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2017 DIGILAW 1467 (KAR)

Gangavva v. Govindappa

2017-11-07

SREENIVAS HARISH KUMAR

body2017
JUDGMENT : 1. This Appeal under Section 100 of CPC is filed by defendants 2 to 7 in O.S. No. 260/2002 on the file of III Additional Civil Judge (Junior Division), Dharwad, as the first Additional Civil Judge, Senior Division, Dharwad, by his judgment and decree dated 29.8.2008 dismissed their Appeal RA No.108/2006. 2. Referring to the parties with respect to the position of each of them in the trial Court, the pleadings in a nutshell are as follows: Yallappa, Basappa and Mushappa were the three sons of Hanumanthappa Yellappa Bidaragaddi. Plaintiff No. 1 is the son and plaintiff No. 2 is the wife of Mushappa. Defendant No.1 is the wife and defendants 2 to 7 are the children of Basappa. Defendant No. 8 is the son and defendant No. 9 is the wife of Yallappa. The first son of the propositus Hanumanthappa Birdaragaddi, namely Yallappa died on 10.3.1952. The whereabouts of the second son Basappa is not known since the year 1984, and he is presumed to be dead. The last son, Mushappa, died on 15.5.1951. According to the plaintiffs, agricultural land to an extent of 1 acre 4 guntas in Block No. 227, 12 acres 2 guntas in Block No. 429 (old Sy. No. 8) and 3 acres 17 guntas in Block No. 374/4 of Narendra Village, Dhawad Taluk, are the joint family properties (hereinafter referred to as ‘the suit properties’). In respect of the first item of the suit property, the revenue records stood in the names of Basappa, Mushappa and defendants 2 and 8. After death of Mushappa, the plaintiffs did not get their names entered because of some technical reasons. In respect of the second item of the suit property, i.e., 12 acres 2 guntas in Block No. 429, the plaintiffs have stated that the propositus Hanumanthappa was the original tenant under the landlord. After his death, the name of his first son Yallappa was shown as tenant since he was the Manager of the family. After the death of Yallappa, the name of Basappa came to be entered. Though this land stood in the name of Basappa, it was under the joint cultivation of the plaintiffs and the defendants. The plaintiffs came to know that in the year 1998, the defendants 3 to 6 got their names entered in the place of their father Basappa by giving a false report (vardhi). Though this land stood in the name of Basappa, it was under the joint cultivation of the plaintiffs and the defendants. The plaintiffs came to know that in the year 1998, the defendants 3 to 6 got their names entered in the place of their father Basappa by giving a false report (vardhi). After coming into force of the amendment brought to Karnataka Land Reforms Act by inserting Section 77A, the plaintiff No.1 and defendant No. 8 filed an application seeking grant of occupancy rights claiming that they were the tenants and the plaintiffs stated that the application had not been finalized. 3. In respect of the third item of the suit property, i.e., land in Block No. 374, the plaintiffs stated that earlier it belonged to Desai family of Mummigatti Village. The ancestors of the plaintiffs and the defendants were serving in the Desagat office of Mummigatti Desai family. Later on, this land vested with the Government. However, the Bidaragaddi family, i.e., the family of the plaintiffs and the defendants continued the cultivation of the said land with some other families. All those who were cultivating the lands applied to the Government seeking grant of that land in their favour. On behalf of their joint family, Basappa made the application. The Tahsildar, Dharwad, granted 3 acres 17 guntas in the name of Basappa. Giving these details, the plaintiffs claimed that all the suit properties belonged to the joint family. They have one-third share in the suit properties. Their request for partition was turned down and, therefore, they brought a suit seeking partition and separate possession of their one-third share. 4. The fifth defendant filed the written statement admitting the relationship but denied that the second and third items of the suit property were a part of the joint family. He pleaded that only the first item of the suit property, i.e., land in Block No. 227 was the joint family property and during the lifetime of Yallappa, Basappa and Mushappa, there had taken place a partition of this property. Since then, the families of all the three brothers have been cultivating their respective shares to an extent of 1 acre 4 guntas each. In this partition, the eastern side of the property fell to the share of Mushappa, the middle portion to Basappa and the western portion to Yallappa. Since then, the families of all the three brothers have been cultivating their respective shares to an extent of 1 acre 4 guntas each. In this partition, the eastern side of the property fell to the share of Mushappa, the middle portion to Basappa and the western portion to Yallappa. After the death of Yallappa and Mushappa and missing of Basappa, their sons succeeded to their respective shares. 5. With regard to second item of the suit property, the fifth defendant contended that the said land earlier belonged to one Sripad, s/o Ramchandra Deshpande who was the landlord of the property. Basappa, i.e., his father and the father of defendants 2 to 4 and 6 and 7 was cultivating the land since the year 1940 as a tenant after he separated from his two brothers. He was the only person who was cultivating the land as a tenant. In fact, Basappa had made an application in Form No. VII seeking occupancy rights. Though that application reached the office of the Tahsildar, the Tahsildar did not take necessary action and, therefore, after amendment was brought to Land Reforms Act, the defendants 3 to 6 submitted the application in Form No. VIIA seeking occupancy rights. Even though the said application was still pending, defendants 3 to 6 effected division of these lands by metes and bounds among themselves and each of them started cultivating the land that fell to each one’s share. 6. In respect of the third item of the suit property, it is contended by the fifth defendant that it was separately granted to his father Basappa by Tahsildar, Dharwad, in proceeding No. LGL.SR.70/75-76. Therefore, the defendants claimed that plaintiffs do not have any kind of right to seek partition in these two lands also. Defendant No. 5 prayed for dismissal of the suit. 7. Defendants 8 and 9 also filed their written statement supporting the claim of the plaintiffs and contended that they too had one-third share in all the suit properties. 8. The trial Court, after evaluating the evidence, both oral and documentary, came to the conclusion that there was no dispute with regard to first item of the suit property being a joint family property. With regard to the second item of the suit property, it was held that the said land was under the cultivation of the propositus Hanumanthappa during his lifetime. With regard to the second item of the suit property, it was held that the said land was under the cultivation of the propositus Hanumanthappa during his lifetime. After his death, his son Yallappa started cultivation along with his brothers and after his death, Basappa became the Kartha of the family. He too cultivated the land on behalf of the entire joint family. The admission given by DW1 in the cross-examination that the name of Basappa came to be entered in the record of rights in his capacity as the Manager of the Hindu joint family would show that he cultivated the land as a tenant not on his individual behalf but on behalf of the entire family. Therefore, the subsequent grant made by the Land Tribunal in the name of defendant No.5 after the missing of Basappa cannot be construed as grant of occupancy right only in favour of the children of Basappa, rather the said grant enured to the benefit of the entire family. 9. Even with regard to the third item of the suit property, it was held by the trial Court that the grant made by the Tahsildar was not exclusively in favour of Basappa. An amount of Rs.175.70 was paid to the Government for allotting the said land and this amount was paid by Basappa only from the income of the joint family. For this reason, the defendants cannot claim that the property belonged to them exclusively. The grant was made when Basappa was the Manager of the family. After coming to these conclusions, the trial Court, based on an admission given by DW1 in the cross-examination that he had given false evidence that there had taken place partition among the children of Hanumanthappa, held that the entire defence put forward by the defendants 3 to 7 could not be believed, rather the evidence would disclose that the joint family continued although each branch of the sons of Hanumanthappa was living separately. 10. In regard to one defence taken that the second item of the suit property was a tenanted land and for this reason the Civil Court had no jurisdiction, the trial Court is of the opinion that the Civil Court has jurisdiction to decide a suit for partition as the question of tenancy would not emerge at the time of deciding the shares of the members of the family. With these findings, the trial Court decided to decree the suit of the plaintiffs for partition. 11. The first Appellate Court, after re-appreciating the evidence concurred with the findings of the trial Court and further observed that even if the members of the joint family were cultivating separate portions of lands for their convenience, it did not mean that there was partition. The first Appellate Court has noticed a clear admission given by DW1 that he had uttered a lie that there had taken place partition earlier. With regard to the sketch produced by the defendants along with the written statement, the first Appellate Court opined that the said sketch only showed cultivation of different portions of the property separately, but it was not a proof for partition having taken place by metes and bounds. It held that Basappa held the entire management of the family as a Kartha. When rival applications were made seeking occupancy rights, the Land Tribunal had jurisdiction to decide as to in whose favour the occupancy rights could be conferred, but it did not exercise its jurisdiction. So, once occupancy rights was granted in favour of the branch of Basappa and if that land became subject matter of the partition suit, the Civil Court could decide whether it could be partitioned or not. Question of tenancy would not arise. Ex.P15 very clearly discloses that item No. 2 of the suit property was under cultivation of the joint family since the year 1928-29 and even after the grant made by the Land Tribunal in favour of a son of Basappa. Absolutely there were no error in the finding recorded by the trial Judge that it was a joint family property. In respect of the third item of the suit property, the first Appellate Court concurred with the findings of the trial Judge to hold that, the grant of the said land was in favour of the joint family. Basappa paid the price amount from the joint family funds for obtaining grant. Therefore, the said land was also joint family property and it was available for partition. Basappa paid the price amount from the joint family funds for obtaining grant. Therefore, the said land was also joint family property and it was available for partition. The only error noticed by the first Appellate Court was that defendants No. 8 and 9 in their written statement had claimed 1/3rd share and the trial Court had not granted it and, therefore, the first Appellate Court while upholding the judgment of the trial Court, also granted 1/3rd share to defendants 8 and 9. 12. On 5.8.2011, this Appeal was admitted to examine the following substantial questions of law: “(i) Whether the court below is justified in granting the decree of 1/3rd share insofar as item No. 2(B) and 2(C) properties are concerned though occupancy rights was granted in favour of Basappa? (ii) Whether the court below is justified in decreeing the suit including the schedule 2(B) and 2(C) properties though it was contended that occupancy rights has been granted in individual capacity and in view of the law laid down by the Hon’ble Supreme Court reported in (2009) 1 SCC 626 (ISHWARAGOUDA AND OTHERS v/s MALLIKARJUN GOWDA AND OTHERS)?” 13. Assailing the findings of the first Appellate Court, the learned counsel for the appellants (defendants 2 to 7) firstly argued that before the first Appellate Court, an application under Order XLI Rule 27 CPC had been filed. The appellants produced a copy of the order passed by the Land Tribunal. The first Appellate Court did not decide that application at all. Even in the judgment no reference is made to the said application. This is an error committed by the first Appellate Court. Therefore, again an application under Order XLI Rule 27 CPC has been filed in this Appeal and the appellants have produced two documents. He requested for allowing this application. 14. The second point he has argued is that, the appellants produced Form No. VIIA filed before the Land Tribunal. Second item of the suit property was still pending adjudication before the Land Tribunal when the suit was filed. Section 133 of the Karnataka Land Reforms Act bars the jurisdiction of the Civil Court to entertain a civil dispute in relation to a matter to be decided by the Land Tribunal. Second item of the suit property was still pending adjudication before the Land Tribunal when the suit was filed. Section 133 of the Karnataka Land Reforms Act bars the jurisdiction of the Civil Court to entertain a civil dispute in relation to a matter to be decided by the Land Tribunal. In spite of this specific defence taken by the defendants before the trial Court and the first Appellate Court, both the Courts erroneously held that Section 133 was not a bar. He argued that the two documents produced by the appellants along with the application under Order XLI Rule 27 CPC show that the land was granted in favour of the children of Basappa and another application in Form No. VIIA made by Hanumnthappa s/o Yallappa (defendant No.8) and Govinda s/o Mushappa (plaintiff No.1) was rejected by the Land Tribunal. They challenged this order of the Land Tribunal by filing an Appeal before Karnataka Appellate Tribunal and later on they withdrew that Appeal. Therefore, these documents would prove that the grant made by Land Tribunal in respect of item No.2 of the suit property was exclusively in favour of the appellants and the plaintiffs could not lay claim on that land. Therefore, it was his argument that once this matter having been decided finally by the Land Tribunal, the Civil Court would not get jurisdiction to entertain a dispute even in a partition suit. 15. With regard to the third item of the suit property, he argued that the grant was made exclusively in favour of Basappa, i.e., the father of the appellants. There is ample evidence to show that there had taken place partition between Basappa and his two brothers much before the grant. Subsequent grant made in favour of Basappa cannot become subject matter of the partition suit. Even with respect to this property, the findings of the trial Court as well as the first Appellate Court suffer from illegality. In support of his arguments, he placed reliance on the following judgments:- (1) WADI vs. AMILAL AND OTHERS [ILR 2003 KAR 4637] (2) PANCHAKSHARAPPA TATAPPA vs. THE CHIEF OFFICER [ILR 1998 KAR 1206] (3) MALAYALAM PLANTATIONS LIMITED VS STATE OF KERALA AND ANOTHER [2011 AIR SCW 264] (4) GOWDARA NANJAPPA vs. MATADA BASAIAH & OTHERS [ AIR 2008 SC 1480 ] (5) ISHWARAGOUDA AND OTHERS vs. MALLIKARJUN GOWDA AND OTHERS [ (2009) 1 SCC 626 ] 16. Meeting the arguments of the appellants’ counsel, the learned counsel for the respondents argued that the Civil Court has jurisdiction to decide the suit even in respect of a land, the occupancy rights of which was granted by the Land Tribunal. He elaborated his argument on this point that, the order of the Land Tribunal does not show that the grant of occupancy right was exclusively in favour of the appellants. From the clear admissions given by the defendants’ witnesses, Basappa was the Manager of the Hindu joint family. Item No.2 of the suit property was under the cultivation of the propositus, i.e., Hanumanthappa as a tenant. When Basappa became the Manager of the family, if he continued the cultivation of the said land, it was on behalf of the entire joint family and not on his individual behalf. No doubt, Land Tribunal order shows that the occupancy right was granted in favour of appellants, but since that land had been held by Basappa in the capacity of Manager of the family, such a land could be made a subject matter of partition. In fact, the Tribunal had the jurisdiction to decide whether the land was being cultivated by the joint family or not. When the Tribunal granted occupancy rights on the basis of entries found in the revenue records, the Civil Court could decide whether such a land could be partitioned or not and in support of this line of argument, he placed reliance on a judgment of this Court in the case of RATI @ VARIJA vs. THE STATE OF KARNATAKA AND OTHERS [ILR 2005 KAR 5219]. 17. He further argued that when the two Courts below have concurrently given findings on facts that the joint family properties had not been partitioned by metes and bounds, in this Second Appeal those findings cannot be disturbed. Both the Courts have appreciated the evidence properly. Even if the additional documents produced by the appellants along with the application under Order XLI Rule 27 CPC are considered, the appellants’ case will not improve. The withdrawal of the Appeal filed by the first plaintiff and defendant No. 8 before the Karnataka Appellate Authority was only for the reason that the matter had been ceased before this Court in Second Appeal. This withdrawal would not affect the interest of the plaintiffs-respondents. Therefore, he argued for dismissal of the Appeal. 18. The withdrawal of the Appeal filed by the first plaintiff and defendant No. 8 before the Karnataka Appellate Authority was only for the reason that the matter had been ceased before this Court in Second Appeal. This withdrawal would not affect the interest of the plaintiffs-respondents. Therefore, he argued for dismissal of the Appeal. 18. Before answering the substantial questions of law as aforementioned, it is necessary to deal with the first point of argument of the appellants counsel. If an application under Order XLI Rule 27 CPC had been made before the first Appellate Court for production of additional evidence and that application had not been decided by the said Court, it is certainly an error committed by the first Appellate Court. The judgment of the first Appellate Court does not contain any reference to this application. Certainly, the appellants’ grievance in this regard is genuine. The principles laid down by the Supreme Court in its judgments in the cases of Wadi and Malayalam Plantations Limited (supra) and this Court in Panchaksharappa Tatapa’s case need not be referred to in detail for the reason that the principles governing the way how an application under Order XLI Rule 27 CPC has to be decided is well settled. It is also another well established principle that application for additional evidence has to be decided by the Appellate Court at the time of deciding the Appeal on merits. If the Appellate Court finds that the application does not deserve to be granted, it can be dismissed and decision on the merits of the Appeal can be pronounced. If the application needs to be allowed, the next procedure to be followed is found in Order XLI Rule 28 and 29 CPC. The first Appellate Court has really committed an error in not deciding this application. However, it is be mentioned here that equally a duty is cast on the party who makes the application to draw attention of the Court that his application for production of additional evidence is pending and it needs consideration. Anyway, similar application is made in this Appeal and whether it is worth consideration or not will be dealt with later on. 19. Anyway, similar application is made in this Appeal and whether it is worth consideration or not will be dealt with later on. 19. The trial Court as well as the first Appellate Court have, after appreciating the evidence, concurrently held that the partition of the joint family property, as has been specifically pleaded by defendant No. 5 in his written statement had not taken place. There is no dispute with regard to the first item of the suit property being a joint family property. With regard to other two items, both the Courts below have concurrently held that they too are the joint family properties. These findings of facts cannot be disturbed, and it was not the argument of the appellants’ counsel that the Courts below have perversely appreciated the evidence. 20. In fact, both the substantial questions of law take the same answer. In the second substantial question of law, a reference is made to judgment of the Supreme Court in the case of Ishwaragouda (supra). What is held in this judgment is, when a dispute whether an agricultural land is a tenanted land or not, or whether a person claiming occupancy right is a tenant or not arises, the Land Tribunal alone gets jurisdiction to decide these issues. Section 133 of the Karnataka Land Reforms Act is a clear bar for entertaining these issues in a suit. In this case, undoubtedly item No.2 of the suit property was a tenanted land. As has been held by the Courts below, this land was under the cultivation of Hanumanthappa and after his death, his first son Yallappa started cultivating the land as a Manager of the joint family and thereafter Basappa became the Manager of the family after death of Yallappa and thus he came to be the cultivator of this land. No doubt, application made by Basappa in Form No. VII seeking occupancy right was not considered by the Tribunal for the reasons stated in the written statement, but there is no dispute that the application made by Basappa’s children was subsequently considered and occupancy right conferred on them. Since this land became subject matter of the suit while the Land Tribunal was seized of the matter, could the Civil Court not have entertained the dispute? It appears that when the suit was pending, Land Tribunal passed an order granting occupancy rights in favour of children of Basappa. Since this land became subject matter of the suit while the Land Tribunal was seized of the matter, could the Civil Court not have entertained the dispute? It appears that when the suit was pending, Land Tribunal passed an order granting occupancy rights in favour of children of Basappa. It is also an admitted fact that the first plaintiff and defendant No. 8 also made an application seeking occupancy rights and their application was rejected. In a situation like this, if a party whose application is rejected seeks partition in the said property, whether Civil Court gets jurisdiction or not is decided by this Court in the case of Rati @ Varija (supra). It is held as below: “16. From the above discussion, it is clear that when a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death, which is evident from Section 24 of the Act. Therefore, if both the sons and daughters of the deceased tenant apply for grant of occupancy right, the Tribunal has to club the applications of the rival claimants, consider them and decide the person entitled to be registered as an occupant and pass orders accordingly. 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 Courts jurisdiction to decide the very same question is ousted. If the Tribunal does not decide this question, but decides to confer occupancy rights on the basis of the 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 the deceased tenant. 17. In the present case, the tenancy is conferred on the 3rd respondent as per the order dated Annexure ‘D’ on the basis of the revenue records and his possession and cultivation of the Land. The Land Tribunal has not recorded a finding that the tenancy exclusively belongs to him. The petitioner has made a claim on the ground that she is a legal representative of Parameshwara Shervegara. The Land Tribunal has not recorded a finding that the tenancy exclusively belongs to him. The petitioner has made a claim on the ground that she is a legal representative of Parameshwara Shervegara. Her application was dismissed on a technical ground that she cannot claim tenancy under her husband. Therefore, petitioner has filed a suit for partition of the properties of Parameshwara Shervegara including the tenanted lands. I am of the view that the Civil Court has jurisdiction to decide this issue because the Civil Court is not called upon to decide as to who is the tenant as the same question is already decided by the Land Tribunal. The Civil Court is called upon to decide as to whether the tenancy right granted in favour of a person is his self acquisition or it belonged to his predecessor and that other heirs have a share in said property. The Civil Court is competent to go into this question. Therefore, no interference is called for in so far as the impugned orders are concerned.” 21. Same is the position in this case. Merely because the rival application of the plaintiff and defendant No.8 was rejected, it does not mean that the Civil Court does not get jurisdiction to decide a suit for partition in respect of property which was a tenanted land. If it is found that grant of land was in favour of entire joint family, such a property subsequent to grant, can become subject matter of partition. The issue that crops up for consideration is not on the basis of tenancy but on the basis of whether partition can be granted or not. 22. The learned counsel for the appellants has filed an application under Order XLI Rule 27 CPC for production of two documents namely, order passed by the Land Tribunal and the Karnataka Appellate Tribunal. The argument was that since the first plaintiff and defendant No.8 withdrew their Appeal, the grant made by the Tribunal became final and the said property became the exclusive property of Basappa. This argument cannot be accepted because of clear findings of the trial Court and the first Appellate Court that the grant enured to the benefit of the joint family. The withdrawal of the Appeal does not affect the interest of the respondents-plaintiffs. This argument cannot be accepted because of clear findings of the trial Court and the first Appellate Court that the grant enured to the benefit of the joint family. The withdrawal of the Appeal does not affect the interest of the respondents-plaintiffs. Even if this application is allowed, the position will not change and it will not better the case of the appellants. Therefore, this application is worth rejection. 23. In respect of the third item of the suit property also, the findings of the Courts below cannot be disturbed. Therefore, I now come to the conclusion that both the Courts below are justified in decreeing the suit for partition and accordingly the substantial questions are answered. 24. From the above discussion, I hold that this Second Appeal and also application filed under Order XLI Rule 27 CPC deserve dismissal. Ordered accordingly. No order as to costs.