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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF FEBRUARY, 2013
BEFORE
THE HON’BLE MR.JUSTICE B.S.PATIL
R.S.A.No.3/2012 c/w
R.S.A.No.80/2012, R.S.A.No.2465/2011
IN R.S.A.3/2012
BETWEEN
1. SMT NAGAMMA AGED ABOUT 59 YEARS W/O LATE SHEENA SHETTY
2. SMT JAYANTHI AGED ABOUT 40 YEARS W/O JAYARAMA SHETTY BOTH R/AT SHIVA SHAKTI NIVAS, RAMDAS NAGAR POS T,KASARAGOD TALUK &DIST KERALA STATE
3. MISS VIJAYA AGED ABOUT 25 YEARS D/O LATE SHEENA SHETTY
4. SRI SHIVANANDA AGED ABOUT 23 YEARS S/O LATE SHEENA SHETTY
5. SMT NALINI AGED ABOUT 21 YEARS W/O PRAKASH SHETTY 3 TO 5 R/AT SAVITHRI COMPOUND, PINTO LANE, NEAR SATHYANARAYANA BHAJANA MANDIRA BOLAR, MANGALORE
2
6. SMT KALYANI SHEDTHI AGED ABOUT 72 YEARS W/O SANJEEVA SHETTY R/AT KALYANI SHEDTHI COMPOUND BOKKAPATNA BOLOOR, MANGALORE-6
7. SMT SHOBHA SHETTY
AGED ABOUT 32 YEARS W/O LATE KESHAVA SHETTY C/O SMT NAGAMMA KAMALA SHETTY COMPOUND NEAR POLRAI KATTE,P O BEJAI MANGALORE-4
8. MASTER DEEPAK SHETTY
AGED ABOUT 11 YEARS S/O LATE KESHAVA SHETTY C/O SMT NAGAMMA,KAMALA SHETTY COMPOUND NEAR POLRAI KATTE,P O BEJAI MANGALORE-4,SINCE MINOR REP BY HIS MOTHE AND NEXT FRIEND NAMELY APPELLANT NO 7
9. YASHAVANTHA SHETTY
AGED ABOUT 37 YEARS S/O LATE SHANKARA SHETTY R/AT KAMALA SHETTY COMPOUND BEJAI,ANEGUDI MANGALORE
10. SMT SUMATHI SHETTY
AGED ABOUT 50 YEARS W/O NAGARAJA SHETTY R/AT KAMALA SHETTY COMPOUND POLARAI KATTE,P ON BEJAI MANGALORE. ... APPELLANTS
(By Sri. NAGARAJA HEGDE, ADV.) AND
1. SMT SHAMBAVATHI AGED ABOUT 46 YEARS W/O VISHWANATHA RAI R/AT ENOLI,PAVOOR POST &VILLAGE MANGALORE
3
2. SMT SOMAKKE SHEDTHI
AGED ABOUT 74 YEARS W/O SHANTHA SHETTY R/AT IV BLOCK ,SITE NO 180,POST KATIPALL A,MANGALORE
3. SMT SEETHA SHEDTHI
AGED ABOUT 72 YEARS W/O AITHAPPA SHETTY R/AT ALIYAR HOUSE,AMBALAMOGARU VILLAGE MANGALORE TALUK
4. SMT APPI S PERGADE
AGED ABOUT 66 YEARS W/O LATE SHANTHARAM PERGADE R/AT KOPPARA THOTA HOUSE PUMPWELL, KANKANADY B VILLAGE KANKANADY, MANGALORE-02
5. MR TARANATH PERGADE
AGED ABOUT 36 YEARS S/O LATE SHANTHARAM PERGADE R/AT KOPPARA THOTA HOUSE PUMPWELL, KANKANADY B VILLAGE KANKANADY, MANGALORE-02
6. KRISHNA @ SATHISH PERGADE
AGED ABOUT 33 YEARS S/O LATE SHANTHARAM PERGADE
7. MR PADMA PERGADE AGED ABOUT 29 YEARS S/O LATE SHANTHARAM PERGADE 4 TO 7 R/AT KOPPARA THOTA HOUSE PUMPWELL, KANKANADY B VILLAGE KANKANADY, MANGALORE-02
8. SRI VASANTHA ALVA AGED ABOUT 68 YEARS S/O LATE VEERAMMA SHEDTHI R/AT THARIGUDDE,NEERMARGA MANGALORE
9. SMT GULABI SHEDTHI
AGED ABOUT 66 YEARS
4
W/O BHOJA SHEDTHI R/AT NEAR KRISHNAPUR MUTT,SURATHKAL MANGALORE
10. SHREE SEETHARAMA ALVA
AGED ABOUT 64 YEARS S/O LATE VEERAMMA SHEDTHI R/AT YEKKUR MANGALORE-10
11. SRI RAVINDRA ALVA
AGED ABOUT 62 YEARS S/O LATE VEERAMMA SHEDTHI R/AT MAJAPE KESANAMOGARU PODDU POST,BANTWAL TALUK,D.K
12. SRI NARASIMHA ALVA
AGED ABOUT 60 YEARS S/O LATE VEERAMMA SHEDTHI R/AT BELMA BARIKE HOUSE BELMA VILLAGE DERALAKATTE POST MANGALORE ,D.K.
13. SMT SAMPAVATHI ALVA
AGED ABOUT 58 YEARS W/O SANKAPPA SHETTY R/AT PLOT NO54,WADUJKAR ESTATE BEGWAN ROAD,BARAMATHI -412102 POONA
14. SRI HEMANTHA ALVA
AGED ABOUT 56 YEARS S/O LATE VEERAMMA SHEDTHI R/AT HOTEL VINAYAKA MARGAW BUS STAND,BARAMATHI ,POONA
15. SMT SUNANDA SHEDTHI
AGED ABOUT 54 YEARS W/O JAYA SHETTY R/AT GURUPRASAD,NEAR YUVAKA MANDALA KRISHNAPURA, SURATHKAL MANGALORE TALUK
16. MR MOHAMMED KUNHI
AGED ABOUT 58 YEARS KAPILA OIL,PUMPWELL
5
KANKANADY POST MANGALORE-02
17. MR U ABDULLA
AGED ABOUT 50 YEARS PUMPWELL KANKANADY POST MANGALORE-02
18. SMT LEELA
AGED ABOUT 50 YEARS W/O NBUJANGA SHETTY R/AT ENOLI,PAVOOR POST MANGALORE. ... RESPONDENTS
IN R.S.A.80/2012:
BETWEEN
1. SRI VASANTHA ALVA AGED ABUOT 69 YEARS S/O LATE VEERAMMA SHEDTHI R/AT THARIGUDDE NEERMARGA MANGALORE
2. SMT GULABI SHEDTHI
AGED ABOUT 67 YEARS W/O BHOJA SHETTY RESIDING NEAR KRISHNAPUR MUTT, SURATHKAL, MANGALORE TALUK
3. SRI RAVINDRA ALVA
AGED ABOUT 63 YEARS S/O LATE VEERAMMA SHEDTHY R/AT MAJAPE KESANAMOGARU PUDU POST, BANTWAL TALUK, D K
4. SRI NARASIMHA ALVA
AGED ABOUT 61 YEARS S/O LATE VEERAMMA SHEDTHY R/AT BELMA BARIKE HOUSE BELMA VILLAGE, DERALAKATTE POST MANGALORE TALUK & DIST
6
5. SMT SUNAND SHEDTHI AGED ABOUT 55 YEARS W/O JAYA SHETTY R/AT GURUPARSAD, NEAR YUVAKA MANDALA KRISHNAPURA, SURATHKAL MANGALORE TALUK & DIST. ... APPELLANTS
(By Sri. K ANANDARAMA, ADV.) AND
1. SMT APPI S.PERGADE AGED ABOUT 67 YEARS W/O LATE SHANTHARAM PERGADE
2. MR.TARANATH PERGADE
AGED ABOUT 37 YEARS S/O LATE SHANTHARAM PERGADE
3. KRISHNA @ SATHISH PERGADE AGED ABOUT 34 YEARS S/O LATE SHANTHARAM PERGADE
4. MR PADMA PERGADE
AGED ABOUT 30 YEARS S/O LATE SHANTHARAM PERGADE 1 TO 4 R/AT KOPPARA THOTA HOUSE, PUMPWELL KANKANADI B VILLAGE, KANKANADY, MANGALORE- 575002
5. SMT NAGAMMA SHEDTHI ( DEAD)
AGED ABOUT 74 YEARS W/O KRISHNA SHETTY
6. SMT KALYANI SHEDTHI AGED ABOUT 73 YEARS W/O SANJEEVA SHETTY R/AT KALYANI SHEDTHI COMPOUND, BOKKAPATNA , BOLOOR, MANGALORE- 575006
7. SMT NAGAMMA
AGED ABOUT 60 YEARS W/O LATE SHEENA SHETTY
7
8. SMT JAYANTHI AGED ABUOT 41 YEARS W/O JAYARAMA SHETTY R/AT SHIVA SHAKTI NIVAS, RAMDAS NAGAR POST, KASARGOD TALUK & DIST KERALA STATE
9. MISS VIJAYA
AGED ABUOT 26 YEARS D/O LATE SHEENA SHETTY
10. SRI SHIVANANDA AGED ABUOT 24 YEARS S/O LATE SHEEN SHETTY
11. SMT NALINI AGED ABUOT 22 YEARS W/O PRAKASH SHETTY 9 TO 11 R/T SAVITHRI COMPOUND PINTO LANE, NEAR SATHYANARAYANA BHAJANA MANDIR , BOLAR, MANGALORE
12. SMT SHOBHA SHETTY
AGED ABUOT 33 YEARS W/O LATE KESHAVA SHETTY C/O SMT NAGAMMA KAMALA SHETTY COMPOUND, NEAR POLRAI KATTE, P O BEJAI, MANGALORE-575004
13. MASTER DEEPAK SHETTY
S/O LATE KESHAVA SHETTY REP BY HIS MOTHER & NEXT FRIEND NAMELY RESPONDENT NO.12( A), R/AT KAMALA SHETTY COMPOUND, POLRAI KATTE, P O BEJAI, MANGALORE-575004
14. YASHAVANTHA SHETTY
AGED ABUOT 38 YEARS S/O LATE SHANKARA SHETTY R/AT KAMALA SHETTTY COMPOUND BEJAI ANEGUNDI MANGALORE
8
15. SMT SUMATHI SHETTY
AGED ABUOT 51 YEARS W/O NAGARAJA SHETTY R/AT KAMALA SHETTTY COMPOUND POLRAI KATTE, P O BEJAI MANGALORE- 575004
16. SHREE SEETHARAMA ALVA
AGED ABOUT 65 YEARS S/O LATE VEERAMMA SHEDTHI R/AT YEKKUR MANGALORE
17. SMT SAMPAVATHI ALVA
AGED ABOUT 59 YEARS W/O SANKAPPA SHETTY R/AT PLOT NO. 54, WADUJKAR ESTATE, BEGWAN ROAD, BARAMATHI- 413102, PUNE.
18. SRI HEMANTHA ALVA
AGED ABOUT 57 YEARS S/O LATE VEERAMMA SHEDTHI HOTEL VINAYAKA MARGAW BUS STAND, BARAMATHI, PUNE
19. MR MOHAMMED KUNHI
AGED ABOUT 59 YEARS KAPILA OIL PUMPWELL, KANKANADY POST MANGALORE-575002
20. MR U ABDULLA
AGED ABOUT 51 YEARS KAPILA OIL PUMPWELL, KANKANADY POST MANGALORE-575002
21. SMT LEELA
AGED ABOUT 51 YEARS W/O BUJANGA SHETTY R/AT ENOLI, PAVOOR POST MANGALORE
9
22. SMT SHAMBAVATHI AGED ABOUT 47 YEARS W/O VISHWANATHA RAI R/AT ENOLI, PAVOOR POST AND VILLAGE, MANGALORE
23. SMT SOMAKKE SHEDTHI
AGED ABOUT 75 YEARS W/O SHANTHA SHETTY R/AT IV BLOCK, SITE NO. 180, POST KATIPALLA, MANGALORE
24. SMT SEETHA SHEDTHI
AGED ABOUT 73 YEARS W/O AITHAPPA SHETTY R/AT ALIYAR HOUSE AMBALAMOGARU VILLAGE, MANGALORE TALUK. ... RESPONDENTS
IN R.S.A.2465/2011: BETWEEN
1. SMT SHAMBHAVATHI AGED ABOUT 60 YEARS W/O VISHWANATH RAI R/AT ENOLI, PAVOOR POST MANGALORE
2. SMT SOMAKKAE SHEDTHI
AGED ABOUT 75 YEARS W/O SHANTHA SHETTY IV BLOCK, SITE NO. 180, KATIPALLA, MANGALORE , D.K
3. SMT SEETHA SHEDTHI
AGED ABOUT 73 YEARS W/O AITHAPPA SHETTY R/O ALIYAR HOUSE, AMBALAMOGSU VILLAGE, & POST, MANGALORE TALUK. ... APPELLANTS
(By Sri.SANATH KUMAR SHETTY K., ADV.)
10
AND
1. SMT APPI S PERGADE AGED ABOUT 67 YEARS W/O LATE SHANTHARAM PERGADE
2. THARANATH PERGADE AGED ABOUT 36 YEARS
3. KRISHNA @ LATHISH PERGADE
AGED ABOUT 33 YEARS
4. PADMA PERGADE AGED ABOUT 29 YEARS 2 TO 4 ARE S/O DECEASED SHANTHARAMA PERGADE R/AT KOPPARA THOTA VILLAGE, KANKANADY "B" VILLAGE, KANKANADY, MANGALORE- 575002
5. SMT KALYANI SHEDTHI
AGED ABOUT 73 YEARS W/O SANJEEVA SHETTY KALYANISHEDTHI COMPOUND BOKKAPATNA BOLOOR, MANGALORE- 575006
6. SMT NAGAMMA
AGED ABOUT 60 YEARS W/O LATE SHEENA SHETTY KAMALASHETTY NEAR POLLARI KATTE, BEJAI, MANGALORE- 575004
7. SMT JAYANTHI
AGED ABOUT 41 YEARS W/O JAYARAM SHETTY R/O SHAKTHI NIVAS RAMADAS NAGAR, KASARATGODU DISTRICT KERELA – 671121
8. VIJAYA
AGED ABOUT 40 YEARS D/O LATE SHEENA SHETTY R/O SHAKTHI NIVAS
11
R/O KAMALASHETTY COMPOUND, NEAR POLLARI KATTE, BEJAI, MANGALORE- 575004
9. SHIVANANDA
AGED ABOUT 38 YEARS S/O LATE SHEENA SHETTY R/O KAMALA SHETTY COMPOUND NEAR POLLARI KATTE, BEJAI, MANGALORE- 575004
10. SMT NALINI
AGED ABOUT 36 YEARS W/O PRAKASH SHETTY SAVITHRI COMPOUND, PINTO LANE, NEAR SATYANARAYANA BHAJANA MANDIR, BOLOOR, MANGALORE- 575005
11. SMT SHOBHA SHETTY
AGED ABOUT 33 YEARS W/O LATE KESHAVA SHETTY R/O KAMALA SHETTY COMPOUND POLLARI KATTE, P.O. BEJAI, MANGALORE-575004
12. MASTER DEEPAK SHETTY
S/O LATE KESHAVA SHETTY MINOR, REP BY HIS MOTHER AND NATURAL SMT. SHOBHA SHETTY, RESPONDENT NO.12, R/AT KAMALA SHETTY COMPOUND, POLLARI KATTE, P.O. BEJAI, MANGALORE- 575004
13. YASHAVANTH SHETTY
AGED ABOUT 38 YEARS S/O LATE SHANKARA SHETTY R/O KAMALA SHETTY COMPOUND BEJAI, ANEGUNDI MANGALORE- 575004
14. SMT SUMATHI SHETTY
AGED ABOUT 51 YEARS W/O NAGARAJA SHETTY R/O KAMALA SHETTY COMPOUND BEJAI, ANEGUNDI MANGALORE- 575004
12
15. SRI VASANTHA ALVA
AGED ABOUT 69 YEARS S/O LATE VEERAMMA SHETTY R/O THARIGUDDE NEERMARGA, MANGALORE- 575305
16. GULABI SHETTY
AGED ABOUT 67 YEARS W/O BHOJA SHETTY R/AT KRISHNAPURA MUTT SURATHKAL, MANGALORE- 575014
17. SEETHARAMA ALVA
AGED ABOUT 65 YEARS S/O LATE VEERAMMA SHETTY YEKKUR, MANGALORE- 575006
18. RAVINDRA ALVA
AGED ABOUT 63 YEARS S/O VEERAMMA SHETTY MAJAPE KESANA MOGARU PUDU POST, BANTWAL TALUK, D.K
19. NARASIMHA ALVA
AGED ABOUT 61 YEARS S/O LATE VEERAMMA SHETTY BELMA BARIKE HOUSE, BELMAR VILLAGE, DERALAKATTE, MANGALORE TALUK
20. SMT SAMPAVATHI ALVA
AGED ABOUT 59 YEARS W/O SANKAPPA SHETTY PLOT NO. 54, WADUJKAR ESTATE, BEGWAN ROAD, BARAMATHI- 413102 PUNE
21. HEMANTH ALVA
AGED ABOUT 57 YEARS S/O LATE VEERAMMA SHETTY R/AT HOTEL VINAYAKA MARGAN, BUS STAND, BARAMATHI PUNE- 413102
13
22. SMT SUNANDA SHETTY AGED ABOUT 51 YEARS W/O JAYA SHETTY GURU PRASA, YUVAKA MANDALA, KRISHNAPURA, SURATHKAL, MANGALORE TALUK, D.K- 575014
23. MOHAMMED KUNHI AGED ABOUT 75 YEARS R/AT KAPILA OIL, PUMP WELL, KANAKANADY MANGALORE- 575002
24. U ABDULLA
AGED ABOUT 65 YEARS R/AT KAPILA OIL , PUMP WELL, KANAKANADY POST MANGALORE- 575002
25. SMT LEELA
AGED ABOUT 63 YEARS W/O BHUJANGA SHETTY ENOLI, PAVOOR POST MANGALORE- 575007. ... RESPONDENTS
R.S.A.NO.3/2012 IS FILED UNDER SEC.100 & ORDER XLII RULE 1
R/W ORDER RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 13.9.2011 PASSED IN R.A.NO.76/2010 ON THE FILE OF THE I
ADDL. DISTRICT JUDGE, D.K., MANGALORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED: 5.4.2010
PASSED IN O.S.NO.40/1996 ON THE FILE OF THE I ADDL. SENIOR CIVIL
JUDGE & CJM, MANGALORE.
R.S.A. NO.80/2012 IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 13.9.2011 PASSED IN R.A.NO.76/2010
ON THE FILE OF THE I ADDL. DISTRICT JUDGE, D.K., MANGALORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED:5.4.2010 PASSED IN O.S.NO.40/1996 ON THE FILE OF
THE I ADDL. SENIOR CIVIL JUDGE & CJM, MANGALORE.
R.S.A.NO.2465/2011 IS FILED UNDER SEC.100 R/W ORDER XLII
RULE OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
14
13.9.2011 PASSED IN R.A.NO.76/2010 ON THE FILE OF THE I ADDL.
DISTRICT JUDGE, D.K., MANGALORE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED: 5.4.2010 PASSED IN
O.S.NO.40/1996 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE,
MANGALORE,
THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. These three appeals arise out of the judgment dated
13.09.2011 passed by the learned I Addl. District Judge,
D.K., Mangalore, dismissing R.A.No.76/2010 and thereby
confirming the judgment and decree dated 05.04.2010
passed by the Trial Court in O.S.No.40/1996.
2. R.S.A.No.2465/2011 is filed by plaintiffs 1(b), 2 & 3,
whereas R.S.A.No.3/2012 is filed by defendants 4(a), 4(b),
4(c), 4(d), 4(e) and 3 & 6. Appellants 7 to 9 in
R.S.A.No.3/2012 were not parties before the Trial Court, but
were arrayed as respondents before the lower Appellate
Court. R.S.A.No.80/2012 is filed by defendants 7, 8, 10, 11
& 14. They were arrayed as respondents before the lower
Appellate Court and they were not aggrieved by the judgment
and decree passed by the Trial Court. In other words, it was
only plaintiffs 1(b), 2 & 3 who were aggrieved by the
15
judgment and decree passed by the Trial Court and had
challenged the same before the lower Appellate Court. All
other appellants in the connected appeals had not challenged
the judgment and decree passed by the Trial Court. However,
the fact remains that all of them are fighting for share in the
properties for which occupancy rights have been granted in
favour of the 1st defendant – brother.
3. The suit filed by the plaintiffs in O.S.No.40/1996
seeking partition and separate possession of the alleged joint
family properties came to be dismissed by the Trial Court
holding that the suit schedule lands being the properties for
which occupancy rights were conferred in favour of 1st
defendant under the provisions of the Karnataka Land
Reforms Act, 1961 (for short, ‘the Act’) on the basis of the
application filed by him in Form-7, they were the exclusive
properties of the 1st defendant, therefore, the plaintiffs who
were the sisters (and their legal representatives) were not
entitled for partition in the said properties. The Trial Court
also found that the 1st defendant was the exclusive tenant of
the land and that as on 01.03.1974, when the lands vested
16
in the State, plaintiffs and other sisters of the 1st defendant
were not the members of the joint family, hence they were
not entitled for any share in the granted lands.
4. Aggrieved by the judgment and decree passed by the
Trial Court, the unsuccessful plaintiffs preferred
R.A.No.76/2010 before the I Addl. District, Judge, D.K.,
Mangalore. On re-appreciation of the evidence on record,
both oral and documentary, the lower Appellate Court has
concurred with the findings recorded by the Trial Court,
while dismissing the appeal. In this background, challenging
the concurrent findings of both the courts below, these
Regular Second Appeals are filed.
5. In these appeals, the following contentions are urged
by the learned Counsel for the appellants.
(i) Both the courts below have seriously erred in
construing the contents of Form-7 marked as Ex.P-1 and the
chalageni chit marked as Ex.D-63.
(ii) That the courts below have not applied their mind to
the provisions contained under Sections 6 & 24 of the
17
Karnataka Land Reforms Act while coming to the conclusion
that the daughters of deceased Doomakke Pergadthi were not
entitled for any share in the suit schedule properties.
Reliance is placed on the judgment in the case of
NARENDRA NATH SUPAKAR VS SHAKUNTALA DEVI & ORS. –
AIR 2006 (NOC) 723 (JHAR) and also another judgment in the
case of MISS T.S.VEDAVALLI VS THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY, BANGALORE –
1998(4) KAR.LJ 504. Elaborating the above contention, it is
submitted by the learned Counsel that although the
documents clearly disclosed that the lands were cultivated by
the joint family since time immemorial, both the courts, by
wrongly construing the documents have come to an incorrect
conclusion that the suit properties were exclusively held by
the 1st defendant as tenant and therefore his sisters were not
entitled for any share in the same.
6. I have carefully considered the contentions urged in the
light of the findings recorded by both the courts.
18
7. It is seen from the concurrent findings recorded by
both the courts below that the application in Form-7 was
filed by the 1st defendant seeking occupancy rights claiming
that he was cultivating the land. He has stated in Form-7
that he was cultivating the land for the last 15 years and was
a tenant as per the provisions of the Act. Both the courts
have considered the Form-7 marked as Ex.P-1 by referring to
its contents in coming to the conclusion that the claim of the
1st defendant was not for and on behalf of the family, but it
was in his individual capacity.
8. Learned Counsel for the appellants contends that the
courts below have failed to properly construe the statement
made in Form-7, wherein he has stated that for the last 60
years the land was being cultivated by the family. In this
background, I have perused the findings recorded by the
Trial Court as confirmed by the lower Appellate Court. Both
the courts have specifically referred to the contents of Form-7
and have after appreciation of the same come to the
conclusion that the tenancy was not for and on behalf of the
joint family, but was individual tenancy of the 1st defendant.
19
Useful reference can be made to paragraph 40 of the
judgment of the lower Appellate Court in this regard. It is
clearly stated in the said paragraph that in Form-7 – Ex.P-1,
1st defendant had clearly stated that he was the tenant of the
lands in question and was cultivating the land since 15
years, he has shown his wife and children as his family
members, which indicated that he was cultivating the suit
lands for himself and for his family members consisting of
his wife and children. The lower Appellate Court has found
that even though reference has been made to the cultivation
of the land for the last 60 years by the family, the same could
not be construed to mean that admittedly the tenancy of the
land was that of the undivided joint family consisting of
himself and his five sisters. This approach of both the courts
below in recording the finding that the tenancy was that of
the 1st defendant and not that of the 1st defendant and his
five sisters jointly, is a factual finding returned after
appreciating the oral and documentary evidence on record.
This Court in exercise of its jurisdiction under Section 100
CPC cannot re-appreciate the same to come to a contrary
conclusion.
20
9. Though the learned Counsel for the appellant has
made an endeavour to contend by referring to Sections 6 &
24 of the Act, that in the facts and circumstances of the case,
the tenancy of the 1st defendant enures to the benefit of his
sisters as the land was tenanted initially in favour of the
ancestors of the 1st defendant, there is no foundation in the
facts proved before both the courts for this contention. Both
the courts have held that the land was cultivated by the 1st
defendant as tenant and that his sisters had no right in the
same.
10. Ex.D-63, which is the Xerox copy of the chalageni chit
on which reliance is placed by the appellants to contend that
the land was tenanted in favour of the mother of deceased 1st
defendant and therefore the appellants who are the
daughters of Doomakke Pergadthi have inherited the tenancy
rights, the courts below have, upon consideration of Ex.D-63
have come to the conclusion that it was a chalageni chit for a
single year and that there was nothing to show that as on
01.03.1974, the land was cultivated by the joint family and
the joint family had inherited the tenancy rights. It is
21
necessary to notice here that if the joint family had inherited
the tenancy rights, the sisters who have been married away
would have certainly asserted their rights by filing Form-7 in
their individual capacity or by joining the 1st defendant in
filing Form-7. They were aware that the 1st defendant had
claimed occupancy rights by filing Form-7 in his individual
capacity and was not seeking grant of occupancy rights for
himself and on behalf of his sisters. Even the order of the
Land Tribunal makes it clear that occupancy rights were
granted exclusively in favour of 1st defendant. The said
order is passed as back as in the year 1978. The sisters-
appellants herein did not make any grievance about the
same for nearly 18 years. It is relevant to notice here that
one item of the land for which occupancy rights was granted
came to be sold by the 1st defendant by a registered sale deed
executed in favour of defendants 15 & 16 during the year
1996. It is only thereafter, in the year 1996, that the present
suit is brought seeking partition and separate possession of
the properties granted exclusively in favour of the 1st
defendant. The courts below have bestowed careful and
detailed consideration on this aspect of the matter as well
22
while holding that there was no justification for the claim
made by the appellants. Therefore, neither the provisions of
Sections 6 & 24 of the Act nor the decisions on which the
learned Counsel for the parties have placed reliance have any
application to the facts and circumstances of the present
case. As the scope of this appeal is confined only to the
substantial questions of law and as both the courts have
recorded findings of fact after considering the evidence on
record, I do not find any substantial question of law arising
for consideration. Hence, these appeals being devoid of
merits are dismissed at the stage of admission.
Sd/- JUDGE
KK