Dismissed

Sri Mahalingappa v. Sri Jayanna

Karnataka HC9 Feb 2024RSA/101/2024

Case brief

AI extract

What is this about?

In a regular second appeal regarding partition of agricultural lands and a residential house, the High Court of Karnataka dismissed the appeal. The court held that the properties remained joint family property as they were cultivated by the common family members, and the grant of occupancy rights to the appellant did not extinguish the joint interest.

What did the court decide?

The appeal was dismissed with no error or irregularity found in the lower courts' judgment.

Sri Mahalingappa Vs Sri Jayanna — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:5671 RSA No. 101 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 101 OF 2024 (DEC/PAR)

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BETWEEN:

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SRI MAHALINGAPPA S/O LATE KARIBASAPPA AGED ABOUT 55 YEARS AGRICULTURIST R/O DODDAGHATTA VILLAGE MADADAKERE HOBLI HOSADURGA TALUK

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CHITRADURGA DISTRICT - 577 527.

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…APPELLANT

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(BY SRI. GOPALAKRISHNAMURTHY C.,ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SRI JAYANNA S/O LATE KARIBASAPPA AGED ABOUT 67 YEARS AGRICULTURIST

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R/O NAKIKERE HOBI HOSADURGA TLAUK CHITHRADURGA DISTRICT - 577 527.

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SMT. DEVAMMA D/O LATE KARIBASAPPA W/O LOKAPPA AGED ABOUT 61 YEARS R/O DODDAGHATTA VILLAGE

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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MADADKERE HOBLI HOSADURGA TALUK CHITHRADURGA DISTRICT - 577 527.

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SRI. THIPPESWAMY S/O LT KARIBASAPPA AGED ABOUT 55 YEARS R/O DODDAGHATTA VILALGE MADADKERE HOBLI HOSADURGA TALUK CHITHRADURGA DISTRICT - 577 527.

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SMT. BHAGYAMMA D/O LATE KARIBASAPPA W/O BHYRAPPA AGED ABOUT 53 YEARS R/O NAKIKERE VILLAGE MADADKERE HOBLI HOSADURGA TALUK CHITHRADURGA DISTRICT - 577 527.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.05.2023 PASSED IN RA.NO.14/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE DN JMFC, HOSADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.02.2021 PASSED IN O.S.NO.199/2015 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HOSADURGA.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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JUDGMENT

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This appeal is by the defendant No.1 being aggrieved

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by the judgment and decree dated 25.02.2021 passed in O.S.No.199/2015 on the file of the Principal Civil Judge & JMFC, Hosadurga (hereinafter referred to as 'Trial Court' for short) which judgment is confirmed by the judgment and order dated 24.05.2023 passed in R.A.No.14/2021 on the file of Senior Civil Judge and JMFC, Hosadurga (hereinafter referred to as 'First Appellate Court' for short).

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The above suit in O.S.No.199/2015 is filed by the plaintiff/respondent seeking relief of declaration, partition and separate possession of the suit schedule properties consisting of two agricultural lands and a residential house. It is the contention of the plaintiff that plaintiff and defendants are the children of one late Karibasappa and late Siddamma. That suit schedule properties are joint family properties of the plaintiff and the defendants. That the father of the plaintiff late

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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Karibasappa and his brother Thyrappa have acquired the agricultural properties in Sy.Nos.75/2 and 77/3 long ago being tenants. That during the lifetime of father of the plaintiff and his uncle they had partitioned the property in which the item No.1 of the suit schedule property had fallen to the share of the father of the plaintiff. That father of the plaintiff had been in possession and enjoyment of the suit schedule properties. Upon his demise the plaintiff and the defendants continued to be in possession and enjoyment of the suit property.

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That the defendant No.1 being the head of the family and being educated, with the permission of the plaintiff and other defendants had filed a petition before the Assistant Commissioner, Chitradurga seeking an order for mutation of the suit schedule properties in his name from the name of Sri. Jagadguru Murugarajendra Mahaswamiji Bruhanmutt, Chitradurga. That the said application was allowed, properties was mutated in the name of the defendant No.1. Based on which plaintiff and

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5 - NC: 2024:KHC:5671 RSA No. 101 of 2024

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defendants have been in possession and enjoyment of the suit schedule properties. That since the relationship between the plaintiff and defendants were strained, plaintiff requested for partition which was refused, constraining him to file partition in the suit.

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That defendant No.1 and defendant No.4 appeared and defendants 2 and 3 did not appear and were placed exparte. That the defendant No.1 in his written statement admitted the relationship and also admitted that the Assistant Commissioner, Chitradurga considering his application had granted the land in his favour. However, he denied that the property was in possession of the plaintiff and defendants. It is specifically contended by the defendant No.1 that the said land had been sold by Karibasappa and Thyrappa in favour of Sri. Jagadguru Murugarajendra Mahaswamiji Bruhanmutt, Chitradurga in whose name the revenue entries were effected and the Swamiji of the said mutt was the absolute owner of the property. It is his contention that his uncle Tyrappa had

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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been cultivating the item Nos. 1 and 2 of the suit schedule properties as a tenant and he was giving food grains to the Mutt every year.

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That he filed application seeking for grant of occupancy rights and the same was favoured by the Assistant Commissioner. He further contended that the plaintiff was married to one Sarojamma from Nakikere village and he has been residing in Nakikere village for the past 35 to 36 years. That the father-in-law has several properties in Nakikere village and plaintiff had settled down in the said village. Thus he contends that the plaintiff is a permanent resident of Nakikere village and he

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has been enjoying more than 5 acres of land belonging to his father-in-law. He further contended that he has developed the suit land at his own cost by planting Banana and Areca nuts plants and he has spent about 7 to 8 lakhs in developing of the land. That he has performed marriages of his sisters. As such he is the absolute owner

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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of the property and the property is not the joint family ancestral property. Hence, sought for dismissal of the suit.

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Trial Court based on the aforesaid pleadings framed the following issues.

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"1. Whether the plaintiff proves that, suit schedule properties are joint family properties of himself and defendants?

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2. Whether plaintiff proves that, he is having 1/5^th share in the suit schedule properties?

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3. Whether the defendant No.1 proves that, suit property earlier belonged to Sri. Jagdguru Murugharajendra Mahaswamiji of Chitradurga which was granted in favour of defendant No.1?

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4. Whether the defendant No.1 prove that, he was in possession and enjoyment of the suit schedule property?

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5. Whether the plaintiff is entitled for the relief as sought in the suit?

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6. What order decree?".

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and recorded the evidence. On appreciation of material evidence Trial Court answered the issue Nos. 1, 2 and 5 in

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the affirmative and issue Nos. 3 and 4 in the negative and consequently decreed the suit with cost holding that the plaintiff is entitled for 1/5^th share in the suit schedule

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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properties. Aggrieved by the same, defendant No.1 preferred regular appeal in R.A.No.14/2021 before the First Appellate Court. That the First Appellate Court framed the points for consideration and on appreciation of the matter, the First Appellate Court dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, defendant No.1/appellant is before this Court.

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Sri.Gopalakrishnamurthy C, learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted that

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(a) land never remained family properties upon the

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sale of the same in the year 1953 in favour of Sri. Jagadguru Murugarajendra Mahaswamiji Bruhanmutt, Chitradurga. He further submits that appellant/defendant No.1 was cultivating the land on his own and he had made application before the Assistant Commissioner for grant of occupancy rights as he was the tenant under Sri. Jagadguru Murugarajendra Mahaswamiji Bruhanmutt,

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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Chitradurga. That considering the entitlement of the appellant/defendant No.1, Assistant Commissioner has granted the occupancy rights in his favour vide order dated 20.02.2002.

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(b) Learned counsel for the appellant emphatically submits that the grant made in favour of the appellant was for his separate and individual usage and not for the family. The Trial Court has taken note of the fact that the entire tax being paid by the appellant alone.

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(c) He submits that grant was not for the benefit of the family. According to him once the family property was sold and said sale not having been challenged by the plaintiff the Trial Court and the First Appellate Court erred in holding the properties to be the joint family properties.

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Learned counsel for the appellant in support of his contention submitted that once the land is granted upon application filed under Form No.7 by the defendant it ought to have been treated as separate property of the appellant. Hence he submits that the appeal gives raise to

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10 -

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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substantial question of law warranting consideration at the

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hands of this Court.

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9. Learned counsel for the appellant has relied

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upon the following judgments in support of his case;

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1. PRAKASH BHARMU CHANDGADE V. SOU SUVAMA SIKANDAR KANE AND OTHER reported in 2018 (1) AKR 455

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2. BASAVA DEVADIGA & ORS. VS. SRI ANANDARAYA PATALI & ORS., reported in (ILR 1998 KAR 2265)

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3. BALAWWA AND ANOTHER VS. HASANABI AND OTHERS reported in (2009) 9 SCC 272.

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Heard. Perused the records.

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It is not in dispute that suit schedule properties originally belonged, owned and possessed by Karibasappa father of the plaintiff and defendants. It is also not in dispute that said properties were allotted to the share of

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Karibasappa in a partition that had taken place between Karibasappa and his brother Tyrappa, who in turn had got

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the property from their forefathers. It appears that there

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was a sale of the suit schedule properties made in the year

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11 -

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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1953 in favour of Jagadguru Murugarajendra Mahaswamiji Bruhanmutt. However, records reveal that possession of the property continued with the family of Karibasappa. That Trial Court and the First Appellate Court have found that property remained family property and was in cultivation of Karibasappa till his demise and thereafter his children. Even according to the case of the defendant No.1, upon demise of Karibasappa the property was being cultivated by their mother and thereafter by the defendant No.1.

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Trial Court at paragraph 14 of its judgment has taken note of order dated 20.02.2022 passed by the Assistant Commissioner while considering the application filed by the defendant No.1, following is recorded;

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"«ZÁgÀuÉ ªÀÄvÀÄ ¥Àj²Ã®£ÉAiÀÄ ¸ÀAzsÀ¨sÀðzÀ°è ¥ÀæPÀgÀtzÀ°è F PÉ¼ÀPÀAqÀ CA±ÀUÀ¼ÀÄ ¸ÀàµÀÖªÁVgÀÄvÀÛzÉ. ¥Àæ²ßvÀ d«ÄÃ¤UÉ 1953-54£ÉÃ ¸Á°¤AzÀ®Æ CªÀgÀÄ fÃªÀAvÀ EgÀÄªÀªÀgÉUÉ vÀzÀ£ÀAvÀgÀ CªÀgÀ ªÀÄPÀÌ¼ÀÄ PÀAzÁAiÀÄªÀ£ÀÄß PÀnÖgÀÄvÁÛgÉAzÀÄ PÀAzÁAiÀÄ gÀ²Ã¢ ºÁdgÀÄ¥Àr¹gÀÄªÀ zÁR¯É¬ÄAzÀ ¸ÀàµÀÖ¥ÀnÖgÀÄvÀÛzÉ." ¨sÀÆ¸ÀÄzsÁgÀuÉ PÁAiÉÄÝ 1961gÀ ¥ÀæPÀgÀt CfðzÁgÀgÀÄ ¨sÀÆ ¸ÀÄzsÁgÀuÉ PÁAiÉÄÝ eÁjUÉ §gÀÄªÀ ¥ÀÆªÀðzÀ°è CAzÀgÉ 01.03.1974 QÌAvÀ ªÀÄÄAzÉ¬ÄAzÀ®Æ ¥Àæ²ßvÀ d«ÄÃ¤£À UÉÃtÂzÁgÀgÉAzÀÄ ªÀÄvÀÄÛ ¥Àæ²ßvÀ d«ÄÃ¤£À ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀ ºÉÆA¢zÀÝ£ÉA§ÄzÀ£ÀÄß PÀAzÁAiÀÄ E¯ÁSÉAiÀÄ ¥ÀºÀtÂ ¥ÀwæPÉUÀ¼À£ÀÄß ¥Àj²Ã°¹zÁUÀ 1970-71 jAzÀ ºÁUÀÆ CzÀQÌAvÀ

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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Trial Court and First Appellate Court having

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taken note of this aspect of the matter have come to just

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conclusion that land was in possession and enjoyment of the family of the plaintiff and defendants. Though, learned counsel for the appellant emphatically submits that Trial Court and the First Appellate Court have not appreciated

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the fact of sale having been made in favour of Sri. Jagadguru Murugarajendra Mahaswamiji Bruhanmutt, Chitradurga, it is necessary to note that defendant No.1 in his application filed before the Tribunal had arrayed the said Mutt as the respondent and had claimed that land was

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being cultivated by his father and uncle during their lifetime and thereafter by their children. Defendant No.1

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13 -

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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himself having pleaded so and the said plea having been made against the Mutt the so called purchaser of the property, defendant No.1 cannot try to take advantage of the sale deed on the premise that said sale has not been challenged. Thus findings of facts recorded as above by the Tribunal and Trial Court and First Appellate Court cannot be found fault with and interfered under Section 100 of CPC.

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Besides it is settled principle of law that grant of

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the land made in favour of one of the members of the joint family would enure to the benefit of the other members of

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the family. In the light of fact and circumstances of this matter, where the land was admittedly cultivated by the father and the uncle of the plaintiff and defendants and thereafter their mother, indicating existence of jointness in enjoyment of the suit schedule properties the said principles will squarely apply to the facts of this case. Though, learned counsel for the appellant has relied upon

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NC: 2024:KHC:5671 RSA No. 101 of 2024

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the citations as narrated hereinabove in the facts and circumstances of the same are not applicable to the case inasmuch admittedly the Tribunal has considered the application of the defendant and granted occupancy rights solely on account of the fact that the said land was in cultivation of Karibasappa the father of the plaintiff and defendants untill his death, thereafter by his children. In that view of the matter contention of the appellant/defendant No.1 that he alone was cultivating the land and grant was in his name and in his individual capacity cannot be countenanced.

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No error or irregularity can be found with the judgment and decree and order passed by the Trial Court and the First Appellate Court. No substantial question of law would arise in the matter. Accordingly, the appeal is dismissed.

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Sd/JUDGE

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RU, List No.: 2 Sl No.: 21

Sri Mahalingappa v. Sri Jayanna

Case brief

What is this about?

What did the court decide?

Sri Mahalingappa v. Sri Jayanna

Case brief

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