Karnataka High Court
Appasab Babu Hanchanale vs Yashwant Kallappa Hanchanale on 22 April, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF APRIL, 2022
BEFORE
HON'BLE JUSTICE RAVI V.HOSMANI
RFA NO. 4017 OF 2012 (PAR. & POSS)
BETWEEN
1. APPASAB BABU HANCHANALE
AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O. H.TPC. NO. 3829,
SADALGA, TQ: CHIKKODI,
DIST: BELGAUM.
2. SADASHIV BABU HANCHANALE
SINCE DECEASED REP. BY HIS LRS.
2(a). MANGAL, W/O. SADASHIV HANCHANALE
AGE: 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O. HOUSE TPC NO.3829, TQ: CHIKKODI,
DIST: BELGAUM
2(b). KIRAN S/O. SADASHIV HANCHANALE,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O. HOUSE TPC NO.3829,
SADALAGA - 591239
TQ: CHIKKODI, DIST: BELGAUM.
2(c). SANDEEP S/O. SADASHIV HANCHANALE,
AGE: 38 YEARS,
OCC: AGRICULTURE,
2
R/O. HOUSE TPC NO.3829,
TQ: CHIKKODI,
DIST: BELGAUM.
...APPELLANTS
(BY SRI. B S KAMATE, ADVOCATE)
AND
1 . SRI. YASHWANT
KALLAPPA HANCHANALE
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O. H.TPC NO. 3847,
SADALGA,TQ: CHIKKODI,
DIST: BELGAUM.
2 . SRI. MAHADEV
KALLAPPA HANCHANALE
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O. H.TPC NO. 3847
SADALGA, TQ: CHIKKODI,
DIST: BELGAUM - 591239
3 . MAHARUDRA KALLAPPA HANCHANALE
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O. H.TPC NO. 3847
SADALGA, TQ: CHIKKODI,
DIST: BELGAUM - 591239
4 . SURESH KALLAPPA HANCHANALE
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O. H.TPC NO. 3847
SADALGA, TQ: CHIKKODI,
3
DIST: BELGAUM - 591239
5 . DEELIP KALLAPPA HANCHANALE
AGE: 40 YEARS,
OCC: AGRICULTURE,
R/O. H.TPC NO. 3847
SADALGA, TQ: CHIKKODI,
DIST: BELGAUM - 591239
6 . LEELAVATI BHIMAGOUDA PATIL
AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O. H.VPC NO. 1150
KERUR, TQ: CHIKKODI,
DIST: BELGAUM - 591223
7 . LALITA SUBHASH JEGOJE
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O. ANKLI, TQ: CHIKKODI,
NOW, R/AT: H. TPC NO. 3847,
SADALGA, TQ:CHIKKODI,
DIST: BELGAUM - 591239
8 . MALLAPPA SHIVABA HANCHANALE
AGE: 57 YEARS,
OCC: AGRICULTURE,
R/O. H. TPC NO. 3847,
SADALGA, TQ:CHIKKODI,
DIST: BELGAUM - 591239
9 . SUBASH SHIVABAL HANCHANALE
AGE: 48 YEARS, OCC:
AGRICULTURE, R/O. H. TPC NO.
3847/A, SADALGA, TQ:CHIKKODI,
DIST: BELGAUM - 591239
4
10 SUSHILA KAKASAB KHOT
. AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O. FARM HOUSE,
R.S. NO. 313/2, YADYANWADI,
TQ: CHIKKODI,
DIST: BELGAUM - 591238
11. SMT. PHULABAI
SHIVAPPA AMATE,
AGE: 60 YRS.
OCC: AGRICULTURE
R/O H.RS 522/6 OF SIDDAPURWADI,
TQ: CHIKKODI,
DIST: BELGAUM -591201
RESPONDENTS
(BY SRI. RAVI S BALIKAI, ADV. FOR R1 TO R3, R5 TO R11;
SRI. F.V. PATIL, ADV. FOR C/R4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 05-01-2012 PASSED IN O.S.
NO.18/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIKODI,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.12.2021, THIS DAY, THE COURT, PRONOUNCED
THE FOLLOWING:
5
JUDGMENT
Challenging judgment and decree dated 05.01.2012 passed by Senior Civil Judge Chikodi in O.S.no.18/2009, this appeal is filed by defendants.
2. Appellants herein were defendants no.1 and 2 respectively in suit while respondents herein were plaintiffs no.1 to 11. For sake of convenience they will hereinafter be referred to as per their ranks in suit.
3. O.S.no.18/2009 was filed by plaintiffs seeking partition and separate possession of their 2/3rd share in suit properties namely R.S.No.1092 measuring 9 acres and R.S. No.892 measuring 2 acres 30 guntas situated at Sadalaga village. Suit claim was on the ground that Bharama - grandfather of plaintiffs was working as Sanadi of Sadalaga village and suit lands were granted to family for carrying out said work. It was stated that father of plaintiffs and defendants were residing jointly and cultivating suit lands. It 6 was further stated that during old age of Bharama, name of his elder son - Babu was entered in record of rights of suit properties though all family members were discharging Sanadi work jointly and grant was in favour of family. After death of Bharama, dispute arose among women folk of family. Thereafter, father of plaintiffs and defendants started residing separately by partitioning family house and other landed properties, but suit properties were kept joint as they were Sanadi Inam lands. Though plaintiffs requested defendants to effect partition of these properties, defendants postponed it on one pretext or other leading to cause of action for filing suit.
4. Upon service of summons, defendant no.1 filed written statement denying plaint averments as false, frivolous and vexatious. Non-joinder of necessary parties was urged as daughters of Babu were not arrayed as parties. It was admitted that grandfather of defendants and plaintiffs Bharama was doing Sanadi service and suit lands were granted to him in lieu of payment for services. But, they 7 contended that grant was in individual capacity and not for joint family. It was contended that during lifetime of Bharama, his appointment as Sanadi was cancelled as per mutation entry M.E. No.93963 on 24.11.1954 as per order of Asst. Commissioner, Chikodi on 30.10.1954. In a consequential order passed by Tahsildar, Chikodi on 13.11.1954, Babu was appointed as Sanadi in individual capacity and suit lands were withdrawn from Bharama and handed over to Babu. It was therefore contended that granted Sanadi lands would not enure to joint family.
5. It was further stated that during lifetime of Babu, Karnataka Village Officers Abolition Act, 1961 (hereinafter referred to as 'KVOA Act' for short) came into force. On an application, suit lands were re-granted in favour of Babu and same was mutated in revenue records. It was specifically urged that re-grant was to Babu and not to joint family. It was further stated that as per conditions of re-grant, lands were impartible. It was also contended that M.E.No.93963 was not 8 challenged by plaintiffs before appropriate authority and during his lifetime, Babu got names of defendants no.1 and 2 entered in revenue records as per M.E. No.17738 on 08.12.1982. It was contended that since then name of defendants continued till 1982.
6. On death of Bharama on 27.11.1963, names of his legal heirs namely Babu, Kallappa and Mallappa and Subhash sons of deceased Shivabalu were entered by M.E.No.11885 in respect of R.S.Nos.1221/2 and 459/1. It was contended that above entries indicated that Sanadi lands were granted in individual capacity and therefore plaintiffs were not entitled for partition of said lands. Defendant no.2 filed a memo adopting statement of objections of defendant no.1.
7. Based on pleadings, trial court framed following issues and additional issue:
i. Whether plaintiffs prove that suit properties are the Sanadi lands granted in favour of 9 Bharama it enures to the benefit of the other joint family members? ii. Whether defendants proves that the suit properties granted in favour of Babu as he was appointed as Sanadi after cancellation of Sanadi of Bharama?
iii. Whether suit is bad for non-joinder of necessary parties?
iv. Whether suit is barred by Limitations? v. Plaintiffs are entitled for 2/3rd share in the suit properties by way of partition and separate possession?
vi. What order or decree?
ADDITIONAL ISSUE i. whether plaintiffs prove that all the family members were jointly worked as Sanadi of Sadalaga village due to old age of Bharama?
8. Thereafter, plaintiff no.4 examined himself as PW-1. Another witness by name Subhash Khot was examined as PW-
2. Exhibits P.1 to P.8 were marked. On behalf of defendants, 10 defendant no.2 was examined as DW-1 and Exhibits D.1 to D.34 were marked.
9. On consideration, trial Court answered issue no.1 and issue no.5 in affirmative, issue nos. 2, 3, 4 and additional issue in negative and issue no.6 by decreeing suit and granting 2/3rd share in suit properties. Aggrieved thereby defendants are in appeal.
10. Sri. B.S.Kamate, learned counsel for appellants submitted that admittedly suit lands were Sanadi lands. Though initially Bharama was appointed as Sanadi during 1954 and suit lands granted to him for said purposes, his appointment was cancelled and Babu was appointed by fresh order. It was further stated that Bharama died on 27.09.1963 and after his death there was partition of joint family properties during 1963. However, partition excluded Sanadi lands as they were granted to an individual. After coming into force of KVOA Act, on an application filed by Babu, they were 11 re-granted to Babu on 04.10.1968. During lifetime of Babu, names of defendants no.1 and 2 were mutated in revenue records. Therefore, suit filed on 16.03.2009 was not maintainable and highly belated. It was vehemently contended that while appointing Babu as Sanadi, appointment of Bharama was cancelled. Therefore, neither appointment nor grant was hereditary. It was further contended that death of Bharama in 1963, there was partition of joint family properties and joint family status was not subsisting. On above grounds sought for allowing appeal and set-aside judgment and decree passed by trial court.
11. On the other hand, Sri. Ravi S. Balikai learned counsel for respondents supported impugned judgment and decree and opposed appeal. It was submitted that controversy in instant matter lie in a very narrow compass as relationship between parties and also nature of suit properties as Service Inam Lands was admitted. He submitted that said lands were 12 re-granted after coming into force of KVOA Act, was also admitted. Only dispute was about their partibility.
12. It was submitted that issue of partibility of inam lands was settled by several decisions of Hon'ble Supreme Court as well as High Court of Karnataka, namely:
"i. Laxmibai Sadashiv Date and others Vs. Ganesh Shankar Date and others reported in AIR 1977 SC 350, wherein it was held that after abolition of service inams, grant to senior member enures to benefit of other members of joint family and it cannot be contended after re-grant that other members had no right to ask for share in such inam land.
ii. Nagesh Bishto Desai Vs. Khando Tirmal Desai reported in AIR 1982 SC 887, wherein it was held that mere fact that an estate is impartible does not make it separate and exclusive property of holder, after re-grant it becomes estate of family and partible among all members of joint family.
iii. Anant Kibe & others Vs. Purushottam Rao and others reported in AIR 1984 SC 1121, wherein it is held that being ancestral impartible estate devolving by rule of primogeniture, 13 constitutes joint family property and after re-grant such inam lands become partible.
iv. Kalagonda Babgonda Patil Vs. Balgonda Kalgonda Patil and others reported in AIR 1989 SC 1042, wherein it is held that after abolition of inams, property enures for benefit of Joint Family and its members are entitled to claim partition and possession, since such watan lands were not partitioned earlier and continued to be joint family estate due to embargo attached to such inam lands and as they were not partible.
v. Shivappa Tammanna Karaban Vs. Parasappa Hanammappa Kuraban and others reported in 1994 AIR SCW 5031, wherein it is held that watan property attached to office of sanadi continues to be Joint family property for benefit of H.U.F. and Watandar has no exclusive right to property. Such property is partible subject to conditions under Sec. 5(3) of K.V.O. Abolition Act, 1961.
vi. Shivappa Fakirappa Shetsanadi Vs. Kannappa Mallappa Shetsanadi reported in ILR 1987 Kar. 3155, and Beerappa Vs. Fakirappa Beerappa Bandrolli and others reported in ILR 2006 KAR. 4170, and unreported decision in the case of Meerasab 14 Imamsab Sanadi Vs. Smt. Hanifbi Appalal Sanadi & others in R.S.A.No.862/1984, wherein it is held that junior members of family are also 'holders of village office" and after abolition of village office, resumption and re-grant under Section 5, land becomes available for partition and junior members entitled to seek partition as per their personal law.
vii. B.L. Sreedhar and others Vs. K.M. Munireddy reported in AIR 2003 S.C.578, wherein it is held that where an office is attached to joint family, any person holding that office will be holding the same on his behalf and also on behalf of other members of joint family and an interest in office means and includes right to survivorship of members of joint family."
13. Learned counsel drew attention of this Court to specific admission by DW-1 that late Appayya his great grandfather, after his death, his grandfather Bharama and later his father Babu worked as Sanadi, which established that suit properties were attached to village office. It was further submitted that Ex.D.10, M.E.No.9364 clearly shows appointment of elder members of respective Sanadi families to 15 officiate as Sanadi and there was no evidence to establish earlier appointees were removed or their services were terminated. It was submitted that admitted facts clearly establish that suit lands were attached to office of Sanadi, eldest member of Sanadi family were appointed to officiate as Sanadi and Sanadi inam lands continued to be attached to family. It was further submitted that upon re-grant of Sanadi inam lands after coming into force of KVOA Act, they became partible and partition of other joint family properties prior to re-grant would not preclude claim for partition of inam lands after re-grant. It was submitted that trial Court had rightly appreciated facts of case and law applicable thereto and decreed suit. Therefore it did not call for any interference.
14. Heard learned counsel, perused impugned judgment and decree and record.
15. From above, it is not in dispute that plaintiffs and defendants hail from family of propositus - Bharama Appayya 16 Hanchinale. Admittedly, Bharama had three sons namely Babu, Kallappa and Shivbal. Plaintiffs no.1 to 7 are children of Kallappa who died in 2003. Plaintiff nos.8 to 11 are children of Shivbal who died in 1962, while defendant no.1 and 2 are children of Babu who died in 1999. It is also not in dispute that Babu was eldest son of Bharama and suit lands were Sanadi inam lands.
16. While plaintiffs contend that Sanadi inam lands were not included in partition of joint family properties in 1963 as they were impartible and after re-grant during 1968, they became partible; therefore, trial Court decree was justified as there was no period of limitation for seeking partition. On other hand, defendants, contend that suit lands were attached to Sanadi work and as their father Babu was appointed as Sanadi by separate order, there was deemed removal of earlier Sanadi and inam lands were mutated in name of Babu as in case of fresh grant. In view of same, they were not joint family properties and upon re-grant, they constituted 17 individual property of Babu. Therefore plaintiffs were not entitled for partition. From above contentions points that arise for consideration in this appeal are:
1. Whether trial Court was justified in answering issue no.1 in affirmative that suit lands were Sanadi Inam lands granted to Bharama enure to benefit of entire joint family?
2. Whether trial Court was justified in entertaining suit for partition of re-
granted Inam lands?
3. Whether impugned judgment and decree passed by trial Court is justified?
17. In order to establish that suit lands were attached to family of Inamdar, plaintiffs led oral evidence of plaintiff no.4 as PW-1. They also examined an independent witness as PW-2. Deposition of PW-1 is a virtual reiteration of plaint. During cross-examination, it was suggested to PW-1 that Appayya was father of Bharama and was a Sanadi. It was also suggested that as Bharama was appointed as Sanadi, suit lands were granted to him. In reply PW-1 stated that suit 18 lands were earlier tilled by his grandfather as he was Sanadi and thereafter his father was appointed Sanadi, but date and particulars of order were not known to him. PW-1 admits that as per M.E.No.2427, name of only Bharama was entered in revenue records apart from half share in five other lands. It was elicited that purpose of grant was to utilize income from granted lands in lieu of salary. PW-1 also admitted that as Bharama was Sanadi he was utilizing suit lands.
18. It was also specifically suggested to PW-1 that in respect of Sadalaga village, apart from Bharama 56 others were working as Sanadi, whose services were terminated by Government by order dated 30.10.1954 and thereafter Collector by his order dated 03.11.1954 appointed seven new Sanadis as mentioned in M.E. No.9363. PW-1 further admitted that as Inam lands were impartible, names of only Inam holder was entered in Revenue Records. A specific admission was also elicited that except Sanadi lands there was partition of joint family properties belonging to grandfather and that 19 respective parties were in occupation of lands fallen to their shares. Tenor of cross-examination of PW-1 indicates a clear stand of defendants that Inam lands were not grants in favour of entire family but were individual grants in favour of their father Babu.
19. In addition to PW-1, a resident of Bainakawadi, a hamlet of Sadalaga is examined as PW-2. He deposed that his family members were also rendering Sanadi services and as such he was acquainted with plaintiffs, defendants and suit properties. He stated that although Bharama was appointed as Sanadi, service was rendered by all male members of family. He also deposed that both plaintiffs and defendants were jointly cultivating suit lands. PW-2 further deposed that R.S.No.904 of Sadalaga was granted to his family for Sanadi service. Formerly it was granted to his father Peeru and thereafter to elder brother Kallappa, who had given share in Sanadi inam land to other brothers also. PW-2 has not been cross-examined at all.
20
20. Documentary evidence of plaintiffs is Ex.P1 - general power of attorney executed by plaintiffs authorizing PW-4 to depose on their behalf also. Ex.P.2 and P.3 are record of rights of suit lands. Ex.P.4 is M.E.No.1738 dated 08.02.1980, whereunder, as per varadi given by Babu, names of his children are entered in respect of suit lands. Ex.5 is M.E.No.11885 certified on 16.04.1964 wherein names of children of Bharama are entered in respect of remaining lands, after his death. Ex.P.6 is record of rights. Exs.P.7 and P.7a are M.E.No.9363 dated 24.11.1954 whereunder Babu was appointed as Sanadi. Ex.P.8 is an endorsement issued to plaintiff no.4 stating that combined RTCs of year 1965-66 were destroyed.
21. On other hand, defendants no.2 was examined as DW-1. His examination in chief was virtual reproduction of written statement. During cross-examination, he admitted that Appayya was his great grandfather. He also admitted that 21 Bharama had three sons namely Babu, Kallappa and Shivbal and that defendants were sons of Babu, plaintiffs no.1 to 7 were children of Kallappa and plaintiffs no.8 to 11 were children of Shivbal. He admits that Babu died in 1997 while Bharama died in 1963 and Shivbal had died prior to Bharama. He also admitted that Kallappa died in 2003. He admits that Inam lands were granted to joint family. However, he denies suggestion that suit lands were earlier granted to Appayya and thereafter to Bharama. DW-1 further admits that apart from Inam lands, remaining lands were partitioned and each of sons of Bharama took 1/3rd share and their names were mutated in revenue records accordingly. DW-1 also admitted that as suit lands were Inam lands they could not be partitioned at that time and therefore they continued in individual name of Babu. Suggestion that income from lands was shared was denied. Though DW-1 denied knowledge of Kharim Sattu Sanadi was also Sanadi, he admits that Appalal Kharim Sanadi was his son. He admits that as Appalal did not give share to his 22 brothers they had filed suit against him and that their brothers succeeded in getting share in High Court and in terms of High Court order, their names were mutated and they were enjoying their respective shares. DW-1 further admits that premium in respect of re-granted lands was paid by him on 9.12.1968. He also admits that he did not produce any records to establish that Inam lands were taken over by Government.
22. DW-1 further admitted that Isac son of Appalal Kharim Sanadi was Sanadi. He admitted that Babu and Appalal were appointed Sanadi at same time. He however denies knowledge of suit filed by his sisters against Isac for share.
23. It would be relevant to refer to decision relied upon by the respondents in the case of Mirasab Imamsab Sanadi in RSA No.862/1984. As admitted by PW-2, one Kharim Sattu Sanadi was also appointed as Sanadi along with Bharama. As admitted by DW-1 that in the said second appeal this Hon'ble Court held that Service Inam Lands were partible and grant to 23 the elder male member would enure to the benefit of the entire family and accordingly had granted shares to children of Appalal.
24. The ratio of the said decision would apply on all fours to the instant case as it was the case of similar contentions being pressed in the said case having been answered as above holding that all the family members would be entitled to share in Service Inam Lands upon re-grant. The Hon'ble Supreme Court in Laxmibai, Nagesh Bishto Desai, Anant Kibe, Kalagonda Babgonda Patil, B.L. Sreedhar Shivappa Tammanna Kuraban and this Court in Shivappa Fakirappa Shet Sanadi and Beerappa and also Mirasab Imamsab Sanadi has held that upon re-grant of Service Inam Lands, they become partible and that all the family members would be entitled to share in them. Merely on the basis of mutations to revenue entries, it cannot be held that the grant was in favour of individual. There is neither any evidence to establish the same nor any material produced to substantiate the 24 contention. The fact that the joint family properties were partitioned in the year 1963, would not come in the way of seeking partition in the Service Inam Lands as they were not included in the said partition in view of the statutory prohibition. It is admitted by defendant DW-1 that the Service Inam Lands were re-granted from Bharama to Babu on 09.12.1968, which is subsequent to the partition of other joint family properties in the year 1963. As they become partible only after re-grant and no period of limitation is prescribed for claiming partition, impugned decree passed by the trial Court granting partition would be fully justified. The conclusion drawn by the trial Court on the basis of evidence on record, do not suffer from any illegality, irregularity or perversity.
Hence, there is no merit in the appeal.
Appeal is dismissed.
Sd/-
JUDGE BVK