Karnataka High Court
Venkatesh Shet vs Padmavathi on 17 January, 2024
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO. 3094 OF 2007 (PAR)
BETWEEN:
1. VENKATESH SHET,
SINCE DECEASED
AGED ABOTU 60 YEARS,
S/O DEVANNA SHET,
SECURITY GUARD, LAKSHMINDRANAGAR,
THENKANIDIYUR VILLAGE, UDUPI TQ-575 101,
POST KROADASHRAMA.
1(a) GIRIJA @ SANKI,
1(b) ASHOKA,
1(c) GULABI,
1(d) RAJIVI
1(e) JEEVAN
1(f) MAHADEVI
1(g) ANANDA
1(a) TO 1(g) ARE ALL MAJORS,
WIDOW AND CHILDREN OF
LATE VENKATESH SHET,
R/AT LAKSHMINDRANAGAR,
TENKANIDIYUR VILLAGE,
UDUPI TALUK POST,
KROADASHRAM - 575 101.
2
2. GOPALA SHET (SINCE DECEASED)
AGED ABOUT 66 YEARS,
R/AT MAYAGUNDI IN PUTTUR VILLAGE,
UDUPI TALUK, POST PUTTUR.
2(a) RUKMAVATHI SHET
2(b) VEENA SHET
2(a) & 2(b) ARE MAJORS,
WIDOW AND DAUGHTER OF
LATE GOPAL SHET,
R/AT SAGRI OF SHIVALLI VILLAGE,
UDUPI TALUK, POST: KUNJUBETTU,
UDUPI - 575 002.
3. BHAVANI BAI (SINCE DECEASED)
AGED ABOUT 65 YEARS,
D/O DEVANNA SHET.
3(a) SHANKARA
3(b) KRISHNABAI
3(a) & 3(b) ARE CHILDREN OF
BHAVANI BAI,
R/AT MAYAGUNDI, PUTTUR VILLAGE,
UDUPI TALUK - 575 006.
4. PADMANABHA SHET (SINCE DECEASED )
AGED ABOUT 60 YEARS,
4(a) MOHAN SHET
4(b) MALATHI
4(c) REVATHI
4(d) BHARATHI
3
4(e) JYOTHI
4(a) TO 4(e) ARE MAJORS,
CHILDREN OF LATE PADMANABA SHET,
R/AT MAYAGUNDI, APPATHUR VILLAGE,
UDUPI TALUK & DIST. - 575 005.
...APPELLANTS
[BY SRI V.S. HEGDE, ADVOCATE (PH)]
AND:
1. PADMAVATHI,
AGED ABOUT 63 YEARS,
WIDOW OF SRINIVASA SHET,
2. MOHINI,
AGED ABOUT 43 YEARS,
3. SUMATHI,
AGED ABOUT 40 YEARS,
4. SULOCHANA,
AGED ABOUT 37 YEARS,
5. JAYANTHI,
AGED ABOUT 33 YEARS,
6. RAMANI,
AGED ABOUT 29 YEARS,
NOS.2 TO 6 ARE CHILDREN OF
SRINIVASA SHET, LAND OWNERS
R/IN MAYAGUNDI OF PUTTUR VILLAGE,
UDUPI TALUK, POST PUTTUR - 575 101.
7. SUNDARA,
8. KASTURI,
NOS. 7 & 8 ARE CHILDREN OF
4
BHAVANI BAI, R/AT MAYAGUNDI,
PUTTUR VILLAGE, UDUPI TALUK - 575 101.
...RESPONDENTS
[BY SRI SAMPAT ANAND SHETTY, ADVOCATE FOR R2 TO R6 (PH);
SRI T.V. NANJEGOWDA & SRI VISHWANATHA K., ADVS., FOR
R7 & R8; APPEAL IS DISMISSED AS ABATED AGAINST DECEASED
R1 V/O DATED 21.04.2016]
THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF
CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 05.09.2007
PASSED IN R.A.NO.9/96 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT, UDUPI, PARTLY ALLOWING THE APPEAL AND MODIFYING
THE JUDGMENT AND DECREE DATED 11.9.95 PASSED IN O.S.574/90 ON
THE FILE OF THE II ADDL. MUNSIFF, UDUPI, D.K.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.07.2023, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging judgment and decree dated 05.09.2007 passed by Presiding Officer, Fast T rack Court, Udupi, in R.A.no.9/1996 ('First Appellate Court' for short) to extent it mo dified judgment and decree dated 11.09.1995 passed by II Additional Civil Judge (Jr.Dn.), Udupi ('Trial Court' for short), in O.S.574/1990, this appeal is filed.
2. Appellants herein are legal representatives of original plaintiff, defendants no.7, 8 and 9 respectively, while respondents no.1 to 6 herein were defendants no.1 5 to 6 in Original Suit and respondents no .7 and 8 herein are also legal re presentatives of deceased defendant no.8, since did not chose to join appellants we re arrayed as proper parties. Above parties shall hereinafter be referred to accordingly.
3. Brief facts of case are that plaintiff filed O.S.no .574/1990 seeking for partition of 1/5 t h share of plaintiff in plaint 'A' schedule pro perties by metes and bounds having regard to nature of soil along with share of profits at four muras of rice per year and fo r mesne profits till delivery of possession of plaintiff's share etc.
4. In plaint, it was state d that defendant no.1 was widow and defendants no.2 to 6 were daughters of Srinivasa She t and defendants no.7 to 9 we re children of Devanna Shet. It was stated that all of them were residing in Mayagundi, Puttur village and de fendant no.9 was working as Peon in Taluk Office, Udupi. It was stated that plaintiff, Srinivasa Shet and defendants no.7 to 9 were grand-children o f late Baba Naika through his daughter 6 Puthu Bai. Said Baba Naika was chalage ni tenant of plaint 'A' schedule properties (he reinafter 'schedule properties' for short) belonging to Mayagundi Ramachandra Bhatta. After his death, schedule properties came to possession of his daughte r Puthu Bai, who continued enjoying said properties on chalageni under owner by executing necessary chalageni chits.
5. Thereafter, due to partition in family of land owner, different shares in schedule properties came to be assigned among children of landlord. For ease of payment of rent, responsibility was fixed on Srinivasa Shet and his mother Puthu Bai, who jointly executed chalageni chits in favour of two landlo rds namely Lakshminarayana Bhatta and Krishna Bhatta. During oldage of Puthu Bai, Srinivasa Shet was managing properties on her behalf and after coming into force Karnataka Land Reforms Act, 1961 ('LR Act' fo r short) filed application for grant of Occupancy Certificate be fo re Land Tribunal, Udupi on behalf of joint family. It was furthe r stated that Occupancy Certificate 7 granted to Srinivasa Shet by Land Tribunal was for and on behalf of himself, his mother and brothers and sisters. Same was clear from statements of Srinivasa Shet and Puthu Bai made before Tribunal. It was stated that in any case, since schedule pro pertie s were originally held by Sri Baba Naika as chalageni tenant, upon grant of Occupancy Certificate, the y devolve d upon plaintiff and all defendants and not only in favour of family of Srinivasa Shet.
6. It was stated that though due to inadvertence plaintiff in his notice demanding partitio n had referred to schedule properties as belonging to his 'paternal' instead of mate rnal grand-father, claim of defe ndants no.1 to 6 that Srinivasa Shet himself had taken schedule properties on chalageni from landlords was not justified and plaintiff, Srinivasa Shet and defendants no.7 to 9 also had equal share in schedule properties. Even asse rtion that plaintiff and defendants we re not in possessio n was incorrect. It was however stated that merely on ground that Srinivasa 8 Shet was managing schedule prope rties, paying revenue assessment, re nt etc., he did not acquire exclusive right.
7. It was further stated that as income from family properties was not sufficient to maintain family, plaintiff had gone to Sholapur to earn livelihood and supplement in family income. After his return, he also re sided with his mother for some time and living separately at time of her death. Like wise, defendants no.7 to 9 though residing separately were visiting their mothe r and sometimes living with her. It was stated that schedule properties were enjoyed jointly till death of mother in year 1980. Thereafter, Srinivasa Shet started showing indifferent attitude, therefore, plaintiff got issued legal notice claiming share in movable and immovable pro perties, but was not pressing claim for share in movables. It was stated that denial of share by Srinivasa Shet in reply notice gave rise to cause of action for filing suit.
8. Upon service of suit summo ns, defendant no.1 filed writte n statement denying plaint averments and 9 alleging suit as false and vexatious filed in collusion with defendants no.7 to 9. Age of defendant no.7 was claimed to be 71 years, while that of defendants no.5 and 6 was stated to be 28 and 24 years respectively. Description of schedule properties in plaint 'A' sche dule was denied. It was admitted that Baba Naika mate rnal grandfathe r of plaintiff and defendants no .7 to 9 was chalageni tenant of schedule properties, under Mayagundi Vasudeva Bhatta, but not under Mayagundi Ramachandra Bhatta. After death o f Vasudeva Bhatta, Puthu Bai, daughter of Baba Naika and he r son Srinivasa Shet executed chalageni chits in favour of Laxminarayana Bhat and Krishna Bhat sons of Vasudeva Bhatta in respe ct of properties allotted to them in family partition out of chalageni properties of Baba Naika. After death of Baba Naika, Srinivasa Shet was in exclusive possession, cultivating schedule properties and paying rent to landlords. It was stated that Puthu Bai was never interested in chalageni properties, as she was looked after by Srinivasa She t and was included in chalageni chit no minally.
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9. Defendants specifically denie d that Puthu Bai came into possession of schedule properties afte r death of Baba Naika or that she executed chalageni chits in favour of Mayagundi Ramachandra Bhatta and that said person was not owner of schedule prope rties. It was specifically stated that plaintiff and defendants no.7 and 9 were residing separately, since more than 30 ye ars and defendant no.8 was residing with her husband. Though, they visited Puthu Bai occasionally and after 1967 they stopped and about six years prio r to her death, their mother had become totally blind. Plaintiff and defendants no.7 to 9 did not either pay any amount to their mother during her lifetime or spent any amount to wards her obsequies after he r death. It was stated that Srinivasa Shet was in exclusive possession and enjo yment of schedule properties since about 18 years prior to death of Puthu Bai and as such acquire d title to sche dule properties by adverse possession, prescription and limitation to knowledge of all concerned. 11
10. It was also stated that Srinivasa She t had filed application for grant of occupancy rights in respect of schedule properties in his individual capacity and for bene fit o f his family consisting of himself, his wife and three of his then unmarried daughters. The refore, grant by Land Tribunal, Udupi, was exclusively to him and his family. Denying claim of plaintiff being in co nstructive possession of schedule properties, it was stated that Srinivasa Shet had renovated house at cost of Rs.8,000/- borrowed from son of elder sister of defendant no.1 namely Vasudeva Prabhu and discharged said debt in phased manner prior to his death. Therefore, alternatively defendants no .1 to 6 were entitled for compensation towards improvements made.
11. It was also stated that plaintiff's mother Puthu Bai disliked plaintiff, as he had a kept-mistress belonging to Billava co mmunity and residing separately with her since last 30 years. His claim of having gone to Sholapur as per instructions of Puthu Bai was denied. It was also 12 stated that defendant no.8 was residing in house constructed by Srinivasa Shet with his pe rmission. It was stated that gross income from schedule properties was only 14 muras of rice. Therefore, plaintiff was not entitled for relief.
12. Defendants no.2 to 6 filed memo adopting written statement of defendant no .1.
13. Based on pleadings, trial Court framed following issues and additional issues:
1. Whether the plaintiff proves that the occupancy right in respect of 'A' schedule property granted to Srinivasa Shet as the Manager of the family for and on behalf of the family?
2. Whether the plaintiff proves that he has got 1/15th share in plaint 'A' schedule property?
3. Whether the plaintiff proves that he is entitled to share of profits at 4 Muras of rice per year for the last 3 years prior to the suit?
4. Whether the plaintiff proves that he is entitled to mesne profits from the date of suit till the date of delivery of 'A' schedule property? If so, at what rate?
5. What order or decree?13
Additional Issues:
1. What is the correct description of the plaint 'A' schedule properties?
2. Whether the defendants 1 to 6 prove that Srinivasa Shet had acquired an exclusive challenging title to the properties in question by adverse possession, prescription and litigation as contended in para 6 of the 1st defendant's written statements?
3. Whether the defendants 1 to 6 prove that the order of the Land Tribunal, Udupi referred to in the plaint enures to the benefit of only Srinivasa Shet and his wife and children?
4. Whether the defendants 1 to 6 prove that they are entitled to the compensated for the improvements as contended in para 11 of the 1st defendant's written statement?
5. What is the correct income of the plaint 'A' schedule properties?
6. Whether the suit has not been property valued for court fee and jurisdiction?
14. During trial, two witnesses we re examine d by plaintiff as PW s 1 and 2 and got marked Exs.P1 to P11; while defendant no.1 was examined as DW.1 and Exs.D1 to D46 got marked.
15. On consideration, trial Court answered issues no.1 to 3 and additional issues no.1 and 6 in affirmative, 14 issue no.4 was kept open for final decree proceedings, while additio nal issues no.2 to 5 were answere d in negative. Based on said findings, issue no.5 was answered by decreeing plaintiff's claim for 1/5 t h share, defendants no.1 to 6 together entitled for 1/5 t h share and defendants no.7 to 9 for 1/5 t h share each in schedule properties apart from two muras of rice per year for three ye ars prior to suit.
16. Aggrieved thereby, defendants no .1 to 6 preferred RA.no.9/1996 on ground that judgment and decree of trial Court was contrary to law, facts of case and evidence on reco rd rende red without proper appreciation and without framing proper issues. It was also contended that trial Court had failed to appreciate distinction between joint pro perty and joint family property and between 'family' and 'joint family' as defined in LR Act. That trial Court erred in holding that on death of Baba Naika chalageni interest in schedule properties devolved on his daughter Puthu Bai and thereafter to her 15 childre n by succession which was contrary to Mithakshara law of succession prevailing prior to coming into force of Hindu Succession Act, 1956 ('HS Act' for short). That trial Court ought to have held Srinivasa Shet perfected his title by adverse possession, prescription and limitation due to exclusive possession from order of Land Tribunal dated 24.12.1975.
17. It was also contende d that trial Court failed to note that there was no joint Hindu undivided family in existence and therefore chalageni interest in sche dule properties would devolve on her death as pe r Sections 8 and 19 of HS Act. It was further contended that trial Court erred in inte rpreting word 'kutumba' used in Ex.P4 as meaning joint family of plaintiff and defendants, instead of family of Srinivasa Shet only. It erred in not noticing presumption available under Section 133 of Karnataka Land Reve nue Act, 1964 ('KLR Act' for sho rt) in respect of entries in Exs.P5 to P8, Exs.D37 to D39 and Exs.D41 to D44 and failed to note that name of Puthu Bai was 16 entered nominally in Exs.P10 and P11. It was co nte nded that trial Court failed to draw adverse infe rence against plaintiff, defendants no.7 & 9 for failure to depose before Court. Therefore, findings on issues were erroneous and contrary to material on record calling for interfe rence.
18. Based on contentions urged, first Appellate Court framed following points for its conside ration:
"1. Whether the order of the Land Tribunal in granting occupancy right of the suit properties in favour of the family of the first defendant's husband has enured to the benefit of the plaintiff and defendant nos.7 to 9 also?
If not, whether what is the right, title or interest of the plaintiff and defendant nos.7 to 9 in the suit properties consequent to the death of Puthu Bai intestate?
2. Whether the impugned judgment and decree need any interference?
3. What order?"
19. On consideration, first appellate Court answered point no.1 by modifying share s of plaintiff and defendants no.1 to 9 as entitled for 1 /10 t h share each, point no.2 in affirmative and point no.3 by allowing appe al in part as above.
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20. Aggrieved by judgment and decree passe d by first appellate Court, plaintiff and defendants no.7 to 9 have preferred this second appeal.
21. Appeal was admitted on 22.05.2012 to co nsider following substantial questions of law:
"(i) Whether the First Appellate Court is justified in holding that the order of Land Tribunal as at Ex.P1, granting occupancy rights in respect of the suit properties in favour of the 1st defendant's husband, will not enure to the benefit of plaintiff and defendants no.7 to 9?
(ii) Whether the finding of the lower appellate Court that the severance of joint family status takes place by separate residence?"
22. Sri V.S.Hegde, learned counsel for plaintiff and defendants no.7 to 9 - appellants herein submitted that suit was filed for partition and separate possession of plaintiff's 1/5 t h share in schedule properties. It was submitted that trial Court by considering material on record had arrived at proper conclusion. However, based on erroneous conclusion which was contrary to law, first appellate Court modified decree. It was submitted that 18 admittedly, Baba Naika was chalageni te nant of sche dule properties and Puthu Bai was his only legal heir and as such, she inhe rited tenancy. Therefore, she along with Srinivasa Shet jointly executed fresh chalageni agreement in favour of landlords.
23. It was submitted that in Form no.7 - Ex.D46 filed by Srinivasa Shet, it was stated that tenancy was very old. In his deposition before Land Tribunal on 24.02.1975 (Ex.P3), Srinivasa She t stated that along with his mother Puthu Bai, he had executed chalageni chits in favour of Sri Krishna Bhat and Sri Laxminarayana Bhat. Statement of Puthu Bai was also reco rded, wherein it was stated that she has no objection to register name of Srinivasa She t as occupant. In their deposition, landlords admitted tenancy and stated that Srinivasa Shet and Puthu Bai had executed chalageni chit on 08.06.1962. Based on above, Srinivasa Shet stated that sche dule properties we re in possession and enjoyment of their family and prayed for grant of occupancy certificate 19 recognizing his right as anubhavadar on behalf of his family. It was further submitted that Ex.P4 - Order of Land Tribunal clearly states that occupancy rights granted to Srinivasa Shet was "kutumbada paravagi" i.e. on behalf of his family. It was submitted that as per Srinivasa Shet family means, his family including his wife and children; whereas, examination of Puthu Bai in enquiry before Land Tribunal, admission by landlords about chalage ni chits having bee n executed by her jointly with Srinivasa Shet would not admit version of defendants no.1 to 6.
24. On other hand, it wo uld indicate that meaning of word 'family' used by Land Tribunal meant 'joint family'. It was furthe r submitte d that Exs.P1 and P2 - Geni paid receipts mentioned name of Puthu Bai only. Eve n when as per defendants no.1 to 6, chalageni chits were executed jointly by Srinivasa She t and Puthu Bai in year 1962, assertion by Srinivasa Shet in Ex.D46 - Form no.7 filed on 05.08.1974 as tenancy was ancient would indicate that tenancy was that of Puthu Bai. Admittedly, 20 Puthu Bai inherited tenancy of schedule properties from her father Baba Naika. Therefore , tenancy was joint family tenancy and recognize d as such by Land Tribunal while passing order at Ex.P4 . It was submitted that while passing judgment and decree, trial Court had rightly appreciated said aspects.
25. It was submitted that first appellate Co urt gravely erred in understanding meaning of Explanation-II in definition of 'personal cultivation' unde r Section 2(11) of LR Act, which provides that land would be deemed to be unde r personal cultivation, even if it is cultivated by any member of family by relying upon Division Bench of this Court in case o f Guruvappa and Anr. v/s Manjappu Hengsu and Ors., repo rted in ILR 1985 KAR 386. Further, Section 24 of LR Act, provides that tenancy rights were inheritable by legal heirs. Though application for grant of occupancy right was filed only by Srinivasa Shet, and granted in his name , his statement/prayer before Land Tribunal was that he was cultivating sche dule 21 properties on behalf of his family and prayed for grant of occupancy rights jointly to his family. Therefore , all childre n of Puthu Bai were entitled for e qual shares in schedule pro perties, conseque ntly modification of shares by first appellate Court treating Puthu Bai and Srinivasa Shet as joint tenants would be contrary to law and material on reco rd.
26. It was submitted that depo sition of PW.2 - Leo Fernadis, an independent witness and resident of same village was that Srinivasa She t always maintained that his brothers and siste rs were also entitled for share in schedule prope rties and had never espo used ouste r of plaintiff and defendants no.7 to 9 from sche dule properties. Thus, there was corroboration of plaintiff's claim by an independent witness. It was submitted that Hon'ble Supreme Court in K.V. Sudharshan v/s A. Ramakrishnappa, reported in (2008) 9 SCC 607, had held that merely on ground that occupancy rights were granted to one member of family, did not vest exclusive 22 right in favour of such member, as grant wo uld be in favour of joint family. It was submitted that said ratio was laid even whe n members were residing se parately and having separate mess.
27. It was submitted that Hon'ble Supreme Court in case of Marabasappa (Dead) by LRs and Ors. v/s Ningappa (Dead) by LRs and Ors., reported in 2011 (9) SCC 451, had o bserved that where propositus was established to be te nant, even though subsequently application for grant of occupancy rights was filed in individual name and Land Tribunal granted occupancy rights as such, granted land would be joint family property.
28. Relying upon decision of Hon'ble Supreme Co urt in case of Girijanandini Devi and Ors. v/s Bijendra Naraian Choudhary, reported in AIR 1967 SC 1124, it was submitted that in case of a Hindu Undivided Family governed by Mithakshara law, no individual membe r can predict that he has certain definite share in property of 23 family and rights of coparceners would be defined only when there is partition.
29. It was submitted that while passing judgment and decree, trial Court had taken note of fact that defendants no.1 to 6 had failed to establish ouster of plaintiff from joint family properties and held that in absence of same, there was presumption that grant of occupancy rights was in favour of joint family.
30. Learned counsel drew attention of this Court to finding of trial Court referring to decision in Guruvappa's case (supra), that me rely on ground that occupancy certificate was issued in name of Srinivasa Shet alone, and that it was granted exclusively to him.
31. On above grounds, learned counsel submitted that findings of first appellate Court called for interfere nce and sought for allowing appeal by answering substantial questions of law in favour of appellants. 24
32. On other hand, Sri Sampath Anand Shetty, learned counsel appearing for defendants no.1 to 6 oppo sed appeal. It was submitted that bo th parties to suit were claiming re spective rights on basis of order of Land Tribunal - Ex.P4, which had attained finality. It was submitted that main contention in appeal that though Ex.P4 would indicate grant of occupancy rights only to Srinivasa Shet, benefit of grant inure to members of joint family i.e. children of Puthu Bai, as grant by Land Tribunal was with expression "kutumbada paravagi" to mean joint family of Puthu Bai. It was submitted that order of Land Tribunal not being a piece of legislation could not be interprete d, as such. Order had to be given effect to in its plain meaning. It was submitted that bare reading of order of Land Tribunal wo uld indicate that Srinivasa Shet had filed Form no.7 in re spect of schedule properties and on co nsideration of geni chits executed by him jointly with his mother, Tribunal had confe rred occupancy rights to him with expression "k utumbada paravagi". 25
33. It was submitted that there was nothing in order that would indicate it as joint family of Puthu Bai. Therefore, it would only me an family of Srinivasa Shet comprised of his wife and children as per definition in Section 2(12) of LR Act. In absence of use of expression "vottu kutumba", there would be no basis for reading it as joint family defined in Section 2(17) of LR Act. It was submitted that as entire clai m of plaintiff depended on such assertion, it was incumbent upon him to have pleaded and proved that schedule properties belonged to joint family.
34. It was submitte d that there was absolutely no pleadings about existe nce of joint family and about chalageni rights inhering in it. On other hand, evidence would indicate that Puthu Bai along with he r eldest son had jointly execute d chalageni chits and cultivated lands. Though faint attempt was made while stating that Srinivasa Shet had filed application for grant of occupancy rights as manager of joint family, none of conte nts of said 26 form would support such claim. When there is not even whisper about existence of joint family, plaintiff's claim being unsupported by pleadings would require outright rejection. It was submitted that existence of so-called joint family was first propounded, while issuing legal notice at Ex.P9 and deemed to have been give n up in plaint.
35. It was further contended that merely on ground that defendants no.1 to 6 failed to establish plea of adverse possession would not automatically prove existence of Undivided Hindu Joint Family, which was required to be specifically pleaded and established. It was submitted that first appellate Court, therefore accepted plea of joint tenancy between Srinivasa Shet and Puthu Bai instead of joint family tenancy and proceeded to modify shares accordingly. It was submitted that first appellate Court after framing appropriate points for consideration had passed impugned judgment and decree after re-appreciation of entire mate rial on record and by 27 assigning adequate reasons. As such, impugned judgment and decree passed did no t call for inte rference, especially in se cond appeal.
36. It was submitted that decisions relied upon for appellants we re for ratio that grant of occupancy rights to any member of joint family would inure to all members of joint family and same would no t support appellants herein as there was lack of basic pleadings. Insofar as substantial question of law no.1, it was submitted that first appellate Court was justified in concluding that there existed no joint family, as there was no joint family tenancy. It was submitted merely on ground that name of Srinivasa She t had mentioned in Form no.7 and that tenancy was ancient or that he had admitted to have find chalageni chits jointly with Puthu Bai would not by themselves establish that tenancy was joint family tenancy and therefore grant of occupancy rights would inure to benefit of joint family.
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37. Under above circumstances, first appellate Court had rightly held that Srinivasa Shet and Puthu Bai were entitled for half share in each of granted land and half share of Puthu Bai would devolve upon all her childre n, while othe r half would devolve upon wife and childre n of Srinivasa Shet.
38. Insofar as substantial question of law no.2, it was submitted that first appellate Court did not accept basic claim abo ut existence of joint family te nancy and grant of occupancy rights would be to benefit of all members of joint family. It was submitted that Hon'ble Supreme Court in case of Jayamma v/s Maria Bai, reported in AIR 2004 SC 3957, held that occupancy rights can be granted only to an heir if he is qualified. It was submitted that in instant case, it was clear that only Srinivasa Shet was cultivating schedule lands as on date of order passed by Land Tribunal. It was submitted that Hon'ble Supreme Court in case of Mudukappa v/s Rudrappa, repo rted in 1994 (2) SCC 57, held that it was 29 exclusive jurisdiction of Land Tribunal to determine whether te nancy was joint family tenancy or individual. Therefore, describing tenancy as "tanna kutumabada paravagi" would mean, his family consisting of his wife and children as per definition of 'family' in Section 2(12) and not 'joint family' consisting of his brothers and sisters as defined separately in Section 2(17) of LR Act.
39. It was submitted that in view of ratio laid down by Apex Court in case of Ishwaragouda and Ors. v/s Mallikarjunagouda and Ors., reported in 2008 (15) SCC 838, and reiterated in Prema v/s Deva Rao, reported in 2011 (4) SCC 303, findings of Land Tribunal could not be reo pened/re-agitated before Civil Co urt.
40. On above submission, learne d counsel for defendants no.1 to 6 sought for answering substantial questions of law against appellants and for dismissing appeal.
41. Sri T.V. Nanjegowda, advocate for respondents no.7 and 8 (LRs of defendant no .8) supported appellants. 30
42. Heard learned counsel, perused impugned judgme nt and decree and reco rds.
43. From abo ve, it is seen that plaintiff filed suit for partition and se parate possession of his 1/5 t h share in schedule properties on ground that his grandfather Baba Naika was original chalageni tenant of schedule properties unde r Mayagundi Ramachandra Bhatta- landlord. After death of Baba Naika, his only daughter - Puthu Bai continued as chalageni tenant. During her old age, Srinivasa Shet was assisting in cultivation. And even though application fo r grant of occupancy rights was filed by Srinivasa Shet and granted in his name on be half of family, it was grant in favo ur of joint family and therefore, pl aintiff was entitled for partition.
44. On other hand, defe ndants no .1 to 6 opposed suit by denying joint family tenancy. While admitting Baba Naika as chalageni tenant of schedule pro pertie s earlier, it was co nte nded that Srinivasa Shet was actually cultivating and name of Puthu Bai was added in chalageni agreements 31 nomi nally to e nsure her maintenance . The refore, Form no.7 was filed by Srinivasa Shet only and grante d to him in his individual name. The y denied existence of joint family by stating that plaintiff and defendants no .7 to 9 were residing separately from Srinivasa She t since 30 years. It was pleaded that failure of plaintiff and defendants no.7 to 9 to eithe r maintain Puthu Bai during her life time and attend her obsequies after her death ruled-out existence of joint family. Alternatively, they claimed exclusive title ove r schedule pro perties by virtue of adverse possession.
45. To establish his case, plaintiff examined defendant no.8 as PW.1 and a resident of same village as PW.2. PW.1 deposed that Srinivasa Shet filed Form no.7 on behalf of family and not individually. Exs.P1 and P2 - Geni receipts were produced to establish Puthu Bai had continued as tenant after death of Baba Naika. Exs.P10 and P11 - Chalageni agreements execute d jointly by Srinivasa Shet and Puthu Bai were produced to 32 corroborate their assertion that during old age of Puthu Bai, Srinivasa Shet assisted her in cultivating sche dule properties. Ex.P3 - stateme nt of Srinivasa Shet recorded by Land Tribunal and Ex.P4 - order of Land T ribunal were produced we re in Srinivasa Shet admitted his maternal grandfather Baba Naika as chalageni tenant earlier and also that Puthu Bai had e xecuted chalage ni chits along with Srinivasa Shet and that taking no te o f this, Land Tribunal had granted occupancy rights in name of Srinivasa Shet o n behalf of family.
46. PW.2 deposed that plaintiff and defendants were living together as joint family and that Srinivasa Shet had always maintained that even plaintiff and de fendants no.7 to 9 also had share in schedule pro perties and never denie d their interest.
47. While defendant no.1 examined as DW.1 denied existence of joint family and stated that when Srinivasa Shet filed Form no.7, it was for himself, wife and children. Exs.D1 to D4 - Paddy levy demand registe r extracts, 33 Exs.D5 to D8 - Demand notices, Exs.D9 to D11 - receipts for payment of demand were produced to establish that Srinivasa Shet was cultivating schedule properties in his individual capacity. Exs.D12 to D21 - land revenue payment receipts and Exs.D22 to D36 - property tax payment receipts, Exs.D37 to 39 and Exs.D41 to D44 - record of rights and Ex.D40 - Patta Boo k were produced to establish that Srinivasa Shet was exclusively cultivating schedule properties and plaintiff and defendants no.7 to 9 were residing se parately.
48. However, DW.1 admits that at time of her marriage with Srinivasa Shet, plaintiff and defendants no.7 to 9 were residing together. DW.1 also admits that never to have denied right of defendant no.8, who was residing in a house constructed on one of sche dule properties.
49. While passing judgment and decree, trial Co urt took issue no.1 along with additional issues no.1 and 3. Taking note of contents of Exs.P1 and P2, deposition of 34 Srinivasa Shet before Land Tribunal that he along with mother - Puthu Bai had executed chalageni chits to landlords to conclude that prior to his death, Baba Naika was cultivating schedule pro perties and after his death, Puthu Bai. Therefore, it concluded that tenancy was not individual, but, joint family tenancy which had devolved upon Puthu Bai from he r father and the reafter, Srinivasa Shet was cultivating on behalf of joint family. It drew presumption that cultivatio n by any membe r of family was on behalf o f joint family. It o bserved that for lack of pleadings about ouster, supported said presumption. Even reference to tenancy as being very old in Ex.D46 established that it was joint family tenancy.
50. It relied on decision in Guruvappa's case (supra), for proposition that word 'person' included 'joint family' as per Explanation-II. It relied on ratio in Basavaraj M v/s State of Karnataka and Ors., reported in 1982 (2) KLJ 531, for proposition that there was no prohibition against member of joint family filing Form 35 no.7. It also referre d to admissio n by DW.1 that Srinivasa Shet filed Form no.7 in his name, but, it was for his family.
51. It answered additional issue no.2 regarding exclusive, it observes that despite pleading in written statement, there was lack of any independent evidence/material to co rroborate ouster. It observed that mere non-participation in payment of assessments etc., would not amount to ouster by referring to ratio in Karbalai Begum v/s Mohd. Sayeed and Anr., reported in AIR 1981 SC 77. Insofar as share s, tri al Court took note of fact that relationship was admitted and as there was no dispute about Puthu Bai having five children namely Srinivasa Shet, Venkatesh(plaintiff), Gopal Shet (defendant no.7), Bhavani(defendant no.8) and Padmanabha(defendant no .9), each were entitled for 1/5 t h share .
52. Though, plaintiff claimed share of profits at five muras of rice per year, taking note of admission in written 36 statement about gross income from schedule properties being at fourteen muras of rice, it held plaintiff entitled for two muras of rice per year for three years prior to filing of suit while answering issue no.3. It obse rved that there was no evidence regarding mesne pro fits and on that count deferred conside ration of mesne profits to final decree proceedings. Additional issues no.4 to 6 were answered in ne gative for want of evidence.
53. Based on said reasoning and findings, trial Court decreed plaintiff's suit granting 1/5 t h share in schedule properties apart from two muras of rice per year for three ye ars prio r to filing of suit.
54. However, reasoning of first appellate Co urt while modifying trial Court decree were though as per ratio laid do wn by Hon'ble Supreme Court in Thimmappa Rai v/s Ramanna Rai, reported in (2007) 14 SCC 63, there would be presumption about grant to member of family wo uld inure to other members of family and they can file suit for partition of such property, it observed 37 that ratio in Jayamma v/s Maria Bai, reported in (2004) 7 SCC 459 was that tenancy though heritable, all heirs cannot become o ccupants and marrie d daughters cannot be grante d such right.
55. It observed that defendant no.8 was married in late 1940 and was living with her husband till his death. Thereafter, she resided in a house constructed in scheduled property as per permission of Srinivasa Shet. Likewise, it observed that defendant no.9 was living separately with his wife, as he was in Government service. Therefore, in absence of specific material that they were cultivating schedule prope rties personally, the y would not be entitled fo r presumption about joint cultivation merely on ground that Form-7 was filed stating that it was on behalf of family.
56. It o bserved that as it was chalageni tenancy, after death of Baba Naika, Puthu Bai executed fre sh chalageni chi ts in favour of landlords - Sri Laxminarayana Bhat and Sri Krishna Bhat, to whom po rtions of schedule 38 properties had fallen in partition within their family. As against assertio n/evidence of defendants no.1 to 6 that plaintiff and defendants no.7 to 9 were not residing in schedule properties since more than 30 years, there was no contra evidence, despite pleading that plaintiff and defendants no.7 to 9 were residing togethe r with Srinivasa Shet. Therefore, it drew adverse inference against plaintiff and defendants no.7 to 9 for not entering witness-box. And taking note of fact that chalageni agreements were executed jointly by Puthu Bai and Srinivasa Shet and admissio n about Puthu Bai re siding with Srinivasa She t in schedule properties, it held that grant of occupancy rights to Srinivasa Shet would inure to Puthu Bai also. And as she died intestate, it held all her legal hei rs entitled for equal shares in he r share in schedule prope rties. On said reasoning, it modified decree passed by trial Court by granting 1/10 t h share to each of plaintiff and defendants no.1 to 9.
39
57. Since both substantial questio ns of law are inter-related, they are taken up toge ther for consideration. In order to answer same, it would be necessary to give a finding about existence of joint family amo ng children of Puthu Bai. In this regard, pleading in plaint, is that plaintiff, Srinivasa She t and defendants no.7 to 9 were children of Puthu Bai, who was daughte r of Baba Naika. Their maternal grandfathe r - Baba Naika was chalageni tenant of schedule properties. After his death, Puthu Bai, his only surviving child, was residing in a house in schedule prope rties, continued as chalageni tenant under landlords by executing chalageni chits. And after partition in family of landlords, allottees of portio ns of schedule prope rties insisted on execution of fresh chalageni chits, by inclusion of male member of family for fixing responsibilities to pay rent. Accordingly, Srinivasa Shet and Puthu Bai jointly executed chalageni chits. Thereafter, during her old age, Srinivasa Shet began managing properties and as such, filed application for 40 grant of occupancy rights, which was late r granted. On refusal to grant share in said properties, suit was filed.
58. Both PW-1 i.e. defendant no.8 as well as independent witness PW-2 supporte d such assertions. Nothing contrary is elicited in cross-examination. Exs.P1 and P2 - Geni receipts issued to Puthu Bai in year 1944 - 1948, statement of Srinivasa Shet recorded and order passed by Land Tribunal - Exs.P3 and P4 co rroborate plaintiff's assertion.
59. Further, defendant no .1 - DW.1 admitted that at time of her marriage, plaintiff, Srinivasa Shet and defendants no.7 to 9 we re living together. It is elicited that for various reasons, such as marriage, employment etc., they were residing separately. T hus essential features for existence of Joint Hindu family namely parties being Hindus, common ancestry, common residence and parent holding property (in this case te nancy right) are in existence. Hon'ble Supreme Court in Bharat Singh Vs. Smt.Bhagirathi reporte d in AIR 1966 SC 405, held that 41 there is stro ng presumption in favour of Hindu brothers constituting a Joint Hindu Family. Consequently, it can be held that plaintiff discharged burden as mandated in case of D.S. Lakshmaiah and Anr. v/s L. Balasubramanyam and Anr., reported in 2003 (10) SCC 310.
60. Admittedly, Srinivasa Shet to whom there is grant of occupancy rights is amongst children of Puthu Bai. Same would attract, presumption abo ut grant to member of family inuring to other members of family as held by Hon'ble Supreme Court in Mudakappa's case (supra) and in Thimmappa Rai's case (supra). Therefore, they can file suit for partition of such prope rty. In fact, in Mudakappa's case (supra) it is held:
"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 42 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."
( em phasis supp lied )
61. Yet another aspect which requires to be taken note of is, plea of ouster taken by defendants no.1 to 6. Hon'ble Supreme Court in case of Binapani Paul Vs. Pratima Ghosh, reporte d in 2007 (6) SCC 100, that plea of ouster can only be raised by admitting title. Consequently, where such plea is not established, it would be estoppel against denying title of other co-sharers.
62. Hence, trial Court was justified in holding that grant of occupancy rights in respect of sche dule properties in favour of Sri Srinivasa Shet would inure to bene fit of plaintiff and defendants no.7 to 9. While, giving its finding on point no.1 , first appellate Court has held Smt.Puthu Bai as joint tenant along with Srinivasa Shet on ground that she had e xecuted chalage ni chits along 43 with Srinivasa Shet and other children namely plaintiff and defendants no.7 to 9 were residing separately. Hon'ble Supreme Court in case of Vineeta Sharma v/s Rakesh Sharma, reported in 2020 (9) SCC 1, has held mere separation of food and residence are not co nclusive of seve rance of status of joint family. When, severance is neither pleaded or established, such conclusion by first appellate Court would be contrary to deposition of PW.1, corroborated by PW.2 and admission of DW.1. Further, it was neither case of plaintiff no r defendants that tenancy was joint between Srinivasa Shet and Puthu Bai. Therefore such conclusion by first appellate Court would also be perverse .
63. In view of admission about maternal grandfather Baba Naika being tenant earlier and Puthu Bai as his only legal represe ntative continuing tenancy by executing chalageni agreements, asse rtion in Form no.7 that tenancy was ancient thereby re fe rring to tenancy of Baba Naika and Puthu Bai and prayer be fore Land Tribunal 44 for grant of occupancy rights on behalf of his family would support findings of trial Court. In view of Explanation-II to Section 2(11) of LR Act i.e. definition of 'personal cultivation' providing that cultivation through any member of family as falling within meaning of personal cultivation, and plaintiff/defendants no.7 to 9 having led evidence by examining PW-1, first appellate Court was not justified in drawing adverse infe rence. The refore, finding of first appellate Court is perverse and unsustainable. Consequently, both substantial questions of law are answered in ne gative. Hence, following:
ORDER Appeal is allowed with costs. Impugned judgment and decree date d 05.09.2007 passed by Presiding Office r, Fast Track Court, Udupi, in R.A.no.9/1996 is set-aside, restoring judgment and decree dated 11.09.1995 passed in O.S.574/90 by II Additional Civil Judge (Jr.Dn.), Udupi.
Sd/-
JUDGE Psg*/GRD