Smt. Mehaboobi, W/O. Rasool Jamadar, Vs Shri. Badasha Balu Jamadar

SMT. SHAHANAJBI 1A. SALEEM WANTAMURE, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: C/O. SALEEM BABURAO WANTAMURE @ KHAN, LAXMIPURI, INFRONT OF HARIHAR HIGH SCHOOL, KOLHAPUR- MAHARASTRA STATE.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.22 12:57:55 +0530

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SHRI. GULAB RASOOL JAMADAR, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: MAMADAPUR K.L, TALUKA CHIKODI, DIST: BELAGAVI.

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SHRI. SHIKANDAR RASOOL JAMADAR, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: MAMADAPUR K.L, TALUKA CHIKODI, DIST: BELAGAVI.

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SHRI. RASHEED RASOOL JAMADAR AGE: 42 YEARS, OCC: AGRICULTURE, R/O: MAMADAPUR K.L,

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TALUKA CHIKODI, DIST: BELAGAVI.

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…APPELLANTS

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(BY SRIYUTHS. SOURABH HEGDE AND SHAFIAHAMAD B SHAIKH, ADVS)

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AND:

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SHRI. BADASHA BALU JAMADAR AGE: 70 YEARS, OCC: AGRICULTURE, R/O: MAMADAPUR K.L, TALUKA CHIKODI, DIST: BELAGAVI.

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SHRI. APPASAHEB BALU JAMADAR, AGE: 64 YEARS, OCC: AGRICULTURE, R/O: MAMADAPUR K.L, TALUKA CHIKODI, DIST: BELAGAVI.

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…RESPONDENTS

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(NOTICE TO R1 & R2 ARE SERVED)

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THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE

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JUDGMENT & DECREE DTD:23.02.2017 PASSED IN O.S.NO.109/2007 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, CHIKODI, BY DECREEING THE SUIT AND AWARDING 1/3^RD SHARE EACH IN THE SUIT SCHEDULED PROPETLY.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER :

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Regular First Appeal is filed by the appellants challenging the judgment and the preliminary decree dated 23.02.2017 passed in O.S.No.109/2007 by the learned Principal Senior Civil Judge, Chikodi.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendants and the respondents were the plaintiffs.

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Brief facts, leading rise to the filing of this regular first appeal, are as follows:

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The plaintiffs filed a suit against the defendants for the relief of partition and separate possession. It is the case of the plaintiffs that one Appa was the head of the family of the plaintiffs and the defendants. Appa had three sons, namely, Balu, Jahgali and Suleman. Balu had three sons namely, Rasool, Badasha and Appasaheb. Badasha

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and Appahaseb are the plaintiffs. Balu died on 02.12.1953, leaving behind his children as his legal heirs. After the demise of Balu, Rasool, being the elder son, was appointed as Sanadi by the Assistant Commissioner, Chikodi, vide order dated 04.09.1954. The elder brother Rasool started rendering the services of Sanadi on behalf of the entire family. After the introduction of the Karnataka Village Offices Abolition Act, 1961, the suit lands given to the family of the plaintiffs and the defendants, came to be vested in the Government. Thereafter, the suit lands were re-granted to the family of the plaintiffs and the defendants by the Assistant Commissioner by order dated 28.09.1970, and the order passed by the Tahasildar, Chikodi dated 17.10.1970, in the name of the elder son

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Rasool, enure to the benefit of the junior members of the family. The plaintiffs and their brother Rasool were the

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tenants in common and are in joint possession and cultivation of the suit lands. Till today, there is no partition by metes and bounds amongst the plaintiffs and their

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brother. The elder brother of the plaintiffs, i.e., Rasool,

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died in 2007. The defendants, being the legal heirs of Rasool, taking undue advantage of the entry of their father’s name alone in the revenue records, to the suit lands, are acting adverse to the interest of the plaintiffs in the suit lands. The plaintiffs requested the defendants to effect partition and separate possession, but the defendants refused to effect partition in the suit properties. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.

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Defendant No.4 filed a written statement

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denying the averments made in the plaint. It is contended that the plaintiffs have not given the details of the death of the Balu and Rasool, and they have not mentioned the name of the wife of Balu, and the date of her death. The deceased Rasool and defendant No.1 Mahaboobi had no son by the name Baksh. The deceased Rasool had a daughter by the name Shahanaz. The plaintiffs have not shown her name in the genealogy, and she was not

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impleaded as a party to the suit. Hence, the suit filed for partition and separate possession is not maintainable for non-joinder of necessary parties. It is denied that Balu Appa Jamadar and his sons Rasool, Badasha and Appasaheb are all members of the family and were living jointly. It is contended that suit lands came to be regranted in favour of Rasool, and it is denied that it was granted enure to the benefit of any members of the family, except Rasool Balu Jamadar. It is contended that the plaintiffs have no right, title or interest over the suit schedule properties. It is contended that the plaintiffs have suppressed the true and material facts and have filed a false and vexatious suit against the defendants. The suit lands are the inam lands. The Assistant Commissioner, Chikodi vide order dated 04.09.1954 appointed the predecessor of the defendants by the name Rasool Balu Jamadar as Sanadi to render service to the Government. The suit lands were given to him in lieu of the service rendered to the Government. The name of Rasool Balu

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Jamadar was entered as per M.E.No.1084 of Mamadapur

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K.L, in the record of rights of the suit lands on 12.11.1955. It is contended that the deceased Rasool was personally cultivating the suit lands as the absolute owner.

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The plaintiffs have never come into possession of the suit lands or any portion of them in any capacity, since they have no semblance of right over the same.

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On coming into force of the Karnataka Village

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Offices Abolition Act, 1961, the suit lands stood

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transferred to and vested in the Government under Section 4 of the Act. The deceased Rasool Balu Jamadar

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submitted an application to the Assistant Commissioner, Chikodi by crediting the occupancy price equal to the three times the assessment, on 08.01.1968. The Assistant Commissioner, Chikodi, after holding an enquiry, by order dated 28.09.1970 re-granted the suit lands in the name of Rasool Balu Jamadar. Thus, Rasool became the absolute

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owner of the suit lands and was in exclusive possession of the same, and he was paying the tax to the Government.

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It is contended that the deceased Rasool had sunk an

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open well in the suit land bearing R.S.No.45, and subsequently laid a pipeline by raising a loan from the Corporation Bank, Nippani Branch. He has laid the pipeline

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to connect both the suit lands and was growing irrigated crops in both the suit lands. Rasool died intestate on 11.05.2007, leaving behind his wife, i.e., defendant No.1 Smt.Mehaboobi, and children, i.e., defendant Nos. 2 to 4 and defendant No.1A, and they have succeeded to the suit lands and other properties held by him. They are in actual and exclusive possession of the suit lands and house properties. It is contended that VPC No.237 situated at Mamadapur K.L. village was owned by Rasool Balu Jamadar and it is still standing in the name of the deceased Rasool Balu Jamadar. The defendants have constructed a farmhouse on the land bearing R.S.No.15,

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situated at Mamadapur K.L. village, and they are in occupation, as the absolute owners. The suit lands are the self-acquired properties of the deceased Rasool Jamadar,

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as they were granted by the Government to him for the

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service rendered by him as Sanadi. The plaintiffs have no right to claim a share in the suit lands. Hence, he prays to dismiss the suit.

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The trial Court, based on the pleadings of the

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parties, framed the issues as follows:

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(1) Whether the plaintiffs prove that, the suit properties are enjoyed as tenants in common?

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(2) Whether defendants prove that, the suit properties are granted by the Government as the late Rasool was the Sanadi?

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(3) Whether plaintiffs prove that, the suit properties are regranted in the name of late Rasool, which enures benefit of the all family members?

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(4) Whether suit is bad for non-joinder of necessary party?

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(5) Whether suit is not properly valued and court fee paid is insufficient?

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(6) Whether the plaintiffs are entitled for partition and separate possession of 2/3^rd share in the suit proerties?

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(7) What order or decree?

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To substantiate their case, plaintiff No.1

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examined himself as P.W.1, and one witness was

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examined as P.W.2 and marked 98 documents as Exs.P1 to Ex.P98. In rebuttal, defendant No.2 examined as D.W.1

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and marked 200 documents as Ex.D1 to D200.

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The trial court, after hearing both sides and on assessment of the verbal and documentary evidence, answered issue No.1, 3 and 6 in the affirmative, issue Nos.2, 4 and 5 in the negative, and issue No.7 as per the final order. The suit of the plaintiffs was decreed. It is ordered and declared that plaintiff Nos.1 and 2 are entitled for 1/3^rd share each in the suit properties.

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The defendants, aggrieved by the judgment and the preliminary decree passed in O.S.No.109/2007 by the Principal Senior Civil Judge, Chikodi, filed this Regular First Appeal.

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Notice was issued to the respondents/plaintiffs. Despite service of notice, the plaintiffs remained unrepresented.

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Heard the arguments of the learned counsel for

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the defendants.

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Learned counsel for the defendants submits that Rasool was rendering the services as Sanadi. After the introduction of the Karnataka Village Offices Abolition Act, 1961, the suit lands were vested in the Government, and thereafter, the Assistant Commissioner, Chikodi re-

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granted the suit lands in favour of Rasool in his individual capacity and would not enure to the benefit of the family. He submits that the suit lands are self-acquired properties of Rasool, and the plaintiffs are the brothers of Rasool,

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and they have no right, title or interest over the suit lands. He submits that the plaintiffs are not in joint possession of the suit lands, and the defendants are in possession and cultivation of the suit lands. He submits that the Assistant Commissioner, Chikodi has re-granted the suit lands in favour of Rasool and produced Exs.D186 to 189, which disclose that it was granted in the name of Rasool in his individual capacity and not enure to the benefit of the

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family. He submits that this aspect was not adequately considered by the trial court, and committed and an error in decreeing the suit of the plaintiffs. He submits that the plaintiffs have not challenged the order passed by the Assistant Commissioner, re-granting the suit lands in favour of Rasool. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The points that would arise for consideration

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are;

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1) Whether the defendants prove that the suit properties were re-granted by the Government in the name of late Rasool, and not enure to the benefit of the all family members of the family?

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2) Whether the defendants prove that the judgment and the preliminary decree passed by the trial court is perverse, arbitrary and erroneous?

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3) What order or decree?

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Point No.1.

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There is no dispute regarding the relationship

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between the parties to the suit. The only defence raised by the defendants is that the suit lands were re-granted by the Assistant Commissioner in the name of Rasool in his individual capacity and was not enure to the benefit of all members of the family. The plaintiffs had to prove their case, plaintiff No.1 was examined as P.W.1. He re-iterated the plaint averments in his examination-in-chief, and he also produced documents. Exs.P1 and P2 are the RTC extracts of the suit lands bearing R.S.Nos.15 and 45. Both lands are standing in the name of the deceased Rasool, i.e., the father of defendant Nos.2 to 4. Ex.P3 is the property extract of the suit house bearing VPC No.237 of Mamadapur K.L. This house property is also standing in the name of the deceased Rasool, the eldest son of the propositus Balu. Ex.P4 is the death certificate of Balu Appa Jamadar, which discloses that, he passed away on

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02.12.1953. Ex.P5 is the certified copy of the statement of

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the father of defendant Nos.2 to 4, i.e., Rasool Balu Jamadar. He gave a statement before the Assistant Commissioner, Chikodi, stating that the government proposes to acquire land bearing R.S.No.15 of Mamadapur K.L., i.e., one of the present suit properties. The deceased gave a statement to the revenue authorities that the suit lands bearing R.S.Nos.15 and 45 were owned by his family, consisting of himself and his two brothers. It is also stated that he is in possession and enjoyment of 1/3^rd share to an extent of 3 acres 20 guntas. Ex.P6 is the receipt for having paid the occupancy price in respect of the suit lands, after the same was re-granted. Exs.P7 to P10 are the tax paid receipts of the suit house property issued by the Gram Panchayat, Mamadapur K.L. village. Ex.P11 is the certified copy of M.E.No.752 of Mamadapur K.L. village. Ex.P11(a) is its Kannada translation of Ex.D11 dated 13.12.1947. The father of the propositus Balu, named Appa, was the Sanadi. He was rendering the

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Sanadi service to the erstwhile Government and the said

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Appa has resigned from the post of Sanadi and he has requested to appoint his eldest son Balu as Sanadi. The Assistant Commissioner, Chikodi, has appointed the propositus Balu as Sanadi, and the suit lands are the Sanadi Inam lands. Since 1947, the propositus Balu has been rendering the Sanadi service to the Government and he has been enjoying the suit lands. Ex.P12 is the certified copy of M.E.No.1084 and Ex.P12(a) is its Kannada translation. It discloses that Balu Appa Jamadar was the Sanadi, and after his demise, his eldest son Rasool, i.e., husband of defendant No.1 and father of defendant Nos.2 to 4 was appointed as Sanadi by the Assistant Commissioner, Chikodi. Exs.P13 to 25 are the Registration Forms for the members of the sugar factory of Shri Halasidhanath Sahakari Sakkare Karkhane, Ltd., Nippani.

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The name of plaintiff No.2 has been registered as a member of the sugar factory. Exs.P26 to 63 are the Cane Weighment Slips issued by Shri Halasidhanath Sahakari

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Sakkare Karkhane, Ltd., Nippani. Exs.P64 to 87 are the Cane Weighment Slips issued by the aforesaid sugar factory. Exs.P88 to 91 are the Cane Weighment Slips issued by Venkateshwara Power Project Ltd., for the year 2006-07. Exs.P92 and 93 are the Field Slips issued by Kagal Taluka Sahakari Sakkare Karkhana Ltd., Ex.P95 is the certified copy of M.E.No.1781 of Mamadapur K.L. Ex.P96 is the certified copy of a plaint in O.S.No.107/2004 filed by the father of defendant Nos.2 to 4 against one Janbeg Shamsher Jamadar and others. Ex.P97 is the certified copy of M.E.No.403 of Mamadapur K.L. village. Ex.P98 the certified copy of Form No.6 of land bearing R.S.No.249/1C of Mamadapur K.L. village. Exs.P97 and 98 were marked during the cross-examination of D.W.1.

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During the cross-examination, it was elicited that, Appa was rendering service as Sanadi. He had three sons, namely, Balu, Jahgali and Suleman. He pleads ignorance that Appa had submitted a resignation for rendering service as Sanadi. After submitting resignation,

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Balu was appointed as Sanadi. Balu had three sons, namely, Rasool and the plaintiffs. He claims ignorance that the said lands were re-granted in the name of Rasool, and it was re-granted only in favour of Rasool in his individual capacity and not enure to the benefit of all members of the family.

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Plaintiffs also examined one witness as P.W.2.

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He has deposed that, he is a permanent resident of Mamadapur K.L. village and knows the parties to the suit. He deposed that the plaintiffs have filed this suit for partition and separate possession of the legitimate share

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in all the suit properties against the legal representatives of their deceased brother Rasool. He deposed that he is an agriculturist and owner of the agricultural land bearing R.S.No.18/2, and his land is adjacent to the suit land of the plaintiffs and the defendants on the southern side. The plaintiffs and the defendants land bearing R.S.No.15 is measuring 7 acres 31 guntas of Mamadapur village and the said land can be seen from standing in his land. The

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said land is situated on the side of the NippaniIchalakaranji main road. He deposed that, he has to approach his land by the road situated to the east of the plaintiffs and the defendant’s land. He further deposed that the plaintiffs and the defendants have also constructed their residential house in the said agricultural land and are permanently residing there. The plaintiffs and the defendants are cultivating the land bearing R.S.No.15, and they have laid a pipeline of about 1500 feet from the well situated in the said land and have converted the said land into a bagayat land. They are growing crops such as, sugarcane, tobacco, soybean, and jowar in the land bearing R.S.No.15. He deposed that the plaintiffs and the defendants are jointly cultivating the suit lands. During the cross-examination, nothing has been elicited from the mouth of this witness to disbelieve his evidence.

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In rebuttal, defendant No.2 was examined as D.W.1. He deposed that the sons of Balu Appa Jamadar i.e., Rasool, Badasha and Appasaheb, have never held the

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suit properties as joint tenants and have never had joint possession of the suit properties at any point of time. The suit lands have never been re-granted in the name of Balu Appa Jamadar, who was rendering the Sanadi service. As such, the question of tenancy in common in respect of the suit lands, by the plaintiffs along with Rasool, does not arise. He deposed that Balu Appa Jamadar died in 1953 and after his death, Rasool was appointed as Sanadi in his individual capacity. He deposed that the Assistant Commissioner has re-granted the said lands in favour of Rasool. Based on the re-grant, Rasool became the absolute owner of the suit lands, and his name was entered in the revenue records. It is stated that the deceased Rasool Balu Jamadar, during his lifetime had sunk an open well in the suit land bearing R.S.No.45 and subsequently raised loan from the Corporation Bank, Nippani Branch for the pipeline to irrigate both the suit lands into irrigated lands, and was growing irrigated crops like, sugarcane as main crop and also tobacco.

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The defendants, to prove their case produced

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the documents. Exs.D1 to D49 are the RTC extracts of the suit lands from 1958 onwards. Exs.D50 to D66 are the certified copies of the Cane Weighment Slips produced in another suit. Exs.D67 to D71 are the certified copies of Cane Weighment Slips issued by Chatrapati Shahu Sahakari Sakkare Karkhane Ltd., Kagal. Exs.D72 to D124 are also the Cane Weighment Slips issued by the sugar factory for the year 2000 onwards. Exs.D125 to D166 are the Land Revenue Receipts regarding the suit properties. The land revenue regarding these lands has been paid by Rasool Balu Jamadar, i.e., the father of defendant Nos.2 to 4. Exs.D167 to D169 are the Khata Extracts of the suit properties. Exs.D170 to D173 are the tax paid receipts regarding the house properties. Exs.D174 and D175 are the licences issued by the Government for growing tobacco

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in the suit lands. Exs.D176 and D177 are the loan sanctioned letters issued by the Syndicate Bank for the year 1971-72. Ex.D178 is the notice issued by the bank to

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Rasool Balu Jamadar to repay the loan amount for purchasing the pump-set. Ex.D179 is the receipt issued by Bhausaheb B.Ingrole and Company, Kolhapur for the purchase of the pump-set. Ex.D180 is the Cash Credit Memo issued by the said company. Ex.D181 is the certificate issued by Shri Doodhganga Krishna Sahakari Sakkare Ltd., Chikodi, stating that Rasool has availed a loan of Rs.25,000/-. Ex.D182 is the receipt for having repaid the loan. Ex.D183 is the HESCOM receipt regarding the irrigation pump-set in the name of Rasool Balu Jamadar. Ex.D184 is the certified copy of M.E.No.1781, wherein the lands were re-granted by the Government in the name of Rasool Balu Jamadar. Ex.D185 is the certified copy of M.E.No.1084/1, which discloses that the name of Rasool which has been entered as Sanadi of the suit lands, after the death of his father Balu, in 1954. Exs.D186 and

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D187 are the re-grant orders regarding the suit lands. Ex.D188 is the re-grant order in favour of Rasool Balu Jamadar, after the abolition of the Karnataka Village

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Offices Abolition Act, 1961. Ex.D189 is the order of the Assistant Commissioner, Chikodi, dated 28.09.1970. The suit Sanadi Inam lands have been re-granted to Rasool Balu Jamadar, after the abolition of the Mysore Village Offices Abolition Act, 1961. Ex.D190 is the certified copy of the Peta Khata Wahi about the suit lands. Exs.D191 and D192 are the HESCOM bills regarding the pump-set. Ex.D193 is the Survivorship certificate issued after the death of Rasool Balu Jamadar. Ex.D194 is the death certificate of Rasool Balu Jamadar. Ex.D195 is the certified copy of the order of the Assistant Commissioner, Chikodi. Ex.D196 is the order passed by the Deputy Commissioner, Belagavi. Ex.D197 is the certified copy of the order passed by this court in W.P.No.66428/2010 dated 19.10.2010. Exs.D198 and 199 are the certified copies of the judgment and decree passed in O.S.No.107/2004. Ex.D200 is the survivorship certificate.

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During the cross-examination, it was elicited that, earlier Appa was the Sanadi. He resigned and

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thereafter, Balu was appointed as Sanadi. Balu died, leaving behind his three sons, and Rasool being the eldest member of the family, has submitted an application for appointment as Sanadi. Based on the application submitted by Rasool, the suit lands were re-granted in favour of Rasool to enure to the benefit of all the family. There is no dispute that, before the appointment of Rasool as Sanadi, Balu was appointed as Sanadi. After his resignation, his son Rasool was appointed as Sanadi. Appa and Balu were in possession of the suit lands, and after their demise, Rasool and the plaintiffs are in possession of the suit lands and they are cultivating the suit lands jointly. Defendants have produced Exs.D186 to D189 to establish that the suit lands were re-granted in favour of Rasool in his individual capacity and not enure to the benefit of the family. Admittedly, D.W.1 has clearly admitted that Appa and Balu were in possession of the suit lands and they were rendering services as Sanadi. He submits that, after the demise of Balu, Rasool, being the

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elder member of the family, the suit lands were re-granted in favour of Rasool. The re-grant order would enure to the benefit of the family and not in the individual capacity of Rasool.

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Section 4 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act (22 of 1955), Service inam, grant to family in the name of senior member, abolition effect on rights of members of the family under personal law. Sections 4 and 5 of the Karnataka Village Offices Abolition Act, 1961 do not affect the personal law of parties nor deprive junior members from the right to partition. Right of survivorship of a member of joint family is “interest in village office” not excluded by the Act. Junior members of the family also “holders of village office”. After the abolition of the village office and resumption on the re-grant under Section 5, land becomes available for partition. Junior members are entitled to seek partition as per personal law.

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Admittedly, Rasool was the elder member of the

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family, and the plaintiffs are his own brothers. The plaintiffs and the defendants were jointly enjoying the suit properties. The re-grant order passed by the Assistant Commissioner, Chikodi in favour of Rasool also enure to the benefit of all the family members. The trial court considering the entire evidence on record has rightly held that the re-grant order passed by the Assistant Commissioner would enure to the benefit of all the family members, and not in the individual capacity. The junior members of the family are entitled to a share in the suit lands, which were re-granted by the Assistant Commissioner in favour of Rasool. The trial court was justified in answering issue No.3 in the affirmative. I do not find any error in the findings recorded on issue No.3. In view of the above discussion, I answer point No.1 in the

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negative.

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Point No.2.

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From the perusal of the judgment and the preliminary decree, the trial court has considered the entire evidence on records produced by the parties and has rightly recorded its finding that the suit lands were regranted in favour of Rasool also enure to the benefit of all the family members. The defendants cannot deprive the legitimate rights of the plaintiffs for a share in the suit properties. I already recorded a finding in point No.1, that the suit lands are re-granted in favour of Rasool for the benefit of the entire family and not in his individual capacity. Hence, I do not find any error in the judgment and the preliminary decree passed by the trial court. In view of the above discussion, I answer point No.2 in the negative.

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Point No.3.

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