Karnataka High Court
Arvind S/O Narasimha Kamat vs Sunanda W/O. Jandardhan Shanbhag on 13 January, 2020
Bench: P.B.Bajanthri, Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MR. JUSTICE P.B. BAJANTHRI
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR FIRST APPEAL No.100149 OF 2014 (PAR/POS)
BETWEEN:
1. SRI ARVIND
S/O NARASIMHA KAMAT,
AGE : 69 YEARS,
OCC: PENSIONER,
R/O GURNSANNIDHI, BLOCK No.24,
NEAR KATTIMANGALA DEVI BUS STOP,
LINGARAJU NAGAR,
VIDYA NAGAR, HUBBALLI.
2. SRI RAJENDRA
S/O NARASIMHA KAMAT,
AGE 53 YEARS,
OCC: AGRICULTURIST,
R/O KUKKANIR, POST: HEBLE,
TQ: BHATKAL.
.... APPELLANTS.
(BY SRI. NAGAPRASAD S. KINI, ADVOCATE)
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AND:
1. SMT. SUNANDA
W/O JANARDHAN SHANBHAG,
AGE: 74 YEARS
OCC: HOUSEHOLD,
R/O PRAGATI NAGAR,
SIRSI (U.K.)
2. SMT. PREMA,
W/O VENKATESH SHANBHAG,
AGE: 69 YEARS,
OCC: HOUSEHOLD,
R/O YESHWANTHPUR,
BENGALURU.
3. SMT. SUDHA,
W/O PURUSHOTTAM HEGDE,
AGE: 62 YEARS,
OCC: HOUSEHOLD,
R/O SHIROOR PARK,
HUBBALLI.
4. SMT. RUPA
W/O PRASHANT KINI,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O BUILDING No.4, SAIYADRI,
LALUBAI PARK ROAD,
SARDAR VALLABHAI,
UDYANA, ANDHERI (W), MUMBAI.
5. SMT. RACHANA
D/O RAMDAS KAMAT,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O BUILDING No.4, SAIYADRI,
LALUBAI PARK ROAD,
SARDAR VALLABHAI,
UDYANA, ANDHERI (W), MUMBAI.
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6. SMT. RESHMA
D/O RAMDAS KAMAT,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O BUILDING No.4, SAIYADRI,
LALUBAI PARK ROAD,
SARDAR VALLABHAI,
UDYANA, ANDHERI (W), MUMBAI.
7. SMT. SHARADA
W/O ANANT NAYAK,
AGE: 72 YEARS, OCC: PENSIONERS,
R/O MANGAGUDDE, MANGALURU.
8. SMT.SUDHA,
W/O NARAYAN SHENOY,
AGE: 65 YEARS, OCC: HOUSE HOLD,
R/O KELAGI ROAD, SAGAR, TQ: SAGAR.
9. SMT. KALPANA,
W/O SUDHAKAR SHANBHAG,
AGE: 58 YEARS, OCC: HOUSEWIFE,
R/O KODAKANI, KUMTA, TQ: KUMTA.
10. SMT. KHATIJA KAZI KOM ZUBIR
MOHAMMED KAZI,
AGE: 61 YEARS, OCC: AGRICULTURIST,
R/O TAKSKEEN HINDU COLONY,
TQ: BHATKAL
.... RESPONDENTS
(BY SRI. J.S.SHETTY, ADVOCATE FOR R1, R2 AND R8,
SRI. S.M.TONNE, ADVOCATE FOR R4 TO R7,
R3, R9 AND R10 ARE SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 OF THE
CIVIL PROCEDURE CODE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED: 07.06.2014 PASSED IN
O.S. No.5/2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE, HONAVAR (ITINERARY COURT AT BHATKAL),
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PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.12.2019 AND COMING ON FOR
PRONOUNCEMENT THIS DAY NATARAJ RANGASWAMY J.,
DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First appeal is filed challenging the Judgment and Decree dated 07.06.2014 passed by the Senior Civil Judge, Honnavar, (itinerary Court at Bhatkal) in O.S. No.5/2011, whereby the suit filed by the plaintiffs therein for partition and separate possession of their share in the suit schedule properties was decreed.
2. For the sake of brevity and easy understanding, the parties in this appeal are referred to as they were arrayed before the trial Court. The appellants herein were defendant Nos. 2 and 3 before the Trial Court while the respondents 1 to 3 herein were the plaintiffs. The husband of deceased respondent No.1 herein, respondent Nos.4, 5 and 6 herein were the 5 brothers and sisters of plaintiffs. The respondent No.7 herein is the purchaser of item No.33 of the suit schedule properties and he was arrayed as defendant No.7 before the Trial Court.
3. The plaintiffs filed O.S. No.5/2011 and claimed that they, husband of defendant No.1 and defendant Nos.2 to 6 were full blood brothers and sisters. It was claimed that the suit schedule properties were the self acquisition of their father Sri Narasimha Venkatesh Kamath and after his death, the name of the husband of defendant No.1 and defendant Nos.2 and 3 were entered in the revenue records. They claimed that the suit properties were the joint family properties of the plaintiffs and defendants and that each of the plaintiffs were entitled to 1/9th share therein. The plaintiffs further claimed that Sy. No.221 measuring 07 Acres 05 guntas situate at Heble village stood in the name of the father of the plaintiffs and that he got entered the name of his son, Sri Ramadas Narasimha Kamat (husband of 6 deceased defendant No.1) in respect of the said property to avoid the ceiling limit. The husband of defendant No.1 is stated to have filed an application in Form No.7 on behalf of the family for grant of occupancy rights and that the Land Tribunal, Bhatkal Taluk, granted occupancy rights for and on behalf of the family. The husband of defendant No.1 without there being any corresponding legal necessity is stated to have sold the item No.33 of the suit properties to the defendant No.7.
4. The Defendant No.1 filed her written statement and admitted the relationship between the plaintiffs and defendant Nos.1 to 6 and that the suit schedule properties were the self acquisition of the father of the plaintiffs. She claimed that she was entitled for a legitimate share in the suit properties and sought for declaration of her share in the suit properties.
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5. During the pendency of the suit, defendant No.1 died and thereafter, her daughter namely, defendant No.1(a) filed her written statement and denied that the suit properties were the self acquisition of the father of the plaintiffs. The defendant No.1(a) refuted the assertions in the plaint and contended that Sy. No.221 of Heble village was the absolute property of the husband of defendant No.1, which was granted by the Land Tribunal, Bhatkal, in LRM No.7/1990 dated 24.09.1976 and that he had sold the said land to defendant No.7 to meet his legal necessity in terms of the sale deed dated 06.09.2007. Defendant No.7 was stated to be in possession and enjoyment of the land in Sy. No.221. It is also contended that the plaintiffs were ousted from the suit schedule properties as they never cultivated it nor possessed any manner of right whatsoever therein.
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6. Defendant Nos.1(b) and 1(c) adopted the written statement of defendant No.1(a).
7. Defendant No.2 filed a separate written statement and contended that the suit had to be dismissed for non-joinder of necessary parties as the legal heirs of deceased Ramdas Kamath were not arrayed as parties to the suit. It is stated that the suit properties were in continuous joint cultivation of Sri Narasimha Kamat and his sons, namely, Sri Ramadas Kamat and defendant Nos.2 and 3 and that by operation of law, the order of the Land Tribunal, Bhatkal, granting the land enured to the joint family comprised of Sri Narasimha Venkatesh Kamat and his three sons only. He denied the claim made by the plaintiffs that their request for partition of the suit properties was turned down by the defendants which prompted them to file the suit for partition and separate possession of their share in the suit properties. It is 9 stated that the name of Sri Narasimha Venkatesh Kamat was shown in the records of the Land Tribunal and the record of rights as the head of his smaller Hindu Undivided Family consisting of himself, his wife and his three sons and after his death, the name of his wife, Smt. Seetabai was entered in the revenue records. She died on 19.09.1995. The husband of defendant No.1, defendant No.2 and defendant No.3 filed an application for transfer of the revenue records from the name of Smt. Seetabai to their names, which was objected by plaintiff No.2 and a dispute case was registered by Tahasildar, Bhatkal, to which, the plaintiffs and defendants 4 to 6 were parties. The said dispute was stated to have been settled during the revenue proceedings before the Tahasildar. It is stated that defendant Nos.2 and 3 and the husband of defendant No.1 paid a sum of Rs.1,00,000/- to each of the six sisters including the plaintiffs, whereupon they withdrew the objections and the mutation was effected 10 in the name of the husband of defendant No.1 and defendant Nos.2 and 3. Thus, they contended that the share, if any, of the plaintiffs have been sufficiently paid off and therefore, they are not entitled for any share. He also claimed that the present suit was contrary to the provisions of the Karnataka Land Reforms Act, 1961. He further contended that in the event the Court held that the plaintiffs were entitled for a share in the suit properties, then he requested the trial Court to factor the time, energy, labour and money that his father, Sri Narasimha, late Ramdas and defendant Nos.2 and 3 spent on improving the land and consequently, sought dismissal of the suit.
8. The written statement filed by defendant No.3 discloses that defendant Nos.1 to 3 had given a vardi for effecting the varisa entry in their favour to which the second defendant had objected and the same was referred as disputed case under Sections 128 and 11 129 of the Karnataka Land Revenue Act, 1964. It is stated that during that proceedings, the plaintiffs and defendant Nos.4 to 6 have relinquished their share in the suit properties and consequently, the mutation was accepted and revenue records were transferred in the name of the husband of defendant No.1, defendant Nos.2 and 3. The plaintiff No.1 was paid a sum of Rs.1,00,000/- through S.B. Account No.27333 on 23.01.2007 and a sum of Rs.2,00,000/- was paid to defendant No.2 through S.B Account No.27333 while a sum of Rs.1,00,000/- was paid to plaintiff No.3. It is stated that the defendant Nos.1 to 3 had developed the suit properties by raising substantial loan from financial institution. It was next contended that the plaintiffs were married prior to 1956 and therefore, were not entitled for any share in the suit properties. The defendant No.3 also contended that the suit properties were agricultural properties and hence, the plaintiffs had no right to seek partition as their right to seek 12 partition was barred under Section 4(2) of the Hindu Succession Act, 1956. The defendant No.3 also claimed that the suit was barred by limitation.
9. The defendant Nos.2, 4 and 6 adopted the written statement filed by defendant No.3.
10. The defendant No.5 claimed that the suit properties were the self acquisition of her father and therefore, sought for her share in the suit properties.
11. The defendant No.7, who claimed to be the purchaser of the land measuring of 07 Acres 05 guntas in Sy. No.221 situate at Heble village, reiterated the contentions urged by defendant No.1(a) and claimed that she was in possession of the said land.
12. After considering the rival pleadings of the parties, the trial Court framed the following Issues and additional issues:
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"1. Whether the plaintiffs prove that the suit properties are joint family properties of plaintiffs & defendants?
2. Whether plaintiffs prove that they have got 1/9th share in the suit properties?
3. Whether defendants prove that defendant nos.2, 3 and late Ramadas paid amount of Rs.1,00,000/- each to their sisters i.e., plaintiff, defendants no.4 to 6 is contended?
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether Court fee paid is proper?
6. Whether plaintiffs are entitled for relief sought?
7. What order or decree?"
Additional Issues:
1. Whether plaintiffs prove that suit Sy.No.221 area situated Susangadi village is also joint family property of plaintiff and defendants?
2. Whether the plaintiffs prove that they have got share in the suit property?"14
Before the trial Court, plaintiff No.2 was examined as PW.1 and Exs.P1 to P43 were marked while defendant No.2 was examined as DW.1 and defendant No.1(b) was examined as DW.2 and a witness was examined as DW.3 and they marked Exs.D1 to D12.
13. The trial Court after considering the pleadings and evidence of the parties, decreed the Suit in terms of the Judgment and Decree dated 07.06.2014. It is against this judgment and decree that defendant Nos.2 and 3 have filed this Regular First Appeal.
14. Heard the learned counsel for both defendant Nos.2 and 3 - appellants, learned counsel for respondent Nos.1, 2 and 8 and learned counsel for respondent Nos.3, 9 and 10. Perused the pleadings, oral and documentary evidence as well as the judgment and decree of the Court below.
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15. Having regard to the contentions urged by the learned counsel for the parties, the following points would arise for our consideration:
1. Whether the suit item Nos.1 to 32 were the self acquisition of late Sri Narasimha Venkatesh Kamath and whether the plaintiffs were entitled for undivided right, title, interest therein ?
2. Whether the suit item No.33 is the absolute property of defendant No.1 and that the plaintiffs had no share in the said property in view of the judgment of this Court reported in ILR 2013 Kar 6202 ?
3. Whether the judgment and decree of the Court below calls for interference?
16. The aforesaid points are taken for consideration together.
17. There is no dispute regarding the relationship between the parties. The plaintiffs have contended that the suit properties were the self 16 acquisition of their father. The plaintiffs later contended by an amendment to the plaint that their father had filed an application in Form No.7 seeking grant of occupancy rights and that the Land Tribunal considered such application and granted occupancy rights in respect of the said lands. In reply to this claim, defendant No.1 admitted that the suit properties were the self acquisition of Sri Narasimha Venkatesh Kamat, the father of the plaintiffs and that after his death, the husband of defendant No.1, defendant Nos.2 and 3 were entitled to succeed. She, therefore, sought for her share in the suit properties. Contrarily, defendant No.1(a) deviated from the written statement of defendant No.1 and contended that Sy. No.221 of Heble village (suit item No.33) was the absolute property of her father which was granted by the Land Tribunal in Case LRM No.7/1990 dated 24.09.1976 and that her father had sold the said property to defendant No.7. The defendant No.2 alleged that the plaintiffs were paid 17 Rs.1,00,000/- each towards relinquishing their share in the suit schedule properties and also contended that such relinquishment was made during the revenue proceedings before the Tahasildar, Bhatkal. The defendant No.3, on the other hand, admitted the fact that the suit properties were the self acquisition of Sri Narasimha Venkatesh Kamat. He reiterated that Rs.1,00,000/- was paid to each of the plaintiffs for relinquishment of their respective share in the suit properties. He curiously contended that since the suit properties were agricultural properties, the suit for partition was barred under Section 4(2) of the Hindu Succession Act and further claimed that the plaintiffs were married prior to 01.03.1974 and that therefore, they were not members of a 'family' as defined under section 2(12) of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the KLR Act', for brevity). The defendant No.5 sought for her share in the suit properties.
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18. A perusal of the cross-examination of PW.1 would disclose that the defendants had suggested to PW.1 that the suit properties were moolageni / mulgeni properties of the father of the plaintiffs and that he submitted an application following which the Tribunal had granted occupancy rights. The defendants have successfully extracted from PW.1 an admission that she was paid a sum of Rs.2,00,000/- by the husband of defendant No.1 and that she had agreed to receive Rs.5,00,000/- along with the expenses for construction of a house towards relinquishing her share in the suit properties. PW.1 has stated in her cross-examination that the sum of Rs.2,00,000/- was received by her towards relinquishing her share in the suit properties. However, she later resiled and claimed that neither she nor the other plaintiffs had relinquished their share in the suit properties. In the course of cross-examination, at the behest of defendant No.7, it was suggested that PW.1 was not in possession of any document to show 19 that suit item No.33 was granted to her father. Though a suggestion was made that suit item No.33 was granted in the name of the husband of defendant No.1, PW.1 expressed her ignorance.
19. It is relevant to note that neither the plaintiffs nor the defendants have furnished any documentary proof to show that the suit schedule item No.33 was granted in the name of their father. Therefore, this issue has to be considered based on the oral evidence of the parties.
20. A perusal of the evidence of DW.1 discloses that the suit properties were granted to his father by the Land Tribunal. DW.1 claimed that since the plaintiffs were married prior to 01.03.1974, they were not entitled to a share in the suit properties. In his cross- examination, he admitted that none of the sons of Sri Narasimha Venkatesh Kamat had purchased any of the suit properties and that after the death of Narasimha 20 Venkatesh Kamat, the revenue entries were brought out in the name of his wife, Smt. Seetabai, and that later, the names of husband of defendant No.1, defendant Nos.2 and 3 were entered in the revenue records. He claimed that the land measuring 07 acres 20 guntas was granted by the Land Tribunal to the husband of defendant No.1 and that defendant No.1 had filed the application seeking for grant of occupancy rights.
21. DW.1 did not produce any document to show that suit item No.33 was granted to the husband of defendant No.1 and that he was independently cultivating the suit item No.33. Likewise, none of the defendants produced the order of the Land Tribunal concerning suit item Nos.1 to 32.
22. In the light of the evidence on record, it is clear that the suit schedule properties were granted to Sri Narasimha Venkatesh Kamat, the father of the plaintiffs and defendant Nos.2 to 6, by the Land 21 Tribunal. It is not in dispute that the father of the plaintiffs died intestate on 01.04.1989 leaving behind the plaintiffs, husband of defendant No.1, defendant Nos.2, 3, 4, 5 and 6 as his legal heirs, who succeeded to an undivided share in the suit schedule properties. During the course of the arguments of this appeal, the learned counsel for appellants placed on record the order passed by the Land Tribunal. Though this document was not placed before the trial Court and though this document was not part of the evidence, yet a perusal of this order of the Tribunal makes it clear that the suit schedule properties were all granted to the father of the plaintiffs. Though the appellants have placed on record the order passed by the Land Tribunal and Form No.10 in respect of suit items 1 to 32, yet for reasons unknown, neither the defendants 1(a) to 1(c) nor the defendant No.7 placed on record the order of the Land Tribunal by which suit item No.33 was allegedly granted to the husband of defendant No.1. In the 22 circumstances, we are compelled to accept the contention of the plaintiffs that the suit properties were all tenanted lands and that the father of the plaintiffs was cultivating them as a tenant and after the promulgation of the KLR Act, the father of the plaintiffs was conferred occupancy rights in respect of the suit schedule properties. Since the father of the plaintiffs died intestate on 01.04.1989, the plaintiffs, the husband of original defendant No.1 and defendant Nos.2 to 6 were the legal heirs of the deceased Sri Narasimha Venkatesh Kamat.
23. As regards the succession to the said tenanted lands by the plaintiffs upon the death of Sri Narasimha Venkatesh Kamat, the defendants contended that the plaintiffs being daughters of Sri Narasimha Venkatesh Kamat were married prior to 01.03.1974 and therefore, were excluded under the definition of 'family' in terms of clause 12 of Section 2 of the KLR Act. They 23 also placed reliance on Section 24 of the KLR Act to contend that the rights of tenancy can be continued only to the heirs of such tenant on the same terms and conditions on which the tenant was put in at the time of his death to contend that the plaintiffs were not heirs of Sri Narasimha Venkatesh Kamat and thus, were not entitled to any share in the suit properties. Alternatively, it was contended that the plaintiffs were given money in lieu of they relinquishing their shares and that such a relinquishment was done when proceedings before the Tahasildar were pending. It is no doubt true that PW.1 admitted to have received a sum of Rs.2,00,000/- towards relinquishing her share, but she resiled and contended that she had accepted to relinquish her share subject to payment of Rs.5,00,000/- and meeting the cost of construction of a house. At any rate, relinquishment of a property by an undivided owner is to be in writing and is to be registered in accordance with Section 17 of the 24 Registration Act, 1908. The defendants have not placed any convincing material to establish that there was a settlement or relinquishment between the plaintiffs and defendants and therefore, this contention is hard to believe and cannot be accepted.
24. Insofar as the contention that the plaintiffs being daughters, who were married prior to 01.03.1974, and that they were not entitled to inherit the rights of tenancy, the word 'Family as defined in clause (12) of Section of the KLR Act is extracted below:
"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 25 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;
Similarly, Section 24 of the KLR Act reads as under:
"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."
Section 4(2) of the Hindu Succession Act, 1956 is also extracted below:
4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act 26 shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
*(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."
*Sub-Section (2) was omitted by Act 39 of 2005, sec. 2 (w.e.f. 9-9-2005). Sub Section (2), before omission, stood as above.
25. In order to pursue their contentions as stated above, the defendants relied upon the judgment of Division Bench of this Court in the case of Nimbavva 27 and Others vs. Channaveerayya and Others reported in ILR 2013 KAR 6202 to contend that the daughters who were married were not entitled to succeed to tenanted property. The facts of the case on hand and the facts of the case that were involved in Nimbavva's case (referred supra) are completely different. In the cited case, the propositus died on 04.01.1974 i.e., prior to 01.03.1974, which was the appointed date under the KLR Act. One of the sons of the original tenant sought and obtained occupancy rights in respect of the land. It was therefore, pointed out in the cited judgment that the person, who was registered as an occupant became the absolute owner as the married daughters were not entitled to seek occupancy rights as they were not members of a family.
26. In the case on hand, the property in question was admittedly cultivated by Sri Narasimha Venkatesh Kamat as a tenant and he filed an 28 application seeking grant of occupancy rights and the occupancy rights were indeed granted to Sri Narasimha Venkatesh Kamat. Thus the lands that vested in the Government were divested in favour of Sri Narasimha Venkatesh Kamat thus creating a fresh right, title and interest and therefore, these lands became the absolute properties of Sri Narasimha Venkatesh Kamat. He having died intestate on 01.04.1989, there cannot be any doubt that his successors, who are the plaintiffs and the defendant Nos.1 to 6 are entitled to an undivided 1/9th share in the suit schedule properties by operation of Section 8 of the Hindu Succession Act. The defendant Nos.2 and 3 / appellants herein were unable to show any provision in the KLR Act that determined the succession of the lands in question after the death of Sri Narasimha Venkatesh Kamat. As a matter of fact, there is no provision delineating the mode of succession to the lands that are conferred on tenants under the KLR Act and the only substantive provision that 29 determines succession to such properties is section 8 of the Hindu Succession Act, 1956, which is a central legislation.
27. The reliance of the defendant No.3 on section 4(2) of the Hindu Succession Act to contend that the provisions of the said Act would not affect the provisions of any law for the devolution of tenancy rights in respect of such holdings. It is to be noted that section 4(2) of the Hindu Succession Act was omitted with effect from 09.09.2005 and the present suit is filed in the year 2011. In addition, the relief sought for in the suit is not regarding the devolution of tenancy rights but relates to partitioning of an estate subsequent to confirmation of rights of tenancy. Therefore, this argument too does not take the case of the defendants any forward.
28. In this regard, it is profitable to refer to judgment rendered by Full Bench of the Hon`ble Apex Court in the case of N. Padmamma and Others vs. S. 30 Ramakrishna Reddy and others reported in (2015) 1 Supreme Court Cases 417, wherein it is held as under:
"The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj case (Lokraj v. Kishan Lal, (1995) 3 SCC 291), therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj case, does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh Case (Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, (1971) 1 SCC 556). With utmost respect to the Hon`ble Judges who delivered the decision in Lokraj case, the law was not correctly laid down, if the same 31 was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted."
29. In view of the above said discussion, we hold that the impugned Judgment and Decree of the trial Court is proper and correct and does not call for any interference in this appeal and the points for consideration are answered accordingly. Hence, the following :
ORDER This Regular First Appeal fails and is dismissed.
No order as to cost.
Sd/-
JUDGE Sd/-
JUDGE sma