Karnataka High Court
Sri. Zuberahmed vs Sri. Haidersab on 25 April, 2024
1 RSA.No.938/2005
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE 25th DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.938/2005 (DEC/INJ)
BETWEEN:
1. SRI. ZUBERAHMED S/O. HUSAINSAB PATHAN,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
RESIDENT OF BALEKUNDRI B.K.
TQ AND DIST: BELAGAVI.
2. SRI. ISMAILAHMED S/O. HUSAINSAB PATHAN,
AGED ABOUT 44 YEARS, OCC: AGRICULTURE,
RESIDENT OF BALEKUNDRI B.K.
TQ AND DIST: BELAGAVI.
...APPELLANTS
(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. SRI. HAIDERSAB
S/O. BUDDESAB PATHAN,
SINCE DECEASED BY HIS LRS.
1(a). SMT. KHATALA W/O. HAIDARSAB PATHAN,
AGE: 50 YEARS, OCC: HOUSEHOLD,
C/O: MAINODIN KHATALASAB PATHAN,
GHIGALLI, BELAGAVI,
TQ: AND DIST: BELAGAVI.
1(b). BILLKIS W/O. KESAR SHEK
D/O. HAIDARSAB PATHAN,
AGE: 31 YEARS, OCC: HOUSEHOLD,
GULJAR GALLI, GANDHINAGAR, 8TH CROSS,
BELAGAVI, TQ AND DIST: BELAGAVI.
1(c). NASRIN W/O. MAINODIN PATHAN,
D/O. HAIDARSAB PATHAN,
AGE: 30 YEARS, OCC: HOUSEHOLD,
2 RSA.No.938/2005
C/O. MAINODIN KHATALASAB PATHAN,
GHIGALLI, BELAGAVI,
TQ AND DIST: BELAGAVI.
1(d). NAJIYA W/O. SHANOR MULLA,
D/O. HAIDARSAB PATHAN,
AGE:27 YEARS, OCC: HOUSEHOLD,
BANJAR GALLI, NAYAPETH, MULLAGALLI,
HIREBAGEWADI, TQ AND DIST: BELAGAVI.
1(e). ISMAIL H. PATHAN,
S/O. HAIDARSAB PATHAN,
AGE: 24 YEARS, OCC: STUDENT,
C/O. MAINODIN KHATALASAB PATHAN,
GHIGALLI, BELAGAVI,
TQ AND DIST: BELAGAVI.
1F. TABREZ H. PATHAN,
S/O. HAIDARSAB PATHAN,
AGE: 21 YEARS, OCC: STUDENT,
C/O: MAINODIN KHATALASAB PATHAN,
GHIGALLI, BELAGAVI, TQ AND DIST: BELAGAVI.
02. SRI. IBRAHIM S/O. BUDDESAB PATHAN,
AGED ABOUT 44 YEARS, OCC: AGRICULTURE,
R/O:BALEKUNDRI B.K,
TQ AND DIST: BELAGAVI.
03. NOORAHMED APPASAB PATHAN,
AGE:MAJOR, OCC:AGRICULTURE,
R/O:BALEKUNDRI B.K.,
TQ AND DIST: BELAGAVI.
04. SRI MAHABOOB APPASAB PATHAN,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BALEKUNDRI B.K.,
TQ AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI LAXMAN K.GURAV, ADVOCATE FOR R1(A, E AND F) AND R2;
NOTICE TO R1(C), R1(D), R3 AND R4 ARE SERVED;
NOTICE TO R1(B) IS HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE
DATED 08.02.2005 PASSED IN R.A.NO.301/2000 ON THE FILE OF THE
3 RSA.No.938/2005
III ADDITIONAL CIVIL JUDGE (SR.DN), BELAGAVI, DISMISSING THE
APPEAL AND CONFIRMING, THE JUDGMENT AND DECREE DATED
31.10.2000 PASSED IN O.S.NO.854/1998 ON THE FILE OF THE II
ADDITIONAL CIVIL JUDGE (JR.DN) BELAGAVI AND ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.02.2024 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THROUGH VIDEO CONFERENCE THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
The plaintiffs in O.S.No.854/1998 on the file of the II Additional Civil Judge, Jr.Dn. at Belgaum (henceforth referred to as 'Trial Court' for short) have filed this appeal challenging the dismissal of their suit vide judgment and decree dated 31.10.2000 as well as the dismissal of their appeal by the III Additional Senior Civil Judge, Belgaum, (henceforth referred to as 'First Appellate Court' for short) in R.A.No.301/2000 vide judgment and decree dated 08.02.2005.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
4 RSA.No.938/2005
3. The suit in O.S. No.854/1998 was filed for declaration that the plaintiffs are the owners of the suit property and consequently to declare that the document executed by the defendant No.1 and his mother on 31.07.1978 was binding on the defendants. They also sought for perpetual injunction to restrain the defendants from interfering with their possession and enjoyment of suit property. Alternatively, they prayed for a decree of partition of the suit property and delivery of their half share therein.
4. The plaintiffs claimed that their father Hussainsab had a brother named Buddesab, who purportedly were tenants, jointly cultivating the land measuring 07 acres 32 guntas in R.S.No.149/2 situated at Balekundri B.K. Taluk, Belgavi district. The plaintiffs alleged that the father of the defendants - Buddesab had surreptitiously filed Form No.7 in his name seeking occupancy rights in respect of the said land. The land tribunal after conducting an enquiry granted occupancy 5 RSA.No.938/2005 rights in favour of the father of the defendants. The plaintiffs claimed that their father realized that the land was granted only after disposal of Form No.7 by the Tribunal and he thus, therefore, the father of plaintiffs allegedly insisted the defendant No.1 and his mother to execute a document acknowledging that he too had a share in the property. The plaintiffs claimed that accordingly a document was executed on 31.07.1978 by the defendant No.1 and his mother acknowledging the right of the father of plaintiffs to an extent of 4-00 acres in Sy.No.149/2 against receipt of a sum of Rs.2,800/-, from the father of plaintiffs which was purportedly used up by the defendants to pay the premium for grant of occupancy rights. Later, Form No.10 was issued in the name of father of the defendants. The plaintiffs claimed that at the time of execution of the document dated 31.07.1978, the defendant No.1 and his mother assured that a Varadi would be submitted to the revenue authorities to transfer the names of the plaintiffs in the revenue 6 RSA.No.938/2005 records. However, they did not do so, which compelled the plaintiffs to request the elders in the village to convince the defendants to submit a Varadi. Consequently on 31.08.1996, the defendants allegedly submitted a Varadi to the Tahsildar, Belagavi requesting them to transfer the names of the plaintiffs in the revenue records. On receipt of the Varadi, the Village Accountant registered M.E. No.1196 and issued notice to both the plaintiffs and defendants. However, the defendants filed objections which resulted in a disputed case before the Deputy Tahsildar, Hirebagevadi. The plaintiffs and defendants appeared before the Deputy Tahsildar who asked them to produce all relevant documents. The plaintiffs and defendants gave their statements before the Deputy Tahsildar, who in terms of his order dated 27.05.1997 certified the mutation entry in M.E.No.1196, which culminated in the names of the plaintiffs being entered in the revenue records. The defendants challenged this order before the Assistant 7 RSA.No.938/2005 Commissioner, Belagavi in RTS appeal No.14/1997. The Assistant Commissioner passed an order dated 24.03.1998 and set aside the order passed by Deputy Tahsildar. Following this, the plaintiffs filed W.P.No.12940/1998 before this Court, which, in terms of the order dated 08.06.1998 directed the plaintiffs to establish their claim before the Civil Court. The plaintiffs therefore filed the suit for declaration of their title and for perpetual injunction. The plaintiffs contended that the defendant No.1 and his mother had executed a document dated 31.07.1978 and partitioned the land that was granted by the Tribunal and allotted northern half share to the plaintiffs and retained the southern half to their share. The plaintiffs claimed that, consequent thereto, the land in R.S.No.149/2 was subdivided into R.S.No.149/2/1 and R.S. No.149/2/2. The half share that fell to the share of plaintiffs was assigned R.S.No.149/2/1 and the half share that fell to the share of defendants was assigned R.S. No.149/2/2. The plaintiffs 8 RSA.No.938/2005 claimed that the defendant No.1 and his mother had executed the document dated 31.07.1978 and had placed the plaintiffs in possession of the northern half portion of the land in question. However the defendants obliquely denied the execution of the document dated 31.07.1978 and claimed that they were in possession of the suit property as on the date of the suit. Since the defendants denied the title of the plaintiffs, they were advised to file a suit for declaratory reliefs.
5. The defendants contested the suit and denied that the father of the plaintiffs and defendants were jointly cultivating the land bearing R.S.No.No.149/2 of Balekundri B.K. village. They also denied that the father of the defendants had filed Form No.7 without the notice and knowledge of the father of the plaintiffs. They claimed that they did not execute the agreement dated 31.07.1978 and did not agree to part with half portion of the suit property and denied receipt of a sum of Rs.2,800/- from the 9 RSA.No.938/2005 plaintiffs and denied that the said amount was used up to pay the premium for grant of occupancy rights. They claimed that they did not submit a Varadi but contended that based upon a false Varadi, the Village Accountant registered M.E. No.1196. They contended that the order passed by Assistant Commissioner was not illegal and they claimed that the occupancy rights of land bearing R.S. No.149/2 was conferred on the defendants as their father was personally cultivating the said land. They claimed that since they were Muslims there was no concept of joint family and there was no meaning in the plaintiffs claiming that the land was cultivated jointly. They claimed that if the plaintiffs had any right, they would not have kept quite from the year 1978 till the filing of suit and they have not explained their conduct in keeping quite for so many years. They contended that it was they and their father who had strived hard to obtain the occupancy rights by approaching this Court several times and at no point of time, the father 10 RSA.No.938/2005 of the plaintiffs had ever assisted in obtaining the occupancy rights. They claimed that the father of the plaintiffs was separated from the father of the defendants for more than 40 years. They alleged that the signature of the defendant No.1 and his mother were forged and were produced before the revenue officer who did not accept it. They claimed that if the defendants had submitted a Varadi, there was no reason for the defendants to raise objection against entering the names of the plaintiffs in the revenue records. They claimed that all the documents that were produced before the revenue authorities were forged and fabricated and a private complaint No.25/1997 was filed before the III JMFC, Belgavi for the offences punishable under Sections 417, 420, 468, 471 read with Section 34 of Indian Penal Code. They contended that for more than 30 years, the revenue records and the diary entries were there in their names and they were in possession of the suit property. They claimed that if the document dated 11 RSA.No.938/2005 31.07.1978 was executed, it was not known why the plaintiffs remained silent till 31.08.1996 when a false Varadi was submitted to the Village Accountant. They alleged that the document dated 31.07.1978 was not registered in accordance with law and therefore, revenue entries could not be transferred in the names of the plaintiffs on that basis. They alleged that the suit is bad for non-joinder of necessary parties and therefore, prayed that the suit be dismissed with costs.
6. Based on these contentions, the Trial Court framed following issues and set down the case for trial:
"1) Whether the plaintiffs are the absolute owner of the suit property R.S.No.149/2/1?
2) Whether the plaintiffs prove that the
defendant No.1 and his mother validly
executed the document styled as partition deed dated 31.07.1978 and thereby allotted northern share i.e., suit property R.S.No.149/2/1 as alleged?12 RSA.No.938/2005
3) Whether the plaintiff prove that they are in lawful possession of the suit property on the date of filing of the suit?
4) Whether the plaintiffs prove the alleged interference of the defendants?
5) Whether the plaintiffs are entitled for the declaration and permanent injunction as prayed for?
OR In the alternative they are entitled for the partition and separate possession in R.S.No.149/2?
6) Whether the Court fee paid is correct?
7) Whether the defendants prove that the
alleged document is fabricated one?
8) Whether the defendants prove that they are
the owners of suit property?
9) Whether the suit is bad for non-joinder of
necessary parties?
10) Whether the plaintiffs entitled for the reliefs as prayed for?
11) What order or decree?"
13 RSA.No.938/2005
7. The plaintiff No.2 was examined as PW.1 and he marked Exs.P1 to P6. The owner of Sy.No.148/2 of Panth Balekundri and a witness to Ex.P1 was examined as PW.2. The owner of Sy.Nos.120, 116, 35, 126, 152 of Panth Balekundri was examined as PW.3 and he deposed that he was one of the panchas who mediated the dispute between plaintiffs and defendants and brought out a settlement as per Ex.P1. The defendant No.1 was examined as DW.1 who marked Exs.D1 to D31. The owner of land bearing Sy.No.155/3 of Panth Balekundri was examined as DW.2, who marked Exs.D32 and D33. The defendant No.3 was examined as DW.3 and he marked Ex.D34. The secretary of Panth Balekundri Jamat was examined as DW.4 and he marked Ex.D35, which purportedly was a settlement between father of defendant Nos.1 and 2 as well as father of defendant Nos.3 and 4.
8. The Trial Court while answering issue No.1 held that there is no concept of joint family amongst 14 RSA.No.938/2005 Mohammedans. It perused the revenue proceedings which culminated in the Deputy Tahsildar certifying the mutation entry in M.E. No.1196. It noticed a suggestion put to DW.3 by the plaintiffs that there was a partition amongst brothers of Hussainsab and Buddesab, which falsified the case of plaintiffs that their father and the father of defendant Nos.1 and 2 were living jointly and cultivating the suit property jointly. It perused Ex.D35 produced by DW.4 who deposed that it was a settlement between the father of the defendant Nos.1 and 2 and father of the defendant Nos.3 and 4 in the year 1962. Ex.D21 was the certified copy of a suit filed in O.S.No.428/1967 by the father of defendant Nos.1 and 2 against Ramangouda Basangouda Patil for perpetual injunction in respect of the suit property and Ex.D20 was the appeal register extract in appeal R.A.No.155/1969 filed by Ramangouda Basangouda Patil. Ex.D22 is the extract of M.E.No.531 to effect mutation of the names of defendant Nos.1 and 2 after the death of their 15 RSA.No.938/2005 father in the year 1969. Ex.D5 was the record of rights of Sy.No.149/2 for the years 1975 to 1983 that stood in the name of the defendant Nos.1 and 2. Exs.D9 and D11 are the certified copies of Form No.10 dated 28.07.1978 which showed that the defendant Nos.1 and 2 had paid part of the occupancy rights of Rs.9,000/- and they were bound to pay the balance Rs.2,246/- within two months. Exs.D5 and D6 are the RTC's of R.S No.149/2 for the year 1976 to 1983 and 1982 to 1989 in the name of defendant Nos.1 and 2. Ex.D7 is the extract of VPC No.30 which showed that the plaintiffs and defendants were residing separately. Ex.D17 is an agreement of sale in the year 1980 entered into by the uncle of the plaintiffs in respect of property bearing R.S.168/1. Exs.18 and 19 are the records of rights of Sy.No.168/1 which showed the name of Khadersab. Ex.D1 is the partition deed of the year 1996 and Ex.D2 was the Varadi submitted by the defendants to change their names in view of the partition at Ex.D1. The Trial Court after 16 RSA.No.938/2005 noticing these documents held that the plaintiffs did not assert that the occupancy was granted to both Hussainab and Buddesab jointly and did not challenge the grant of occupancy rights to Buddesab alone. Therefore, it held that the suit was nothing but an attempt to claim tenancy rights and therefore, it held that the Court has no jurisdiction to decide the dispute, in view of the express bar contained in Section 133 of Karnataka Land Reforms Act, 1961, (for short "the KLR Act, 1961").
9. In so far as Ex.P1 is concerned, it held that the execution of the document was seriously challenged by the defendants. It held that PW.2 was the scribe of Ex.P1 who admitted that there was a litigation regarding his land and that the defendant Nos.1 and 2 refused to give any evidence in that litigation. It held that DW.1 admitted that PW.3 was a member of the Jammat in the year 1978. It held that PWs.2 and 3 were not in good terms with the defendant Nos.1 and 2 and therefore their evidence was not 17 RSA.No.938/2005 trustworthy. Therefore, it held that there was nothing on record to prove that the father of the plaintiffs was also cultivating the land and that there was settlement between the plaintiffs and defendants on 31.07.1978, consequently dismissed the suit.
10. Feeling aggrieved by the said judgment and decree, the plaintiffs filed R.A.No.301/2000 before the First Appellate Court.
11. The First Appellate Court secured the records of the Trial Court and heard the learned counsel for the parties and framed the following points for consideration:
"i. Is any interference is required to be made to the judgment of the Trial Court?
ii. What order?"
12. The First Appellate Court held that the plaintiffs highly relied on the tax paid receipts in respect of the land that was allotted to their share and held that those 18 RSA.No.938/2005 documents did not help the plaintiffs to establish their case that their father jointly owned the suit property and was earlier cultivating the land along with the father of the defendants. It held that there was no satisfactory evidence to prove the case of the plaintiffs. It noticed the evidence of PW.1 who admitted that defendant Nos.1 and 2 did not submit a Varadi to enter the names of the plaintiffs in the revenue records. It held that since the names of the plaintiffs were deleted, pursuant to an order passed by the Assistant Commissioner, the plaintiffs were not entitled to rely on the revenue entries made in their names. It held that the only worthy document that was placed on was Ex.P1 which was shrouded in doubt in as much as, PWs.2 and 3 were inimically ill-disposed towards defendants and their evidence was not trustworthy and hence dismissed the appeal.
13. Feeling aggrieved by the said judgment and decree, the plaintiffs have filed this regular second appeal 19 RSA.No.938/2005 which was admitted to consider the following substantial question of law:
"Whether the Courts below were justified in holding that the Civil Court has no jurisdiction to go into the question of joint tenancy pleaded by the plaintiffs in respect of the suit schedule property, when the Land Reforms Tribunal has not adjudicated the said question while granting occupancy rights?"
14. The learned counsel for the plaintiffs contended that both Hussainsab and Buddesab were cultivating the land in question jointly and Buddesab had filed an application before the land tribunal claiming occupancy rights. He contended that there was no prohibition for one of the brothers to file an application seeking grant of occupancy rights. He submitted that the Trial Court committed an error in holding that the suit is not maintainable in view of Section 133 of the the KLR Act, 1961. In support of this contention, he relied upon the 20 RSA.No.938/2005 judgment of the Hon'ble Apex Court in Balawwa and another Vs. Hasanabi and others - (2000) 9 SCC 272]. He contended that the document dated 31.07.1978 executed by the defendant No.1 and his mother was sufficient enough to establish that both Hussainsab and Buddesab were joint tenants cultivating the land in question. He further contended that PW.2 was one of the witnesses to the agreement dated 31.07.1978 who deposed about the execution of the said document by the defendant No.1 and his mother and identified the signatures on the document. He also deposed that the plaintiffs were cultivating the northern half of RS. No.149/2. The learned counsel contended that PW.2 stood his ground during his cross-examination and stated that half portion of the land was allotted to the plaintiffs. He contended that PW.3 was also another witness who deposed about the agreement dated 31.07.1978 and he also supported the case of the plaintiffs. He contended that portions allotted to the 21 RSA.No.938/2005 plaintiffs were separated from the land allotted to the defendants, where he had raised sugarcane. He submitted that the defendants were therefore bound to produce the declaration made by them to the officials of the sugar factory about the extent of land cultivated by them for sugarcane. He contended that the defendants therefore had suppressed material facts and hence, an adverse inference had to be drawn. He submitted that PWs.2 and 3 were residents of Balekundri B.K. Village and no suggestion was put to those witnesses that they were strangers in the village or that they were not aware of the families of plaintiffs and defendants. He submitted that DW.1 admitted that a Varadi was submitted to transfer the names of the plaintiffs as per the settlement dated 31.08.1996, as per which, the Deputy Tahsildar recorded the statements and certified the mutation entry in M.E.1196. He admitted that as per the said entry, the land in R.S.No.149/2 was divided into R.S.Nos.149/2/1 and 149/2/2. He referred to the 22 RSA.No.938/2005 definition of the words "to cultivate personally" in Section 2(A)(11) of the KLR Act, 1961 and contended that it means 'cultivating the land on one's own account or by the labour of any member of one's family'. He therefore contended that the father of the plaintiffs was not wordly wise and therefore an application was filed by the father of the defendants for grant of occupancy rights and hence, the grant should enure to the benefit of plaintiffs also.
15. The plaintiffs have filed I.A.No.1/2014 under Order XLI Rule 27 of CPC to place on record additional documentary evidence. The enclosed documents are, an application filed by defendant Nos.1 and 2 against defendant Nos.3 and 4 in E.P.No.311/2005, order sheet in E.P.No.311/2005, mahazar drawn by Court bailiff, delivery warrant duly executed and an application filed by defendant Nos.1 and 2 in E.P.No.311/2005 reporting satisfaction of decree, order passed by this Court in W.P.No.66150/2009 setting aside the delivery warrant. In support of 23 RSA.No.938/2005 I.A.No.1/2014, the learned counsel for the plaintiffs contended that defendant Nos.2 and 3 had filed a suit against defendant Nos.1 and 2 claiming half portion of the land in Sy.No.149/1 and the said suit was dismissed. However, since defendant Nos.3 and 4 were placed in possession by the Court during the proceedings, the defendant Nos.1 and 2 sought re-delivery of possession by filing E.P.No.311/2005, which was rejected on 13.07.2006. He submitted that the executing Court strangely issued a delivery warrant which was challenged in W.P.No.66150/2009. This Court in terms of the Order dated 08.01.2013 allowed the petition and set aside the delivery warrant. He submits that these documents are necessary as the defendant Nos.1 and 2 had executed an agreement in favour of father of defendant Nos.3 and 4 and had parted with possession of half extent of the suit land.
16. Per contra, the learned counsel for the defendants contended that PW.2 was inimically ill-disposed 24 RSA.No.938/2005 towards the family of the defendants, as the defendants did not support him in a proceeding initiated in respect of R.S.Nos.148/2 during the year 1977. He further submitted that there was a criminal case of assault on the mother of defendant Nos.1 and 2 during the year 1978-1980 and in the said case, the accused were sentenced to fine. He deposed that PW.3 was the brother of the accused in the criminal case and therefore, his deposition was tainted and hence not reliable. He submitted that except Ex.P1, there was nothing on record to establish the alleged joint tenancy. He contended that revenue records cannot be changed based on Ex.P1 which was not registered in accordance with law. He relied upon the judgment of Hon'ble Supreme Court of India in the case of Korukonda Chalapathi Rao Another vs. Korukonda Annapurna Sampath Kumar - (2021) CJ (SC) 481. He further contended that a settlement of the nature mentioned in Ex.P1 was compulsorily registrable and as Ex.P1 was not 25 RSA.No.938/2005 registered, the same was inadmissible in evidence. In this regard, he relied upon the Judgment of the Hon'ble Supreme Court of India in Ravinder Kaur Grewal & Others vs. Manjit Kaur & others - 2020 CJ (SC) 455 and Venugopal Padayachi (Dead) vs. V. Pichaikaran (Dead) through LRs - 2018 CJ (SC) 990. On the contrary, he contended that the documents produced by the defendants established beyond doubt that it was the Buddesab who was the tenant cultivating the land in question. He therefore, contended that the Trial Court and the First Appellate Court have rightly considered the case of the plaintiffs and has rightly disallowed the claim of the plaintiffs and hence submits that the appeal be dismissed.
17. The defendants filed objections to I.A. No.1/2014 and contended that the documents sought to be produced as additional evidence are neither necessary nor relevant for the purpose of deciding the dispute between the parties. They have contended that this Court in CRP 26 RSA.No.938/2005 No.921/1999 had permitted the plaintiffs to remove the standing crop subject to deposit of Rs.40,000/-, which was subject to the outcome of the suit in O.S.No.854/1998. They contended that after O.S. No.854/1998 was dismissed on merits, the amount of Rs.40,000/- deposited was released to them. They contend that the plaintiffs challenged the Judgment and decree in O.S.No.854/1998 in R.A.No.301/2000 but did not deposit Rs.40,000/-. They contended that the plaintiffs failed to deposit Rs.40,000/- even when they filed the present appeal. Later, the defendants filed O.S.No.293/2005 to recover possession of the property, which however came to be dismissed as the Court found that the defendants were in possession. They alleged that the plaintiffs obstructed the defendants from cultivating the land and that they failed to deposit Rs.40,000/- as ordered by this Court in CRP No.921/1999, which compelled the defendants to file an execution petition to recover Rs.40,000/-. They contend that the proceedings 27 RSA.No.938/2005 in E.P.No.311/2005 have no relevance and can be of no evidentiary value for the purpose of deciding the controversy in question.
18. I have considered the submissions made by the learned counsel for the plaintiffs and learned counsel for the defendants. I have also perused the records of the Trial Court and First Appellate Court.
19. The case of the plaintiffs in short is that the suit property was earlier a tenanted land that was cultivated by their father and the father of the defendant Nos.1 and 2 jointly. They claimed that an application was filed by the father of the defendant Nos.1 and 2 without the notice and knowledge of their father and that the occupancy rights were granted to the defendant Nos.1 and 2 represented by their mother. They claimed that the mother of the defendant Nos.1 and 2 and the defendant No.1 had agreed to give up northern portion of the suit property to the 28 RSA.No.938/2005 plaintiffs in lieu of the plaintiffs paying up a sum of Rs.2800-00. They claimed that accordingly, a document dated 31.07.1978 was executed by the defendant No.1 and his mother. However, the defendants denied every assertion made by the plaintiffs and claimed that the suit property was cultivated by their father and after his demise, the occupancy rights was conferred on them.
20. If the documentary evidence on record is perused, Ex.P1 is a document dated 31.07.1978 in terms of which, the defendants allegedly acknowledged that plaintiffs were in possession of 3-30 acres in Sy.No.149/2 and that the plaintiffs had paid a sum of Rs.2800-00 being the premium payable in respect of 3-30 acres. It definitely did not indicate that the defendants had agreed to part with 3- 30 acres in the suit property in favour of the plaintiffs. Exs.P2 to P5 are the land revenue receipts, while Ex.P6 is the RTC of Sy.No.149/2 for the year 1997-1998, which stood in the name of the defendants. Except the above, 29 RSA.No.938/2005 there are no documentary evidence to establish the joint cultivation of the father of the plaintiffs and the father of defendant Nos.1 and 2. Ex.P1 is the lone document produced in support of the claim of plaintiffs that their father was cultivating the suit property as a tenant and also that the northern portion of the suit property was agreed to be handed over to the plaintiffs. Thus, heavy burden was cast on the plaintiffs to prove the lawful execution of Ex.P1 as well as its admissibility. A thumb impression was found on this document, which was marked as Ex.P1(a) and was purportedly, the left hand thumb impression of mother of defendant No.1. Ex.P1(b) is stated to be the signature of the defendant No.1. No attempt is made by the plaintiffs to prove the thumb impression and the signatures found on Ex.P.1.
21. If the oral evidence of PW.1 is considered, he claimed that his father and father of defendant No.1 were cultivating the land jointly. However, no attempt was made 30 RSA.No.938/2005 to secure Form No.7 filed before the land Tribunal. No documents were summoned from the land Tribunal to establish that the land was cultivated jointly. No witness was examined to establish that the land in question was cultivated jointly by the father of plaintiffs and father of defendant Nos.1 and 2.
22. PW.2 claimed to be a witness to Ex.P1 and he deposed that as per Ex.P1, the northern portion of Sy.No.149/2 was given to plaintiffs and the southern portion was given to the defendants. This witness seems to have come into the picture in 1978 when Ex.P1 was allegedly entered into. In his chief examination, he claimed that the plaintiffs were cultivating the suit land since a long time and that they owned it, contrary to the claim of plaintiffs that it was jointly cultivated by their father and father of defendant Nos.1 and 2. Furthermore, he contended that the original of Ex.P1 was handed over to defendant No.1 but how it came into the custody of the 31 RSA.No.938/2005 plaintiffs is not explained. However, in his cross- examination, he admitted that land in Sy.No.148/1 existed between Sy.Nos.149/2 and 148/2 and that there was litigation concerning Sy.No.148/2 during 1977. A suggestion was put to him that he had asked defendant No.1 and his mother to be a witness in the said litigation and that they had refused, which was denied by PW.2. He deposed that the father of plaintiffs, father of defendant Nos.1 and 2, father of defendant Nos.3 and 4 and the other brothers had partitioned the properties and that he was a child when such partition took place. He further deposed that it may be that all the brothers were cultivating their separate lands. Therefore, the evidence of PW.2 is not of any help to the plaintiffs to prove their claim that suit schedule property was cultivated jointly by their father along with the father of the defendant Nos.1 and 2.
23. PW.3 was another witness, who deposed that he was one of the panchas, who mediated the dispute between 32 RSA.No.938/2005 the plaintiffs and the defendant Nos.1 and 2 and brought out a settlement as per Ex-P1. However, in his cross- examination, he admitted that the father of defendant Nos.1 and 2 had filed a suit against his brother in O.S.No.428/1967 to protect his possession of the suit property, which was decreed. Later, the brother of PW.3 filed R.A.No.155/1969, which was dismissed. The father of defendant Nos.1 and 2 was allegedly murdered over a dispute relating to the suit property, where the brother of PW.3 was also arrayed as an accused. Therefore, it is probable that this witness was disgruntled and was interested to depose against the defendants. Therefore, his evidence has to be taken with a pinch of salt.
24. PW.4, who was working as a Secretary of Balekundari Jammat deposed that Hussainsab and Buddesab were cultivating R.S.No.149/2 jointly and that the plaintiffs and defendant Nos.1 and 2 were cultivating the suit land. His evidence has no probative value as he was 33 RSA.No.938/2005 neither a member of the family of the plaintiffs nor the defendants. He seemed to be a planted witness as nothing was placed on record to show that he was in the village prior to the year 1978, when the land was cultivated.
25. On an overall appreciation of the oral evidence of PWs.1 and 2, it is evident that the father of plaintiffs, father of defendant Nos.1 and 2 and father of defendant Nos.3 and 4 had two other brothers, who were separately cultivating various land as tenants. PW.2 admitted that they had all partitioned the properties, when he was a child. This, in fact marred the case of the plaintiffs. Since there was no document to establish the joint cultivation of the suit property by the father of plaintiffs and father of defendants, it is difficult to accept the claim of the plaintiffs that the defendant No.1 and his mother had agreed to part with 3-30 acres on the northern side of the suit property by executing Ex-P1.
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26. No doubt, if the land is cultivated by the members of a family and occupancy rights is conferred by the Tribunal on any member of the family, that would enure to the benefit of other members, who were otherwise eligible for a share in the property. However, it is incumbent upon the person so claiming to establish that the land was cultivated jointly. The least that the plaintiffs could have done was to summon the records from the land Tribunal, to understand whether the father of defendant Nos.1 and 2 had asserted that he was the sole tenant or was cultivating it alongwith the father of plaintiffs.
27. This apart, if Ex.P1 was truly executed by the defendant No.1 and his mother, it is not known why the plaintiffs waited for 18 long years to initiate proceedings for entering their names in the revenue records. The mutation proceedings were initiated by plaintiffs in M.E. No.1196 in the year 1996 based on Ex.P.1 by submitting an unilateral varadi, following which, an order was passed by the Deputy 35 RSA.No.938/2005 Tahsildar certifying that the names of the plaintiffs be entered in the revenue records, which came to be challenged before the Assistant Commissioner to set aside the same and vide order dated 24.03.1998. This order was confirmed by this Court in W.P.No.12940/1998. Therefore, except Ex.P1, there was no other material on record to show that father of the plaintiffs and defendants were jointly cultivating the suit property and that they were entitled to an equal share therein. As rightly contended by the learned counsel for the defendants, concept of joint family is not known amongst Mohammedan and so long as the land was granted to the father of the defendant No.1, he continued to be the owner of said property and upon his death, the defendants were entitled to succeed. Therefore, there was not enough evidence to establish that the suit property was cultivated jointly and the execution of Ex.P1 was not established.
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28. Per contra, Ex.D1 is a partition between the defendant Nos.1 and 2 in terms of which, R.S.No.149/2/1 fell to the share of defendant No.1 and R.S.No.149/2/2 fell to the share of defendant No.2. Ex.D2 was the Varadi submitted based on Ex.D1 to enter the names of the plaintiffs and defendants in respect of R.S.No.149/2/1 and 149/2/2. Ex.D3 is a statement recorded by the defendants before the Deputy Tahsildar. Ex.D4 is a death certificate of the father of the plaintiffs, which indicates that he died on 26.08.1987. Exs.D5 and D6 are RTCs of Sy.No.149/2 for the years 1975-1976 to 1989-1990. Ex.D7 is the VPC extract of property No.30, which stood in the name of the father of defendant Nos.3 and 4. Ex.D8 is the order passed by the land Tribunal granting occupancy rights. Ex.D9 is a Form No.10 issued in favour of the defendants. Ex.D10 is a carbon copy of the order passed by the land tribunal dated 21.03.1975. Ex.D11 is another Form No.10 issued in respect of the suit property. Exs.D12, D13, D14 and D15 37 RSA.No.938/2005 are the RTC'S of Sy.No.149/2 for the years 1981 to 1998, which shows the names of the defendants. Ex.D16 is the private complaint lodged by the defendant No.1 against the plaintiffs complaining about the fraudulent Ex.P1. Ex.D17 is an agreement of sale executed in favour of the father of defendant Nos.3 and 4, which shows that he was residing separately. Exs.D18 and 19 are the RTCs of the land bearing Sy.No.168/1 for the years 1979-1980, 1968-1969, 1969-1970 and 1971-1972. Ex.D20 is the register of appeals which shows that the brother of PW.3 had filed an appeal in R.A.No.155/1969 against the father of the defendant Nos.1 and 2. Ex.D21 is the civil register of O.S.No.428/1967 filed by the father of defendant Nos.1 and 2 against the brother of PW.3, which was decreed. Ex.D22 is the mutation extract of Sy.No.149/1 and 149/2. Ex.D23 is the extract of Sy.No.149/1 and 149/2. Exs.D24 to D30 are the land revenue receipts. Ex.D31 is the order passed by the Assistant Commissioner dated 24.03.1998. Ex.D32 38 RSA.No.938/2005 is the RTC of land bearing 195/3 for the years 1997-1998. Ex.D33 is an affidavit filed by a resident of Balekundari Village who owned Sy.No.155/3 near the suit property and he deposed in O.S.No.854/1998 that the plaintiffs herein were never in possession of Sy.No.149/2 in any manner whatsoever. Ex.D34 is a public notice. Ex.D35 is a settlement deed.
29. The defendant No.1 was examined as DW.1 and he stood his ground and deposed that he and his mother did not execute Ex.P1. No contra evidence was extracted from him to disbelieve his statement.
30. The owner of Sy.No.155/3 of Panth Balekundri was examined as DW2 and he deposed that it was the defendants, who were in possession and enjoyment of the suit property.
31. DW.3 is the defendant No.3, who deposed that his father and father of defendant Nos.1 and 2 were 39 RSA.No.938/2005 cultivating the land in Sy.No.149/2 as tenant and that Kulkarni was the owner of the property. This property was purchased by Ramangoud Patil, who lodged a complaint against his father and the father of the defendants. Ramangoud Patil filed a suit and obtained injunction and thereafter, an appeal was filed by the father of the defendants. He deposed that the father of the plaintiffs did not cultivate the property at any point in time and that there was a settlement between the defendants and his father which was recorded in writing. He stated that his father died in the year 1993. Hence, the defendant Nos.1 and 2 were interfering with his right over the entire suit property, hence, he filed suit in O.S.No.173/1993 to protect his possession. He deposed that he has not produced any documents to show that they were not in possession of the suit property since 1965.
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32. DW4 was examined to establish the settlement between the father of defendant Nos.1 and 2 and father of the defendant Nos.3 and 4.
33. The oral and documentary evidence adduced by the defendant Nos.1 and 2 established that after occupancy rights were conferred upon them, they divided the property between them, consequent to which the suit property was bifurcated into Sy.No.149/2/1 and 149/2/2. Exs.D12 to D15 established that the names of the defendants were entered in the revenue records.
34. The Trial Court and the First Appellate Court have therefore considered the evidence in the right perspective and have rightly dismissed the suit of the plaintiffs.
35. In so far as the substantial question of law framed by this Court, Section 133 of the Karnataka Land Reforms Act, 1961 bars the jurisdiction of the Civil Court to 41 RSA.No.938/2005 entertain any dispute triable by the Tribunal. This does not mean that a Tribunal was entitled to go into the question whether the land in question was cultivated jointly by the father of the plaintiffs and the father of the defendants. It also could not go into the question whether the defendant No.1 and his mother had given up 3-30 acres in the suit land in favour of the plaintiffs under Ex-P1. A perusal of Section 133 of Karnataka Land Reforms Act, 1961 does not show that the Tribunal was invested with the power and jurisdiction to grant the relief of declaration that the occupancy rights granted in favour of an applicant, enured to the benefit of others. Therefore, it is the Civil Court alone which has the jurisdiction to entertain the suit for partition. Consequently, the substantial question of law is answered as follows:
36. The Trial Court committed an error in holding that the Civil Court has no jurisdiction to go into the question of joint tenancy pleaded by the plaintiffs, as the 42 RSA.No.938/2005 Tribunal did not have the jurisdiction to decide such a question under Section 133 of the Karnataka Land Reforms Act, 1961. None the less, as there was no material to establish that the suit property was cultivated jointly by the father of the plaintiffs and defendants, the plaintiffs were not entitled to any relief in the suit.
37. In so far as I.A.No.1/2014 is concerned, they were not relevant to consider the reliefs claimed in the suit and did not help the plaintiffs in any manner, whatsoever and hence, I.A.No.1/2014 is rejected.
Hence, the appeal lacks merit and is dismissed.
Sd/-
JUDGE HJ