Karnataka High Court
Sri Mahalingappa vs Sri Jayanna on 9 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 101 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 101 OF 2024 (DEC/PAR)
BETWEEN:
SRI MAHALINGAPPA
S/O LATE KARIBASAPPA
AGED ABOUT 55 YEARS
AGRICULTURIST
R/O DODDAGHATTA VILLAGE
MADADAKERE HOBLI
HOSADURGA TALUK
CHITRADURGA DISTRICT - 577 527.
...APPELLANT
(BY SRI. GOPALAKRISHNAMURTHY C.,ADVOCATE)
AND:
Digitally
signed by 1. SRI JAYANNA
SUMA B N
S/O LATE KARIBASAPPA
Location:
High Court AGED ABOUT 67 YEARS
of AGRICULTURIST
Karnataka
R/O NAKIKERE HOBI
HOSADURGA TLAUK
CHITHRADURGA DISTRICT - 577 527.
2. SMT. DEVAMMA
D/O LATE KARIBASAPPA
W/O LOKAPPA
AGED ABOUT 61 YEARS
R/O DODDAGHATTA VILLAGE
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RSA No. 101 of 2024
MADADKERE HOBLI
HOSADURGA TALUK
CHITHRADURGA DISTRICT - 577 527.
3. SRI. THIPPESWAMY
S/O LT KARIBASAPPA
AGED ABOUT 55 YEARS
R/O DODDAGHATTA VILALGE
MADADKERE HOBLI
HOSADURGA TALUK
CHITHRADURGA DISTRICT - 577 527.
4. SMT. BHAGYAMMA
D/O LATE KARIBASAPPA
W/O BHYRAPPA
AGED ABOUT 53 YEARS
R/O NAKIKERE VILLAGE
MADADKERE HOBLI
HOSADURGA TALUK
CHITHRADURGA DISTRICT - 577 527.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.05.2023
PASSED IN RA.NO.14/2021 ON THE FILE OF THE SENIOR CIVIL
JUDGE DN JMFC, HOSADURGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 25.02.2021
PASSED IN O.S.NO.199/2015 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, HOSADURGA.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 101 of 2024
JUDGMENT
This appeal is by the defendant No.1 being aggrieved
by the judgment and decree dated 25.02.2021 passed in
O.S.No.199/2015 on the file of the Principal Civil Judge &
JMFC, Hosadurga (hereinafter referred to as 'Trial Court'
for short) which judgment is confirmed by the judgment
and order dated 24.05.2023 passed in R.A.No.14/2021 on
the file of Senior Civil Judge and JMFC, Hosadurga
(hereinafter referred to as 'First Appellate Court' for
short).
2. The above suit in O.S.No.199/2015 is filed by
the plaintiff/respondent seeking relief of declaration,
partition and separate possession of the suit schedule
properties consisting of two agricultural lands and a
residential house. It is the contention of the plaintiff that
plaintiff and defendants are the children of one late
Karibasappa and late Siddamma. That suit schedule
properties are joint family properties of the plaintiff and
the defendants. That the father of the plaintiff late
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Karibasappa and his brother Thyrappa have acquired the
agricultural properties in Sy.Nos.75/2 and 77/3 long ago
being tenants. That during the lifetime of father of the
plaintiff and his uncle they had partitioned the property in
which the item No.1 of the suit schedule property had
fallen to the share of the father of the plaintiff. That father
of the plaintiff had been in possession and enjoyment of
the suit schedule properties. Upon his demise the plaintiff
and the defendants continued to be in possession and
enjoyment of the suit property.
3. That the defendant No.1 being the head of the
family and being educated, with the permission of the
plaintiff and other defendants had filed a petition before
the Assistant Commissioner, Chitradurga seeking an order
for mutation of the suit schedule properties in his name
from the name of Sri. Jagadguru Murugarajendra
Mahaswamiji Bruhanmutt, Chitradurga. That the said
application was allowed, properties was mutated in the
name of the defendant No.1. Based on which plaintiff and
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defendants have been in possession and enjoyment of the
suit schedule properties. That since the relationship
between the plaintiff and defendants were strained,
plaintiff requested for partition which was refused,
constraining him to file partition in the suit.
4. That defendant No.1 and defendant No.4
appeared and defendants 2 and 3 did not appear and were
placed exparte. That the defendant No.1 in his written
statement admitted the relationship and also admitted
that the Assistant Commissioner, Chitradurga considering
his application had granted the land in his favour.
However, he denied that the property was in possession of
the plaintiff and defendants. It is specifically contended by
the defendant No.1 that the said land had been sold by
Karibasappa and Thyrappa in favour of Sri. Jagadguru
Murugarajendra Mahaswamiji Bruhanmutt, Chitradurga in
whose name the revenue entries were effected and the
Swamiji of the said mutt was the absolute owner of the
property. It is his contention that his uncle Tyrappa had
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been cultivating the item Nos. 1 and 2 of the suit schedule
properties as a tenant and he was giving food grains to the
Mutt every year.
5. That he filed application seeking for grant of
occupancy rights and the same was favoured by the
Assistant Commissioner. He further contended that the
plaintiff was married to one Sarojamma from Nakikere
village and he has been residing in Nakikere village for the
past 35 to 36 years. That the father-in-law has several
properties in Nakikere village and plaintiff had settled
down in the said village. Thus he contends that the
plaintiff is a permanent resident of Nakikere village and he
has been enjoying more than 5 acres of land belonging to
his father-in-law. He further contended that he has
developed the suit land at his own cost by planting Banana
and Areca nuts plants and he has spent about 7 to 8 lakhs
in developing of the land. That he has performed
marriages of his sisters. As such he is the absolute owner
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of the property and the property is not the joint family
ancestral property. Hence, sought for dismissal of the suit.
6. Trial Court based on the aforesaid pleadings
framed the following issues.
"1. Whether the plaintiff proves that, suit
schedule properties are joint family properties
of himself and defendants?
2. Whether plaintiff proves that, he is having
1/5th share in the suit schedule properties?
3. Whether the defendant No.1 proves that, suit
property earlier belonged to Sri. Jagdguru
Murugharajendra Mahaswamiji of Chitradurga
which was granted in favour of defendant No.1?
4. Whether the defendant No.1 prove that, he
was in possession and enjoyment of the suit
schedule property?
5. Whether the plaintiff is entitled for the relief
as sought in the suit?
6. What order decree?".
and recorded the evidence. On appreciation of material
evidence Trial Court answered the issue Nos. 1, 2 and 5 in
the affirmative and issue Nos. 3 and 4 in the negative and
consequently decreed the suit with cost holding that the
plaintiff is entitled for 1/5th share in the suit schedule
NC: 2024:KHC:5671
properties. Aggrieved by the same, defendant No.1
preferred regular appeal in R.A.No.14/2021 before the
First Appellate Court. That the First Appellate Court framed
the points for consideration and on appreciation of the
matter, the First Appellate Court dismissed the appeal
confirming the judgment and decree passed by the Trial
Court. Being aggrieved by the same, defendant
No.1/appellant is before this Court.
7. Sri.Gopalakrishnamurthy C, learned counsel for
the appellant reiterating the grounds urged in the
memorandum of appeal submitted that
(a) land never remained family properties upon the
sale of the same in the year 1953 in favour of Sri.
Jagadguru Murugarajendra Mahaswamiji Bruhanmutt,
Chitradurga. He further submits that appellant/defendant
No.1 was cultivating the land on his own and he had made
application before the Assistant Commissioner for grant of
occupancy rights as he was the tenant under Sri.
Jagadguru Murugarajendra Mahaswamiji Bruhanmutt,
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Chitradurga. That considering the entitlement of the
appellant/defendant No.1, Assistant Commissioner has
granted the occupancy rights in his favour vide order
dated 20.02.2002.
(b) Learned counsel for the appellant emphatically
submits that the grant made in favour of the appellant was
for his separate and individual usage and not for the
family. The Trial Court has taken note of the fact that the
entire tax being paid by the appellant alone.
(c) He submits that grant was not for the benefit of
the family. According to him once the family property was
sold and said sale not having been challenged by the
plaintiff the Trial Court and the First Appellate Court erred
in holding the properties to be the joint family properties.
8. Learned counsel for the appellant in support of
his contention submitted that once the land is granted
upon application filed under Form No.7 by the defendant it
ought to have been treated as separate property of the
appellant. Hence he submits that the appeal gives raise to
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substantial question of law warranting consideration at the
hands of this Court.
9. Learned counsel for the appellant has relied
upon the following judgments in support of his case;
1. PRAKASH BHARMU CHANDGADE V. SOU SUVAMA
SIKANDAR KANE AND OTHER reported in 2018 (1)
AKR 455
2. BASAVA DEVADIGA & ORS. VS. SRI
ANANDARAYA PATALI & ORS., reported in
(ILR 1998 KAR 2265)
3. BALAWWA AND ANOTHER VS. HASANABI AND
OTHERS reported in (2009) 9 SCC 272.
10. Heard. Perused the records.
11. It is not in dispute that suit schedule properties
originally belonged, owned and possessed by Karibasappa
father of the plaintiff and defendants. It is also not in
dispute that said properties were allotted to the share of
Karibasappa in a partition that had taken place between
Karibasappa and his brother Tyrappa, who in turn had got
the property from their forefathers. It appears that there
was a sale of the suit schedule properties made in the year
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1953 in favour of Jagadguru Murugarajendra Mahaswamiji
Bruhanmutt. However, records reveal that possession of
the property continued with the family of Karibasappa.
That Trial Court and the First Appellate Court have found
that property remained family property and was in
cultivation of Karibasappa till his demise and thereafter his
children. Even according to the case of the defendant
No.1, upon demise of Karibasappa the property was being
cultivated by their mother and thereafter by the defendant
No.1.
12. Trial Court at paragraph 14 of its judgment has
taken note of order dated 20.02.2022 passed by the
Assistant Commissioner while considering the application
filed by the defendant No.1, following is recorded;
"«ZÁgÀuÉ ªÀÄvÀÄ ¥Àj²Ã®£ÉAiÀÄ ¸ÀAzsÀ¨ÀsðzÀ°è ¥ÀæPÀgÀtzÀ°è F PɼÀPÀAqÀ
CA±ÀUÀ¼ÀÄ ¸ÀàµÀÖªÁVgÀÄvÀÛzÉ. ¥Àæ²ßvÀ d«ÄäUÉ 1953-54£Éà ¸Á°¤AzÀ®Æ
CªÀgÀÄ fêÀAvÀ EgÀĪÀªÀgÉUÉ vÀzÀ£ÀAvÀgÀ CªÀgÀ ªÀÄPÀ̼ÀÄ PÀAzÁAiÀĪÀ£ÀÄß
PÀnÖgÀÄvÁÛgÉAzÀÄ PÀAzÁAiÀÄ gÀ²Ã¢ ºÁdgÀÄ¥Àr¹gÀĪÀ zÁR¯É¬ÄAzÀ
¸ÀàµÀÖ¥ÀnÖgÀÄvÀÛzÉ."
¨sÀƸÀÄzsÁgÀuÉ PÁAiÉÄÝ 1961gÀ ¥ÀæPÀgÀt CfðzÁgÀgÀÄ ¨sÀÆ ¸ÀÄzsÁgÀuÉ
PÁAiÉÄÝ eÁjUÉ §gÀĪÀ ¥ÀƪÀðzÀ°è CAzÀgÉ 01.03.1974 QÌAvÀ
ªÀÄÄAzɬÄAzÀ®Æ ¥Àæ²ßvÀ d«Ää£À UÉÃtÂzÁgÀgÉAzÀÄ ªÀÄvÀÄÛ ¥Àæ²ßvÀ d«Ää£À
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¥ÀwæPÉUÀ¼À£ÀÄß ¥Àj²Ã°¹zÁUÀ 1970-71 jAzÀ ºÁUÀÆ CzÀQÌAvÀ
- 12 -
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ªÀÄÄAzɬÄAzÀ®Æ ¥ÀºÀt ¥ÀwæPÉAiÀÄ PÁ® 12(2) gÀ°è ²æà PÀj§¸À¥Àà ªÀÄvÀÄÛ
vÁågÀ¥Àà EªÀj§âgÀ ºÉ¸ÀgÀÄUÀ¼ÀÄ £ÀªÀÄÆzÀVgÀÄvÀÛzÉ. PÀj§¸À¥Àà ªÀÄvÀÄÛ vÁågÀ¥Àà
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zsÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ. ²æà vÁågÀ¥Àà EªÀgÀÆ ¸ÀºÀ PÀ£ÁðlPÀ ¨sÀÆ ¸ÀÄzsÁgÀuÉ PÁAiÉÄÝ
wzÀÄÝ¥Àr ¤AiÀĪÀÄ 1998 gÀ ¤AiÀĪÀÄ 7 J PɼÀUÉ ¢£ÁAPÀ:22.01.1999 gÀAzÀÄ
¸ÀA.£ÀA.75 J ¥ÉÊQ gÀ°è 02 2 1/2 JPÀgÉ ºÁUÀÆ ¸À.£ÀA.77/3 ¥ÉÊQ gÀ°è 2.19
1/2 JPÀgÉ d«ÄäUÉ EªÀgÀÆ ¸ÀºÀ CfðAiÀÄ£ÀÄß ¸À°è¹gÀÄvÁÛgÉ. EzÀjAzÀ
¸ÀàµÀÖ¥ÀqÀĪÀÅzÉãÉAzÀgÉ PÀj§¸À¥Àà ªÀÄvÀÄÛ vÁågÀ¥Àà EªÀjªÀðgÀÄ ¸ÀªÀĨsÁUÀªÁV
75/2 ªÀÄvÀÄÛ 77/3 d«ÄãÀÄUÀ¼À£ÀÄß ¸ÁUÀÄ ªÀiÁrgÀĪÀÅzÀÄ ªÀÄvÀÄÛ F d«ÄãÀÄ
EA¢UÀÆ PÀÆqÀ CªÀgÀ ªÀÄPÀ̼À ºÁ°Ã CfðzÁgÀgÀÄ ªÀ±ÀzÀ°ègÀĪÀÅzÀÄ gÁd¸Àé
E¯ÁSÉAiÀÄ ªÀgÀ¢¬ÄAzÀ ºÁUÀÆ PÀAzÁAiÀÄ gÀ²Ã¢AiÀÄ zÁR¯ÉUÀ½AzÀ
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£ÉÆAzÁ¬Ä¸À®Ä CºÀðgÁVgÀÄvÀÛgÉ".
13. Trial Court and First Appellate Court having
taken note of this aspect of the matter have come to just
conclusion that land was in possession and enjoyment of
the family of the plaintiff and defendants. Though, learned
counsel for the appellant emphatically submits that Trial
Court and the First Appellate Court have not appreciated
the fact of sale having been made in favour of Sri.
Jagadguru Murugarajendra Mahaswamiji Bruhanmutt,
Chitradurga, it is necessary to note that defendant No.1 in
his application filed before the Tribunal had arrayed the
said Mutt as the respondent and had claimed that land was
being cultivated by his father and uncle during their
lifetime and thereafter by their children. Defendant No.1
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himself having pleaded so and the said plea having been
made against the Mutt the so called purchaser of the
property, defendant No.1 cannot try to take advantage of
the sale deed on the premise that said sale has not been
challenged. Thus findings of facts recorded as above by
the Tribunal and Trial Court and First Appellate Court
cannot be found fault with and interfered under Section
100 of CPC.
14. Besides it is settled principle of law that grant of
the land made in favour of one of the members of the joint
family would enure to the benefit of the other members of
the family. In the light of fact and circumstances of this
matter, where the land was admittedly cultivated by the
father and the uncle of the plaintiff and defendants and
thereafter their mother, indicating existence of jointness in
enjoyment of the suit schedule properties the said
principles will squarely apply to the facts of this case.
Though, learned counsel for the appellant has relied upon
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the citations as narrated hereinabove in the facts and
circumstances of the same are not applicable to the case
inasmuch admittedly the Tribunal has considered the
application of the defendant and granted occupancy rights
solely on account of the fact that the said land was in
cultivation of Karibasappa the father of the plaintiff and
defendants untill his death, thereafter by his children. In
that view of the matter contention of the
appellant/defendant No.1 that he alone was cultivating the
land and grant was in his name and in his individual
capacity cannot be countenanced.
15. No error or irregularity can be found with the
judgment and decree and order passed by the Trial Court
and the First Appellate Court. No substantial question of
law would arise in the matter. Accordingly, the appeal is
dismissed.
Sd/-
JUDGE
