Karnataka High Court
Joseph K A vs Mary on 27 June, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:22237
MFA No. 5800 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.5800 OF 2022 (CPC)
BETWEEN:
1. JOSEPH K A
S/O AUGUSTINE
AGED ABOUT 85 YEARS
2. SMT. THRESIA
W/O JOSEPH K A
AGED ABOUT 79 YEARS
3. THOMAS K J
S/O JOSEPH K A
AGED ABOUT 53 YEARS
4. JOSEPH K J
S/O JOSEPH K A
Digitally signed
by SHARANYA T AGED ABOUT 50 YEARS
Location: HIGH
COURT OF ALL ARE R/AT KALLIKOTE HOUSE
KARNATAKA AJITH NAGARA, UJIRE VILLAGE
BELTHANGADI TALUK-574240
...APPELLANTS
(BY SRI G BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. MARY
D/O JOSEPH K A
W/O SEBASTINE V J
MAJOR
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NC: 2023:KHC:22237
MFA No. 5800 of 2022
2. BABY JOSEPH
S/O JOSEPH K A
MAJOR
3. MANUEL K J
S/O JOSEPH K A
MAJOR
ALL ARE R/AT GANDIBAGILU
NERIYA VILLAGE
BELTHANGADY TALUK-574228
...RESPONDENTS
(BY SRI RAKSHITH KUMAR, ADVOCATE)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 22.07.2022 PASSED ON
I.A.NO.2 AND 3 IN O.S.NO. 70/2021 ON THE FILE OF THE PRL.
SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the order dated 22.07.2022 passed on I.A.Nos.2 and 3 in O.S.No.70/2021 on the file of the Principal Senior Civil Judge and JMFC, Belthangady.
2. This appeal is listed for admission. Heard the learned counsel appearing for the respective parties. -3-
NC: 2023:KHC:22237 MFA No. 5800 of 2022
3. The claim of the plaintiff before the Trial Court is that item No.1 of the suit schedule property is allotted to her grandfather vide sale deed dated 14.12.1961. It is also the claim of the plaintiff in respect of item No.2 that her grandfather was cultivating the properties morefully described in item No.2 of the suit schedule property on lease. The grandfather of the plaintiff was having more than 27 acres of land in Neriya village including the plaint schedule property. The grandfather of the plaintiff Augustine has five male and one female children. The said Augustine in order to avoid the complications between his children, orally divided the properties belonging to him and made a family arrangement in the year 1964 and asked defendant No.1 to take possession of item Nos.1 and 2 of the plaint schedule property. Accordingly, defendant No.1 took the possession of item Nos.1 and 2 of the plaint schedule property for the benefit of his family consisting of plaintiff and defendants and constructed a separate house in item No.1 of the suit schedule property and started cultivating in item Nos.1 and 2 suit schedule -4- NC: 2023:KHC:22237 MFA No. 5800 of 2022 property for the benefit of his family consisting of plaintiff and defendant No.2 to 6. It is also contended that the plaintiff and defendants were living together in a common mess in the family house situated in item No.1 of the suit schedule property. The plaintiff and other defendants were helping defendant No.1 in cultivating the suit schedule property. Defendant No.1 as the head of the family was taking care of item Nos.1 and 2 of the suit schedule property and also made an application before the concerned authority on account of advent of Karnataka Land Reforms Act and defendant No.1 being the head of the family filed declaration in Form No.7 claiming occupancy right over item No.2 of the suit schedule property and the same was considered and allowed. It is also her contention that defendant No.1 executed a settlement deed in favour of defendant Nos.3 to 6 hence, she has filed a suit for the relief of partition claiming 1/7th share and inter alia sought for an order of injunction if defendant Nos.3 to 6 further dispose of the property, her right will be curtailed.
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NC: 2023:KHC:22237 MFA No. 5800 of 2022
4. The said application was resisted by the appellant herein by filing statement of objection and the Trial Court did not grant the relief in respect of item Nos.1 and 2 is concerned. The Trial Court comes to the conclusion that she is an unmarried daughter and also he has filed the suit for the relief of partition. The unmarried daughter of grantee under Karnataka Land Reforms Act are having right in the granted property and hence, the plaintiff has made out a prima facie case and also considered the balance of convenience in respect of item No.2 of the suit schedule property and not in respect of item No.1 of the suit schedule property and partly allowed the application. Being aggrieved by the said order, the present appeal is filed.
5. The learned counsel appearing for the appellants would vehemently contend that the learned Judge has failed to take note that the definition of 'family' under Section 2(12) of the Karnataka Land Reforms Act is for the limited purpose of deciding and calculating the -6- NC: 2023:KHC:22237 MFA No. 5800 of 2022 ceiling limit for the agricultural lands. A family is entitled to hold 20 units under Section 63(2) of the Karnataka Land Reforms Act. The said definition of 'FAMILY' as defined and as stated in Section 2 has nothing to do with reference to determine who is the tenant and who is entitled for grant of occupancy rights nor has it got any relevance to divide the rights of the parties under their personal law. The counsel referring the definition as well as Section 63 of the Karnataka Land Reforms Act vehemently contend that the Court below committed an error in referring the said Act in coming to the conclusion that unmarried daughter is entitled for a right and committed an error in coming to the conclusion that plaintiff has made out a prima facie case in respect of item No.2 of the suit schedule property and the very approach of the Trial Court is erroneous.
6. The counsel also relied upon the order passed by this Court reported in LAWS (KAR) 2013-8-289 in the case of NIMBAVVA vs CHANNAVEERAYYA and -7- NC: 2023:KHC:22237 MFA No. 5800 of 2022 brought to notice of this Court paragraph 5 wherein discussed with regard to the facts of the particular case and also in paragraph 6 with regard to Form No.7 under Section 48-A of the Karnataka Land Reforms Act came to be filed and also brought to notice of this Court paragraph 19 wherein observed that the plaintiffs are entitled to equal share on par with the sons when the father died intestate provided there is a heritable right to them under the Act. Karnataka Land Reforms Act is a special enactment which has been enacted for the benefit of cultivator, the same cannot be deviated by this Court by applying the provisions of Hindu Succession Act. The counsel referring this judgment also vehemently contend that the suit is filed against the father and when the grant is made in favour of the father, during the lifetime of the father, the daughter cannot claim any share in respect of item No.2 of the suit schedule property and hence, it requires interference.
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NC: 2023:KHC:22237 MFA No. 5800 of 2022
7. The counsel also relied upon the order passed by this Court in LAWS (KAR)-1982-8-21 in the case of APPI BELCHADTHI vs SHESHI BELCHADTHI and brought to notice of this Court paragraphs 15, 16 and 20 wherein it is discussed with regard to Section 48A of the Act and observed that the crux of the matter herein, as noticed earlier, is as to the right of the appellants to claim a share in the occupancy right granted in respect of the plaint B schedule properties and also discussed that is it the intention of the legislature that all such issues like the existence of a joint family or coparcenary, whether a person is a member of a joint family; the Court has to look into the very object.
8. The counsel would vehemently contend that in the case on hand admittedly, no dispute with regard to the fact that they belong to the Christian community and they are bound under the Indian Succession Act and the right is only after the death of the father. Hence, the Trial Court -9- NC: 2023:KHC:22237 MFA No. 5800 of 2022 ought not to have granted the relief of temporary injunction in respect of item No.2 property.
9. Per contra, the counsel appearing for the respondent/plaintiff would vehemently contend that in paragraph 2 of the plaint it is specifically pleaded with regard to item Nos.1 and 2 of the suit schedule properties and specifically pleaded that her grandfather is cultivating more than 27 acres of the land and he is having five male and one female children and in order to avoid dispute among the children, made the family arrangement in the year 1964 and asked defendant No.1 to take possession of item Nos.1 and 2 of the suit schedule property and specifically pleaded that the grandfather was on lease in respect of item No.2 of the suit schedule property and hence, the very claim is that the father is not having exclusive right to sell the property and also created the interest in respect of item No.2 of the suit schedule property against defendant Nos.3 to 6 and he was not having any absolute right to execute any settlement deed
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NC: 2023:KHC:22237 MFA No. 5800 of 2022 as contended by defendant No.1. Hence, the Trial Court taking note of the said fact into consideration and also considered the fact that the plaintiff is a unmarried daughter, she was also cultivating the property along with the father, allowed the claim of the plaintiff. Hence, the Trial Court has not committed any error.
10. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that the suit is filed for the relief of partition wherein in paragraph 2 of the plaint, the plaintiff has pleaded in respect of item Nos.1 and 2 and in respect of item No.2, the relief is granted in coming to the conclusion that she is an unmarried daughter and not discussed with regard to the averments made in the plaint while passing an order in paragraph 2 as she has stated that item No.2 of the property is in occupation of grandfather and he was continuing the same on lease. The Trial Court also taken note of the fact that the plaintiff is an unmarried daughter and admittedly, she was born in
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NC: 2023:KHC:22237 MFA No. 5800 of 2022 the year 1964 and grant was made in the year 1981 and same is not disputed by the defendants. The Trial Court taken note of the judgment of NIMBAVVA's case, which is also relied upon by the counsel for the appellant before this Court and this Court also in paragraph 19 comes to the conclusion that the Land Reforms Act is a special enactment which has been enacted for the benefit of cultivator, the same cannot be deviated by this Court by applying the provision of Hindu Succession Act. It is also not in dispute that it is settled law that the Land Reforms Act was brought with an intention to protect the interest of the cultivators. It is also the claim of the plaintiff that her grandfather was cultivating the said property and to settle the dispute between the members of the family of the grandfather, item Nos.1 and 2 properties were given to defendant No.1 and the said pleading is made in paragraph 2 of the plaint in respect of item No.2 is concerned and whether the grandfather was on lease prior to granting of the land in favour of defendant No.1 also to be taken note of and already there was a settlement deed
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NC: 2023:KHC:22237 MFA No. 5800 of 2022 in favour of defendant Nos.3 to 6, who are none other than the sons of defendant No.1 and arrangement is made in the settlement deed in favour of defendant Nos.3 to 6 that is during his lifetime and no doubt, defendant No.1, if he is the absolute owner as contended by the plaintiff, the same cannot be questioned during the lifetime of the father of the plaintiff, but she pleaded in the plaint with regard to item No.2 is concerned that grandfather was on lease and subsequently, an arrangement was made in favour of defendant No.1. When such pleading is made in the plaint itself, the very special enactment is a distinct enactment, and the same is also in order to protect the interest of the cultivators and whether it was the grant in favour of defendant No.1 and he is the absolute owner, matter has to be adjudicated before the Trial Court. Having taken note of the said fact into consideration, I do not find any error committed by the Trial Court or otherwise the interim order has not been granted since already there was settlement made in favour of defendant Nos.3 to 6 and they have further disposed of the property
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NC: 2023:KHC:22237 MFA No. 5800 of 2022 during the pendency of the suit, the same will lead to multiplicity of proceedings. Hence, the Trial Court has not committed any error and found that there is a prima facie case in favour of the plaintiff and hence, I do not find any error committed by the Trial Court in granting the order of temporary injunction in respect of item No.2.
11. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed. The observation made in the order by this Court shall not influence the Trial Court while considering the matter on merits.
Sd/-
JUDGE SN