Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 519 (KAR)

Ramachandra v. Sadashiv

2023-03-28

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - Defendants No.1 to 8 in O.S.57/1997 on the file of the Senior Civil Judge, Gokak are before this Court assailing the judgment and decree granting 1/3 share in all the suit schedule properties in favour of the plaintiffs. 2. Admitted genealogy of the parties is as under: 3. Govindappa was the propositus. He had three sons by names Ramachandra, Bhimappa and Appayya. It is not in dispute that Ramachandra had no issues and Bhimappa died issueless and the third son of Govindappa, namely Appayya had four sons, Shambappa, Govindappa, Shashappa and Mahadev. Among the four sons of Appayya, Shambappa was given in adoption to Ramachandra - who was the elder son of propositus Govindappa. 4. The suit for partition is filed by the wife and children of last son of Appayya viz., Mahadev. The suit is filed against the branch of Govindappa who are defendants 1 to 8 and branch of Shashappa -defendants 10 and 11. Bhimappa - son of adopted son of Shambappa is arrayed as defendant No.9. No relief is claimed against him. He is arrayed as a party as his name appeared in one of the property records. The suit was filed on the premise that suit schedule properties were the joint family properties of plaintiffs and defendants 1 to 8, 10 and 11. 5. The defendants contested the matter and defendants took a stand that there is already a partition in the family and prayed for dismissal of the suit. 6. The trial Court on appreciation of the evidence has concluded that all the properties are joint family properties and granted decree for 1/3 share in respect of the properties in favour of the plaintiffs and 1/3 share in favour of defendants 1 to 8 and 1/3 share in favour of defendants 10 and 11. Being aggrievedby the said judgment and decree, defendants 1 to 8 are in appeal. Defendants 10 and 11 have accepted the judgment and decree. 7. Sri Mahesh Wodeyar, learned counsel appearing for the appellants at the outset would urge that the suit for partition granted by the trial Court is one without jurisdiction. Being aggrievedby the said judgment and decree, defendants 1 to 8 are in appeal. Defendants 10 and 11 have accepted the judgment and decree. 7. Sri Mahesh Wodeyar, learned counsel appearing for the appellants at the outset would urge that the suit for partition granted by the trial Court is one without jurisdiction. He would submit that item Nos.5 and 6 viz., Sy.No.482/2 measuring 4 acres 5 guntas and Sy.No.482/1a measuring 4 acres 11 guntas are the lands granted by the Land Tribunal and the Civil Court lacks jurisdiction to grant a decree for partition in respect of those lands. By referring to the order of the Land Tribunal, he would submit that the occupancy is granted to the parties based on Form No.1 and the Land Tribunal itself has demarcated the share of the parties to the proceedings and as such, he would contend that no further partition is permissible. He would also submit that insofar as item Nos.1 to 4 of schedule 'A' and item Nos.1 and 2 of schedule 'B', there is already a partition and evidence led by the defendants are not properly appreciated by the trial Court and the trial Court erred in decreeing the suit for partition. 8. Sri Ravi S. Balikai, learned counsel appearing for the respondents would submit that the partition has not taken place in the family. All the properties are joint family properties. The properties at item Nos.5 and 6 were the devasthanam inam lands and the properties are given for cultivation for the family as a consideration for the purpose of performing pooja and records would indicate that Govindappa was performing pooja and after his demise, his son Appayya was performing pooja and Form No.1 is filed by Mallappa - the eldest son of Govindappa and as such, grant of occupancy should be treated as grant in favour of entire family. It is the submission of Sri Ravi S Balikai that Form No.1 was filed by Govindappa - who is one of the son's of Appayya is not in his individual capacity and it is in the capacity of the elder member of the family representing the branch of Appayya. 9. It is the submission of Sri Ravi S Balikai that Form No.1 was filed by Govindappa - who is one of the son's of Appayya is not in his individual capacity and it is in the capacity of the elder member of the family representing the branch of Appayya. 9. It is also the submission of the learned counsel for the respondents Sri Ravi S Balikai that 1st defendant in the cross examination has categorically admitted that all the properties are the ancestral properties and Govindappa was managing the properties as the family manager on behalf of other persons of the family and based on the admission the trial Court has rightly concluded that the properties are joint family properties. 10. This Court has considered the contentions raised at the bar and also perused the impugned judgment and decree. The Court has also perused the Apex Court judgment cited by Sri Mahesh Wodeyar, learned counsel for the appellants in the case of Ishwaragouda And Others v. Mallikarjun Gowda And Others reported in (2009) 1 SCC 626 . 11. There is no dispute relating to the genealogy referred above. The records would also indicate that the properties were inherited from the propositus Govindappa. Among two sons of Govindappa i.e. Ramachandra and Bhimappa had no issues and later Ramachandra took Shambappa in adoption and Appayya's third son i.e. Mahadev's branch represented by his wife and children filed the suit for partition. The document at Ex.P.23 would reveal grant of occupancy in favour of persons named therein. From Ex.P.23 it is apparent that occupancy rights is granted in favour of Mallappa, Ramachandra, Maruti, Appayya and Shivappa, who are all children of Govindappa. Admittedly, Govindappa was managing the affairs of the family as admitted by DW1 in the cross examination. Govindappa inherited tenancy from his father along with two other brothers namely Bhimappa and Appayya. Unless the defendants are able to show that after the demise of Appayya there was a partition in the family and in that partition the properties are allotted to the share of Govindappa, the defendants cannot contend that the grant of occupancy would enure to their benefit. If not the branch of Govindappa should demonstrate that tenancy was acquired independently without having inherited the same after the demise of Appayya. 12. Defendants have failed on both the counts. If not the branch of Govindappa should demonstrate that tenancy was acquired independently without having inherited the same after the demise of Appayya. 12. Defendants have failed on both the counts. On the other hand, plaintiffs have established that Appayya inherited the tenancy from Govindappa and after the demise of Appayya, tenancy is inherited by his three children. Under the circumstances, the findings of the trial Court that the properties are the joint family properties and the grant of occupancy is for the benefit of the entire family cannot be faulted. 13. As far as the contention of Sri Mahesh Wodeyar that the Civil Court has no jurisdiction to grant partition with reference to the judgment of the Apex Court in the case of Ishwara Gouda supra is concerned, it is to be noticed that there was no dispute before the Tribunal when the Form No.1 was filed before the Tribunal. The dispute arose only after the grant of occupancy rights. In terms of the law laid down in the aforementioned case, if the dispute is before the Tribunal, then the Tribunal alone gets jurisdiction to decide the interse dispute among the rival claimants. However, in this case that is not the position. There was no dispute before the Tribunal. That being the case, the ratio laid down in the aforementioned case does not apply to the case on hand. 14. As far as one more contention raised by Sri Mahesh Wodeyar with reference to mutations wherein the partition is said to have been taken place between the branch of Shashappa and Mahadev is concerned, same does not come to the aid of the appellants for the simple reason that if the partition is to be accepted, the appellants will get lesser share than what was awarded by the trial Court. 15. For the aforementioned reasons, this Court is of the view that the judgment and decree passed by the trial Court do not suffer from any illegality or infirmity. Accordingly, appeal is dismissed confirming the judgment and decree of the trial Court.