Karnataka High Court
Moulansab And Ors vs Chittavali @ Chittasab on 3 November, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.200288/2022
BETWEEN:
1. MOULANSAB S/O LAL AHMED,
AGE: 62 YEARS,
OCCUPATION: AGRICULTURE,
RESIDENT OF DIGGAON,
TALUKA CHTTAPUR,
DISTRICT KALABURAGI-585103.
2. RAJU S/O SHARANAPPA KALABURAGI
AGE: 32 YEARS,
OCCUPATION: AGRICULTURE,
RESIDENT OF DIGGAON,
TALUKA CHITTAPUR,
DISTRICT KALABURAGI-585103.
3. SMT. PEERMA W/O MAHEBOOB MANIYAR
AGE: 47 YEARS,
OCCUPATION: AGRICULTURE,
RESIDENT OF DIGGAON,
TALUKA CHITTAPUR,
DISTRICT KALABURAGI-585103.
...APPELLANTS
(BY SRI R.V.NADAGOUDA, ADVOCATE)
2
AND:
CHITTAVALI @ CHITTASAB
S/O LAL AHMED,
AGE: 57 YEARS,
OCCUPATION: AGRICULTURE,
RESIDENT OF DIGGAON,
TALUKA CHITTAPUR,
DISTRICT KALABURAGI-585211.
...RESPONDENT
(BY SRI A.M.BIRADAR, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 R/W
ORDER 42 RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 23.09.2020 PASSED IN R.A.NO.02/0217
ON THE FILE OF THE IV ADDL. DIST. AND SESSIONS
JUDGE, AT KALABURAGI, SITTING AT SEDAM ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DTD- 30.11.2016 PASSED IN O.S.NO. 237/2011
ON THE FILE OF THE SENIOR CIVIL JUDGE CHITTAPUR.
THIS RSA IS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful defendants who have questioned the divergent findings of the Courts below wherein the appellate Court has allowed the appeal and decreed 3 the suit filed by plaintiff and has granted half share in the suit land.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The family tree is as under:
Lal Ahmed (Died) |
-------------------------------------
| |
Moulanab Chittayali @ Chittasab
Deft. No.1 Pltff
4. The plaintiff is the second s on of one Lal Ahmed. The present suit is filed by plaintiff by contending that his father Lal Ahmed was a tenant of the suit land. After coming into force of the Land Reforms Act, his father Lal Ahmed filed Form No.7.
Pending consideration of the claim, he died and first defendant who is his elder brother appeared and contested the proceedings and occupancy right was 4 granted to him. Therefore, plaintiff contended that the occupancy rights granted in favour of first defendant enures to the benefit of the present plaintiff also as the land was originally cultivated by their father and therefore, he is entitled for half share in the suit schedule property. The grievance of the plaintiff is that defendant taking undue advantage of plaintiff's absence and without his knowledge has sold 2 acres each to defendants 2 and 3 respectively under registered sale deed dated 5.2.2007. Hence, the present suit.
5. The first defendant who is the plaintiff's brother contested the proceedings and stoutly denied the entire averments made in the plaint. The first defendant claimed that occupancy rights granted in his favour was in his individual capacity and therefore, claimed absolute ownership over the property in question.
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6. The trial Court accepting the defence set up by defendant proceeded to hold that since occupancy right is granted to first defendant, it is his absolute property and accordingly, non-suited the plaintiff on this sole count.
7. Feeling aggrieved by the judgment and decree of the trial Court, the plaintiff preferred an appeal before the appellate Court. The appellate Court has independently reassessed the entire material on record. The appellate Court while examining Form No.7 has found that plaintiff and first defendant's father had filed Form No.7. Therefore, the appellate Court was of the view that it is an ancestral tenanted land and therefore, occupancy rights granted to first defendant would enure to the benefit of the plaintiff who is also one of the legal heir of Lal Ahmed. Therefore, the appellate Court held 6 that first defendant cannot assert absolute title over the suit land more particularly on the ground that the Land Tribunal has granted occupancy rights in his favour and has consequently, allowed the appeal and decreed the suit granting half share to the plaintiff and a formal declaration was also granted thereby declaring that the sale deeds executed by first defendant in favour of defendants 2 and 3 are null and void and are not binding on plaintiff's legitimate share. This judgment and decree of the appellate Court is under challenge by defendants.
8. Heard the learned counsel for defendants and the learned counsel for the plaintiff.
9. The short point that needs consideration at the hands of this Court is as to whether the first defendant merely on the ground that occupancy right was granted to him can assert individual tenancy 7 rights and claim that occupancy rights granted in his favour would not enure to the benefit of other family members.
10. My answer is "No". The evidence on record clearly indicates that it is the father of plaintiff and first defendant who had filed Form No.7 and it is their father who was the original tenant. He died during the pendency of the proceedings. The first defendant who happens to be plaintiff's elder brother continued the proceedings. The contest by first defendant was not in his individual capacity. It cannot be inferred that it was in his individual capacity because he was claiming under his father Lal Ahmed who was originally the tenant. Under Section 24 of the Karnataka Land Reforms Act, the tenancy rights are heritable. Therefore, both plaintiff and first defendant on account of death of their father Lal Ahmed inherited tenancy rights. If both have inherited the 8 tenancy rights, this Court is unable to understand as to how first defendant can assert exclusive right over the tenanted lands merely because it is granted in his name.
11. The trial Court has virtually misread the entire evidence on record. There is no proper appreciation of evidence and law in the present case on hand by the trial Court. Therefore, the judgment and decree of the trial Court is patently erroneous and suffers from perversity. The appellate Court has rightly re-appreciated the entire evidence on record and has rightly appreciated the correct proposition of law relating to tenancy rights. The judgment and decree of the appellate Court is in accordance with law and would not warrant any interference at the hands of this Court. The judgment cited by the learned counsel for the appellants has no application to the present case on hand. In fact, the judgment cited by 9 the learned counsel for the defendants in the case of Narayan and others .vs. A. Sadashiva and others1 would come to the aid of plaintiff and not to first defendant. This Court in the said judgment held that where occupancy rights granted to one of the family members, it is open for the other members to file a suit for partition to establish that the subject matter of the property was an ancestral tenanted land. The remedy for other family others who are not parties to the land Tribunal proceedings always have a civil remedy. Such a common law remedy is availed by the plaintiff in the present case on hand. Therefore, no substantial question of law arises for consideration 1 ILR 2000 KAR 487 10
12. Accordingly, the appeal is dismissed.
Sd/-
JUDGE *alb/-.