H.N. Nagamohan Das, J., JUDGMENT This regular first appeal is directed against the judgment and decree dated 21-7-1997 in O.S. No. 151 of 1980 passed by the 10th Additional City Civil Judge, Bangalore City, dismissing the suit of plaintiffs. 2. Appellants are the plaintiffs and respondents are defendants before the Trial Court. The parties are referred to their status before the Trial Court. 3. Plaintiffs contend that their father Sri Appajappa and the father of defendants, Sri Puttarangappa were close relatives and both had business relationship. They jointly purchased Survey No. 110 and Survey No. 207/2 of Doddagunta Village under a registered sale deed dated 28-9-1929. Sri Appajappa died in the year 1940 and Sri Puttarangappa died in the year 1957. Sri Appajappa and Sri Puttarangappa jointly enjoyed the schedule properties during their lifetime and thereafter the plaintiffs and defendants who are their legal representatives enjoyed the properties till the, year 1963. Thereafter differences arose between the parties. The defendants started taking hostile attitude towards the plaintiffs. Since the defendants refused to partition the schedule properties, the plaintiffs filed the suit for partition and separate possession of their half share in the schedule properties. 4. Defendants in their written statement contend that their father Sri Puttarangappa was in exclusive possession of the suit properties right from the date of purchase and he was discharging all liabilities. It is further contended that under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 the Special Deputy Commissioner for Inam Abolition in Case Nos. 4 and 5 vide orders dated 27-10-1959 and 26-10-1959 granted occupancy rights in respect of the schedule properties in favour of the defendants and they are in possession and enjoyment of schedule properties as absolute owners. The plaintiffs have no manner of right, title and interest in the schedule properties. The defendants denied the claim of plaintiffs. 5. On the basis of the pleadings, the Trial Court framed issues and additional issues. They are: I. Does the plaintiff prove that he is a joint owner of the schedule properties and he is entitled to half share? II. Is the suit properly valued? III. Whether this Court has got the pecuniary jurisdiction to try this suit? IV. Do defendants 5 to 10 prove they have perfected the title to the schedule property by adverse possession? V. To what reliefs the parties entitled to? II. Is the suit properly valued? III. Whether this Court has got the pecuniary jurisdiction to try this suit? IV. Do defendants 5 to 10 prove they have perfected the title to the schedule property by adverse possession? V. To what reliefs the parties entitled to? Additional Issues: I. Whether defendants 7 and 8 proves that the suit filed by the plaintiff is not maintainable in law in view of the earlier decision of the then Mysore Appellate Tribunal? II. Whether this Court has no jurisdiction to try the suit? III. Is there any cause of action for the plaintiff to file this suit? 6. The Trial Court vide order dated 24-6-1975 held issues 2 and 3 in affirmative. The plaintiffs examined one witness as P.W. 1 and got marked Ex. P.1 to Ex. P. 3. Defendants examined one witness as D.W. 1 and got marked Ex. D.1 to Ex. D. 7. The Trial Court on appreciation of the pleadings, oral and documentary evidence on record passed the impugned judgment and decree dismissing the suit of plaintiff. Hence, this appeal. 7. Sri Y.N. Satyanarayana, learned Counsel for the plaintiffs contend that plaintiffs and defendants are the joint owners of suit schedule properties. A suit for partition by one of the joint owners is maintainable. He contends that the occupancy rights granted by the Special Deputy Commissioner for Inam Abolition in favour of the defendants had enured to the benefit of plaintiffs and therefore, the suit for partition is maintainable. The Special Deputy Commissioner for Inam Abolition rejected the claim of the plaintiffs mainly on the ground that it had no jurisdiction to go into the question of title to the schedule properties. It is further contended that the reasoning of the Trial Court that the plaintiffs are not coparcenor of defendants' family and therefore they cannot maintain a suit for partition is bad in law. Reliance is placed on the following decisions: (i) Balawwa and Another v Hasanabi and Others; (ii) Abubakar Abdul Inamdar (dead) by L.Rs and Others v Harun Abdul Inamdar and Others; (iii) Karbalai Begum v Mohd. Sayeed and Another ; (iv) Chhote Khan and Others v Mal Khan and Others; (v) Appi Belchadthi and Others v Sheshi Belchadthi and Others"; (vi) Booda Poojary u Smt. Thoma Poojarthi and Others; (vii) Dhareppa v State of Karnataka and Others. 8. Sayeed and Another ; (iv) Chhote Khan and Others v Mal Khan and Others; (v) Appi Belchadthi and Others v Sheshi Belchadthi and Others"; (vi) Booda Poojary u Smt. Thoma Poojarthi and Others; (vii) Dhareppa v State of Karnataka and Others. 8. Per contra, Smt. Anuradha, learned Counsel for defendants contend that plaintiffs were not in possession of the schedule properties as on the date of vesting of the schedule lands with the Government under Inams Abolition Act. She contends that under the provisions of Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 it is only the person in possession of the schedule properties is entitled for registration of occupancy rights. Way back in the year 1959, the Special Deputy Commissioner under the Inams Abolition Act granted occupancy rights in respect of the schedule properties in favour of the defendants and as such the same had become final and binding on the parties to the suit. She contends that the plaintiffs are not the members of defendants' family and therefore the dismissal of suit is in accordance with law. She further contends that the claim of the plaintiffs for grant of occupancy rights under the Inams Abolition Act came to be rejected and the same had become final and binding on the plaintiffs. She supports the judgment and decree of the Trial Court. Reliance is placed on the following decisions: (i) Kempamma and Another v S. Kempanna alias Kempaiah and Others; (ii) H.N. Abdul Rahman and Others v Dhobi Muniswami and Others9; (iii) Balesha Rama Khot and Others v Land Tribunal, Chikodi and Others; (iv) P.R. Rangachar v Land Tribunal, Hoskote and Another; (v) Basavaraj M. v State of Karnataka and Others; (vi) Anjanappa v Byrappa; (vii) Doddamma v Muniyamma and Others; (viii) Rati alias Varija v State of Karnataka and Others. 9. I have given anxious consideration to the contentions of the learned Counsel appearing for both the parties. Perused the decisions relied on both sides. 10. The Trial Court held issues 2 and 3 in affirmative holding that the suit property is properly valued and the Court is having pecuniary jurisdiction. Further the Trial Court held issue 4 in negative holding that the defendants have failed to prove and establish that they have perfected their title to the schedule properties by adverse possession. 10. The Trial Court held issues 2 and 3 in affirmative holding that the suit property is properly valued and the Court is having pecuniary jurisdiction. Further the Trial Court held issue 4 in negative holding that the defendants have failed to prove and establish that they have perfected their title to the schedule properties by adverse possession. The defendants have not questioned the finding of the Trial Court on these issues 2, 3 and 4 and the same had become final. Insofar as the remaining issues, the Trial Court has dismissed the suit mainly on the ground that the Civil Court has no jurisdiction to go into the orders passed by the authorities under Inams Abolition Act and as such the suit of the plaintiff is not maintainable. 11. It is not in dispute that Sri Appajappa, the father of plaintiff and Sri Puttarangappa, father of defendants jointly purchased the schedule properties under a registered sale deed dated 29-8-1929. After the demise of original owners, Sri Appajappa and Sri Puttarangappa their legal representatives, that is, the plaintiffs and defendants are co-owners of plaint schedule properties. Since the plaintiffs and defendants are co-owners are entitled for partition of the schedule properties. The Supreme Court in Chhote Khan's case, held that partition is a right incident to the ownership of the property and once the parties are held as co-owners, their right to partition cannot be resisted. In view of this dictum of the Supreme Court, the suit of the plaintiffs for partition of the schedule properties is maintainable. 12. Though defendants admit that under the registered sale deed dated 29-8-1929, Sri Appajappa and Sri Puttarangappa purchased the schedule properties, they contend that it was Sri Puttarangappa who was in exclusive possession and enjoyment of the schedule properties and he was discharging the liabilities in respect of the schedule properties. Therefore, the defendants contend that the plaintiffs who were not in possession of the schedule properties cannot maintain a suit for partition. This contention of learned Counsel for defendants is unacceptable to me. The Supreme Court in Karbalai Begum's case, held that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. This contention of learned Counsel for defendants is unacceptable to me. The Supreme Court in Karbalai Begum's case, held that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal position would that the co-sharers in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees. 13. In the instant case, the Trial Court has held that the defendants have failed to prove and establish that they have perfected their title to the schedule properties by adverse possession. Though the plaintiffs have not produced any evidence to show that they are in joint possession of the schedule properties with the defendants, their right to claim partition cannot be denied. The defendants are in possession of the schedule properties as trustees on behalf of the plaintiff. The defendants have not pleaded in their written statement, the theory of ouster of plaintiffs from possession of the schedule properties. Though the plaintiffs are not in physical possession of the schedule properties, they are in constructive possession of the schedule properties through their co-sharers i.e., the defendants. Therefore, the plaintiffs who are the co-owners are entitled to maintain a suit for partition against the defendants who are co-sharers in constructive possession ofthe schedule properties. 14. The contentions of the learned Counsel for defendants that the authorities under the Inams Abolition Act granted occupancy rights as early as on 26-10-1959 and 27-10-1959 in case numbers 4 and 5 respectively in favour of the defendants and the same had become final. It is further contended that the claim of plaintiffs for grant of occupancy rights came to be rejected by the Special Deputy Commissioner vide order dated 30-9-1985 in Case No. 68 and the same had become final. Therefore, it is contended that these orders passed by the authorities under Inams Abolition Act had become final and binding on the parties and the same cannot be re-opened in a suit for partition is unacceptable to me. Therefore, it is contended that these orders passed by the authorities under Inams Abolition Act had become final and binding on the parties and the same cannot be re-opened in a suit for partition is unacceptable to me. In the orders passed by the Special Deputy Commissioner dated 26-10-1959 and 27-10-1959, the claim of the plaintiffs was not considered as the plaintiffs are not parties to those orders and therefore they are not binding on the plaintiffs. In the order dated 30-9-1985 in Case No. 68, the Special Deputy Commissioner under Inams Abolition Act rejected the claim of plaintiff on the ground that he is not in physical possession of the schedule properties and that he cannot go into the title of the schedule properties under the Inams Abolition Act. Therefore, the authorities under Inams Abolition Act have not adjudicated the claim of the plaintiff as co-sharer in the plaint schedule properties. Since the authorities under the Inams Abolition Act have not decided the claim of the plaintiff is entitled to get his right decided in the Civil Court. The Full Bench of this Court in Booda Poojary's case, held that after grant of occupancy rights in respect of an agricultural land, the leasehold rights stand converted into freehold rights without damaging the existing rights of the occupants family or any member thereof. It is open to the parties to get their share, title or interest decided in the Civil Court in the property in respect of which occupancy rights are granted. Grant of occupancy rights by the Tribunal to an individual in respect of joint family tenanted lands will not have the effect of converting that into a separate property of that individual or the occupancy rights granted in respect of the personal tenancy of that individual would acquire different character. Therefore, the grant of occupancy rights in respect of co-ownership properties in favour of the defendants is not converted into their individual rights in the schedule properties. Further, the grant of occupancy rights in favour of the defendants will not damage or destroy the right of plaintiff who is co-owner of the schedule properties. Therefore, the suit of the plaintiff for partition of schedule properties is maintainable and the Trial Court committed an illegality in dismissing the suit. 15. Further, the grant of occupancy rights in favour of the defendants will not damage or destroy the right of plaintiff who is co-owner of the schedule properties. Therefore, the suit of the plaintiff for partition of schedule properties is maintainable and the Trial Court committed an illegality in dismissing the suit. 15. It is settled position of law that the Tribunal or the authorities under the Inams Abolition Act did not have jurisdiction to decide the title, interest, right of partition in respect of the schedule properties. It is only the Civil Court, which can entertain a suit for partition. The Supreme Court in Balawwa's case, held that the occupancy right granted enures to the benefit of other heirs also who are otherwise eligible to a share in the land in question. 16. In Doddamma's case, it is held that if the question of tenancy belonging to the joint family raised before the Land Tribunal and the Tribunal does not decide the said question one way or the other and leaves it to be decided by the Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of the one of the claimants while considering the relief of partition. It is further held that it is the Civil Court alone has the jurisdiction to entertain the suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition. 17. In Rati's case, it is held that if the Tribunal records a finding one way or the other then the said finding becomes final subject to challenge under the Act. The Civil Court's jurisdiction to decide the very same question is ousted. If the Tribunal does not decide the question, but decides to confer the occupancy rights on the basis entries in the revenue records or on the basis of his actual possession or cultivation of the land and declines to record a finding as to whether the occupancy right is granted exclusively to him, then the other applicant is entitled to seek partition of the occupancy rights granted in favour of the other heir of deceased tenant. 18. 18. In the instant case, the authorities under Inams Abolition Act granted occupancy rights in favour of the defendants only on the ground that they were found to be in possession of schedule lands. The authorities under the Act have not decided the right, title and interest of plaintiff as co-owner in the plaint schedule properties. The Special Deputy Commissioner for Inam Abolition while rejecting the claim of plaintiffs holds, that he had no jurisdiction to go into the question of title. In the absence of any finding by the authorities under the Act on the question of plaintiffs light over the schedule properties, he is entitled to maintain a suit for partition. It is the Civil Court alone competent to entertain the suit and to grant decree for partition. Therefore, the reasoning of the Trial Court is contrary to the law declared by the Apex Court and this Court in the decisions referred to supra. 19. The contention of learned Counsel for the defendants that it is only the member of joint family who is entitled to seek partition in respect of grant of occupancy rights in favour of one of the members of joint family and not by co-owner is unacceptable to me. In the decisions relied on both the side, the Courts have considered the grant of occupancy rights in respect of joint family tenanted lands. But in the instant case, the issue involved is grant of occupancy rights in respect of co-ownership properties. It is not in dispute that under a registered sale deed dated 29-8-1929, Sri Appajappa and Sri Puttarangappa acquired the schedule lands. The grant of occupancy rights in respect of co-ownership lands in favour of defendants will not become the separate property of defendants. Defendants were in possession of schedule properties as trustees of plaintiffs. The plaintiffs were in constructive possession of schedule properties. Therefore, the right of the plaintiffs is not taken away by grant of occupancy rights in favour of defendants. On the other hand the grant of occupancy rights in favour of defendants had enured to the benefit of plaintiffs. 20. The conclusion of the Trial Court that the suit is not maintainable and that the Civil Court cannot interfere with the orders passed by the authorities under the Inams Abolition Act is contrary to the facts and law involved in this case. The suit of the plaintiffs is maintainable. 20. The conclusion of the Trial Court that the suit is not maintainable and that the Civil Court cannot interfere with the orders passed by the authorities under the Inams Abolition Act is contrary to the facts and law involved in this case. The suit of the plaintiffs is maintainable. The Trial Court is having the jurisdiction to entertain the suit and to decide whether the plaintiffs are entitled for partition of scheduled properties. Therefore, the impugned judgment and decree insofar as the maintainability of the suit is liable to be quashed and the matter is required to be remanded for fresh disposal in accordance with law. 21. For the reasons stated above, the following.- ORDER I. Appeal is allowed in part; II. The judgment and decree dated 21-7-1997 in O.S. No. 151 of 1980 passed by the 10th Additional City Civil Judge, Bangalore City on issues 2, 3 and 4 remains undisturbed and the same is intact; III. The judgment and decree dismissing the suit of plaintiffs on the ground that it is not maintainable and that the Civil Court cannot interfere with the orders passed by the authorities under the Inams Abolition Act and the finding on issues 1 and 5 and on additional issues 1 to 3 are hereby set aside; IV. The matter is remanded to the Trial Court for fresh disposal in accordance with law as expeditiously as possible and in any event not later than three months from the date of receipt of copy of this judgment. Ordered accordingly.