Karnataka High Court
Maktumsab S/O.Ladajisab Nadaf vs Basappa S/O. Shiddappa Karigar on 4 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.6041/2013 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO.6040/2013
REGULAR SECOND APPEAL NO.6041/2013
BETWEEN
MAKTUMSAB S/O. LADAJISAB NADAF
SINCE DECEASED BY HIS LRS
1. JAITUNABI W/O. MAKTUMSAB NADAF
AGE: 62 YEARS,
OCC:HOUSEHOLD WORK
R/O.NANDAGAON-KHANAPUR,
TQ: GOKAK, DIST: BELGAUM -591201.
2. RAZIYA W/O. ASLAM PINJARI
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK
R/O. 1312, RAVIWAR PETH,
PUNE, MAHARASHTRA-411002.
3. SHAINAZ W/O. MASTANSAB NADAF
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK
R/O. KARADIGUDDI,
TQ AND DIST: BELGAUM - 591201,
4. SHAMEEMABHANU W/O. HASANSAB NADAF
AGE: 38 YEARS, OCC: GOVT. SERVANT
R/O. TIRTHAHALLI,
2
TQ AND DIST: SHIMOGA-577201.
5. DILSHADABI W/O. MOULASAB NADAF
AGE: 36 YEARS,
OCC: HOUEHOLD WORK
R/O. NANDAGAON-KHANAPUR
TQ: GOKAK, DIST: BELGAUM - 591201.
6. KHAIRUN W/O. KASHIMSAB NADAF
AGE: 34 YEARS,
OCC: HOUEHOLD WORK
R/O. MANGAMMA PALLYA
BOMANAHALLI, BANGALORE-68.
7. MUSTAQALI S/O. MAKTUMSAB NADAF
AGE: 32 YEARS,
OCC: PRIVATE SERVICE
R/O. MANGAMMA PALLYA
BOMANAHALLI, BANGALORE-68.
8. AAYESHA W/O. BABUSAB NADAF
AGE: 28 YEARS,
OCC: HOUSEHOLD WORK
R/O. KULGOD, TQ: GOKAK,
DIST: BELGAUM -591201.
...APPELLANTS
(BY SRI. SRINAND A PACHHAPURE, ADV., AND
SMT. PALLAVI PACHHAPURE, ADV., FOR
SRI. RAJENDRA R. PATIL, ADV., FOR APPELLANTS)
AND
1. MALIKJAN S/O.MOHAMMADSAB NADAF
AGE: 37 YEARS, OCC: AGRICULTURE,
R/O. GHATAPRABHA,
TQ: GOKAK DIST: BELGAUM -590001.
2. BASAPPA S/O. SHIDDAPPA KARIGAR
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. NANDAGAON, KHANAPUR,
3
TQ: GOKAK, DIST: BELGAUM-590001.
3. YALLAPPA S/O. DUNDAPPA KARIGAR
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. NANDAGAON, KHANAPUR,
TQ: GOKAK DIST: BELGAUM -590001.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT & DECREE DATED 30.09.2013
PASSED IN R.A.NO.9/2011 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE GOKAK, ALLOWING THE APPEAL, FILED AGAINST
THE JUDGMENT AND DECREE DATED 21.02.2011 AND THE
DECREE PASSED IN O.S. NO.142/1996 ON THE FILE OF THE
ADDL. CIVIL JUDGE & JMFC., GOKAK, DECREEING THE SUIT
FILED FOR DECLARATION AND PERMANENT INJUNCTION.
REGULAR SECOND APPEAL NO.6040/2013
BETWEEN
MAKTUMSAB S/O. LADAJISAB NADAF
SINCE DECEASED BY HIS LRS
1. JAITUNABI W/O. MAKTUMSAB NADAF
AGE: 62 YEARS,
OCC:HOUSEHOLD WORK
R/O.NANDAGAON-KHANAPUR,
TQ: GOKAK, DIST: BELGAUM -591201.
2. RAZIYA W/O. ASLAM PINJARI
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK
R/O. 1312, RAVIWAR PETH,
PUNE, MAHARASHTRA-411002.
4
3. SHAINAZ W/O. MASTANSAB NADAF
AGE: 42 YEARS,
OCC: HOUSEHOLD WORK
R/O. KARADIGUDDI,
TQ AND DIST: BELGAUM-591201,
4. SHAMEEMABHANU W/O. HASANSAB NADAF
AGE: 38 YEARS, OCC: GOVT. SERVANT
R/O. TIRTHAHALLI,
TQ AND DIST: SHIMOGA-577201.
5. DILSHADABI W/O. MOULASAB NADAF
AGE: 36 YEARS,
OCC: HOUEHOLD WORK
R/O. NANDAGAON-KHANAPUR
TQ: GOKAK, DIST: BELGAUM - 591201.
6. KHAIRUN W/O. KASHIMSAB NADAF
AGE: 34 YEARS,
OCC: HOUEHOLD WORK
R/O. MANGAMMA PALLYA
BOMANAHALLI, BANGALORE-68.
7. MUSTAQALI S/O. MAKTUMSAB NADAF
AGE: 32 YEARS,
OCC: PRIVATE SERVICE
R/O. MANGAMMA PALLYA
BOMANAHALLI, BANGALORE-68.
8. AAYESHA W/O. BABUSAB NADAF
AGE: 28 YEARS,
OCC: HOUSEHOLD WORK
R/O. KULGOD, TQ: GOKAK,
DIST: BELGAUM -591201.
...APPELLANTS
(BY SRI. SRINAND A PACHHAPURE, ADV., AND
SMT. PALLAVI PACHHAPURE, ADV., FOR
SRI. RAJENDRA R. PATIL, ADV., FOR APPELLANTS)
5
AND
1. BASAPPA S/O. SHIDDAPPA KARIGAR
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. NANDAGAON-KHANAPUR
TQ: GOKAK, DIST: BELGAUM -591201.
2. YALLAPPA S/O. DUNDAPPA KARIGAR
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. NANDAGAON-KHANAPUR,
TQ: GOKAK DIST: BELGAUM -591201.
3. MALIKJAN S/O.MOHAMMADSAB NADAF
AGE: 37 YEARS, OCC: AGRICULTURE
R/O. NANDAGAON-KHANAPUR,
TQ: GOKAK DIST: BELGAUM-591201.
...RESPONDENTS
(BY SRI. ANANDKUMAR, ADV., FOR R1-R2;
R3- NOTICE REFUSED)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED 30.09.2013 PASSED IN
R.A.NO.7/2011 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE,
GOKAK, ALLOWING THE APPEAL, FILED AGAINST THE
JUDGMENT AND DECREE DATED 21.02.2011 AND THE DECREE
PASSED IN O.S. NO.142/1996 ON THE FILE OF THE ADDL. CIVIL
JUDGE & JMFC., GOKAK, DECREEING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
6
JUDGMENT
These two captioned appeals are filed by the plaintiff
being aggrieved by the judgment and decree passed in
O.S.No.142/1996 and judgments rendered in R.A.No.7/2011
connected with R.A.No.9/2011.
2. The facts leading to the case are that the subject
matter of the appeal is an agricultural land measuring 4 acres
in R.S.No.217/B situated within the limits of Nandagaon-
Khanapur village of Gokak Taluk. The appellant/plaintiff filed a
suit for declaration and injunction claiming absolute ownership
over the suit schedule property. The appellant's contention is
that originally the suit property was granted in favour of his
elder brother namely Madarsab. On account of death
Madarsab, the land was surrendered to the government.
Thereafter, his younger brother (Mahammadsab), who is an
ancestor of defendant No.1 filed an application seeking grant
of the suit property. The authority having considered the
application submitted by Mahammadsab, granted the land
totally measuring 8 acres. The appellant's contention is that
the application that was submitted by Mahammadsab on
12.06.1971 before the Assistant Commissioner, Bailhongal
seeking grant of the land was on behalf of plaintiff's family and
defendant's family. Plaintiff has also contended that pursuant
to the grant, the appellant's/plaintiff's family was in
possession of 4 acres of land in R.S.No.217/B as per partition
effected between the plaintiff and the father of defendant
No.1.
3. The dispute started only after the death of
Mahammadsab wherein defendant No.1 got his name mutated
and therefore, the appellant/plaintiff was compelled to file a
suit seeking relief of declaration and consequential relief of
injunction. Based on rival contentions, both the parties let in
their oral evidence and have also produced documentary
evidence. The Trial Court having appreciated the oral and
documentary evidence and having examined Ex.P9 i.e. grant
order in favour of Mahammadsab, has come to the conclusion
that the grant was in fact on behalf of the family of plaintiff
and defendant No.1 and therefore, the Trial Court was of the
view that the plaintiff is also entitled for share in the suit
schedule property. The Trial Court by taking note of Ex.P9 has
further examined un-registered partition deed and has come
to conclusion that though the partition was effected under an
un-registered document, the evidence clearly indicates that it
was acted upon. On these set of reasoning, the Trial Court
proceeded to decree the suit.
4. Feeling aggrieved by the judgment and decree of
the Trial Court, defendant No.1 preferred an appeal in
R.A.No.9/2011 whereas R.A.No.7/2011 was preferred by the
purchasers who were arrayed as defendants 2 and 3 before
the Trial Court. The Appellate Court on re-appreciation of oral
and documentary evidence was of the view that the Trial Court
has erred in coming to the conclusion that the grant was on
behalf of the family members. The Appellate Court having
referred to the definition of 'family' as defined under Rule 2(6)
of the Mysore Land Grant Rules, 1969 held that the 'family' as
defined under the above said Land Grant Rules means such
person, and if married, the wife or husband as the case may
be, and the dependant children and grand children of such
person. Having taken note of this definition, the Appellate
Court was of the view that the grant order passed in favour of
Mahammadsab was in his individual capacity and would not
come to the aid of the plaintiff, who is the brother of
Mahammadsab. On these set of reasoning, the Appellate Court
set aside the judgment and decree passed by the Trial Court
and allowed the appeal. Being aggrieved, the plaintiff has filed
the present appeals.
5. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for respondents.
6. The admitted facts are that originally the land in
question was leased in favour of Madarsab i.e. the elder
brother of the plaintiff. Para No.VI of the plaint reads as
follows:
"VI. The plaintiff's elder brother deceased Madarsab
Ladjisab Nadaf died in the year 1970 and 217/B was
previously leased to Madarsab by the Government who
was separated long back from the plaintiff and
defendant family. The deceased Mahammadsab i.e.
defendant's father filed an application on 12.06.1971
before the Assistant Commissioner, Bailhongal to
grant the land of 8 acres i.e. R.S.No.217/B situated in
Nandgaon-Khanapur village, Tal: Gokak to him and to
the plaintiff and to their family members, as they were
poor and we both brothers cultivate the land for
agriculture purpose. According to that the 8 acres of
land i.e. R.S.No.217/B was granted to the deceased
Mahammadsab (father of deft) and to the plaintiff.
Mahammadsab died in the year 1985. In the year
1984 only partition effected between the plaintiff and
defendant's father. As per the said partition the
plaintiff put in possession of 4 acres i.e. suit land out
of R.S.No.217/B. Before the partition the land was
jointly cultivated by plaintiff and defendant father. So
the land was granted by the A.C., Bailhongal as per his
order No.LGL/4030, dated 27.10.1973. The land grant
was entered in the mutation register at M.E. No.1690
and certified on 30.01.1974."
7. On perusal, this Court would find that initially suit
property was leased in favour of Madarsab by the
Government. The plaintiff has admitted in unequivocal term
that there was a partition between plaintiff's family and the
defendant No.1 family in the very same paragraph of the
plaint. The lease was in favour of Madarsab, who died
issueless and he was the elder brother of Mahammadsab and
Maktumsab. On account of death of the lessee, the lease got
terminated automatically. Therefore, the evidence on record
clearly indicates that Mahammadsab, who is the ancestor of
respondent/defendant No.1 filed an application on 12.06.1971
seeking grant of the suit land. The Assistant Commissioner
after due enquiry granted the land in question to the ancestor
of the respondent/defendant No.1. Therefore, on perusal of
the material on record, this court is of the view that the grant
in favour of Mahammadsab would in no way enure to the
benefit of either his younger brother or his legal heirs.
Admittedly, Maktumsab had no pre-existing right in the suit
land. When a fresh grant order is passed in favour of
Mohammadsab, no rights would emanate in favour of his
younger brother Maktumsab. As the grant made in favour of
Mahammadsab was in fact in his individual capacity and
therefore, the present appellants cannot claim right over the
grant order made in favour of his brother namely
Mahammadsab. The definition of family which is culled out by
the Appellate Court would virtually clinch the issue. When a
grant is made under the provisions of Mysore Land Grant
Rules, 1969, it is only the wife and children of the grantee,
who have a right in granted land and it does not include the
siblings of grantee.
8. If the grant order does not come to the aid of the
plaintiff/appellant and does not accrue any right in his favour,
then the question of examining as to whether the unregistered
partition deed was acted upon would be of no consequence. If
plaintiff has no right in the suit land, the alleged partition and
the consequent conduct of the parties would be of no
relevance. The Appellate Court has dealt in detail and on re-
appreciation of oral and documentary evidence has allowed
the appeal and dismissed the suit.
9. The findings and conclusions arrived by the
Appellate Court are in accordance with law and does not suffer
from any infirmity. The grounds urged in both the appeals do
not give rise to any substantial question of law. Both the
appeals are devoid of merits and are dismissed accordingly.
10. In view of disposal of the appeals, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.
Sd/-
JUDGE
YAN
