Karnataka High Court
Mrs. Rajivi vs Mr. Jayramma on 17 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.544/2016 (PAR)
BETWEEN:
1. MRS. RAJIVI,
W/O LATE K.SADASHIVA,
AGED ABOUT 63 YEARS,
R/AT SOMAPPA PANDIT COMPOUND,
PUMPWELL, MANGALORE-02.
2. MRS. AMITHA,
D/O LATE K.SADASHIVA,
W/O K.GOPALKRISHNA,
AGED ABOUT 43 YEARS,
R/AT SHIVA CHARAN AMITHA,
JAIN COMPOUND ATTAVARA,
MANGALORE-02.
3. MRS. SUNITHA,
D/O LATE K.SADASHIVA,
W/O SANTOSH KUMAR,
AGED ABOUT 41 YEARS,
R/AT SRI.MATHA,SHEDIGURI,
ASHOKNAGAR, MANGALORE-02.
4. MRS. SAVITHA,
D/O LATE K SADASHIVA,
W/O BHAVANI SHANKAR,
AGE ABOUT 37 YEARS,
PANDIT TOMA POOJARY,
NELAKADU HOUSE, PADUBIDRI,
KARKALA ROAD, UDUPI - 02.
2
5. MR. HEMALATHA,
S/O LATE KUTTI POOJARY,
AGED ABOUT 69 YEARS,
PONNU COMPOUND,
NEAR D.C. OFFICE, KANDAKA,
MANGALORE - 01.
6. . MR. NAGESH,
S/O LATE KUTTI POOJARY,
AGE ABOUT 66 YEARS,
FRED APARTMENTS,
OPP. DURGA MAHAL HOTEL ,
MANNAGUDDA, MANGALORE - 01.
... APPELLANTS
(BY SRI.NAVEED AHMED, ADV.)
AND:
1. MR. JAYRAMMA,
S/O LATE ISHWARA POOJARY,
AGED ABOUT 46 YEARS,
2. SMT. MOHINI,
D/O LATE ISHWARA POOJARY,
AGED ABOUT 42 YEARS,
3. MR. PURANDHARA,
S/O LATE ISHWARA POOJARY,
AGED ABOUT 39 YEARS,
4. MR. JAYANTHA,
S/O LATE ISHWARA POOJARY,
AGED ABOUT 36 YEARS,
RESPONDENTS 1 TO 4 ARE
R/AT BAGAMBILA HOUSE,
NEAR NITTE HOSPITAL,
DERALAKATEE POST,
MANGALORE TALUK - 02.
3
5. SMT. VIMALA,
D/O. LATE KOTI POOJARY,
R/AT BAGAMBILA HOUSE,
NEAR NITTE HOSPITAL,
DERALAKATTE POST,
MANGALORE TALUK - 02.
6. SMT. SAROJINI,
W/O. SHANKAR POOJARY,
AGED MAJOR,
DEREMBALA HOUSE,
JODUKLA POST,
KASAGOD DISTRICT, KERALA - 20.
7. MR. SOMAPPA,
S/O. LATE KOTI POOJARY,
AGED MAJOR,
R/AT BAGAMBILA HOUSE,
NEAR NITTE HOSPITAL,
DERALAKATTE POST,
MANGALORE TALUK - 02.
8. SMT. JANAKI,
W/O. NARAYANA,
ADULT,
PADMA NILAYA,
PUMP WELL, KANKANADY POST,
MANGALORE - 02.
9. MR. NARAYANA,
S/O. LATE KUNHARA POOJARY,
R/AT PADMA NILAYA,
PUMP WELL, KANKANADY POST,
MANGALORE - 02.
10. MR. DEVADAS,
S/O. LATE KUNHARA POOJARY,
R/AT PADMA NILAYA,
PUMP WELL, KANKANADY POST,
MANGALORE-02.
4
11. SMT. RAMANI,
W/O. SANJEEVA,
ADULT,
KONDANA HOUSE,
KOTEKAR POST,
MANGALORE TALUK - 02.
12. SMT. SHASHIKALA,
D/O. LATE. KUNHARA POOJARY,
ADULT,
KONDANA HOUSE,
KOTEKAR POST,
MANGALORE TALUK - 02.
13. MR. SEETHARAM,
S/O. LATE. KUNHARA POOJARY,
ADULT,
KONDANA HOUSE,
KOTEKAR POST,
MANGALORE TALUK - 02.
14. SMT. SULOCHINI,
D/O. LATE. KUNHARA POOJARY,
ADULT,
KONDANA HOUSE,
KOTEKAR POST,
MANGALORE TALUK - 02.
15. SMT. BHAGIRATHI,
W/O. RAGHU POOJARY,
AGE 69 YEARS,
KONDANA HOUSE,
KOTEKAR POST,
MANGALORE TALUK - 02.
16. SMT. JANKI,
W/O. SRI. SOMAPPA POOJARY,
AGE 66 YEARS,
R/AT SULYAME HOUSE,
KODALAMOGARU POST,
MANJESHWAR,
5
KASARGOD,
KERALA -20.
17. SRI. GIRISH,
S/O. SANJIVA POOJARY,
AGED ABOUT 32 YEARS,
18. SRI. YOGISH,
S/O SANJIVA POOJARY,
AGED ABOUT 31 YEARS,
19. SMT. SOUMYA,
D/O SANJIVA POOJARY,
AGED ABOUT 29 YEARS,
20. SRI. HARISH,
S/O SANJIVA POOJARY,
AGED ABOUT 27 YEARS,
RESPONDENT NOS.17 TO 20 ARE
R/AT KONDANA MANE, KOTEKAR POST,
MANGALORE - 02.
21. SRI. ANAND POOJARY,
S/O LATE SMT. KAMALA & SUBBU POOJARY,
AGED ABOUT 54 YEARS,
R/AT KONDANA MANE,
KOTEKAR POST,
MANGALORE - 02.
22. SRI. VASUDEVA POOJARY,
S/O LATE SMT. KAMALA & SUBBU POOJARY,
AGED ABOUT 44 YEARS,
R/AT KONDANA MANE, KOTEKAR POST,
MANGALORE - 02.
23. SMT. PADMAVATHI,
W/O MR. SUNDARA POOJARY,
AGED ABOUT 31 YEARS,
R/AT BAGAMBILA, DERALAKATTE POST,
MANGALORE - 01.
6
24 . SRI. K. SHAMA,
S/O LATE KAMALA & SUBBU POOJARY,
AGED ABOUT 52 YEARS,
R/AT KONDANA MANE
KOTEKAR POST,
MANGALORE - 02.
... RESPONDENTS
(BY SRI.PUNDIKAI ISHWARA BHAT, ADV., FOR R1 TO R8;
R9 TO R24 ARE SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 04.01.2016
PASSED IN R.A NO.79/2012 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 13.06.2012 PASSED IN O.S
NO.320/2003 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE, MANGALORE, D.K.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the legal representatives
of plaintiff No.2.
2. Smt. Kamala initially instituted a suit for partition.
She claimed that the suit schedule properties i.e., 5
agricultural properties were joint family properties and she
was entitled for a share in the said properties.
3. During the pendency of the suit, Sri. K.
Sadashiva, Sri. Hemantha and Sri. Nagesh all sons of
Sri. Late Kutti Poojary got themselves transposed as plaintiff
Nos.2, 3 and 4.
4. The trial Court on appreciation of the evidence
came to the conclusion that the plaintiffs had failed to prove
that the suit schedule properties belonged to Sri. Thaniya
Poojary and that defendant No.1 i.e., Ishwara Poojary had
not made the application under the provisions of the
Karnataka Land Reforms Act, 1961 ('the Act' for brevity) for
conferment of occupancy rights on behalf of their entire
family.
5. The trial Court came to the conclusion that
defendant No.1 had made an application seeking for
confirmation of occupancy rights in his individual capacity and
the Land Tribunal had conferred occupancy rights on the
premise that he alone was the tenant of the suit schedule
properties.
6. The Land Tribunal also noticed that Sri. Kutti
Poojary i.e., the predecessor in the interest of plaintiff Nos.2
to 4 had also made an application seeking for confirmation of
occupancy rights and the said application had been rejected
by the Tribunal and the same was also accepted by Sri. Kutti
Poojary.
7. The Trial Court noticed that the landlord
Sri. Gopalkrishna Saralayya had himself admitted that
defendant No.1 alone was his tenant and Sri. Kutti Poojary
was not his tenant.
8. The trial Court after noticing that the land had
been granted exclusively to defendant No.1, none of his
siblings and their children were entitled to claim a share and
accordingly, dismissed the suit.
9. The Appellate Court on re-appreciating the
evidence, found no reason to disagree to the finding recorded
by the trial Court and accordingly affirmed the finding of the
trial Court that Sri. Ishwara Poojary was a tenant by himself
and the property granted to him could not be the subject
matter of the partition at the instance of the siblings and it
accordingly dismissed the appeal.
10. It is against this concurrent finding, the second
appeal is preferred.
11. It is not in dispute that the predecessors in
interest of plaintiff Nos.2 to 4 and defendant No.1 filed
applications under the provisions of the Act seeking for
conferment of occupancy rights. It is also not in dispute that
the Land Tribunal conferred occupancy rights in favour of
defendant No.1 exclusively and rejected the application of Sri.
Kutti Poojary, the predecessors in the interest of plaintiff
Nos.2 to 4. It is not in dispute that the predecessors in
interest of plaintiff Nos.2 to 4 i.e., Sri. Kutti Poojary did not
challenge the rejection of his Form No.7. In other words, the
order of the Land Tribunal holding that defendant No.1 was
the exclusive tenant of the suit properties was accepted by
Sri. Kutti Poojary.
12. In the light of the fact that Sri. Kutti Poojary
himself accepted that Sri. Ishwara Poojary alone was the
tenant, the claim made by his legal representatives for a
share in the suit properties cannot obviously succeed. Both
the Courts were therefore justified in dismissing the suit. I
find no question of law, much less, a substantial question of
law arising for consideration in this second appeal and
consequently, the same is dismissed.
Sd/-
JUDGE
SJK
