Dismissed

C Ramaiah v. Chaluvamurthy

Karnataka HC19 Mar 2024RSA/93/2018

Case brief

AI extract

What is this about?

Second appeal by defendant against decree declaring plaintiff absolute owner of 30 guntas based on a family partition and granting injunction. The court held Sections 132/133 of the Karnataka Land Reforms Act did not bar the suit since the Tribunal grant was not under challenge, upheld the first appellate court's findings on partition and family benefit of the occupancy-rights grant, and dismissed

What the court decided

AI extract

C Ramaiah Vs Chaluvamurthy — Partition | Karnataka HC (2024)

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NC: 2024:KHC:11270 RSA No. 93 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 93 OF 2018 (DEC/INJ)

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BETWEEN:

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C RAMAIAH

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S/O LATE MARICHANNAPPA AGED ABOUT 73 YEARS R/AT SOMANAHALLI VILLAGE UTTARAHALLI HOBLI BENGALURU SOUTH TALUK - 560 085.

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…APPELLANT

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(BY SRI. M.B. RAJASHEKAR., ADVOCATE)

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AND:

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CHALUVAMURTHY

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SINCE DECEASED BY HIS LRS

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

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LAKSHMIDEVAMMA 1. W/O LATE CHALUVAMURTHY AGED ABOUT 67 YEARS, R/AT NO.836, 5TH CROSS, 5TH MAIN, M.C.LAYOUT, VIJAYANAGAR, BENGALURU-560 040.

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VASANTHAKUMARI D/O LATE CHALUVAMURTHY AGED ABOUT 51 YEARS R/AT NO.24, 1ST CROSS, 2ND PHASE,MIG COLONY, BASAVESHWARANAGAR, BENGALURU-560 079.

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NC: 2024:KHC:11270 RSA No. 93 of 2018

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SURESH KUMAR S.C. S/O LATE CHALUVAMURTHY AGED ABOUT 50 YEARS R/AT NO.836, 5TH CROSS, 5TH MAIN, M.C.LAYOUT, VIJAYANAGAR, BENGALURU-560 040.

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…RESPONDENTS

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(BY SRI. B RAMESH.,ADVOCATE FOR R1 TO R3)

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THIS RSA IS FILED UNDER SEC.100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 28.06.2017 PASSED IN RA NO.263/2012 ON THE FILE OF THE VII ADDL. DISTRICT AND SESSIONS JUDGE, BANGALORE (R) DISTRICT BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 10.01.2011 PASSED IN OS NO.75/2005 ON THE FILE OF THE PRL. II CIVIL JUDGE (JR.DN) BANGALORE RURAL DISTRICT, BANGALORE.

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

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JUDGMENT

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This appeal is by the defendant aggrieved by the judgment and decree dated 28.06.2017 passed in R.A.No.263/2012 on the file of VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore (hereinafter referred to as 'First Appellate Court' for short)

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by which, the First Appellate Court while allowing the appeal filed by the plaintiffs has set aside the judgment

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NC: 2024:KHC:11270 RSA No. 93 of 2018

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and decree dated 10.01.2011 passed in O.S.No.75/2005 on the file of Principal II Civil Judge (Jn.Dn), Bangalore Rural District, Bangalore (hereinafter referred to as 'Trial Court' for short).

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The above suit in O.S.No.75/2005 is filed by Sri. Chaluva Murthy-plaintiff against Sri.C.Ramaiah-the defendant seeking relief of declaration that he is the absolute owner of the suit schedule property and for consequential relief of permanent injunction. It is his case that plaintiff and the defendant are the brothers, being sons of one late Marichannappa. That in the year 1976 there was a partition between the sons of Marichannappa as per the partition deed dated 15.06.1984. That on the said date of partition deed, land in Sy.No.83/1 was divided equally between the plaintiff and the defendant each being entitled for 30 guntas of land. As such, the plaintiff has been in possession and enjoyment of the property which is described in the plaint as plaint schedule property. That

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defendant had filed an application for grant of occupancy rights before the Land Tribunal, which was allowed and occupancy rights were granted in favour of defendant in respect of suit schedule property. That pursuant to said order, defendant cannot claim exclusive right and possession over the suit schedule property. That the defendant attempted to interfere with the peaceful possession and enjoyment of the plaint schedule property by the plaintiff.

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That defendant who appeared in response to summons, filed written statement and admitted the relationship between them and also admitted the plea with regard to the partition that had taken place between them in the year 1976. However, he denied the ownership and possession of the plaintiff over the suit schedule property. It is the contention of the defendant that he had made an application for grant of occupancy rights before the Land Tribunal in respect of suit schedule property. That as per

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the order dated 26.10.2004 occupancy rights was granted in his favour in his individual capacity. Pursuant to the said order defendant has been in possession and enjoyment of the property as absolute owner. That he has made improvement upon the land. Hence, he sought for dismissal of the suit.

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On the basis of the pleadings, Trial Court framed the following issues for its consideration;

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"1. Whether the plaintiff proves that he is the absolute owner of suit schedule property by virtue of partition deed dated 15.06.1984?

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2. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property and the defendant is illegally interfering with his possession?

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3. Whether the defendant proves that the Land Tribunal has confirmed the occupancy right in respect of Sy.No.83/1 in his favour as tenant and as such this court has no jurisdiction to adjudicate the matter pertaining to the order of Tribunal as contended in para 7 of written statement?

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4. Whether the defendant proves that the plaintiff is lunatic and he has no locus standi to file this suit independently without appointing the amicus cure?

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5. Whether the plaintiff is entitled for the relief sought?

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6. What order or decree?"

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One Sri. S.C.Suresh Kumar, power of attorney

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holder of plaintiff examined as PW.1 and plaintiff also examined 3 more witnesses as PWs.2 to 4 and exhibited 18 documents marked as Ex.P1 to Ex.P18. Defendant examined himself as DW.1 and exhibits 21 documents marked as Ex.D1 to Ex.D21.

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On appreciation of material evidence the Trial Court answered the issue Nos. 1 to 5 in the negative and consequently dismissed the suit. Being aggrieved by the same, plaintiff preferred regular appeal in R.A.No.263/2012. That Chaluva Murthy-plaintiff passed

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away during the pendency of the regular appeal. That his legal representatives namely, his wife and children are brought on record.

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First Appellate Court considering the grounds

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urged in the memorandum of appeal framed the following points for its consideration;

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"1. Whether the impugned judgment and decree passed by the trial court is perverse, capricious, illegal and liable to be set aside?

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2. Whether the interference by this appellate court is necessary?

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3. What Order"?

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and on re-appreciation of the evidence answered the point

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Nos. 1 and 2 in the affirmative and point No.3 in the negative and consequently allowed the appeal setting aside the judgment and decree passed by the Trial Court and decreed the suit as prayed for declaring the plaintiff to be the absolute owner of the suit schedule property and consequently granted relief of permanent injunction. Being aggrieved by the same, present appeal by the defendant.

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This Court by order dated 02.08.2023 framed the following substantial questions of law for its consideration;

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"(i) Whether the First Appellate Court committed an error in not considering Section 132 of the Karnataka Land Reforms Act and whether it requires interference?

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ii) Whether the First Appellate Court committed an error in coming to the conclusion that the property which is in question is the property of the family and not exclusive property of the appellant herein and committed an error in reversing the finding of the Trial Court ignoring the material on record.?"

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Sri.M.B.Rajashekar, learned counsel for the appellant reiterating the grounds urged in the

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memorandum of appeal submitted that;

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(a) the property measuring 1 acre 21 guntas of land is the subject matter of the order dated 26.10.2004 passed by the Land Tribunal as per Ex.D5. Said order was passed upon the application filed by the defendant as per Ex.D1 in Form No.7A.

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(b) Taking through the contents of the order at Ex.D5, learned counsel for the appellant pointed out

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that plaintiff herein had filed an application to implead in the said proceedings and the said application filed by the plaintiff was rejected. He

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further submits that considering the long standing possession of the defendant over the suit schedule property, occupancy rights were granted in his favour. That there has been no challenge to the order rejecting the application for impleading filed by the plaintiff and the same has attained finality. He further submits that property in respect of which the grant is made on 26.10.2004 could not have been subject matter of a partition on 15.06.1984.

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(c) It is his further submission that any question or challenge to the grant of occupancy rights made in favour of defendant ought to have been under the provisions of Karnataka Land Reforms Act before the appropriate authority and same could not have been raised by filing a suit by the plaintiff as sought to be

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done in the instant case. Such a suit is expressly barred under the provisions of Sections 132 r/w Section 133 of the Karnataka Land Reforms Act, 1961.

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(d) He also refers to the Section 44 of the Karnataka Land Reforms Act to submit that once the land vested with the Government all right, title and interest with any person claim thereof stands effaced. As such, any prior claim being made by the plaintiff is of no avail.

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(e) He refers to the judgment of the Apex Court in the case of R. Ravindra Reddy and others vs.

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H.Ramaiah Reddy and others reported in (2010)

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3 SCC 214 and referring to paragraph 36 thereof submits that the provisions of Section 133 of the Act expressly bars the jurisdiction of the civil court to entertain the suit of this nature. He submits that the Trial Court has rightly appreciated this aspect of the matter. However, the First Appellate Court ignored the statutory bar contained in the Act and erroneously proceeded to adjudicate the matter without having jurisdiction. Hence, he submits that

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substantial question of law No.(i) be answered in favour of the appellant.

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(f) As regards the substantial question of law No.(ii) is concerned, he submits that the defendant has been in possession of the suit schedule property on his own and he has cultivated and developed the property for over 30 years. Defendant made an application under the relevant provisions of the Land Reforms Act on 14.01.1999. Considering his case independently the Land Tribunal came to the conclusion that defendant had established his rights on his own without aid and assistance of the family members, as such it was the absolute property of the defendant and none-else, other than the defendant is having any share, right, title and interest over the same. Thus, he submits that First Appellate Court further erred in considering the suit schedule property to be the joint family property ignoring the material evidence placed on record. As such, he

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seeks substantial question of law No.(ii) be answered

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in favour of the appellant/defendant as well.

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(g) Pointing out the date of stamp paper at Ex.P2 which is dated 29.01.1985 and date of the partition as mentioned therein as 15.06.1984, learned counsel submitted that the said document was brought up for the purpose of the case and that the same was rightly appreciated by the Trial Court and as such the First Appellate Court could not have relied upon the same to decree the suit.

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Per contra, Sri.B.Ramesh, learned counsel for the respondent/plaintiff submits that;

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(a) the suit schedule property originally belonged to PW.4 namely, Sri. Muniyappa. That the father of the plaintiff and defendant had entered into an agreement with said Muniyappa. That the father of the plaintiff has been in possession of the said land and was cultivating the same during his lifetime.

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However, father of the plaintiff and defendant Marichannappa had not made application as required under the Act seeking grant of occupancy rights.

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(b) Referring to Ex.P2- a partition deed, learned counsel for the respondent/plaintiff submits that apart from suit schedule property other family properties were subject matter of the said partition. He points out that subject land was divided into two portions, 30 guntas of land was allotted in favour of the plaintiff and another 30 guntas of land was allotted in the share of the defendant along with other properties. He further submits that the said partition deed has been acted upon by the parties by selling other lands which were allotted to their names.

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(c) He further submits that other brothers of the plaintiff and the defendant namely PW.2 and PW.4 have entered the witness box and had confirmed the execution of a partition deed and have also

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confirmed the allotment of 30 guntas of land in favour of the plaintiff.

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(d) Adverting to the issue with regard to discrepancy in the date of stamp paper and date of partition, learned counsel for the respondent submitted that the partition had taken place much prior to the date of the stamp paper shown in Ex.P2. What was recorded is the incident of partition which had taken place prior in time. In other words, he submitted that Ex.P2 is a memorandum of partition which had taken place on earlier point in time and

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was reduced by writing by virtue of Ex.P2. He submits that defendant also has derived the benefit of said deed of partition by selling land in Sy.No.112 which was allotted to his share, in terms of deed of sale Ex.P14 dated 04.12.1995 in favour of one Vishwas Kadam. He submits that First Appellate Court has taken note of this conduct of the parties

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giving effect to the partition and has rightly come to

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the conclusion about the validity of the partition.

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(e) It is his submission that the revenue records in the nature of RTCs produced as Ex.P4 for the year 1966-67 reflects the name of the Marichannappa at Col. No.12(2). He also submits that after the partition the names of the plaintiff as well as defendant were also reflected in RTC as per Exs.P6 to P9.

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(f) Referring to the mahazar produced at Ex.P10 he

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submits that at the relevant point in time the concerned revenue officer had drawn the mahazar in which there is categoric reference of both plaintiff and defendant being in possession of the suit schedule property. He submits that after the demise of the father of the plaintiff and the defendant, since an application required under the provisions of Section 77A of the Karnataka Land Reforms Act, 1961 had not been filed before the Land Tribunal,

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defendant had filed an application. Taking undue advantage of the situation and that he had made the claim in his name exclusively.

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(g) He submits that upon learning about the same, plaintiff had made an application to implead, which was rejected only for the reasons that plaintiff ought to have filed application within time and that his claim based on the partition may have to be adjudicated before the Trial Court. He submits that Ex.D3 which is an order passed by the Tribunal in rejecting the application is dated 11.10.2002 of the plaintiff. He submits that the said application did not

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adjudicate upon the rights of the parties.

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(h) As regards the issue of substantial question of law No.(i) is concerned, counsel for the respondent /plaintiff submits that plaintiff has neither challenging the validity or otherwise the grant made in favour of

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the defendant nor he is questioning the nature of the land. It is his case that plaintiff is seeking declaration

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of his right simply based on the deed of partition as per Ex.P2 and nothing else. As such he submits that jurisdiction of the Trial Court is not excluded. Thus, he submits that substantial question of law No.(ii) be answered in favour of the plaintiff and seeks for dismissal of the appeal.

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Heard. Perused the records.

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The suit is one for declaration of title based on the partition dated 15.06.1984.

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Perusal of the plaint averments, relief sought therein and evidence lead in by the parties, it is clear that there has been no dispute or issue raised in the suit with regard to validity or otherwise of the grant made in favour of the defendant. The subject matter of the suit and cause of action is also not the one which falls within the four corners of provisions of Sections 132 and 133 of the Karnataka Land Reforms Act, 1961.

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Sections 132 and 133 of the Karnataka Land

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Reforms Act, 1961 read as under;

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"132. Bar of jurisdiction. (1) No civil court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by [x x x x], the Deputy Commissioner, (an officer authorised under sub-section (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83,] "[the Tribunal] [the Tahsildar], the Karnataka Appellate Tribunal or the State Government in exercise of their powers of control.

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(2) No order of [x x x x], the Deputy Commissioner, [an officer authorised under subsection (1) of Section 77, the Assistant Commissioner, the prescribed authority under Section 83,] [the Tribunal] [the Tahsildar], the Karnataka Appellate Tribunal, or the State Government made under this Act shall be questioned in any civil or criminal court.

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133. Suits, proceedings, etc., involving questions required to be decided by the Tribunal.-( 1) Notwithstanding anything in any law for the time being in force.-

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(i) no Civil or Criminal Court or officer or Authority shall, in any suit, case or proceedings concerning a land, [x x x x] decide the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March 1974;

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(ii) such Court or officer or Authority shall stay such suit or proceedings in so far as such

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question is concerned and refer the same to the Tribunal for decision;

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(iii) all interim orders issued or made by such Court, officer or Authority, whether in the nature of temporary injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be;

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(iv) the Tribunal shall decide the question referred to it under clause (i) and communicate its decision to such Court, officer or Authority. The decision of the Tribunal shall be final.

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(2) Nothing in sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub-section.]"

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The reliance placed on by the counsel for the

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appellant of the judgment of the Apex Court in the case of

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R Ravindra (supra) is of no avail as the facts involved in

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the said case are distinguishable from the one involved in the present case. Facts involved in the said case are that apart from seeking partition and separate possession and there is a prayer for declaration that the order passed by

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the Land Tribunal granting the land was illegal and not binding on the plaintiff and their inheritance right, title of the suit schedule property. It is under those

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circumstances, the Apex Court has come to the conclusion such a relief cannot be asked for or granted in view of Sections 132 and 133 of the Karnataka Land Reforms Act and such a relief would be granted by the Land Tribunal under the special statute and not by Civil Court. Which is not the case at hand. As such, there is no error committed by the First Appellate Court. Substantial question of law No.(i) is answered accordingly.

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The Trial Court taking into consideration of the

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fact that the grant of occupancy rights was made in favour of the defendant in terms of order dated 26.10.2004 as

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per Ex.D5 has come to the conclusion that when the land was granted in favour of the defendant subsequent to partition of the year 1984, there is no question of subject land belonging to the plaintiff and that since grant was made in favour of the defendant, it is for his exclusive benefit and not for the benefit of the plaintiff. Thus, beginning on this premise the Trial Court has appreciated

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entire evidence on record and has come to the conclusion that claim made by the plaintiff based on the partition deed of the year 1984 that is prior to the date of grant, is of no avail and has accordingly declined to accept the evidence of the witnesses resulting in dismissal of the suit.

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The First Appellate Court on the other hand has taken into consideration that father of the plaintiff and defendant namely, Marichannappa was in possession and enjoyment of the suit schedule property and his name was being reflected in Col.no.12(2) of the revenue records at Ex.P6 to P9 from the year 1969-70 till 1980-81. The First Appellate Court has also appreciated the fact that the defendant has not produced any acceptable piece of material evidence to show that he was cultivating the land exclusively in its individual capacity. Referring to this aspect of the matter, First Appellate Court has come to the conclusion that application for grant of occupancy rights made by the defendant before the Land Tribunal in Form No.7A was not in his individual capacity but claiming rights

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through and under his father Marichannappa. Thus, the First Appellate Court has held that the grant made in favour of the defendant, would enure to the benefit of the family members.

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The Apex Court in the case of N.PADMAMMA AND OTHERS VS. S RAMAKRISHNA REDDY AND OTHERS reported in (2015) 1 SCC 417 , has held that privilege and pre-existing rights, title and interest in respect of Inam land would devolve upon all the heirs in equal shares.

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As regards the partition is concerned, the First Appellate Court has taken into consideration that defendant though has disputed the factum of partition as Ex.P2, has indeed sold some of the portions of the property which was allotted to him in terms of Ex.P14 the sale deed dated 16.11.1995 and in the said sale deed defendant has referred to the partition having taken place between the parties on 15.06.1984 as per Ex.P2. Thus,

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First Appellate Court has come to the conclusion that defendant cannot blow hot and cold at the same time while on the one hand denied the partition dated 15.06.1984 and on the other hand, sold the family property that was allotted to his share based on the said partition deed.

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The First Appellate Court has also taken note of the date of the deed of partition and the other evidence lead in by the none other than the brothers of the plaintiff and defendant who are examined as PW.2 and P3 to come to the conclusion that Ex.P2 is a memorandum of partition that had taken place prior in time. Further referring to the law applicable to Palupatti and requirement of registration thereon, the First Appellate Court has come to the conclusion that said document did not warrant any registration as the same was an understanding between the parties regarding their pre-existing rights.

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As noted above, the plaintiff has sought for his right based on the partition deed which has been even acted upon by the defendant by selling portions of the property which was allotted to him under the said partition, as already noted above. As such the substantial question of law raised is answered in the negative and the First Appellate Court has committed no error in decreeing the suit and same warrants no interference.

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As already noted above, the subject land was in possession of Marichannappa, the father of the plaintiff and defendant between the years 1969 and 1981 and thereafter pursuant to the deed of partition, names of the plaintiff and defendant were entered into the revenue records which are reflected in Exs.P4 to P9 and Survey mahazar conducted as per Ex.P10 also establish the fact of plaintiff and defendant are being in joint possession of the property.

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In the over all circumstances of the matter even

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though this Court is of the considered view that First Appellate Court is justified in coming to the conclusion that even though an application for grant was made by the defendant in his individual name, such grant would enure to the benefit of the family members and in view of the evidence lead in by the PW.2 and PW.3 who are the brothers of plaintiff and defendant confirming, accepting and admitting the partition and allotment of 30 guntas of land in favour of the plaintiff, no further consideration of the matter is required with regard to the entitlement of the plaintiff to the extent of 30 guntas of land. In that view of the matter, substantial question of law No.(ii) is also answered accordingly. The appeal is therefore dismissed.

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Sd/JUDGE

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RU, List No.: 1 Sl No.: 42

C Ramaiah v. Chaluvamurthy

Case brief

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What the court decided

C Ramaiah v. Chaluvamurthy

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