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2013 DIGILAW 1205 (KAR)

Sadanand v. Tulsi Since Deceased By Her Lrs

2013-10-23

B.SREENIVASE GOWDA

body2013
Judgment : 1. This second appeal is by the 5th defendant in O.S.37/1999 aggrieved by the judgment and decree passed by the courts below in decreeing the suit of the plaintiffs declaring the plaintiffs as owners in respect of Sy.No.52/5E to the extent of half each comprising of the land only and also in Sy.No.622A/3D and granted permanent injunction restraining defendants from obstructing plaintiffs from enjoying Sy.No.622A/3D and further declaring that plaintiffs are entitled for compensation awarded in respect of Sy.No.52/5E pertaining to the land only, and further holding that defendants 1 and 2 are entitled for the remaining properties including house which has been situated in Sy.No.52/5E acquired by the Government and the compensation thereof. 2. Along with the appeal, an application in I.A.3/2013 under Section 5 of the Limitation Act is filed seeking to condone the delay of 129 days in filing the appeal. 3. I have heard the learned Counsel for appellant and perused the judgment and decree of the courts below. 4. Plaintiffs have brought a suit in O.S.37/1999 for the relief of permanent injunction restraining defendants from obstructing them in enjoying the suit Sy.No.622A/3D and from taking compensation in respect of acquisition of property bearing Sy.No.52/5E and alternatively for the relief of partition that each of the plaintiffs has 1/3rd share in the compensation in respect of the above mentioned acquired property and the land bearing Sy.No.322A/3D by metes and bounds. 5. The material on record discloses that plaintiffs are the daughters of one Gopi Banu Naik. Defendant No.1 and 2 are the daughter-in-law and daughter of one Pattu who is the brother of the plaintiffs and the son of said Gopi Banu Naik. Ex.P.10 is the order of the Land Tribunal dated 8.10.1975 by which the Land Tribunal granted occupancy rights of Sy.No.622A/3D measuring 26 guntas and Sy.No.52/5E measuring 11 guntas in favour of plaintiffs and Pattu Banu Naik who are the children of Gopi and Banu Naik. Ex.P.11 is another order of the Land Tribunal dated 5.4.1976 wherein it has granted occupancy rights of Sy.No.622A/3D, Sy.No.52/5E, Sy.No.52/5C, Sy.No.620/1F, Sy.No.619/312 in favour of Pattu Banu Naik. Therefore, there are two orders in respect of Sy.No.52/5E and Sy.No.622A/3D. 6. The trial court has noticed that the names of ancestors of defendants 3 to 10 do not find a place in either of the two orders of the Land Tribunal. Therefore, there are two orders in respect of Sy.No.52/5E and Sy.No.622A/3D. 6. The trial court has noticed that the names of ancestors of defendants 3 to 10 do not find a place in either of the two orders of the Land Tribunal. Ex.P.12 is the M.E.9310 by which the names of defendants 1 and 2 were entered after death of Pattu Banu Naik. The names of plaintiffs find a place in these documents. Ex.P.13 M.E.9688 shows that after the death of Durgappa names of defendants 3 to 10 have been entered. Though these documents mention that Sy.No.622/3D, 622A/3A+3B+3C, 622A/1B are involved, but there is no mention that Sy.No.622A/3D is involved in the said transaction. Therefore, Ex.P.13 cannot confer any right on defendants 3 to 10 over Sy.No.322A/3D. 7. Similarly, Ex.P.14 is ME No. 3839 and 6986 and these two entries show that Gopi was the tenant of Sy.No. 52/5E and 622A/3D and the names of plaintiffs have been entered after her death in the year 1968. The above documents clearly show that Sy.No.622A/3D and 52/5E were standing in the name of deceased Gopi and she was the tenant of the said properties. It is not known how the name of Tulsi was entered in respect of Sy.No. 622A/3D from the year 1968 onwards. 8. The Land Tribunal, Ankola by its order Ex.P.10 dt. 8- 10-75 had granted occupancy right of these two lands in favour of plaintiffs. The trial Court has observed that Land Tribunal having granted occupancy right vide Ex.P.10 dt. 8-10-75 jointly in favour of plaintiffs and their brother Pattu B.Naik had no jurisdiction to grant the same land in favour of Pattu B.Naik alone in the year 1976 to which order plaintiffs were not parties. 9. The father of the 5th defendant/appellant viz. Durgappa Shetti had filed an application to the Land Tribunal seeking to grant occupancy right of the land bearing Sy.No. 622A/3D measuring 26 guntas in his favour. The Land Tribunal rejected his application in respect of land bearing Sy.No.622A/3D measuring 26 guntas. Therefore, continuation of the name of Durgappa Shetti in the record of rights is without any basis. 10. It is also evident that plaintiffs and their brother Pattu B.Naik had continued as members of joint family. The plaintiffs were married and they started living with their husbands, therefore jointness had come to the end. Therefore, continuation of the name of Durgappa Shetti in the record of rights is without any basis. 10. It is also evident that plaintiffs and their brother Pattu B.Naik had continued as members of joint family. The plaintiffs were married and they started living with their husbands, therefore jointness had come to the end. The contention of the defendants that plaintiffs and their brother Pattu B.Naik had separated long ago is not supported by adducing any cogent evidence. It is not the case of the defendants that Sy.No.622A/3D and 52/5E were cultivated by plaintiffs and their brother Pattu B.Naik separately under a family agreement. The trial Court considering the above material aspect of the matter has rightly decreed the suit of the plaintiffs, declaring plaintiffs are the owners of Sy.No.52/5E to the extent of half each considering the land only and also Sy.No.622A/3D and granted permanent injunction restraining the defendants from obstructing plaintiffs from enjoying the land bearing Sy.No. 622A/3D and has further held that the plaintiffs are entitled for the compensation awarded in respect of Sy.No.52/5E pertaining to the land only. Defendants 1 and 2 are entitled for the remaining properties including the house which has been situated in Sy.No.52/5E. 11. Even though the contesting defendants 1 and 2 have not carried the matter in appeal, the defendants 4 to 8 have only preferred R.A.No.364/2006 challenging the judgment and decree of the trial Court. The lower appellate Court on re-appreciation of entire oral and documentary evidence on record dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Except defendant No.5 all other children of said Durgappa have accepted the judgment and decree passed by the Courts below realising that the application filed by their father for grant of occupancy right has been rejected and they do not have any right, title or interest over the suit land. It is only the fifth defendant who has preferred this second appeal. Both the Courts have concurrently held that the application made by Durgappa Shetti the father of defendant No.5 for grant of occupancy right in his favour being rejected by the Land Tribunal, he has no right over the suit land. 12. I have carefully gone through the judgments of both the Courts below and do not find any infirmity or illegality warranting my interference. 12. I have carefully gone through the judgments of both the Courts below and do not find any infirmity or illegality warranting my interference. Moreover, there is no substantial question of law which arises for my consideration in this second appeal. 13. Accordingly, the appeal is dismissed as devoid of merits.