Karnataka High Court
Rashid Hamid S/O Madarsab @ Murtujasab ... vs Allabax S/O Imamsab Jamadar @ Jumanal on 25 January, 2024
-1-
NC: 2024:KHC-K:1036
RSA No. 7140 of 2008
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7140 OF 2008 (DEC)
BETWEEN:
1) RASHID HAMID S/O MADARSAB
@ MURTUJASAB JAMADAR @ JUMANAL,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O TAKKE, BIJAPUR.
2) BANDENAWAJ S/O MADARSAB
@ MURTUJASAB JAMADAR @ JUMANAL,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O TAKKE, BIJAPUR.
3) SMT. JAIBUNNISA W/O MADARSAB
@MURTUJASAB JAMADAR @ JUMANAL,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O TAKKE, BIJAPUR.
Digitally
signed by
LUCYGRACE 4 SMT. RAJAKAB,
Location:
HIGH W/O HUSENSAB HAWALDAR,
COURT OF
KARNATAKA AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O TAKKE, BIJAPUR.
5 SMT. RASULABI W/O AYUB SHEKH,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O RAMAWADI RAILWAY STATION,
SOLAPUR.
6 SMT. DULHANBI
W/O BANDENAWAJ JAMADAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O TAKKE, BIJAPUR.
-2-
NC: 2024:KHC-K:1036
RSA No. 7140 of 2008
7. SMT. JAMELA
W/O MOHAMMED HUSAIN IMARATWALE
@ MUJAWAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O TORVI ROAD,
NEAR AL-AMEEN MEDICAL COLLEGE,
BIJAPUR.
8. SMT. SHABANABEGAM
W/O SAHEBLAL SANGAPUR,
ATE: MAJOR, OCC: HOUSEHOLD WORK,
R/O ATALATTI,
TAL. & DIST. BIJAPUR.
9. SMT. NAJEEMABEGAM
W/O MURTUJSAB JUMANAL @ JAMADAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O MULLA ENTERPRIES, TORAVI ROAD,
NEAR AL-AMEEN MEDICAL COLLEGE,
BIJAPUR.
...APPELLANTS
(BY SRI. R. J. BHUSARE, ADVOCATE)
AND:
1) ALLABAX
S/O IMAMSAB JAMADAR @ JUMANAL,
AGE: 47 YEARS, OCC: MECHANIC,
R/O GUMBAJ GALLI,
HAIM CHOUK, BIJAPUR.
2) JAFARSAB
S/O IMAMSAB JAMADAR @ JUMANAL,
AGE: MAJOR, OCC: CYCLE REPAIR,
R/O GUMBAJ GALLI, HAKIM CHOWK,
BIJAPUR.
3) SMT. GOUSHABI
W/O GOUSALAJUM MUJAWAR,
-3-
NC: 2024:KHC-K:1036
RSA No. 7140 of 2008
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O GUMBAJ GALLI, HAKIM CHOWK,
BIJAPUR.
4) CHANDABI
W/O IMAMSAB JAMADAR,
AGE: 92 YEARS, OCC: HOUSEHOLD WORK,
R/O GUMBAJ GALLI,
HAKIM CHOWK, BIJAPUR.
5) NABISAB
S/O MOHAMMADASAB JAMADAR,
(SINCE DECEASED REPRESENTED BY HIS L.RS)
5(A) JANNATBEE W/O AMEERBEG HAWALDAR,
SINCE DECEASED REP. BY HER LRS
1. LALBAIG HAMEEDBAIG HAWALDAR,
AGED ABOUT 52 YEARS, OCC: AGRICULTURE,
R/O AT POST AFZALPUR TAKKE,
TQ./DIST. VIJAYAPUR.
2. RASULBAIG HAMEEDBAIG HAWALDAR,
AGED ABOUT 50 YEARS, OCC: AGRICULTURE,
R/O AT POST AFZALPUR TAKKE,
TQ./DIST. VIJAYAPUR.
3. KJAJABEE BANDENAWAZ WALIKAR,
AGED ABOUT 48 YEARS, OCC: HOUSEWIFE,
R/O AT POST AFZALPUR TAKKE,
TQ./DIST. VIJAYAPUR.
4. SAYYADBAIG HAMEEDBAIG HAWALDAR,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O AT POST AFZALPUR TAKKE,
TQ./DIST. VIJAYAPUR.
5. HEENAKAUSAR SHABBIRSAB,
AGED ABOUT 35 YEARS, OCC: HOUSEWIFE,
NAGARBOUDI OPPOSITE BADIKAMAN,
TQ./DIST. VIJAYAPUR.
-4-
NC: 2024:KHC-K:1036
RSA No. 7140 of 2008
5(B) MURTUSAB S/O NABISAB ZAMADAR,
SINCE DECEASED REP. BY HIS LRS
1. SMT. KHAZABI W/O MEHBOOBSAB HYDRA,
AGED ABOUT 45 YEARS, OCC: HOUSEWIFE,
AT POST KHYADGI,
TQ. INDI, DIST. VIJAYAPUR.
2. KHAJAAMEEN MURTUSAB JAMADAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
AT POST AFZALPUR TAKKE,
TQ./DIST. VIJAYAPUR.
3. SMT.SHAMSHAD KARIMSAB
HATTARKIHAL INDUSTRIAL AREA,
AGE: 42 YEARS, OCC: HOUSEWIFE,
R/O PLOT NO.18 & 19,
SIMIKERI HIGHWAY ANNIGERI BYPASS,
NAVANAGAR, BAGALKOT.
4. MOHAMAD HANIF MURTUSAB JAMADAR,
AGED ABOUT 30 YEARS, OCC: AGRICULTURE,
AT POST AFZALPUR TAKKE,
TQ.DIST. VIJAYAPUR.
5. MAINUDDIN MURTUSAB JAMADAR,
AGED ABOUT 25 YEARS,
AT POST AFZALPUR TAKKE,
TQ.DIST. VIJAYAPUR.
6. GOUSE MURTUSAB JAMADAR,
AGED ABOUT 23 YEARS,
AT POST AFZALPUR TAKKE,
TQ./DIST. VIJAYAPUR.
7. SMT. SAIRA BANU
W/O HUSSAINSAB MULLA,
SINCE DECEASED REP. BY HER LRS.
A. HUSSAINSAB S/O MAKTUMSAB MULLA,
AGE: MAJOR, OCC: NOT KNOWN,
AFZALPUR TAKKE, WARD NO.2, VIJAYPUR.
-5-
NC: 2024:KHC-K:1036
RSA No. 7140 of 2008
B. SMT. SANA W/O ASIF JAMADAR,
AGE: 27 YEARS,
R/O NEAR APMC ATHANI,
POST ATHANI, DIST. BELAGAUM.
C. SALMAN S/O HUSSAINSAB MULLA,
AGE: 22 YEARS, OCC: NOT KNOWN,
R/O WARD NO.2, AFZALPUR TAKKE,
VIJAYAPUR.
5(C) MALNBEE JANGLISAB MULLA,
AGE: 52 YEARS, OCC: HOUSEWIFE,
R/O AFZALPUR TAKKE,
TQ./DIST. BIJAPUR.
6) SMT. MAMATAJABEGUM
W/O MAIBUBSAB DONUR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O KHAJA AMEEN DARGA, BIJAPUR.
...RESPONDENTS
(SRI. R. S. SIDHAPURKAR, ADVOCATE FOR
R-1 TO R-3, R-5(A)(1) TO R-5(A)(5), R-5(B)(1) TO
R-5(B)(6), R-5(B)(7)(A) TO R-5(B)(7)(C) AND R-5(C);
R-4 AND R-6 ARE SERVED, BUT UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION OF 100 OCC CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 15.10.2008 PASSED BY THE
2ND ADDITIIONAL DISTRICT JUDGE, BIJAPUR, IN
R.A.NO.06/2003.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-6-
NC: 2024:KHC-K:1036
RSA No. 7140 of 2008
JUDGMENT
This appeal is preferred by defendant Nos.2 to 4 and 6 to 11/appellants, challenging judgment and decree dated 15.10.2008 in R.A.No.06/2003 on the file of II Addl. District Judge, Bijapur (for short 'First Appellate Court'), confirming the judgment and decree dated 03.07.2003 in O.S.No.250/1996 on the file of II Addl. Civil Judge (Sr.Dn.), Bijapur (for short 'Trial Court'), decreeing the suit of the plaintiff in part.
2. For the sake of convenience, the parties in the appeal shall be referred to in terms of their status and ranking before the Trial Court.
3. It is the case of the plaintiffs that, one Mohammadsab S/o Imamsab Jamadar was the original propositus and he had three sons and three daughters. Plaintiff Nos.1 to 3 are the children and plaintiff No.4 was the wife of Imamsab Jamadar (first son of Mohammadsab Imamsab Jamadar). Defendant No.1 is the second son of Mohammadsab Imamsab Jamadar. Defendant Nos.2 and 3 -7- NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 are the children of Madarsab @ Murtujasab Jamadar (second son of Mohammadsab Imamsab Jamadar). It is stated by the plaintiffs that, the grandfather of plaintiff Nos.1 to 3 - Mohammadsab Imamsab Jamadar was owner of the house property at Takke, Bijapur and also the tenant of the land bearing Sy.No.722 measuring 24 acres 30 guntas of Mahalbagayat, Bijapur. It is also stated by the plaintiffs that, the grandfather of plaintiff Nos.1 to 3 was cultivating the land in question as a protected tenant and therefore, after the death of father of plaintiff Nos.1 to 3, the plaintiffs are entitled for share in the schedule property. It is the grievance of the plaintiffs that, the father of defendant Nos.2 and 3 (Madarsab @ Murtujasab Jamadar) has filed Form No.7, seeking grant of occupancy right in respect of the subject matter of the land, not being a tenant, under the provisions of the Karnataka Land Reforms Act and therefore, the grant of land made by the Land Tribunal in favour of the said Madarsab @ Murtujasab Jamadar is based on filing of Form No.7 and the said property is jointly in cultivation by all the sons of -8- NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 Mohammadsab Imambsab Jamadar (protected tenant) and accordingly sought for share in the suit schedule property.
4. On service of notice, defendants entered appearance and filed detailed written statement. Defendant No.1 has supported the case of the plaintiffs, however, the defendant Nos.2 to 4 and 6 to 11 have opposed the plaint averments and took up a contention that the father of defendant Nos.1 and 2 - Madarsab @ Murtujasab Jamadar alone filed application for grant of occupancy rights, as he was cultivating land in question as on 01.03.1974 and accordingly urged that the plaintiffs are not entitled for share in the property in question. It is also averred in the written statement that, Imamsab (father of plaintiff Nos.1 to 3) has executed sale-cum- relinquishment deed dated 05.09.1958 in favour of defendant No.1 and the father of defendant Nos.2 and 3 and therefore, sought for dismissal of the suit.
5. Based on the pleadings on record, the Trial Court framed the issues for its consideration. -9-
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008
6. In order to substantiate their case, plaintiffs have examined four witnesses as PW.1 to PW.4 and got marked 15 documents as Exs.P1 to P15. The defendants have examined four witnesses as DW.1 to DW.4 and got marked 82 documents as Exs.D1 to D82.
7. The Trial Court after considering the material on record, by its judgment and decree dated 03.07.2003, decreed the suit of the plaintiff in part, holding that the plaintiffs and defendant No.1 are having 1/3rd share each in schedule (B) properties and feeling aggrieved by the same, defendants 2 to 4 and 6 to 11 have filed R.A. No.06/2003 before the First Appellate Court and the appeal was resisted by the plaintiffs and defendant Nos.1 and 5.
8. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 15.10.2008, dismissed the appeal, consequently, confirmed the judgment and decree passed by the Trial Court in O.S. No.250/1996. Feeling aggrieved by the
- 10 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 same, defendant Nos.2 to 4 and 6 to 11 have filed this Regular Second Appeal.
9. This Court by order dated 30.03.2010, formulated the following substantial questions of law for consideration:
"1. Whether the Courts below could accept that there was a concept of joint family amongst Mohamadens?
2. Whether the Courts below have considered whether a suit for partition, claiming equal share by a Mohamaden, was maintainable?"
10. I have heard Sri Ameet Kumar Deshpande, learned Senior Counsel appearing on behalf of Sri R.J. Bhusare, learned counsel for the appellants and Sri R.S. Sidhapurkar, learned counsel appearing for R1 to R3, R5(A) (1) to R5(A) (5), R5(B) (1) to R5(B) (6), R5(B) (7)(A) to R5(B) (7)(C) and R5(C).
11. Sri Ameet Kumar Deshpande, learned Senior Counsel appearing for the appellants contended that, both the Courts below have failed to consider that the father of
- 11 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 defendant Nos.2 and 3 - Madarsab @ Murtujasab has filed Form No.7, seeking occupancy rights, as he alone was cultivating the land in question and in this regard, the defendants have produced the RTC extracts from the year 1953 onwards and the said aspect has not been properly considered by both the Courts below. He further submitted that, though the grandfather of defendant Nos.2 and 3 - Mohammadsab Imamsab Jamadar was cultivating the land and after his death, cultivation column in the record of rights shows as '¸Àzg À 'À and thereafter, the record of rights reflects the name of father of defendant Nos.2 and 3 and therefore, he contended that finding recorded by both the Courts below is not correct. He also refers to Ex.D1- Mutation Entry and Ex.D56 - proceedings initiated by the landlords against the tenant namely, Murtujsa Mahammadsa Jumnal for resumption of the land would clearly establish that the land in question was in cultivation by father of defendant Nos.2 and 3 as the separate acquired property and not as alleged by the
- 12 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 plaintiffs and accordingly, sought for interference of this Court.
12. Nextly, Sri Ameet Kumar Deshpande, learned Senior Counsel argued that, the Civil Court has no jurisdiction to decide the rights of the plaintiffs, as the Land Tribunal alone is having jurisdiction to decide the said lis between the parties and in this regard, he places reliance on the judgment of the Hon'ble Supreme Court in the case of R. Ravindra Reddy and Others v. H. Ramaiah Reddy and Others reported in AIR 2010 SC 991 and argued that, the Civil Court has no jurisdiction to decide the question pertaining to whether the plaintiffs are in possession of land in question or the plaintiffs are entitled for share in the tenanted property. He also made an emphasise on the judgment rendered by the Honble Supreme Court in the case of Mudakappa s. Rudrappa and others reported in AIR 1994 SC 1190 and argued that the judgment and decree passed by the Courts below are required to be set aside.
- 13 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008
13. Per contra, Sri R.S. Sidhapurkar, learned counsel appearing for R1 to R3, R5(A) (1) to 5(A) (5), R5(B) (1) to 5(B) (6), R5(B) (7) (A) to 5(B) (7)(C) and R5(C) sought to justify the impugned judgment and decree passed by the Courts below. It is the submission of the learned counsel appearing for the contesting respondents that, though the concept of joint family is not applicable to the Mohammedans, however, the land in question was being in cultivation by Mohammadsab Imamsab Jamadar and after his demise, all the three sons of Mohammadsab Imamsab Jamadar were cultivating the land in question as joint tenants and as the Madarsab @ Murtujasab was only a literate member in the family, he was allowed to file Form No.7 seeking occupancy rights before the Land Tribunal and therefore, he contended that, after the demise of Mohammadsab Imamsab Jamadar, the land in question shall devolved among all the sons, including the father of plaintiff Nos.1 to 3, defendant No.1 and the father of defendant Nos.2 and 3. In this regard, he places reliance on the judgment of the Division Bench
- 14 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 of this Court in the case of Narayanappa vs. Doddapattabhi in R.F.A No.1420/2012 disposed of on 10.03.2016. He also refers to the judgment of this Court in the case of Moulansab vs. Chittavali @ Chittasab in RSA No.200288/2022 disposed of on 03.11.2022 and argued that the Civil Court alone is having a jurisdiction to decide the lis between the plaintiffs and defendants and further the tenanted land should be devolved upon all the children of Mohammadsab Imamsab Jamadar and accordingly, sought for dismissal of the appeal by urging that, the concurrent findings of facts have reached finality and therefore, no interference is called for in this appeal.
14. Having heard the learned counsel appearing for the parties, the core questions to be answered in this appeal are as follows:
1. Whether the Trial Court is having jurisdiction to entertain the relief sought for by the plaintiffs?
- 15 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008
2. Whether the plaintiffs are entitled for share in the tenanted property?
15. In order to answer the aforementioned aspects, the relevant undisputed fact is the relationship between the parties. The genealogical tree of the parties is as follows:
Mohammadasab Imamsab Jamdar Imamsab Nabisab Madarsab Hajaratbi Rasulbi Jaitunbi (Died) Deft-1 @Murtujasab (Died) (Died) (Died) Issueless Allabax Jafarasab Gousabi Pltff-1 Pltff-2 Pltff-3 Rashid Hamid Bandenwaz Deft-2 Deft-3
16. Perusal of the genealogical tree would indicate that, the grandfather of the plaintiffs - Mohammadsab Imamsab Jamadar had three sons and three daughters.
- 16 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 First son - Imamsab (father of plaintiff Nos.1 to 3), second son - Nabisab (defendant No.1) and third son - Madarsab @ Murtujasab (father of defendant Nos.2 and 3). Plaintiff No.4 is the mother of plaintiff Nos.1 to 3. Defendant No.4 is the mother of defendant Nos.2 and 3. The grandfather of plaintiffs had house properties and also having the land property namely, land bearing Sy. No.722 measuring 24 acres 30 guntas of Mahalbagayat, Bijapur, which is a tenanted property and subject matter of the suit. It is the case of the plaintiffs that, the grandfather of the plaintiffs was in cultivation and after his death, the plaintiffs are entitled for share in the subject land. On the other hand, the contesting defendants claim that, the property was belonging to Madarsab @ Murtujasab, as he filed Form No.7 before the Land Tribunal, seeking occupancy rights. On the other hand, defendant No.1 - Nabisab (second son of Mohammadsab Imamsab) claims that the subject matter of the suit is in cultivation by his father and after his death, father of plaintiff Nos.1 to 3, himself and father
- 17 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 of defendant Nos.2 and 3 are entitled for share in the property.
17. Perusal of Ex.D59, order dated 09.09.1976 passed by the Land Tribunal, Bijapur would indicate that Venkatesh Kalakeri was landlord of the subject land and the Land Tribunal has recorded a finding that the applicants are protected tenants (¸ÀAgÀQëvÀ PÀļÀ) from 1953 till the date of order and as such, the Land Tribunal granted occupancy right to Madarsab @ Murtujasab, who had filed application seeking occupancy rights. Perusal of the material produced by the parties particularly, Ex.P3 - record of rights for the year 1953-54, where name of Mohammadsab Imamsab Jamadar was shown in the cultivators column and the same was reiterated in the year 1958-59 (Ex.P3) and for the year 1965-66 (Ex.P4), 1966- 67 (Ex.P6) and 1975-76 (Ex.P5), the name of the grandfather of plaintiff Nos.1 to 3 and defendant Nos.2 and 3 was shown as a protected tenant (¸ÀAgÀQëvÀ PÀļÀ). However, name of father of defendant Nos.2 and 3 -
- 18 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 Madarsab @ Murtujasab reflected in Ex.P7 for the year 1975-76 onwards. Taking into consideration that the Land Tribunal by its order dated 09.09.1976 at Ex.D.59 has noted that the applicant is a protected tenant (¸ÀAgÀQëvÀ PÀļÀ) and having tallied with the revenue records produced at Ex.P3, where the father of Madarsab @ Murtujasab namely, Mohammadsab Imamsab Jamadar was also identified as a protected tenant, it may be concluded that the land in question was in cultivation by Mohammad Imamsab Jamadar and after his demise, all the children of Mohammadsab Imamsab Jamadar were cultivating the same as co-tenants and as Madarsab @ Murtujasab being a literate person in the family was allowed to file Form no.7 seeking occupancy rights. The said aspect has also been deposed by DW.1 that, all the three brothers namely, father of plaintiff Nos.1 to 3, defendant No.1 and father of defendant Nos.2 and 3 are in joint cultivation of land in question and as the father of defendant Nos.2 and 3 was
- 19 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 a literate person in the family, he was allowed to file Form No.7.
18. At this juncture, it is contended by the learned Senior Counsel appearing for the appellants that the Trial Court has no jurisdiction to entertain the plaint. In this regard, it is relevant to cite the judgment of the Hon'ble Apex Court in the case of Mudakappa (supra), wherein at paragraphs 7 to 9, it is held as under:
"7. In Chapter III heading is conferment of ownership on tenants. A conspectus of the provision establishes the gamut of operation of the Act, namely, conferment of ownership of tenancy rights of the lands vested in the State Govt. The pre- existing right, title and interest of the landlord in relation to the lands in possession of the tenant., even against whom a decree or order for eviction or a certification for assumption was made or issued immediately prior to the date of the commencement of the Amendment Act other than the lands held by them under leases permitted under S. 5, with effect on and from the said date. i.e. March 1. 1974 stand transferred to and vested in the State Government. In other words the pre- existing relationship of the tenant with the landlord
- 20 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 stood extinguished from the date of vesting in the State Govt. By operation of non obstante clause of sub-s. (2) of S. 44. the lands which were resumed by or in any contract, grant or other instrument or in any other law for the time being in force with effect on and from the date of vesting and save as otherwise expressly provided in the Act shall cease. The consequences enumerated thereunder shall ensue, namely, all rights, title and interest held by the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Govt. free from all encumbrances. Consequently the pre-existing right, title or an interest of the owners of such lands shall cease and be vested absolutely in the-State Government free from all encumbrances- Pending finalisation of the registration with the State Govt. of a tenant, his possession of the land is protected and he should not be dispossessed. Section 45 gives right to the tenant to be registered as an occupant of land on specified conditions enumerated in S.45 and the provisions of the succeeding Chapter. Every tenant who is personally' cultivating the land shall, with effect from the date of vesting, be entitled to be registered as an occupant in respect of the lands of which he was a permanent tenant, protected tenant or other tenant or sub-tenant before the date of vesting. The pre-
- 21 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 existing tenancy rights with predecessor landlord have been extinguished and new rights have been created by the statute which would be ensued under the Act creating direct tenancy relationship with the State as a tenant. Section 48A constitutes the forum and enjoins it to enquire into the application registered by it. It should direct every person entitled to be registered as an occupant under S. 45 to make an application to the Tribunal in that behalf within the time specified thereunder. On receipt of such application, the Tribunal should publish or cause to be published a public notice in the village in which the land is situated calling upon the landlord and all other persons having an interest in the land to appear before it on the specified date. personal notice shall be served on the persons named in the application or otherwise found to be entitled to be heard. By operation of Explanation II to S. 2(11) if the land is being cultivated by or on behalf of the joint family or by any one of the members of the joint family, it should be deemed that the Joint family is personally cultivating the land. The joint family is, there fore, the tenant and the land is lawfully in occupation of the joint family as a tenant. Sub-section (5) of S. 48A postulates that when an objection is filed disputing the validity of the applicant's claim or set up a rival claim, the Tribunal shall, after enquiry,
- 22 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 determine, by order, the person entitled to be registered as tenant and pass orders accordingly. Therefore, when rival claims were set up for tenancy' right and entitlement for registration, it is incumbent upon the Tribunal to enquire into the dispute and to decide the same in the prescribed manner. Thereon an order should accordingly be made by' the Tribunal and it would become final. Thereby it is clear that the Act extinguishes the pre-existing right, title and interest of the land owners as well as those who were inducted into possession by the erstwhile land holders. The new rights have been created in the Act itself in favour of the tenants in personal cultivation to claim registration as tenants so as to continue to enjoy the occupancy rights as a tenant as enumerated under S. 45. A forum was created and the forum is enjoined to enquire into not only the nature of the land but also the entitlement for registration as a tenant. When inter se rival claims for tenancy rights have been set up, it has been empowered with jurisdiction to decide that question as to who is the tenant in possession of the land prior to the date of vesting and entitled to be registered as a tenant with the State Govt. and its decision shall be final. The Civil Court's jurisdiction under S. 9 of CPC by necessary implication, therefore, stood excluded.
- 23 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008
8. It is seen that the words 'tenant', 'the Tribunal', and 'the joint family' have been defined under the Act. If one of the members of the family cultivates the land, it is for and on behalf of the joint family. Under these circumstances, pending the suit, when the question arose whether the appellant or Joint family is the tenant, that question should be decided by the Tribunal alone under S. 48A read with S. 133 and not by the Civil Court. It is needless to mention that when the Tribunal constituted under the Act has been invested with the power and jurisdiction to determine the rival claims, it should record the evidence and decide the matter so that its correctness could be tested either in an appeal or by judicial review under Article 226 or under Art. 227, as the case may be. But that cannot, by necessary implication, be concluded that when rival claims are made for tenancy rights, the jurisdiction of the Tribunal is ousted or its decision is subject of the decision once over by the Civil Court. It is clear from S. 48A(5) and S. 112B(bbb) read with S. 133, that the' decision of the Tribunal is final u/S. 133(ii). The Civil Court has power only to decide other issues. It is, therefore, difficult to accept the contention that the rival claims for tenancy rights or the nature of the tenancy are exclusively left to be dealt with by the Civil Court.
- 24 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008
9. We entirely agree that the division bench laid down the law correctly. It was followed by another division bench in Guruvappa v. Manjappu Hengsu, ILR (1985) Karnataka 386. No doubt another division bench in Appi Belchadthi v. Sheshi Belchadthi, (1982)2 Karnataka U 565 had taken a different view and held that the Civil Court has jurisdiction to decide the question regarding the tenancy on behalf of the Joint family and the Tribunal has no jurisdiction to go into the question. in the light of above, we hold that law laid in Appi Belchandthi's case is not a good law. The view we have taken is also consistent with the law laid down by this Court in Noor Mohd. Khan Ghouse Khan Soudagar v. Fakirappa Bharmappa Machenaballi. (1978) 3 SCR 789 : (AIR 1978 SC 1217) though arose in execution. Therein the question though was not directly in issue but this court had held that when exclusive jurisdiction has been conferred on the Tribunal to decide the questions arising under the Act, Civil Court has no jurisdiction and the question has to be decided only by the Tribunal constituted under the Act."
19. It is also relevant to extract the judgment of the Hon'ble Apex Court in the case of R. Ravindra Reddy
- 25 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 (supra), wherein paragraph 30 of the judgment reads as under:
"30. It is clear from the above that the jurisdiction of the Civil or Criminal Court or Officer or Authority stood ousted in matters where a decision had to be taken as to whether the land in question was agricultural land or not and whether the person claiming to be in possession is or is not a tenant of the said land from prior to lst April, 1974. In the instant case, the question as to whether Annaiah Reddy was an occupancy tenant or not and whether Pilla Reddy had given his consent to such claim is in the domain of the Land Tribunal and it has been correctly held by the Courts below that the Civil Court had no jurisdiction to decide such a question."
20. In the aforementioned judgments, undisputably, the parties are Hindus. It is well settled principle of law that, if the land is a tenanted land and if the said land is cultivated by the member of the joint family, the same has to be identified as a joint family property. It is to be noted that, there is no quarrel with regard to accepting the dictum of Hon'ble Supreme Court
- 26 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 stated above. The Land Tribunal has jurisdiction to decide the confirmant of occupancy rights, however, in the case on hand, it is not the question relating to decide the tenancy right of the applicant and landlord, on the other hand, the question to be decided is interse devolution of tenanted property by the tenant/protected tenants. Therefore, I am of the view that, the aforementioned judgments are not applicable to the case on hand. In the present case, the relief sought for by the plaintiffs is partition and separate possession in respect of tenanted land said to have been cultivated by Mohammadsab Imamsab Jamadar. In this regard, it is apt to cite the judgment of the Hon'ble Supreme Court in the case of Balawwa and Another vs Hasanabi and others reported in ILR 2000 KAR 4809 wherein, the Hon'ble Apex Court has referred to the judgment of Mudukappa (supra) and at paragraphs 5 to 8, held as under:
"5. The learned Counsel for the appellants raised two contentions for assailing the decree of the High Court (1) The Civil Court itself has no
- 27 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 jurisdiction in view of the Special Tribunal created under the Land Reforms statute and (2) assuming the Civil Court has the Jurisdiction, but in view of the finding that the plaintiff is not a member of the family, the order of the Tribunal granting right of occupancy in favour of defendants 1 and 3 will not ensure to the benefit of the plaintiff and therefore. the decree of partition could not have granted. In support of the first contention reliance has placed on a decision In of this Court t in MUCAKAPPA vs RUDRAPPA AND OTHERS (1994 (2) SCC 57).
6. The learned Counsel for the respondents, on the other hand, refuting the contention raised, relied upon the decision of this Court in the case of ABDUL INAMDAR (DEAD) BY LRS. AND OTHERS vs HARUN ABDUL INAMDAR AND OTHERS (1995 (5) SCC 612) wherein this Court has held that in case of abolition of inam, the right granted must be held to be in favour of the group of people who would have otherwise been eligible for a right in the property in question.
7. Having examined the provisions of the Karnataka Land Reforms Act and aforesaid two judgments of this Court, we have no doubt in our mind that the Civil Court cannot be said to be ousted of the jurisdiction, in granting the relief sought for. It is too well settled that when special
- 28 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 Tribunal is created under a Special Statute and the jurisdiction of the Civil Court is sought to be ousted under the said statute, it is only in respect of those reliefs which could be granted by the Special Tribunal under the Special Statute, the jurisdiction of the Civil Court cannot be said to be ousted.
8. Looking at the provisions of Section 48-A of the Karnataka Land Reforms Act and the relief which is sought for in the present case, it is difficult to hold that the Tribunal had the jurisdiction to grant the said relief so as to oust the jurisdiction of the Civil Court. Under Section 48-A, the Tribunal can only grant the relief of declaring the occupancy right in favour of an appellant provided the pre- conditions for the same are satisfied, namely, that the land was in the possession of the tenant concerned on the relevant date. That being the position and the Tribunal under the Land Reforms Act not having the jurisdiction to grant relief of partition, the Civil Court itself has the jurisdiction to entertain the suit for partition. The first contention of the learned Counsel for the appellants is, therefore, devoid of any force."
21. Applying the aforementioned principle to the case on hand, I am of the view that, the Civil Court has jurisdiction to grant relief to the parties in a suit relating to
- 29 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 partition and separate possession between the children of the original tenant, like in the present case, the children of Mohammadsab Imamsab Jamadar and therefore, the jurisdiction of Civil Court cannot held to be ousted. At this juncture, it is relevant to cite the judgment of this Court in the case of Narayana and Others vs A. Sadashiva and Others reported in ILR 2000 KAR 487, wherein, paragraph 5 reads as under:
"5. Apparently, the decision in ILR 1994 KAR 2327 was rendered in a pending matter and all the observations in that pending matter related to the jurisdiction of the Civil Court to decide the issue when rival claims to tenancy were raised. In the instant case, the contention is that the tenancy claimed by the first respondent was for and on behalf of the joint family and so the plaintiffs are entitled to a share in the properties in respect of which occupancy rights are already conferred on husband of the first respondent by the Land Tribunal. Apparently the Land Reforms Act contains no provision for reviewing the claim or for recalling the claim for tenancy rights, after a long distance of time as in this case, to consider the only question as to whether the tenancy on the basis of which
- 30 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 occupancy rights were conferred, were joint family rights or individual right. It is essentially a question of fact as to whether the tenancy rights on the basis of which the first respondent sought and obtained occupancy rights was a joint family tenancy or not and it is for the Trial Court to decide the issue when the proceedings before the Land Tribunal stood terminated long before the litigation in question. Apparently the decision in ILR 1994 KAR 2327 (Mudukappa's case) case would apply to matters which are only pending and not in respect of matters which are concluded as in this case. In the circumstances, the order made by the learned District Judge setting aside the judgment and decree in OS 266/83 and directing the Trial Court to reopen the matter for disposal in accordance with the decision in ILR 94 KAR 2327 cannot be sustained and is set aside. The learned District Judge shall consider the matter on merits and dispose of the same in accordance with law."
22. The Full Bench of this Court in the case of Booda Poojary vs Thomu Poojary reported in I.L.R. 1992 KAR 1359 at paragraph 9 held as under:
"9. The argument of Sri G.S.Visveswara, that the Tribunal had no jurisdiction to decide as to whether the lands in question were joint family
- 31 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 properties or exclusive properties belonging to the persons, cannot be accepted because the Tribunal was not called upon to decide these rights, but the Tribunal was called upon to decide, only the rival claims of tenancy for the purpose of grant of occupancy rights, which was precisely done by the Tribunal and Appellate Authority in the instant case."
23. It is also relevant to follow the dictum of Hon'ble Supreme Court in the case of N. Padmamma and Others vs. S. Ramakrishna Reddy and Others reported in (2015) 1 SCC 417, wherein, the question is pertaining to the division of Inam land between the members of the joint family in terms of the provisions of Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 and paragraphs 9 to 15 of the said judgment reads as under:
"9. From a reading of Section 3 supra, it is manifest that all inam lands stand vested in the State of Andhra Pradesh with effect from 20-7- 1955, the date when the Act came into force. Even so, it is common ground that the inam land in dispute had continued to be in possession of Ramachandra Reddy till his demise in the year 1968 whereupon the rights and privileges in regard
- 32 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 to the same including those that would have entitled Ramachandra Reddy to claim occupancy rights under the Act on account of his being in cultivating occupation of the land on the date of the vesting were inherited by his legal heirs - the parties to this appeal. Respondent 1, it is noteworthy, was the only male member in the family left behind by the deceased. Any a recognition of his being in possession and personal cultivation of the land held by his father was, in the absence of any plea or proof of ouster, to be taken as cultivation on behalf of the entire family, and not in his individual capacity. We say so because the demise of Ramachandra Reddy, the original occupant of the land, could not on any juristic principle grant exclusivity to his son (Respondent 1 in this appeal) to claim the right to possession or b cultivation of the land which Ramachandra Reddy held in his individual capacity and which upon his demise would logically and as a matter of course devolve upon the legal heirs left behind by him in equal share. The status of Respondent 1 as a legal heir of the deceased was no better than other legal heirs of Ramachandra Reddy. Grant of occupancy rights to Respondent 1 as the only male member of the family, could not result in the extinction of the rights of the appellants who had an equal claim in no way inferior to that of Respondent 1 to succeed
- 33 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 to the estate left behind by the deceased including succession to all such rights that may have been inchoate on the date of the demise of Ramachandra Reddy but as could result in a beneficial grant in his favour based on his being an inamdar. That the family was joint on the demise of Ramachandra Reddy is not in dispute. That it was dependent upon the land is also not in dispute. In the absence of any evidence much less cogent and credible one to establish ouster of the other members of the Ramachandra Reddy's family it is difficult to appreciate how Respondent 1 could claim the legacy of Ramachandra Reddy whether in regard to the property owned by the deceased or the rights which the deceased had as an occupant. The reference order is, therefore, right when it says:
(N. Padmamma v. S. Ramakrishna Reddy, (2008) 15 SCC 517, SCC p. 526, para 18) "18. Right of inheritance and succession is a statutory right. A right in a property which is vested in terms of the provisions of the Hindu Succession Act cannot be taken away, except in terms of provisions of another statute, which would have an overriding effect. Such special statute should be a complete code. It shall ordinarily be a later statute. Ordinarily again it must contain a non obstante clause."
- 34 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008
10. It is fairly well-settled principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. [See Corea v. Appuhamy, 1912 AC 230 (PC)]. Reference may also be made to the decision of this Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 wherein this Court has succinctly summed up the legal position as under: (AIR p. 318, para 4) "4. ... But it is well settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co- heirs. When one co-heir is found to be in
- 35 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
11. Relying upon the principles stated above, this Court in Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee, (1971) 1 SCC 556, almost in similar circumstances held: (SCC p. 561, para 10) "10. ... In this case we have to consider whether the appellants had laid a claim which a co-sharer could not put forward except by pleading ouster or any other independent ground. Even if they were in actual Khas possession within the meaning of Section 2(k) of the Act it must be held that the plaintiff who was a co-sharer was in constructive possession through the appellants as 'under the law possession of one co-sharer is possession of all the co-sharers'. We see no
- 36 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 reason to hold that the observations of this Court to the above effect in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 are not applicable to the case before us. The appellants do not claim to be trespassers on the property: neither did they claim any title to the lands adversely to the plaintiff- respondent. The deeming provision of Section 6 must therefore ensure for the benefit of all who in the eye of the law would be regarded as in actual possession. It follows f that the plaintiff had not lost his share in the Bakasht lands and had a right to them though not as tenure-holder or proprietor but certainly as a Raiyat under the provisions of the Land Reforms Act. The appeal must therefore be dismissed with costs."
12. In Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil, 1989 Supp (1) SCC 246, this Court was dealing with inam lands held by the ancestors of the appellants under Vat Hukums of Kolhapur State. The ancestors of the appellant were holding the watan (inam) land in lieu of service and as they were holding in the capacity of watan or inam, they were impartible. The trial court decreed the suit for partition in regard to watan land. In an appeal before the High Court of Bombay, the Division
- 37 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 Bench of that Court held that when watan (inam) a rights were abolished, all rights including the right of partition also stood abolished. A three-Judge Bench of the High Court of Bombay overruled the view in another case holding that in view of abolition of inam, the properties enure for enjoyment of the members of the family who are entitled to claim partition. This Court held:
(Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil, 1989 Supp (1) SCC 246, SCC p. 250, para 13)
"13. ... These watan lands continued to be the hereditary property of the family although according to the custom the watan was only in the name of the senior member of the family and the succession according to the custom was in accordance with rule of primogeniture. ... for the first time under this Act these watans were abolished and the lands were converted into ryotwari lands and therefore it became partible."
13. The decisions in Kalgonda case and Nagesh Bisto Desai case were followed in Shivappa Tammannappa Karaban v. Parasappa Hanaттaрpa Kuraban, 1995 Supp (1) SCC 162. That was a case arising under the Karnataka Village Offices Abolition Act, 1961. Re-grant was made in that case in the name of the former holder of the village office as a
- 38 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 watandar. This Court held that just dbecause the grant was made in the name of watandar, did not mean that the properties ceased to be joint family properties.
14. In Lokraj v. Kishan Lal, (1995) 3 SCC 291 also this Court was dealing with abolition of inam under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. A suit for partition of the inam land was filed which was contested on the ground that abolition of the pre-existing right, title and interest of e inamdar and grant of occupancy right to the occupant of the land disentitled anyone to claim a partition of such land. This Court while holding that the suit was not maintainable on account of abolition of pre-existing right, title and interest of the inamdar, observed: (SCC p. 293, para 4) "4. Consequent to the abolition, the pre-existing right, title and interest of the inamdar or any person having occupation of the inam lands stood divested and vested the same in the State until re-grant is made. The inamdar, thereby lost the pre-existing right, title and interest in the land. The right to partition itself also has been lost by the statutory operation unless re-grant is made. We are not concerned with the consequences
- 39 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 that would ensue after re-grant of this appeal. Therefore, it is not necessary for us to go into the question that may arise after the re- grant."
15. It is evident from the above that the right of partition was held to have been lost by operation of law. Till such time the grant was made no such right could be recognised, observed this Court. This Court specifically held that it was not concerned with the consequences that would ensuc after grant is made. 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 b Respondent I was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon 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. With utmost respect to the Hon'ble Judges who delivered the decision in Lokraj case, the law was not
- 40 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 correctly laid down, if the same 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."
24. Though the aforementioned decision is pertaining to the division of properties amongst the members of the joint family of Hindus, it may be fairly held that, if the possession of one of co-heirs is considered as possession of all co-heirs, then it is to be presumed that, all the co-heirs are in joint possession and title of the subject land in a case relating to division of properties by the members of the family.
25. Having discussed the rights of the parties as stated above and the finding recorded by the Trial Court, and thereafter the First Appellate Court re-appreciating the entire material on record in thread bear, rightly concluded that the plaintiffs are entitled for share in the tenanted property of Mohammadsab Imamsab Jamadar and therefore, the substantial questions of law favours the
- 41 -
NC: 2024:KHC-K:1036 RSA No. 7140 of 2008 plaintiffs and therefore, the defendants have not made out a case for interference in this appeal.
In the result, the appeal fails and is accordingly dismissed.
Sd/-
JUDGE LG List No.: 1 Sl No.: 34