Karnataka High Court
Jahrabi vs Masabbi Buddesab Pathan on 9 September, 2022
Bench: H.P.Sandesh
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RFA No. 515 of 2004
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 09th DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR FIRST APPEAL NO.515 OF 2004
BETWEEN:
1. SMT. JAHRABI W/O. APPASAB PATHAN,
SINCE DECEASED BY HER L.RS.
1A. SMT. GOUSABI W/O. GAFFARSAB DESAI,
AGE MAJOR, O+CC: HOUSEHOLD WORK,
1B. SMT. NASEEMBI W/O. GOUSESAB BEPARI,
SINCE DECEASED BY HER L.RS.
1BA. SIRAJ S/O. GOUSESAB BEPARI,
AGE MAJOR, OCC: COOLIE,
1C. SMT. BIBI SOGARA W/O. MAKTAM SAB DODWAD,
AGE MAJOR, OCC: HOUSEHOLD,
ALL ARE R/O. PANT BALEKUNDRI,
TALUL AND DIST. BELAGVI.
2. MEHBOOB APPASAB PATHAN,
SINCE DECEASED BY HIS L.RS.
2A. NAJIRA W/O. MEHABOOB PATHAN,
AGE 50 YEARS, OCC: HOUSEWIFE,
No.III CROSS, GANDHINAGAR, KHANAPUR,
TAL. KHANAPUR, DIST. BELAGVI.
2B. SMT. YASEEM W/O. SIRAJ BEPARI,
AGE 35 YEARS, OCC: HOUSEHOLD,
R/O. BALEKUNDRI B.K. BAGAWAN GALLI,
TAL AND DIST. BELAGAVI.
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RFA No. 515 of 2004
2C. SALEEM S/O. MEHABOOB PATHAN,
AGE 33 YEARS, OCC: PAINTER,
R/O. III CROSS, GANDHI NAGAR, KHANAPUR,
TQ. KHANAPUR, DIST. BELAGAVI.
2D. ANJUM W/O. IBRAHIM PATHAN,
AGE 31 YEARS, OCC: HOUSEHOLD,
R/O. III CROSS, GANDHI NAGAR, KHANAPUR,
TQ. KHANAPUR, DIST. BELAGAVI.
2E. SAMEER S/O. MEHABOOB PATHAN,
AGE 29 YEARS, OCC: PAINTING WORK,
R/O. III CROSS, GANDHI NAGAR, KHANAPUR,
TQ. KHANAPUR, DIST. BELAGAVI.
3. NOOR AHMED APPASAB PATHAN,
AGE MAJOR, OCC: AGRICULTURE,
R/O. PANT BALEKUNDRI,
TQ. AND DIST. BELAGAVI.
...APPELLANTS
(BY SRI. VIJAYKUMAR B. HORATTI, ADVOCATE)
AND:
1. SMT. MASABBI BUDDESAB PATHAN,
SINCE DECEASED BY L.RS.
1A. GUDUMA W/O. IMAMHUSSAIN JAMADAR,
SINCE DECEASED BY HER L.RS.
1A(I) BEGUM W/O. BABASAB MEERABHAI,
AGE MAJOR, OCC: HOUSEHOLD.
1A(II) BASHIR IMAMHUSSAIN JAMADAR,
AGE MAJOR, OCC: AGRICULTURE.
1A(III)GOUSEBI D/O. IMAMHUSSAIN JAMADAR,
AGE MAJOR, OCC: HOUSEHOLD.
1B. SMT. RAMEZABI D/O. BUDESAB PATHAN,
AGE MAJOR, OCC: HOUSEHOLD.
1C. SMT. TARABI W/O. AKBARSAB PATHAN,
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RFA No. 515 of 2004
AGE MAJOR, OCC: HOUSEHOLD,
SINCE DECEASED REPTD. BY HER L.RS.
1C(i) AKABAR YAKUBSAB PATHAN,
AGE 70 YEARS, OCC: COOLIE,
R/O. SIDDIQ NAGAR, BALEKUNDRI B.K.
TQ. AND DIST. BELAGAVI.
1C(ii) YASIM W/O. BASHIR MULLA,
AGE 40 YEARS, OCC: HOUSEWIFE,
NEAR BUS STAND, RAIBAG,
TQ. RAIBAG, DIST. BELAGAVI.
1C(iii) KAUSAR W/O. MEERASAB KILLEDAR,
AGE 38 YEARS, OCC: HOUSEWIFE,
R/O. SIDDIQ NAGAR, BALEKUNDRI B.K.,
TQ. AND DIST. BELAGAVI.
1C(iv) FARIDABI MALLIKRJUN BAGI,
AGE 36 YEARS, OCC: HOUSEHOLD,
R/O. BELLAD BAGEWADI, TQ. HUKKERI,
DIST. BELAGAVI.
1C(v) MAINO S/O. AKBARSAB PATHAN,
AGE 34 YEARS, OCC: AGRICULTURE,
R/O. SIDDIQ NAGAR, BALEKUNDRI B.K.
TQ. AND DIST. BELAGAVI.
1C(vi) MOHAMMED S/O. AKBARSAB PATHAN,
AGE 32 YEARS, OCC: AGRICULTURE,
R/O. SIDDIQ NAGAR, BALEKUNDRI B.K.
TQ. AND DIST. BELAGAVI.
1C(vii)YUNUS S/O. AKBARSAB PATHAN,
AGE 30 YEARS, OCC: AGRICULTURE,
R/O. SIDDIQ NAGAR, BALEKUNDRI B.K.
TQ. AND DIST. BELAGAVI.
1D. SMT. RAJIYABI @ MODINBI W/O. MOHAMMAD KASIM MULLA,
ALL ARE R/O. PANT BALEKUNDRI,
TQ. AND DIST. BELAGAVI.
1E. SMT. RABANBI W/O. SHAFI TASHILDAR,
AGE MAJOR, OCC: HOUSEHOLD,
R/O. KHANAPUR GALLI,
TQ. AND DIST. BELAGAVI.
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RFA No. 515 of 2004
1F. SMT. BIBIJEHRA W/O. MEHBOOB NESARGI,
AGE MAJOR, OCC: HOUSEHOLD,
R/O. MULLA GALLI, HIREBAGEWADI,
TQ. AND DIST. BELAGAVI.
2. HAIDARSAB BUDDESAB PATHAN,
SINCE DECEASED BY HIS L.RS.
2A. SMT. KHATABI W/O. HAIDERSAB PATHAN,
AGE 56 YEARS, OCC: HOUSEHOLD,
KUMARSWAMY LAYOUT, BAUXITE ROAD,
PLOT No.374, AT POST BELAGAVI.
2B. NASREENBANU W/O. KHAJAMAINU PATHAN,
AGE 32 YEARS, OCC: HOUSEHOLD,
KUMAR SWAMY LAYOUT,
BAUXITE ROAD, PLOT No.374,
AT POST BELAGAVI.
2C. BIIKISH W/O. KISHAR SHAIKH,
AGE 30 YEARS, OCC: HOUSEHOLD,
R/O. 1ST CROSS, AMAN NAGAR,
NEAR GANDHI NAGAR, BELAGAVI.
2D. NAZIYA W/O. SHAHNOOR MULLA,
AGE 28 YEARS, OCC: HOUSEHOLD,
R/O. BAZAR GALLI, HIRE GAGEWADI VILLAGE,
TQ. AND DIST. BELAGAVI.
2E. ISMAIL S/O. HAIDERSAB PATHAN,
AGE 26 YEARS, OCC: COOLIE,
R/O. KUMAR SWAMY LAYOUT,
BAUXITE ROAD, PLOT No.374,
AT POST BELAGAVI.
2F. TABREZ S/O. HAIDERSAB PATHAN,
AGE 23 YEARS, OCC: COOLIE,
R/O. KUMAR SWAMY LAYOUT, BAUXITE ROAD,
PLOT No.374, AT POST: BELAGAVI.
3. IBRAHIM BUDDESAB PATHAN,
AGE MAJOR, OCC: AGRICULTURE.
4. IMAM HUSSAIN PATHAN,
AGE MAJOR, OCC: AGRICULTURE.
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RFA No. 515 of 2004
R3 & 4 ARE R/O. P ANT BALEKUNDRI,
TQ. AND DIST. BELAGAVI.
...RESPONDENTS
(SRI. L.K.GURAV, ADVOCATE FOR R1(D) & R(E), R2(A TO F) & R3;
SERVICE OF NOTICE TO R1(C), R1A(i), R1A(ii) IS HELD SUFFICIENT;
NOTICE TO R1B IS DISPENSED WITH;
R1C(i TO vii), R1F, R1A(iii) & R4 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 31.01.2004 PASSED IN
O.S.NO.176/1993 ON THE FILE OF THE III ADDL. CIVIL JUDGE (SR.
DN.) BELAGAVI, DISMISSING THE SUIT FOR PARTITION AND
POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, HAVING
HEARD AND RESERVED FOR JUDGMENT, THIS DAY THE COURT
MADE THE FOLLOWING.
JUDGMENT
This appeal is filed challenging the Judgment and
Decree of the dismissal of the suit filed for the relief of
partition and separate possession in O.S.No.176/1993
dated 31.01.2004 on the file of the III Additional Civil
Judge (Sr. Dn.) Belagavi.
2. The parties are referred to in the original
ranking as plaintiffs and defendants for the convenience of
the Court and to avoid confusion.
RFA No. 515 of 2004
3. The factual matrix of the case of the plaintiffs
before the trial Court is that, the Schedule Item Nos.1 and
2 properties i.e. agricultural lands bearing R.S.No.149/1,
measuring 8 acres situated at Pant Balekundri village,
taluka Belagavi and property bearing R.S.No.149/2
measuring 7 acres 32 guntas, are the tenanted lands and
the plaintiffs are the tenants in common and having their
half share in the suit properties. The defendant No.4 is the
tenant in R.S.No.149/1 and his name is appearing in the
record of rights and hence, he has been made as formal
party to the suit and the names of the plaintiff Nos.2 and 3
are appearing in the record of rights. The plaintiffs are in
possession of the suit schedule properties as protected
tenants from time immemorial and the names are
appeared in the record of rights from the year 1965-66.
Even earlier the names of father and husband of the
plaintiffs and father and husband of the defendants up to
three names were appearing and after their demise, the
plaintiffs and defendant Nos.1 to 3 have succeeded to the
RFA No. 515 of 2004
suit properties. It is also contended that the deceased
Buddesab and Appasab who are the brothers had filed a
suit for injunction against one Ramanagouda Patil which
was numbered as O.S.No.428/1967 and the suit was
decreed in the year 1969. Before filing the said suit, in the
year 1967, the father of the plaintiffs and defendant Nos.2
and 3 and the husband of the defendant No.1 have
amicably settled in the Balekundri Jamat that, half of the
suit land will be of the plaintiffs father and remaining half
share will be defendant Nos.1 to 3's father and husband.
The father of the defendant Nos.2 and 3 was older to the
father of the plaintiffs and his name was shown as tenant
in Form No.1 submitted by the owner Ramanagouda Patil
of Balekundri on 20.12.1996 and since then both the
father of plaintiffs and defendant Nos.2 and 3's father
together were cultivating the suit properties. It is also
contended that the said Ramanagouda Patil had filed
complaint against the father of the plaintiffs and defendant
No.1 and others in the year 1969. The father of the
RFA No. 515 of 2004
plaintiffs and the defendant Nos.2 and 3 obtained decree
in O.S.No.428/1967 and then appeal was filed and the
same was also dismissed. It is contended that, after the
death of the husband and father of the defendant Nos.1 to
3, the defendant No.1 alone brought Warsa and filed Form
No.10 and got mutated their names. Till the date of death
of father of defendant Nos.2 and 3 did not object the
plaintiffs, but after the death of the plaintiffs' father the
defendants started harassing and picked up quarrels and
in spite demand made to partition the property, they did
not partition the property and hence, the suit is filed
seeking the relief of partition and separate possession.
4. In pursuance of the suit defendants appeared
through their counsel and filed written statement by
defendant Nos.2 and defendant Nos.1 and 3, the mother
and other brother adopted the same. Defendant No.4
remained absent and placed ex-parte.
5. The defendants in their written statement have
contended that, the suit filed by the plaintiffs are frivolous
RFA No. 515 of 2004
and suit properties are tenanted land and plaintiffs are not
the tenants in common and not having any half share as
claimed in the suit and hence, contended that the suit is
liable to be dismissed and it is the grant in favour of the
family of the defendants and it is the self acquired
property of the defendants and not the property of the
joint tenancy as contended by the plaintiffs and false claim
has been made and occupancy rights granted in favour of
the defendants and grant made in favour of the
defendants also has not been challenged. The plaintiffs
and defendant No.4 never helped the father of the
defendant Nos.2 and 3, nor joined their hands to fight in
the Courts of law. The suit is based on distorted facts and
perverted notions of law and hence, the suit is liable to be
dismissed.
6. The original defendant No.1 passed away and
hence, her legal heirs are already on record and the very
contention that the name of the plaintiffs father appeared
in the record of right is frivolous and though the suit was
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RFA No. 515 of 2004
filed in O.S.No.428/1967 and when the father of the
defendant Nos.2 and 3 was not keeping good health, the
father of the plaintiffs only contested the matter on behalf
of the father of the defendant Nos.2 and 3. Based on the
pleadings of parties, the trial Court has framed at the first
instance five issues and also framed additional issues and
the same are extracted as below:
(i) Whether the plaintiffs prove that they are
tenants in common of suit lands with defendant
Nos.1 to 3?
(ii) Whether they own undivided ½ share in the
suit lands?
(iii) Whether they are entitled to future mesnes
profits?
(iv) Whether the plaintiffs are entitled to the relief
of partition and separate possession?
(v) What decree or order ?
Additional Issues:
(i) Whether plaintiffs prove the description of the
suit property given by them is correct?
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RFA No. 515 of 2004
(ii) Whether suit of the plaintiffs is bad for mis-
joinder of parties?
(iii) Whether defendants prove that occupancy
rights were granted by the tribunal in their favour in
respect of suit land?
(v) Whether defendants prove that the court has
no jurisdiction to try this suit?
(vi) Whether court fee paid by the plaintiffs is not
proper?
(vi) Is there no cause of action for the plaintiffs to
file this suit?
7. In support of the case of the plaintiffs, the
plaintiffs have examined one of the plaintiff as P.W.1 and
also examined two witnesses as P.W.2 and P.W.3 and got
marked 12 documents as Ex.P.1 to Ex.P.20 and on the
other hand, the defendants have examined one witness as
D.W.1 and got marked 22 documents as Ex.D.1 to D.22.
8. The trial Court after considering both oral and
documentary evidence all the issues are answered as
negative and only Issue Nos.1 and 3 are answered in the
affirmative and comes to the conclusion that the
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RFA No. 515 of 2004
occupancy rights were granted by the tribunal in favour of
the defendants in respect of the suit land and hence, the
plaintiffs are not entitled for any relief of partition and
possession. Hence, the present appeal is filed by the
plaintiffs and the counsel appearing for the plaintiffs would
vehemently contend before this Court that, the finding of
the tribunal is erroneous. The Court below failed to take
note that the plaintiffs are the legal heirs of the deceased
Appasab and defendants are the legal heirs of the
Buddesab Pathan. The Buddesab Pathan is the elder
brother of the Appasab and both used to cultivate the said
lands jointly and as the Buddesab was the elder brother of
the deceased Appasab Pathan, his name was entered as
tenant in the revenue records. It is also the contention
that, the trial Court has committed an error in not noticing
the fact that the father of the appellants and the father of
the defendants had filed a suit in O.S.No.428/1967,
wherein, they have admitted as joint tenants and they are
in joint possession of the property and when they have
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RFA No. 515 of 2004
admitted the joint tenancy before the Court, the Court
ought to have taken note of the said admission, but failed
to take note of the same. The counsel also would submits
that, in the said suit, both the plaintiffs father and
defendant Nos.2 and 3 father have categorically admitted
that, they were in possession of the suit schedule property
and the trial Court has failed to take note of the fact that,
Buddesab was the eldest member in his family and his
name has been entered in his capacity as the
manager/Kartha of the family. The very conclusion of the
trial Court is that, the occupancy rights were granted by
the land tribunal in an individual capacity, but not in
favour of the family is erroneous. The trial Court fails to
take note that the appellants and the respondents are the
tenants in common to the suit land and committed an
error in not granting a half share as claimed in the plaint
and hence, requires interference of this Court.
9. The counsel also vehemently contend that, the
very approach of the trial Court in coming to the
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RFA No. 515 of 2004
conclusion that, the grant was made in the individual
capacity is erroneous and committed an error in not
considering Ex.P.19 and Ex.P.20 and also failed to take
note of the fact that the occupancy rights application was
filed in the year 1974 and occupancy rights was granted
on 21.03.1975 in favour of the defendant Nos.1 and 2.
The very reasoning given by the trial Court that they have
not challenged the occupancy rights granted in favour of
the defendant Nos.1 and 2 is only both of them are
cultivating the land jointly and even prior to the grant the
suit was filed together by the appellants father and
defendants father, in spite of it committed an error. The
trial Court fails to consider the document at Ex.P.1 and
there was a joint tenancy and both of them are cultivating
the property jointly. The counsel appearing for the
respondents/defendants would vehemently contend that,
the very approach of the trial Court is based on oral and
documentary evidence and they have not found the right
till filing this suit and documents at Ex.P.19 and Ex.P.20
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RFA No. 515 of 2004
are created documents and the trial Court has given the
reasoning that those documents are created. The trial
Court taken note of the admission of P.W.2 and not
committed any error. In order to prove the fact that, it
was a joint tenancy, no material is placed before the Court
and the fact that, the occupancy right was granted in the
year 1975 in favour of the defendant No.1 and the same is
not at all the joint tenancy. The plaintiffs have kept quite
from 1968 and only after that, the said suit was filed and
no merits in the appeal.
10. Having heard the respective counsel and also
on perusal of the material on record, and in keeping the
grounds urged in the appeal, the point that would arise for
consideration of this Court are :
(i) Whether the trial Court has committed an
error in answering Issue No.1 as negative that the
plaintiffs are not in tenants in common of suit lands
with defendant Nos.1 to 3 and committed an error
in answering a additional Issue No.3 in coming to
the conclusion that the occupancy rights were
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RFA No. 515 of 2004
granted by the tribunal in favour of the defendant
Nos.1 to 3?
(ii) Whether the trial Court has committed an
error in not granting the relief of partition in respect
of the suit schedule property in coming to the
conclusion that, it was not joint tenanted property
and whether, it requires interference of this Court?
(iii) What order?
11. Answer to point Nos.1 and 2 : Both the point
are taken together for consideration, since both co-relates
to each other.
Admittedly, the plaintiffs have filed the suit for the
relief of partition and separate possession in respect of two
schedule properties and it is the claim of the plaintiffs that,
both the father of defendant Nos.2 and 3 and also the
father of the plaintiffs were jointly cultivating the land as
protected tenants and father of the defendant Nos.2 and 3
is the eldest son to their family and hence his name has
been entered in the land records. The main contention of
the appellant counsel before this Court is that, the trial
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RFA No. 515 of 2004
Court fails to take note of the fact that, the plaintiffs father
and also the defendant Nos.2 and 3's father were in joint
possession. It is not in dispute that the said Buddesab who
is the father of defendant Nos.2 and 3 is the elder brother
of Appasab i.e. the father of the plaintiffs. This Court has
to examine whether both of them are cultivating the suit
lands jointly and in order to substantiate the said fact, the
plaintiffs mainly relies upon the contents of the plaint in
O.S.No.428/1967, which was filed in the year 1967.
Having perused the said document, which is marked
before the trial Court as Ex.P.2, it is very clear that the
suit is filed by the father of the plaintiffs and father of
defendant Nos.2 and 3 wherein specifically pleaded that
the plaintiffs are the full brothers and are jointly
cultivating the suit land. The suit land originally belongs to
Sri. Anant Chidambar Kulkarni and the plaintiff No.1 in the
said suit has been its tenant and his name has been
registered as protected tenant in the record of rights. It
has to be noted that, the said suit is filed in respect of the
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RFA No. 515 of 2004
property bearing Survey No.149/2 measuring 7 acres 32
guntas. It is also important to note that, the deposition of
witnesses who have been examined before the Court in
O.S.No.428/1967 the deposition of plaintiffs father which
was recorded marked as Ex.P.3, wherein also he claims
that both are residing together and this evidence was
recorded in the said suit wherein he categorically says
that, the suit land is in their possession and they are in
possession of suit land as tenant and they had taken the
land on lease from Anant Kulkarni. The plaintiff No.1 is the
protected tenant of suit land. The suit schedule property
was sold in auction and the defendant No.1 has purchased
the suit land subject to tenancy rights. They have also
filed an application to set aside the same, but application
was dismissed and defendant took possession and his
brother's name was continued as protected tenant. The
plaintiffs have also relied upon the evidence of one
Imamsab. In his evidence, he says that, the plaintiffs are
cultivating the suit land and suit land is in possession of
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RFA No. 515 of 2004
the plaintiffs since the time of their father. The evidence of
Ramanagouda Basanagouda Patil, who has been examined
as D.W.1, in his evidence which is marked as Ex.P.5, he
admits that, when he purchased the suit land, plaintiff
No.1 was tenant of the suit land, but he claims that
plaintiff No.2 had no right over the suit land and he denied
the joint cultivation. The deposition of one Sampath Rao
has been marked as Ex.P.6 who has been examined as
D.W.2 and he also claims that, plaintiff No.1 was the
tenant and plaintiff No.2 never cultivated the suit land.
Admittedly the suit was decreed and decree was drawn in
terms of Ex.P.1, wherein, also it is mentioned in paragraph
No.2 that plaintiffs are full brothers and are jointly
cultivating the suit land and plaintiffs continued in
possession of suit lands as protected tenants as before
and these materials have not been considered by the trial
Court while passing the Judgment. It has to be noted that,
the suit was filed in the year 1967 and the said suit is filed
by the father of the defendant Nos.2 and 3 as well as the
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RFA No. 515 of 2004
plaintiffs father and both of them have claimed in the said
suit that they are in joint cultivation and also it is
mentioned that, the father of the defendant Nos.2 and 3
being the elder member of the family, he was recognized
as tenant of the said land and D.W.1 also admitted the
said fact, but he claims that plaintiff No.2 is not doing
cultivation, but when the defendant Nos.2 and 3 in this
suit itself admitted that, both of them are in joint
cultivation and they are the full brothers and the same has
not been considered by the trial Court and the said
admission was made prior to the dispute between the
parties. No doubt, the name of the defendant Nos.2 and
3's father was entered in the records of rights and also no
doubt an application is given by the wife of the said
Buddesab and also there is no dispute that, occupancy
right was granted in favour of the defendant No.1 and
defendant Nos.2 and 3 are the sons of defendant No.1.
When the document was in existence prior to the dispute
between the parties, wherein, parties themselves have
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RFA No. 515 of 2004
admitted that, they are the full brothers and they are in
joint cultivation of the property, the trial Court ought to
have taken note of the said fact into consideration. It is
also important to note that, no doubt in the cross-
examination of P.W.1, the P.W.1 says that he cannot tell
how long all of them were in continuing in the family of
Buddesab and also the Appasab and also in the cross-
examination he admits that, he cannot tell when all the
five brothers have separated. However, he admits that, his
father and his senior Uncle were together and staying at
Balekundri and he cannot tell the contents of document at
Ex.P.19 are right or wrong, since he has read the contents
of Ex.P.19. He admits that, the land tribunal granted right
in favour of his senior uncle and either he himself or his
father has not given any Form No.7. He admits that, his
father was examined as witness in O.S.No.428/1967. It is
suggested that from 1959 onwards, the said Buddesab and
his father were residing separately and the same was
denied. On the other hand, the plaintiff also examined one
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RFA No. 515 of 2004
witness as P.W.2 and he also gives an evidence
corroborative to the evidence of P.W.1 and he was
subjected to cross-examination and regarding relationship
between parties no dispute. But he claims that there was a
settlement and he know the contents of the settlement
deed and there was an entry in the register regarding
settlement deed and no difficulty to produce the same
before the Court. It is suggested that, there was no
dispute between with respective fathers and said
suggestion was denied. The P.W.3 also claims that, the
said Appasab and Buddesab were cultivating the land
together in respect of the suit schedule property and he
also attended the Jamat, when the properties was divided
equally between the Appasab and Buddesab. He was also
subjected to cross-examination and he admits that, except
the document at Ex.P.20, he also written other documents
and he is the scribe of document at Ex.P.20, but he cannot
tell the details of writing of the documents. On the other
hand, the defendant who have examined the D.W.1
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RFA No. 515 of 2004
reiterated the contents of the written statement. He was
also subjected to cross-examination and no dispute with
regard to the relationship between the parties. But he
admits that, matter was taken to the Jamat, but he claims
that, that is in respect of house No.274, not in respect of
landed property. He admits that, four acres of land is in
possession of the defendant No.4. He admits that, he has
not given share to his brother and sisters in the suit
schedule property. It is suggested that, both Appasab and
his father jointly cultivating the land and the same was
denied, however, he admits the filing of the suit in
O.S.No.428/1967, but denies both the plaintiffs father and
his father have filed the suit together, but he claims that
his father only had filed the suit. However, he admits that,
Appasab was examined in the said suit. It is suggested
that, there was a quarrel between the owner of the
property and cultivators, but he claims that the dispute is
only between his father and the owner of the property.
However, he says that complaint was given against his
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RFA No. 515 of 2004
father only. He admits that, Appasab died in the year 1993
in the house No.34 and also he admits that, house No.34
gone to the share of Appasab, but he claims house No.35
came to their share and he himself and his brothers
staying in the said house and also he claims that, they are
residing in the house No.274. He admits that, all of them
are residing at Balekundri. He admits that, his father
passed away in the year 1969 and he cannot tell the age
when his father was passed away. He claims that all the
brothers of his father were separately cultivating the land,
but he does not have any document and also he has not
seen the documents given by the plaintiffs. However, he
admits that, Ramanagouda Patil may be he has filed the
complaint against his mother, plaintiff's father Appasab
and Khadirsab, Babasab, Hussainsab. He admits that, no
document is produced to show that, Appasab is cultivating
the other land. Having taken note of the answer elicited
from the mouth of D.W.1, in an intelligent manner, he
gave the answer saying that, suit was filed by only his
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father, but material on record is clear that suit was filed by
plaintiffs father, as well as defendants father together in
the year 1967 and the suit was also decreed in the year
1969 itself. It is also important to note that, though he
claims that, Ramanagouda Rudragouda has filed the
complaint only against his father, but he admits that,
complaint was given by him against his mother and also
against Appasab and other family members and hence, it
is clear that, even after the death of the defendants father
complaint was given against the mother of the defendant
and also the said Appasab and the trial Court fails to take
note of the answer elicited from the mouth of D.W.1 and
particularly document at Ex.P.1 to P.6 and in the evidence
adduced before the trial Court in the earlier suit
O.S.No.428/1967, the father of the plaintiff who has been
examined categorically deposed that, his brother and he
himself were cultivating the land, but the trial Court
accepted the explanation given by the defendant that the
defendant Nos.2 and 3's father was not keeping well and
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RFA No. 515 of 2004
hence, he was examined, but the fact that suit was filed
jointly and the averments made in the said suit that both
of them were cultivating the land jointly has not been
considered, while considering the material available on
record and when the material discloses that the suit was
filed jointly claiming that, they are in joint cultivation and
the father of the defendant Nos.2 and 3 being the eldest
member, he made the claim to grant the land has not
been taken into consideration. It is also important to note
that, the land tribunal granted land in favour of the mother
of the defendant Nos.2 and 3 since her husband name was
found as tenant and after the death of the husband, she
also made the claim and occupancy right was granted in
favour of defendant Nos.2 and 3 mother and after the
death of the father the name of defendant Nos.2 and 3
were also entered in the record of rights. There was no
dispute between till the death of father of the plaintiff who
died in the year 1993 and dispute started after the death
of the father of the plaintiffs and immediately the suit was
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RFA No. 515 of 2004
filed in the year 1993 and defendant No.1 also admits
that, father of the plaintiff died in the year 1993 and his
father was died in the year 1969 itself and there was a
decree in favour of the father of the defendant Nos.2 and
3 and also the plaintiffs father and the same is prior to the
dispute among the parties and this aspect has not been
considered by the trial Court and the trial Court only
carried away with the documents of granting of occupancy
right in favour of the mother of the defendant Nos.2 and 3
and failed to take note of the plaintiffs documents Exhibit
particularly Ex.P.1 to Ex.P.6 and only relied upon the
document of defendants with regard to granting of
occupancy right in favour of the mother of the defendant
Nos.2 and 3 and erroneously comes to the conclusion that
the grant was made in the individual capacity and the trial
Court did not discuss the evidence of D.W.1 in detail and
admission elicited from the mouth of D.W.1. Though he
claims that, complaint was given against his father only,
but no material is placed before the Court. However, he
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RFA No. 515 of 2004
has categorically admitted that complaint was also given
against the father of the plaintiffs apart from the complaint
was given against his mother and other family members
and copy of Ex.P.15 is also got marked and on perusal of
the Ex.P.15, it discloses the father of the plaintiff has been
shown as number 2 in the complaint and the said
complaint was given to Sub-divisional Magistrate and this
complaint was given on 12.12.1969 and the trial Court
carried away with the contention of the defendants that
document at Ex.P.19 & Ex.P.20 are not proved and in spite
of P.W.2 and P.W.3 have been examined before the trial
Court who are the witnesses to the document, as well the
scribe of the document and much importance is given to
Ex.P.19 and 20 and fails to take note of the averments
made in the plaint in the year 1967 itself, wherein specific
averment is made that father of the plaintiffs as well as
defendant Nos.2 and 3's father were jointly cultivating the
property and not disputed the contents of the plaint as
well as the evidence of the witnesses who have been
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RFA No. 515 of 2004
examined before the said court and depositions have been
recorded as Exhibit P series and apart from decree passed
in terms of Ex.P.1, the very counsel appearing for the
appellant would vehemently contend that the contents of
the plaint as well as the copy of the decree, wherein also
specifically stated that all of them are cultivating the suit
schedule properties together has not been appreciated by
the trial Court and hence, I answer Point Nos.1 and 2 as
affirmative in coming to the conclusion that the trial Court
has committed an error in coming to the conclusion that
the grant was made in the individual capacity and plaintiffs
have not proved their case for the relief of partition and
possession and the said approach is erroneous and this
Court being the first appellate Court has to re-appreciate
both oral and documentary evidence and also consider the
question of fact and question of law and the joint
cultivation came into existence and the same has been
proved by marking all the documents of plaint at Ex.P.2
and also Ex.P.1, copy of the Judgment and decree and the
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RFA No. 515 of 2004
said admission is found in an undisputed point of time that
they were jointly residing together and cultivating the land
and hence, it requires to be interfered with the finding of
the trial Court and hence, I answer point Nos.1 and 2 as
affirmative.
12. Answer to Point No.3 : In view of the
discussions made above, I pass the following:
ORDER
The appeal is allowed with cost.
The Judgment and decree dated 31.01.2004 passed
in O.S.No.176/1993 by the III Additional Civil Judge (Sr.
Dn.), Belagavi, at Belagavi, is set aside and the suit of the
plaintiffs is decreed as prayed for.
Registry is directed to draw the decree.
Sd/-
JUDGE
SVH
