE KAMALA
RESIDING AT DOOR
NO.2-60, PADEMARU
MERAMAJALU
BANTWAL - 574 187
2. MRS. SUVASINI
AGED 59 YEARS
D/O LATE KAMALA
RESIDING AT
DOOR NO.31-86,
BENGRETHOTA
MANGALURU - 575 001
3. MRS. MEENA
AGED 57 YEARS
S/O LATE KAMALA
RESIDING AT
DOOR NO.1-164D,
SOORINJE
MANGALURU-575 030
4. MR. UMESH
AGED 50 YEARS
S/O LATE KAMALA
RESIDING AT
DOOR NO.1-164-1
SOORINJE
MANGALURU 575030
2
RSA No.633/2018
5. MR. DAYANAND
AGED 52 YEARS
S/O LATE KAMALA
RESIDING AT
DOOR NO.1-164-1
MALEMAR, CHOWKI,
MANGALURU
6. MR. THARANATH
AGED 46 YEARS
S/O LATE KAMALA
RESIDING AT
DOOR NO.1-164-1
SOORINJE
MANGALURU-575 030
7. MR. JAYARAMA AMIN
AGED 44 YEARS
S/O LATE KAMALA
RESIDING AT
DOOR NO.1-63
RAVEEVA NAGARA
DELANTHABETTU
SHIBAROOR
MANGALURU-575 030
8. MR. MADHAVA AMIN
AGED 42 YEARS
S/O LATE KAMALA
RESIDING AT
DOOR NO.1-164-/11
BOLLUR, SOORINJE
MANGALURU-575 030
9. MRS. SHAMBHAVI
AGED 40 YEARS
S/O LATE KAMALA
RESIDING AT PAVI NIVAS
PANDURANGA
BAJANA MANDIRA
KULOOR, KULAI
MANGALURU TALUK-575 030
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RSA No.633/2018
10. MR. RAVI POOJARY
AGED 39 YEARS
S/O LATE KAMALA
RESIDING AT
DOOR NO.9-7-1B
IDYA SURATHKAL
KATLA
KRISHNAPURA
MANGALURU-575 014. ... APPELLANTS
(BY SHRI P.P.HEGDE, ADVOCATE)
AND:
1. MRS.GANGU POOJARTHI
AGED 72 YEARS
D/O LATE SESI
R/AT DOOR NO.1-31-2
P.O.NAUGODU
MITHABAIL, KATEEL
MANGALORU-575 030
2. MRS. SUNDARI
AGED 70 YEARS
W/O LATE SADASHIVA
3. MRS. VASANTHI
AGED 55 YEARS
D/O LATE SADASHIVA
4. MRS. SHAKUNTHALA
AGED 53 YEARS
D/O LATE SADASHIVA
5. MRS. ASHALATHA
AGED 52 YEARS
D/O LATE SADASHIVA
6. MR. VEERAPPA
AGED 45 YEARS
S/O LATE SADASHIVA
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RSA No.633/2018
7. MRS. RATHI
AGED 40 YEARS
D/O LATE SADASHIVA
8. MRS. YASHODA
AGED 39 YEARS
D/O LATE SADASHIVA
9. MRS. PARVATHI
AGED 40 YEARS
D/O LATE SADASHIVA
10. MR. RAVI
AGED 37 YEARS
S/O LATE SADASHIVA
NO.2 TO 10 ARE RESIDING AT
DOOR NO.2-43, SOORINJE,
P.O KATIPALLA
MANGALURU TALUK - 575 030 ... RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER
XLII OF CPC., 1908 AGAINST THE JUDGEMENT & DECREE
DATED 04.11.2017 PASSED IN R.A.NO. 54/2015 ON THE FILE
OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DAKSHINA KANNADA, MANGALURU, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
16.07.2015 PASSED IN OS.NO.84/2013 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE D.K.
THIS RSA, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 02.08.2018 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THIS COURT PRONOUNCED THE
FOLLOWING:-
JUDGMENT
This appeal by plaintiffs is directed against concurrent findings recorded by the Courts below, by 5 RSA No.633/2018 assailing the judgment and decree dated 04.11.2017 passed in R.A.No.54/2015 on the file of IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, dismissing the appeal and thereby confirming the judgment and decree dated 16.07.2015 in O.S.No.84/2013, on the file of III Additional Senior Civil Judge, Mangaluru.
2. For the sake of convenience, parties shall be referred to as per their status before the Trial Court.
3. Heard Shri P.P.Hegde, learned advocate for the appellants.
4. Plaintiffs brought the instant suit for partition contending inter alia that defendants are legal heirs of common ancestor Mrs.Sesi who had three children by name Kamala, Sadashiva and Gangu Poojarthi. Mrs.Sesi died in the year 1980. During her lifetime, she was enjoying her properties on 'chalageni' from 6 RSA No.633/2018 the year 1960 under landlord, Mr.U.Umarabba. Sadashiva, husband of defendant No.2 and father of defendants No.3 to 10 filed an application in Form No.7 for grant of occupancy rights. The Land Tribunal in proceedings LRT No.1928/76-77 dated 28.04.1977 granted occupancy rights in respect of suit schedule properties in favour of Sadashiva. Landlord challenged the said grant before this Court in W.P.No.13176/1997. This Court remitted the matter to the Land Tribunal. After fresh enquiry, Land Tribunal granted the lands in favour of Sadashiva vide order dated 13.09.2012. Plaintiffs' mother, Kamala died on 24.06.2001. With these pleadings, plaintiffs claimed that they are entitled for 1/3rd share of Kamala.
5. Suit was resisted by defendant No.10 by filing written statement denying among other things, that the declaration was filed before the Land Tribunal 7 RSA No.633/2018 as per the instructions of Mrs.Sesi and on behalf of the family. He, his wife and children were living with his father Sadashiva in their house. None of the plaintiffs, defendant No.1 nor even deceased Mrs.Sesi ever lived in the house at any point of time. Thus, the principal defence of defendant No.10 is that the suit properties were granted in favour of Sadashiva exclusively and therefore, plaintiffs and defendant No.1 are not entitled for any share.
6. Based on the pleadings, trial Court framed five issues and they read as follows:
1. Whether the plaintiffs prove that they are entitled for 1/3rd share in the suit schedule properties?
2. Whether the plaintiffs prove that the defendants No.2 to 10 have denied their share in the suit schedule properties?
3. Whether the defendant No.2 to 10 prove that the properties were exclusive properties of Sadashiva and thereby the plaintiff's have no right in the suit schedule properties?8 RSA No.633/2018
4. Whether the defendants No.2 to 10 prove that the valuable made for the purpose of court fee is not correct?
5. What Order or decree the parties entitled?"
7. Parties went to trial with aforesaid pleadings and issues. Plaintiffs got examined three witnesses as P.Ws.1 to 3 and marked exhibits P1 to P12. On behalf of defendants, defendant No.10 was examined as D.W.1 and exhibits D1 to D45 marked.
8. Answering issues No.1 and 2 in the negative and issues No.3 and 4 in the affirmative, the trial Court dismissed the suit with costs.
9. On appeal by the plaintiffs, the lower appellate Court framed following points for its consideration:
". Whether the findings given by the trial court in O.S.No.84/2013 on 16.07.2015 is erroneous and needs interference by this court?
2. What Order?"9 RSA No.633/2018
10. Answering point No.1 in the negative, the lower appellate Court dismissed the appeal and thereby confirmed the judgment of the trial Court.
11. Unsuccessful plaintiffs before both Courts below are before this Court in this second appeal.
12. Though six questions are framed, the learned advocate for the plaintiffs pressed the following two questions as 'substantial questions' for consideration of this Court:
"1. Whether the trial Court has committed illegality and perversity by not applying the correct principles of law insofar as the conferment of the occupancy right in favour of Mr.Sadashiva Poojary and not holding that the said order enured to the benefits of entire family is liable to be interfered with?
2. Whether the Courts below have committed illegality by not concluding that the order of the Land Tribunal as per Ex.P4 enured to the benefits of the entire family?"
13. In substance, both questions pressed by Shri P.P.Hegde are one and same, namely, whether 10 RSA No.633/2018 the grant of occupancy rights in favour of Sadashiva(father of defendants No.2 to 10) innures to the benefit of the family.
14. During the course of hearing, Shri P.P.Hedge, made available certified copies of exhibits P1 to P12 for perusal of this Court. Ex.P3 is a tenancy agreement under the Madras Cultivating Tenants Protection (Amendment) Act, 1956. Adverting to the said document, he pointed out that name of Mrs.Sesi is also found along with Sadashiva, in the cultivator's column. He argued that in the light of exhibit P3, it must be presumed that the land was being cultivated by the family members. Shri Hegde also placed reliance on exhibit P6, a statement given by Sadashiva before the Land Tribunal and contended that Sadashiva has stated therein that the lands in question have been in his possession even during the time of his ancestors.
11RSA No.633/2018
15. I have carefully considered the submissions of learned advocate for the appellants and perused the records.
16. It is relevant to note that the agreement, exhibit P3 is dated 04.04.1960 and it is for the period 1.4.1960 to 31.3.1961. At best, it suggests that Mrs.Sesi and Sadashiva were cultivating the land in question at the material point of time. Exhibit P4 is the certified copy of the proceedings of the Land Tribunal, Mangaluru. It clearly shows that Sadashiva was the applicant and the occupancy rights were granted in his favour on 28.04.1977.
17. The trial Court has recorded in paragraph No.15 that plaintiffs' mother Kamala and defendant No.1 Gangu Poojarthi, both daughters of Mrs.Sesi were married much prior to 1954. Thus, it is indisputable that occupancy rights of suit properties 12 RSA No.633/2018 were granted in the individual name of Sadashiva (father of defendants No.2 to 10) on 28.4.1977.
18. In the case of Nimbavva Others vs. Channaveerayya & Others, reported in ILR 2013 KAR 6202, a Division Bench of this Court has held as follows:
"17. So far as the first point is concerned, Section 2(12) of the Karnataka Land Reforms Act defines "Family" as under:
2(12) "Family" means-
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters."
By looking into the definition of family, it includes only the spouse, minor sons and un-married daughters. At no place, "married daughters" finds a place under the Karnataka Land Reforms Act.
18. Section 24 of the Karnataka Land Reforms Act reads as hereunder:
13RSA No.633/2018
"24. Rights of tenant to be heritable: Where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death."
19. On perusal of Section 24 of the Act read with the definition of family, it is clear that married daughter cannot claim share in respect of tenanted land. The question whether the married daughters can claim a share in respect of a tenanted land of their father is decided by this Court in KAMALA vs. LINGAMMA HENGSU (Supra), wherein it is held that only the family members as defined in the Karnataka Land Reforms Act are entitled for inheritance by way of succession after the death of their father. The legal position in regard to the right of a married daughter to claim a share in respect of a tenanted land of her father cannot be disputed by the plaintiff's counsel. We would have agreed with the contentions urged by Mr. Kini that the plaintiffs are entitled to equal share on par with the sons when the father died intestate provided there is a heritable right to them under the Act. Karnataka Land Reforms Act is a special enactment which has been enacted for the benefit of cultivator, the same cannot be deviated by this Court by applying the provisions of Hindu Succession Act.
(emphasis supplied)
18. In the light of the legal position noticed supra, the principal contention urged on behalf of the plaintiffs that the grant of occupancy rights must innure to their benefit also, is too fragile to countenance.
14RSA No.633/2018
19. Resultantly, this appeal must fail and it is accordingly dismissed. No costs.
Sd/-
JUDGE Yn.