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2022 DIGILAW 85 (KAR)

Thimmegowda v. Cheluvegowda

2022-01-20

N.S.SANJAY GOWDA

body2022
JUDGMENT Neranahalli Srinivasan Sanjay Gowda, J. - This is a second appeal filed by the first defendant. 2. It is not in dispute that the plaintiff - Cheluvegowda and defendant Nos. 1 to 3 are brothers and are sons of late Narasimhegowda alias Kullegowda. 3. The suit was instituted for partition contending that the suit schedule property was joint family property of plaintiff and defendant Nos. 1 to 3 and the first defendant being the kartha of joint family, was managing and looking after the suit schedule property. It was stated that earlier Narasimhegowda, the father of the plaintiff and defendant Nos. 1 to 3 was in possession and enjoyment of the suit schedule property and that there had been no partition despite a request being made in that regard. 4. During the pendency of the suit, the sons of Narasimhegowda, the uncle of the first plaintiff got themselves impleaded and they stated that in the year 1959, there was a oral partition between Narasimhegowda and Cheluvegowda and the suit property was being cultivated by Narasimhegowda on a lease. 5. The first defendant - appellant entered appearance and contested the suit. It was his case that the suit property was his separate property and none of his brothers were entitled to a share in the said property. He stated that originally the suit property belonged to the Wholesale Co-operative Society, which had leased out the property to the father of plaintiff and defendant Nos. 1 to 3 i.e., Narasimhegowda and every year, Narasimhegowda was paying the rent to the Society. 6. The second and third defendants supported the case of the plaintiff and sought for allotment of 1/4th share to them. 7. The Trial Court on appreciation of the evidence recorded a finding that Narasimhegowda, the father of plaintiff and defendant Nos. 1 to 3 was in possession of the property and the property was being cultivated by all the family members and an application had been filed by the first defendant on behalf of the family and notwithstanding the fact that occupancy rights were conferred on the first defendant, the same would have to be construed as a joint family property. 8. The Trial Court accordingly decreed the suit and granted 1/4th share to the plaintiff and to defendant Nos. 1 to 3. 9. Being aggrieved, the first defendant preferred an appeal. 8. The Trial Court accordingly decreed the suit and granted 1/4th share to the plaintiff and to defendant Nos. 1 to 3. 9. Being aggrieved, the first defendant preferred an appeal. The Appellate Court after re-appreciation of the evidence, concurred with the findings of the Trial Court. 10. The Appellate Court took note of the fact that in the Form No. 7 filed by the first defendant before the Land Tribunal, the first defendant himself had stated that the land was being cultivated right from the time of his grandfather. It also found that the evidence on record also indicated that from the time of the first defendant's grandfather, rent was been paid to the Society. The Appellate Court therefore came to the conclusion that the finding of the Trial Court that the family members were in cultivation of the suit property jointly could not be in doubt and as a consequence, all the family members of the family were entitled for a share. The Appellate Court accordingly confirmed the decree and dismissed the appeal. 11. It is as against this concurrent finding that the suit property was a property being cultivated jointly by the family members in which the plaintiff and defendant Nos. 1 to 3 had 1/4th share, the present second appeal is filed. 12. The contention of the learned counsel for the appellant is that the question as to whether the family was the tenant or the first defendant was the tenant was a question, which had to be decided exclusively by the Land Tribunal and the Civil Court had no jurisdiction to entertain such a plea. 13. It is to be stated here above that the question of tenancy was not at all the subject matter of the suit. The fact that the lands were tenanted was an undisputed fact. The question that was raised before the Trial Court was as to whether the family members together cultivated the land on tenancy basis or was the land being exclusively cultivated by the first defendant. 14. Both the Courts have taken the note of the fact that the first defendant in very Form No. 7 filed by him stated that the lands were under cultivation right from the time of his grandfather. 14. Both the Courts have taken the note of the fact that the first defendant in very Form No. 7 filed by him stated that the lands were under cultivation right from the time of his grandfather. This statement indicates that even according to the plaintiff, the entire family members of the plaintiff were cultivating in the property and consequently, as a result of the order of the land Tribunal, the said property would partake the character of a joint family property. 15. Both the Courts, in my view were absolutely justified in decreeing the suit and granting plaintiff 1/4th share. 16. I find no question of law, much less a substantial question of law arising for consideration in this appeal. Consequently, the second appeal is dismissed.