Purchasers appealed concurrent decrees granting the plaintiff a 1/3rd share in ancestral land, contending occupancy rights were exclusively conferred on defendant No.1 by the land tribunal. The High Court held the grant enured to the joint family's benefit and dismissed the appeal for want of a substantial question of law.
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 1000 OF 2017 (DEC/INJ)
BETWEEN:
Digitally signed by YASHAVANT NARAYANKAR
Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
BOTH ARE RESIDENTS OF KANKANAWADI, RAIBAGH TALUK, BELAGAVI DISTRICT-591222.
(BY SRI SABEEL AHMED, ADVOCATE FOR SRI A.S.PATIL, B.K.ACHAR AND SRI. G.A. SRIKANTE GOWDA, ADVOCATES)
AND:
…APPELLANTS
SMT. DODDAWWA W/O LATE KAREPPA LAXMAN BELLARI, AGED ABOUT: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: KANKANAWADI, TQ: RAIBAG, DIST: BELAGAVI-591222.
…RESPONDENTS
(BY SRI BHARATI G. BHAT, ADVOCATE FOR R1 AND R3; SRI BAHUBALI B. KANABARAGI AND VITTHAL S. TELI, ADVOCATE FOR R1 AND R3(NOC NOT OBTAINED) SMT. SHAILA S. BELLIKATTI, ADVOCATE FOR R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.04.2017 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, AT RAIBAGH IN R.A.NO.29/2016, CONFIRMING THE JUDGMENT AND DECREE DATED 29.02.2016 PASSED BY THE I ADDITIONAL CIVIL JUDGE (JR.DN.) AND JMFC, AT RAIBAGH IN O.S.NO.340/2008 IN DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION TO 1/3RD EXTENT IN THE SUIT SCHEDULE PROPERTY, CONTRARY TO THE RELIEF OF DECLARATIOIN AND PERMANENT INJUNCTION CLAIMED BY THE PLAINTIFF IN THE SUIT SCHEDULE PROPERTY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
the original propositus, has three sons Lavappa (plaintiff), Kareppa (defendant No.1) and Kushappa (husband of defendant No.2 and father of defendant No.3). Defendant Nos.4 and 5 are purchasers of the land from defendant No.1. Therefore, on this factual matrix, plaintiff has filed suit claiming his 1/3rd share in the suit schedule land. Therefore, filed suit by calling it the nature of suit for declaration and injunction but virtually the suit is filed for partition claiming 1/3rd share.
is exclusive to defendant No.1 by the land tribunal and he has sold the property to the defendant Nos.4 and 5 through registered sale deed for valuable consideration and thus denied the case of the plaintiff.
Addl.Issue:
record has decreed the suit thereby declaring and granting
1/3rd share to the plaintiff. The trial Court assigned reasons that the suit schedule land being joint family and ancestral property was being cultivated during the lifetime of propositus-Laxman as name of Laxman is appearing from the year 1974-75, 1995-96 and 2007-08. Therefore, formed opinion that the land was being cultivated during the lifetime of father of plaintiff and defendants, as reflected in the revenue records and also in Form No.7 filed for request of granting occupancy rights wherein it is stated that names of plaintiff and deceased-Kushappa were also given at column of any other particulars and land tribunal held that defendant No.1 is having two other
brothers, therefore defendant No.1 as Karta of Hindu Joint Family was conferred occupancy rights. Therefore by assigning these opinions, granted occupancy rights though in the name of defendant No.1, but is enuring to the benefit of joint family. Thus, decreed the suit by granting 1/3rd share to the plaintiff.
NC: 2024:KHC-D:12673 RSA No. 1000 of 2017
benefit of joint family, therefore, filed suit for claiming his 1/3rd share in the suit land.
other properties, but plaintiff is not claiming partition of the properties, which itself proves that defendant No.1 is exclusive owner of the suit land and accordingly he has sold the property to the defendant Nos.4 and 5 and defendant Nos.4 and 5 are bonafide purchasers. Hence, prays to allow the appeal.
at column 9 and 12 and other particulars and land tribunal in the order Ex.P11 has observed that defendant No.1 being Karta of Hindu Joint Family, therefore, granted occupancy rights enuring benefit of joint family. Therefore, from the evidence on record, it is proved that grant of occupancy rights is to the benefit of family of plaintiff and defendant Nos.1 to 3 but not exclusively alone to defendant No.1. Therefore, both the first appellate Court and the trial Court have correctly assessed evidence on record and granted 1/3rd share to the plaintiff and defendant No.3 each by holding the sale executed by defendant No.1 in favour of defendant Nos.4 and 5 is not binding on them but is only binding on defendant No.1 and defendant No.1(a).
defendant No.1 but not on the plaintiff and defendant No.3. Though it is contended by defendant Nos.4 and 5 that defendant No.1 being Karta of Joint Family had sold out land for family necessities but that is not proved. Thus, the sale deed executed by defendant No.1 is in deprivation of right of plaintiff and defendant No.3. Therefore both the
first appellate Court and the trial Court are correct in holding plaintiff and defendant No.3 are entitled 1/3rd share each and the sale executed by defendant No.1 in favour of defendant Nos.4 and 5 is not binding on them. Therefore, appeal is found to be lacking merit to consider
on its merit but much less no substantial question of law is involved in the appeal to consider. Therefore, the appeal is
liable to be dismissed. Accordingly, the same is dismissed.
Sd/(HANCHATE SANJEEVKUMAR) JUDGE
List No.: 2 Sl No.: 4
KGK CT:GSM
2 issues framed by the court
Whether occupancy rights granted in the name of defendant No.1 enure to the benefit of the joint family or are exclusive to him?
Does the second appeal raise any substantial question of law against concurrent findings of fact?
1 provisions across 1 enactments
SHESHAGIRI RAO
SHANKAR RAO
LAVAPPA LAXMANH BELLARI
KAREPPA LAXMAN BELLARI (by L.R. DODDAWWA)
MEENAKSHI
HANCHATE SANJEEVKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
