Hanmantha S/O Kallappa Talwar vs Tippanna S/O Madappa Talwar Since ...
2023 Latest Caselaw 4001 Kant

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                                                        NC: 2023:KHC-K:4925
                                                              RSA No. 697 of 2007




                               IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                              DATED THIS THE 5TH DAY OF JULY, 2023

                                              BEFORE
                           THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
                      REGULAR SECOND APPEAL NO. 697 OF 2007 (DEC/INJ-)


                      BETWEEN:

                      1.   HANMANTHA S/O KALLAPPA TALWAR,
                           AGE: 52 YEARS, OCC: AGRICULTURE,

                      2.   SIDDAPPA S/O KALLAPPA
                           AGE: 47 YEARS, OCC: AGRICULTURE,

                           BOTH ARE R/O: NAGAIDLAI,
                           TALUK: CHINCHOLI,
                           DISTRICT: GULBARGA-585 307

                                                                    ...APPELLANTS
                      (BY SMT. HEMA L K, ADVOCATE)

Digitally signed by
                      AND:
RAMESH MATHAPATI
Location: HIGH
COURT OF
KARNATAKA                  TIPPANNA
                           S/O MADAPPA TALWAR
                      1.   SINCE DECEASED THROUGH LRS

                           BAKKAPPA
                           S/O TIPPANNA TALWAR,
                           AGE: 45 YEARS,
                           OCC: AGRICULTURE,
                           R/O LALAGUDA-
                           SECUNDERAAD (A.P)-500 017

                      2.   RATNAMMA
                           W/O TIPPANNA TALWAR,
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                                    NC: 2023:KHC-K:4925
                                       RSA No. 697 of 2007




     AGE: 70 YEARS,
     OCC: HOUSEHOLD,
     R/O: NAGAIDLAI,
     TQ: CHINCHOLI
     DIST: GULBARGA-585 307

3.   PARVATI
     W/O RAMANNA NIRAVANCHI,
     AGE: 35 YEARS,
     OCC: HOUSEHOLD,
     R/O NIRAVANCHI,
     TALUK: HUMNABAD,
     DIST: BIDAR-585 338

4.   BHIMANNA
     S/O MADAPPA TALWAR
     SINCE DECEASED THROUGH LRS:

A.   RANGAMMA W/O BHIMANNA
     AGE: 40 YEARS,
     OCC: HOUSEHOLD

B.   VITHAL S/O BHIMANNA
     AGE: 35 YEARS,
     OCC: AGRICULTURE

C.   ESHWARI D/O BHIMANNA
     AGE: 25 YEARS,

     ALL ARE R/O NAGAIDLAI,
     TQ: CHINHOLLI,
     DIST: KALABURAGI.
                                           ...RESPONDENTS

(BY SRI. SHIVANAND PATIL, ADVOCATE FOR R1 & R3;
APPEAL AGAINST R2 ABATED;
R4(A) TO R4(C) SERVED;
R2(2) SERVED WHO IS R3;
R2(1) SERVICE HELD SUFFICIENT VIDE ORDER DATED
26.06.2023;
R2(1) IS ALREADY ON RECORD AS R1 AND REPRESENTED BY
ADVOCATE)
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                                  NC: 2023:KHC-K:4925
                                       RSA No. 697 of 2007




     THIS RSA IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 3.2.2007 PASSED IN RA.NO. 4/2006 ON
THE FILE OF THE CIVIL JUDGE (SR.DN.), CHINCHOLI,
REVERSING THE JUDGMENT AND DECREE DATED 6.12.1997
PASSED IN O.S.NO. 81/1989 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), CHICHOLI AND TO DECREE THE SUIT OF THE
PLAINTIFFS AS PRAYED FOR.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

1. Kallappa instituted a suit against his brothers--

Thippanna and Bhimannna seeking for a declaration that

he was the owner in possession of the land bearing

Sy.No.70/1 measuring 14 acres 10 guntas, which was

situate at Nagaidlai village of Chincholi Taluk. He also

sought for a decree of perpetual injunction.

2. By way of amendment, Kallappa also sought for

possession of the portion of the suit land in respect of

which the names of defendants had been entered in the

Record of Rights and over which they were claiming

possession.

NC: 2023:KHC-K:4925 RSA No. 697 of 2007

3. The said suit was originally filed in the Court of Civil

Judge (Jr.Dn.), Chincholi, on 20.11.1985 and numbered as

O.S. No.229 of 1985 and later, it was renumbered as O.S.

No.81 of 1989 on being transferred to the Court of

Munsiff, Chincholi on 07.08.1989.

4. It was the case of Kallappa that Thippanna and

Bhimanna were his two brothers and they were all children

of Madappa, who had died about 30 years prior to the

filing of the suit.

5. It was contended that his family, consisting of

himself and his two brothers i.e., the defendants, had got

ancestral properties partitioned among themselves equally

about thirty years prior to the filing of the suit and ever

since the partition, they were living separately and

enjoying their respective shares. He stated that in the

partition, Sy.No.97/C-3 measuring 01 acre 03 guntas and

Sy.No.11/C-3 measuring 02 acres 15 guntas, both situate

at Nagaidlai and Tirmalapur respectively were allotted to

his share.

NC: 2023:KHC-K:4925 RSA No. 697 of 2007

6. He stated that since he was a Harijan and the

Government had taken a scheme to distribute the lands to

Harijan, he was given 15 acres 10 guntas in Sy.No.70/1 of

Nagaidlai village on 17.10.1957 and after the said land

was granted, he had invested huge sums of money and

had developed the land and was in peaceful possession of

the land. He stated that in order to confirm the land in

favour of his sons, he had made an application to the

Village Accountant in the year 1983 for changing the Khata

in favour of his two sons and at that time, his brothers

who had not challenged the exclusive grant made in his

favour, raised objections contending that the property was

a joint family property and they also had an equal share

and demanded that their names be entered in Column

Nos.9 and 12 of Record of Rights. It is stated that the

Tahasildar, without conducting a proper inquiry and in

excess of his powers, had held that the property was a

joint family property and his brothers also had a share.

He stated that he had preferred an appeal to the Assistant

Commissioner and the Assistant Commissioner had held

NC: 2023:KHC-K:4925 RSA No. 697 of 2007

that the Tahasildar had no competence to decide the rights

of the parties and he had upheld the order of the

Tahasildar only insofar as it relates to the entering of his

brothers name in Column No.12 i.e., in the Cultivator's

column.

7. It was stated that he had filed a Revision before the

Deputy Commissioner and the same was pending

adjudication and his brothers taking advantage of these

circumstances, were claiming ownership and trying to

dispossess him and therefore, he was constrained to file

the suit.

8. His brother/Thippanna--defendant No.1 entered

appearance and contested the suit by filing a written

statement. He stated that the land bearing Sy.No.70/1

i.e., the suit property had been granted to the entire

family of theirs and the grant was not exclusive to

Kallappa.

NC: 2023:KHC-K:4925 RSA No. 697 of 2007

9. He also stated that this granted land was also

partitioned and divided into three parts at the time of

partition and the middle portion of the land was granted to

an extent of 04 acres 30 guntas was allotted to Kallappa,

while the remaining portions to the East and West were

allotted to them. Thus, it was their case that the land

granted in the name of Kallappa was in fact the land

granted to their family and it was also subjected to the

partition amongst three of them.

10. The Trial Court, on consideration of the evidence

produced before it, came to the conclusion that Kallappa

had established that the land was exclusively granted to

him and that he was in possession of the same. The Trial

Court accordingly decreed the suit and held that Kallappa

was the owner in possession of the suit land bearing

Sy.No.70/1 measuring 14 acres 10 guntas and an order of

injunction was also granted.

11. Being aggrieved, Thippanna preferred an appeal.

NC: 2023:KHC-K:4925 RSA No. 697 of 2007

12. The Appellate Court, on re-appreciation of the

evidence, came to the conclusion that the land was

granted when the family was joint and therefore, it was a

grant on behalf of joint family.

13. It took note of the fact that the Revenue Records

included the names of the brothers of Kallappa in the

Cultivator's column and it was, therefore, a grant made in

favour of the joint family. The Appellate Court also came

to the conclusion that the partition set up by Kallappa in

the year 1957 had not been established and therefore, the

property which was granted to Kallappa would have to be

considered as the land granted when the family was joint

and Kallappa could not, therefore, claim exclusive

possession. The Appellate Court accordingly allowed the

appeal and dismissed the suit.

14. As against these divergent judgments, this second

appeal has been preferred and admitted to consider the

following Substantial Question of Law:

NC: 2023:KHC-K:4925 RSA No. 697 of 2007

" Whether a grant in favour of a member of the family enures to the benefit of all the family members as it is his exclusive property? "

15. The learned counsel for the appellant vociferously

contended that when the grant was admittedly made in

the name of Kallappa, in law, the land would always have

to be considered as a personal grant and would not enure

to the benefit of the family members. She submitted that

despite this legal position, which was also enunciated in

RFA No.223 of 2007 by this Court, both the Courts below

had seriously erred in coming to the conclusion that the

grant would enure to the benefit of the entire family.

16. The learned counsel for the respondents, on the

other hand, supported the judgment and decree of the

Appellate Court and sought to rely upon the evidence of

PW-1 in which, he had admitted that Sy.No.11 of

Tirmalapur village, which had been granted to Thippanna,

was given to Kallappa as his share and this by itself

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

indicated that the family was always treating all the lands

that it possessed as joint family property irrespective of in

whose name the land had been granted. He also sought

to rely upon the deposition of DW-1 during the course of

his cross-examination to contend that even according to

the plaintiff, the partition of Sy.No.70/1 into three bits had

been admitted.

17. The case of Kallappa was that there had been a

partition between himself and his three brothers thirty

years prior to the filing of the suit. The suit was filed in

the year 1989. Thus, according to this plea, the partition

was effected only in the year 1959. Admittedly, the land

was granted by the Government in the year 1957 and

since, the family was admittedly joint, according to the

above mentioned plaint averments, it will have to be

considered as a land granted to all the members of the

family. This is essentially because all the three brothers

were living jointly and were cultivating the lands of the

family jointly.

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

18. In fact, the specific case of Kallappa was that after

the partition, he had been allotted the land bearing

Sy.No.70/1 in the year 1957. Assuming that the averment

in the plaint is a mistake, Kallappa would thereafter be

required to establish that there had been indeed a

partition prior to the grant of land bearing Sy.No.70/1 in

1957, in which he was allotted Sy.No.97/C-3 and

Sy.No.11/C-3. However, there was absolutely no evidence

indicating that a partition was effected between the three

brothers prior to 1957.

19. Kallappa, though alive, did not choose to examine

himself to establish this partition and on his behalf, his

son/Hanmanth, who was aged about forty years as of

1992 was examined. In his cross-examination, he has

stated as follows:

".......It is not true to suggest that when the suit land was granted by the government, my father and my senior uncle were residing together. I do not remember when the partition took place between my father and senior

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

uncle. My grand father by name Madappa was alive at the time of partition. I do not remember when my grand father died. I have got the knowledge of death of my grand father. I was 10 to 12 years old when my grand father died. It is true that partition between my father and my uncles took place about 30 years back. ....."

20. As could be seen from this deposition, he was not

aware as to when the partition took place between his

father and his uncles. He however admits that his grand-

father was alive at the time of the partition and he also

admits that he was aged about 10 to 12 years when his

grand-father had died. He further goes on to state that

the partition between his father and his uncles took place

about thirty years back. Since, he deposed in the year

1992, it is obvious that the partition that he was referring

to would relate to 1962, which would be a good five years

after the land had been granted.

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

21. Another factor to be noticed here is that he also

deposed as follows:

" ......It is true that the land bearing Sy.No.11 of Tirmalapur village was granted in tenancy in the name of deft.No.1. In that land deft.No.1 has given to me my share. ......"

22. As could be seen from this deposition, he

categorically admits that Sy.No.11/C-3 of Tirmalapur

village which was granted to his uncle--Thippanna i.e.,

defendant No.1 by virtue of tenancy, was actually given to

him as his share.

23. This evidence also indicates that the family construed

not only the land granted to Thippanna but also the land

granted to Kallappa as joint family property.

24. A conjoint reading of the deposition and the

pleadings would clearly indicate that the lands granted to

Thippanna and also the land granted to Kallappa were

treated as joint family properties and partitioned.

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

25. In this regard, the cross-examination of DW-1 i.e.,

Thippanna's son--Bakkappa would be relevant and the

same reads as follows:

" ...... £ÀªÀÄä PÀPÀÌ ©üêÀÄtÚ fêÀAvÀ EzÁÝ£.É CªÀ¤UÉ E§âgÀÄ UÀAqÀÄ ªÀÄPÀ̼ÀÄ EzÀÄÝ M§â£À ºÉ¸ÀgÀÄ £ÁUÀ¥Àà E£ÉÆߧâ£À ºÉ¸g À ÀÄ «oÀ×® EzÉ E§âgÀÄ ºÉtÄÚ ªÀÄPÀ̼ÀÄ PÀÆqÀ EzÁÝg.É CªÀg® É ègÀÆ zÉÆqÀتg À ÀÄ EgÀÄvÁÛg.É CªÀ£À ºÀwÛgÀ MPÀÌ®ÄvÀ£À EzÉ. zÁªÉ d«Ää£À°è £ÀªÀÄä PÀPÀÌ ©üêÀÄtÚ¤UÉ ¥À²ª Ñ ÀÄ ¢QÌUÉ 4 JPÀgÉ 30 UÀÄAmÉ d«ÄãÀÄ §A¢zÉ. ªÀÄzsÀåzÀ°è £ÀªÀÄä PÀPÀÌ PÀ®è¥Àà¤UÉ 4 JPÀgÉ 30 UÀÄAmÉ d«ÄãÀÄ EzÉ. ¥ÀƪÀð ¨sÁUÀPÉÌ £ÀªÀÄä vÀAzÉUÉ 4 JPÀgÉ 30 UÀÄAmÉ d«ÄãÀÄ §A¢zÉ. DV£À PÁ®zÀ°è ¸Àg¥ À A À aÀgÀÄ AiÀiÁªÀ jÃwAiÀiÁV ¥Á®Ä ªÀiÁrzÁÝgÉ D jÃwAiÀiÁV £ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ CªÀgÀ CtÚ vÀªÀÄäA¢gÀÄ ºÀAaPÉÆAqÀÄ EgÀÄvÁÛg.É ¸Àzj À ¥Á®Ä FUÀ 25-30 ªÀµð À PɼU À É DVzÀÄÝ EzÀÄÝ D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ¸Àtª Ú ¤ À zÉÝ. ... ... "

26. As could be seen from this deposition, the line of

questioning and the suggestions basically indicate that the

plaintiff was admitting the partition. In fact, he

categorically states that the partition took place about 25

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

to 30 years ago when he was very young. The

suggestions made to him also indicate that there is an

admission that the middle portion of the land was allotted

to Kallappa.

27. If the plaintiff chose to cross-examine the son of

Thippanna by suggesting the manner in which the suit

land was partitioned and they also suggested that the

partition took place about 25 to 30 years prior to 1996

when Thippanna's son was examined, this also indicates

that the partition was much after 1957.

28. It is, therefore, clear that the suit lands were indeed

the joint family properties and they had been partitioned

amongst the three brothers and the contention of Kallappa

that there was a partition prior to 1957 and the suit land

was granted after 1957 cannot be true.

29. As far as the argument of the learned counsel that

the land being a granted land, the same would have to be

considered as a personal grant and would not enure to the

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

benefit of the family members as indicated in R.F.A.

No.223 of 2007 [PAR] (Sri R. Venkatappa @ Venkat

Raju vs. Sri Ramaiah and others - disposed of on

31.03.2022) is concerned, it is to be stated here that the

grant that this Court was referring to was a grant made

under the Land Grant Rules. However, the grant that had

been made in favour of Kallappa, as could be seen from

the orders of the Assistant Commissioner, was a land

granted to Kallappa under the Hyderabad Special Laoni

Rules. Obviously, the judgment rendered in the context of

Karnataka Land Grant Rules cannot be made applicable to

a grant made under the Hyderabad Special Laoni Rules.

30. It may also be pertinent to state here that if a land is

granted to a member of a family when they are joint and

when there is also evidence indicating that the land

granted to another member was subjected to a partition

and given to another member, it cannot be held, as a

normal rule, that granted lands would be personal to the

grantee.

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NC: 2023:KHC-K:4925 RSA No. 697 of 2007

31. It may also be relevant to state here that the fact

that Kallappa sought for possession of the land after the

filing of the suit also indicates that there was a partition in

which his brothers were allotted two strips of land. If

Kallappa was in exclusive possession, the question of he

seeking for possession of the land from his brothers would

not arise and it would only indicate that there was indeed

a partition in which the land granted to Kallappa was also

being divided amongst the three brothers.

32. It may also be relevant to state here that no

evidence is produced to indicate that an application was

made seeking for grant of land on the ground that

Kallappa was either landless or was deserving of land

grant due to certain specific conditions. Unless there is

some evidence to indicate that the grant sought for was

personal to Kallappa, it cannot be assumed that the

granted land would be an exclusive grant in favour of

Kallappa.

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33. Thus, in the present case, it will have to be held that

the grant made in favour of Kallappa would enure to the

benefit of all the family members since the family was

joint and was not Kallappa's exclusive property.

34. The Substantial question of Law is accordingly

answered and the second appeal is dismissed confirming

the judgment and decree of the Appellate Court.

Sd/-

JUDGE RK