Karnataka High Court
Sri. Alli Hassan Bhovi vs Smt. Kulsuma Hajrath Bhovi on 22 September, 2022
Bench: Ravi V.Hosmani
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RSA No. 5992 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO. 5992 OF 2010 (PAR-)
BETWEEN:
SRI. ALLI HASSAN BHOVI,
SINCE DECEASED BY HIS LRS.
1A. SRI MUSA S/O.ALLISAB BHOVI,
AGE 42 YEARS, OCC-AGRICULTURE,
R/AT INCHALAKARANJI, TAL-HATAKANAGALE
DIST-KOLHAPUR-416 001,
MAHARASTRA STATE.
1B. SRI ISAK S/O.ALLISAB BHOVI,
AGE-39 YEARS, OCC-AGRICULTURE,
R/AT-INCHALAKARANJI, TAL-HATAKANAGALE,
DIST-KOLHAPUR-416 001,
MAHARASTRA STATE.
1C. SMT MARIYAMMA W/O.BABU MUJAWAR,
AGE-51 YEARS, OCC-HOUSEHOLD WORK,
R/AT. INCHALAKARANJI, TAL-HATAKANAGALE,
DIST-KOLHAPUR-416 001,
MAHARASTRA STATE.
1D. SMT. SHAHERA W/O.MEHBOOB SHEKH,
AGE-49 YEARS, OCC-AGRICULTURE,
R/O.TERDAL, TAL-JAMKHANDI,
DIST-BAGALKOTE-587 101.
1E. SMT. BISMILLA W/O.ANWAR GADDEKAR,
AGE-46 YEARS, OCC-HOUSEHOLD WORK,
R/AT-INCHALKARANJI, TAL-HATAKANAGALE,
DIST-KOLHAPUR-416 101, MAHARASTRA STATE.
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RSA No. 5992 of 2010
1F. SMT. SHAPURA W/O.CHANDSAHEB SAYYA,
AGE-44 YEARS, OCC-HOUSEHOLD WORK,
R/AT. INCHALAKARANJI, TAL-HATAKANAGALE,
DIST-KOLHAPUR-416 001, MAHARASTRA STATE.
1G. SMT. HAVABI W/O.ALISAB BHOVI,
AGE-71 YEARS, OCC-HOUSEHOLD WORK,
R/AT. INCHALAKARANJI, TAL-HATAKANAGALE,
DIST-KOLHAPUR-416 001, MAHARASTRA STATE.
...APPELLANTS
(BY SMT PALLAVI S.PACHHAPURE, ADVOCATE FOR
SRI. SRINAND A PACHHAPURE, ADVOCATE)
AND:
1. SMT. KULSUMA HAJRATH BHOVI,
AGE: 69 YEARS, OCC: HOUSEHOLD WORK,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 301.
2. SMT. AMSA HASSAN BHOVI,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O TERDAL, NEAR HUKKERI TOT,
4TH CANAL, TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 301.
3. SRI. DASTGIR HASSAN BHOVI,
AGE: 44 YEARS, OCC: AGRICULUTRE,
R/O TERDAL, NEAR HUKKERI TOT,
4TH CANAL, TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 301.
4. SRI. HAJRATH S/O HASSAN BHOVI,
AGE: 39 YEARS, OCC: AGRICULUTRE,
R/O NEAR HUKKERI TOT, 4TH CANAL,
TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 301.
5. SMT. DILSHAD W/O.MEHBOOB SAB UMARANI,
AGE: 34 YEARS, OCC: HOUSEHOLD WORK,
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RSA No. 5992 of 2010
R/O KHB COLONY, BHANGI NAGAR,
BANAHATTI, TQ. JAMKHANDI,
DIST. BAGALKOT-587 301.
6. SMT. MAMTAZ W/O BANDENAWAZ MALALI,
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O NEAR MALLIKARJUN TALKIES,
BANAHATTI, TQ. JAMKHANDI,
DIST. BAGALKOT-587 301.
7. SRI. HUSSAIN HAJARATH BHOVI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 301.
8. SRI. GULAB HAJARATH BHOVI,
SINCE DECEASED BY HIS LRS.
8A. SMT. MAIRUN W/O.GULAB BHOVI,
AGE-55 YEARS, OCC-HOUSEHOLD WORK,
R/O.NEAR 4TH CANAL, TERDAL, VILLAGE,
TAL-JAMAKHANDI,-587 101,
DIST-BAGALKOTE.
8B. SMT. BISMILLA W/O.RAZAK MUDALE,
D/O.GULAB BHOVI, AGE-35 YEARS,
OCC-HOUSEHOLD WORK,
R/O.BANAHATTI VILLAGE, TAL-JAMAKHANDI,
DIST-BAGALKOT-587 101.
8C. SRI MUSTAFA S/O.GULAB BOVI,
AGE-32 YEARS, OCC-AGRICULTURE,
R/O.NEAR 4TH CANAL, TERDAL VILLAGE,
TAL-JAMKHANDI-587 101,
DIST-BAGALKOTE.
8D. SRI ASLAM S/O.GULAB BHOVI,
AGE- 27 YEARS, OCC-AGRICULTURE,
R/O.NEAR 4TH CANAL, TERDAL VILLAGE,
TAL-JAMKHANDI-587 101,
DIST-BAGALKOTE.
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RSA No. 5992 of 2010
8E. SRI REHMAN S/O.GULAB BHOVI,
AGE- 22 YEARS, OCC- AGRICULTURE,
R/O.NEAR 4TH CANAL, TERDAL VILLAGE,
TAL-JAMKHANDI-587 101,
DIST-BAGALKOTE.
8F. SMT.SAMEENA W/O.RAMZAN ALASE,
D/O.GULAB BHOVI, AGE-25 YEARS,
OCC-HOUSEHOLD WORK,
R/O.KITTUR VILLAGE, TAL-ATHANI,
DIST-BAGALKOTE-587 101.
9. SMT. SULTAMA W/O MOULA BHOVI,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT, NOW RESIDING AT
HULAGABALI, TAL-ATHANI,
DIST-BELAGAVI-590 001.
10. SRI. SIKANDAR MOULA BHOVI,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 101.
11. SMT. MADINA MOULA BHOVI,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT587 101.
12. SRI. MAJID MOULA BHOVI,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 101.
13. SRI. UMAR MOULA BHOVI,
SINCE DECEASED AND HIS LRS
I.E., RESPONDENTS NO.9 TO 12 AND
14 AND 15 ARE ALREADY ON RECORD.
14. BIBIJAN MOULA BHOVI,
AGE: 31 YAERS, OCC: HOUSEHOLD WORK,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 101.
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RSA No. 5992 of 2010
15. SHAMSHAD MOULA BHOVI,
AGE: 19 YAERS, OCC: HOUSEHOLD WORK,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 101.
16. SRI. YASIN HAJARAT BHOVI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 101.
17. SRI. ANIL JAMBU CHOUGALE,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 101.
18. SMT. INDUBAI JAMBU CHOUGALE,
AGE: 64 YAERS, OCC: HOUSEHOLD,
R/O TERDAL, TQ. JAMKHANDI,
DIST. BAGALKOT-587 101.
19. SMT. SUJATA RAYAPPA ALAGUR,
AGE: 39 YAERS, OCC: HOUSEHOLD,
R/O PALBHAVI, TQ. RAIBAG,
DIST. BELGAUM-587 101.
20. SMT. SHOBHA ADINATH KAMAGOUDA,
AGE: 46 YAERS, OCC: HOUSEHOLD,
R/O KABBUR, TQ. CHIKODI,
DIST. BELGAUM-587 101.
...RESPONDENTS
(BY SRI SHRISHAIL M.JATTI, ADVOCATE FOR RESPONDENTS
NO.4 TO 6 AND 8(E))
(APPEAL AGAINST RESPONDENT NO.1 IS ABATED VIDE ORDER
DATED 26.02.2015)
(SERVICE OF NOTICE ON RESPONDENTS NO.2, 3, 7, 8(A), 8(B)
8(C), 8(D), 8(F), 10, 11, 12, 14, 15 AND 16 HELD SUFFICIENT)
(RESPONDENT NO.13-DEAD)
(SERVICE OF NOTICE TO RESPONDENTS NO.9, 17, 18 TO 20
ARE SERVED)
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RSA No. 5992 of 2010
THIS R.S.A. IS FILED U/SEC.100 OF CPC., PRAYING TO
SET ASIDE JUDGMENT & DECREE DATED 29-09-2010 PASSED
IN R.A.NO.172/2009 ON THE FILE OF FAST TRACK COURT,
JAMKHANDI, DISMISSING THE APPEAL BY CONFIRMING
JUDGMENT DATED 07-10-2009 PASSED IN O.S.NO.291/2001
ON THE FILE OF PRL.CIVIL JUDGE (SR.DN) JAMKHANDI,
DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though, this appeal is listed for admission, with
consent of learned counsel for parties, it is taken up for
final disposal.
2. Challenging judgment and decree dated
29.09.2010 passed by Fast Track Court, Jamakhandi (for
short, "first appellate Court") in R.A.no.172/2009 and
judgment and decree dated 07.10.2009 passed by
Principal Civil Judge (Sr.Dn.), Jamkhandi (for short, "trial
Court") in O.S.no.291/2001, this appeal is filed.
3. Appellant herein was original plaintiff, while
respondents herein were defendants in original suit. For
RSA No. 5992 of 2010
sake of convenience, parties to this appeal will hereinafter
be referred to by their ranks in original suit.
4. O.S.no.291/2001 was filed seeking for relief of
partition and separate possession of plaintiff's half share in
suit schedule properties. In plaint, it was stated that
plaintiff and defendants were tenants in respect of suit
schedule properties. Form no.7 was filed by them, in
which, it was stated that plaintiff would be entitled to half
share and defendants entitled for half share in suit
schedule properties. On consideration of said application,
Land Tribunal granted occupancy rights in names of
defendants no.1 to 6 in respect of half share. It was stated
that thereafter though plaintiff demanded partition of his
share, same was denied by defendants giving rise to cause
of action for filing of suit.
5. Despite service of suit summons, defendants
no.5(A) to 5(C) and 5(F) did not enter appearance. They
were placed exparte. Defendant no.1 filed written
statement denying plaint averments. It was stated that
RSA No. 5992 of 2010
suit was filed by plaintiff in collusion with defendants no.7
to 10 with ulterior motive, when defendants no.7 to 10
failed in their challenge to grant of occupancy rights in
favour of defendants no.1 to 6. Defendants no.5(D), 5(E)
and 5(G) filed their separate written statements denying
plaint averments stating that occupancy rights were not
granted jointly, but was granted exclusively to defendants
no.1 to 6.
6. Based on pleadings, trial Court framed following
issues:
1. Whether plaintiff proves that he is entitled for
partition and separate possession of his ½
share in suit properties by metes and bounds?
2. Whether defendant no.1 proves that, she
and defendant nos.2 to 6 are tenants and
occupancy rights granted in their favour
and they are in possession and occupation
of suit property?
3. Does she further proves that suit of plaintiff
is not valid according to law?
RSA No. 5992 of 2010
4. Whether plaintiff is entitled for reliefs
sought for?
5. What judgment or order?
7. Thereafter, plaintiff examined three witnesses
as PWs.1 to PW.3 and got marked Exs.P1 to 13. On behalf
of defendants, three witnesses were examined as D.W.1 to
3 and Ex.D.1 to 6 were marked.
8. On consideration, trial Court answered issues
no.1 and 4 in negative, issues no.2 and 3 in affirmative
and issue no.5 by dismissing suit.
9. Aggrieved by said judgment, plaintiff filed
R.A.no.172/2009 on several grounds. Based on
contentions urged, first appellate Court framed following
points for its consideration:-
(1) Whether appellant proves that findings
recorded by trial Court on issues in
O.S.no.291/2001 are perverse capricious
and erroneous and deserves to be
interfered with and set aside?
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RSA No. 5992 of 2010
(2) Whether appellant proves that he has got
half share in suit lands and also appellant
further proves due execution of Ex.P.10
by L.R's of deceased Hazarath in his
favour on 02.11.1973?
(3) Whether respondent no.1 proves that
judgment and decree passed by trial
Court is perfectly maintainable and
judgment and decree passed in
O.S.no.291/2001 deserves to be upheld
and confirmed?
(4) What order?
10. Upon hearing counsel and re-appreciation, first
appellate Court answered point no.1 and 2 in negative and
point no.3 in affirmative and point no.4 by dismissing
appeal.
11. Against concurrent findings in judgment and
decree passed by both trial Court and first appellate Court
plaintiff has preferred this appeal.
12. Smt. Pallavi S.Pachhapure, learned counsel
appearing for Sri Srinand A.Pachhapure, advocate for
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RSA No. 5992 of 2010
appellant submitted that dismissal of plaintiff's suit was
mainly on ground that plaintiff failed to produce any
records to establish that his name was appearing in
revenue records prior to grant. It was further submitted
that plaintiff had produced Form no.7 filed before Land
Tribunal as Ex.P.2, which indicated that it was filed jointly
by plaintiff and defendants no.1 to 6 wherein half share
was claimed by them. On consideration of same, Land
Tribunal passed order on 14.10.1981 granting occupancy
rights to defendants. It was submitted that these two
documents would indicate that claim of plaintiff and
defendants no.1 to 6 were jointly adjudicated and
therefore plaintiff was entitled for half share. Dismissal of
suit merely on ground that there were no revenue records
produced by plaintiff was unjustified. Even confirmation of
judgment and decree by first appellate Court on similar
reasons was unsustainable and submitted that following
substantial questions of law would arise for consideration:
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RSA No. 5992 of 2010
"Whether impugned judgment and decree
passed by both courts are justified in without
proper consideration of Ex.P.2 i.e., Form no.7
and admission by D.W.2 and 3 that plaintiff was
entitled for half share?
13. On other hand, Sri Shrishail M. Jatti, learned
counsel for respondents no.4 to 6 and 8(E) submitted that
though Form no.7 was filed jointly by plaintiff and
defendants no.1 to 6, Land Tribunal had not granted
occupancy rights to plaintiff. Defendants no.7 to 10 had
infact challenged grant of occupancy rights to defendants
and same was confirmed by Hon'ble Supreme Court.
Further, plaintiff was resident of Ichalkaranji and was
never in occupation or cultivation of lands in question and
Ex.D.3 order passed by Land Tribunal specifically granted
occupancy rights in favour of defendants no.1 to 6 only, in
respect of half share claimed by them. Therefore, there
was deemed rejection of claim of plaintiff which was not
challenged by plaintiff till date. Therefore, judgment and
decree passed by both Courts were fully justified and since
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RSA No. 5992 of 2010
grant of occupancy rights in favour of defendants was
concurrent, no interference is called for.
14. From above submissions, it is not in dispute
that suit properties were originally tenanted lands. It is
also not in dispute that both plaintiff and defendants had
claimed occupancy rights in respect of same. While it is
case of plaintiff that occupancy rights were granted jointly
to plaintiff and defendants no.1 to 6, and therefore, he
was entitled to half share, it is case of defendants no.1 to
6 that though Form no.7 was filed jointly by plaintiff and
defendants, Land Tribunal granted occupancy rights only
to defendant nos.1 to 6 in respect of their claim. Hence
plaintiff was not entitled for share in grant in his favour.
While passing impugned judgment and decree, trial Court
on examination of records has held that plaintiff failed to
establish that he was tenant of suit properties.
15. Though, Ex.P.2 would indicate that claim made
by plaintiff for grant of occupancy rights in respect of half
share, perusal of Ex.D.3 order passed by Land Tribunal,
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RSA No. 5992 of 2010
would reveal that after taking note of claim of plaintiff as
well as defendants, specifically granted half share only to
defendants no.1 to 6. Thus, when there is no grant in
favour of plaintiff, it would indicate deemed rejection.
16. In any case, plaintiff has not questioned grant in
favour of defendants no.1 to 6 exclusively or denial of
occupancy rights to him. Therefore, dismissal of suit and
its confirmation by first appellate Court would be justified.
No substantial question of law would arises for
consideration. Hence, appeal is devoid of merits and it is
dismissed.
SD
JUDGE
ckk
