Karnataka High Court
Smt. Iravva @ Kamalavva W/O Basappa vs Irappa S/O Nagappa Kadli on 13 February, 2024
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RFA No. 100305 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100305 OF 2018
(PAR/POS)
BETWEEN:
SMT. IRAVVA @ KAMALAVVA W/O. BASAPPA
SANNASHIVANNANAVAR,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHANKARIPUR, TQ: BYADGI,
DIST: HAVERI-581106.
R/BY HER GPA HOLDER,
RUDRAPPA S/O BASAPPA
SANNASHIVANNANAVAR,
AGE: 45 YEARS, OCC: ELECTRICIAN,
R/O: SHANKARIPUR, TQ: BYADGI,
DIST: HAVERI-581106,
Digitally
NOW R/AT: NEHRU NAGAR, DHARWAD.
signed by
SHIVAKUMAR
...APPELLANT
HIREMATH
Date:
2024.02.22
14:46:41
(BY SRI. NAVEEN CHATRAD, ADVOCATE)
+0530
AND:
1. IRAPPA S/O. NAGAPPA KADLI
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
2. SMT. PARVATEWWA W/O. IRAPPA KADLI
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
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RFA No. 100305 of 2018
3. SMT.KOTRAMMA W/O. SOMANAGOUDA SUKALI
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
4. SMT.BASAVVA W/O. BASANAGOUDA SAKULI
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
5. SRI.IRAPPA S/O. SHANKRAPPA KUMBAR
AGE: MAJOR, OCC: AGRICULTURE,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
6. SRI.RUDRAPPA S/O. PARASAPPA AGASIBAGIL
AGE: MAJOR, OCC: AGRICULTURE,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
7. SRI.PRABANNA S/O. PARASAPPA AGASIBAGIL
AGE: MAJOR, OCC: AGRICULTURE,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
8. FAKKIRAPPA S/O. PARASAPPA AGASIBAGIL
AGE: MAJOR, OCC: AGRICULTURE,
R/O: AGADI, TQ AND DIST: HAVERI,
PIN CODE: 581126.
...RESPONDENTS
(BY SRI. N.P. VIVEK MEHTA, ADVOCATE FOR R1 TO R4;
NOTICE SERVED TO R5, R6, R7, R8)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF THE CIVIL PROCEDURE CODE, PRAYING TO SET ASIDE THE
JUDGMENT DECREE DATED 07-04-2018 PASSED BY THE
LEARNED PRINCIPAL SENIOR CIVIL JUDGE, AND CJM HAVERI,
IN O.S.NO. 138/2015, AND CONSEQUENTLY DECREE THE SUIT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
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RFA No. 100305 of 2018
JUDGMENT
This appeal is filed by the appellant/plaintiff
challenging the Judgment and preliminary decree dated
07.04.2018 passed in O.S.No.138/2015 by the Principal
Senior Civil Judge and CJM, Haveri.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court.
3. The appellant is the plaintiff and the
respondents are the defendants.
4. The plaintiff filed a suit for partition and
separate possession against the defendants in respect of
the suit schedule properties. It is the case of the plaintiff
that, the original propositus was one Nagappa who had a
wife by name Nagavva. Plaintiff is the daughter and
defendant No.1 is the son of Nagappa and Nagavva. It is
the case of the plaintiff that the suit schedule properties
are the joint family properties of the plaintiff and
defendants. Defendant Nos.2 to 4 are the daughters of the
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defendant No.1, and defendant Nos.5 to 8 are the
purchasers of item Nos.5 and 6 of the properties from
defendant No.1. It is the case of the plaintiff that, the
properties are the joint family properties of plaintiff and
defendant Nos.1 to 4. The defendant No.1 got changed the
revenue records in favour of the defendant Nos.2 to 4 to
deprive the legitimate share of the plaintiff over the suit
schedule properties. The defendant Nos.1 to 4 colluding
with respondent Nos.5 to 8, sold the properties insofar as
item Nos.5 and 6 without the consent of the plaintiff.
5. It is the case of the plaintiff that, the father of
the plaintiff had filed Form No.7 and thereafter he died
leaving behind the plaintiff and defendant No.1 as his legal
heirs. The defendant No.1 being the eldest member of the
family, the land tribunal had granted occupancy right in
respect of the suit schedule properties in favour of the
defendant No.1. The suit schedule properties are the joint
family properties of the plaintiff and defendant No.1. There
is no partition effected between the parties. The plaintiff
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demanded for partition and separate possession, but the
defendant No.1 denied to effect partition. Hence, cause of
action arose for the plaintiff to file a suit for partition and
separate possession.
6. The defendant Nos.1 to 4 filed their written
statement, admitting the relationship of plaintiff with the
defendant No.1. It is denied that the suit schedule
properties are the joint family properties of plaintiff and
defendant No.1. It is contended that, the defendant No.1's
father Nagappa died on 13.03.1979 leaving behind the
plaintiff and defendant No.1 as his legal representatives.
The plaintiff and defendant Nos.1 to 4 were never in joint
and constructive possession of the suit schedule properties
at any point of time. It is contended that, the suit schedule
properties are the ancestral joint family properties of the
plaintiff and defendants. It is contended that, the suit
schedule properties were cultivated by Nagappa. During
his life time, he had submitted an application for grant of
occupancy rights in his name. But, before grant of
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occupancy right by the Land Tribunal, Nagappa died. After
the demise of Nagappa, defendant No.1 continued the
proceedings and was also cultivating the suit schedule
properties. The Land Tribunal granted occupancy right in
favour of the defendant No.1 in his individual capacity. It
is contended that, the plaintiff married about 60 years
back and was residing in her husband's house and the
plaintiff has no right to claim any share in the suit
schedule properties. Hence, on these grounds, he prays to
dismiss the suit.
7. The defendant Nos.5 to 8 have not filed their
written statements. Hence, there written statements are
taken as not filed. The trial Court on the basis of the
pleadings of the parties framed the following issues:
(i) Whether the plaintiff proves that she and
defendant No.1 to 4 are the members and
constitute a Hindu Undivided joint family and
suit schedule properties are ancestral and
joint family properties ?
(ii) Whether the plaintiff proves that she is
entitled for partition and separate possession
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of half share by metes and bounds in the suit
schedule properties?
(iii) Whether the plaintiff proves that she is
entitled for a relief of declaration that the sale
and 5 to 8 is not binding on her share?
(iv) Whether the suit is properly valued and
proper court fee is paid?
(v) What order or decree?
8. The plaintiff in order to prove her case,
examined his son the GPA holder as P.W.1 and got marked
10 documents i.e. Ex.P.1 to Ex.P.10. The defendant No.1
examined himself as D.W.1 and one more witness as
D.W.2 and got marked 53 documents as Ex.D.1 to
Ex.D.53.
9. The trial Court on the assessment of the oral
and documentary evidence, answered issue Nos.1 to 3 in
the negative, issue No.4 in the affirmative and issue No.5
as per the final order. The suit of the plaintiff came to be
dismissed. The plaintiff aggrieved by the Judgment and
preliminary decree passed by the trial Court, preferred this
appeal.
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10. Heard the learned counsel for the plaintiff and
also the learned counsel for the defendants. Learned
counsel for the plaintiff submits that, the father of the
plaintiff was cultivating the suit land as a tenant and he
had submitted Form No.7 before the Land Tribunal. But
before granting of the occupancy right by the Land
Tribunal, the father of the plaintiff died leaving behind the
plaintiff and defendant Nos.1 as his legal heirs. After the
demise of the father of the plaintiff i.e. Nagappa, the
defendant No.1 being the male elder member of the
family, continued in possession of the suit schedule
properties. The Land Tribunal granted occupancy right in
favour of the defendant No.1 for the benefit of the family
and not in his individual capacity. He submits that, the
trial Court has dismissed the suit only on the ground that
the married daughter will not fall within the definition of
family as per Section 2(12) of the Karnataka Land Reforms
Act. Hence, he submits that, the trial Court has committed
an error in dismissing the suit without properly considering
that the Land Tribunal had granted occupancy right in
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favour of the defendant No.1 for the benefit of the
members of the family. Hence, on these grounds, he prays
to allow the appeal.
11. Per contra, learned counsel for the defendants
submits that, there is a prior partition before 1973 and the
plaintiff had already taken her share and she has no right
to claim any share in the suit schedule properties. He also
submits that, the Land Tribunal has granted occupancy
right in favour of the defendant No.1 in his individual
capacity and not for the benefit of the members of the
family. He submits that, the trial Court was justified in
dismissing the suit. Hence, on these grounds he prays to
dismiss the appeal.
12. Perused the records and considered the
submissions of the learned counsel for the parties. The
points that would arise for our consideration are:
(i) Whether the plaintiff proves that, the suit
schedule properties are the joint family
properties of the plaintiff and defendant
No.1?
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(ii) Whether the plaintiff proves that she is
entitled for the share in the suit schedule
properties?
(iii) Whether the defendant No.1 proves that there
was a prior partition between the plaintiff and
defendant No.1 prior to 1979?
(iv) Whether the plaintiff proves that the
Judgment and decree passed by the trial
Court is perverse, arbitrary and erroneous?
(v) What order or decree?
13. Answer to point No.1 : Since point Nos.1 and
2 are interlinked, they are taken up together for
consideration to avoid repetition of facts.
It is the case of the plaintiff that, the plaintiff is the
daughter of the deceased Nagappa. The defendant No.1 is
her brother and defendant No.2 is the wife of defendant
No.1. The deceased Nagappa during his life time was
cultivating the suit schedule properties as a tenant and
filed Form No.7 before the Land Tribunal. Before granting
of the occupancy right, Nagappa died leaving behind the
plaintiff and defendant No.1 as his legal heirs. After the
demise of Nagappa, defendant No.1 continued in the
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possession of the suit schedule properties and the Land
Tribunal has granted occupancy right in favour of the
defendant No.1. The occupancy right granted in favour of
the defendant No.1 was for the benefit of the members of
the family and was not in his individual capacity. The
plaintiff in order to substantiate her case, examined her
son i.e. GPA holder as P.W.1. He has reiterated the plaint
averments in the examination-in-chief and further in order
to demonstrate that the suit schedule properties are the
joint family properties of the plaintiff and defendants,
produced 10 documents which are marked as Ex.P.1 to
Ex.P.10. Ex.P.1 is the General Power of Attorney executed
by the plaintiff in favour of his son, authorizing him to
depose on her behalf. Ex.P.2 is the extract in respect of
the land bearing Survey No.212B/1 which stands in the
name of defendant No.1. Ex.P.3 is the RTC extract in
respect of the land bearing survey No.215A/1 stands in
the name of defendant No.1. Ex.P.4 is the RTC extract in
respect of survey No.216A/1 stands in the name of
defendant No.1. Ex.P.5 is the RTC extract in respect of
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survey No.212A/1 stands in the name of defendant No.3.
Ex.P.6 is the RTC extract in respect of survey No.215B/1
stands in the name of defendant No.1. Ex.P.7 is the RTC
extract in respect of survey No.216B/1 stands in the name
of defendant No.1. Ex.P.8, Ex.P.9 and Ex.P.10 are the
mutation extracts.
14. It was suggested to P.W.1 that, the suit
schedule property were cultivated by the deceased
Nagappa, who is the grandfather of P.W.1 during his life
time and after advert of the Karnataka Land Reforms Act,
the said Nagappa had applied for grant of occupancy rights
with respect to the suit schedule properties before the
Land Tribunal. One thing is clear from the cross-
examination of P.W.1, that earlier the said land was
cultivated by the deceased Nagappa during his life time as
a tenant and he had submitted Form No.7 to the Land
Tribunal. Before grant of occupancy rights in favour of
Nagappa, Nagappa died leaving behind the plaintiff and
defendant No.1 as his legal heirs.
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15. In rebuttal, the defendant No.1 was examined
himself as D.W.1 and he has reiterated the written
statement averments in the examination-in-chief and
further in support of their defence, they got marked Ex.D1
i.e. Form No.7 submitted by the father of the plaintiff and
defendant No.1 before the Land Tribunal seeking
occupancy right during his life time. The Land Tribunal
granted occupancy right in favour of the defendant No.1
by virtue of Ex.D.2 and Ex.D.3. On the basis of order of
the Land Tribunal, the defendant No.1 submitted an
application to the revenue authorities to change entries in
his name. The revenue authorities on the basis of the
application submitted by the defendants, passed an order
to transfer the suit schedule properties in the name of
defendant No.1 to 4 as per Ex.D.4 to Ex.D.15 i.e. certified
copies of the mutation extracts. Ex.D.16 to Ex.D.20 are
the copies of the tax paid receipts. Ex.D.21 is the certified
copy of the statement of objections filed before the Land
Tribunal. Ex.D.22 is the cop of the notice issued by the
Tahasildar. Ex.D24 is the copy of the mutation extract.
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Ex.D.25 to Ex.D.52 are the copies of the RTC extracts in
respect of the suit schedule properties. Ex.P.53 is the copy
of the mutation extract. Though D.W.1 in the course of
cross-examination has admitted that, Nagappa was
cultivating the suit schedule properties for past 50-60
years till his death and he also admits that his father had
applied for grant of occupancy rights before the Land
Tribunal as per Ex.D.1. He also admits that, during the
year 1974 Ex.D.1 was submitted by Nagappa to the Land
Tribunal and during the year 1979 the said Nagappa died
and defendant No.1 being the son of the deceased
Nagappa continued the proceeding before the Land
Tribunal and the Land Tribunal has granted occupancy
right with respect to the suit schedule properties in the
name of defendant No.1. From the perusal of the cross-
examination of D.W.1 and Ex.D.1, they discloses that, the
father of the plaintiff has submitted Form No.7 before the
Land Tribunal prior to his death, but the Land Tribunal has
not granted occupancy right during his life time. After the
death of Nagappa, defendant No.1 being the elder male
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member of the family continued to cultivate the suit
schedule properties. The Land Tribunal granted occupancy
right in favour of defendant No.1. As we already recorded
a finding that Nagappa was in possession of the suit
schedule properties for last more than 50-60 years, till his
death. Thus, the ancestors of the plaintiff and defendant
No.1 were in possession of the suit schedule properties.
Though the Land Tribunal has granted occupancy right in
favour of the defendant No.1, but the grant was for the
benefit of the members of the family. The defendant No.1
alone cannot claim that, the Land Tribunal has granted
occupancy right in his individual capacity. The plaintiff
being the daughter of Nagappa, she is a coparcener as per
Section 6 of the Hindu Succession Act. She is also entitled
for the share in the same manner as that of a son.
Admittedly, there is no partition effected between the
plaintiff and defendant No.1 in respect of the suit schedule
properties.
16. Learned counsel for the defendant Nos.1 to 4
during course of arguments submits that, there was a
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prior partition between the plaintiff and defendant No.1
prior to 1979 and she has taken her share. From the
perusal of the written statement filed by the defendants,
the defendants have not pleaded prior partition alleged to
have been effected prior to 1979. Hence, the arguments of
the learned counsel for the defendant Nos.1 to 4 does not
hold water as there is no pleading and further no evidence
has been adduced by the defendants in this regard.
17. Hence, in view of the above discussion we hold
that the plaintiff has proved that the suit schedule
properties are the joint family properties of the plaintiff
and defendant No.1 and that the plaintiff is entitled for
half share in the suit schedule properties. Hence, in view
of the above discussion, we answer point Nos.1 and 2 in
the affirmative.
18. Answer to Point No.3 : As we already
recorded a finding with regard to point Nos.1 and 2 that
the defendants have not pleaded regarding prior partition
in the written statement and not adduced any evidence on
the said point and no documents have been produced.
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Hence, the defendant No.1 has also not examined any
witnesses who were present at the time of the alleged
partition. Defendant Nos.1 to 4 have failed to prove that
there was a prior partition prior to 1979. In view of the
above discussion we answer point No.3 in the negative.
19. Answer to point No.4 : The trial Court has
dismissed the suit solely on the ground that, the plaintiff
being a married daughter she does not fall within the
definition of 'family' as defined under Section 2(12) of the
Karnataka Land Reforms Act. In order to consider the
word 'family' as defined under the aforesaid section and
also Section 24 and Section 4(2) of Hindu Succession Act,
in order to pursue their contention in the case on hand,
the property in question was admittedly cultivated by
Nagappa as contended. He filed an application seeking
occupancy right and the occupancy right was granted in
favour of the defendant No.1 as he being the eldest male
member of the family. The lands that vested in the
Government were divested in favour of Nagappa, thus
creating a fresh right, title and interest, these lands
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became the absolute properties of Nagappa. He having
died intestate, there cannot be any doubt that his
successors, who are the plaintiff and defendants cannot be
entitled to the share in the suit schedule properties. The
defendants were unable to show any provision in the
Karnataka Land Reforms Act that determined the
succession of lands in question after the death of
Nagappa. As a matter of fact, there is no provision
delineating the mode of succession to the lands are
conferred to the tenants under the Land Reforms Act. The
co-ordinate Bench of this Court had an occasion to deal
with the said issue in RFA No.100149/2014 [Sri Arvind
S/o. Narasimha Kamat and another Vs. Smt. Sunanda and
others] disposed off on 13.01.2020. Hence, we concur
with the findings recorded by the said co-ordinate Bench
of this Court. The said Judgment is aptly applicable to the
present case on hand. Therefore, we are of the view that,
the trial Court has committed an error in dismissing the
suit solely on the ground that, the plaintiff is a married
daughter and she does not fall within the definition of the
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family as defined under Section 2(12) of the Karnataka
Land Reforms Act. Hence, the Judgment and decree
passed by the trial Court is arbitrary and erroneous and
the same is liable to be set aside. In view of the above
discussion, we answer point No.4 in the affirmative,
holding that the plaintiff has proved that the Judgment
and decree passed by the trial Court is arbitrary and
erroneous.
20. Answer to point No.5 : In view of the above
discussion, we proceed to pass the following:
ORDER
(i) The appeal is allowed;
(ii) The Judgment and decree passed by the
Principal Senior Civil Judge and CJM,
Haveri in O.S.No.138/2015 dated
07.04.2018 is set aside;
(iii) The suit of the plaintiff is decreed. The
plaintiff is entitle for half share in the suit
schedule properties;
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(iv) Draw preliminary decree accordingly;
(v) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
