Karnataka High Court
Shayma Rao S/O Srinivas Rao vs Bheema Rao S/O Late Srinivas Rao on 11 September, 2013
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
M.S.A.NO.314/2011
A/W. MISC. CVL. NO.104516/2011
BETWEEN:
SHAYMA RAO S/O. SRINIVAS RAO
AGED ABOUT: 44 YEARS,
OCC: AGRICULTURIST
R/AT: NESARATTI VILLAGE,
KUDLIGI TALUK, DIST: BELLARY.
... APPELLANT
(COMMON)
(BY SMT. V. VIDYA FOR SRI SURESH P. HUDEDAGADDI,
ADVOCATE FOR SPACE LAW ASSOCIATES)
AND :
1. BHEEMA RAO
S/O. LATE SRINIVAS RAO
AGED ABOUT: 59 YEARS,
OCC: ATTENDER,
POSTAL DEPARTMENT,
KUDLIGI TOWN, DIST: BELLARY.
2. THE ASSISTANT COMMISSIONER
AND LAND ACQUISITION OFFICER,
HOSPET, DIST: BELLARY.
... RESPONDENTS
(COMMON)
(BY SRI ANAND K. NAVALGIMATH, H.C.G.P. FOR R2)
2
THIS M.S.A. IS FILED UNDER SECTION 54(2) OF THE
KARNATAKA LAND ACQUISITION ACT, AGAINST THE
JUDGMENT AND AWARD DATED 09.12.2010 PASSED IN
MISCELLANEOUS APPEAL NO.18/2008 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-III AT HOSPET,
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 28.03.2008 PASSED IN L.A.C. NO.1/2005 ON
THE FILE OF CIVIL JUDGE (SR.DN.) AT KUDLIGI, CLAIMANTS
ARE ENTITLED FOR THE COMPENSATION AMOUNT WITH
ACCRUED INTEREST SHALL BE APPORTIONED EQUALLY.
MISC. CVL. NO.104516/2011 IS FILED FOR GRANT OF
STAY.
THIS M.S.A. A/W. MISC. CVI. COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The second claimant in L.A.C. No.1/2005 on the file of Civil Judge (Sr.Dn.) Kudligi has come up in this miscellaneous second appeal impugning the divergent finding rendered by the lower Appellate Court in M.A. No. 18/2008 on the file of Fast Track Court III at Hospet.
2. The undisputed facts leading to this miscellaneous second appeal are as under:
3. Claimants Bheemarao and Shyamrao before the LAC Court are second and third sons of Sreenivasrao an Archak of 3 Venkateshwara Swamy Temple of Gudekote village. The said Sreenivasrao had in all three sons, the first of them is Raghavendra, second and third are claimant Nos. 1 and 2 in L.A.C. No.1/2005. The said Sreenivasrao as Archaka of Venkateshwara Swamy Temple, Gudekote was in possession and enjoyment of land bearing R.S. No.494 of Gudekote village measuring to an extent of 75 cents in addition to other properties belonging to his joint family. The said Sreenivasrao was kartha of his joint family consisting of himself and his three sons Raghavendra and claimant Nos. 1 and 2. That there was no partition in the family of Sreenivasrao, during the life time of himself and his son Raghavendra who died subsequently.
4. Thereafter one of the joint family property i.e., land bearing R.S. No.494 which was service inam land in the hands of Sreenivasrao was acquired for construction of a sub-station of K.P.T.C.L. and compensation was awarded. In the mean while it is seen that after Inams Abolition Act came into force, the first claimant Bheemarao in L.A.C. No.1/2005 filed application in Form No.1 seeking re-grant of the said inam land in his favour. 4 Accordingly, his application for re-grant of land bearing R.S. No.494 of Gudekote village was allowed and he was registered as grantee of the said land by the Land Tribunal.
5. The dispute which is required to be decided in this miscellaneous second appeal is whether re-grant of said land in favour of first claimant Bheemarao in L.A.C. No.1/2005 is in his individual capacity or as legal heir of deceased Sreenivasrao. In the proceedings in L.A.C. No.1/2005 the grant in favour of Bheemarao is held as grant on behalf of the joint family of Sreenivasrao. While deciding the application under Section 30 of the Land Acquisition Act, the trial Court held that both Bheemarao and Shyamrao being the surviving members of joint family of Sreenivasrao they are entitled to compensation awarded by K.P.T.C.L. in the ratio of 50% each. The said judgment of the L.A.C. Court was challenged by 1st claimant in the lower Appellate Court in M.A. No.18/2008 contending that subsequent to death of his father Sreenivasrao continued to discharge the duties of Archaka in Venkateshwara Swamy 5 Temple of Gudekote, as such he is entitled to seek compensation in respect of the said property exclusively.
6. It is seen that lower Appellate Court has come to the conclusion that there is no joint family in existence between Bheemarao and Shyamarao, accepted Bheemarao as the person continuing to discharge duties as Archaka in Venkateshwara Swamy Temple. The application that was filed by him in Form No.1 for regrant of certain Inams Abolition Act is accepted as filed in his individual capacity and not in the capacity of member of the family of his father late Sreenivasrao. As such it was held that he is the only person, who is entitled to the compensation. The said finding of the lower Appellate Court is hereby challenged in this second appeal.
7. Heard the learned counsel for appellant and as well as the respondent. On re-appreciation of the material available on record with reference to the grounds of appeal, finding of both the Courts below and also the evidence available on record it is clearly seen that when deceased Sreenivasrao was alive he 6 constituted a joint family of himself and his three sons i.e., his first son Raghavendra and claimant Nos.1 and 2 before the L.A.C. Court. It is seen that after the death of Srinivas Rao and his first son Raghavendra, Bheemarao filed an application seeking regrant of the land bearing Sy.No.494 of Gudekote village Raghavendra. There is nothing on record to show that there was partition in the family of deceased Sreenivasrao and that there was distribution of assets belonging to the joint family of Sreenivas Rao and that the right to perform pooja is inherited by his son Bheema Rao. Therefore, the finding of the lower Appellate Court in holding that Bheemarao submitted Form No.1 in his individual capacity does not find favour with the facts available on record. When admittedly the grant which was earlier in favour of Sreenivasrao was not subject matter of partition and that the cultivation of same was admitted in the hands of the joint family how it came to the exclusive share of Bheemarao has not been properly explained. In the absence of any partition in the family, contention of Bheemarao that it was under his exclusive cultivation and enjoyment, as such he was 7 entitled to file application in Form No.1 seeking regrant under certain Inams Abolition Act is not supported by any document.
8. Per contra, the evidence available on record would clearly disclose that the land bearing Sy.No.494 and other lands which were in possession and enjoyment of Sreenivasarao continued to be joint family property even after his death and also the death of his first son Raghavendra. In the absence of any partition in the said family, the first claimant in L.A.C. No.1/2005 claiming exclusive right over either land bearing Sy.No.494 or any other land does not stand to reason. The finding of the lower Appellate Court in holding that first claimant Bheemarao is exclusive owner of land bearing Sy.No.494 and as such he is entitled to entire award amount for acquiring of the said land does not stand to reason.
9. Therefore, the aforesaid finding of lower Appellate Court in M.A. No.18/2008 is required to be set aside and consequently the finding of L.A.C. court in holding that both the claimants are entitled to receive compensation in equal share of 8 50% is required to be accepted. Accordingly by allowing this second appeal the judgment and decree passed in M.A. No.18/2008 on the file of Fast Track Court III Hospet is set aside. Consequently, the order dated 28.03.2007 passed in L.A.C. No.1/2005 on the file of Civil Judge (Sr.Dn.) Kudligi is confirmed. Accordingly, this appeal is allowed.
10. In view of the appeal being disposed of, application filed in Misc. Cvl.104516/2011 for stay does not survive for consideration.
SD/-
JUDGE hnm/