Karnataka High Court
Smt. Gadigevva vs Shri Basavaraj Siddalingappa ... on 13 November, 2024
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NC: 2024:KHC-D:16595
RSA No. 100744 of 2023
C/W RSA.CROB No. 100003 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100744 OF 2023 (PAR/POS)
C/W
RSA CROSS OBJ NO. 100003 OF 2024
IN RSA NO.100744/2023:
BETWEEN:
1. SMT. GADIGEVVA W/O. NAGAPPA MALLANNAVAR,
AGE: 62 YEARS, OCC. HOUSEHOLD,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
2. SHRI RAMESH S/O. NAGAPPA MALLANNAVAR,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. WASAN, TQ. HANGAL,
Digitally
DIST. HAVERI-581120.
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.26
3. SMT. REKHA W/O. DEVAPPA KATLER,
10:57:59
+0530
AGE: 37 YEARS, OCC. HOUSEHOLD,
R/O. MALLIGAR, TQ. HANGAL,
DIST. HAVERI-581120.
4. SMT. LATHA W/O. CHANNABASAPPA HANGAL,
SMT. SUJATA D/O. NAGAPPA MALLANNANAVAR,
AGE: 35 YEARS, OCC. HOUSEHOLD,
R/O. KODIHALLI, TQ. SORAB,
DIST. SHIMOGGA-577413.
5. SHRI SHEKHAPPA BASAVANNEPPA MALLANNAVAR
AGE: 56 YEARS, OCC. AGRICULTURE,
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RSA No. 100744 of 2023
C/W RSA.CROB No. 100003 of 2024
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
6. SHRI PARMESH BASAVANNEPPA MALLANNAVAR
AGE: 49 YEARS, OCC. AGRICULTURIST,
R/O. KALANGI VILLAGE, TQ. SIRSI,
DIST. UTTARKANNADA-581358.
7. SHRI LINGARAJ BASAVANNEPPA MALLANNAVAR
AGE: 44 YEARS, OCC. AGRICULTURIST,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
8. SHRI SHARADA W/O. FAKKIRAPPA HASANABADI,
AGE: 51 YEARS, OCC HOUSEHOLD,
R/O. YALIVAL, TQ. HANGAL,
DIST. HAVERI-581203.
...APPELLANTS
(BY SRI. SHIVASAI M.PATIL, ADVOCATE)
AND:
1. SHRI BASAVARAJ SIDDALINGAPPA MALLANNANAVAR,
AGE: 50 YEARS, OCC. AGRICULTURIST,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
2. SMT. GOURAVVA PUTTAPPA MALLANNANAVAR
AGE: 74 YEARS, OCC HOUSEHOLD,
R/O. KUSANUR, TQ. HANGAL,
DIST. HAVERI-581120.
DELETED AS PER ORDER DATED 05.03.2024
R3 AND R4 L.Rs. ARE ON RECORD.
3. SHRI NAGAPPA PUTTAPPA MALLANNANAVAR
AGE: 57 YEARS, OCC. AGRICULTURIST,
R/O. KUSANUR, TQ. HANGAL,
DIST. HAVERI-581120.
4. SHRI SHEKHAPPA PUTTAPPA MALLANNANAVAR
AGE: 54 YEARS, OCC. AGRICULTURIST,
R/O. HOTANABALLI, TQ. HANGAL,
DIST. HAVERI-581120.
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RSA No. 100744 of 2023
C/W RSA.CROB No. 100003 of 2024
5. SMT. GANGAMMA SIDDALNGAPPA MALLANNANAVAR
AGE: 69 YEARS, OCC. HOUSEHOLD,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
6. SMT. BASAVANNEAVVA SHIVANANDAPPA CHINNIKATTI
AGE: 45 YEARS, OCC. HOUSEHOLD,
R/O. UPPUNASHI, TQ. HANGAL,
DIST. HAVERI-581148.
7. SMT. JAYAMMA CHANDRAGOUDA PATIL
AGE: 48 YEARS, OCC. HOUSEHOLD WORK,
R/O. SHIRABADAGI, TQ. SAVANUR,
DIST. HAVERI.
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE FOR R1;
R2-DECEASED; R3 AND R4 ARE LRS., OF DECEASED R2;
R3, R5, R6 AND R7 - NOTICE SERVED;
NOTICE TO R4 IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
CALL FOR RECORDS AND TO SET ASIDE THE IMPUGNED JUDGMENT
AND DECREE DATED 17.04.2023 IN R.A.NO.32/2019 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, AT HAVERI AND
CONSEQUENTLY CONFIRM THE JUDGMENT AND DECREE DATED
02.01.2019 IN O.S.NO.143/2017(OLD NO.98/2013) ON THE FILE
SENIOR CIVIL JUDGE AND JMFC HANGAL AND GRANT SUCH OTHER
RELIEF/S AS THIS HON'BLE COURT DEEMS FIT AND PROPER IN THE
INTEREST OF JUSTICE.
IN RSA CROB NO. 100003/2024:
BETWEEN:
SHRI BASAVARJ S/O. SHIDDILINGAPPA MALLANNAVAR,
AGE: 51 YEARS, OCC. AGRICULTURE,
R/O. VASAN, TQ. HANGAL,
DIST. HAVERI-581104.
...CROSS OBJECTOR
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. SMT. GADIGEVVA W/O. NAGAPPA MALLANNAVAR,
AGE: 63 YEARS, OCC. HOUSEHOLD,
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RSA No. 100744 of 2023
C/W RSA.CROB No. 100003 of 2024
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
2. SHRI RAMESH S/O. NAGAPPA MALLANNAVAR,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
3. SMT. REKHA W/O. DEVAPPA KATLER,
AGE: 37 YEARS, OCC. HOUSEHOLD,
R/O. MALLIGAR, TQ. HANGAL,
DIST. HAVERI-581120.
4. SMT. SUJATA W/O. CHANNABASU HANGAL,
AGE: 35 YEARS, OCC. HOUSEHOLD,
R/O. KODIHALLI, TQ. SORAB,
DIST. SHIMOGGA-577413.
5. SHRI SHEKHAPPA BASAVANNEPPA MALLANNAVAR
AGE: 56 YEARS, OCC. AGRICULTURE,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
6. SHRI PARMESH BASAVANNEPPA MALLANNAVAR
AGE: 49 YEARS, OCC. AGRICULTURIST,
R/O. KALANGI VILLAGE, TQ. SIRSI,
DIST. UTTARKANNADA-581358.
7. SHRI LINGARAJ BASAVANNEPPA MALLANNAVAR
AGE: 44 YEARS, OCC. AGRICULTURIST,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
8. SHRI SHARADA W/O. FAKKIRAPPA HASANABADI,
AGE: 51 YEARS, OCC HOUSEHOLD,
R/O. YALIVAL, TQ. HANGAL,
DIST. HAVERI-581203.
9. SMT. GOURAVVA PUTTAPPA MALLANNANAVAR
AGE: 74 YEARS, OCC HOUSEHOLD,
R/O. KUSANUR, TQ. HANGAL,
DIST. HAVERI-581120.
RESPONDENT NO.9 IS DEAD
RESPONDENT NO.10 AND 11 ARE LEGAL HEIRS ALREADY
ON RECORD.
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RSA No. 100744 of 2023
C/W RSA.CROB No. 100003 of 2024
10. SHRI NAGAPPA PUTTAPPA MALLANNANAVAR
AGE: 57 YEARS, OCC. AGRICULTURIST,
R/O. KUSANUR, TQ. HANGAL,
DIST. HAVERI-581120.
11. SHRI SHEKHAPPA PUTTAPPA MALLANNANAVAR
AGE: 54 YEARS, OCC. AGRICULTURIST,
R/O. KASANUR, TQ. HANGAL,
DIST. HAVERI-581120.
12. SMT. GANGAMMA SIDDALNGAPPA MALLANNANAVAR
AGE: 69 YEARS, OCC. HOUSEHOLD,
R/O. WASAN, TQ. HANGAL,
DIST. HAVERI-581120.
13. SMT. BASAVANNEAVVA SHIVANANDAPPA CHINNIKATTI
AGE: 45 YEARS, OCC. HOUSEHOLD,
R/O. UPPUNASHI, TQ. HANGAL,
DIST. HAVERI-581148.
14. SMT. JAYAMMA CHANDRAGOUDA PATIL
AGE: 48 YEARS, OCC. HOUSEHOLD WORK,
R/O. SHIRABADAGI, TQ. SAVANUR,
DIST. HAVERI.
... RESPONDENTS
(BY SRI. SHIVASAI M. PATIL, ADVOCATE FOR R1 TO R8;
R9 IS DECEASED; R10 AND R11 ARE L.Rs. OF DECEASED R9;
R10 TO R14 - NOTICE SERVED)
THIS RSA.CROB IN RSA NO.100744/2023 IS FILED UNDER
ORDER 41 RULE 22 OF CPC, 1908, AGAINST THE JUDGMENT AND
AWARD DATED 17.04.2023 PASSED IN R.A. NO. 32/2019 ON THE
FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, HAVERI,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 02.01.2019, PASSED IN O.S. NO.143/2017 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, HANGAL, DISMISSING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100744 of 2023
C/W RSA.CROB No. 100003 of 2024
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
The appeal and cross objection have been taken up
together as they arise out of a common judgment and
decree. RSA.CROB is admitted by framing substantial
question of law and with the consent of both the counsel,
the cross objection is taken on merits.
2. Assailing the judgment and decree in R.A.
No.32/2019 dated 17.04.2023 on the file of the Principal
District and Sessions Judge, Haveri (hereinafter referred to
as the 'First Appellate Court', for short) reversing the
judgment and decree dated 02.01.2019 in O.S.
No.143/2017 on the file of the Senior Civil Judge & JMFC.,
Hangal (hereinafter referred to as the 'trial Court' for
short) and decreed the suit of the plaintiff in respect of
Item Nos.1 and 3 to 5 of Schedule 'A' properties and
Schedule 'B' property, the defendant Nos.1A to 1D and
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C/W RSA.CROB No. 100003 of 2024
defendant Nos.2, 3, 4 and 5 are before this Court in this
regular second appeal.
3. Non granting of share in Item No.2 of the
Schedule 'A' properties by the First Appellate Court, the
plaintiff is before this Court in RSA. CROB., which is
admitted by this Court by framing the substantial question
of law which reads as under:
"Whether the First Appellate Court was justified
in holding that the plaintiff and defendant Nos.6 to
11 are not entitled for any share in Sy.No.9/2
measuring 1 acre 23 guntas and holding that the
said suit property is the absolute property of
deceased Basavaneppa?"
4. Parties herein are referred to as per their rank
before the trial Court, for the sake of convenience.
5. Learned counsel for the appellants and the
learned counsel for respondents have been heard and also
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C/W RSA.CROB No. 100003 of 2024
heard on the substantial question of law framed in
RSA.CROB.
6. The family genealogical tree is culled out as
under:
Irappa
(Died)
Puttappa Basavannappa Shivappa Shiddalingappa
(Died) (Died)(18.10.1988) (Died)(Issueless) (Died)
Wife
(Died)
Nagappa Shekhappa Sharada Parameshi Lingaraj
(D.1) (D.2) (D.5) (D.3) (D.4)
Gouravva Gangamma
(D.6) (D.(9)
Nagappa Shekhappa Basavannavva Jayamma Basavaraj
(D.7) (D.8) (D.10) (D.11) (Plaintiff)
7. Suit for partition and separate possession
contending that the plaintiff and defendant Nos.9 to 11
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C/W RSA.CROB No. 100003 of 2024
have 1/3rd share in the suit schedule properties. The case
of the plaintiff is that the suit schedule 'A' properties were
originally tenanted properties of the propositus Irappa and
the said Irrappa was declared as a "protected tenant",
after coming into force of the Karnataka Land Reforms Act,
1961, the eldest son of Irappa namely Basavanneppa filed
Form No.7 before the Land Tribunal seeking occupancy
rights in respect of schedule 'A' properties, the Land
Tribunal granted occupancy rights in respect of suit
schedule 'A' properties in the name of the Basavanneppa
on behalf of the joint family. It is the case of the plaintiff
that during the lifetime or after the death of Irappa there
was no partition effected between the sons and the legal
heirs of Irappa have continued to be in joint family. It is
the case of the plaintiff that suit schedule 'B' properties
are also the joint family properties of plaintiff and
defendants and they are entitled for share.
8. On notice, the defendants appeared, defendant
Nos.1 to 4 filed common written statement, adopted by
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C/W RSA.CROB No. 100003 of 2024
defendant No.5 contending that the propositus Irappa
Mallappa Mallannanavar was a tenant of schedule 'A'
properties for only one year during 1946 to 1947 and after
1947 the original landlord of suit schedule 'A' properties
continued in possession and cultivation of the suit
schedule properties. It is the case of the defendants that
Basavanneppa separated from his father and his other
brothers in the year 1947 and was residing separately
cultivating schedule 'A' landed properties in his individual
capacity. Further, that between 1948 and 1974 schedule
'A' landed properties were exclusively cultivated by
Basavanneppa and not in joint cultivation of his brothers
or his father Irappa, and accordingly Form No.7 filed by
Basavanneppa was in his individual capacity and the grant
of occupancy rights by the Land Tribunal enures to the
benefit of the branch of Basavanneppa not the sons of
Irappa and contended that the plaintiff has no right over
the suit schedule 'A' properties. There is no specific
averment about denial of right in respect of schedule 'B'
properties.
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C/W RSA.CROB No. 100003 of 2024
9. The trial Court based on the pleadings framed
the following issues:
"1. Whether plaintiff proves that the suit schedule
properties are Hindu Undivided joint family
properties of themselves and defendants?
2. Whether plaintiff proves that himself and
rd
defendants No.9 to 11 have got 1/3 share in
the suit schedule properties?
3. Whether this court has got pecuniary jurisdiction
to try the present suit?
4. Whether defendants prove that suit schedule A
properties ae self acquired occupancy lands of
Basavanneppa Irappa Mallannanavar?
5. Whether defendants prove that suit of the
plaintiff is bad for non joinder of necessary
parties?
6. Whether suit of the plaintiff is barred by
limitation?
7. Whether the plaintiff is entitled for the relief's
claimed?
8. What order or decree?"
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C/W RSA.CROB No. 100003 of 2024
10. In order to substantiate their claim, the plaintiff
examined himself as PW1 and marked documents at
Exs.P1 to P13. On the other hand defendant No.2
examined himself as DW1, one witness as DW2 and
marked documents at Exs.D1 to D13.
11. The trial Court based on the pleadings, oral and
documentary evidence, arrived at a conclusion that:
(i) The plaintiff has failed to prove that the suit
schedule properties are the joint family properties
of the plaintiff and defendants.
(ii) The plaintiff failed to prove that he and defendant
Nos.9 to 11 are entitled for 1/3rd share in the suit
schedule properties.
(iii) The defendants proved suit schedule 'A'
properties are the self acquired occupancy lands
of Basavanneppa Irappa Mallannanavar.
(iv) The trial Court denied share in schedule 'B'
properties holding that there is already a partition
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C/W RSA.CROB No. 100003 of 2024
effected in between the family members and their
names have appeared in the revenue records.
By the judgment and decree the trial Court dismissed the
suit of the plaintiff.
12. Aggrieved, the plaintiff preferred appeal before
the First Appellate Court. The First Appellate Court while
re-appreciating the entire oral and documentary evidence
reversed the judgment and decree of the trial Court and
held that the plaintiff and defendant Nos.9 to 11 are
entitled for 1/3rd share jointly, defendant Nos.1 to 5 are
entitled for 1/3rd share jointly, defendant Nos.6 to 8 are
entitled to 1/3rd share jointly in suit schedule 'A' properties
at serial Nos.1 and 3 to 5 and in suit schedule 'B'
properties, however, did not grant any share to the
plaintiff and defendant Nos.6 to 11 in Sy.No.9/2
measuring 1 acre 23 guntas observing that they are the
absolute properties of deceased Basavaneppa and it would
be inherited by his legal heirs i.e. defendant Nos.1 to 5.
Aggrieved by the same, defendant Nos.1A to 1D, 2, 3, 4
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C/W RSA.CROB No. 100003 of 2024
and 5 have preferred the regular second appeal and non
granting of share in Sy.No.9/2, Sl.No.2 of schedule 'A'
properties, the plaintiff is before this Court.
13. Heard learned counsel for the appellants,
learned counsel for the respondents and perused the
material on record.
14. Learned counsel for the appellants/defendants
vehemently contends that the First Appellate Court has
failed to appreciate that:
(a) The deceased Basavaneppa has left the joint
family and is residing separately along with his
family members and he has filed Form No.7 in
his individual capacity and not as a Kartha of the
family, the grant of occupancy rights by the Land
Tribunal in favor of the Basavaneppa at Ex.D8
was in his individual capacity way back in the
year 1970, that the grant of occupancy rights is
not challenged by the other family members.
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C/W RSA.CROB No. 100003 of 2024
(b) The First Appellate Court has failed to appreciate
that Form No.7 was filed by deceased
Basavaneppa individually and not as a Kartha of
the family and the occupancy rights was paid
individually by deceased Basavaneppa, looking
into all these aspects the grant in favor of
Basavaneppa would enure only to the benefit of
his family members and not to the family
members of Irappa.
(c) The First Appellate Court has rightly held that the
plaintiff and the defendant Nos.6 to 11 have no
right, title or interest over Sy.No.9/2, hence,
RSA.CROB., preferred by the plaintiff, needs to
be rejected.
15. Per contra, learned counsel appearing for the
respondent No.1/plaintiff vehemently contends that the
First Appellate Court has rightly appreciated the entire oral
and documentary evidence more particularly the Form
No.7 filed by Basavaneppa and also Ex.P7-ME.No.241
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C/W RSA.CROB No. 100003 of 2024
wherein, it is clearly indicated that the propositus Irappa
was recognized as a "protected tenant" and the right of
tenancy was inherited by Basavaneppa as the Kartha of
the family, filing of Form No.7 is not in his individual
capacity and the grant of occupancy rights by the Land
Tribunal in favor of Basavaneppa enures to the benefit of
the family members of Irappa and the First Appellate
Court has rightly arrived at a conclusion that the plaintiff
and defendant Nos.9 to 11 are entitled for 1/3rd share
jointly in Sy.Nos.1 and 3 to 5 of schedule 'A' properties
and schedule 'B' properties which warrants no
interference. Learned counsel submits that the
RSA.CROB., is preferred to the extent of non-granting
share in Sy.No.9/2 i.e. Sl.No.2 of schedule 'A' properties.
The said survey number was also part of Form No.7 and
the Land Tribunal order wherein, the occupancy rights
were granted in favor of Basavaneppa and the grant in
favor of Basavaneppa having held not been in his
individual capacity, the First Appellate Court fell in error in
not granting any share in Sy.No.9/2 and would submit that
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C/W RSA.CROB No. 100003 of 2024
the RSA.CROB., filed by the plaintiff needs to be allowed
and the plaintiff and defendant Nos.9 to 11 would be
entitled for 1/3rd share in schedule 'A' properties and
schedule 'B' properties.
16. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties
and perused the material on record.
17. The family genealogy tree is culled out as
under;
Irappa
(Died)
Puttappa Basavannappa Shivappa Shiddalingappa
(Died) (Died)(18.10.1988) (Died)(Issueless) (Died)
Wife
(Died)
Nagappa Shekhappa Sharada Parameshi Lingaraj
(D.1) (D.2) (D.5) (D.3) (D.4)
Gouravva Gangamma
(D.6) (D.(9)
Nagappa Shekhappa Basavannavva Jayamma Basavaraj
(D.7) (D.8) (D.10) (D.11) (Plaintiff)
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18. The relationship between the parties is not in
dispute. It is also not in dispute that Basavaneppa filed
Form No.7 and occupancy rights were granted in favor of
Basavaneppa by the Land Tribunal in respect of all the
properties mentioned in schedule 'A' properties.
19. Ex.P7 is the mutation entry in the year 1948
wherein, the name of the propositus Irappa Mallappa
Mallannanavar was declared/recognized as a "protected
tenant" in the year 1948 to the suit schedule 'A'
properties. The right of the propositus being recognized as
a "protected tenant" is under a statute, after coming into
force of Karnataka Land Reforms Act Basavaneppa who
was the eldest son of Irappa after the death of Puttappa
filed application seeking grant of occupancy rights in his
favor by filing Form No.7 at Ex.P8. The age of
Basavaneppa was shown as 50 years and cultivation of
Basavaneppa was described as 35 years. After the death
of Irappa, the son of Irappa inherited the suit schedule 'A'
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C/W RSA.CROB No. 100003 of 2024
properties. The Form No.7 filed by Basavaneppa though in
his individual capacity, he was not cultivating the suit
lands in his individual capacity as the propositus Irappa
was declared as a "protected tenant". The grant of
occupancy rights in favor of Basavaneppa by the Land
Tribunal is not in his individual capacity but on behalf of
the joint family, the said grant would enure to the benefit
of the family members of Irappa.
20. The First Appellate Court though rightly held
that the grant in favor of Basavaneppa enured to the
benefit of other family members was not justified in
holding that the plaintiff is not entitled for any share in
Item No.2 of the suit schedule 'A' properties when the
occupancy rights claimed by the Basavaneppa under Form
No.7 included Sy. No.9/2 and the grant of occupancy
rights in favor of Basavaneppa was in respect of Sy.
No.9/2 as well under the very same order, the First
Appellate Court could not have bifurcated and held that
the occupancy rights granted in favor of Basavaneppa in
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C/W RSA.CROB No. 100003 of 2024
Sy. No.9/2 in his individual capacity, making this court to
warrant interference to that extent and accordingly,
substantial question of law framed in RSA.CROB., is
answered in favor of the plaintiff holding that the plaintiff
is entitled for 1/3rd share in Sy. No.9/2 (Item No.2 of the
suit schedule 'A' properties) and in the appeal preferred by
the defendants there arises no substantial question of law
to be considered in the present appeal, accordingly, this
Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The RSA Cross-Objection is hereby
allowed.
(iii) The judgment and decree of the First
Appellate Court stands modified holding
that the plaintiff and defendant Nos.9 to
11 are entitled for 1/3rd share together,
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defendant Nos.1 to 5 are entitled for 1/3rd
together are entitled to 1/3rd share
together in suit schedule 'A' properties and
suit schedule 'B' properties.
(iv) Decree to be drawn accordingly.
Sd/-
(JUSTICE K.S.HEMALEKHA)
RH - till para 17;
PJ- from para 18;
Ct-PA
