Rudramma and Others vs Nagaraju and Others

S. Abdul Nazeer, J—This appeal is directed against the judgment and decree in R.A. No. 29/2008 dated 30.1.2015 on the file of the Senior Civil Judge & JMFC, Nagamangala.

The respondents filed a suit O.S. No. 17/2004 against the appellants herein for partition and separate possession of the suit schedule properties. According to them, the suit schedule properties are ancestral properties of the plaintiffs and defendants. The propositus of the family was Cheluvaiah. He had two sons, namely, Kariyaiah and Singraiah. The first defendant is the wife of Kariyaiah and other defendants are his children. The properties were cultivated by Cheluvaiah during his life time and after his death, the husband of the first defendant and the father of the original plaintiff, who were in joint possession were cultivating the said land. After the death of Kariyaiah and Singraiah, the plaintiffs and the defendants were in joint possession and enjoyment of the properties. The first defendant being the elder member of the family is making attempts to change katha of the suit schedule properties to her name. The plaintiffs demanded their share in the suit schedule properties, which was refused by the defendants.

The defendants have filed their written statement by denying their relationship with the plaintiffs. It is their specific case that Cheluvaiah, father-in-law of the first defendant and his wife Hanumamma had a son by name Kariyaiah. Kariyaiah is the husband of the first defendant. Cheluvaiah and Kariyaiah were living in joint family. After the death of Cheluvaiah, Kariyaiah as the sole legal heir has succeeded to his properties. Kariyaiah died about 20 years back leaving behind the first defendant and five children, who were defendants in the suit. Item Nos. 1 to 3 were granted to the husband of the first defendant by the Assistant Commissioner, Pandavapura under the grant certificate dated 23.8.1971. After the death of Kariyaiah, she has inherited the properties. Suit schedule item No. 4 is the ancestral property, which belongs to herself and her children after the death of Cheluvaiah thereafter Kariyaiah. The plaintiffs are monthly tenants under the defendants in respect of a portion of item No. 4 of the suit schedule properties. They are residing in the eastern half portion of the suit schedule property on a monthly rent of Rs. 100/- for the past five years. When she requested the plaintiffs to vacate the suit schedule property, they have filed the present suit for partition and separate possession.

On the basis of the pleadings of the parties, the trial Court has framed the following issues:

"(1) Whether the plaintiffs prove that the suit schedule properties are joint family ancestral properties?

(2) Whether plaintiffs prove that the defendants mismanage joint family properties derogatory to the interest of joint family members?

(3) Whether the suit is property valued and this Court has pecuniary jurisdiction?

(4) Whether defendants prove that suit schedule properties are the self-acquired property of her husband Kariyaiah?

(5) Whether suit is bad for non-joinder of necessary parties?

(6) Whether plaintiffs are entitled for 1/2 share in the suit schedule properties as claimed in the plaint?

(7) What order or decree?"

The parties have let in evidence and documents have been marked in their evidence. On appreciation of the materials on record, the court below has decreed the suit by granting 1/8th share to the plaintiffs and 1/10th share to the defendants in the suit schedule properties. The appeal filed by the defendants in R.A. No. 29/2008 has been dismissed by the first appellate Court on 30.1.2015.

The contention of Sri Virupakshaiah, learned Counsel for the appellant/defendants is that suit item Nos. 1 to 3 of the suit schedule properties are the absolute properties of Kariyaiah. The said properties were granted to him by the Assistant Commissioner under the grant certificate dated 23.8.1971. Kariyaiah is the only son of Cheluvaiah and he has succeeded to the properties of Cheluvaiah and after the death of Kariyaiah, the defendants have become the owners of the suit schedule properties including item No. 4, the house property. In the circumstances, the court below is not justified in granting a share to the plaintiffs in the suit schedule properties. Even the first appellate Court is not justified in rejecting their claim.

I have carefully considered the arguments of the learned Counsel for the appellants and perused the materials placed on record.

The case of the plaintiffs is that the suit schedule properties are the ancestral properties. They were cultivated by Cheluvaiah, the propositus. Cheluvaiah had two sons, Kariyaiah and Singraiah. The original plaintiff is the son of Singraiah. P.W1 has deposed before the trial Court that the suit schedule properties are the ancestral properties of his father and the husband of the first defendant. His father and husband of the first defendant were the members of the joint family. There was no partition during the life time of their father and husband of the first defendant. The husband of the first defendant is the elder member of the family and he was looking after the family properties and after his death, the first defendant was looking after the property. P.W2 is an elderly man of the village and is related to the plaintiffs and the defendants. He has deposed that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants and the father of the original plaintiff is the brother of Kariyaiah. He has also stated that father of P.W1 and the husband of defendant No. 1 constituted the joint family and they were enjoying the suit schedule properties jointly. Even though P.W2 was cross-examined at length, nothing worthwhile has been elicited in his cross-examination. The defendants have examined defendant No. 5 as DW1.

As stated above, P.W2 is an elderly person and is also a relative of plaintiffs and the defendants. His evidence would clearly disclose that Kariyaiah and Singraiah are the sons of the propositus Cheluvaiah. It is not in dispute that 4th item of the suit schedule property is the house property belonging to Cheluvaiah. Plaintiffs are in possession of half portion of the 4th item of the suit schedule property. However, according to the defendants, the plaintiffs are the monthly tenants in respect of the said portion of the property. No documents are produced to establish the plea of tenancy. It is also clear that properties were cultivated by Cheluvaiah and after his death, Singraiah and Kariyaiah continued to cultivate the said lands. Though the grant order in respect of item Nos. 1 to 3 was made in favour of Kariyaiah, the elder member in the family, it was for and on behalf of the family. Ex. D2, a grant certificate/saguvali chit, shows that the Assistant Commissioner, Pandavapura, vide order dated 23.8.1971 granted occupancy right in favour of Kariyaiah, husband of the first defendant and father of defendant Nos. 2 to 6 on the ground that the said lands were kulavadi inam lands. After vesting of the said lands, the Assistant Commissioner has granted the said land in favour of Kariyaiah for and on behalf of the family. As stated above, item No. 4 of the suit schedule property is admittedly the ancestral joint family property, which is liable for partition.

In so far as item Nos. 1 to 3 are concerned, grant order has been made in favour of Kariyaiah for and on behalf of the family. The grant made in favour of Kariyaiah being the eldest member of the family could not result in extinction of the rights of the plaintiffs. It is settled that possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. Just because the grant of land was made in the name of the first defendant did not mean that the properties ceased to be joint family properties.

An identical question in relation to inam land inherited by the members of the joint family but in possession and cultivation of one of them, who had obtained occupancy rights under A.P. (Telangana Area) Abolition of Inams Act, 1955 was considered by the Hon''ble Supreme Court in N. Padmamma Vs. S. Ramakrishna Reddy, (2014) 4 RCR(Civil) 981 . It has been held as under:

"10. It is fairly well-settled principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A coheir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other coheirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other......"

It has been further held as under:

"15. It is evident from the above that the right of partition was held to have been lost by operation of law. Till such time the grant was made no such right could be recognized, observed this Court. This Court specifically held that it was not concerned with the consequences that would ensue after grant is made. The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy......."

The principles of law laid down in the aforesaid decision are squarely applicable to the instant case. Therefore, the trial Court has rightly decreed the suit granting a share in the suit schedule properties in favour of the plaintiffs. The first appellate Court is again justified in dismissing the appeal. The appeal does not involve any substantial question of law. It is accordingly dismissed.

In view of the dismissal of the appeal as above, I.A. No. 1/2015 does not survive for consideration. It is accordingly dismissed. No costs.