Karnataka High Court
Hanumanthi And Ors vs Muniswamy And Ors on 4 July, 2024
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RFA No.200175 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200175 OF 2019 (PAR/DEC)
BETWEEN:
1. HANUMANTHI
W/O THIPPAYYA
AGED ABOUT 71 YEARS,
OCC: AGRICULTURE,
2. ANJINAYYA
S/O THIPPAYYA
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE,
Digitally signed by 3. NAGARAJ
BASALINGAPPA
SHIVARAJ S/O THIPPAYYA
DHUTTARGAON
AGED ABOUT 48 YEARS,
Location: HIGH
COURT OF OCC: AGRICULTURE,
KARNATAKA
4. NALLA REDDY
S/O THIPPAYYA
AGED ABOUT 46 YEARS,
OCC: AGRICULTURE,
5. NALLA REDDY
S/O SANJEEVAPPA
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE,
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RFA No.200175 of 2019
6. ANJINAYYA
S/O SANJEEVAPPA
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE,
ALL ARE RESIDENTS OF ASKIHAL VILLAGE,
TQ: & DIST: RAICHUR - 584 101.
...APPELLANTS
(BY SRI I.R.BIRADAR &
SMT. REKHA M. PATIL, ADVOCATES)
AND:
1. MUNISWAMY
S/O DODDA RANGAPPA,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURE,
2. ANJINAYYA
S/O DODDA RANGAPPA,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
3. HANUMANTHU
S/O DODDA RANGAPPA,
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
4. SHANKRAMMA
W/O HANUMANTHU,
AGED ABOUT 63 YEARS,
5. ANJINAMMA
W/O HANUMANTHA,
AGED ABOUT 43 YEARS,
6. LAXMI D/O LATE HANUMANTHA,
AGED ABOUT 45 YEARS,
7. NALIN KUMAR
S/O LATE HANUMANTHU,
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RFA No.200175 of 2019
AGED ABOUT 38 YEARS,
8. RANGA SWAMY
S/O MUNEYYA,
AGED ABOUT 51 YEARS,
ALL ARE AGRICULTURISTS AND
RESIDENTS OF ASKIHAL VILLAGE,
TQ. & DIST: RAICHUR - 584 101.
9. M.H.ANITHA
D/O LATE HANUMANTHA,
AGED ABOUT 23 YEARS,
OCC: HOUSEHOLD,
R/O: ASKIHAL VILLAGE,
TQ: RAICHUR - 584 101.
10. MUNESHWARI
D/O LATE HANUMANTHA,
AGED ABOUT 16 YEARS,
MINOR U/G OF HER
MOTHER SHANKRAMMA
W/O LATE HANUMANTHA,
AGED ABOUT 63 YEARS,
OCC: HOUSEHOLD,
R/O: ASKIHAL VILLAGE,
TQ: RAICHUR - 584 101.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R1 TO R10)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 29.06.2019
PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE
AT RAICHUR IN O.S.NO.119/2016 BY DECREEING THE SUIT OF
THE PLAINTIFFS, IN THE INTEREST OF JUSTICE AND EQUITY.
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RFA No.200175 of 2019
THIS REGULAR FIRST APPEAL, COMING ON HEARING
THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the
appellants/plaintiffs challenging the judgment and
preliminary decree dated 29.06.2019 in O.S.No.119/2016
passed by the Additional Senior Civil Judge and JMFC-I,
Raichur (for short, hereinafter referred to as 'Trial Court').
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The appellants are the plaintiffs and the
respondents are the defendants.
4. Brief facts of the case are that the plaintiffs filed
a suit for partition and separate possession. It is the case
of the plaintiffs that one Juttayya was the original
propositus of the plaintiffs and defendants family and he
had a wife by name Sayamma. Both Juttayya and
Sayamma are no more. Said Juttayya had four sons by
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name Dodda Hanumayya, Sanjeevayya, Dodda Rangappa
and Muneyya. All the four sons of Juttayya died long
back. Dodda Hanumayya had a son by name Tippayya.
He died leaving behind his wife who is plaintiff No.1 and
three sons i.e., plaintiff Nos.2 to 4. Sanjeevayya had two
sons by name Nallareddy and Anjinayya who are plaintiff
Nos.5 and 6. Defendant Nos.1 to 3 are the sons of Dodda
Rangappa. Muneyya had a wife by name Amaramma and
she died. They had two sons by name Hanumantha and
Rangaswamy. Said Hanumanthu died long back.
Rangaswamy is defendant No.8. Said Hanumanthu had a
wife by name Shankaramma i.e., defendant No.4 and two
daughters by name Anjinemma and Laxmi and a son by
respectively. The proceedings were held before the Land
Tribunal and they were all re-cultivating the land as
common tenants upto the grant and later onwards. As
such, the plaintiffs and defendants who are successors of
Juttayya are the owners and in possession of the suit land
having equal rights in the said land. They being the family
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members, they have rights and share in the suit schedule
property. After the demise of Juttayya, Dodda Hanumayya
was acting as karta of the family and maintaining the suit
land of the family. As such, name of Dodda Hanumayya
entered in the revenue records in column No.9 by deleting
the name of one Abdul Razak Sab and entry of name of
Dodda Hanumayya continued upto 1983. After the death
of Dodda Hanumayya in the year 1982, the name of his
brother by name Dodda Rangappa was entered in the
revenue records on behalf of the entire family members.
Sanjeevayya, the second son of Juttayya and last son of
Juttayya by name Muneyya consented on behalf of the
joint family for filing application before the Land Tribunal
for sanction of the suit property. Dodda Rangappa's name
nominally mentioned in Form No.7 before the Land
Tribunal for grant of occupancy rights. However, the
original propositus Juttayya's all the sons were cultivating
the suit land jointly and the suit land is the joint family
property of all the sons of Juttayya. It is contended that
Muneyya had filed suit in O.S.No.221/2007 on the file of
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Additional Senior Civil Judge, Raichur against the sons of
Juttayya claiming partition to the extent of half share
without arraying the plaintiffs as parties in the said suit
and got preliminary decree behind the back of the
plaintiffs and the same was confirmed in R.A.No.59/2010
on 10.04.2014. It is contended that all the proceedings
took place behind the back of the plaintiffs. The plaintiffs
approached the defendants to effect partition, but he
defendants refused to effect partition. Hence, cause of
action arose for the plaintiffs to file suit for partition and
separate possession.
5. Defendant Nos.1 to 3 and 4 to 8 have filed
separate written statements. Both the written statements
are one and the same. It is mentioned that the suit of the
plaintiff is not maintainable and the suit is liable to be
dismissed. The plaintiffs are having no right and interest
over the suit schedule property as the same is not an
ancestral property of the plaintiffs and defendants. It is
contended that the plaintiffs and defendants are not the
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members of the joint family and they are not the joint
owners and possessors of the suit land as contended in the
plaint. It is admitted regarding filing of the suit in
O.S.No.221/2007 by Muneyya against the sons of Dodda
Rangappa. The said suit was decreed. It is contended
that Dodda Rangappa and Muneyya were the tenants and
cultivating the land jointly till date and the said Dodda
Rangappa and Muneyya both jointly filed Form No.7 before
the Land Tribunal, Riachur and premium was paid by
them. The Land Tribunal granted occupancy rights in
favour of Dodda Rangappa and Muneyya. Said Muneyya
filed suit for partition and separate possession in respect
of the suit land in O.S.No.221/2007. The said suit was
decreed. Against that, legal representatives of Dodda
Rangappa preferred an appeal in R.A.No.59/2010 which
came to be dismissed. It is contended that since from the
date of passing of the final decree, the legal
representatives of Dodda Rangappa and Muneyya are in
possession of respective half share in the suit property. It
is contended that the plaintiffs were well aware of the
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pendency of the suit and proceedings and plaintiff Nos.2
and 6 filed an application for impleading themselves as
respondents in R.A.No.59/2010. The said application was
rejected. Hence, they prayed to dismiss the suit.
6. Defendant Nos.1 to 3 have filed same written
statement. However, in paragraph-12 of the written
statement, they have stated that Dodda Rangappa alone
was tenant and he filed Form No.7 before the Land
Tribunal, Raichur and premium was paid by him. Muneyya
filed suit claiming half share in the suit schedule property
and the learned Trial Court decreed the suit and both
Dodda Rangappa and Muneyya got half share in the suit
schedule property. On these grounds, they pray to
dismiss the suit.
7. The Trial Court on the basis of the pleadings of
the parties framed the following issues.
1) Whether the plaintiffs prove that,
Juttayya was the propositus and had
four sons and they constitute the
joint family?
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2) Whether the plaintiffs further prove
that, Dodda Hanumayya was acting
as a karta of the family and
accordingly, his name was entered
in the record of rights of the suit
land as per the order passed in the
Land Tribunal?
3) Whether the plaintiffs prove that,
they are in joint possession of the
suit land?
4) Whether the suit is bad for non-
joiner of necessary parties?
5) Whether the plaintiffs prove that the
decree passed in OS No.221/2007 is
null and Void and not binding upon
them?
6) Whether the order passed on IA
No.II in RA No.59/2010 on the file of
Prl. Dist. Judge, Raichur has become
final and binding on the plaintiffs?
7) Whether the plaintiffs are entitled
for the half share in the suit lands?
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8) Whether the plaintiffs are entitled
for the relief as sought for?
9) What order or decree?
8. In order to prove the case, plaintiff No.5 got
examined himself as P.W.1 and also examined two
witnesses as P.Ws.2 and 3 and got marked 36 documents
as Exs.P1 to P36. On the other hand, defendant No.1 got
examined himself as D.W.1 and got marked 26 documents
as Exs.D1 to D26. Defendant No.8 examined himself as
DW.2 and got marked the documents as Exs.D27 to D53.
9. After recording the evidence, hearing on both
sides and on assessment of the oral and documentary
evidence, the Trial Court answered issue Nos.1 to 4 and 6
to 8 in the negative and issue No.5 in the affirmative and
issue No.9 as per the final order. Consequently, dismissed
the suit of the plaintiffs vide judgment dated 29.06.2019
in O.S.No.119/2016.
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10. The plaintiffs, aggrieved by the judgment and
preliminary decree passed in the aforesaid suit, have filed
this Regular First Appeal.
11. Heard Smt. Rekha M. Patil, learned counsel for
the plaintiffs and Sri.Shivanand Patil and Sri.Varun Patil,
learned counsel for the defendants.
12. Learned counsel for the plaintiffs submits that
Dodda Rangappa was in possession of the property as a
tenant on behalf of the family members. The grant in
favour of Dodda Rangappa is for the welfare of the family
and not in individual capacity. The suit property is the
joint family property of the plaintiffs and defendants. The
plaintiffs and defendants are the members of hindu
undivided family. There is no partition effected in between
the plaintiffs and the defendants. She submits that the
Trial Court has committed an error in recording the finding
that the Land Tribunal granted occupancy rights in favour
of Dodda Rangappa in his individual capacity. The said
finding recorded by the Trial Court is contrary to the
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records. She submits that Juttayya was in possession of
the suit schedule property and after his demise, all the
four sons continued to cultivate the suit schedule property.
The said aspect was not considered by the Trial Court.
She further submits that the impugned judgment and
preliminary decree passed by the Trial Court is arbitrary,
perverse and erroneous. On these grounds, she prays to
allow the appeal.
13. Per contra, learned counsel for the defendants
submits that Dodda Rangappa alone was in possession of
the suit schedule property. He has filed Form No.7 before
the Land Tribunal, Raichur. The Land Tribunal after
holding an enquiry granted occupancy rights in favour of
Dodda Rangappa. He submits that Muneyya filed suit
against Dodda Rangappa in O.S.No.221/2007 on the file of
Additional Senior Civil Judge, Raichur, claiming partition to
the extent of half share. The said suit was decreed. The
legal representatives of Dodda Rangappa preferred an
appeal in R.A.No.59/2010. The said appeal was dismissed
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confirming the judgment and preliminary decree passed in
O.S.No.221/2007. He submits that in the appeal in
R.A.No.59/2010, plaintiff Nos.2 and 6 herein filed an
application to implead themselves as proposed
respondents and the same came to be rejected. The said
order has attained finality. He submits that in order to
establish that Dodda Rangappa alone was cultivating the
suit land, the defendants have produced the records. The
Trial Court placing reliance on the documents produced by
the defendants, has rightly held that the occupancy rights
was granted in favour of Dodda Rangappa. Further, the
Trial Court considering the order passed on I.A.No.2 in
R.A.No.59/2010 has rightly passed the impugned
judgment. Hence, there is no infirmity or illegality in the
impugned judgment passed by the Trial Court. On these
grounds, he prays to dismiss the appeal.
14. We have perused the records and considered
the submissions of the leaned counsel for the parties.
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15. To decide the appeal, the following points that
arise for our consideration:
1) Whether the plaintiffs prove that the
occupancy rights was granted in favour
of Dodda Rangappa for and on behalf of
the family?
2) Whether the plaintiffs prove that the
judgment and decree passed in
O.S.No.221/2007 is not binding on the
plaintiffs?
3) Whether the plaintiffs prove that the
judgment and decree passed by the
Trial Court is perverse and arbitrary?
4) What order or decree?
16. Point No.1: In order to substantiate their case,
plaintiff No.5 was examined as PW.1. He has reiterated
the plaint averments in the examination-in-chief. In order
to establish their case, the plaintiffs have produced the
documents. Exs.P1 to P7 are the RTC extracts in respect of
the suit land which discloses the name of Dodda
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Rangappa. Ex.P8 is the Kasara Phani in respect of the suit
land. Ex.P9 is the certified copy of the judgment passed in
O.S.No.221/2007 wherein the Muneyya filed suit for
partition and separate possession against the legal
representatives of Dodda Rangappa. The said suit was
partly decreed vide judgment dated 26.03.2010 and it was
held that Muneyya is entitled for half share in the suit
schedule property. Further, the Tahsildar, Raichur was
directed to enter the name of Muneyya in the revenue
records in respect of the suit land as per the decree.
Ex.P10 is the certified copy of the decree passed in
O.S.No.221/2007. Ex.P11 is the certified copy of the
appeal filed before the Assistant Commissioner by plaintiff
Nos.2 and 5 against defendant Nos.6 to 10 challenging the
entries made in the name of defendant Nos.6 to 10.
Ex.P12 is the certified copy of the order of the Land
Tribunal, Raichur, which discloses that Dodda Rangappa
submitted an application in Form No.7 for grant of
occupancy rights under Section 48-A of the Karnataka
Land Revenue Act in respect of land in Sy.No.191 of
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Askihal village. The Land Tribunal vide order dated
23.03.1976 granted occupancy rights in respect of the
suit land in the name of Dodda Rangappa S/o Juttayya.
Ex.P13 is the certified copy of the plaint in
O.S.No.221/2007 filed by Muneyya against the legal
representatives of Dodda Rangappa and the Tahsildar,
Raichur, for partition and separate possession. Ex.P14 is
the certified copy of the written statement filed in
O.S.No.221/2007 filed by defendant No.1 therein. Ex.P15
is the certified copy of the issues framed by the Trial Court
in O.S.No.221/2007. Ex.P16 is the certified copy of the
deposition of PW.1 - Rangaswamy, who was GPA holder of
Muneyya in O.S.No.221/2007. Ex.P17 is the certified copy
of deposition of PW.2-Bangi Gulappa in O.S.No.221/2007.
Ex.P18 is the certified copy of deposition of PW.3-
Narasamma in O.S.No.221/2007. Ex.P19 is the certified
copy of the deposition of DW.1-Muniswamy S/o Dodda
Rangappa in O.S.No.221/2007. Ex.P20 is the certified copy
of deposition of DW.2-Ramappa in O.S.No.221/2007.
Ex.P21 is the certified copy of GPA. Ex.P22 is the certified
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copy of Form No.7 submitted by Dodda Rangappa before
the Land Tribunal, Raichur, in respect of land in Sy.No.191
measuring 21 acres 29 guntas situated at Askihal village.
Ex.P23 is the certified copy of the order sheet of the Land
Tribunal. Exs.P24 to 26 are the RTC extracts. Ex.P27 is the
certified copy of the Application submitted by the legal
heirs of Dodda Rangappa to the Tahsildar to transfer the
suit land in their names. Exs.P28 to 30 are the certified
copies of tax paid receipts. Ex.P31 is the certified copy of
payment of premium which discloses that Dodda
Rangappa and Muneyya have paid premium on
30.04.1991. Ex.P32 is the certified copy of the appeal
memo in R.A.No.59/2010. Ex.P33 is the certified copy of
the judgment passed in R.A.No.59/2010 wherein the legal
heirs of Dodda Rangappa challenged the judgment and
preliminary decree passed in O.S.No.221/2007 on the file
of learned Principal Sessions Judge, Raichur. The
appellate Court on re-appreciation of the material evidence
on record dismissed the appeal filed by the legal
representatives of Dodda Rangappa vide judgment dated
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10.04.2014. Ex.P34 is the original genealogy tree of the
plaintiffs and defendants. Exs.P35 and 36 are the
photographs.
17. In the course of cross-examination, it was
suggested to PW.1 that Muneyya filed suit in
O.S.No.221/2007 and the said suit was decreed. Against
that, an appeal was filed by the legal representatives of
Dodda Rangappa in R.A.No.59/2010 and the said appeal
was dismissed by the appellate Court vide judgment dated
28.01.2014. PW.1 pleads ignorance of the suit filed by
Muneyya against the legal representatives of Dodda
Rangappa. He admits that he has produced Ex.P8-kasara
pahani which discloses that Ranganna S/o Juttayya was
cultivating the suit land. He has deposed that it is a false
entry and it is elicited that Ranganna S/o Juttayya means
Dodda Rangappa S/o Juttayya. He admits the said
suggestion. He also admits that defendant Nos.1 to 3 are
the sons of Dodda Rangappa. It was suggested to PW.1
that Dodda Rangappa and Muneyya jointly filed Form No.7
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before the Land Tribunal in respect of suit schedule
property, but PW.1 pleads ignorance about the said fact
and it is elicited that Juttayya had no other landed
properties. He also admits that the Land Tribunal granted
occupancy rights in the name of Dodda Rangappa and he
pleads ignorance that Dodda Rangappa used to attend the
proceedings before the Land Tribunal. It was suggested
that the fathers of the plaintiffs were not having any right
over the suit schedule property and for the said reason,
they did not attend the proceedings before the Land
Tribunal. A suggestion was put to PW.1 that whether the
plaintiffs and their fathers have challenged the order
passed by the Land Tribunal granting occupancy rights in
favour of Dodda Rangappa, but he pleads ignorance. He
also admits that they have filed an application to implead
themselves as proposed respondents in R.A.No.59/2010
and the said application was rejected and he pleads
ignorance about dismissal of R.A.No.59/2010.
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18. Further, the plaintiffs have examined one
Thimmappa as PW.2. He has deposed that he knows the
plaintiffs and the defendants and also suit land bearing
Sy.No.191 and he has deposed that the suit land was
being cultivated by the sons of Juttayya and he came to
know that the said land was granted in favour of Dodda
Rangappa as Dodda Hanumayya and Sanjeevkumar both
were dead at the time of such grant by the Tribunal.
Dodda Rangappa taking advantage of the death of their
father and brothers, he managed to get granted the
occupancy rights, but, the said land was being cultivated
by all the family members. It is elicited from the mouth of
PW.2 that he does not know why the plaintiffs have filed
the present suit. It is elicited that he does not know with
regard to which survey number the plaintiffs have filed
suit. He was unable to say the boundaries of the suit land
and extent of land. He does not know earlier land belongs
to whom. He does not know who was the owner of the
land.
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19. The plaintiffs have also examined one Yellappa
as PW.3 and he has deposed in the same line of PW.2.
20. In rebuttal, defendant No.1 was examined as
DW.1 and he has reiterated the written statement
averments in the examination-in-chief and produced the
documents. Ex.D1 is the certified copy of the notice for
payment of premium. Ex.D2 is the memo issued by the
Special Tahsildar, Land Revenue, Raichur, which discloses
that the Dodda Rangappa filed Form No.7 in respect of
land baring Sy.No.191 of Askihal village, Raichur, wherein
the Tahsildar has issued direction to the Revenue
Inspector vide memo dated 20.11.1978 directing the
Revenue Inspector to conduct spot inspection and prepare
detailed panchanama about the classification of the land
and its value and also to mention if there are any valuable
trees, wells, bund, structure, religious institutions etc., are
situated in the said land with value. Ex.D3 is the original
premium receipt and Exs.D4 and D5 are the challans
which disclose that Dodda Rangappa paid the premium in
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respect of the suit land for grant of occupancy rights.
Ex.D6 is the copy of the panchanama which discloses that
panchanama was conducted on 05.03.1992 which
discloses that as on the date of the panchanama, Dodda
Rangappa was in possession of the land bearing Sy.No.191
and Ex.D7 is the Form No.9 which discloses that the Land
Tribunal has issued notice to Dodda Rangappa to appear
before the Land Tribunal fixing the date of appearance as
28.08.1975. Ex.D8 is the Form No.10. Ex.D9 is the order
passed by the Land Tribunal granting occupancy rights in
respect of the suit land in favour of Dodda Rangappa vide
order dated 23.03.1976. Ex.D10 is the RTC extract of suit
land for the year 1990-91 wherein the name of Dodda
Rangappa is shown as the owner and in possession of the
suit land. Ex.D11 is the copy of the RTC extract of suit
land which stands in the name of Dodda Rangappa.
Exs.D12 to D23 are the land revenue receipts. Ex.D24 is
the certified copy of the order sheet of the Land Tribunal.
Ex.D25 is the deposition of Dodda Rangappa @ Rangappa
before the Land Tribunal. Ex.D26 is the certified copy of
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the panchanama which discloses that Dodda Rangappa
was in possession of the suit land. Ex.D27 is the original
General Power of Attorney executed by Muniyya in favour
of Rangaswamy to conduct the case in O.S.No.221/2007.
Ex.D28 is the certified copy of Form No.7 submitted by
Dodda Rangappa before the Land Tribunal for grant of
occupancy rights in favour of Dodda Rangappa. Ex.D29 is
the order sheet of the Tahsildar, Raichur. Ex.D30 is the
ROR of land in Sy.No.191 which stood in the name of
Dodda Rangappa. Ex.D31 is the premium receipt which
discloses that Dodda Rangappa and Muneyya have paid
premium. Exs.D32 to 35 are the land revenue receipts
which discloses that Dodda Rangappa has paid land
revenue of the suit land. Exs.D36 and 37 are the ROR of
suit land which stood in the name of Rangaswamy S/o
Muneyya. Ex.D38 is the certified copy of the judgment
passed in O.S.No.221/2007. Ex.D39 is the certified copy of
the decree passed in O.S.No.221/2007. Ex.D40 is the
certified copy of the final decree passed in FDP
No.11/2014 which was disposed of on 21.07.2015.
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Exs.D41 and 42 are the certified copies of sketch maps.
Ex.D43 is the certified copy of the order sheet in
R.A.No.59/2010. Ex.D44 is the certified copy of the order
passed by the learned Principal Sessions Judge, Raichur on
I.A.No.II in R.A.No.59/2010 which discloses that plaintiff
Nos.2 and 5 herein filed an application to implead them as
proposed defendants and the said application came to be
rejected vide order dated 28.01.2014. Ex.D45 is the
certified copy of the order passed in Civil Miscellaneous
No.67/2015 dated 11.07.2016 on the file of the Additional
Senior Civil Judge, Raichur, wherein the legal
representatives of Muneyya filed petition under Section
132 of the Karnataka Land Revenue Act seeking direction
to the respondents therein to enter the name of the legal
heirs of Muneyya in respect of land bearing Sy.No.191 of
Askihal village. The said miscellaneous petition was
allowed vide order dated 11.07.2016. Ex.D46 is the
certified copy of the execution petition in
E.P.No.152/2015. Ex.D47 is the certified copy of the
delivery warrant issued in E.P.No.152/2015. Ex.D48 is the
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bailiff report in E.P.No.152/2015. Ex.D49 is the
panchanama in E.P.No.152/2015. Ex.D50 is the kabja
receipt having delivered the possession in favour of the
legal heirs of Muneyya in E.P.No.152/2015. Ex.D51 is the
proclamation receipt in E.P.No.152/2015. Ex.D52 is the
certified copy of the judgment passed in R.A.No.59/2010.
Ex.D53 is the certified copy of the decree passed in
R.A.No.59/2010.
21. Further, defendant No.8-Rangaswamy was
examined as DW.2 who has deposed in the same line of
DW.1.
22. From the perusal of the entire records it
discloses that the suit land stood in the name of Dodda
Rangappa @ Rangappa and he filed Form No.7 as per
Ex.P22 which discloses that Form No.7 was filed by Dodda
Rangappa @ Rangappa in respect of the suit land and the
Land Tribunal after holding due enquiry passed an order as
per Ex.P23. From the perusal of Form No.7 i.e., Ex.P22, it
discloses that Dodda Rangappa alone has submitted Form
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No.7 before the Land Tribunal in his individual capacity
and not on behalf of the family. The defendants have
produced premium receipt marked as Ex.D31 which
discloses that Dodda Rangappa has paid premium for
grant of occupancy rights in respect of the suit land. Thus,
Ex.P23 proves that the occupancy rights were granted by
the Land Tribunal in favour of Dodda Rangappa @
Rangappa and it also discloses that prior to grant of
occupancy rights, name of Dodda Rangappa @ Rangappa
was appearing in the RTC extract. The plaintiffs have not
produced any records to establish that Juttayya was
cultivating the suit land at any point of time. Thus, the
plaintiffs have failed to establish that the said land was
granted for and on behalf of the family in the name of
Dodda Rangappa @ Rangappa.
23. In view of the above discussion, we answer
point No.1 in the negative.
24. Point No.2: Muneyya filed suit in
O.S.No.221/2007 against the legal representatives of
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Dodda Rangappa for partition and separate possession.
The legal representatives of Dodda Rangappa contested
the said suit. The Trial Court after full fledged trial
decreed the suit of Muneyya vide judgment dated
26.03.2010. Defendant Nos.1 to 3 herein aggrieved by
the judgment and preliminary decree passed in
O.S.No.221/2007 preferred an appeal in R.A.No.59/2010.
During the pendency of the appeal, plaintiff Nos.2 and 5
filed an application in I.A.No.II to implead themselves as
proposed respondents in the said appeal. The Appellate
Court in R.A.No.59/2010 dismissed the application vide
order dated 28.01.2014 as per Ex.D44. Further, the
Appellate Court has recorded finding while passing an
order on I.A.No.II that there is no allegation in the
affidavit that the suit land belongs to joint family as
ancestral property and also recorded finding that fathers of
the applicants therein i.e., plaintiff Nos.2 and 5 never
made any claim in respect of the suit property when the
matter was pending before the Land Tribunal or even
subsequently. Plaintiff Nos.2 and 5 were aware about the
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suit filed by Muneyya against defendant Nos.1 to 3. The
order passed on I.A.No.II was not challenged by the
plaintiffs and the said order has attained finality.
Therefore, the finding recorded in I.A.No.II by the
Appellate Court has attained finality and the same is
binding on the plaintiffs.
25. In view of above discussion, we answer point
No.2 in the negative.
26. Point No.3: The Trial Court placing reliance on
the order of the Land Tribunal, order sheet and judgment
passed in O.S.No.221/2007 and order passed on I.A.No.II
in R.A.No.59/2010 has rightly held that the occupancy
rights were granted in favour of Dodda Rangappa @
Rangappa in his individual capacity and the plaintiffs have
no right to claim any share in the suit schedule property.
The impugned judgment and preliminary decree passed by
the Trial Court is just and proper. We do not find any error
in the impugned judgment and preliminary decree.
Therefore, we decline to interfere with the impugned
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judgment and preliminary decree passed by the Trial
Court.
27. In view of the above discussion, we answer
point No.3 in the negative.
28. Point No.4: In view of our answer to point
Nos.1 to 3, we proceed to pass the following:
ORDER
i. The Regular First Appeal is dismissed.
ii. The judgment and preliminary decree
dated 29.06.2019 passed in
O.S.No.119/2016 by the Additional Senior
Civil Judge and JMFC-I, Raichur, is hereby
confirmed.
iii. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
NB
Ct: VK
