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2004 DIGILAW 118 (KAR)

BAPU v. YASHWANT SATTEPPA NIKAM

2004-02-13

K.SREEDHAR RAO

body2004
K. SREEDHAR RAO, J. ( 1 ) THE appeal filed against the Judgment and decree passed in O. S. No. 29/87 on the file of Civil Judge (Sr. Dn.), Athni. The appellants are the L. Rs. of deceased plaintiff filed a suit for partition and possession of the share in "a" and 'b' schedule properties. One Satteppa Ningappa Nikam is the propositus died in the year 1930. Ningappa, Yeshawanthappa, Krishna and Hanumantha are sons of Satteppa. There was a partition in the family in the year 1946 as per Ex. D. I. The 'b' schedule lands at item Nos. 1 to 6 are the Sanadi Inam lands. The succession to the Inam lands is governed by the rule of primogeniture. In the partition deed as per Ex. D. I. the item Nos. 1 to 6 in Ex. D. 1 were given to the first defendant, as he was the eldest male member of the family. The plaintiff seeks share in the Sanadi Inam lands and also in the other suit schedule properties. ( 2 ) THE first defendant per. contra contends that the Sanadi Inam lands are granted exclusively his share in the partition and that the plaintiffs cannot claim any share. The Village Offices were abolished by the Karnataka Village Offices Abolition act. The first defendant obtained regrant of the Sanadi Inam lands in the year 1971 from the Assistant Commissioner. Therefore, the defendant alternatively contends adverse possession from the date of re-grant. The first defendant got impleaded defendant Nos. 5 to 9 and seeks the relief of partition in item Nos. 1 to 6, which are in the possession of defendant Nos. 5 to 9. ( 3 ) THE Defendant Nos. 5 to 10 contend that the properties in their possession are self-acquired properties. Therefore, resists the claim for partition. ( 4 ) THE trial Court finds that the under the partition 'a1 schedule properties are already partitioned between the parties and all of them are enjoying them separately and each one of them have executed separate lease deeds in favour of Ugar Sugar Factory. Therefore, deems that granting relief of partition in 'a' schedule property does not arise. About the Sanadi Inam lands the trial Court finds that under Ex. D. 1 in a partition the properties are granted exclusively in favour of the first defendant and he becomes exclusive owner of the property. Therefore, deems that granting relief of partition in 'a' schedule property does not arise. About the Sanadi Inam lands the trial Court finds that under Ex. D. 1 in a partition the properties are granted exclusively in favour of the first defendant and he becomes exclusive owner of the property. Thus rejected the claim of partition and also rejected the plea of adverse possession. About the lands pertaining to defendant Nos. 5 to 9, the trial Court finds that the properties are all purchased during the year 1953 and 1954, sub-sequent to the partition of the family. Therefore, they are the self-acquired properties of defendant Nos. 5 to 9, as such not available for partition and dismissed the suit of the plaintiff. The plaintiff confines the challenge only in respect of Sanadi Inam lands shown at item Nos. 1 to 6 in the 'b' schedule in this appeal. ( 5 ) THE Counsel for the respondent Nos. 6 to 8 contends that the finding given by the trial Court on adverse possession is perversely contrary to law and evidence. Therefore, argued against the finding on the issue of adverse possession but supporting the decree. ( 6 ) THE following points that arise for consideration are :1. Whether the finding of the trial Court that the Sanadi Inam lands at item Nos. 1 to 6 In the 'b' schedule does not have the character of a joint family property by virtue of partition under Ex. D. 1 and exclusively belongs to first defendant is bad in law. 2. Whether the finding of the trial Court that 1st Defendant has not proved adverse possession is" contrary to evidence and bad in law? ( 7 ) THE ruling of the Supreme Court in Chinnathayi v. Kulashekara Pandiya Naicker, AIR 1952 SC 29 in paras 27 and 28 the following observations are made: (27) In Lakshmi Devi v. Surya Narayana (1897) ILR 20 Mad 256 P. C. , the'last zamlndar died without any issue in 1888, and when his widow was in possession, the suit was brought for possession by a male collateral descended from a great grand father common to him and to the last zamindar. The plaintiff claimed to establish his right as a member of an undivided family holding joint property against the widow who alleged that her husband had been the sole proprietor. The plaintiff claimed to establish his right as a member of an undivided family holding joint property against the widow who alleged that her husband had been the sole proprietor. In proof of this she relied on certain arrangements as having constituted partition, viz. , that In 1816, two brothers, then heirs, agreed that the elder should hold possession, and that the younger should accept a village, appropriated to him for maintenance in a satisfaction of his claim to inherit; again, that in 1866, the fourth zamindar compromised a suit brought against him by his sister for her inheritance, on payment of a stipend to her, having already, in the claim of his brother, granted to him two villages of the estate; and by the compromise, this was made conditional on the sister's claim being settled; again, that in 1871, the fourth zamindar having died pending a suit brought against him to establish the fact of an adoption by him, an arrangement was made for the maintenance of his daughter, and two widows who survived him, the previous grant for maintenance of his brother holding good, the adoption being admitted, and the suit compromised. It was held that there was nothing in the arrangement which was inconsistent with the zamindari remaining part of the common family property and that the course of the inheritance had not been altered. The facts of this case were much stronger than those of the present one. The mere circumstance that by an arrangement a village out of the zamindari was given to one of the brothers was not inconsistent with zamindari remaining part of the common family property. The document executed by the brother in the reported case was in these terms :"i or my heirs shall not at any time make any claims against you or your heirs in respect of property movable or immovable, or in respect of any transaction. As our father put you in possession of the Belgaum Zamindari, I or my heirs shall not make any claim against you or your heirs in respect of the said Zamindari. As our father put you in possession of the Belgaum Zamindari, I or my heirs shall not make any claim against you or your heirs in respect of the said Zamindari. "it was observed by their Lordships that they did not find any sufficient evidence in the arrangement made by these documents of an intention to take the estate out of the category of Joint or common family property so as to make it descendable otherwise than according to the rules of law applicable to such property, that the arrangement was quite consistent with the continuance of that legal character of the property, that the elder brother was to enjoy the possession of the family estate, and the younger brother accepted the appropriated village for maintenance in satisfaction of such rights as he conceived he was entitled to and that it was nothing more in substance than an arrangement for the mode of enjoyment of the family property which did not alter the course of descent. (28) The evidence in the present case is trivial and inconclusive and from the documents above-mentioned no intention can be deduced on the part of the junior members or on the part of any other member of the family of disrupting and dividing the family and renouncing their expectancy of succession. On the other hand, the statements made in 1889 and 1890 by the members of the family clearly indicate that none of them had any intention of giving up his rights of heirship to the zamindari. There was no change of this frame of mind at any later stage of the family arrangement. Sundara Pandiya on 9-1-1889 clearly stated that the wish of the family was that the widow should be in charge of the estate and after her the next heir should succeed and that it was Kandasaim Kandasami said that he was the next heir, the family being undivided. In the compromise this statement was reiterated. Their intention was to preserve their rights to take the zamindari if the line of Kandasami became extinct. ( 8 ) FURTHER relied on the ruling of the Supreme Court in Kalgonda Babagonda Patil V. Balagonda Kalgonda Patil, AIR 1989 SC 1042 in paras 13, 14 and 15 the following observations are made: 13. Their intention was to preserve their rights to take the zamindari if the line of Kandasami became extinct. ( 8 ) FURTHER relied on the ruling of the Supreme Court in Kalgonda Babagonda Patil V. Balagonda Kalgonda Patil, AIR 1989 SC 1042 in paras 13, 14 and 15 the following observations are made: 13. It was also contended by learned counsel that there was also a partition in the family in 1874 and the properties which could be partitioned were partitioned between the two branches of the family and thereafter according to the learned counsel the families had separated and in view of that It could not be said that there was any Joint family subsisting. However, learned counsel admitted that although when other properties which could be partitioned were partitioned in 1874 and also some properties in 1904 but still the Watan (Inam) lands which were held by the senior member of the family according to the custom and which were heritable continued generation after generation until by the present Act i. e. Bombay Inferior Village Watans Abolition Act, 1958 (Bom Act 1 of 1959) these were abolished. It, therefore, could not be doubted that these Watan lands continued to be the hereditary property of the family although according to the custom the Watan was only in the name of the Senior member of the family and the succession according to the custom was in accordance with rule of primogeniture. This is not disputed that fcr the first time under this Act these Watans were abolished and the lands were converted into Royatwari lands and, therefore, they became partible. 14. Learned counsel although attempted to contend that acquisition of the rights by the Watandar in the lands held as Watans before abolition and Rayatwari lands after abolition allotted to him was altogether a new allotment as the effect of the Act was that the land vested in the State but all these questions are concluded in view of the decisions referred to above. 15. In view of the fact that these properties which were Watan lands were not partitioned at an earlier stage continued to be the joint family property it could not be contended that as the property which would be partitioned was partitioned in 1876 and 1904 this property became the exclusive property of the respondent, ( 9 ) THE recitals in Ex. D. 1 does not disclose that the rights in Sanadi Inam lands were relinquished exclusively in favour of the first defendant under Ex. D. 1. After abolition of Inams, if re-grant Is made, the benefit will enure to the members of the family in view of the ruling of the Supreme Court In Chinnathayai's case, reported in AIR 1952 SC 29 . Therefore, the finding given by the trial Court that the Sanadi Inam Lands became absolute property of first defendant under Ex. D. 1 is bad in law. The first point is answered in the affirmative. ( 10 ) THE view of the trial Court in upholding the claim of adverse possession and also upholding the title is an inconsistent and Incongruous view. ( 11 ) THE ruling of the Supreme Court in Annasaheb Bapusaheb Patil v. Balwant Babusaheb Patil, AIR 1995 SC 895 , in para 14 the following observations are made: 14. In the case of a Hindu Joint family, there Is a community of Interest and unity of possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenery property. The mere fact that one of the coparceners is not In joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one. therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other members he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other. The right of the plaintiff to file suit for partition had arisen after the Act has come into force and re-grant was made by the Collector under sub-section (1) of S. 5. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other. The right of the plaintiff to file suit for partition had arisen after the Act has come into force and re-grant was made by the Collector under sub-section (1) of S. 5. The defendant, therefore, must plead and prove that after the re-grant, he asserted his own exclusive right, title and interest to the plaint scheduie property to the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of right and allowed the defendant to remain in continuous possession and enjoyment of the property in assertion of that hostile title during the entire statutory period of 12 years without any let and hindrance and the plaintiff stood thereby. (Underlining emphasised by me'. ( 12 ) IN the present case, the first defendant has taken a categorical plea of adverse possession from the date of re-grant. The evidence is also adduced to show the exclusive possession and cultivation. The mutations are taken out in his name and the taxes are paid by him. The re-grant is made in the year 1971 whereas the suit is filed for partition in the year 1987, almost 16 years from the date of re-grant. The ratio laid down by the Supreme Court in, AIR 1995 SC 895 is squarely applicable to the facts of the case. There is a categorical plea of adverse possession and sufficient proof of adverse possession. The suit obviously filed after 16 years of re-grant would not be maintainable. In that view of the matter, the claim of the plaintiff for partition is liable to be rejected. The second point is answered in the affirmative. ( 13 ) REGARDING the 'a' schedule items, the trial Court has rightly found from Ex. D. 1 and the evidence that the parties have divided the lands in question and have leased the lands in their individual capacity to Ugar Sugar Factory. Therefore, the question of granting partition does not arise. ( 14 ) ABOUT the lands owned by Defendant nos. 5 to 9 the properties are obviously acquired after partition. Therefore, they bear the character of self-acquisition and plaintiffs cannot claim any share. Accordingly, the appeal is dismissed. Appeal dismissed. --- *** --- .