Dismissed

Sri Thammaiah v. Smt Muthamma

Karnataka HC5 Dec 2022RSA/1934/2016

Case brief

AI extract

What is this about?

Suit for partition of agricultural land and house sites. The grant of occupancy rights to the eldest daughter was held to enure to the joint family. Dismissing the second appeal, the High Court upheld the concurrent findings, holding the civil court's jurisdiction was not ousted as the Land Tribunal had not decided whether the tenancy was individual or joint family.

What the court decided

AI extract

Sri Thammaiah Vs Smt Muthamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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REGULAR SECOND APPEAL NO.1934 OF 2016 (PAR)

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BETWEEN:

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SRI THAMMAIAH AGED 79 YEARS S/O LATE PEDDASIDDIAH AMENDED AS PER ORDER DATED 22.02.2022

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SINCE DEAD BY LR APPELLANT NO.2 SMT. SHANTHAMMA

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SMT SHANTAMMA AGED 50 YEARS D/O LATE GOWRAMMA R/AT HALE MADURAMMA TEMPLE STREET, MADDUR TOWN MANDYA DISTRICT-571 428.

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…APPELLANTS

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[BY SRI G KRISHNA MURTHY, SR. COUNSEL A/W SRI PALLAVA R., ADVOCATE (PH)]

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AND:

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SMT MUTHAMMA AGED 74 YEARS D/O LATE DODDATHIMMAIAH, RESIDING IN HUNASANAHALLI KODAMBALLI HAMLET VIRUPAKSHIPURA HOBLI CHANNAPATHNA TALUK, RAMANAGARA DISTRICT-562 138.

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` 2

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SMT LAKSHMAMMA AGED 64 YEARS D/O LATE DODDATHIMMAIAH W/O LATE THIMMAIAH RESIDING IN KALIKERE VILLAGE SHOGALA POST VIRUPAKSHIPURA HOBLI CHANNAPATNA TALUK, RAMANAGARA DISTRICT-562 138.

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SMT CHIKKOLAMMA @ MUTHAMMA AGED 56 YEARS D/O LATE DODDATHIMMAIAH W/O H MUTTAIAH, RESIDING IN KODAMBALLI VILLAGE VIRUPAKSHIPURA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT-562 138.

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…RESPONDENTS

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[BY SRI SHARATH S. GOWDA, ADVOCATE (PH)]

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THIS REGULAR SECOND APPEAL FILED UNDER SEC.100 R/W ORDER XLII OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.09.2016 PASSED IN R.A.NO.40/2015 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.09.2015 PASSED IN O.S.NO.40/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADDUR.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.06.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

JUDGMENT

Challenging judgment and decree dated 02.09.2016 passed by II Additional District and Sessions Judge, Mandya in R.A.no.40/2015 and judgment and decree dated 21.09.2015 by Senior Civil Judge, Maddur in O.S.no.40/2011, this appeal is filed.

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Appellants herein were defendants no.1 and 2, while respondents no.1 to 3 herein were plaintiffs no.1 to 3 in original suit. They will be referred to as such herein.

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Plaintiffs filed O.S.no.40/2011 seeking for partition and separate possession of their 1/4^th share in land bearing Sy.no.282/2, measuring 01 acre 06 guntas of Maddur village described as ‘A’ schedule property and four houses and sites no.380/360 measuring East-West 21 feet and North-South 25 feet; site no.388/360 measuring East-West 21 feet and North-South 12½ feet; site no.388/360 measuring East-West 21 feet and NorthSouth 16½ feet and site no.388/360 measuring East-West 46 feet and North-South 21 feet, situated at Madduramma Temple road, Maddur described as described as ‘B’ schedule properties (referred to as ‘ suit properties ’ for short).

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In plaint, it was stated that land bearing Sy.no.282 originally belonged to Khazi Abdul Rehaman Khan and plaintiffs’ grandfather was it's tenant. After his death, their father Sri.Doddathammaiah continued as tenant and thereafter by his children namely, Smt.Gowramma, Sri.Thimmaiah, Smt.Muthamma (Plaintiff no.1), Smt. Lakshmamma (Plaintiff no.2) and Smt. Chikkolamma (Plaintiff no.3). Since Smt.Gowramma was elder member of family and was residing with plaintiffs, she was managing affairs of joint family as Karta. After coming into force of amendment to Karnataka Land Reforms Act (referred to as ' KLR Act ' for short), she filed application for grant of occupancy rights, on behalf of joint family. Her application was allowed by Land Tribunal, Maddur, in proceedings no.LRF 548, 576, 543, 1171, 480/74-75 occupancy rights were grated to extent of 01 acre 06 guntas. It was stated that grant was in favour of joint family, therefore, they were entitled for equal share in suit properties including granted land.

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It was stated that relationship with Smt.Gowramma was cordial. Therefore, they believed her statement that names of all

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family members were entered in record of rights and they would be given their share at appropriate time. But, taking undue advantage of their illiteracy, she got only her name entered in revenue records. After her death, defendants no.1 and 2 – her husband and daughter were attempting to get their names entered in revenue records. At that time, they displayed hostile attitude towards plaintiffs. Upon enquiry, they realized that Smt.Gowramma had got her name entered illegally. They immediately preferred appeal before Assistant Commissioner, Mandya. They also demanded defendants to furnish accounts of income from joint family properties. Upon refusal, they filed suit. It was also stated that whereabouts of one of brothers was unknown and therefore he was not made party to suit.

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On service of suit summons, defendants entered appearance and filed written statement denying plaint averments. They admitted that Khazi Abdul Rehaman Khan was owner of land bearing Sy.no.282, but claimed Sri.Doddathammaiah - father of Smt.Gowramma was tenant of said land. But due to his ill-health, he surrendered tenancy. By that time Smt.Gowramma was married

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to defendant no.1 had attained age of majority and began residing with her father. He died in year 1962. Therefore, Smt.Gowramma and defendant no.1 took up responsibility of family. Defendant no.1 sold his ancestral property situated in Kondapura Village, Channapatna Taluk and performed marriage of plaintiffs. They were well settled in houses of their respective husbands. Thereafter, Smt.Gowramma took up tenancy of Sy.no.282 and cultivated same for her livelihood. On 14.01.1980, she divided ‘B’ schedule properties with Sri.Thimmaiah – her brother, wherein items no.2 to 4 fell to her share, item no.1 was allotted to Sri.Thimmaiah. Since then they were in possession. Thereafter, she got demolished old house and constructed new house by availing loan.

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It was specifically contended that application filed by Smt.Gowramma was in her individual capacity, therefore grant was individual and it was confirmed by this Court. Therefore, she was absolute owner of agricultural land and plaintiffs were not having any share therein. After her death on 28.04.2010, defendants were only legal heirs and claimed to have succeeded to suit property. It was pleaded that her brother – Sri.Thimmaiah had borrowed huge hand loans from friends and relatives, which he was unable to

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repay. At that time, Smt.Gowramma undertook to clear his loans. In consideration, Sri.Thimmaiah relinquished his properties in her favour. Thus, she had become absolute owner of suit properties. Thereafter, Sri.Thimmaiah left house in year 1979 and was untraceable. On said contentions, she sought dismissal of suit.

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Based on pleadings, trial Court framed following issues

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for consideration:

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i. Whether the plaintiffs prove that all the suit schedule properties are ancestral joint family properties of plaintiffs and defendants?

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ii. Whether the plaintiffs further prove that they are in joint possession and enjoyment of the suit schedule properties along with defendants?

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iii. Whether the plaintiffs are entitled for the relief of partition and separate possession of 1/4^th share each, in all the suit schedule properties by metes and bounds?

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iv. Whether the plaintiffs are entitled for mesne profit u/o. 20 Rule 18 of CPC?

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v. What Order or Decree?

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Thereafter, plaintiffs got examined PWs.1 and 3.

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Exhibits P1 to P11 were got marked. While defendant no.2 was examined as DW.1 and Exs.D1 to D18 were marked.

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On consideration, trial Court answered issues no.1 to 4 in affirmative and issue no.5 by decreeing suit holding plaintiffs no.1 to 3 as entitled for 1/4^th share in all suit properties and directing separate enquiry for mesne profits.

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Aggrieved by same, defendants preferred

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R.A.no.40/2015 on several grounds. Based on same, it framed following points for consideration:

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i. Whether the appellants/defendants have proved the schedule ‘A’ property is the absolute property of deceased Gowramma?

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ii. Whether the appellants/defendants have proved that the respondents/plaintiffs are not entitled for any share in the schedule ‘B’ properties by virtue of the alleged partition dated 14/01/1980?

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iii. Whether the impugned judgment and decree calls for interference by this Court?

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iv. To what decree or order?

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Thereafter, it answered points no.1 to 3 in negative and

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point no.4 by dismissing appeal.

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Aggrieved by concurrent findings, defendants are in

appeal.

Sri. G. Krishnamurthy, learned Senior Counsel appearing for Sri. Pallava R, Advocate for defendants submitted that case of plaintiffs in brief was that in O.S.no.40/2011, they sought partition and separate possession of their 1/4^th share in suit properties. Land bearing Sy.no.282/2 of Maddur town, measuring 01 acre 06 guntas was suit schedule 'A' property, while, four items of residential houses and sites constituted 'B' schedule properties. That plaintiff’s grandfather was tenant of 'A' schedule property belonging to Khazi Abdul Rehaman Khan, after his death, plaintiff's father Sri.Doddathammaiah continued tenancy and after his demise elder sister - Smt.Gowramma was managing it as joint family property. Therefore, when she filed Form no.7, it was on behalf of joint family. Hence, grant of occupancy rights was to joint family. After her death, defendants refused partition. Hence, suit was filed.

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It was further submitted that defendants case in brief was that though Sri.Doddathammaiah was tenant of 'A' schedule property, due to ill-health, he could not cultivate it and surrendered tenancy, thereafter Smt.Gowramma came over to Maddur, with her husband. After, Sri.Doddathammaiah died in year 1962,

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Smt.Gowramma and defendant no.1 sold ancestral properties belonging to defendant no.1 and performed marriage of plaintiffs. Thereafter, Smt.Gowramma took 'A' schedule property on lease from its owner by paying guttige . Therefore, when she applied for grant of occupancy rights, it was in her individual capacity and grant was also in her name and not on behalf of joint family.

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Evidence led by parties was also mainly on these lines. Trial Court decreed suit. First appellate Court confirmed it.

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Learned Senior Counsel submitted, fact that ‘A’ schedule property belonged to Khazi Abdul Rehaman Khan and Sri.Doddathammaiah taking it on lease is not in dispute. Dispute between plaintiffs and defendants no.1 & 2 was about plaintiffs’ claim that they were cultivating ‘A’ schedule property even after their marriage prior to appointed date i.e. 01.03.1974 and about their claim for inheritance of tenancy and whether grant of ‘A’ schedule property to Smt.Gowramma was for and on behalf of joint family.

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It was submitted that case of plaintiffs that ‘A’ schedule property was joint family property principally depended on their claim that their grandfather was tenant in respect of ‘A’ schedule property and after his death, their father inherited tenancy and therefore, all children of Sri.Doddathammaiah were entitled for partition in it as per ratio of decision of Hon'ble Supreme Court in case of Balawwa and Ors. v/s Hasanabi and Ors.,¹ . But, facts in said decision, reveal that in suit for partition, defendants therein claimed exclusive title in respect of two items of suit properties on ground that Land Tribunal had granted occupancy rights under Section 48(A) of KLR Act, which was negated by trial Court. But, first appellate Court, reversed finding and held that Land Tribunal conferred exclusive occupancy rights on defendants and it cannot be partitioned. It also held that plaintiffs therein were not members of joint family. This Court, concurred with trial Court. Hon'ble Apex Court held that Civil Court had no jurisdiction in view of special Tribunal created under KLR Act. It also held that plaintiff was not member of family and therefore, order of land tribunal granting occupancy rights to defendant would not enure to benefit of

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1 (2000) 9 SCC 272

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plaintiffs. It also held that tribunal had no jurisdiction to grant partition and could only grant occupancy rights upon satisfaction of preconditions stipulated in KLR Act.

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It was submitted that even plaintiffs’ reliance upon decision in Ishwaragouda and Ors. v/s Mallikarjunagouda and Ors.,² would not be of much help, as land therein was under cultivation of ancestor of plaintiffs and defendants as tenants. And land tribunal on filing of rival applications for grant of occupancy rights by plaintiffs and defendants granted southern portion to Parvathegowda and his family and northern portion to Basanagowda and his family. Thereafter, when suit was filed for declaration of title and possession, Civil Court decreed suit holding that it had jurisdiction to decide about nature of property whether as joint family property or individual. First appellate Court held civil Court lacked jurisdiction. This Court reversed finding of first appellate Court. But referring to Section 133 of KLR Act, ratio in Balawwa's case (supra) and its decision in Mudukappa v/s Rudrappa & Ors.³ , Hon'ble Supreme Court held that civil Court

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2 (2009) 1 SCC 626 ,

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3 (1994) 2 SCC 57

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had no jurisdiction to decide whether joint family or its member was tenant, when said issue was already decided finally by Land Tribunal.

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Learned Senior Counsel further submitted that in present case, additional substantial question of law would arise for consideration regarding heritability of tenancy vis-à-vis conditions imposed for grant of occupancy rights under KLR Act.

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It was submitted that even according to plaintiffs propositus Sri.Doddathammaiah died prior to 01.03.1974 and tenancy was made heritable for first time under Section 24 of KLR Act, which came into effect by virtue of amending Act 1 of 1974 w.e.f. 01.03.1974. Earlier enactment i.e. Mysore Code did not provide heritability of tenancy. Division Bench of this Court in case of Nimbavva and Ors. v/s Channaveerayya and Ors.,⁴ had observed that as per Section 45 of KLR Act, all family members of deceased tenant cannot become occupants unless they fulfilled conditions mentioned in KLR Act, especially, that of personal cultivation. It was submitted that plaintiffs, who admitted that their 4 (2015) 1 KCCR 205

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marriages were performed by their elder sister Smt.Gowramma and they were residing in different villages could not claim to have cultivated it personally.

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It was submitted that in case of Jayamma v/s Maria Bai (Dead) by Proposed LRs. & Anr.,⁵ it was held that though tenancy was heritable, occupancy could be granted only to such of heirs, who was qualified to be tenant if cultivable land was available on appointed day. And in Gian Devi Anand v/s Jeevan Kumar & Ors.,⁶ it was held that protection afforded by Rent Act to heirs of tenant on his death was a creation of Act for benefit of tenants and as such, it was open for legislature to make appropriate provisions with regard to nature and extent of benefit and protection to be enjoyed and manner in which it is to be enjoyed. If legislature makes any provision limiting or restricting benefit by any particular class of heirs, benefit of protection has to be enjoyed on fulfillment of said conditions in manner and to extent stipulated in Act. Further in Vithal Dattatreya Kulkarni & Ors. v/s Smt. Shamrao

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5 (2004) 7 SCC 459

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6 (1985) 2 SCC 683,

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Tukaram Power & Ors.⁷ , it was held that question whether statutory tenancy other than contractual tenancy as any or all incidents (including heritability) of a contractual tenancy has to be decided with reference to provisions of particular statute. And in D.S. Lakshmaiah & Anr. v/s L. Balasubramanyam & Anr.⁸ , it

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was held that there was no presumption of a property being joint family property only on account of existence of joint Hindu Family. Burden to prove same was on person who asserts it is a joint family property.

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Reliance was also placed on decision in Kanna Timma Kanaji Madiwal v/s Ramachandra Timmaya Hegde⁹ , wherein it

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was held when a person has been inducted as tenant, heritable rights come into existence, but with embargo over its transferability. In other words, tenancy continues even after demise of tenant and if he was member of joint family, then surviving members of joint family and if he is not member of joint family, only his heirs would be entitled to claim partition subject to conditions specified.

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7 (1979) 3 SCC 212 ,

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8 (2003) 10 SCC 310 ,

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9 2019 SCC OnLine SC 1270

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Reliance was also placed on decision of High Court of Allahabad in Nirankar & Ors. v/s Mahendra Singh¹⁰ , wherein it was held that inheritance of tenancy right in agricultural property is to be governed by provisions of special statute and if it departs from old Hindu law in respect of certain matters, it would be deemed that special enactment supersedes personal law.

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It was submitted that agricultural tenancy was made inheritable for first time as per Section 24 of KLR Act w.e.f. 1.03.1974. Prior to that Mysore Tenants (Temporary Protection From Eviction) Act, 1961 was in force upto March, 1966. Earlier enactment was Mysore Tenancy Act, 1952. It was submitted that none of earlier enactments made any provision for inheritance of tenancy. Propositus Sri. Doddathammaiah died in year 1962, prior to 02.10.1965 i.e. date of coming into force of KLR Act and as admittedly, marriages of plaintiffs were celebrated during life time of propositus, even if claim of defendants that Smt.Gowramma had taken independent tenancy from landlord in respect of ‘A’ schedule property is not accepted, fact that there was no provision for 10 2006 SCC OnLine All 1903

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inheritance of tenancy by all legal heirs would bar plaintiffs’ claim. Hence, on these grounds, learned Senior Counsel sought for allowing appeal and dismissing plaintiff’s suit.

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On other hand, Sri. Sharath S. Gowda, learned counsel appearing for respondents opposed appeal. It was submitted that suit was filed in respect of ‘A’ and ‘B’ schedule properties. It was not in dispute that father of plaintiff-Sri.Doddathammaiah was tenant of ‘A’ schedule property. On his death in year 1962, only male member in family was Sri.Thimmaiah. But, his whereabouts were not known since 1979. It was submitted that all daughters of Sri.Doddathammaiah were married prior to appointed date. Plaintiffs had specifically pleaded that they along with Smt.Gowramma were residing with propositus. Even defendant no.1 was residing along with them. Further Smt.Gowramma was eldest sister, therefore she was cultivating ‘A’ schedule property on behalf of joint family. It is not in dispute that Smt.Gowramma filed Form no.7 and occupancy rights were granted to her in respect of ‘A’ schedule property. Thereafter, revenue records were mutated. Plaintiffs had specifically pleaded that their relationship with her

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was cordial and only after her death, dispute arose about plaintiffs rights in joint family properties.

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Since, Sri.Doddathammaiah – propositus, had five children namely, Smt.Gowramma, Sri.Thimmaiah, Smt.Muthamma (Plaintiff no.1), Smt.Lakshmamma (Plaintiff no.2) and Smt.Chikkolamma (Plaintiff no.3) and whereabouts of Sri.Thimmaiah were not known, each of plaintiffs were entitled for 1/4^th share as prayed for in suit. In plaint paragraph no.4, they had stated that Smt.Gowramma was only wise lady in family and plaintiffs were illiterate, rustic villagers, taking undue advantage of same, Smt.Gowramma and defendant no.1, got only their names entered in khata and kept assuring plaintiffs that their share would be granted at appropriate time. Immediately after arising of dispute, they had preferred appeal against revenue entries before Assistant Commissioner, Mandya.

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On other hand, Smt.Gowramma specifically contended that Sri.Doddathammaiah had surrendered tenancy due to ill-health and thereafter she was cultivating ‘A’ schedule property by obtaining lease in her individual capacity. However, she failed to

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lead any evidence to substantiate same and it was in fact given up. In view of same, only possible conclusion would be that tenancy was inherited. It was further submitted that defendants no.1 and 2 had specifically admitted in their written statement that on 14.01.1980, Smt.Gowramma had entered into family partition with her brother Sri.Thimmaiah, item no.1 of ‘B’ schedule properties was allotted to his share and items no.2 to 4 were allotted in her favour. It was submitted that admittedly said partition excluded plaintiffs, who were also children of propositus – Sri.Doddathammaiah. Hence, their claim for share in suit properties was fully justified. It was also contended that as pleaded in written statement, whereabouts of Sri.Thimmaiah, brother of plaintiffs and Smt.Gowramma were not known from year 1979. It was also stated that said Sri.Thimmaiah had left home in year 1979, being unable to repay loan borrowed from friends and relatives. It was also asserted that he had earlier relinquished his share/properties in favour of Smt.Gowramma and thenceforth, she was paying land revenue and khata in respect of ‘B’ schedule properties also stood in her name.

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It was submitted that there was no explanation about partition effected on 14.01.1980 when her brother - Sri.Thimmaiah left home in 1979, that too by leaving out other sisters.

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Relying upon decision of Hon’ble Supreme Court in Balawwa’s case (supra), it was contended that order of Land Tribunal granting occupancy rights in name of one of daughters of original tenant would enure to benefit of other members and such right could not be denied even on equitable consideration. It was submitted that Hon’ble Supreme Court in Ishwargouda’ s case (supra) was only insofar as jurisdiction of Civil Court for granting declaration and ratio in Balawwa ’s case (supra) was not overruled. It was submitted that in it's later decision in case of

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Thimmappa Rai Vs. Ramanna Rai & Ors.,¹¹ , ratio in Balawwa’s case (supra) has been reiterated.

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Learned counsel further submitted that learned Single Judge of this Court in Kallappa Ningappa Alagundi & Ors. v/s Narasappa Ningappa Alagundi & Ors., reported in 2006 (2)

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11 (2007) 14 SCC 63

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AIR Kar. R 700, had held that tenancy was inheritable and partible in view of Section 24 of KLR Act.

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It was submitted that even in earlier decision in Virupax Krishnaji & Ors. v/s Land Tribunal, Ron & Ors. reported in 1978 SCC OnLine Kar 47, similar view was expressed.

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It was further submitted that contention that there was ouster of personal law regarding inheritance by statute, which governed all aspects of tenancy was not urged either before trial Court or before first appellate Court and therefore, could not be raised for first time in second appeal without placing adequate basis for same before trial Court. It was also submitted that since agrarian reform legislations did not cover inheritance of tenancy, application of personal law for same would not be barred.

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It was submitted that while passing impugned judgment and decree, trial Court had considered above aspects and decreed suit. Said decree having been confirmed by first appellate Court, jurisdiction of this Court to interfere with concurrent findings was

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limited and was not called for in above mentioned facts and circumstances of case. Hence, sought for dismissal of appeal.

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Heard learned counsel, perused impugned judgment and decree and records.

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This appeal was admitted on 28.11.2016 to consider following substantial question of law:

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“Whether the Trial Court and first Appellate Court have committed any legal error in deciding the point that the suit schedule properties have been granted in favour of Gowramma for herself or on behalf of her family and whether the said Courts have got jurisdiction to decide the same?”

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From above submissions, it is not in dispute that ‘A’ schedule property belonged to Khazi Abdul Rehaman Khan and that propositus – Sri.Doddathammaiah was it's tenant. Plaintiffs also contend that even prior to propositus, their grandfather was tenant. Though defendants contended that propositus surrendered tenancy due to ill-health, same is not substantiated by any evidence. It is not in dispute that Smt.Gowramma was married to defendant no.1

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during age of minority, she and her husband shifted to Maddur and were residing with propositus and plaintiffs. It is also not in dispute that Smt.Gowramma and defendant no.1 performed marriages of plaintiffs. It is admitted between parties that Smt.Gowramma filed Form no.7 in respect of ‘A’ schedule property and Land tribunal granted occupancy rights to her.

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Plaintiffs claim that after death of propositus, Smt.Gowramma and defendant no.1 were managing affairs of joint family and as such cultivating ‘A’ schedule property, therefore, grant of occupancy rights in favour of Smt.Gowramma would enure to all members of joint family and therefore, they would be entitled for partition. But, defendants contend that while Smt.Gowramma and her husband – defendant no.1 were residing with propositus, plaintiffs were still minors. After death of propositus, Smt.Gowramma and her husband – defendant no.1 took up responsibility of performing marriages of plaintiffs. For said purpose, joint family lands of defendant no.1 situated at Kondapura Village, Channapatna Taluk were sold. Thereafter Smt.Gowramma began cultivating ‘A’ schedule property for livelihood. Defendants

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further stated that in partition with Sri.Thimmaiah, items no.2 to 4 of ‘B’ schedule property fell to her share and item no.1 fell to share of Sri.Thimmaiah, he had relinquished it in her favour. Thus as Smt.Gowramma was owner of all suit schedule properties, plaintiffs were not entitled for any share.

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While passing impugned judgment and decree, trial Court took note of rival pleadings and documentary evidence. Taking note of statement that Sri.Thimmaiah had left home in year 1979, it expressed doubt about partition between Smt.Gowramma and Sri.Thimmaiah on 14.01.1980. Even her claim that before leaving home, Sri.Thimmaiah had relinquished his share of properties to her, trial Court observed that such relinquishment required registration, therefore it was also not established.

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Insofar as nature of grant, whether it was individual grant or for and on behalf of joint family, it referred to order of Land Tribunal marked as Ex.D1. While passing order, Land Tribunal taken note of statement of Smt.Gowramma that name of grandfather was shown in record of rights and he was cultivating it since 45 years. Based on said evidence, trial Court held that grant

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of occupancy rights was in favour of joint family. It also noted that in Ex.D18, original Form-10 did not describe Smt.Gowramma as wife of defendant no.1, but, as daughter of propositus. It observed that if grant was in her individual name, it would have indicated her individual name. It also referred to deposition of PWs.1 and 3 to conclude that plaintiffs were in joint possession along with defendants, as nothing was elicited in cross-examination to dispute their deposition. On such conclusion, it answered issues no.1 and 2 in affirmative and held that plaintiffs established that suit schedule properties were ancestral joint family properties of plaintiffs and defendants and that plaintiffs were in joint possession.

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Insofar as issue no.3 - whether plaintiffs were entitled for 1/4^th share each in all suit schedule properties, it observed that since Sri.Thimmaiah was stated to have left house in year 1979 and his whereabouts were not known for period of 7 years, he was deemed to be dead. It also noted that at time of filing suit, this period was actually 32 years. It therefore held that remaining children of Sri.Doddathammaiah viz., Smt.Gowramma and plaintiffs i.e. four in number would be entitled for 1/4^th share each.

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Insofar as issue regarding entitlement for mesne profits, it observed that separate enquiry would be required and taking note of its conclusions, decreed suit.

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First appellate Court, on other hand considered points no.1 to 3 together and taking note of Division Bench decision of this Court in Ismail v/s Adbdul Rahiman and Ors.,¹² and that of Hon’ble Supreme Court in case of Prema and Anr. v/s Deva Rao and Ors.¹³ , it held that grant occupancy right in name of eldest son would be a grant in favour of all members of joint family.

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Insofar as entitlement of plaintiffs for 1/4^th share in suit schedule properties, it took note of contention of defendants about prior partition on 14.01.1980 and subsequent claim of relinquishment by Sri.Thimmaiah in favour of Smt.Gowramma. It however, held that since no documents such as even partition deed or relinquishment deed were not produced. It therefore held that defendants had failed to establish relinquishment of rights. Therefore, taking note of whereabouts of Sri.Thimmaiah, not being

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12 2012 (4) KCCR 2896

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13 HCR 2011 SC 444 ,

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known, it held that grant of 1/4^th share each was justified. It also held that order of trial Court directing separate enquiry for mesne profits was also justified. On said conclusions, it dismissed appeal.

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As stated above, this appeal is admitted to consider above mentioned substantial question of law. But, same is in two parts, namely whether trial Court was justified in holding that ‘A’ schedule property was granted to Smt.Gowramma for herself and on behalf of joint family; and whether civil Courts have jurisdiction to decide same.

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Both trial Court as well as first appellate Court have relied upon Apex Court decision in Prema and Anr.’s case (supra) and Division Bench decision of this Court in Ismail v/s Abdul Rahiman and Ors., to come to conclusion that grant of occupancy right to Smt.Gowramma was as legal heir of original tenant – Sri.Doddathammaiah. In addition to above, learned counsel for plaintiffs has relied upon decisions of this Court in Kallappa Ningappa Alagundi , Virupax Krishnaji’s cases and also decisions of Hon’ble Supreme Court in Balawwa and Thimmapa Rai’s cases (supra) to substantiate that civil Court has jurisdiction.

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47. In Kallappa Ningappa Alagundi’s case (supra), one

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of substantial questions of law that arose for consideration was:

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“Whether Courts below were justified in holding that suit property is acquisition of joint family and as such plaintiff is entitled for share when defendant no.1 has produced several documents to effect that he independently has acquired tenancy from owner and later got occupancy rights granted in his favour?”

¶171

This Court taking note of evidence available on record to show that land was held by joint family from 1954, Form no.7 was filed in 1974 and occupancy rights were conferred only in year 1976, concluded that for more than 20 years, property was in possession of joint family, observed that merely on ground that defendant no.1 therein had claimed to have paid occupancy price would not render granted land as his individual property. It was held that suit property was to be treated as joint family tenancy and as per Section 24 of KLR Act, tenancy was inheritable and partible.

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Other substantial questions of law were about justifiability of judgment and decree and about limitation. In Virupax Krishnaji’s case (supra), question for consideration was whether on death of tenant, who had filed Form no.7, proceedings before Land Tribunal abate; and whether such application could be prosecuted by his legal heirs. It was held that an agricultural lease even under general laws of land i.e. Transfer of Property Act, 1882 and Indian Succession Act, 1925 is heritable and transferable. It was further observed that Section 24 of KLR Act was enacted to declare that on death of tenant, his rights are heritable. Once it was so, his successors–in–interest or his legal representatives were entitled to continue application filed by original tenant for grant of occupancy rights. However, these decisions would not be authorities on question of jurisdiction of civil court.

¶175

In Balawwa’s case (supra), suit for partition was filed in respect of two house properties and two landed properties. In said suit, defendants who were widow and son of original tenant and husband of one of his daughters claimed exclusive title under order granting occupancy rights by land tribunal. Trial Court

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rejected contentions of defendants and decreed suit, first appellate Court reversed decree insofar as granted land holding that Land Tribunal had granted exclusive title on defendants. Said decree was reversed by this Court. Before Hon’ble Supreme Court, two contentions were urged:

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i. The Civil Court itself has no jurisdiction in view of Special Tribunal created under land reforms statute and

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ii. Assuming Civil Court has jurisdiction in view of finding that plaintiff was not member of family, order of Tribunal granting occupancy rights to defendants no.1 and 3 will not enure to benefit of plaintiff and therefore decree of partition could not be granted.

¶181

Taking note of its earlier judgment in Mudakappa’s

¶182

case (supra) and after examining provisions of KLR Act, it was held that jurisdiction of civil Court cannot be said to be ousted. It was held that Tribunal had jurisdiction only to grant relief of declaring occupancy rights in favour of applicant on satisfaction of preconditions provided and did not have jurisdiction to grant relief of partition. It was further held that since plaintiff was one of daughters of Imamsab and defendants were widow of one of son and husband of other daughter, all of them had right in property of

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tenant and therefore order of land tribunal would enure to benefit of other members of family.

¶186

In Thimmappa Rai’s case (supra), one of suit schedule properties in a suit for partition was agricultural property was taken on chalageni basis and plaintiffs claimed to be holding same jointly with person to whom occupancy rights were conferred by Land Tribunal. Trial Court rejected plea that grant of occupancy rights would enure to benefit of all heirs and legal representatives of tenant, this Court confirmed it. Before Hon’ble Supreme Court, it was contended that after coming into force of KLR Act, Land Tribunal had exclusive jurisdiction to determine question as to whether lease in terms of Madras Cultivating Tenants Protection Act, 1955, was granted in favour of applicant or for benefit of entire

¶187

joint family and civil Court did not have jurisdiction to determine same. After referring to provisions of KLR Act, regarding definition of joint family etc., and its earlier decision in Balawwa and Mudukappa’s cases, confirmed judgment of this Court. However it was observed that such contention was not urged before this Court and Land Tribunal had granted occupancy certificate taking note of

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declaration by applicant that his possession was for and on behalf of all members of family.

¶191

Facts in Mudukappa’s case (supra) involved suit for perpetual injunction to restrain defendants from interfering with possession and enjoyment of suit schedule property. After trial Court dismissed suit and during pendency of appeal, Karnataka Land Reforms (Amendment) Act 1 of 1974, came into force. As per Section 45-A matter was referred to Land Tribunal to decide question and nature of tenancy. Tribunal held tenancy was in favour of joint family. Taking note of same, trial Court judgment and decree was confirmed. In appeal by special leave, Division Bench of this Court affirmed dismissal with observation that when statute conferred duty on authority to decide a question and corresponding right on individual/s, it had to be assumed that said authority had power to decide all issues incidental and ancillary to main question and therefore said question could not be decided by civil Court in view of Section 132 of Act. Hon’ble Supreme Court after extensive examination of provisions of KLR Act, held that when exclusive

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jurisdiction was conferred on Tribunal, to decide questions arising under Act, civil Court had no jurisdiction.

¶195

54. In Ishwargouda’s case (supra), question considered

¶196

was:

¶197

“Whether jurisdiction of Civil Court is ousted in view of Section 133 of Karnataka Land Reforms Act, to decide whether an individual is tenant or joint family is tenant of disputed land, same being within exclusive jurisdiction of Land Tribunal?”

¶198

Hon’ble Apex Court after taking note of Section 133 of KLR Act, and observations in Balawwa and Mudukappa’s cases, it was held that civil Court had no jurisdiction as to whether joint family or one of members was tenant when that question was considered finally and authoritatively on merits by Land Tribunal. It was further observed that ouster was in view of said question having been conclusively decided by Land Tribunal and therefore could not be re-agitated before Civil Court.

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In Kanna Timma Kanaji Madiwal’s case, Hon’ble Supreme Court principal question considered was whether bequeathal by way of Will by tenant in favour of his brother was barred by statute and tenancy rights could not be claimed on its

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basis. Though it referred to contention about jurisdiction of civil Court based on it's earlier decision in Ramchandra Dagdu Sonavane (Dead) by LRs. v/s Vithu Hira Mahar (Dead) by LRs.¹⁴ , it would appear from finding of Hon’ble Court that earlier findings in civil suits between parties would bind them to indicate that jurisdiction of civil Court would not be totally barred.

¶203

On consideration of above, it would emerge that jurisdiction of civil Court to decide whether tenancy was that of individual or joint family would be barred only, where it was specifically examined and Tribunal had given findings thereon. In instant case, order of Land Tribunal is marked as Ex.D1. On perusal of same, it is seen that while granting occupancy rights to Smt.Gowramma, Land Tribunal recorded her statement that ‘A’ schedule property was under cultivation since 45 years from time of her father, who was cultivating it. It also noted that her name was not mentioned in record of rights, which in fact mentioned name of her father and brother. There was no specific assertion by applicant

¶204

14 (2009) 10 SCC 273

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Smt.Gowramma that tenancy was her individual tenancy and even Land Tribunal did not give such finding.

¶208

Therefore, question regarding jurisdiction of Civil Court is held in affirmative. Only other question remaining would be whether there was any error in finding of trial Court and first appellate Court that grant of occupancy rights to Smt.Gowramma was for and on behalf of joint family.

¶209

As noted above, it is not in dispute that propositus - Sri.Doddathammaiah had five children namely Smt.Gowramma, Sri.Thimmaiah, Smt.Muthamma (Plaintiff no.1), Smt.Lakshmamma (Plaintiff no.2) and Smt.Chikkolamma (Plaintiff no.3). Specific case of plaintiffs is that father of propositus was tenant in respect of ‘A’ schedule property and after his death, propositus continued tenancy and thereafter when Smt.Gowramma filed Form no.7 and obtained grant, it was for and on behalf of joint family. As against said claim, defendants, who are husband and daughter of Smt.Gowramma contend that though propositus was tenant under landlord, due to ill- health he surrendered tenancy. Thereafter, Smt.Gowramma and her husband began residing with propositus and plaintiffs. In order

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to perform marriage of plaintiffs, ancestral lands of defendant no.1 situated in Kondapur Village, Channapatna Taluk were sold and Smt.Gowramma obtained tenancy of ‘A’ schedule property from it's owner for livelihood. Therefore, when she filed application for grant of occupancy rights, it was in individual capacity and granted to her as such.

¶213

But as noted above, there was no evidence led to substantiate surrender of tenancy by propositus and securing individual tenancy. Contents of Ex.D1, would indicate that Smt.Gowramma had stated that since 45 years, her father i.e. propositus was cultivating ‘A’ schedule property as tenant and that owner had executed lease agreement in favour of propositus. Land Tribunal order also records her statement that in record of rights name of grandfather and her brother were entered.

¶214

Defendant no.2 examined as DW.1 though deposed in terms of written statement averments, admitted that among applicants named in Ex.D1, Sri.Thimmaiah s/o Late Sri.Doddathammaiah referred to her mother’s brother. It was elicited that copy of statement given before Land Tribunal was not

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produced. Suggestion that though her mother had sought for grant of occupancy rights jointly with her brother - Sri.Thimmaiah, is not denied . DW.1 further admits that in Ex.D1, name of her mother and Sri.Thimmaiah were mentioned.

¶218

Apart from above material, it has been unequivocally

¶219

pleaded by defendants that after death of propositus, there was partition between her and her brother Sri.Thimmaiah in which, items no.2 to 4 of ‘B’ schedule properties were allotted to her share while item no.1 to Sri.Thimmaiah. It was also pleaded that said Sri.Thimmaiah had left home and was unheard of since then, after being unable to repay loan taken by him from friends and relatives and prior to that, he had relinquished his rights/share in favour of Smt.Gowramma. Therefore, all suit properties were her absolute properties. But as noted by both Courts, neither partition nor release deed were produced. But fact that defendant claimed partition of ‘B’ schedule properties with her brother Sri.Thimmaiah would only go to substantiate plaintiffs claim that they were joint family properties. If she was not part of joint family of propositus, there was no reason for her to enter into partition with

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Sri.Thimmaiah, that too excluding other siblings. Therefore, merely on ground that she had filed Form no.7 for grant of occupancy rights and Land Tribunal had granted occupancy rights in her name would not render granted land as her exclusive property. Elicitation of statement during cross-examination of PW.1 that Form no.7 was filed by Smt.Gowramma and Land Tribunal had granted occupancy rights in her individual name, premium was paid by her etc., have to be understood in context.

¶223

There is yet another contention urged in support of substantial question of law, namely that at time of grant of occupancy rights by Land Tribunal, plaintiffs were ineligible for grant – they being married daughters and not being in personal cultivation of ‘A’ schedule property. To substantiate said contention, defendants relied upon decisions of Hon’ble Supreme Court in

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Jayamma, Kanna Timma Kanaji Madiwal, Vithal Dattatreya

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Kulkarni , as well as decision of Hon’ble High Court of Allahabad in case of Nirankar and Ors. Reliance is also placed on decision in Gian Devi Anand for proposition that provisions of special statute regarding tenancy would themselves govern inheritance of tenancy

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and personal law of succession would not be applicable. Said contention is sought to be fortified by contending that during life time of propositus (who died in year 1962), marriage of plaintiffs took place. Further, KLR Act made provision for inheritance of tenancy for first time only by amending Act no.1 of 1974, w.e.f 01.03.1974.

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For said contention reference to following provisions

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was made:

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Section 2(12) “family” means,— (a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;

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(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;

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(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and

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(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;

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Section 2(17) “joint family” means in the case of persons governed by Hindu Law, an

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undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence;

¶239

Section 2(34) “tenant” means an agriculturist who cultivates personally the land he holds on lease from a landlord and includes,—

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(i) a person who is deemed to be a

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tenant under section 4;

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(ii) a person who was protected from eviction from any land by the

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(iia) a person who cultivates personally any land on lease under a lease created contrary to the provisions of section 5 and before the date of commencement of the Amendment Act.

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(iii) a person who is a permanent tenant; and

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(iv) a person who is a protected tenant.

¶246

Explanation.—A person who takes up a contract to cut grass, or to gather the fruits or other produce of any land, shall not on that account only be deemed to be a tenant;

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Section 21. Sub-division, sub-letting and assignment prohibited.—

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(1) No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid:

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Provided that nothing in this sub-section shall affect the rights, if any, of a permanent tenant:

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Provided further that if the tenant dies,—

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(i) if he is a member of a joint family, the surviving members of the said family, and

¶254

(ii) if he is not a member of a joint family, his heirs, -shall be entitled to partition and sub-divide the land leased, subject to the following conditions:—

¶255

(a) each sharer shall hold his share as a separate tenant;

¶256

(b) the rent payable in respect of the land leased shall be apportioned among the sharers, as the case may be, according to the share allotted to them;

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(d) if such area is less than a fragment the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds;

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(e) if any question arises regarding the apportionment of the rent

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payable by the sharer it shall be decided by the Tahsildar:

¶263

Provided that if any question of law is involved the Tahsildar shall refer it to the Court. On receipt of such reference the Court shall, after giving notice to the parties concerned, try the question as expeditiously as possible and record finding thereon and send the same to the Tahsildar. The Tahsildar shall then give the decision in accordance with the said finding.

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(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for a tenant who is a soldier in service in the Armed Forces of the Union or a seaman to sub-let the land held by him as a tenant.

¶265

(3) Notwithstanding anything contained in sub-section (1), it shall be lawful for a tenant to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a financial institution, a cooperative land development bank, a cooperative society, a company as defined in section 3 of the Companies Act, 1956 in which not less than fifty one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both, for development of land or improvement of agricultural practices; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be

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attached and sold and the proceeds to be utilised in payment of such loan.

¶269

Section 24. Rights of tenant to be heritable.—Where a tenant dies the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death.

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Since propositus died in year 1962, before coming into

¶271

force of KLR Act, (which was on 02.10.1965) bar under Section 24 against succession to tenancy by married daughters would not be applicable, in any case, since Smt.Gowramma was also married prior to coming into force of KLR Act. Defendant no.2 examined as DW.1 admitted that in Ex.D1, name of her mother’s brother Sri.Thimmaiah was also mentioned as one of applicants. In absence of clear denial of suggestion that her mother Smt.Gowramma had sought for grant of ‘A’ schedule property jointly with her brother Sri.Thimmaiah and also admitted that Ex.D1 mentioned name of Sri.Thimmaiah along with her mother, grant of occupancy rights can only be held to be in favour of joint family.

¶272

Therefore, neither trial Court nor first appellate Court committed any error in holding that ‘A’ schedule property was

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granted in favour of Smt.Gowramma for herself and on behalf of joint family.

¶276

Insofar as ‘B’ schedule properties, while plaintiffs claimed same to be ancestral joint family properties, defendants specifically pleaded that in family partition between Smt.Gowramma and her brother Sri.Thimmaiah, items no.2 to 4 of ‘B’ schedule properties were allotted to her share while item no.1 was allotted to share of her brother. It was also pleaded that unable to clear loan borrowed from friends and relatives, Sri.Thimmaiah left home and was unheard of since and further that he had earlier executed release deed relinquishing his share in favour of Smt.Gowramma. However, no evidence was led to substantiate said assertion. Therefore, even said properties would have to be held as jointly family properties. Hence, other question is also held in negative.

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In view of above conclusions, substantial question of law is answered as follows:

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As Land Tribunal did not decide, whether occupancy rights claimed by Smt.Gowramma was for and on behalf of joint family, jurisdiction of civil Court was not ousted

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and neither trial Court nor appellate Court committed any error while deciding that occupancy rights granted to Smt.Gowramma would enure to benefit of all joint family members. Consequently, following:

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ORDER

¶283

Appeal is dismissed with costs.

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Sd/JUDGE

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psg*/GRD

Sri Thammaiah v. Smt Muthamma

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Sri Thammaiah v. Smt Muthamma

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