Karnataka High Court
Sri Varghese vs Sri Nagu Shetty on 14 June, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 221 OF 2011 (PAR)
C/W REGULAR SECOND APPEAL NO.222 OF 2011
IN R.S.A.No.221/2011
BETWEEN:
SRI VARGHESE
AGED ABOUT 51 YEARS,
S/O MATHAI,
RESIDING AT
KERVASHE VILLAGE AND POST,
KARKALA TALUK
PIN CODE 574 122
...APPELLANT
(BY SRI K.N.PRAVEEN KUMAR AND
SRI K.AJAYA KUMAR, ADVOCATES)
AND:
1. SRI NAGU SHETTY
Digitally
signed by R SINCE DECEASED BY LEGAL REPRESENTATIVE
MANJUNATHA
Location: 1(a) SUNDARI SHEDTHI
HIGH COURT
OF AGED 51 YEARS
KARNATAKA W/O NAGU SHETTY
RESIDING AT YETHALA GUDDE
5 CENTS COLONY
KERVASHE VILLAGE
KERVASHE POST
KARKALA TALUK - 574 122
2. SRI BABU SHETTY
AGED 56 YEARS,
S/O LATE THANIYA SHETTY,
-2-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
RESIDING AT"HALEKKI HOUSE"
KERVASHE VILLAGE & POST
KARKALA TALUK-574 122
THANIYA SHETTY DEFENDANT NO.1 IN THE TRIAL
COURT AND RESPONDENT NO.1 IN THE FIRST
APPELLATE COURT SINCE DECEASED, HIS LR HAS
ARRAYED AS RESPONDENT NO.2 IN THE APPEAL
3. SRI NAVEEN SHETTY
SON OF LATE JALAJA SHETTY NEE SHEDTHI
RESIDING AT DULIKEPALAV BAR AND RESTAURANT
B P ROAD, BHAYANDAR (E) THANE DIST.
4. SRI BABU SHETTY
SON OF LATE JALAJA SHETTY NEE SHEDTHI
RESIDING AT DULIKEPALAV BAR AND RESTAURANT
B P ROAD, BHAYANDAR (E) THANE DIST.
SMT. KAMALA SHEDTHI
THE DEFENDANT NO.2 IN THE TRIAL COURT AND
RESPONDENT NO.2 IN THE FIRST APPELLATE COURT
SINCE DECEASED HER LR SMT.JALAJA SHETTY NEE
SHEDTHI WAS ARRAYED AS DEFENDANT NO.2(A) IN
THE TRIAL COURT AND AS RESPONDENT NO.2(A) IN
THE FIRST APPELLATE COURT. AS SMT.JALAJA
SHETTY NEE SHEDTHI ALSO SINCE DECEASED HER
LEGAL REPRESENTATIVES ARE ARRAYED AS
RESPONDENT NO.3 TO 4 IN THIS APPEAL.
5. SMT.VASANTHI SHEDTHI
AGED ABOUT 34 YEARS
D/O LATE APPAYYA SHETTY
HINDU BY RELIGION
RESIDING AT KARIYAL HOUSE
NALLUR VILLAGE AND POST
KARKALA TALUK
PIN 574 122
DELETED VIDE ORDER DATED 01.02.2016
-3-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
6. PADMAVATHY
AGED ABOUT 52 YEARS
WIFE OF LATE SUNDARA SHETTY
RESIDING AT HOSAVAKLU HOUSE
KARVASHE VILLAGE AND POST
KARKALA TALUK PIN -574 122
7. PUSHPA
AGED ABOUT 35 YEARS,
DAUGHTER OF SUNDARA SHETTY
RESIDING AT "HOSAVAKLU HOUSE
"KERVASHE VILLAGE AND POST
KARKALA TALUK -574 122
8. YOGISHA
S/O SUNDARA SHETTY
AGED ABOUT 28 YEARS,
RESIDING AT "HOSAVAKLU HOUSE"
KERVASHE VILLAGE AND POST,
KARKALA TALUK-574 122
SRI SUNDARA SHETTY DEFENDANT NO.4 IN THE
TRIAL COURT AND RESPONDENT NO.4 IN THE FIRST
APPELLATE COURT SINCE DECEASED, HIS LEGAL
REPRESENTATIVES HAVE BEEN ARRAYED AS
RESPONDENT NO.6, 7 AND 8, SINCE ONE OF THE
SONS OF SAID LATE SUNDARA SHETTY, STICHIDDU,
WHO WAS ARRAYED AS RESPONDENT NO.4 IN THE
FIRST APPELLATE COURT ALSO SINCE DECEASED AS
A BACHELOR, HIS REVERSIONARY HEIRS ARE
RESPONDENT NO.6, 7 AND 8 IN THIS APPEAL.
9. MARADA SHETTY
AGED ABOUT 54 YEARS,
S/O LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT "PARADIBETTU HOUSE"
NALLUR VILLAGE AND POST
KARKALA TALUK PIN 574 122
-4-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
10. KORPALU SHEDTHI
AGED ABOUT 53 YEARS,
DAUGHTER OF LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT KINYALGUTTHU HOUSE,
NALLUR VILLAGE AND POST
KARKALA TALUK
PIN 574 122
11. KORAGA SHETTY
AGED ABOUT 49 YEARS,
SON OF LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT KINYALGUTHU HOUSE,
NALLUR VILLAGE AND POST
KARKALA TALUK PIN CODE 574 122
12. SANJEEVA SHETTY
AGED ABOUT 47 YEARS,
SON OF LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT"KINYALGUTHU HOUSE,
NALLUR VILLAGE AND POST
KARKALA TALUK-574 122
13. ACHU HENGSU
AGED ABOUT 44 YEARS,
(SHOWN AS DAUGHTER OF LATE RATHI SHEDTHI IN
JUDGEMENT OF OS NO.73/1997 AND SHOWN AS
SON OF RATHI SHEDTHI IN THE JUDGEMENTOF R.A
NO. 589/2005)
R/AT "KINYALGUTHUHOUSE"
NALLUR VILLAGE AND POST
KARKALATALUK PIN CODE 574 122
14 VASANTHA SHETTY
AGED ABOUT 42 YEARS,
SON OF LATE RATHI SHEDTHI
HINDU BY RELIGION, RESIDING AT
"KINYALGUTHUHOUSE"
NALLUR VILLAGE AND POST,
-5-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
KARKALA TALUK -574 122
15. CHUKUDI HENGSU
AGED ABOUT 39 YEARS,
DAUGHTEROF LATE RATHI SHEDTHI
RESIDING AT "KINYALGUTHU HOUSE"
NALLUR VILLAGE AND POST,
KARKALA TALUK- 574 122
16. BHOJA POOJARI
MAJOR, SON OF BABU POOJARI
RESIDING AT "MUCRABAIL HOUSE"
KERVASHE VILLAGE AND POST
KARKALA TALUK -574 122
17. THOMAS
AGED ABOUT 44 YEARS,
SON OF KURIAKOSE,
RESIDING AT KERVASHE VILLAGE AND POST
KARKALA TALUK - 574 122
18. VISHALAKSHI SHEDTHI
AGED ABOUT 34 YEARS,
W/O OF GOPALA SHETTY
HINDU BY RELIGION,
RESIDING AT DARKATH
PADUKONAJE HOUSE,
POST KONAJE,
MANGALORE TALUK PIN CODE-574 199
SRI GOPALA SHETTY SON OF RATHI SHEDTHI
WHO WAS ARRAYED AS DEFENDANT NO.9 IN THE
TRIAL COURT AND RESPONDENT NO.9 IN THE FIRST
APPELLATE COURT, SINCE DECEASED HIS LR IS
ARRAYED AS RESPONDENT NO.18 IN THIS APPEAL.
...RESPONDENTS
(VIDE ORDER DATED 16.12.16, R1(a), R9 and R11 HELD
SUFFICIENT;
-6-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
VIDE ORDER DATED 09.03.2015, R3 AND R4 HELD
SUFFICIENT;
VIDE ORDER DATED 01.02.2016 R5 DELETED;
R2, R6 TO R8, R10, R12, R13 AND R14 TO R18 SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.10.2010 PASSED IN
R.A.NO.589/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE &
ACJM, KARKALA, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 11.4.2005 PASSED IN
O.S.NO.73/1997 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN), KARKALA.
IN R.S.A.No.222/2011
BETWEEN:
SRI THOMAS
AGED ABOUT 44 YEARS
S/O KURIAKOSE
R/AT KERVASHE VILLAGE & POST
KARKALA TALUK PIN CODE-574 122
...APPELLANT
(BY SRI K.N.PRAVEEN KUMAR AND K.AJAY KUMAR, DVOCATES)
AND :
1. SRI NAGU SHETTY
SINCE DECEASED BY LEGAL REPRESENTATIVE
1(a) SUNDARI SHEDTHI
AGED 51 YEARS
W/O NAGU SHETTY
RESIDING AT YETHALA GUDDE
5 CENTS COLONY
KERVASHE VILLAGE
KERVASHE POST
KARKALA TALUK - 574 122
-7-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
2. SRI BABU SHETTY
AGED 56 YEARS,
S/O LATE THANIYA SHETTY,
RESIDING AT"HALEKKI HOUSE"
KERVASHE VILLAGE & POST
KARKALA TALUK-574 122
THANIYA SHETTY DEFENDANT NO.1 IN THE TRIAL
COURT AND RESPONDENT NO.1 IN THE FIRST
APPELLATE COURT SINCE DECEASED, HIS LR HAS
ARRAYED AS RESPONDENT NO.2 IN THE APPEAL
3. SRI NAVEEN SHETTY
SON OF LATE JALAJA SHETTY NEE SHEDTHI
RESIDING AT DULIKEPALAV BAR AND RESTAURANT
B P ROAD, BHAYANDAR (E) THANE DIST.
4. SRI BABU SHETTY
SON OF LATE JALAJA SHETTY NEE SHEDTHI
RESIDING AT DULIKEPALAV BAR AND RESTAURANT
B P ROAD, BHAYANDAR (E) THANE DIST.
SMT. KAMALA SHEDTHI
THE DEFENDANT NO.2 IN THE TRIAL COURT AND
RESPONDENT NO.2 IN THE FIRST APPELLATE COURT
SINCE DECEASED HER LR SMT.JALAJA SHETTY NEE
SHEDTHI WAS ARRAYED AS DEFENDANT NO.2(A) IN
THE TRIAL COURT AND AS RESPONDENT NO.2(A) IN
THE FIRST APPELLATE COURT. AS SMT.JALAJA
SHETTY NEE SHEDTHI ALSO SINCE DECEASED HER
LEGAL REPRESENTATIVES ARE ARRAYED AS
RESPONDENT NO.3 TO 4 IN THIS APPEAL.
5. SMT.VASANTHI SHEDTHI
AGED ABOUT 34 YEARS
D/O LATE APPAYYA SHETTY deleted as per
HINDU BY RELIGION order dtd.01.02.2016
RESIDING AT KARIYAL HOUSE
NALLUR VILLAGE AND POST
KARKALA TALUK
PIN 574 122
-8-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
6. PADMAVATHY
AGED ABOUT 52 YEARS
WIFE OF LATE SUNDARA SHETTY
RESIDING AT HOSAVAKLU HOUSE
KARVASHE VILLAGE AND POST
KARKALA TALUK PIN -574 122
7. PUSHPA
AGED ABOUT 35 YEARS,
DAUGHTER OF SUNDARA SHETTY
RESIDING AT "HOSAVAKLU HOUSE
"KERVASHE VILLAGE AND POST
KARKALA TALUK -574 122
8. YOGISHA
S/O SUNDARA SHETTY
AGED ABOUT 28 YEARS,
RESIDING AT "HOSAVAKLU HOUSE"
KERVASHE VILLAGE AND POST,
KARKALA TALUK-574 122
SRI SUNDARA SHETTY DEFENDANT NO.4 IN THE
TRIAL COURT AND RESPONDENT NO.4 IN THE FIRST
APPELLATE COURT SINCE DECEASED, HIS LEGAL
REPRESENTATIVES HAVE BEEN ARRAYED AS
RESPONDENT NO.6, 7 AND 8, SINCE ONE OF THE
SONS OF SAID LATE SUNDARA SHETTY, STICHIDDU,
WHO WAS ARRAYED AS RESPONDENT NO.4 IN THE
FIRST APPELLATE COURT ALSO SINCE DECEASED AS
A BACHELOR, HIS REVERSIONARY HEIRS ARE
RESPONDENT NO.6, 7 AND 8 IN THIS APPEAL.
9. MARADA SHETTY
AGED ABOUT 54 YEARS,
S/O LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT "PARADIBETTU HOUSE"
NALLUR VILLAGE AND POST
KARKALA TALUK PIN 574 122
-9-
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
10. KORPALU SHEDTHI
AGED ABOUT 53 YEARS,
DAUGHTER OF LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT KINYALGUTTHU HOUSE,
NALLUR VILLAGE AND POST
KARKALA TALUK
PIN 574 122
11. KORAGA SHETTY
AGED ABOUT 49 YEARS,
SON OF LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT KINYALGUTHU HOUSE,
NALLUR VILLAGE AND POST
KARKALA TALUK PIN CODE 574 122
12. SANJEEVA SHETTY
AGED ABOUT 47 YEARS,
SON OF LATE RATHI SHEDTHI
HINDU BY RELIGION,
RESIDING AT"KINYALGUTHU HOUSE,
NALLUR VILLAGE AND POST
KARKALA TALUK-574 122
13. ACHU HENGSU
AGED ABOUT 44 YEARS,
(SHOWN AS DAUGHTER OF LATE RATHI SHEDTHI IN
JUDGEMENT OF OS NO.73/1997 AND SHOWN AS
SON OF RATHI SHEDTHI IN THE JUDGEMENTOF R.A
NO. 589/2005)
R/AT "KINYALGUTHUHOUSE"
NALLUR VILLAGE AND POST
KARKALATALUK PIN CODE 574 122
14 VASANTHA SHETTY
AGED ABOUT 42 YEARS,
SON OF LATE RATHI SHEDTHI
HINDU BY RELIGION, RESIDING AT
"KINYALGUTHUHOUSE"
- 10 -
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
NALLUR VILLAGE AND POST,
KARKALA TALUK -574 122
15. CHUKUDI HENGSU
AGED ABOUT 39 YEARS,
DAUGHTEROF LATE RATHI SHEDTHI
RESIDING AT "KINYALGUTHU HOUSE"
NALLUR VILLAGE AND POST,
KARKALA TALUK- 574 122
16. BHOJA POOJARI
MAJOR, SON OF BABU POOJARI
RESIDING AT "MUCRABAIL HOUSE"
KERVASHE VILLAGE AND POST
KARKALA TALUK -574 122
17. SRI VARGHESE
AGED 51 YEARS
SON OF MATHAI
RESIDING AT KARVASHE VILLAGE AND POST
KARKALA TALUK PIN CODE -574 122
18. VISHALAKSHI SHEDTHI
AGED ABOUT 34 YEARS,
W/O OF GOPALA SHETTY
HINDU BY RELIGION,
RESIDING AT DARKATH
PADUKONAJE HOUSE,
POST KONAJE,
MANGALORE TALUK PIN CODE-574 199
SRI GOPALA SHETTY SON OF RATHI SHEDTHI
WHO WAS ARRAYED AS DEFENDANT NO.9 IN THE
TRIAL COURT AND RESPONDENT NO.9 IN THE FIRST
APPELLATE COURT, SINCE DECEASED HIS LR IS
ARRAYED AS RESPONDENT NO.18 IN THIS APPEAL.
...RESPONDENTS
(R2, R6 TO R10, 12, 13, 15 ARE SERVED;
VIDE ORDER DATED 09.03.2015 NOTICE TO R3 AND R4 HELD
SUFFICIENT;
- 11 -
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
VIDE ORDER 01.02.2016, NOTICE TO R11 AND R14 HELD
SUFFICIENT;
VIDE ORDER DATED 01.02.16 R5 DELETED;
VIDE ORDER 16.02.16, R1(a) HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 20.10.2010
PASSED IN R.A.NO.589/2005 ON THE FILE OF THE SENIOR
CIVIL JUDGE & ACJM, KARKALA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
11.4.2005 PASSED IN O.S.NO.73/1997 ON THE FILE OF THE
PRL. CIVIL JUDGE (JR.DN), KARKALA.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.221/2011 and RSA No.222/2011 are clubbed together and common judgment is passed, since they arise out of common suit.
2. Heard Sri K.N.Praveen Kumar, learned counsel for the appellant. Defendant No.16 is the appellant who is challenging the order passed in R.A.No.589/2005 dated 20.10.2010 on the file of the Senior Civil Judge and ACJM, Karkala, in the present Second Appeal.
3. Facts in brief which are utmost necessary for disposal of appeal are as under:
A suit in O.S.No.73/1997 dated 11.04.2005 on the file of the Prl. Civil Judge (Jr.Dn.), Karkala, came to be filed by Sri
- 12 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 Nagu Shetty, S/o Sesi Shedthi, contending that the Land Tribunal has granted the occupancy rights in favor of Thaniya Shetty and said grant of occupancy rights was for and on behalf of the joint family and therefore, all the members of the joint family have got right, title and interest in the said property and sought for decree of partition and separate possession to the extent of plaintiff's share.
4. Suit was contested not only by the first defendant but also by the fifth defendant-Sri Marda Shetty. Appellant/ defendant No.16 has purchased the property from the first defendant. Appellant in both the appeals purchased a portion in the granted land as per the sale deed dated 16.08.1997.
Suit on contest came to be dismissed.
5. Being not satisfied with the judgment of the Trial Court, plaintiff filed an appeal before the Court of the Senior Civil Judge and ACJM, Karkala, in R.A.No.589/2009. Learned Judge in the Appellate Court secured the records and after hearing the parties, allowed the appeal and decreed the suit as under:
"I.A. No. VI filed under order 6 Rule 17 of C.P.C., I.A. No. VII filed under order 8 Rule 1(3) and Section 151 of C.P.C
- 13 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 and I.A. No. VIII filed under Order 41 Rule 27 and Section 151 of C.P.C., by applicants/respondents No.4(a), (b),
(d), are dismissed.
The appeal filed by the appellant/plaintiff under Section 96 Order 41 Rule 1 to 6 of C.P.C. is allowed.
Consequently the Judgment and Decree dated 11/04/2005 in O.S.No.73/1997 on the life of Principal Civil Judge, Karkala is set aside.
Consequently suit of the plaintiff is decreed.
Plaintiff is entitled for 1/5th share in the plaint 'A' schedule properties by metes and bounds.
Defendant No.1(a) Babu Shetty S/o. Thaniya Shetty is entitled for 1/5th share in the plaint 'A' schedule properties by metes and bounds.
Defendants No.2 Kamala Shedthi, Defendant No.3 Vasanthi Shedthi, Defendant No.14 -Naven Shetty, Defendant No.15-Babu Shetty are together entitled for 1/5th share in the plaint 'A' schedule properties by metes and bounds.
4th defendant -Sundara Shetty is entitled for 1/5th share in the plaint 'A' schedule properties by metes and bounds.
Defendant No.5 Marda Shetty, Defendant No.6 -Koropalu Shedthi, Defendant 7 - Koraga Shetty, Defendant No.8- Sanjeeva Shetty, Defendant No.9-Gopala Shetty (since dead by L.R. defendant No. 18 Vishalakshi Shedthi), Defendant No. 10- Achu Hengsu, defendant No.11 Vasantha Shetty, defendant No.12 Chukudi Hengsu are
- 14 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 together entitled for 1/5th share in the plaint 'A' schedule properties by metes and bounds.
Plaintiff is entitled for profits of income of his share from defendant No. 1(a) from the date of suit till the date of delivery of possession.
There shall be separate enquiry in respect of income of plant 'A' schedule properties in the final decree proceedings.
No order as to cost.
Draw preliminary decree accordingly.
Office to send lower court records with copy of judgment to the lower court forthwith."
6. Before the First Appellate Court, it was the legal representatives of Thaniya Shetty who contested the matter, so also the appellants.
7. The learned Judge in the First Appellate Court, in paragraphs 30 to 39 has held as under:
"30. However P.W.1 in his cross-examination has stated in the presence of Sheshi Shedthi, 1st defendant has obtained suit properties on lease. Further he has deposed that his mother Sheshi Shedthi obtained suit properties on lease about 40 years back. The rent was 9 muras of rice. Geni chit was also executed having obtained lease by her
- 15 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 mother, documents are there. Those documents are handed over to his counsel. Nodoubt geni chit and receipts having paid geni is not produced by the plaintiff. However he deemed the contentions of defendants No.1 and 5 that 1st defendant alone obtained suit properties on lease from landlord, paid rent personally, occupancy right was granted personally in his name.
31. But the plaintiff has produced Ex. P5 declaration in Form No.7 filed by deceased 1st defendant in respect of suit schedule properties. Having filed declaration by 1st defendant is not in dispute. At the time of filing declaration, age of 1st defendant was 65 years as per Ex. P5. The period for which the applicant has been cultivating the land as a tenant shown as 20 years. On the second page of declaration wherein it is shown as mother and five other dependents. Ex.P-6 is the Land Tribunal order dated 30-10-1979 in the name of 1st defendant. Ex.P7 is the notice issued by the plaintiff to 1st defendant. Ex.P9 is the reply wherein 1st defendant has contended that suit properties were obtained personally, he paid rent to landlord, he filed declaration in his individual capacity, occupancy right was granted in his individual name. No other persons are having right, interest. Exs.P10 to Pl6 are the R.T.C. extracts winch are in the name of 1st defendant as per Land Tribunal order. The counsel for appellant has relied rulings 1982 (2) K.L.C. 236 M. Basavaraj Vs. State of Karnataka and others, held "Any member of the Joint Hindu Family is entitled to claim conferment of occupancy right."
- 16 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 ILR 1999 Kaarnataka 831 Balagouda Alagouda Patil and others Vs. Babasaheb Ramagouda Patil held, "Where Tenancy Rights have been acquired by a member of a family, such rights shall be held to be for the benefit of the entire family."
I.L.R. 2000 Karnataka 487 Narayana and others Vs. A. Sadashiva and others held, "Once the occupancy rights are granted, the leasehold right stand converted in to Freehold Rights without affecting the rights of other members of the joint family of which the person to whom occupancy rights are granted is it's a member, and it is always open to the other members to claim their share in a civil court."
32. In the light of above said rulings, in the present case whether Sheshi Shedhi and her children jointly cultivated the suit properties after obtaining lease and paid rent jointly has to be considered. Admittedly the plaintiff has not produced any documents much less the geni chit and rent receipts having paid to the landlord jointly. At the same time though 1st defendant not filed written statement independently, 5th defendant Sundara Shetty filed written statement claiming absolute right over the suit properties, made improvements, grant of occupancy right in his individual name. But on perusal of written statement filed by 5th defendant, it was prepared in the name of 1st defendant. Later on it was altered in the name of 5th defendant. Therefore it can be inferred in
- 17 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 the background of reply given by 1st defendant, 5th defendant has contended that it is personal property of 1st defendant m which plaintiff and other defendants have no right. Even otherwise 1st defendant has not lead evidence though he died before commencement of defendant side evidence, but he should have produced documents much less geni chit and rent receipts having paid exclusively by him nor any other document to show that on his individual capacity he obtained suit properties on lease from landlords. There is no such document from 1st defendant or from 5th defendant.
33. As per the ruling cited supra once occupancy rights are granted to a member of family it ensures to the benefit of entire family. It is always open to other members to claim their share in the civil court. Admittedly before the Land Tribunal neither plaintiff nor other members have filed any application claiming occupancy right nor there is any decision to that effect by the Land Tribunal. If at all there was any decision before The Land Tribunal with regard to rival claimants then the suit for partition before the civil court is not maintainable. But on perusal of Land Tribunal order, there is no such rival claimants decision before the Land Tribunal. Therefore the civil court has got jurisdiction to entertain the suit for partition. As 1st defendant or 5th defendant have not produced documents to show that 1st has obtained suit properties on lease in his personal capacity nor there is any document to show that before obtaining suit schedule properties on lease personally, he was separated from joint family. In the absence of such material or contention
- 18 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 on behalf of defendants No.1 and 5, it could be inferred that there was joint family consisting of Sheshi Shedthi and her children.
34. In this background it is relevant to refer the oral evidence of D.W.1 who is the general power of attorney holder of Sundara Shetty the 5th defendant. She has deposed as averted in the written statement filed by 5th defendant. In the cross-examination of D.W.1 she admits relationship between the parties. Sundara Shetty her husband is sister's son of deceased 1st defendant. She is residing with her husband since from her marriage in the suit properties. Her marriage was also performed in the suit properties. Appi Shedthi sister of 1st defendant was also died prior to marriage in the suit property. It is also admitted that at the time of marriage of D.W.1, Sheshi Shedthi was advanced in age, residing in the suit properties. At the time of her marriage, in the suit properties Thamya Shetty, his mother Sheshi Shedthi, Kamala Shedthi and her son Sooru Shetty and her husband were residing. 5 persons were dependents of deceased 1st defendant. Sheshi Shedthi was not in good health condition. Remaining all the persons were in a common mess, residing in a common residence and common cultivation. Her marriage was performed in the year 1973. So from the above said evidence it is crystal clear that prior to coming into force of Karnataka Land Reforms Amended Act 1974 : when D.W.1's marriage was performed with Sundara Shetty (5th defendant), Sheshi Shedthi, deceased 1st defendant, Kamala Shedthi, Sooru Shetty and Sundara Shetty were residing in the suit
- 19 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 properties and there was common mess. соmmоn residence and common cultivation. Five persons were dependants on deceased 1st defendant.
35. In Ex.P5 declaration form wherein it is mentioned five other dependents and also the mother of deceased 1st defendant. It can be inferred that both Thaniya Shetty, his mother and brothers are residing in the suit properties, joint cultivation, joint residence and common mess. The above said admission explicitly probablises the case of theplaintiff. Above sand admission is not a stray sentence, it is unequivocal admission which probablises the case of the plaintiff that after obtaining lease by Sheshi Shedthi, all are residing jointly, cultivating the suit properties jointly. In Ex.P5 declaration form if really 1st defendant obtained lease personally, he must have mentioned the name of his wife and children. Admittedly name of his wife and children are not mentioned in Ex.P5 declaration. On the other hand D.W.1 who is the witness on behalf of defendants No.1 and 5, has categorically stated live persons were dependants on deceased 1st defendant. The inference is that he was managing the properties on behalf of family who were jointly residing with him.
36. Further in para No.4 of D.W.1's cross-examination she admits that at the time of her marriage Thaniya Shetty was managing and other members were assisting him. Further she deposed that nephews were born and brought up in the said property. In para No.5 one year Narayana Shetty and his nephews went to house of landlord, gave rent, that she had witnessed. So what
- 20 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 more is required when D.W.1 has categorically admitted Thaniya Shetty and his nephews paid rent to landlord which she had witnessed the same. So it clearly supports the case of the plaintiff. The plaintiff also contends, jointly Sheshi Shedthi and her children were cultivating, paid rents to the landlord. When there is clear admission, the admitted facts need not be proved. In para No.5 further D.W.1 has stated that Kittanna Sherigara used to collect rent on behalf of landlords. Thamya Shetty and his nephews were paving rents to said Kittanna Sherigara. At that time Son of 1st defendant was residing at Hekunje separately. In para No.6 of her cross-examination further deposed hat Thaniya Shetty and his nephews collectively paid yearly rent of 8 muras of rice to the landlord. So having paid rent is also admitted by D.W.1 i.e., prior to 1974 Amended Land Reforms Act came into force It cannot be said that D.W.I was not at all aware of the family affairs, since she is the wife of 5th defendant who is none other than the nephew of 1st defendant. So above said admissions probablises the case of the plaintiff, which fact is lost sight by the trial court and ignored the admissions observing that the plaintiff has not established the undivided Hindu Joint family at the time of obtaining suit properties on lease and further observed that no evidence to show that Sheshi Shedti obtained suit properties on lease, Sheshi Shedthi and her children and grand children were cultivating jointly. If the evidence of D.W.1 and Cross- examination admissions are considered that would enough to infer that Sheshi Shedthi and her children and grand children who are residing jointly that too in the suit properties in a common residence, common
- 21 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 mess, cultivating jointly, paying rents jointly to the landlord.
37. Contrary to that no other material document record produced by the defendants. 1st defendant not produced any documents, 5th defendant also not produced any documents. Therefore the trial court completely missed the admissions given by D.W.1. in civil cases the proof is preponderance of probabilities. The admissions given by D.W.1 clearly probablises the case of the plaintiff. 1st defendant neither contended nor produced document to show that before he obtaining suit properties on lease, he was separated from the suit properties nor he has produced any geni chit or rent receipts having obtained personally. On the other hand declaration in Form No.7 which establishes five dependants on him who are his sisters, brothers and nephews. That fact is spoken by D.W.1 who has got personal knowledge about the family of Sheshi Shedthi when she married Sundara Shetty prior to 1974 when Land Reform's Amended Act came into force. Therefore the trial erroneously overlooked the admissions given by D.W.1 and went on discussing with regard to joint family and also the family definitions.. Even those definitions are also taken into consideration and declaration filed by deceased 1st defendant that shows suit properties were obtained on lease by the ancestors. As such ail the children and grand children of Sheshi Shedtini are having right in the suit properties. Even though the occupancy right was granted in the name of 1st defendant, but it ensures to the benefit of all the joint cultivators.
- 22 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011
38. According to the plaintiff when the mother of plaintiff Sheshi Shedthi advanced in age, 1st defendant was allowed to file declaration. When the declaration was filed the age of 1st defendant was 65 years. So 20 years back tenancy was taken that means when Sheshi Shedtii was hale and healthy obtained lease and jointly cultivated by her children and grand children. Therefore the trial court finding that it is personal property of 1st defendant is contrary to oral and documentary evidence, not appreciated the oral and documentary evidence of the parties in proper prospect which needs to be interfered in the finding of lower court. Admittedly deceased 1st defendant was in possession of entire suit schedule property, Plaintiff was residing away. Merely because the plaintiff is not in possession it cannot be said he has no right in the suit schedule property. As per ruling reported in ILR 2007 Karnataka 3455 Rangaswamy Vs. Venkatappa "When once the parties are co-owners, their right to partition cannot be resisted co-sharer in possession would become constructive trustees on behalf of co-sharers who is not in possession and right of such co-sharer would be deemed to be protected by the trustees. The grant of occupancу right in favour of 1st defendant will not change or destroy the right of plaintiff who is co-owner of suit schedule properties."
39. Therefore, in the present case 1st defendant has not produced any document not filed separate written statement, 5th defendant filed written statement, but he
- 23 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 has not stepped into the witness box his wife general power of attorney holder examined as D.W.1. No documents to support the contention of 5th defendant. Furthermore 1st defendant's son filed written statement contending that his father has only 1/5th right in the suit property, he filed declaration for the benefit of other co- sharers. Though he has not entered into witness box, he is not impleaded individually as heir of 1st defendant, he is not expected to plead contrary to that of 1st defendant. Even his written statement is excluded, there is ample evidence on record particularly declaration in form No.7 and oral evidence of D.W.1 which clearly establishes the pliantiff's case that the suit properties were joint ancestral leasehold properties of Sheshi Shedthi, her children and grand children. 1st defendant is dead, his legal heir 1(a) is liable to render accounts of profits to plaintiff of his share from the date of suit till delivery of possession."
8. The said judgment of the First Appellate Court is questioned by the present appellants who were defendant No.16 before the Trial Court and respondent Nos.15 and 16 before the First Appellate Court, on the following grounds:
Whether the First Appellate Court is empowered to treat a Partition Suit as a Suit for determination of title to Plaint 'A' Schedule Properties without payment of prescribed Court Fee by framing Point No.4 reproduced below; especially when there was no prayer for such treatment in the Plaint and no issue was framed to decide the title:-
- 24 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 Quote "4. Whether the Plaint 'A' Schedule Properties are personal properties of 1st Defendant or joint properties of Plaintiff and Defendant?" Unquote Whether the First Appellate Court erred in interpreting the evidence on Issue No.1 to 4 before the Trial Court? being a mixed question of facts and law this ground has to be treated as a question of law. The First Appellate Court ignored the fact that the term 'Family' as defined in Sec. 2(A)(12)(a) of The Karnataka Land Reforms Act, 1961 means "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", and does not include the siblings or their spouses or their linear descendents who have been wrongly declared by the First Appellate Court as being eligible to partake in the 1/5th share of their respective branch.
Whether the First Appellate Court caused miscarriage of justice in its reasoning on Point No.4? The conclusion drawn by it that they are a group or unit, the members of which are by custom, joint in estate or residence, is perverse. There is no proof of any custom. A custom to have the force of law has to be ancient, uniformly followed and not opposed to law or Public Policy.
- 25 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 Being mixed questions of facts and law these are to be treated as questions of law.
Both the Trial Court and the First Appellate Court erred in not considering the claim of the Appellant hereinabove that he is a bonafide Purchaser of the land for value from Defendant No.1, the Vendor, who was the sole and rightful owner of the Plaint "A" Schedule Properties and the sale to him was for bonafide legal necessities of the Vendor. The Preliminary Decree of the First appellate Court ordering the partitioning of Plaint Schedule 'A' Properties into five portions by metes and bounds is perverse as there was no challenge to the sale. Consequently, no issue was framed putting the burden of proof on the Appellant hereinabove.
While the Trial Court has rightly decided Issue Nos.1 to 4, the First Appellate Court caused miscarriage of justice by reversing the findings of the Trial court on all Issues by unjustified inferences, misinterpretation of evidence and not framing a point for determination on whether the Plaintiff is a member of Undivided Hindu Family and arriving at a finding on it. This being a mixed question of facts and law are to be treated as a question of law.
Whether the First Appellate Court misinterpreted the scope of the definition of the terms 'Family' and
- 26 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 'Joint Family' as defined in Section 2(A) (12) (a) and Section 2(A)(17) respectively of the Karnataka Land Reforms Act, 1961 by enlarging its ambit which in the instant case is restricted to an 'Undivided Hindu Family' alone? The case of other persons, a group or unit, the members of which are by custom joint in estate or residence as contemplated in the latter part of the aforesaid Section 2(A)(17) is inapplicable to the parties to O.S.No.73/1997 and R.A.No.589/2005, all of whom, save the Appellant and Respondent No.15 in this Second Appeal, are admittedly governed by Hindu Law and hence the latter part of the definition of the 'joint Family' is inapplicable to them.
Whether the First Appellate Court erred in its interpretation of Section 2(A) (17) ibid by including women such as Sesi Shedthi, the mother of the Plaintiff, and her daughters, Kamala Shedthi, Appi Shedthi and Rathi Shedthi, who could not have been co-parceners in 1974, as women were extended the privileges of co-parcenery only several years later in Karnataka and thereby making its order and Partial Decree perverse?
Whether the First Appellate Court misapplied both the facts and law in its interpretation of Exhibit P-5, namely, the certified copy of the Application dated 22.8.1974 in Form No.7 filed by Defendant No.1, Thaniya Shetty, who had rightly excluded his son
- 27 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 Babu Shetty, who was a major by then, and, hence ineligible to come within the definition of the term 'Family' as defined in Sec.2(A)(12)(a) of the Karnataka Land Reforms Act, 1961?. The valid inclusion of his wife, Koosu on the obverse side of Exhibit P-5 was also made light of by the First Appellate Court with the perverse observation that Thaniya Shetty (Defendant No.1) did not include the name of his wife and son in Form No.5, thereby leading to the making of perverse interpretation of the contents of Exhibit P-5 especially when none of the 'other defendants' was named.
The First Appellate Court gave a perverse finding by holding that the sisters of the Plaintiff and their linear descendants as also the Plaintiff and his brother Appayya Shetty, who were majors and hence not coming within the definition of the 'Family', were members of this Joint Family despite the fact that the definition of 'Family' excludes even major sons and married women.
Whether the Trial Court and the First Appellate Court have the jurisdiction to entertain the Plaint/R.A as Sections 132 and 133 of the Karnataka Land Reforms Act, 1961, have expressly barred the jurisdiction of Civil Courts in the awards of Land Tribunals and anyone aggrieved by the Order of the Land Tribunal, Karkala, should have
- 28 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 taken recourse to the remedies available under the Act?
Whether Nagu Shetty, the Plaintiff in O.S.No.73/1997, has the locus standi to file the Plaint, he being a major, is outside the definition of 'Family' and hence has no cause of action in his favour to file the suit?
Whether the First Appellate Court caused miscarriage of justice by its several observations and findings that the Appellant and Defendant No.17 failed to prove that they were bonafide purchasers for value by ignoring the fact that the Plaintiff Nagu Shetty did not challenge the Sale Deeds in their favour? Neither did he seek any declaration for setting aside the Sale Deeds. The Appellant and the Respondent No. 17 were not required to prove or disprove any Issue.
This Appeal is not barred by limitation, the Appellant hereinabove, having applied for the Certified Copy of the Partial Decree and Order on the R.A. on 19.11.2010, received certified copy only on 23.11.2010, the date on which the copy was ready and delivered."
9. Following substantial questions of law are also raised in the present Second Appeal:
- 29 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011
1. Whether the First Appellate Court erred in treating O.S No.73/1997, a mere partition suit as a suit for determination of title to Plaint 'A' Schedule properties in O.S.No.73/1997 in view of the law laid down in I.L.R 1990 KAR 1401 prohibiting the same?
2. Whether the First Appellate Court erred in treating O.S.No.73/1997, a mere Partition Suit, as a suit for determination of title to Plaint 'A' Schedule properties without payment of prescribed Court Fee by framing Point No.4 on P-13 at paragraph 16.4 of the Judgment in R.A.No.589/2005 reproduced below especially when there was no prayer for such determination of title in the Plaint and no Issue was framed to decide the title?
Quote: "whether the Plaint 'A' Schedule Properties are personal properties of 1st Defendant or joint properties of Plaintiff and Defendant?" Unquote.
3. Whether the Trial Court and the First Appellate Court had jurisdiction to entertain OS No.73/1997 and R.A.No.589/2005 respectively in view of the bar of jurisdiction of Civil Courts by Secs.132/133 of the Karnataka Land Reforms Act, 1961?
4. Whether the bar of limitation applies to OS No.73/1997 and consequently on R.A.No.589/2005 as the Tribunal had granted certificate of registration of a tenant as an occupant under
- 30 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 Section 55(1) of the Karnataka Land Reforms Act, 1961 in favour of Thaniya Shetty (Since Deceased) in his personal capacity on 25.6.1982 and OS No.73/1997 was filed long after the limitation and that too before the Trial Court, whose jurisdiction is expressly barred by Secs. 132/133 of the Karnataka Land Reforms Act, 1961?
5. Whether the First Appellate Court misinterpreted the evidence on Issue Nos.1 to 4 before the Trial Court by ignoring the fact that the item 'Family' as defined in Sec.2(A)(12)(a) of Karnataka Land Reforms Act, 1961 means "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," and does not include the siblings or their spouses or their linear descendants who have been wrongly declared by the First Appellate Court as being eligible to partake in the 1/5th share of their respective branch?
6. Whether the First Appellate Court mis- interpreted the expressions "Joint Family" which means "in the case of persons governed by Hindu Law, an Undivided Hindu Family" by bringing into its fold the latter part of the definition of "Joint Family" which applies to non-Hindus namely, "other persons, a group or unit, the members of which are by custom joint in Estate or Residence, especially in the absence of proof of any customs, which too
- 31 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 have to be ancient, uniformly followed and not opposed to law or public policy?
7. Whether the Appellant herein who is the bonafide purchaser of a part of the Plaint "A" Schedule Properties for value from Defendant No.1 in the Trial Court who was the sole and rightful owner of the Plaint "A" Schedule Properties for his bonafide legal necessities by including the properties so purchased by the Appellant by subjecting it for partition without any issue being framed and putting the burden of proof on the Appellant hereinabove ?
8. Whether the First Appellate Court caused miscarriage of justice by reversing the rightly decided findings of the Trial Court on Issue Nos. 1 to 4 by drawing unjustified inferences, misinterpretation of evidence and not framing a point for determination on whether the Plaintiff in the Trial Court was a member of Undivided Hindu Family of Thaniya Shetty, the Defendant No.1 in O.S.No.73/1997?
9. Whether the First Appellate Court erred in its interpretation of Sec.2(A) (17) ibid of the Karnataka Land Reforms Act, 1961 by including women such as Seshi Shedthi, the mother of the Plaintiff in O.S. No.73/1997 and her daughters Kamala Shedthi, Appi Shedthi and Rathi Shedthi and their liner descendants who could not have been co-parceners of the Hindu Undivided Family
- 32 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 on 22.8.1974 when the Application for occupancy right was filed by Thaniya Shetty for Plaint "A" Schedule properties before the Land Tribunal as women were extended the privileges of co- parcernary only several years later in Karnataka?
10. Whether the First Appellate Court erred in holding that the Plaintiff in O.S.No.73/1997 and his brother Appayya Shetty who were majors and hence not coming within the definition of the 'Family', were the members of a Joint Family despite the fact that the definition of 'Family"
excludes major sons and married women and their linear descendants?
11. Nagu Shetty, the Plaintiff in OS No.73/1997 has the locus standi to file the suit, he being a major is outside the definition of 'Family' and hence had no cause of action in his favour.
12. The Plaintiff Nagu Shetty having not challenged the sale deed in favour of the Appellant, whether the First Appellate Court caused miscarriage of justice by its several observations and findings that the Appellant and Defendant No.17 failed to prove that they were bonafide purchasers for value by ignoring the fact that the Plaintiff Nagu Shetty did not challenge the sale deed in favour of the Appellant and did not seek any declaration for setting aside the sale deeds and consequently there was onus on the Appellant to prove or disprove any issue."
- 33 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011
10. Sri Praveen Kumar, learned counsel for the appellant in both the appeals, reiterating the grounds urged in the appeal memorandum, contended that when once the property was held to be the individual property of the first defendant viz., Thaniya Shetty, he possessed absolute rights in selling the property in favour of the appellant by virtue of the registered sale deed dated 16.08.1997. Therefore, the finding recorded by the First Appellate Court that the occupancy rights granted in favour of the first defendant-Thaniya Shetty is for and on behalf of the joint family is incorrect and therefore, sought for admitting the appeal for further consideration.
11. He also pointed out that if there is any dispute as to grant of occupancy rights, Civil Courts are not having the jurisdiction to entertain such cases and it is only the Land Tribunal which has the jurisdiction, and therefore, the First Appellate Court has erred in allowing the appeal in decreeing he suit and sought for admitting the appeal.
12. In support of his arguments, learned counsel placed on record the judgment of the Hon'ble Apex Court in the case of Mudakappa vs. Rudrappa and others reported in AIR 1994
- 34 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 SC 1190 and invited the attention of this Court to paragraphs 7 and 8 of the said judgment which reads as under:
"7. 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 Section 48-A read with Section 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 Article 227, as the case may be. But it 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 Section 48-A(5) and Section 112-B(bbb) read with Section 133, that the decision of the Tribunal is final under Section 133(iii). 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.
- 35 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011
8. 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 Kant 386 : (1985) 1 Kant LJ 51] . No doubt another Division Bench in Appi Belchadthi v. Sheshi Belchadthi [(1982) 2 Kant LJ 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 the above, we hold that law laid in Appi Belchadthi case [(1982) 2 Kant LJ 565] 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 Machenahalli [(1978) 3 SCC 188 : (1978) 3 SCR 789] 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."
13. Next in line of authorities which the learned counsel for appellant wants to place on record is a Division Bench judgment of this Court in the case of Govinda Naika vs.
- 36 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 Rama Naik reported in ILR 2000 KAR 3305 wherein, it is held as under:
"xxx xxx The jurisdiction of a Civil Court to adjudicate upon matters which the Tribunal could have determined under the provisions of the Act aforementioned stands specifically excluded by Section 133(1) of the Act. The question whether the grant of the rights was for benefit of the individuals or the joint family cannot therefore be raised before a Civil Court. We are supported in that view by the decision of the Supreme Court in Mudakappa vs. Rudrappa reported in AIR 1994 SC 1190. xxx xxx"
14. He also placed on record another Division Bench judgment of this Court in the case of Sanjiva @ Sanjiva Bhandary vs. Vasantha reported in ILR 1990 KAR 1401 wherein, the Division Bench has taken into consideration the interplay of Sections 132 and 133 of the Karnataka Land Reforms Act, 1961, vis-à-vis, civil rights and jurisdiction of the Civil Courts. At paragraph 24 in the said judgment it has been held as under:
"24. It is on sub-section (2) of Section 4 of the Hindu Succession Act that Shri B.P.Holla has laid emphasis and addressed arguments. He contended that B schedule properties being mulgen
- 37 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 properties, which, by family arrangement fell to the share of the branch of Parameshwari Hengsu as the tenant and therefore having regard to the provision made in Section 4 of the Hindu Succession Act, the tenancy was not heritable and as such the award of the Land Tribunal granting occupancy rights both in favour of the plaintiffs and defendants in equal proportions in respect of B schedule properties was without the authority of law and to that extent the Judgment and decree under appeal should be set aside. We do not think there is any force in the contention. Sub Section (2) of Section 4 of the Hindu Succession Act provides that the Succession Act shall not affect the laws providing for the prevention of fragmentation and for devolution of tenancy rights, if such laws were in force for the time being. Therefore, it cannot be said that there was no law providing on the date of the death of Parameshwari Hengsu, for tenancy being heritable. In fact, tenancy was protected and made heritable by suitable legislation in the erstwhile Madras State even before October, 1956 when the Hindu Succession Act came into force. Therefore, we are of the view that the Judgment and decree under appeals has committed no error of law in holding that B schedule properties are also liable for partition between defendants 15, 16 and 17 and the plaintiffs. In fact, that partition has become a superfluity as occupancy rights have been granted by the concerned Land Tribunal having jurisdiction on both the branches of the family of Parameshwari
- 38 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011 Hengsu in equal proportion in accordance with the provisions of the Karnataka Land Reforms Act. If any one is aggrieved by the order of the Land Tribunal, the proper forum to set right such grievance or eliminate that grievance is provided in the Land Reforms Act itself and in these proceedings arising out a partition suit, this Court has no jurisdiction to go into that aspect of the matter and that is yet another reason why this Court should not countenance the argument which has been raised for the first time in this Court. Sections 132 and 133 of the Karnataka Land Reforms Act totally bars the jurisdiction of the Civil Court. That must have been the reason why defendant 15 did not pursue his applications for amendment of written statement and additional evidence."
15. This Court bestowed its best attention to the material on record, meticulously, in the light of the principles of law enunciated in the aforesaid decisions.
16. On such perusal of the material on record, it is crystal clear that before the Land Tribunal, Ex.P.5 was the declaration made by Thaniya Shetty. In the back side of the said declaration, defendants' family members are also mentioned by Thaniya Shetty wherein plaintiff's name is also found apart from name of the mother.
- 39 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011
17. The genealogy that has been produced before the Trial Court reads as under:
SHASHI SHEDTHI Thaniya Appayya Nagu Shetty Kamala Appi Rathi Shetty Shetty Son Son Respondent Shedthi Shedthi Shedthi Son (dead) (dead) No.1 in RSA Daughter Daughter Daughter (dead) (dead) By his LR By her LR By His LR Kamala Sooru By her LR Babu By Her LRs.
Shetty Shedthi Shetty Sundara
1.Marda Shetty
Son Wife(dead) Son (Dead) Shetty
Son Res-6 in RSA
Resp.2(a) Son 2.Koropalu Shedthi
in RSA (Dead)
By her LRs Daughter Res-7 in
RSA
3.Koraga Shetty
By his LRs Son-Resp-8 in RSA
4.Sanjeeva Shetty
Jalaja Shedthi Vasanthi Shedthi
Son-Resp-9 in RSA
Daughter Resp-4 in
Daughter (Dead) 5.Gopala Shetty-
RSA 1. Padmavathy-Wife
Son (Dead)
Resp-5(a) in RSA By his LR
2. Pushpa -Daughter Vishalakshi
Resp5(b) in RSA Shedthi-Wife-Resp-
3. Chiddu-Son (dead) 16 in RSA
Resp-5(c) in RSA 6. Achu Hengsu-
4. Yogisha -Son Daughter
By her LRs Resp.No.11 in RSA
Resp-5(d) in RSA
1. Naveen Shetty -Son 7.Vasantha Shetty-
Resp-3(b) in R.S.A Son Resp.No.12 in
2. Babu Shetty -Son RSA
8.Chukudi Hengsu-
Resp-3(c) in R.S.A
Daughter Resp.
No.13 in RSA
9.Bhoja Pujari -
Son Resp.No.14 in
RSA
- 40 -
NC: 2024:KHC:23467
RSA No. 221 of 2011
C/W RSA No. 222 of 2011
18. There is no dispute as to the relationship among the parties. Before the Land Tribunal, in the absence of any rival claim and revenue records showing that it was Thaniya Shetty who was in cultivation of the land as on 01.03.1974, occupancy rights in respect of suit properties was granted in the name of Thaniya Shetty.
19. However, it is settled principles of law and requires no emphasis that the grant of occupancy rights in favor of an individual member of a joint family would not become individual property of that individual, but it will enure to the benefit of all the members of the joint family.
20. Therefore, the property that is in the name of Thaniya Shetty is not the individual or absolute property of Thaniya Shetty, but it is the property of the joint family.
21. When such is the legal and factual aspect of the matter, Thaniya Shetty did not possess the absolute right to alienate the property in favour of the appellants. In the sale deed executed by Thaniya Shetty in favour of appellants, at the most, right of Thaniya Shetty will be transferred.
- 41 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011
22. As a matter of fact, appellants having purchased a portion of the joint family property, should have filed a suit for general partition. Instead, they contested the suit. The learned Trial Judge without noticing the settled legal position, wrongly dismissed the suit of the plaintiff.
23. However, the learned Judge in the First Appellate Court, as is held in the impugned judgment referred to supra, has discussed not only the point of law, but also the effect of declaration filed by Thaniya Shetty vide Ex.P.5. Taking note of his age as on the date of Ex.P.5 came to the categorical conclusion that there was no rival claim filed by any of the members of the joint family before the Land Tribunal.
Therefore there was no difficulty in granting occupancy rights in favour of the first defendant-Thaniya Shetty. But grant of occupancy right in the name of Thaniya Shetty did not grant absolute right in favour of Thaniya Shetty, but it is for and on behalf of the joint family. As such, the first Appellate Court rightly held that the alienation made by Thaniya Shetty would not bind the plaintiff and other members of the joint family.
- 42 -
NC: 2024:KHC:23467 RSA No. 221 of 2011 C/W RSA No. 222 of 2011
24. Insofar as the decisions relied upon by the learned counsel for the appellants is concerned, the principles stated therein is not in dispute at all. But, in the case on hand, the dispute was not before the Land Tribunal inter se. It is only after the grant, the joint family property was sought to be partitioned among the members of the joint family. Therefore, the principles of law enunciated in the aforesaid judgment relied on by the learned counsel for the appellant would not enure to the benefit of the appellant in further considering the substantial questions of law raised in the appeal memorandum.
25. Accordingly, the following:
ORDER
(i) Substantial questions of law does not merit further consideration.
(ii) Accordingly, admission declined. Both the appeals are dismissed.
(iii) In view of dismissal of the appeals, Misc.Cvl.Nos.1877/2011 in RSA No.221/2011 and Misc.1872/2011 are also dismissed.
Sd/-
JUDGE kcm List No.: 2 Sl No.: 31