Sri Santhosh Shetty Vs Sri Raju Shetty

JAYAKARA SHETTY S/O LATE MENKA SHETTY, AGED ABOUT 63 YEARS RESIDING AT NIRMALA PARK, BUILDING NO 3, B WING, ROOM NO 007, S V ROAD, NAVAGHAR CROSS ROAD,

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BHAYANDAR (EAST), THANE DISTRICT, MAHARASHTRA 401105

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SRI. RAMACHANDRA SHETTY AGED ABOUT 81 YEARS, S/O LATE SUNANDA R SHETTY, GURUKRIPA NILAYA, UNDAR, INNANJE VILLAGE AND POST, UDUPI TALUK 576122

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SRI. CHANDRASHEKAR R SHETTY AGED ABOUT 49 YEARS, ROOM NO 6, RAJEEV APARTMENT, NEAR VIMAL DIARY, GODDEV PATAK ROAD, BHAYADAR (EAST), THANE DIST, MAHARASTRA 401107

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VEENUGOPALA R SHETTY AGED ABOUT 40 YEARS, S/O SUNANDA R SHETTY, C/O HOTEL SUNSHINE, EASTERN EXPRESS HIGHWAY, NEAR DAHISAR, CHECKNAKA, MEERA ROAD, THANE DIST., MAHARASTRA 401107

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MANJULA SUDHIR SHETTY AGED ABOUT 40 YEARS, D/O SUNANDA R SHETTY, MIRA SOCIETY, NO 206, NEAR MAHALINGESHWARA TEMPLE, MIRA GAUON, MIRA ROAD, THANE DISTRICT, MAHARASTRA 401107

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LAXMISHA R SHETTY AGED ABOUT 43 YEARS, S/O LATE SUNANDA R SHETTY, GURUKRIPA NILAYA,

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UNDAR INNANJE VILLAGE, UDUPI TALUK

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…RESPONDENTS

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(BY SRI. G. BALAKRISHNA SHASTRY, ADV. FOR R1, R3 TO R7 R2 V/O DATED 05.10.2021 NOTICE IS H/S)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 13.11.2020 PASSED IN RA.No.74/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.08.2017 PASSED IN OS.No.591/2014 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed by the appellants challenging the judgment and decree dated 13.11.2020, passed in R.A.No.74/2017 by the II Additional Senior Civil Judge and JMFC, Udupi and the judgment and decree dated 10.08.2017 passed in O.S.No.591/2014 by the III Additional Civil Judge and JMFC, Udupi.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The

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appellants were the plaintiffs and the respondents were the defendants.

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

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The plaintiffs filed a suit for partition and separate possession. It is the case of the plaintiffs that, the plaintiffs and defendants are the children of one Menka Shetty. Menka Shetty had four children, Achanna Shetty, Raju Shetty, Jayakar Shetty and Sunanda Shetty. Achanna Shetty and Sunanda Shetty died intestate, leaving behind the plaintiffs and defendant Nos.3 to 7 as their legal heirs. One Sheena Shetty was the chalageni of the suit schedule properties, belonging to Sode Vadiraja Mutt. Menka Shetty, with the consent of the Vadiraja Mutt, obtained the suit schedule properties on Olageni. After the demise of Menka Shetty, Raju Shetty, and Sunanda Shetty, claimed the occupancy rights before the Land Tribunal on behalf of the family. The Land Tribunal granted the certificate of Form No.10 in the name of Sunanda and Raju Shetty on

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behalf of the family. The plaintiffs and the defendants are in constructive possession, and after the demise of Sunanda Shetty, defendant Nos.3 to 7 illegally changed their name in the RTC. The plaintiffs demanded partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, they pray to decree the suit.

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3.1. Summons were issued to the defendants,

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except defendant No.4; all other defendants appeared. Defendant No.4, despite service of summons, remained unrepresented. Hence, he was placed exparte.

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3.2. Defendant No.1 filed a written statement.

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Defendant Nos.2, 3 and 5 to 7 filed a memo, adopting the written statement filed by defendant No.1.

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3.3. Defendant No.1 filed a written statement

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admitting the relationship of the plaintiffs and the defendants and denied the olachalageni taken by Menka

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Shetty from Sheena Shetty. It is contended that, during the minority of Sunanda Shetty, and Raju Shetty, the Sheena Shetty obtained the properties from Sode Vadiraja Mutt, and after Sunanda Shetty and Raju Shetty attained majority, had given the plaint suit schedule properties on Olachalageni to them. Hence, at the advent of the Karnataka Land Reforms Act, Raju Shetty and Sunanda Shetty claimed occupancy rights, and after the properties were granted, defendant No.1 and Sunanda Shetty became the absolute owners. After the demise of Sunanda Shetty, the change of RTCs in the name of defendant Nos.2 to 7 is as per law. It is contended that Menka Shetty never enjoyed the suit schedule properties on Olachalageni. Hence, prays to dismiss the suit.

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3.4. The Trial Court, based on the afore-said

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pleadings, framed the relevant issues.

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3.5. The plaintiffs, to substantiate their case, plaintiff No.1 examined himself as PW-1 and marked 22 documents as Exs.P1 to P22. On the other hand,

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defendant No.5 was examined as DW-1, and no documents were marked on behalf of the defendants. The trial Court, on assessing the oral and documentary evidence, dismissed the suit of the plaintiffs.

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3.6. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.591/2014, preferred an appeal in R.A.No.74/2017 on the file of learned II Additional Senior Civil Judge and JMFC, Udupi.

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3.7. The First Appellate Court, on re-assessing the oral and documentary evidence, dismissed the appeal filed by the plaintiffs, confirming the judgment and decree passed in O.S.No.591/2014, vide judgment dated 13.11.2020.

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3.8. The plaintiffs, aggrieved by the judgments and decrees passed by the Courts below, have filed this regular second appeal.

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Heard the arguments of learned counsel for the

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plaintiffs.

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5. Learned counsel for the plaintiffs submits that

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the defendants in the written statement nowhere stated that there was a severance in the status of the joint family, amongst the parties to the suit. The Courts below have lost the sight of the settled principle of law that in the event of a property being acquired by a member of a joint family, in the individual name out of joint family nucleus, it shall be presumed to be joint family property. He also submits that defendant No.1 and late Sunanda Shetty had secured the possession of the suit schedule properties in their individual capacities, only after attaining the age of majority. The Courts below have overlooked Ex.P.1, the claim made by defendant No.1 and late Sunanda Shetty vide form No.7.

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He also submits that there is a presumption

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that sub-tenancy has to be originated from the time of late Sri. Menka Shetty, i.e., defendant No.13, father of late Sunanda Shetty. Defendants have not produced a scrap of paper as evidence to prove their assertion that

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later individuals were tenants in their individual capacity. Therefore, the impugned judgments and decrees passed by the Courts below cannot be sustained. Hence, on these grounds, he prays to allow the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The plaintiffs, to substantiate their case, examined plaintiff No.1 as PW-1 and marked 22 documents as Exs. P.1 to P.22. During the crossexamination PW -1 stated that his father left Udupi, when plaintiff No.1 was very young and went to Mumbai to work in a hotel. Further, he was working as a Manager at Udupi Nikitan Hotel in Mumbai and he became the owner of the said hotel and his mother was also residing along with his father at Mumbai. The perusal of the cross-examination of PW-1, clearly discloses that the plaintiffs’ father left Udupi and settled at Mumbai, and he returned to Udupi in 1985. As on the appointed date, the plaintiff’s father was not in possession and enjoyment of the suit schedule properties.

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9. The plaintiffs have produced a copy of the order

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passed by the Land Tribunal. From the perusal of the contents of the order of the Land Tribunal, there is no recital regarding Ex.P.4 to Ex.P.6, geni receipts. Further, the plaintiffs have not produced any record to show that their father was residing in the suit properties.

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PW-1 admitted that his father’s sister, Sunanda, and another brother, Raju, filed an application before the Land Tribunal regarding the suit schedule properties, and the Land Tribunal passed an order in favour of Smt. Sunanda and the Raju and the order passed by the Land Tribunal is marked as Ex.P.2. There is no recital in the order passed by the Land Tribunal that the said land was granted on behalf of the family. When there is no recital in Ex.P.2, it is presumed that the Land Tribunal granted the land in favour of Smt. Sunanda and Raju in their individual capacity and not for the benefit of the family.

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Though the plaintiffs have produced the geni receipts marked as Ex.P.4 to P.6, the said receipts do not disclose as to which property the said Chalageni is for, and no survey number is mentioned. Both the Courts below have concurrently recorded a finding of fact that the plaintiffs have failed to prove that suit schedule properties are the joint family properties and held that the plaintiffs are not entitled to a share in the suit schedule properties, and defendant No.3 i.e., the husband of Sunanda Shetty, has proved that the suit schedule properties are her individual properties.

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The trial Court, considering the entire evidence on record, has rightly dismissed the suit. The first appellate Court, on reassessment of oral and documentary evidence, has recorded its finding that the Land Tribunal granted the properties in favour of Smt. Sunanda Shetty and Raju Shetty in their individual capacity and not for the benefit of the family. Defendant No.1 and Sunanda shetty were cultivating the plaint schedule properties, hence,

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there is no substance in the contention of the learned counsel for the plaintiffs. Both the Courts below have concurrently recorded a finding of the facts against the plaintiffs.

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The Co-ordinate Bench of this Court in the case of S.P.Subba Rao Vs. M. Lakshmana Rao, in RFA No.683/2003 held vide judgment dated 19.02.2013 that:

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“13. ....... Any grant made even in favour of a member of joint family, it becomes his separate property unless it is shown that the grant was intended on behalf of the joint family. Even if the grantee is a Kartha of the joint family, such grant in favour of the Kartha will not became joint family property, it will be his separate property unless it is shown that the grant was intended in favour of joint family.......”

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The Co-ordinate Bench of this Court in the case

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of Sri. Parashuram Nemani Kuduchakar and others

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Vs. Smt. Shantabai Ramachandra Kuduchakar and

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others reported in ILR 2004 Kar 3355 held that a suit for partition in respect of tenanted agricultural land is not

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barred, and it is the civil Court alone has the jurisdiction to entertain the suit for partition. As such the plea that the suit is barred in view of the order of the Land Tribunal has no substance and cannot be permitted and a suit for partition in respect of agricultural land is not barred on account of the order of the Land Tribunal. The defendants

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are estopped from raising the plea of want of die jurisdiction by the Civil Court to decide the suit for partition in view of the specific plea raised in the proceedings under Section 48A of the Karnataka Land Reforms Act, 1961, as the jurisdiction to decide a suit for partition and the civil Court alone has the jurisdiction to grant a decree for partition and separate possession of tenanted agricultural lands, more-so when the said question has been kept upon in the proceedings arising out of the Karnataka Land Reforms Act.

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