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Judgment
V.G. Sabhahit, J.—This appeal is filed by defendant Nos. 2, 3, 5 to 9 in O.S. No. 234/1998 on the file of the I Addl. Civil Judge, (Sr.Dn.), Bagalkot, being aggrieved by the judgment and decree dated 31.07.2002 wherein the trial court has decreed the suit of the plaintiffs/respondent Nos. 1 to 4 herein by holding that the plaintiffs are entitled to half share in suit schedule ''B'' and ''C'' properties and ordered preliminary decree to be drawn accordingly. The essential facts of the case leading up to the filing of this appeal are as follows:
Respondent Nos. 1 to 4 herein filed O.S. No. 234/1998 on the file of the Civil Judge (Sr.Dn.), Bagalkot, on 18.08.1998 seeking for
i) a declaration that the plaintiffs are the owners in possession of the suit schedule ''B'' and ''C as joint owners of lands,
ii) a consequential perpetual injunction against defendants 1 to 9 restraining them from interfering with peaceful possession and enjoyment of the portions of the lands described in suit ''B'' schedule,
iii) in the alternative; i) plaintiffs be granted a preliminary decree for partition and separate possession of half share in all the lands described in plaint ''C'' schedule.
It is the contentions of the plaintiffs as averred in the plaint that Noorandappa was the original propositus. He had four sons Amarappa, Adappa, Parappa and Gurappa. Amarappa died in the year 1977 leaving behind his wife and children defendant Nos. 1 to 4 in the suit. Adappa died in the year 1978 leaving behind his wife and children defendant Nos. 7 to 9. The plaintiffs are the children of Parappa who died in the year 1991 and their mother predeceased their father Parappa. Gurappa died in the year 1987. His wife is also dead and defendant Nos. 10 and 11 are the children of Gurappa. It is the case of the plaintiffs that Gurappa, the youngest brother migrated to his wife''s place in his young days and he was given financial assistance by Parappa and therefore Gurappa had given up his four Anna share in the lands jointly cultivated as tenants in favour of Parappa prior to round about 1965 or so. Since then Gurappa was permanently residing at Navanahalli in Kushtagi taluka, Koppal district. As the landlords were receiving all rents and extra benefits and financial help from Parappa R.S. Nos. 48/5, 49/5 and 47/3 were sold by the landlord on 20.07.1968 in favour of Amarappa, Adappa and Parappa and it has been clearly noted in the sale deed that they were the tenants of these lands. Similarly, in respect of R.S. No. 106, the southern portion which is described as being in possession of plaintiffs in the ''B'' schedule was also purchased by Parappa for Rs. 5,000/-from the landlord of R.S. No. 106, Sri.Venkatesh Raghavendra Joshi on 11.05.1973 and there also it has been clearly mentioned in the sale deed that it was sold to the tenants. On the same day, the northern half of R.S. No. 106 was agreed to be sold for Rs. 2,500/- in favour of these three brothers Amarappa, Adappa and Parappa by Sri. V.R. Joshi. As the father of plaintiffs was a teacher, in the record of rights, the names of only Amarappa and Adappa were recorded in the Pahani columns and shown as tenants and as the Land Reforms Amendment Act came into force on 01.03.1974, the application had been filed in Form No. VII by Amarappa and Adappa whose names appeared in the record of rights and though the property had been sold in favour of the brothers as narrated above, the Tribunal by order dated 25.04.1975 granted occupancy rights in respect of R.S. No. 106 for the entire area of 20 acres 11 guntas which was not necessary since there was already a registered sale deed prior to 01.03.1974 in respect of 10 acres and odd guntas i.e., southern portion and therefore the grant of occupancy rights in the name of Amarappa and Adappa is on behalf of joint family of themselves and Parappa. Apart from this obviously the order is illegal and void abinitio so far as southern half mentioned in suit R.S.106 as described in schedule ''B'' as this property was not tenanted on 01.03.1974 in view of the registered sale deed and even the application disclosed that the three R.S. numbers owned by three brothers i.e., garden lands in ''C schedule are shown in the application which clearly were owned by three brothers. It is further averred that there was harmony among three brothers and Parappa was managing and looking after the joint family. The record of rights continued without being corrected and entering the name of Parappa as joint owner. Even after his death in 1991, no entries were made since on account of harmony in the family. But, prior to 1965 four Anna share of Gurappa was surrendered in favour of Parappa, actually under the oral partition as per the description in Schedule ''B'' in all the properties the deceased Parappa and after his death plaintiffs have been in actual portion of southern portion of R.S. No. 106 as described in ''B'' schedule. During the year 1992-93, a Pot Hissa was conducted in the village and at that time the Taluk Surveyor had reported to the ADLR that plaintiff No. 1 in this case, Channamallikarjun was actually in possession of half southern portion measuring 10 acres and odd as per ''B'' schedule but as the name of plaintiff was not in the record of rights on the report of ADLR the Tahsildar did not intimate the ADLR to effect finally the sub-division survey, though reference was made by ADLR to the Tahsildar under BSA.CR. 161/92-93 dated 08.2.1003 and the endorsement made to the Tahsildar on 10.10.1993 under HNPR 201/92-93 by ADLR. It is further averred that RTS proceedings were initiated for entering the name of the plaintiffs as joint owners along with Amarappa and Adappa. Taking undue advantage of the fact that the name of Adappa and Amarappa was appearing, the legal representatives are claiming their ownership over the property and therefore the suit is filed for the above said relief.
Defendant No. 9 filed written statement. The suit was resisted by the plaintiffs denying the averment made in the plaint, that the lands bearing R.S. No. 106, 48/5, 49/5 and 47/3 were cultivated by the joint family of four brothers as shown in the genealogy from the time of ancestors of Noorandappa. They also denied the averment made in the plaint regarding the fact that the order passed by the Land Tribunal is void and further contended that Gurappa had gone away from the family and had relinquished his rights in favour of Parappa in respect of the properties in 1965 and it is also false to say that Parappa had given financial assistance to Gurappa. Hence, the plaintiffs have no right, interest over the suit properties and since from the partition which has been held long years back they are in separate possession and separate enjoyment of their respective shares.
Defendant No. 11 filed written statement admitting that his father Gurappa had taken financial assistance from Parappa and therefore gave up his share in favour of Parappa and supported the plaintiffs regarding the averment made in the plaint.
Having regard to the above pleading, the following issues and additional issues were framed:
Whether the plaintiffs prove that Parappa has given financial assistance to Gurappa and Gurappa had given his four (04) Anna share in the lands cultivated as tenants in favour of Parappa about the year 1965?
Whether the plaintiffs prove that the grant of occupancy rights in the name of Amarappa and Adappa is on behalf of the joint family of themselves and Parappa?
Whether the plaintiffs prove the title and possession of the ''B'' schedule lands?
Whether the plaintiffs proves the threat to the possession and denial of title by the defendants No. 1 to 10?
Alternatively, whether the plaintiffs are entitled for 16 share in all the suit lands described in schedule ''C'' annexed to the plaint?
Whether the plaintiffs are entitled for the reliefs claimed?
What order or decree?
Additional issues:
Whether the plaintiffs prove the sale of southern half portion of land of R.S. No. 106 of Nagur in favour of plaintiffs father, Amarappa and Adappa on 11.05.1973 by land-lord?
Whether the plaintiffs prove that the land lord also executed an agreement of Northern half portion of R.S. No. 106 of Nagur dated 11.05.1973 in favour of plaintiff''s father Amarappa and Adappa?
What is the legal effect grant of occupancy rights ignoring the documents mentioned in the form VII application?
On behalf of the plaintiffs'' side PWs-1 to 4 are examined and got marked documentary evidences Ex.P.1 to Ex.P.48. On behalf of defendants'' side, DWs-1 and 2 are examined and documents Ex.D.1 to D.31 are marked. The trial court after considering the contention of the learned counsel appearing for the parties and appreciating the oral and documentary evidence adduced before it held that the ''B'' schedule properties bearing Sy. No. 106 was being cultivated jointly and that though the Land Tribunal had granted occupancy rights in favour of Amarappa and Adappa, since it was a joint family tenancy other brothers were also entitled to share and since admittedly Gurappa had surrendered his share in favour of Parappa, the plaintiffs who are the legal representatives of Parappa are entitled to half share in the schedule property. However, the trial court held that the plaintiffs are entitled to half share in other three properties also in ''B'' schedule comprising of Sy. No. 48/5 measuring 10 guntas and 47/3 measuring 6 guntas and held that it was the property enjoyed by all the brothers at equal share in view of surrender of share of Gurappa in favour of Parappa and accordingly decreed the suit of the plaintiffs. Being aggrieved by the said judgment and decree, this appeal is filed by defendant Nos. 2, 3, 5 to 9 the legal representatives of Amarappa and Adappa.
We have heard learned counsel appearing for the appellants and the learned counsel appearing for respondents 1 to 4. Other respondents though served with notice have not appeared before this court.
Learned counsel appearing for the appellants has taken us through the evidence of PWs-1 to 4 and documentary evidence marked on behalf of the plaintiffs Ex.P.1 to Ex.P.48 as also the witnesses examined and the documents marked on behalf of the defendants DW-1 and DW-2 and Ex.D.1 to Ex.31 and submitted that the original propositus Noorandappa died in the year 1935 itself and the tenancy was created in the year 1948 only in favour of Amarappa and Adappa and therefore Parappa and Gurappa had no share in the suit property as Sy. No. 106 was the tenancy property in favour of Amarappa and Adappa who died leaving behind the appellants as the legal representatives and the legal representatives of Parappa and Gurappa are not entitled to any share in the said partition. He has taken us through the order passed by the Land Tribunal as also the sale deed Ex.P.6 and 7 and other documentary evidence produced in that regard to substantiate his contention. Learned counsel further submitted that as per Ex.P.7, the other three properties were purchased under the registered sale deed dated 20.07.1968 executed in favour of Amarappa, Adappa and Parappa only by one Mahantappa Sobarad for a consideration of Rs. 400/- and Gurappa had no share in the said property and question of granting 50% share in favour of the plaintiffs would not arise and that they are not the joint family properties to which Gurappa had any share and that the three brothers are already in possession of 1/3rd share.
Learned counsel for respondents 1 to 4 submitted that the tenancy was claimed by Amarappa and Adappa only. On the basis of the entries made in their favour, tenancy was created and there was a joint family tenancy which has been inherited by not only Adappa and Amarappa but also by Parappa and Gurappa and Gurappa has admittedly surrendered his 25% share in favour of Parappa and therefore the finding of the trial court that the plaintiffs are entitled to 50% share in the said Sy. No. 106 is justified. Learned counsel further submitted that since the other properties have been purchased under Ex.P.7 by three brothers, Gurappa who is the brother of Adappa, Amarappa and Parappa was also entitled to share which has been relinquished in favour of Parappa and therefore the plaintiffs are entitled to 50% share in the said properties also.
We have given our careful consideration to the contentions of the learned counsel appearing for the parties and scrutinised the material on record and reappreciated the oral and documentary evidence adduced by the parties to find out as to whether the finding of the trial court is justified. Having regard to the contentions urged, the points that would arise for our consideration in this appeal is:
i) Whether the finding of the trial court that the plaintiffs are entitled to 50% share in Sy. No. 106 measuring 20 acres 11 guntas situated at Nagur village in Hungund taluk and that they are also entitled to half share in Sy. No. 48/5, 49/5 and 47/3 as described in ''C'' schedule to the plaint is justified or calls for interference in this appeal?
ii) what order?
We answer the above points as follows: The finding of the trial court that plaintiffs are entitled to 50% share in Sy. No. 106 is justified. However, the decree passed in respect of R.S. No. 48/5, 49/5 and 47/3 is liable to be set aside. On scrutiny of the evidence adduced by the parties and the documentary evidence produced by them, it is clear that the genealogy is not disputed. Noorandappa died in the year 1935 leaving behind his four sons namely Amarappa, Adappa, Parappa and Gurappa. The fact that Amarappa, the first son of Noorandappa died in the year 1977 leaving behind his wife and children defendants 1 to 6 is also not disputed. Similarly it is also not disputed that Adappa, the second son of Noorandappa died in the year 1978 leaving behind his wife and children namely defendants 7 to 9. It is also not disputed that Parappa, the third son of Noorandappa died in the year 1991 wherein his wife had predeceased him and he left behind plaintiff Nos. 1 to 4. However, another son Ravi had died unmarried. Gurappa died in the year 1992 leaving behind his wife who is also dead and children defendants No. 10 and 11. It is clear from the evidence of PW-1 that he has reiterated the averment made in the plaint and nothing has been elicited in his cross-examination to disbelieve his evidence about the relationship among the parties and also the tenancy. The suggestion that there was partition of the property among the brothers and they are in possession of the respective properties has been denied. The evidence of PW-2 is that he was working as a teacher and he had retired about 2 to 3 years back. He has spoken to about the fact that the legal representatives of Parappa were cultivating 10 acres of land and the legal representatives of Adappa and Amarappa were cultivating 10 acres of land in Sy. No. 106 since 50 years. Nothing has been elicited in his cross-examination to disbelieve his evidence regarding the said cultivation of land. However, his evidence would not in any way help the plaintiffs to prove that the tenancy was the joint family tenancy and that other lands other than Sy. No. 106 which was a tenanted land was also joint family property in which plaintiffs are entitled to share. PW-3 has deposed that he is an agriculturist and owns R.S. No. 101 which is adjacent to R.S. No. 106. He has also deposed about the lands being cultivated by the legal representatives of Amarappa and Adappa and the half portion being cultivated by Parappa. Nothing has been elicited in his cross-examination also to disbelieve his evidence. PW-4 has deposed that he is the owner of R.S. No. 105 which is adjacent to R.S. No. 106 and he has also stated that southern portion of the land is being cultivated by Chennamallikarjuna/plaintiff No. 1 S/o Parappa and the northern portion is being cultivated by the children of Adappa and Amarappa since 40 years. Nothing has been elicited in his cross-examination to disbelieve the evidence. On behalf of the defendants, defendant No. 9 has been examined as DW-1 and he has stated that Sy. No. 106 measuring 20 acres 11 guntas originally belonged to Venkatesh Raghavendra Joshi and this land was cultivated in the relationship of a tenant by Amarappa and Adappa and that Parappa and Gurappa never cultivated the said land and they are not concerned with this land and that occupancy rights was granted in favour of Amarappa and Adappa. Therefore, the plaintiffs are not entitled to any share in R.S. No. 106 or other properties. In his cross-examination he has denied the suggestion that R.S. No. 106 was the joint family tenancy and southern portion was being cultivated by PW-1 who is the son of Parappa and the sons of Adappa and Amarappa were cultivating the northern side of the said survey number measuring 10 acres and that the plaintiffs are entitled to share in ''C'' schedule properties. It is elicited in his cross-examination by defendant No. 11 that his uncle Gurappa went to Navalalli village after his marriage as Navalalli village is the parental house of his wife and it is false to say that he has not gone in adoption to Navalalli village and that he has not produced any documents with regard to adoption of defendant No. 11. He has also denied the suggestion that there is no connection with regard to the said land for the financial assistance to Venkatesh Joshi, advanced by his father. DW-2 Andappa has deposed that he is an agriculturist and has stated that he knows the plaintiffs and the defendants and has spoken to about the relationship among the parties and has further stated that the legal representatives of Amarappa and Andappa are cultivating the lands and defendants Nos. 2, 3 and 4 are the sons of Amarappa and are cultivating half portion of the land and defendant Nos. 7 and 8 are cultivating half share in this land and that Parappa and Gurappa have no right in the tenanted land. It is elicited in his cross-examination that he has not taken any contention in the written statement that his uncle Gurappa had gone in adoption and has denied the suggestion that the plaintiffs have got share in the schedule properties.
The documentary evidence produced on behalf of the plaintiffs comprise of the extract of record of rights as per Ex.P. 1 to Ex.P.4 in respect of the suit schedule property wherein in respect of R.S. No. 106, the name of Amarappa has been shown even after his death and in respect of R.S. No. 48/5 and 49/5, the names of three brothers Amarappa, Adappa and Parappa is shown. Ex.P.5 is the sale deed executed by Venkatesh Raghavendra Joshi in respect of 10 acres of land and Ex.P.7 is the sale deed under which the property described at S1. Nos. 2 and 3 in ''C'' schedule was purchased by Adappa, Amarappa and Parappa for consideration of Rs. 400/- from the vendor Mahantappa Sobarad. Ex.P.8 is the document relating to relinquishment deed. Ex.P.9 which is Form No. 7 clearly shows that it was filed by Amarappa and Adappa on 13.08.1974 claiming tenancy rights as they were cultivating the said land since 50 years. This would clearly probabilise the version of the plaintiffs that Noorandappa was the tenant of the said land and the same has been inherited by his four sons including Gurappa. However, the order passed by the Tribunal dated 25.04.1975 which is produced at Ex.P.10 shows that the Tribunal has conferred occupancy rights in respect of entire extent of R.S. No. 106 measuring 20 acres 11 guntas. The other documents produced pertain to the revenue receipts and money order acknowledgements. The documents produced on behalf of the defendants comprise of Ex.D.1 to Ex.D.4, the Record of Rights for the period from 1970 to 2001 and Ex.D.5 to 23 the revenue receipts. Ex.D.26 is the order copy of Land Tribunal, Hungund and Ex.P.27 is the application by Amarappa and Adappa to the Land Tribunal, Hungund. Ex.D.29 and 30 are the ''D'' entries made and Ex.P.31 is the voter''s list for the year 1995 of Nagur village. It is clear on reappreciation of the above said material on record that there is no dispute about the relationship of the parties and about the date of death of Noorandappa and his sons having regard to the averment made in the application filed before the Land Tribunal Ex.P.7. It is clear that tenancy was created 50 years ago i.e., in the year 1924 much before the application was filed before the Land Tribunal and that Noorondappa had died in the year 1935 and this would clearly probabilise the contention of the plaintiffs that the tenancy was created when Noorandappa was alive and after his death, his four sons have succeeded to the said tenancy and therefore the tenancy was joint family tenancy. Though the entries were made in favour of Amarappa and Adappa, the name of Parappa could not be entered in the revenue records as he was working as a teacher in a government school and it is now well settled that when there is no rival claim before the Tribunal about the joint family tenancy or individual tenancy, it is for the civil court to decide as to whether the occupancy right granted in favour of members of the family would enure to the other members of the family. Having regard to the evidence of PW-1 to PW-4 as also the evidence of DWs-1 and 2, it is clear that defendant Nos. 10 and 11 who are the children of Gurappa do not dispute that their father had surrendered his share in favour of Parappa. Half of the land in Sy. No. 106 measuring 10 acres is cultivated by Channamallikarjuna/plaintiff No. 1 s/o Parappa and other 10 acres is being cultivated by the legal representatives of Amarappa and Adappa and therefore it is clear that the tenancy was joint family tenancy and all the four sons would have been entitled to 1/4th share in the schedule property in R.S. No. 106 of ''C'' schedule property. However, since admittedly Gurappa had surrendered his share in lieu of the financial assistance rendered to him by Parappa, the trial court has held that the plaintiffs would be entitled to Gurappa''s share also and has granted 50% of the said land bearing R.S. No. 106 measuring 20 acres 11 guntas and the said finding is justified. However, it is clear from the perusal of Ex.P.7 that the three other items of ''B'' schedule property namely R.S. Nos. 48/5, 49/5 and 47/3 measuring totally 36 guntas was purchased under the sale deed dated 20.07.1968 by Amarappa, Adappa and Parappa from Mahantappa Sobarad and therefore that is the joint family property. The said sale deed would show that item Nos. 2, 3 and 4 in ''C'' schedule are not the joint family properties and it is the property of Amarappa, Adappa and Parappa which are not available for partition and their legal representatives have succeeded to the said property in 1/3rd share and it is submitted by the learned counsel appearing for the parties that they are already in possession of 1/3rd share each. Accordingly, to that extent, the order passed by the trial court decreeing the suit in respect of item Nos. 2, 3 and 4 of the ''C'' schedule is liable to be set aside. Accordingly, we answer the point that arose for our determination and pass the following order: The judgment and decree passed by the trial court holding that the plaintiffs are entitled to 50% share in Sy. No. 106 measuring 20 acres 11 guntas situated at Nagur village is confirmed.
The finding and decree passed by the trial court that the plaintiffs are also entitled to 50% share in R.S. No. 48/5 measuring 20 guntas, R.S. No. 49/5 measuring 10 guntas and 47/3 measuring 6 guntas situated at Nagur village is set aside.
However, there shall be no order as to costs in this appeal.