Shri Narayan Kuppayya Naik vs Smt.Krishnamma W/O Durgappa Naik
2022 Latest Caselaw 3752 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

        DATED THIS THE 5 t h DAY OF MARCH, 2022

                            BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


        R.S.A. NO.101004/2015 (PAR & SEP.POSN)

BETWEEN

SHRI NARAYAN KUPPAYYA NAIK
AGE: 58 YEARS,
OCC:AGRICULTURE,
R/O: GANJIKERI,
BELKE POST,
TQ: BHATKAL-581320.
                                           ...APPELLANT

(BY SRI. A.S.PATIL, ADV.)

AND

1 .   SMT.KRISHNAMMA
      W/O DURGAPPA NAIK,
      AGE:50 Y EARS,
      OCC:AGRICULTURE,
      R/O:NEERKULIMANE HADEEN VILLAGE
      TQ:DIST:HAVERI-581110.

2 .   TIMMAYYA KUPPAY YA NAIK
      AGE:55 Y EARS,
      OCC:AGRICULTURE,
      R/O:SRI MANJUNATH RICE MILL,
      NEAR FOREST NAK A BELK E,
      TQ:BHATKAL-581320.

3 .   MADEV KUPPAYYA NAIK
      AGE:54 Y EARS,
      OCC:AGRICULTURE,
      R/O:PUTTANMANE GORTE,
      TQ:BHATKAL-581320.
                               2




4 .   NAGAMMA
      W/O LACHMAYYA NAIK
      AGE:61 Y EARS,
      OCC:AGRICULTURE,
      R/O:DHARMADAKATTEMANE BELKE,
      TQ:BHATKAL-581320.

5 .   MASTAMMA NARAYAN NAIK
      AGE:53 Y EARS,
      OCC:AGRICULTURE,
      R/O:DODDITTLU K ATTIGERI HONNEMADI,
      BELKI, TQ:BHATKAL-581320.

6 .   LAXMI NARAYAN NAIK
      AGE:38 Y EARS,
      OCC:AGRICULTURE,
      R/O:SANNAMANE BEDRAKERI BELKE,
      TQ:BHATKAL-581320.

7 .   PUTTAMMA MASTAPPA NAIK
      AGE:35 Y EARS,
      OCC:AGRICULTURE,
      R/O:SHIRALI , T Q:BHATKAL.
                                            ...RESPONDENTS


      THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGMENT AND DECREE DATED 04.09.2015 PASSED IN
R.A.NO.49/2014 ON THE FI LE OF T HE SENI OR CIVIL JUDGE,
HONAVAR (ITINERARY COURT AT BHATKAL) DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
06.04.2013 AND T HE DECREE PASSED IN O.S.NO.100/2011 ON
THE FILE   OF   THE ADDITIONAL CIVIL JUDGE AT   BHATKAL,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSI ON.


      THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT , DELIVERED THE FOLLOWING:
                                 3




                            JUDGMENT

Challenging the judgment and decree dated

04.09.2015 passed by Senior Civil Judge, Honnavar

(Itinery Court at Bhatkal) in R.A.No.49/2014 and the

judgment and decree dated 06.04.2013 passed by

Additional Civil Judge at Bhatkal in O.S.No.100/2011,

this appeal is filed by defendant no.1.

2. The appellant herein was defendant no.1 in

O.S.No.100/2011 and appellant in R.A.No.49/2014.

Respondent no.1 herein was plaintiff in suit and

respondent no.1 in first appeal while respondent nos.2

to 7 herein were defendant nos.2 to 7 in suit and

respondent nos.2 to in first appeal. For the sake of

convenience, parties shall hereinafter be referred to as

per their respective ranks in suit.

3. That O.S.No.100/2011 was filed by plaintiff

seeking for relief of partition and separate possession of

1/8 t h share in suit schedule properties. In plaint, it was

stated that plaintiffs and defendants were brothers and

sisters and legal representatives of deceased Kuppayya

Putta Naik Swamimane. That their mother Timmu had

also expired. It was further stated that suit schedule 'A'

and 'B' properties were joint family ancestral properties

as occupancy rights in respect of said properties was

granted in the name of their grandfather Putta

Manjappa Naik Swamimane and after his death, name of

their father was entered in revenue records. It was

further stated that Kuppayya Putta Naik died on

08.12.1996. Though plaintiffs and defendants were

having equal right in suit properties, names of only the

sons of Kuppayya Putta Naik were entered in revenue

records and plaintiffs demand of share in property was

refused by defendants no.1 to 3, leading to filing of

suit.

4. On service of summons, defendant no.1

entered appearance and filed written statement in which

he admitted relationship between plaintiff and

defendants. He also admitted that suit properties were

granted in the name of their grandfather deceased Putta

Manjappa Naik Swamimane by Land Tribunal, Bhatkal

and that after his death, name of their father was

mutated in respect of those properties. It was however

contended that marriage of plaintiff and other sisters

were celebrated by spending huge money and giving

gold ornaments, which they accepted as their share in

properties. Accordingly after death of Kuppayya Putta

Naik, names of defendant nos.1 to 3 was entered in

respect of suit properties with consent of plaintiff and

defendant nos.4 to 7. It was further stated that after

death of their parents, defendant nos.1 to 3 had divided

suit properties in an oral partition and were enjoying

their respective shares of properties. It was further

stated that said oral partition had taken place in

presence of plaintiff and defendant nos.4 to 17. It was

also stated that marriage of defendant no.7 was

celebrated in the year 1993 and marriage of plaintiff

and defendant nos.4 to 6 was earlier to that and

therefore plaintiff had no right in suit properties.

5. Defendant nos.3 to 7 filed separate written

statement admitting plaint averments and contending

that they were also entitled for 1/8 t h share in suit

properties.

6. Based on pleadings, trial Court following

issues:

(1) Whether the plaintiff proves that the suit schedule properties are the joint family properties and that no partition has been effected among the plaintiff and defendants till date?

(2) Whether the plaintiff proves that she is entitled to 1/8 t h share in the suit schedule properties?

(3) Whether the plaintiff is entitled for the relief sought in the plaint?

(4) What order or decree?

7. In order to prove her case, plaintiff examined

herself as PW1 wherein she reiterated plaint averments.

In support of oral evidence, she produced copies of

record of rights in respect of suit properties as Exhibits

P1 to P6, certified copies of mutation entry no.797 and

3329 as Exs.P7 and P8 and copies of mutation entry

no.13/2006-07 and M.E.no.36/2006-07 as Exs.P9 and

P10 respectively.

8. On behalf of defendants except defendant no.1

who examined himself as DW1, no other defendants led

oral evidence and none of them marked any exhibits.

9. As relationship between parties was admitted,

as also nature of suit schedule properties as joint family

properties, the only point for consideration was

regarding proof of earlier oral partition and

relinquishment by plaintiff and defendant nos.4 to 7.

Trial Court took note of tenure of cross-examination of

PW1 wherein suggestion that she had relinquished her

right in suit schedule properties was out rightly denied.

Trial Court further took note of failure to elicit

admission about oral partition and relinquishment. Trial

Court also considered evidence of defendant no.1. DW1

though stated that plaintiff and defendant nos.4 to 7

relinquished their rights in suit schedule properties by

way of relinquishment deed which was drafted by

Shanbhog, no such document was either produced nor

any evidence led to establish the same. In view of

evidence, trial Court came to conclusion that plaintiff

had proved that suit schedule properties were joint

family properties and defendant had failed to prove

prior partition and relinquishment and therefore it

concluded that plaintiff was entitled for 1/8 t h share in

suit schedule properties. It accordingly decreed the suit

granting 1/8 t h share to plaintiff and to each of

defendants in suit schedule properties.

10. Aggrieved by judgment and decree, defendant

no.1 filed R.A.No.49/2014. Main grounds urged in

appeal was that plaintiff and defendants never

constituted a joint family and that after her marriage

plaintiff became a member of her husband's family and

as such, divested of her rights. It was also contended

that trial Court committed error of jurisdiction as

properties involved were granted by Land Tribunal and

only Land Tribunal had jurisdiction to decide issue.

Based on contentions, first Appellate Court framed

following points for its consideration.

(1) Whether the judgment and decree of the trial Court is illegal, unjust and not sustainable?

(2) Whether interference is required in the judgment and decree of the trial Court?

(3) What order?

11. On consideration, first appellate Court

answered point nos.1 and 2 in negative and point no.3

by dismissing appeal. While passing impugned

judgment, first Appellate Court considered evidence led

by parties. It held that there was no dispute about Putta

Manjappa Naik as propositus of family. He was granted

occupancy rights in respect of suit schedule properties

by Land Tribunal and after his death, his son succeeded

to the properties who also died in the year 1996. It also

took note of admitted fact that Timmu, mother of

plaintiff and defendants had predeceased their father

Kuppayya Putta Naik.

12. As contended by defendant no.1, that plaintiff

and defendants were not entitled for share in suit

properties which were granted to their grandfather

under provisions of Land Reforms Act. It referred to

definition of 'family' under Section 2(12) and examined

ratio of decisions in the case of Nimbavva and others

v/s Channaveerayya and others reported in ILR

2013 Karnataka 6202 and in the case of Kamala V/s

Lingamma Hengasu reported in 2002(2) KLJ 456.

13. It held that bar against married daughters

succeeding to tenancy as per Section 24 of Karnataka

Land Reforms Act as it stood prior to its amendment by

Act no.1 of 1974, would be attracted only in case tenant

died prior to 01.03.1974. It held that as facts of instant

case did not attract application of Section 24, plaintiff

and defendants were entitled for equal share in suit

properties and accordingly dismissed appeal.

14. Challenging judgment and decree of trial

Court as well as of first appellate Court, defendant no.1

has presented this second appeal.

15. Sri A.S.Patil, learned counsel for defendant

no.1 (appellant herein) submitted that impugned

judgments and decree passed by both courts were

contrary to law and evidence on record. Trial Court as

well as first Appellate Court failed to consider fact that

plaintiff had kept quite for more than 15 years after

mutation of revenue entries in favour of defendant

nos.1 to 3 and without even challenging same before

appropriate authorities had filed suit. It was also

contended that trial Court ought not to have entertained

suit as suit properties were tenanted lands and

jurisdiction of Civil Court was barred. On above

grounds, learned counsel submitted that following

substantial questions of law would arise for

consideration.

1. Whether the Courts below were justified holding that the plaintiff is entitled for

1/8 t h share in the suit property having regard to the fact that the oral partition has taken place between the defendant No.1 to 3 after the death of their father in the year 1996?

2. Whether courts below were justified in holding that plaintiff is entitled for 1/8 t h share in the suit property along with defendants without having recourse the fact that the lands in question were granted to the father of plaintiff and defendants and after the death of the father of plaintiff and defendants name of defendants no.1 to 3 have been entered in the revenue records?

16. Notice is not yet ordered to respondents.

Heard learned counsel for appellant, perused impugned

judgment and decree and record.

17. First ground of challenge is that there was

oral partition between parties. On an examination of

evidence led by parties wherein only defendant no.1

entered witness box and except oral proposition about

prior partition, no evidence was led to substantiate or

corroborate it. Trial Court took note of fact that

defendant no.1 failed to produce copy of relinquishment

deed said to have been executed by plaintiff and

defendant nos.4 to 7 in favour of defendant nos.1 to 3.

It also held that contention of defendant no.1 amount

equal to their shares was spent on marriage and gold

jewelry at the time of marriage of plaintiff and

defendant nos.4 to 7, did not hold water as it was

undisputed fact that their marriage was celebrated

during lifetime of their father.

18. Admittedly except defendant no.1, no other

defendant stepped into witness box to corroborate such

claim. On the other hand, defendant nos.4 to 7

supported plaintiff in their written statement. There is

failure to elicit any material admission during cross-

examination of PW1. Under the circumstance, trial Court

rightly arrived at a finding of fact that there was no

prior oral partition or relinquishment.

19. The other ground of challenge regarding lack

of jurisdiction has been negated by trial Court as well as

first appellate Court. Admittedly, occupancy rights were

granted in the name of propositus Putta Manjappa Naik,

grandfather of plaintiff and defendants who was

succeeded by their father Kuppayya Putta Naik.

Admittedly Kuppayya Putta Naik died on 08.12.1996 and

his wife Timmu predeceased him. It is settled legal

position that succession to granted lands would not be

governed by Section 24 of Land Reforms Act. Admittedly

occupancy rights were granted to grandfather of

plaintiff and defendants. After his death, their father

succeeded to said properties. As no question of right to

succeed tenancy was involved, jurisdiction of Civil Court

would not be barred.

20. In view of above legal position, conclusion of

trial Court cannot be said to suffer from capriciousness

or perversity. First appellate Court upon re-appreciation

of entire evidence and conclusions of trial Court has

concurred with the same. Finding regarding failure to

establish prior partition being a concurrent finding of

fact, does not call for interference. Even conclusion

regarding jurisdiction being lawful does not call for

interference.

21. No substantial question of law arises for

consideration. In the result, I pass the following:

ORDER

Appeal is dismissed. No order as to costs.

Sd/-

JUDGE CLK