Sri Jayarama Raju Vs Sri a M Narayanaswamy Raju

SRI A M NARAYANASWAMY RAJU S/O LATE MUNISWAMY RAJU AGED ABOUT 75 YEARS R/AT NO.36, MOHITNAGAR FARM, BYRASANDRA, AGRA VILLAGE, TATAGUNI POST, KENGERI HOBLI, BENGALURU – 560 062.

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SRI ANAND N RAJU S/O A M NARAYANASWAMY RAJU, AGED ABOUT 56 YEARS

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SMT SHOBHA D/O A M NARAYANASWAMY RAJU, AGED ABOUT 46 YEARS

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RESPONDENT Nos. 2 & 3 ARE R/AT B.M BYRASANDRA VILLAGE, B M KAVAL, KENGERI HOBLI, BENGALURU SOUTH TALUK – 560 040.

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*Retyped and Replaced vide Chamber order dated:16.10.2025

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SRI V M VISHWANATH S/O SRI MADEGOWDA AGED ABOUT 45 YEARS VADDARAHALLI VILLAGE, CHOTTANAHALLI POST, MALAVALLI TALUK, MANDYA DISTRICT – 571 430.

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SRI S GANGADHAR S/O LATE SIDDALINGAPPA AGED ABOUT 52 YEARS R/AT KONANAKUNTE VILLAGE, KANAKAPURA ROAD, BENGALURU-560 062.

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SMT KAMALA D/O SMT VENKATAMMA AND SHRI CHANGAMARAJU AGED ABOUT 48 YEARS.

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SMT PUSHPA D/O SMT VENKATAMMA AND SHRI CHANGAMARAJU AGED ABOUT 46 YEARS.

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RESPONDENTS 6 & 7 ARE R/AT MANJUNATHA COLONY MARENAHALLI, J.P.NAGAR II PHASE, BENGALURU – 560 078.

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SRI RAVINDRA S/O SMT VENKATAMMA AND SHRI. CHANGAMARAJU

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SINCE DEAD BY HIS LRS ON RECORD I.E., RESPONDENT NO. 9

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(AS PER THE COURT ORDER DATED: 28.08.2023)

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SMT MAHALAKSHMI D/O LATE A M KRISHNAM RAJU AGED ABOUT 44 YEARS. (WRONGLY MENTIONED AS SRI K. KRISHNAM RAJU)

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SRI LAVA KUMAR D/O LATE A M KRISHNAM RAJU, AGED ABOUT 42 YEARS.

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RESPONDENT NOS. 9 & 10 ARE R/AT NO. 66, 21-A MAIN MARENAHALLI, J.P.NAGAR II PHASE, BENGALURU – 560 078.

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SRI M SRINIVASA RAJU S/O LATE MUNISWAMY RAJU AGED ABOUT 68 YEARS. R/AT NO.66,1^ST FLOOR,

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J P NAGAR, BANGALORE-560 078.

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…RESPONDENTS

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(BY SRI. JAYAKUMAR.S.PATIL, SENIOR ADVOCATE APPEARING FOR SRI. PRAVEEN KUMAR NIRVANI, ADVOCATE FOR R-1(A), R-2, R-3 & R-5 SRI. C.S. KANTHARAJU, ADVOCATE FOR R-4)

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(R-6, R-7, R-9, R-10 – SERVED

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(VIDE ORDER DATED: 27.09.2022 SERVICE IS HELD SUFFICIENT) (ORDER DATED: 28.08.2023 R-9 IS TREATED AS LR.S OF DECEASED OF R-8)

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THIS RFA FILED UNDER SEC.96 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.03.2018 PASSED IN OS NO.8050/1999 ON THE FILE OF THE XXII ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION & ETC.,

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THIS APPEAL BEING HEARD AND RESERVED ON 25.04.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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CAV JUDGMENT

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This appeal by the unsuccessful plaintiffs in O.S.No.8050/1999 is directed against the impugned judgment and decree dated 17.03.2018 passed by the XXII Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit filed by the appellants – plaintiffs against the respondents – defendants for partition and separate possession of their share in the suit schedule properties and other reliefs was decreed in part only in respect of Item No.2 of the suit schedule properties and the suit in relation to the remaining Item No.1 and Item Nos. 3 to 11 of the suit schedule properties was dismissed by the trial court.

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Briefly stated the facts giving rise to the present appeal are as under:-

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The plaintiffs instituted the aforesaid suit interalia contending that one Muniswamy Raju was the propositus who died in 1955 and his wife Smt.Subbalakshmamma expired on 22.07.1980. The plaintiffs 1 to 3 are the wife and children of late Krishnam Raju, one of the sons of the aforesaid Muniswamy Raju and

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Subbalakshmamma and plaintiffs 4 to 7 are also the sons of the said Muniswamy Raju and Subbalakshmamma. The 1^st defendant is also one more son of the said Muniswamy Raju and Subbalakshmamma, while defendants 2 and 3 are the children of 1^st defendant. The aforesaid Muniswamy Raju and Subbalakshmamma had a daughter Venkatamma whose children are defendants 6 to 8. Defendants 4 and 5 are said to be alienees in respect of Items 3 to 6 of the suit schedule properties. The other two daughters of Muniswamy Raju and Subbalakshmamma viz., Narayanamma and Lakshmamma died without leaving behind any heirs. It was contended that all the suit schedule properties are joint family properties and since the defendants did not comply with the demand for partition made by the plaintiffs, they instituted the aforesaid suit seeking the aforesaid reliefs.

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2.1 In the first instance, the instant suit was dismissed by the trial court vide judgment and decree dated 12.11.2008 which was assailed by the appellants – plaintiffs before this Court in R.F.A.No.407/2009. By final order dated 03.09.2013, this Court set aside the said judgment and decree passed by the trial court and remitted the matter back to the trial court for reconsideration afresh

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with a direction to the respondents – defendants to file their written statement within a period of three weeks from their date of appearance. However, since the 1^st defendant did not file his written statement within the aforesaid period of three weeks, the written statement filed by him later was rejected by the trial court on 17.11.2014 on the ground that the same was not filed within the period of three weeks as directed by this Court. So also, the written statement of defendants 2 to 5 was taken as ‘not filed’ vide order dated 26.08.2014 by the trial court. Further, though the defendants 2 and 3, sons of 1^st defendant attempted to re-file one more written statement of 1^st defendant on 13.03.2018 which was the same that was sought to be filed by 1^st defendant earlier, even this written statement was not taken on record by the trial court since the request of their father, 1^st defendant had already been rejected earlier and the same had attained finality and become conclusive and binding upon all defendants 1 to 3.

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2.2 Defendants 4 and 5 who claimed to be the purchasers

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filed their written statement disputing the plaint averments and sought for dismissal of the suit. Defendants 6 to 8 have supported

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the claim of the plaintiffs and filed a memo dated 28.08.2017

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stating that they had no objection for the suit to be decreed.

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2.3 Based on the aforesaid pleadings, the trial court framed

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the following issues:-

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“ 1. Whether the plaintiffs prove that suit properties are

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the Joint family properties of the plaintiffs and defendant No.1.?

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2. Whether the plaintiffs have got 1/6^th share each in all the suit properties?

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3. Whether the plaintiffs are entitled to mesne profits in respect of suit properties?

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4. Whether the plaintiffs are entitled to permanent Injunction against defendants as prayed for in the Suit?

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5. What Order is Decree? “

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2.4 The 6^th plaintiff was examined as PW-1 and

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documentary evidence at Exs.P1 to P92 were marked on behalf of the plaintiffs. The 2^nd defendant was examined as DW-1 and Exs.D1 to D27 were marked. The trial court came to the conclusion that out of 11 Items of suit schedule properties, only item No.2 was a joint family property, in which, the plaintiffs were entitled to a share and accordingly, decreed the suit in respect of Item No.2 and

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dismissed the suit in respect of remaining Item No.1 and Item Nos.3 to 11 of the suit schedule properties. Being aggrieved by the

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impugned judgment and decree, insofar as it relates to dismissal of the suit in respect of Item Nos.1 and 3 to 11 of the suit schedule properties, appellants – plaintiffs are before this Court by way of the present appeal.

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Heard learned counsel for the appellants and learned Senior counsel for the respondents and perused the material on record.

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The following points arise for consideration in the present appeal:-

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(i) Whether the trial court was justified in dismissing the suit of the plaintiffs in respect of Item No.1 of the suit schedule properties?

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(ii) Whether the trial court was justified in dismissing the suit of the plaintiffs in respect of Item Nos. 3 to 6 of the suit schedule properties?

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(iii) Whether the trial court was justified in dismissing the suit of the plaintiffs in respect of Item Nos.7 to 11 of the suit schedule properties?

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(iv) Whether the impugned judgment and decree passed by the trial court warrants interference by this Court in the present appeal?

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Re- Point No.1:-

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At the outset, it is necessary to reiterate that the 1^st defendant - Narayanaswamyraju is the father of defendants 2 and 3 and the brother of Krishnamraju whose legal heirs are plaintiffs 1 to 3; plaintiffs 4 to 7 are the brothers of the said Krishnamraju and Narayanaswamyraju; the contesting defendants are defendants 1 to 3 and defendants 4 and 5 who are the alienees in respect of Items 3 to 6 of the suit schedule properties.

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It is a matter of record that initially, the suit was filed by the plaintiffs only as against the defendant No.1(sole defendant). As stated supra, the said suit was dismissed by the trial court vide judgment and decree dated 12.11.2008 and in the appeal preferred by the plaintiffs – appellants herein in R.F.A.No.407/2009, this Court allowed the appeal vide judgment dated 03.09.2013 and remitted the matter back to the trial court for reconsideration afresh in accordance with law and by issuing certain directions as hereunder:-

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“ The plaintiffs are the appellants. The suit for partition came to be dismissed against which this appeal is filed.

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2. It is submitted by the learned counsel that the plaintiffs and the defendants are brothers and sisters and they are living in a joint family. The family property was not partitioned and since the plaintiffs were working elsewhere in different places, the defendant was residing in the village and he was looking after the affairs of the property. Hence the suit was filed for partition of the suit schedule property.

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3. The suit came to be dismissed on the ground that the plaintiffs failed to establish status of the joint family and its properties. The plaintiffs are working in Indian Railway, H.A.L and I.T.I This shows that there was no jointness of the property and family. The ground urged by the appellants is that there was earlier partition and exhibits have been marked in which names of brother and sisters have been referred. The land granted in favour of the defendant was to the family and the evidence adduced by the defendant before the Land Tribunal shows that brothers have not partitioned the property and they are living together. Despite these materials, the court below has dismissed the suit which is an error. The reliance is placed on the judgment reported in ILR 1998 KAR 2655 where it has been held that if the defendant fails to file written statement and participate in the proceedings, the suit of the plaintiff for the purpose of Order 8 Rule 10 and Order 17 Rule 3 of CPC, it is to be presumed case in favour of the plaintiff.

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4. The learned counsel for the defendantrespondent submits that the respondent was not aware about

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the proceedings and out come of the judgment in the suit. They noticed the judgment only when this Court notice has been served on them. The trial court placed them ex-parte. In order to put their defence, he submits to remand the matter reserving livery tot place the evidence and materials.

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5. I have heard both. From the order it is shown that the defendant is placed ex-parte. The submission of the respondent that he noticed about the judgment only when this Court notice has been served on him. The suit of the appellants ahs been dismissed on the ground that they have not satisfied the Court about the status of the family and its property. Though the findings recorded by the Court below are by referring the evidence and materials placed on record is one thing but the fact remains, in the ends of justice, the matter required to be remanded by permitting both the parties to adduced their evidence and place the materials. The judgement relied upon by the appellants, it is held that when the defendants fail to make out their case either by filing written statement or the evidence and materials, the case in favour of the plaintiffs has to be presumed. If this is followed, it definitely deprives opportunity and justice in favour of the defendants. Hence I pass the following:

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ORDER

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The judgment passed by the court below is set aside. The matter is remanded for fresh consideration. The plaintiffs are permitted to adduce further evidence and place on record the additional materials. The defendant is permitted to file written statement within a period of three weeks from the date of appearance before the trial Court and adduce

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evidence and placed on record the materials. The parties are directed to appear before the court below on 11.10.2013.”

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5.1 As can be seen from the aforesaid order passed by this Court, upon remand, this Court directed the 1^st defendant to file his written statement within a period of three weeks from the date of appearance on 11.10.2013. In pursuance of the said remand order, the 1^st defendant did not file his written statement and attempted to file the same beyond the period of six weeks fixed by this Court and the trial court rejected the written statement of 1^st defendant vide order dated 17.11.2014, which attained finality and became conclusive and binding upon the 1^st defendant; if follows therefrom that there was / is no written statement filed by the 1^st defendant in the suit before the trial court.

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5.2 After remand, defendants 2 to 8 were impleaded and while defendants 4 and 5 – alienees filed their written statement and contested the suit, defendants 6 to 8 admitted the claim of the plaintiff by filing a memo dated 28.08.2017 to the effect that they do not have any objection for the suit to be decreed as prayed for by the plaintiffs.

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5.3 Defendants 2 and 3, sons of 1^st defendant also did not file their written statement and the same was taken as ‘not filed’ vide order dated 26.08.2014 passed by the trial court. Subsequently, defendants 2 and 3 attempted to once again present the written statement of 1^st defendant on 13.03.2018 which was also rejected by the trial court.

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5.4 The aforesaid facts and circumstances regarding nonfiling / rejection of the written statement of the contesting defendants 1 to 3 has been recorded / noticed by the trial court at paragraphs-3, 4, 5 and 6 of the impugned judgment and decree. It follows therefrom that the various averments made by the plaintiffs in their suit have not been disputed or denied by defendants 1 to 3, who have not filed their written statement and the pleadings of the plaintiffs clearly remained unchallenged, uncontroverted and unimpeached by defendants 1 to 3 in relation to all the suit schedule properties. In other words, there are absolutely no pleadings on record on behalf of defendants 1 to 3 in the suit and all their attempts were rejected by the trial court.

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5.5 In the backdrop of the aforesaid facts and circumstances, a perusal of the impugned judgment and decree

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dismissing the suit of the plaintiffs in relation to Item No.1 of the suit schedule properties will indicate that under Ex.P19, Item No.1 was sold in favour of the propositus Muniswamyraju on 16.09.1933. As stated supra, the propositus Muniswamyraju and his wife Subbalakshamamma having expired in the year 1955 and on 22.07.1980 respectively, Item No.1 of the suit schedule property has clearly devolved upon all their children including the plaintiffs who would accordingly be entitled to their legitimate share in this property.

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5.6 While dealing with this Item No.1 of the suit schedule property, the sole reason assigned by the trial court in rejecting the claim of the plaintiffs is by coming to the erroneous conclusion that Ex.P19 is a sale agreement which did not relate to this property; the said finding recorded by the trial court is wholly / factually incorrect and erroneous, inasmuch as a perusal of the said sale deed marked as Ex.P19 is sufficient to come to the conclusion that it is a sale deed and not a sale agreement as wrongly held by the trial court.

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5.7 As stated earlier, upon the demise of Muniswamyraju in the year 1955 and his wife Subbalakshmamma on 22.07.1980, this

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Item No.1 of suit schedule property would devolve upon all their heirs including the plaintiffs, who would accordingly be entitled to their legitimate share in this property and failure to appreciate this by the trial court has resulted in erroneous conclusion. Under these circumstances, I am of the view that the impugned judgment and decree passed by the trial court dismissing the suit of the plaintiffs in relation to Item No.1 of the suit schedule property deserves to be set aside and suit of the plaintiffs deserves to be decreed in this regard.

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5.8 It is a matter of record that the suit was filed in the year 1999 and during its pendency, the 1^st defendant appears to have gifted Item No.1 of the suit schedule properties in favour of his wife Smt. Padmavati as per gift deed dated 31.03.2012. It is needless to state that this gift made by the 1^st defendant on 31.03.2012 during the pendency of the suit instituted in 1999 is clearly hit by the doctrine of lis pendens and the principles contained in Section 52 of the Transfer of Property Act and consequently, the said pendente lite transfer of this property would neither be binding upon the plaintiffs nor affect their share in this property. Under these circumstances, the said gift and the contention urged on behalf of

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the defendants in this regard cannot be accepted and the plaintiffs would be entitled to their legitimate share in Item No.1 of the suit schedule properties.

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Accordingly, Point No.1 is answered in favour of the appellants – plaintiffs by holding that they are entitled to 1/6^th share each in item No.1 of the suit schedule properties and the present appeal deserves to be allowed by setting aside the impugned judgment and decree passed by the trial court and by decreeing the suit of the appellants – plaintiffs as prayed for by them in this regard.

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Re-Point No.2:-

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A perusal of the material on record and the impugned judgment and decree will indicate that insofar as Items Nos. 3 to 6 of the suit schedule properties comprising of agricultural lands bearing Sy.No.30 (New No. 30/1 and 30/2), Sy.No.31, Sy.No.32 and Sy.No.36 being agricultural lands are concerned, the trial court rejects the claim of the plaintiffs on the ground that these properties were not joint family properties and that the same are separate and self-acquired properties of 1^st defendant alone by placing reliance on Ex.P30, Order of the Land Tribunal granting occupancy rights in

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favour of 1^st defendant. In this context, the trial court failed to consider and appreciate that though the 1^st defendant had filed application in Form No.7 in the said proceedings before the Land Tribunal, the applicant - Narayanaswamy i.e., 1^st defendant had given a statement / evidence vide Ex.P18 admitting that -himself and his brothers viz., the plaintiffs 4 to 7 and late Krishnam Raju (husband of Plaintiff No.1, father of plaintiffs 2 and 3) were members of HUF/ joint family and that there was no partition/ division between them at that time. In the said statement / deposition of 1^st defendant also admits that he himself and his brothers were cultivating lands jointly.

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6.1 The plaintiffs have also produced the revenue records, in particular Exs.P23 to P26 which indicate that at the time of 1^st defendant filed an application in Form No.7 seeking grant of occupancy rights, the revenue records stood in the name of 1^st defendant and his brothers which would also indicate that all of them were jointly cultivating the lands. Further, in his evidence before the Land Tribunal vide Ex.P58, 1^st defendant also admits that certain joint family properties standing in the name of late Subbalakshmamma (mother of parties) in Sy.No.101 measuring 2

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Acres 24 guntas was acquired under the Land Acquisition Act, 1894 and the compensation was received by the 1^st defendant in 1971-72 which was utilized by him for cultivation/ development / improvement / construction on Item Nos.3 to 6 of the suit schedule properties. In fact, the award passed by CITB, Bangalore shows the name of Anubhavdar as Subbalakshmamma along with Defendant No.1 and plaintiff Nos. 4 to 7 and Krishnam Raju which is pointer to the fact that Item Nos. 3 to 6 which were developed and improved with the aid of joint family funds arising out of acquisition of joint family property were also joint family properties; in other words, the conduct of the parties at an undisputed point in time in utilizing joint family funds received by way of compensation from acquisition of joint family property in land bearing Sy.No.101/2 for the purpose of cultivation / development / improvement / construction etc., of Item Nos.3 to 6 would also indicate that these properties are also joint family properties and were being cultivated by the joint family and that 1^st defendant had filed the application Form No. 7 seeking grant of occupancy rights for and on behalf of the joint family and not in his individual capacity.

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6.2 In the plaint, plaintiffs have specifically contended that Item Nos. 3 to 6 were joint family properties and though occupancy rights were granted in his individual name, the same would enure to the benefit of all joint family members including the plaintiffs. As stated supra, defendant Nos. 1 to 3 have not filed any written statement disputing or denying the plaint averments and the attempts made by defendant Nos.1 to 3 to file their written statement were rejected by the trial court and the said orders have attained finality and become conclusive and binding upon the defendants.

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6.3 It follows therefrom that there is absolutely no denial at all, much less specific denial of the plaint averments that Item Nos. 3 to 6 are joint family properties. In this context, there is gainsaying the fact that it is trite law that no amount of evidence can be looked into in the absence of pleadings and consequently, in the absence of the written statements of defendant Nos. 1 to 3, who have also not adduced any contrast / rebuttal evidence, the sole inference to be drawn from the facts and circumstances of the instant case is by coming to the conclusion that Item Nos.3 to 6 are also joint family properties.

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6.4 In the case of Arikala Narasa Reddy v. Venkata Ram

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Reddy Reddygari - (2014) 5 SCC 31, this Court held as under -

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15. This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been “materially affected”. There can be no dispute to the settled legal proposition that “as a rule relief not founded on the pleadings should not be granted”. Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In the absence of pleadings,

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evidence if any, produced by the parties, cannot be

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considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering re-counting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for declaring the election to be void. The order of re-counting can be passed only if the petitioner sets out his case with precision supported by

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averments of material facts. (Vide Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR 1964 SC 1249] , Bhabhi v. Sheo Govind [(1976) 1 SCC 687 : AIR 1975 SC 2117] and M. Chinnasamy v. K.C. Palanisamy [(2004) 6 SCC 341] .)

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6.5 It is therefore clear that the trial court failed to appreciate that the absence of pleadings / written statement of defendant Nos.1 to 3 would militate against them and the plaintiffs would be entitled to their legitimate share in Item Nos.3 to 6 of suit schedule properties.

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6.6 As stated supra, defendant Nos. 1 to 3 have not set up any defence of any earlier partition between the joint family members prior to application for grant of occupancy rights being filed by the 1^st defendant; so also, defendant Nos. 1 to 3 have not placed any legal or acceptable material to establish that application for grant of occupancy rights was filed by the 1^st defendant in his individual capacity and not on behalf of the joint family; it is well settled that occupancy / tenancy rights granted in favour of any member of a joint family would enure to the benefit of the entire joint family.

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6.7 In the case of B.L. Sreedhar v. K.M. Munireddy - (2003)

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2 SCC 355, the Apex Court held as under:-

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9. First we deal with the stand of the appellant that on regrant benefit enures to the members of the family. Learned counsel for the respondents fairly accepted this legal position and in our view rightly, because of what has been said by this Court in Nagesh Bisto Desai v. KhandoTirmal Desai [(1982) 2 SCC 79] , KalgondaBabgonda Patil v. BalgondaKalgonda Patil [1989 Supp (1) SCC 246] and New Kenilworth Hotels (P) Ltd. v. Ashoka Industries Ltd. [(1995) 1 SCC 161] Therefore, indisputable legal position is that even if grant is made under the Act to any member of the family, the benefit enures to the whole family. Having cleared this legal position, the contentious issues need to be noted. First comes the question whether the rule of estoppel is applicable. The factual background highlighted by the High Court to hold about its applicability is as follows:

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Though the plaintiff was not a party to several proceedings referred to by the parties, the conduct of the plaintiff clearly shows in the background of evidence tendered that he was conscious of the proceedings. One instance in this regard would suffice. Defendant 3 filed an application in Form 7 of the Karnataka Land Reforms Act, 1961 claiming occupancy rights in respect of particular items of agricultural land. Defendants 1 and 2 claimed ownership of the land, they were duly notified and after hearing both sides, the Tribunal allowed the claim of Defendant 3. It was

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brought to the notice of the High Court when challenge was made to the order of the Tribunal, that the plaintiff was one of the members of the Tribunal. He had participated in the proceedings in question though he had retired in the middle. The Tribunal cannot be said to have not been influenced to some extent at least by his presence. The High Court in Writ Petition No. 4430 of 1978 referred to the orders of the Tribunal and came to hold that on the date of hearing the plaintiff was withdrawn from the proceedings. No definite material was placed before it to show as to what was done on the date when the petition had been heard and orders were pronounced. To meet the ends of justice, the High Court quashed the order passed by the Tribunal and directed further inquiry and further directed to render a decision in accordance with law. Undisputedly, the Tribunal reheard the matter and held against Defendant 3. Attempts before the High Court did not bring any result.

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6.8 So also in the case of Annasaheb Bapusaheb Patil and Others v. Balwant Alias Balasaheb Babusaheb Patil (Dead) by Lrs. and Heirs Etc., - (1995) 2 SCC 543 , the Apex Court held as under:-

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8. The same ratio proprio vigore would apply to the facts in this case as well. It is seen that by operation of S.3 Watans have been abolished and all the incidents attached to the watandari including the pre-existing

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custom, operation of law or any decree or order of the Court were nullified by statutory operation. Thereby, the incidents attached to the watan i.e. liability to render service as patel became extinct and the lands became ryotwari lands, office of watan stood extinguished, the lineal primogeniture stood abolished and the land on regrant became the Hindu joint family property held by the watandar for and on behalf of the members of the joint Hindu family. All the members of the family became entitled to claim right to partition by survivorship.

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6.9 In the case of Shivappa Tammannappa Karaban v. ParasappaHanammappa Kuraban and Others-

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1994 AIR SCW 5031 , the Apex Court held as under;

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5. ……This order is consistent with Sec. 5(3). Therefore, the right given to the appellant while making the regrant was only a pre-existing right namely the property attached to the office and shall continue to be enjoyed and belonged to the family and it is impartible by rule of primogeniture. But on account of abolition of the office and grant of ryotwari patta, they became partible subject to the conditions under Section 5(3). We hold that the appellant has no exclusive right to the property and accordingly, we do not find any illegality in the decree for partition granted by the courts below.

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6.10 A Co-ordinate Bench of this Court in the case of

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Imamsa Chandas Gurikar vs. Mohdinsa Nabisa Gurikar – ILR

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2020 KAR 4867 held as under:-

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“30. Having heard Learned Counsel for the parties and on perusal of the material on record as well as the original record, the following points would arise for my consideration:

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(i) Whether the suit schedule lands being attached to office of walikar and regranted to Nabisa under KVOA Act, 1961 would enure to the benefit of all the members of the family of Chandsa?

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(ii) Whether the appellant-plaintiffs are entitled to seek the relief of partition and separate possession in respect of the suit lands and the house properties?

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(iii) Whether the judgment and decree of the trial Court would call for any interference in this appeal?

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(iv) What order?

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XXXXXXXXXXX

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36. Before venturing to answer point No. 1, it would be useful to refer to the decisions cited at the Bar relating to various aspects of the erstwhile village office of walikar held by persons in this part of the State; the emoluments attached to the said office; abolition of the said offices, the consequences following the abolition of the village offices so as to give a finding on two aspects of the matter. Firstly, as to whether the appointment of Nabisa to the office of walikar was exclusive based on his own merit and

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qualification and in his individual capacity (and not based on heredity on the principle of primogeniture) so that the benefits of the said office would not enure to the other members of the family. Secondly, as to whether, the order of regrant of the suit lands made in the name of Nabisa was on the basis that Nabisa only had the right to enjoy the said lands on its regrant and not to the benefit of all other members of the family of Chandsa and that on his demise, the legal heirs of Nabisa only were entitled to succeed to the said lands.

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37. In order to answer the aforesaid aspects, which would arise under point No. 1, it would be useful to encapsulate the ratio of the judgments cited by the Learned Counsel for the respective parties at the first instance.

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38. Learned Counsel for appellants has relied upon the following decisions in support of his submissions

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a) NAGESH BISTO DESAI v. KHANDO TIRMAL DESAI [(1982) 2 SC 79.] , (Nagesh Bisto Desai):

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(i) The aforesaid was a case which arose under the Bombay Parganaand KulkamiWatans (Abolition) Act, 1950 (for short “Act 60 of 1950”). The principal question in controversy in those appeals was, as to, whether, Sections 3 and 4 of the said Act and Sections 4 and 7 of the Bombay Merged Territories Miscellaneous Alienation's Abolition Act, 1955 (for short “Act 22 of 1955”), which provided for abolition of watans and alienations in the merged territories, resumption of watan land and its regrant to the holder for the time being, which brought about a

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change in the tenure or the character of holding as watan land, affected the other legal incidents of the property under personal law.

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(ii) In the said case, the suit was filed inter alia seeking a declaration that the properties described in Schedule B and C appended to the plaint therein, situated in the district of Dharwar, in the State of Karnataka, formed an impartible estate and governed by the rule of lineal primogeniture and that the plaintiff therein being the present holder of the office of Desai was entitled to remain in full and exclusive possession and enjoyment of the suit properties and that the other members of the family had no right, title or interest therein but were only entitled to maintenance and residence. Alternatively, in the event of the Court holding that the properties described in Schedule B, C and D therein were properties belonging to the joint Hindu Family could the plaintiff claim 1/6^th share in the said properties. Plaintiff's father, in that case was the last holder of the office of Desai and plaintiff claimed that he was entitled to remain in full and exclusive possession and enjoyment of the properties as watandar and that other members had no right, title or interest therein except as to maintenance as junior members.

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(iii) Before the Hon'ble Supreme Court it was argued that impartibility of the tenure was not an incident of the grant but the watan was impartible by custom

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and succession to it was governed by the rule of lineal primogeniture. The Hon'ble Supreme Court considered the question, whether impartibility of the estate and the rule of lineal primogeniture by which succession to it was governed made the suit properties self-acquired or exclusive properties of the plaintiff therein and therefore, could not be partitioned by metes and bounds between the members of the joint family. While considering the said question, the Hon'ble Court observed that the grant of watan to the eldest member of a family did not make the watan properties the exclusive property of the person who was the watandar for the time being. The said decision was in the context ofthe rights of persons belonging to joint Hindu family and the Hon'ble Supreme Court observed that the impartibility of the property does not perse destroy its nature as joint family property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence, the estate retains its character of joint family properties and devolves by the general law upon that person who, being in fact and in law joint in respect of estate, is also senior member in the senior line.

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(iv) Relying upon the decision of Privy Council in the case of ANANT BHIKAPPA PATIL v. SHANKAR RAMCHANDRA PATIL, reported in AIR 1943 PC 196, the Hon'ble Supreme Court observed that an impartible estate is not held in coparcenary though it

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may be joint family property It may devolve as joint family property or as separate property of the last male holder. In the former case, it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom e.g. lineal male primogeniture. In the latter case, jointness and survivorship are not as such in point, the estate devolves by inheritance by the last male holder in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom.

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(v) Thereafter, the Hon'ble Supreme Court considered as to whether the estate attached to the office of the watandar was entitled to remain in full and exclusive possession and enjoyment thereof to the exclusion of the other members of the joint Hindu family and held that if the watan land attached to such an office was held to be in full exclusive possession and enjoyment of the watandar to the exclusion of the other members of the joint Hindu family, that would run counter to the scheme of the Bombay Hereditary Offices Act, 1874 (now the Maharasthra Hereditary Offices Act) (also known as “Watan Act”) and is against settled legal principles. The Hon'ble Supreme Court concluded that the right of the plaintiff in that case in the watan property was subject to the rights of the other members of the family. While saying so, definition of watandar under

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Watandar Act, was referred to in the following terms:—

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“‘Watandar’ means a person having an hereditary interest in a watan. It includes a person holding watan property acquired by him before the introduction of British Government into the locality of the watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance. It includes a person adopted by an owner of a watan or part of a watan, subject to the conditions specified in Sections 33 and 35.”

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(vi) After referring to the said definition the Hon'ble Supreme Court noted that if the words used in the definition are strictly and literally construed, it would mean that before a person can be said to be a watandar, he must have a hereditary interest both in the watan property and in the hereditary office, because it is these two that constitute the watan. There is no basis whatever for such a strict construction. The definition is undoubtedly in two parts : the first sets out what ‘watandar’ means and the other, states what is included in it and the question arises whether the primary definition i.e., the meaning portion of it, should be regarded as primary and the inclusive part as illustrative or both the parts should be regarded as constituting one whole definition, the inclusive part being supplementary to the former. After discussing the controversy on the aforesaid two lines of interpretation the Hon'ble Supreme Court noted that Watan Act was designed to preserve the preexisting rights of the members of a joint Hindu

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family. The word ‘family’ is defined in Section 4 of the Watan Act to include “each of the branches of the family descended from an original watandar” and the expression ‘head of a family’ is defined thereinto include “the chief representative of each branch of a family”. Section 4, which defines watandar includes the members of the joint Hindu family and expression of the watan would include the members of the family other than the watandar, who are entitled to remain in possession and enjoyment of the watan property.

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(vii) It was further observed that the commutation of service had not the effect of changing the nature of the tenure and that even after service, the watan office ordinarily survives without liability to perform service, and on that account the character of watan property still remains attached to the grant. But the State Government may abolish the office and release the property from its character as watan property.

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(viii) Further, Act 60 of 1950, had the effect of abolition of the watan, extinction of the office and modification of the right in which the land is held vide Section 3 of the said Act and the same brought about a change in the tenure or character of holding as watan land but they did not affect the other legal incidents of the property under personal law. That sub-Section (1) of Section 4 of the Act 60 of 1950, deals with regrant of watan land, Act 22 of 1955 was on similar terms.

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That the watan lands resumed under the aforesaid Acts had to be regranted to the holder of the watan and he was to be deemed to be an occupant.

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(ix) In this context, the Hon'ble Supreme Court referred to the Watan Act and observed that it contemplated two classes of persons : one is a larger class of persons belonging to the watan families having a hereditary interest in the watan property as such and, the other, smaller class of persons who were appointed as representative watandars and who were liable for the performance of duties connected with the office of such watandars. That it would not be correct to limit the word ‘watandar’ only to the narrow class of persons who could claim to have a hereditary interest both in the watan property and in the hereditary office. Watan property had always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property and were entitled to be called ‘watandars of the same watan’ within the meaning of Watan Act. That being so, the members of a joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being, and therefore the regrant of the lands to the watandar under sub-Section (1) of Section 4 of the Act 60 of 1950 and under Section 3 of Act 22 of 1955 must enure to the benefit of the entire joint Hindu family.

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(x) The Hon'ble Supreme Court further noted that a controversy had arisen as to the purport and effect of the non obstante clause contained in Section 4 of the Bombay Inferior Village Watans Abolition Act, 1958 and ultimately referred to LAKSHMIBAI SADASHIV DATE v. GANESH SHANKAR DATE [AIR 1977 Bom 350 (FB).] , (Lakshmi Bai Sadashiv Date), wherein a Full Bench of the Bombay High Court had upheld the view taken by Malvankar I, in the case of Dhondi VithobaKoli v. Mahadeo Dagdu, [AIR 1973 Bom 323] (Dhondi Vithoba Koli), wherein it was observed that the effect of non obstante clause in Section 4 was to abolish alienation and rights and incidents in respect thereof. The right of a member of joint Hindu family to ask for partition of a joint family property cannot be regarded as a right relating to grant of land as service inam or as an incident in respect thereof. The object of Section 4 was not to affect in any manner rights created under the personal law relating to the parties and if the property belonged to joint Hindu family, then the normal rights of the members of the family to ask for partition were not in any way affected by reason of the non obstante clause contained in Section 4.

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(xi) The Hon'ble Supreme Court accepted the interpretation given by the Bombay High Court on the non obstante clause found in the commencement of Section 4 of the said Act. After

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referring to sub-Section (2) of Section 4 of Act 60 of 1950 and sub-Section (3) of Section 7 of Act 22 of 1955, the Hon'ble Supreme Court observed that the object of the said provisions was to impose restrictions in the matter of alienations. On regrant of the land, the holder is deemed to be an occupant and therefore the holding changes its intrinsic character and becomes ryotwari and is like any other property which is capable of being transferred or partitioned by metes and bounds subject, of course, to the sanction of the Collector and on payment of the requisite amount.

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b) KALGONDA BABGONDA PATIL v. BALGONDA KALGONDA PATIL [1989 Supp (1) SCC 246.] , (Kalgonda Babgonda Patil):

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(i) In the aforesaid case, the Hon'ble Supreme Court considered Bombay Inferior Village Watans Abolition Act, (1958 Act 1 of 1959) in the aforesaid case. That case questioned the judgment of the Division Bench of Bombay High Court, which had dismissed the suit for partition by holding that when watan (inam) rights were abolished all rights including the right of partition also stood abolished. In that case, a contention was raised that despite there being a partition of other properties of the joint family, the watan lands continued to be the hereditary property of the family although according to the custom the watan was only in the name of the senior member of the family as the succession

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according to the custom was in accordance with rule of primogeniture. It was also held in the said case that on the abolition of watans, the watan lands were converted into ryotwari lands and therefore, they become partible. The Hon'ble Supreme Court set aside the judgment of Bombay High Court and held that the watan lands were subject to partition and that the said lands could be partitioned, after they were converted into ryotwari lands.

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c) In SHIVAPPA TAMMANNAPPA KARABAN v. PARASAPPA HANAMMAPPA

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KURABAN [1995 Supp (1) SCC 162.], (Shivappa Tammannappa Karaban):

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(i) The controversy in the aforesaid case was under KVOA Act, 1961, wherein it was held that the right given to the person in respect of regrant is only a pre-existing right namely, the property attached to the office and the same continues to be enjoyed and belongs to the family and it is impartible by rule of primogeniture. But on account of abolition of the office and grant of ryotwari patta, the land becomes partible subject to the conditions under Section 5(3). In that case it was held that there is no exclusive right to the property and there was no illegality in the decree of partition granted by the Courts below.

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b) ANNASAHEB BAPUSAHEB PATIL v. BALWANT ALIAS BALASAHEB BABUSAHEB PATIL (DEAD) BY L.RS. & HEIRS [(1995) 2 SCC 543.] , (Annasaheb Bapusaheb Patil):

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(i) The aforesaid matter arose under the Maharashtra Revenue Patels (Abolition of office) Act, 1962, which came into force on 01.01.1963. Discussing the scheme of the said Act, the question considered was, whether, on regrant made under Section 5(1) of the Act, the attached watan land was characterized as self acquired property of watandar or not. Reference was made to Nagesh Bisto Desai (supra) and also to the effect of abolition and extension and modification by operation of Section 3 of Act 22 of 1955 Act (supra) and to the other decisions referred to above emanating from Bombay High Court and it was held in paragraph No. 10 of the judgment that by virtue of Section 3 of the said Act of 1962, the watans were abolished and all the incidents attached to the watandari including the pre-existing custom, operation of law or any decree of Court were nullified by statutory operation. Thereby, incidents attached to the watan i.e., liability to render service as Patel became extinct and the lands became ryotwari lands, the office of watan stood extinguished, the rule of primogeniture stood abolished and the land on regrant became the Hindu Joint Family property held by the watandar for and on behalf of the members of the joint Hindu family. All the members of the family became entitled to claim right to partition by survivorship and that the right to claim partition would accrue to all members of the family after it is regranted. Of course, in that

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case, the Hon'ble Supreme Court considered the question of adverse possession in light of Article 65 of the Schedule to the Limitation Act, 1963 and held that where possession can be referred to a lawful title, it will not be considered to be adverse and that a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

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e) ABUBAKAR ABDUL INAMDAR (DEAD) BY LRS v. HARUN ABDUL INAMDAR [(1995) 5 SCC 612.] , (A bubakar Abdul Inamdar):

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(i) The controversy in this case again arose under Act 22 of 1955, which was also considered in the case of Nagesh Bisto Desai. In this case, the facts were that on the death of the inamdar the agricultural lands were assigned to his eldest son by certain orders passed by the Ruler of Kolhapur. The said inam lands were impartible and the lands devolved upon the eldest son by the rule of primogeniture. On the enforcement of the 1955 Act, the eldest son of the inamdar, Abubakar was regranted the properties as the watandar. His siblings laid a claim to the said lands as co-heirs of Abubakar taking the plea that by virtue of inheritance they had a share in the property as the original inamdar, Syed Abdulla was the father of Abubakar but the office had devolved on Abubakar being the eldest son. It was contended that the bar of impartibility and the rule of primogeniture fell into insignificance on account of

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the 1955 Act. The suit had been decried even by the High Court.

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(ii) It was contended before the Hon'ble Supreme Court that the parties in that case were Mohamaddens, that the estate of Syed Abdulla, the original inamdar should normally have devolved upon his children in accordance with the shares as defined under the Shariat law. But since the inam lands were impartiable and the services to the Ruler were due from the members of the family through the eldest son by the rule of primogeniture, even then the eldest son was the representative to hold the inam. Once the inam was abolished and regrant was given to Abubakar, the eldest son, the members of the family had a share in the said land as per the law of Shariat. While observing so, the Hon'ble Supreme Court repelled the contention that the legal position would alter if the inamdar was a Mohammedan and the parties seeking succession were Mohammedans and not belonging to a Hindu Joint Family. The Hon'ble Supreme Court emphasized that when Abubakar was confirmed with the inam, there was no distinction created between the Inamdar being a Muslim or a Hindu and that uniformity of tradition in that regard was a good rule of reason and therefore when the land was available for division by way of inheritance, then even if one member of family was conferred with the office of Inamdar, once it was regranted to him, the members of the family could

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seek a share in the said estate on the premise that the conferment of office to only one member of the family was on the basis of right of primogeniture and that the said office was held as a hereditary right.

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f) B.L. SREEDHAR v. K.M. MUNIREDDY [(2003) 2 SCC 355.] ,

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(B.L. Sreedhar):

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(i) The matter arose under the KVOA Act, 1961. It has been held by the Hon'ble Supreme Court that the regrant of the resumed land in the said Act in favour of one of the family members would enure to the whole family but members relinquishing right byword or conduct, in favour of other members, would be bound by estoppel.

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g) K.V.SUDHARSHAN v. A. RAMAKRISHNAPPA [(2008) 9 SCC 607.] ,(K.V. Sudharshan):

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(i) The controversy was considered under the provisions of Mysore (Religious and Charitable) Inams Abolition Act, 1955. In the said case, it was held that respondent No. 1 therein was made Archaka after the death of his father because he was the eldest member of the family. Being the Archaka, he cultivated lands and obtained occupancy rights. In such circumstances, it would be highly unjust to deprive the other members of the family from getting their shares in the said land attached to the office of Archaka and such lands are also available for partition and if the occupancy rights were granted to one of the members of the family, it would not

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disentitle the other members from claiming a right in the said lands.

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h) N. PADMAMMA v. S. RAMAKRISHNA REDDY [(2015) 1 SCC 417.] , (N. Padmamma):

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(i) The question considered was whether the Civil Court had jurisdiction to entertain a suit for partition for division of respective shares amongst the members of a joint family, when in respect of some of the lands, occupancy right had been granted in favour of one of them in terms of the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. While considering the said question, in light of the scheme of the said Act, the Hon'ble Supreme Court held at para-10 that it is well settled principle of law that possession of a co-heir is in law treated as possession of all co-heirs. If one co-heir has come inpossession of the properties, it is presumed to be on the basis of a joint title. A co-heir cannot come in possession adversely to other co-heirs not in possession, merely by any secret hostile animus on his own part and in derogation of the title of other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one ofthem to the knowledge of the other. In that case reliance has been placed on Kalgonda Babgonda Patil and the decision in the case of Nagesh Bisto Desai. The Hon'ble Supreme Court concluded that the grant made in favour of one of the persons of the joint

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family would enure to the other members as the grant is for the benefit of all. That is because the grant made in the name of the watandar did not mean that the property ceased to be joint family property.

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39. Learned Counsel for the appellant has also relied upon the following decisions of this Court:

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a) MOHAMADSA v. ALLISA [(1988) 2 Kant LJ 89.] , (Mohamadsa):

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(i) A Division Bench of this Court considered the controversy under the provisions of the KVOA Act, 1961 in an appeal that arose from the judgment and decree passed in a suit by the Trial Court. The said suit was filed seeking a decree for partition and separate possession of the lands in question. The facts could be noted in detail as the said case also concerned with the office of walikar of the village as in the instant case. The lands were enjoyed by the propositus Maktumsa. He had three sons by name, Madansa, Allisa and Mashaksa @ Mashanna. Madansa had three sons by name Mohammadsa, Hanilsa and Kasimsa. The two other sons of Maktumsa i.e., Allisa and Mashaksa @ Mashanna were the plaintiffs in the suit and the three sons of Madansa were the defendants in the suit. The suit seeking partition and separate possession was resisted by the defendants.

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(ii) The Division Bench considered the consequences of abolition of village office and regrant of the lands

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assigned to the village office by placing reliance on another decision of the division bench of this Court in the case SHIVAPPA FAKIRAPPA SHETSANADI v. KANNAPPA MALLAPPA SHETSANADI [ILR 1987 Kar 3155.] ,” (Shivappa Fakirappa), wherein reference was made to two decisions of the Bombay High Court referred to above namely, Laxmi Bai v. Ganesh, and Nagesh Bisto Desai v. Khando Thirmal, and held that under the Act on the abolition of the village offices, regrant of the land is made to the person who was the holder of the village office immediately prior to date of appointment on payment by or on behalf of such holder to the State Government the occupancy price. The Division Bench quoted from the aforesaid judgments to hold that village office and the suit land annexed to it had been continued to be joint family property till the date on which the village office was abolished and the land was annexed to it was resumed. Further, an ‘interest’ in the village office means that the member of the joint family even though he may belong to a junior branch, had a right to succeed to the office in the event none was available in the senior branch to succeed to the office. Therefore, in the said case it was held that the inferior village office which was granted to the great grand father of the parties and the suit land which was annexed to the said office, on abolition of the village office and resumption of the suit land as a

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consequence of abolition of the village office, became available for regrant and the person officiating the said office became entitled to have the land regranted. Further, the Division Bench also cited that the definition of ‘holder’ means a person having an interest in the said office under an existing law relating to such office and the expression ‘existing law relating to a village office’ includes any enactment, ordinance, rule, bye-law, regulation, order, notification, firman, hukum, vat hukum, or any instrument or any custom or usage having the force of law relating to a village office which may be in force immediately before the appointed date. Therefore, the junior members of the family having an interest under the village office must be considered as holders of the village office and a regrant made in favour of a person does not take away the right of the other persons or junior members of the family to seek partition in the suit land as per their personal law.

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(iii) Dwelling on the facts of the case, the Division Bench noted that the plaintiffs as well as the defendants in the said suit being the descendants of the common propositus, Maktumsa to whom the village office was granted, also fell within the definition of ‘holders of a village office’ and that the plaintiffs therein had an interest in the village office under the existing law relating to village office because in the absence of heirs from the elder branch, the plaintiffs were

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entitled to officiate as Shetsanadis and that a regrant did not take away the right of a junior member of the family who had an interest in the village office to seek partition and possession of his share in the suit lands according to his personal law, even though the regrant was made in the name of the holder of the village office immediately prior to the date of regrant.

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(iv) The Division Bench also placed reliance on Section 90 of the Indian Trust Act, illustration (b), wherein, the person would hold the lands for the benefit of himself and other members of the undivided family and that the principle applies to a Mohammaden family as well holding Shetsanadi lands immediately on the appointed date by relying on a judgment of a Learned Single Judge of this Court in the case of Aminsaheb Dastagirsaheb Mulla v. Hussainsaheb Rasulsaheb Mulla in RSA No. 281/1972 dated 22.06.1976. Accordingly, it was held that on the regrant of the lands in favour of the first defendant therein, the plaintiffs and defendants became the coowners as each one of them became entitled to a share in the suit lands and the decree granted by the Trial Court was afirmed.

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b) BEERAPPA v. FAKIRAPPA BEERAPPA

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BANDROLLI [ILR 2006 Kar 4170.] , (Beerappa):

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(i) This is again a judgment of the Division Bench of this Court, reliance has been again placed on the decision of the Shivappa Fakirappa as well as the decisions of the Hon'ble Supreme Court referred to

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above to hold that a ‘holder’ of village office means a person having interest in the village office under the existing law relating to the said office. An interest in the village office means and includes the right to survivorship of the members of the joint family. The right to succession by survivorship is a right accrued to the members of the joint family in respect of joint family property and therefore junior members of the family have the interest in the village office and they have to be considered as the holders of village office. Reiterating that lands attached to the village office is not available for partition till it becomes ryotwari land i.e., when it is regranted subsequent to resumption made by the State, the Division Bench held that succession to such land would be on the basis of the rules regarding succession as applicable to the parties in terms of their personal law. Further, any person holding village office will hold the said office on his behalf and also on behalf of other members of the joint family. By placing reliance on the decision in the case of ANNASAHEB BAPUSAHEB PATIL, the Division Bench held, even on the abolition of watans, all the incidents attached to the watandari namely, the obligation to render service becomes extinct and the land becomes ryotwari land on regrant and the office of watans become extinguished. The applicability of lineal primogeniture also would stand abolished, all

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members of the family would be entitled to claim right to partition by survivorship.

¶329

40. In contrast to the aforesaid judgments, Learned Counsel for the respondents cited three judgments namely, VENKAT v. RAMA [ILR (1885) 8 Mad 250.] , MUSTI VENKATA JAGANNADHA v. MUSTI VEERABHADRAYYA [AIR 1922 PC 96] , and GAZULA DASARATHA RAMA RAO v. STATE OF ANDHRA PRADESH [ILR 1961 SC 564.] , to contend that the office of the walikar, which is under consideration in this appeal is akin to the office of kamam under the Madras Hereditary Village Offices Act, 1895 and is an office under the State within the meaning of Article 16 (1) & (2) ofthe Constitution of India. That the said office cannot be construed to be a hereditary village office after the promulgation of the Constitution and that the conferment of the said office subsequent to the enforcement of the Constitution is not on the basis of heredity, but it would depend purely on the merit of the candidate who applies for such an office.

¶330

But while considering the said proposition, the facts in each case is considered in seriatim as under:

¶331

a) In VENKAT v. RAMA, the facts were that the lands forming an emolument of a hereditary village office having been separated from the office by the Government, were enfranchised and granted by the Inam Commissioner to Venkat, who had been appointed to, and, at the date of enfranchisement held, the office without possessing any hereditary claim thereto. But there is no material evidence produced by

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the respondents in the instant case as to the nature of the confennent of office on Nabisab or as to whether it was on the basis of his individual merit.

¶336

b) In the second of the aforesaid cases, the controversy was again regarding the office of karnam and it was held that enfranchisement in the name of a particular person insofar as right in the office of the kamam was concerned, must be given full effect and that the family members of the person who was conferred with the said office could not seek partition. Once again the said decision turns on its own facts, as the conferment of the office of the kamam, though a village office, was not on the basis of heredity, but on the basis of qualification of the person to hold the said office.

¶337

c) In GAZULA DASHARATHA RAMA RAO's case, the third decision cited by Learned Counsel for the respondents, it has been held that the office of village Munsiff under the Madras Hereditary Village Offices Act, 1895 is an ‘office under the State’ as the appointment was made by the Collector, the emoluments were granted or continued by the State and the Collector had disciplinary powers including the power to remove, suspend or dismiss him and the qualifications for appointment were laid down by the Board of Revenue. Therefore, the office was a public office.

¶338

All the aforesaid three decisions are pertaining to what was once a hereditary office in the erstwhile Madras State, subsequently the said office being conferred on a particular person was based on his own

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merit and not on the basis of heredity based on the principle of primogeniture. The said line of decisions cannot be applied to the office of walikar as in the instant case as the same has to be considered in light of Act of 1874 and hence, those decisions cannot be applied in a stereo type fashion or straight jacket manner in the instant case.

¶343

d) G.L. HANUMANTHA RAO v. STATE OF MYSORE [(1964) 1 Mys LJ 50.] , is also a judgment of the Division Bench of this Court, relied upon by Learned Counsel for the respondents. In the said case, the constitutional validity of the Mysore Village Offices Abolition Act, 1961 raised by persons holding the post of Shanbhogs, Patels, Kamams and other village offices or inferior village offices in light of Article 19 (1) (f) of the Constitution was considered. The Division Bench held that abolished village offices are not property and no fundamental right to hold them could be claimed under Article 19 (1) (f) of the Constitution (as it then stood) and that no fundamental right granted under Article 13 (1) of the Constitution was invaded.

¶344

e) Reliance has also been placed on another Division Bench decision of this Court in the case of MALLESHAPPA YESHVANTAHAPPA PATIL v. KALLAPPA VITHOBA PATIL [(1970) 2 Mys LJ 350.] , wherein question arose as to whether an. individual is exclusively the holder of the village office, or whether the entire joint family of which he is a member, is the holder of the village office, as such a

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question falls within Section 3(1) (b) of the KVOA Act, 1961. The Division Bench held that while considering the question as to in whose favour land should be regranted under Section 5 of the said Act, if a question arises as to which of such applicants is or are holder or holders of the village office, it cannot be said that such a question does not fall within Section 3(1) (b), merely because those applicants had not made an application or applications in the manner provided in Rule 3 but had made the applications under Rule 5 of the rules made under KVOA Act, 1961. Rule 3 made under the said Act prescribes the manner of holding an enquiry under Section 3. Sub-Rule (1) of Rule 3 provides that any person interested in the village office or in any land granted or continued in respect of or annexed to, such an office and desiring a decision on any question referred to in Section 3, may make an application to the Deputy Commissioner. Whereas sub-Rule (1) of Rule 5 provides, inter alia, that a person entitled to the regrant of a land, shall make an application to the Deputy Commissioner for such regrant within three months from the date of payment of full occupancy price. The functioning of the Deputy Commissioner in this regard has been delegated to the Assistant Commissioners incharge of Revenue Sub-Divisions and in respect of the areas within their respective jurisdiction and subsequently there has been a further delegation to the Tahasildar.

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The Division Bench further held that Section 2(1) of the Act which contains the definition of ‘holder of a village office’, which term includes not only an individual but also the whole body of persons having interest in a village office where such village has been entered in a register or record relating to such village office is being held by such body. The word ‘person’ in Clause (b) of Section 3(1) includes persons.

¶353

f) G.K. BASAPPA v. TAHSILDAR, SHIMOGA [(1991) 3 Karl LJ 401.] , (G.K. Basappa):

¶354

This is also a case, which arose under the very same subject. In this case also there were rival applications filed by the members of the same family. A dispute arose as to which of the parties had to be regranted the land attached to the village office and it is observed that when rival claims are made before the Tahasildar for regrant of the land and when such of claimants are unsuccessful in their attempt they cannot turn round and say they would be entitled to the benefit that may accrue in favour of holders of the village office. g) YAMANAVVA v. CHANDRAWWA [(2007) 1 Kant LJ 626.] , (Yamanavva):

¶355

In this case, it has been held that where land is granted exclusively in favour of a party, it would not be entitled for the benefit of the family, particularly when there was severance of status of joint family. In that case also the dispute was with regard to walikari land and the question was whether the family continued to remain joint. There was a concurrent finding of the

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Courts below that there was partition of properties between the family members and thereafter the grant was made in favour of one of the members of the family. In that context, it was held that the grant was exclusively in favour of the defendant in the said case and it would not enure to the benefit of the plaintiff as the family no longer remained joint pursuant to a partition in the family.

¶360

h) In the aforesaid case, reference has been made to the decision of this Court, in the case of APPANNA v. LAKKAPPA DEVAPPA [(1983) 1 Kant LJ 482.] , (Appanna and others), which also pertains to walikari watans, wherein it has been held that in the case of walikarki properties, where a regrant is made in the name of one of the members of the family, who was performing the walikarki services, the grant enures to the benefit of all the holders of that office in the family and the members of the family have a right to claim partition in the said regranted land. It was further held that after the village office was abolished and the watan lands were resumed on the appointed date i.e., 01.02.1963 and thereafter the cause of action for partition would arise only in 1963 (or on a subsequent date when the land is regranted). Reliance has been placed on the full bench decision of the Bombay High Court in LAKSHMI BAI SADASHIV DATE v. GANESH SHANKAR DATE, (supra) (Laxmi Bai Sadashiv Date) in coming to such conclusion. It is further observed that when lands are regranted, the same would enure to the

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benefit of the entire family, provided there would be no partition between the members of the family as on the date of the regrant.

¶365

In LAKSHMI BAI SADASHIV DATE , while considering the provisions of the Act, the Bombay High Court held that the provisions of the said Act does not affect the normal rights of a member of a Hindu family under the personal law applicable to Hindus. Thus, where the service inam was a grant to the joint Hindu family in the name of the senior member and the same was abolished it could not be contended that the right ofthe other members of the family relating to partition of joint family property was extinguished nor could it be contended that when the regrant was made under Section 7 in the name of the grantee, the other members had no right to ask for a share therein by way of partition.

¶366

41. Learned Counsel for the respondents has placed reliance on two other decisions with regard to binding effect of a finding of fact given in proceedings under particular statutes in a civil dispute.

¶367

a) MUDAKAPPA v. RUDRAPPA [(1994) 2 SCC 57 : AIR 1994 SC 1190.] , has been pressed into service to contend that under the provisions of Karnataka Land Reforms Act, if a question would arise as to whether the joint family or one of its members is a tenant, the Tribunal would have jurisdiction to decide such question under Section 48 A read with Section 133 and not the Civil Court and when the Tribunal is invested with the

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power and jurisdiction to adjudicate rival claim, the correctness of its order could be tested either in an appeal or by judicial review under Article 226 or Article 227 of the Constitution, as the case may be, but the finding given with regard to rival claims on tenancy rights cannot be subject to a jurisdiction once again before the Civil Court.

¶372

The Civil Court will have power only to decide other issues. Learned Counsel for the respondents by drawing an analogy from the aforesaid decision contended that in the instant case also rival applications were filed for conferment of office of the Walikar both by Nabisa as well as Imamsa and by Order dated 24/06/1954 the concerned authority conferred the office of walikar on Nabisa and challenge made to the said order before the Pranth Officer was also unsuccessful as the appeal was dismissed on 30/11/1954. Thereafter, there has been no further challenge to that order. The said conferment of office on Nabisa was in his individual capacity and not on the family of Chandsa. Consequently, the holder of the office namely, Nabisa was rightly regranted the land under the provisions of the KVOA Act, 1961 on the resumption ofsuch land on 01/02/1963 (appointed date) and hence the findings arrived at while regranting the land to Nabisa (which were also challenged by the appellants herein before the District Court in Misc. Case No. 5/1984 which appeal has also been dismissed as per Ex.P-1) would clearly imply that the questions which

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have gone into by those statutory authorities cannot be re-agitated in the present suit.

¶377

b) In this regard, reliance has also been placed on ANJANAPPA v. BYRAP PA (SINCE DECEASED) BYLRS. [(1995) 5 Kant LJ 459.] , to contend that even under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 where a grant of occupancy right is made to the tenants of inam lands, the exclusive jurisdiction is conferred on Special Deputy Commissioner to do so and the jurisdiction of the Civil Court is ousted and when once the order of the Deputy Commissioner attains finality, the same cannot be challenged in collateral proceedings like in a suit for partition and possession of property.

¶378

c) At this stage it would be useful to also make a reference to two other judgments of this Court, one of which is SYEDBASHEER AHAMED v. STATE OF KARNATAKA [ILR 1994 Kar 159.] , and the other is LAXMAN GOWDA v. STATE OF KARNATAKA [ILR (1980) 2 Kar 892.] , (Laxman Gowda). Of course, the said decision pertains to the prohibition of alienation of service inam lands and the legality of the alienation made after enforcement of the KVOAAct, 1961 and, as to, whether, an alienee can derive any right or interest in such land. It was held that the holder or the authorized holder of the service inam land do not get any title to it when that land stood resumed to the Government under sub-Section (3) of Section 4, but he gets title to it when it is regranted to him under Section

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5 or 6, as the case may be. If there had been no alienation before the Act coming into force and before it was regranted, then the alienee acquires title to that land after such regrant is made to alienor.

¶383

d) While holding so, the Division Bench has traced the history of the village office in different areas of Karnataka State which were generally held hereditarily. Reference has also been made to the Bombay Hereditary Offices Act, 1874 in erstwhile Bombay State. That the emoluments of these village offices are generally in the form of lands and the alienation of such lands by the holders thereof was generally prohibited. According to the Division Bench, the policy of the State in restraining alienation of service inam lands was to render permanent source of income to a hereditary village office's family, apart from any cash emoluments. Reference has also been made to the definition of watan properties under Section 4 of the Bombay Hereditary Village Office Act, 1874.

¶384

e) In GAZULA DASHARATHA RAMA RAO v. STATE OF ANDHRA PRADESH, the Hon'ble Supreme Court held that the continuance of hereditary village offices was unconstitutional. In light of that decision, State Government enacted the KVOA Act, 1961 by which all hereditary village offices in the State were abolished. The constitutional validity of the said Act was challenged in G.L. HANUMANTHARAO v. STATE OF MYSORE, and it was upheld and the Hon'ble Supreme Court also upheld the constitutionality of the Act

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in SHANKAR NARAYAN v. STATE OF MYSORE [AIR 1966 SC 1571.] ,. It is not necessary to refer to the details of the conclusions arrived at in the said decisions as the same pertain to the right, title and interest of an alienee of service inam land under the provisions of the act which does not arise in the instant case.

¶389

f) Thereafter, there were contrary opinions expressed by two division benches of this Court in the case of HANUMAIAH v. STATE OF KARNATAKA [ILR 1987 Kar 550.] , and CHIKKANARASAIAH v. TIRUPATAIAH [ILR 1989 Kar 1020.] , and hence the matter was referred to a Full Bench which has given its opinion in the case of SYED BHASHEER AHAMED v. STATE OF KARNATAKA, (supra), which is an opinion of the Full Bench. The said decision is also with regard to the alienation made in respect of service inam land either prior to 01/02/1963 or subsequent to 01/02/1963 upto 07/08/1978 when the principal Act was enacted and alienation made after 07/08/1978. It would not be necessary to go into the conclusions arrived at in that case as they are not relevant for the purpose of determining the controversy in the present case.

¶390

42. In Laxman Gowda, the Division Bench of this Court has adverted to Bombay Act No. III of 1874 which is now called the Maharashtra Hereditary Offices Act, 1894 (1874 Act). It would be useful to briefly summarize the scheme of the said Act at this stage.

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a) In Section 4 of the Act ‘watan property’ is defined to mean moveable or immovable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to a hereditary office. It includes a right to levy customary fees or perquisites, in money or in kind, whether at fixed times or otherwise. It includes cash payments in addition to the original watan property made voluntarily by the State Government and subject periodically to modification or withdrawal. The emphasis in the definition is on the hereditary office. The expression ‘hereditary office’ is defined to mean every office held hereditarily for the performance of duties connected with the administration of collection of the public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration. The expression includes such office even where the services originally appertaining to it have ceased to remain. The watan property, if any, and the hereditary office and the rights and privileges attached to them together constitute the watan.

¶395

b) The definition of ‘watandar’ is also stated to mean ‘a person having a hereditary interest in a watan. It includes a person holding watan property acquired by him either before the introduction of the British Government into the locality of the watan or, legally acquired, subsequent to such introduction and, also includes a person holding such property from him by inheritance. It also includes the person adopted by an

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owner of a watan or part of a watan, subject to certain conditions specified in the Act. ‘Family’ is defined to include each of the branches of the family descended from an original watandar and the head of a family includes the chief representative of each branch of a family. ‘Representative watandar’ means a watandar registered by the Collector under Section 25 as having a right to perform the duties of a hereditary office. ‘Officiator’ means the person actually performing the duties of a hereditary office for the time being, whether he be a representative watandar or a deputy or a substitute appointed under any of the provisions of the said Act. The Act prohibits alienation of watan and watan rights. Part-III of the said act deals with commutation of watans.

¶400

c) Learned Counsel for the respective parties have both contended that Bombay Act No. III of 1874 called the Bombay Hereditary Offices Act now re-named as the Maharashtra Hereditary Offices Act, apply to the village offices in question. That subsequent to the reorganisation of Karnataka State in the year 1956 and merger of the areas in which the land in question is situated in Karnataka State, the KVOAAct, 1961 would apply to the land in question also. Thus, the 1874 Act or Watan Act is an Act which applies to hereditary offices, but parts VI, VII, VIII and IX of the said Act does not apply to hereditary offices of lower degree than Patel and Kulkami, nor to watans appertaining to such offices.

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d) Learned Counsel for the respective parties also submit that the office of walikar is a hereditary village office of a lower degree under Section 63. In part-X of the said Act the Collector is empowered, subject to the general control of the State Government, to register the names of individual watandars as holders of the office or to register it as held by the whole body of watandars. He has to also determine when individual names are so registered, the rights, duties and responsibilities among themselves or the persons so registered, and the mode in which they shall be selected to perform the duties, whether by selection by the Collector or by defined rotation, or by election by the watandars or otherwise, as may be expedient. That in cases where the registration is made in the name of the whole body of watandars, the duties to be performed have to be assigned by the Collector either severally or jointly. The Mamlatdar or Mahalkari (Tahsildar) are empowered to pass orders in regard to the appointment, remuneration, period of service, suspension etc. and other matters of discipline in the case of an inferior village hereditary office.

¶405

e) The Maharashtra Revenue Jurisdiction Act, 1876 (Act No. X of 1876) bars the jurisdiction of the Civil Court with regard to claims against the Government, with regard to any property pertaining to the office of any hereditary officers appointed or recognized under the 1874 Act or any other law for the time being in force or of any other village officer or servant or any suit to set

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aside or avoid any order made under Bombay Act No. III of 1874.

¶410

43. The KVOA Act, 1961 was enacted to abolish village offices in the State of Karnataka which was held hereditarily before the commencement of the Constitution and the emoluments appertaining thereto in the State of Karnataka and to provide for matters consequential and incidental thereto. Under the said Act, the appointed date is 01/02/1963 under Section 2 (1) (a) of the Act. Under Section 2 (1) (b) ‘authorized holder’ has been defined to mean a person in whose favour a land granted or continued in respect of or annexed to, a village office by the State or a part thereof has been validly alienated permanently, whether by way of sale, gift, partition or otherwise, under the existing law relating to the such village offices. The definition of emoluments would include lands. Section 2(1) (g) defines ‘holder of a village office’ or ‘holder’ to mean a person having an interest in a village office under an existing law relating to such office. The proviso states that where any village office has been entered in a register or record under the existing law relating to such village office, as held by the whole body of persons having interest in the village office, the whole of such body shall be deemed to be the holder.

¶411

‘Inferior village officer’ is defined to mean ‘every village office of lower degree than that of a Patel or Village Accountant’. ‘Officiator’ means the person actually performing the duties of a village office, whether he be a person having a right to perform the duties of such office or

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a substitute appointed under the existing law relating to such office. ‘Unauthorized holder’ is defined under Section 2(1)(m) and ‘village office’ is defined under Section 2(1)(n), which essentially is held hereditarily.

¶416

As it is noted from the decision of the Division Bench in Laxman Gowda's case that the village office coming under the provisions of Act No. III of 1874 including that of walikar, which is an inferior village office, subsequent to the enforcement of the KVOA Act, 1961 has to be dealt with under the provisions of the said Act. Section 3 deals with the powers of the Deputy Commissioner to decide certain questions such as, whether any person is a holder of a village office. The Deputy Commissioner will have to hold an enquiry in the prescribed manner and decide the question. Of course, the jurisdiction of the Deputy Commissioner is now conferred on the Tahsildar. Any person aggrieved by the jurisdiction of the Tahsildar could appeal to the District Judge of that District within whose jurisdiction the lands are situate. Section 4 deals with the abolition of village office together with incidents thereof including resumption of all land annexed to a village office by the State. Under Section 5, the resumed land could be re-granted to the holder of the village office immediately prior to the appointed date. On re-grant of the said land, a ryotwari patta shall be issued and the land gets converted from an impartible estate to ryotwari land, subject to certain conditions regarding alienation. However, partition not being transfer is permissible after the land is regranted. Section 6 deals with regrant of land resumed under Section

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4 to authorized holder who is an alienee of the said land. Section 7 deals with eviction of unauthorized holders, which is not relevant for the present case. The rules made under the said Act have been referred to above while referring to the decision of the Division Bench of this Court in the case of MALLESHAPPA YESHWANTAPPA PATIL v. KALLAPPA VITHOBA PATIL, (supra).

¶421

While answering point No. 1, it would be useful to revisit two aspects. Firstly, as to whether the appointment of Nabisa as walikar was exclusive, based on his own merit and qualification and in his individual capacity and that his appointment to said office did not enure to the benefit of other members of the family. Secondly, as to whether the order or regrant of the suit lands made in the name of Nabisa was on the basis that, Nabisa only had the right to enjoy the said lands on its regrant and it did not enure to the benefit of all other members of the family of Chandsa. That on the demise of Nabisa, his legal heirs only were entitled to share the said lands and not the branch of plaintiffs’ family.

¶422

44. On a consideration of the judgments of the Hon'ble Supreme Court as well as this Court, what emerges is that the grant of watan to the eldest member of a family would not make him the exclusive owner of the watan properties. That any member of the family of watandar who has a hereditary interest, both in watan property and in the hereditary office, (as these two concomitants that constitute the watan in terms of Section 4 of the Watan Act) would be entitled to hold the said office. But in practice, the office of

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walikar as watandar, was conferred only on the eldest member of the family on the basis of custom by applying the rule of primogeniture applicable to such office. That the Watan Act has been enacted to preserve the pre-existing rights of the members of a joint Hindu family. The word ‘family’ is defined in Section 4 of the Watan Act to include “each of the branches of the family descended from an original watandar and the expression “head of the family” is defined to include the chief representative of each branch of a family Although Section 3 of the said Act has brought about a change in the tenure or character of holding as watan land, but that did not affect the other legal incidents of the property under personal law. Further, the Hon'ble Supreme Court has held that the expression “watandar” cannot be limited to the narrow class ofpersons who have claimed the hereditary interest both in the watan property or in the hereditary office. Watan property has always been treated as property belonging to the family and all persons belonging to the watan family who had a hereditary interest in such watan property and were entitled to be watandars ofthe same watan within the meaning of Watan Act were entitled to a share in such property once it ceased to be impartible. It has also been held by the Hon'ble Supreme Court that the watan lands continued to be hereditary property of the family although according to the custom, the watan was only in the name of senior member ofthe family as the succession according to custom was in accordance with the rule of primogeniture. This Court has further held that an interest in the village office means, that the member

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of the joint family even though belonged to the junior branch in the family had a right to succeed to the office in the event none was available in the senior branch to succeed to the office. Thus, the holder of the village office under KVOA Act, 1961 would mean, a person having an interest in the village office under the existing law relating to the said office, would also include junior members of the family who had interest in the village office and not restricted to only those appointed to the said office.

¶431

45. On a consideration of the judicial dicta in light of the evidence on record, it is noted that the suit schedule lands being attached to the office of walikar devolved on Nabisa on the basis of heredity on the principle of primogeniture and not in his individual capacity or on the basis of his individual merit. But that did not exclude the other members of the family of Chandsa from enjoying the suit lands with Nabisa. No material has been produced by the defendants to evidence the fact that the conferment of the office on Nabisa was on the basis of the individual merit and on a comparison of his individual merit with the other persons of the family who were also entitled to hold the said office and to the exclusion of the other junior members of his family. In the absence of any material to the effect that on 02/12/1953 on the demise of Chandsa, the appointment of Nabisa to the office of walikar was on the basis of his individual merit only, it is held that the said appointment was based on the principle of rule of primogeniture and on the basis ofheredity, which is as per the evidence on record. Nabisa being the eldest son of Chandsa through

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Anasarama, first wife of Chandsa, he was conferred the office of walikar so as to render service of the village office after the demise of Chandsa who was the walikar till his demise. It is needless to emphasise that the said village office was a hereditary office unlike that ofkamam, as it obtained in erstwhile Madras Province. Therefore, it is held that the conferment of office on Nabisa was on the basis that he was the eldest son of Chandsa who was holding the office-till his demise on the basis of heredity and rule of primogeniture. By that, it cannot be held that the other members of Chandsa's family had no interest in the said office. This finding is also supported by what is stated in Ex.P-1 produced by the plaintiffs, which document is also relied upon by defendants.

¶436

Ex.P-1 is the judgment passed in Miscellaneous Appeal No. 5/1984, dated 04/07/1988. On a reading of the said judgment, it becomes clear that Imamsa was the walikar or sanadi of Bidarkundi Village. The sanad of walikar lands, after the death of Imamsa, devolved on Chandsa his son, who worked as waliker till 1953. He died in the said year. Nabisa made an application to the Tahsildar “for appointing him as walikar of the village and also to mutate two lands in his name on the ground that he was the eldest son of Chandsa”. The said application was granted. Imamsa, Nabisa's younger step brother filed an appeal before the Prant Officer, Bagalkot Sub-Division, but the same was dismissed and Nabisa's appointment was confirmed. Thereafter, Nabisa was working as walikar of the village till the abolition of village offices with effect from 01/02/1963

¶437

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on coming into force of KVOA Act, 1961. After vesting of lands, Nabisa filed an application on 29/09/1967 for regrant of the lands. On 07/10/1969, Imamsa also filed an application to the Tahsildar claiming that the suit lands were the family lands ofNabisa, himself and his younger brother Rajesa and the lands had stood in the name of their father and as they could not be partitioned, they were enjoyed by all the three brothers jointly. The Tahsildar, after enquiry, submitted the papers to the Assistant Commissioner who, after hearing the parties regranted the lands in the joint names of all the three brothers under Section 5(3) of KVOA Act, 1961. There were several rounds of litigation even before this Court and ultimately on remand of the matter, the Tahsildar, Muddebihal, after completing an enquiry and hearing the parties passed an Order dated 24/06/1984, holding that Nabisa being the officiating walikar was alone the holder of village office as contemplated under Section 5 of the Act. He passed the order regranting both the lands in favour of the respondents herein who are the legal heirs of deceased Nabisa. That order was challenged before the Learned District Judge, Bijapur, in Miscellaneous Appeal No. 5/1984. At paragraph Nos. 12, 13, 14 and 15 ofthe judgment (Ex.P-1), while considering the rival contentions, no doubt the Learned District Judge has held that the office of walikari was conferred on Nabisa in his individual capacity and thereafter, Nabisa alone was entitled for regrant of the land and the order of regrant was made in favour of his legal representatives on his death by the Tahsildar, Muddebihal,

¶441

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in accordance with law. Despite the said finding in Ex.P-1, Learned District Judge has opined as under:

¶445

“it is made clear that if the appellants have got right to get share by way of partition of the land, they are at liberty to resort to legal remedy available to them under law.”

¶446

It is on the basis of the aforesaid liberty, the appellants filed the suit, out of which this appeal arises. Therefore, Ex.P-1 order has taken note of the fact that, the regrant of land to the holder of the office to a particular person in the family would not take away the right of the other members of the family to seek partition and separate possession. Therefore, the order of regrant of the lands in the name of Nabisa does not exclude the right of the plaintiffs, who also belong to the family of Chand Sa, the erstwhile holder of the village office to seek partition and separate possession of the suit lands, as they were attached to the erstwhile village office. This is because the plaintiffs also had an interest in that office, but only Nabisa being the eldest son of the family of Chandsa was appointed to the said office. Thus, the lands attached to the village office were mutated in the name of Nabisa as he was the eldest son of Chandsa and conferred the office on the basis of rule of primogeniture.

¶447

46. On a survey of the decisions of the Hon'ble Supreme Court and this Court, it is clear that the lands attached to the village office were impartible and they become partible only after they were converted into ryotwari lands. But one cannot lose sight ofthe fact that the lands in question are watan lands and Nabisa, lmamsa and

¶448

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¶451

Rajesa had an interest in the said lands as they were watan lands and it was only on the basis of the rule of primogeniture that Nabisa being the eldest son, was conferred the office of walikar. In fact, Nabisa's application made in the year 1953 was also on the basis of being the eldest son of Chandsa. When lmamsa also sought for appointed as a walikar, the same was negatived as lmamsa was not the eldest son of Chandsa, who was holding the office of walikar till his demise, and not because he did not have any merit to hold the said office. Therefore, the contention of the Learned Counsel for the respondents that the office of walikar was conferred on Nabisa on account of him being more meritorious as compared to lmamsa cannot be accepted particularly, when no material has been produced by the respondents in that regard.

¶452

47. The second aspect of point No. 1 is, whether the regrant of the suit lands made in the name of Nabisa on the enforcement of KVOA Act, 1961 was on him individually or the other members of the family also had the benefit of said regrant. The answer firstly is that regrant of the lands in the name of Nabisa only was not on the basis that only he was entitled to appropriate the said land and enjoy the same to the exclusion of the other members of his family i.e., the other heirs of Chandsa, who was holding the office of walikar till his demise in the year 1953 as only he was conferred with the village office. But Nabisa being the heir of Chandsa who was conferred the office of walikar on the basis of rule of primogeniture, it was regranted only in his name. However, that would not imply that the other heirs of

¶453

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Chandsa became disentitled to enjoy the suit lands jointly along with Nabisa, which they did so as heirs of Chandsa only because Nabisa was regranted the lands under KVOA Act, 1961.”

¶457

6.11 In the instant case, as stated earlier, there is no plea put forth by defendant Nos. 1 to 3 that there was a partition in the joint family before the 1^st defendant applied for and was conferred/granted occupancy rights; similarly, there is absolutely no material placed by them to establish that the occupancy rights were granted in favour of 1^st defendant in his individual capacity and not on behalf of the entire joint family including the plaintiffs and defendants 6 to 8.

¶458

6.12 Under these circumstances, in the light of the principles enunciated by the Apex court and this Court consistently to the effect that any grant / re-grant of tenancy / occupancy rights would enure to the benefit of all joint family members / entire joint family coupled with the undisputed fact that there is no defence / pleading / written statement put forth by defendant Nos.1 to 3, I am of the view that occupancy rights granted in respect of Item Nos.3 to 6 in the name of 1^st defendant would enure to the benefit of all joint family members including plaintiffs and defendants 6 to 8 who

¶459

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would accordingly be entitled to their legitimate share in these properties.

¶463

6.13 As noticed earlier, the instant suit was filed in the year 1999 and during its pendency, defendants 1 to 3 have affected several alienations by executing sale deeds, gift deeds etc., in favour of third parties including defendants 4 and 5 in relation to portions of Item Nos. 3 to 6 of the suit schedule properties. As stated hereinbefore, the material on record clearly establishes that Item Nos. 3 to 6 are also joint family properties and that the plaintiffs are entitled to their legitimate share in these properties; having regard to the fact that all the alienations including sale deeds, gift deeds etc., by defendant Nos.1 to 3 in favour of third parties including defendants 4 and 5 were made during the pendency of the suit, the same would be hit by the doctrine of lis pendens and would neither bind nor affect the plaintiffs’ legitimate share in these properties. To reiterate, though the Land Tribunal granted / conferred occupancy rights in respect of Item Nos.3 to 6 in the name of 1^st defendant, the said grant of occupancy rights was on behalf of the joint family including the plaintiffs and the said grant would enure to the benefit of all joint family members in the

¶464

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light of material on record and the well settled position of law stated above. The trial court has clearly misdirected itself in failing to consider and appreciate these factual and legal aspects and this has resulted in erroneous conclusion warranting interference by this Court in the present appeal.

¶467

Point No.2 is accordingly answered in favour of the appellants- plaintiffs by holding that Item Nos.3 to 6 of the suit schedule properties are joint family properties in which the plaintiffs - appellants are entitled to their legitimate share and impugned judgment and decree passed by trial court in this regard deserves to be set aside and the suit of the appellants-plaintiffs deserves to be decreed in their favour.

¶468

Re-Point No.3:-

¶469

A perusal of the material on recording including the impugned judgment and decree will indicate that the suit of the plaintiffs in relation to Item Nos. 7 to 11 of the suit schedule properties was dismissed by the trial court. In this context, it is relevant to state that the trial court recorded a finding based on pleadings and evidence that the plaintiffs had not placed any material to establish that Item Nos. 7 to 11 of the suit schedule

¶470

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¶472

properties were joint family properties and that the plaintiffs were entitled to a share in the same. Even before this Court, the plaintiffs have failed to substantiate or establish the manner of acquisition of Item Nos. 7 to 11 and have not been able to prove that these properties are joint family properties. Under these circumstances, I am of the view that the trial court was fully justified in rejecting the claim of the appellants – plaintiffs over Item Nos.7 to 11 of the suit schedule properties.

¶473

7.1 Accordingly, upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the view that the impugned judgment and decree passed by the trial court dismissing the suit of the appellants – plaintiffs in relation to Item Nos. 7 to 11 cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse warranting interference by this Court in the present appeal.

¶474

Point No.3 is accordingly answered against the appellants by confirming the impugned judgment and decree dismissing their suit in relation to Item Nos. 7 to 11 of the suit schedule properties.

¶475

Re-Point No.4:-

¶476

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¶479

While dealing with Point Nos.1 and 2 supra, I have already come to the conclusion that Item No.1 and Item Nos. 3 to 6 of the suit schedule properties are joint family properties, in which, the plaintiffs are entitled to their legitimate share and the impugned judgment and decree dismissing the suit in respect of these properties, deserves to be set aside and the suit of the plaintiffs deserves to be decreed in respect of Item Nos.1, 3 to 6 of the suit schedule properties. So also, Item No.3 has been answered against the plaintiffs by confirming the impugned judgment and decree dismissing their suit in respect of Item Nos. 7 to 11 of the suit schedule properties. Under these circumstances, I am of the view that the appeal deserves to be partly allowed by setting aside the impugned judgment and decree insofar as it relates to Item Nos.1 and 3 to 6 by decreeing the suit of the plaintiffs in respect of these properties and by confirming the impugned judgment and decree and by dismissing the suit of the plaintiffs in respect of Item Nos. 7 to 11 of the suit schedule properties.

¶480

Point No.4 is accordingly answered partly in favour of the appellants-plaintiffs as indicated above.

¶481

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In the result, I pass the following:-

¶485

ORDER

¶486

(i) Appeal is hereby partly allowed.

¶487

(ii) The impugned judgment and decree dated 17.03.2018

¶488

passed in O.S.No.8050/1999 by the trial court dismissing the suit of the plaintiffs in respect of Item Nos. 7 to 11 of the suit schedule properties is hereby upheld and confirmed.

¶489

(iii) The impugned judgment and decree insofar as it relates to Item Nos.1 and 3 to 6 is hereby set aside.

¶490

(iv) The suit of the plaintiffs is hereby decreed as sought for

¶491

by them in relation to Item Nos.1 and 3 to 6 by holding that the plaintiffs are entitled to 1/6^th share each in Item Nos.1 and 3 to 6 of the suit schedule properties.

¶492

Sd/(S.R.KRISHNA KUMAR) JUDGE

¶493

Srl.

Sri Jayarama Raju v. Sri a M Narayanaswamy Raju

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Sri Jayarama Raju v. Sri a M Narayanaswamy Raju

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