Shatawwa and Others vs Parwatevva and Others

B.V. Nagarathna, J.—1. Though this appeal is listed for admission, with the consent of learned counsel for parties, the appeal is taken up for final disposal.

The defendants in O.S. No. 146/2009 have preferred this second appeal, assailing judgment and decree passed in R.A. No. 47/2013 dated 17/10/2014 by Senior Civil Judge & JMFC at Hungund, confirming judgment and decree of the Addl. Civil Judge and JMFC, Hungund, dated 13/9/2013 in O.S. No. 146/2009.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court.

Respondent/plaintiffs filed a suit seeking relief of partition and separate possession of their half share in the suit schedule property. According to the plaintiffs, one Siddayya had two sons, namely Doddayya and Basayya. They lived together as members of a Hindu Undivided Family. The elder son Doddayya died leaving behind his widow, Nagavva and three daughters, who are the plaintiffs. Nagavva also passed away intestate, leaving behind the plaintiffs. Doddayya''s younger brother Basayya, died leaving behind his son Shankrayya, who also subsequently died. Shankrayya''s widow is Shanthawwa-defendant No. 1 and defendant Nos. 2 to 7 are the children of Shankrayya and Shanthawwa. After the demise of Doddayya, Shankrayya filed Form No. 7 under the provisions of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as ''the Act'') before the Land Tribunal, Hungund, for grant of the suit land for the benefit of the family as the plaintiffs and defendants continued in joint possession of the suit lands. When the plaintiffs demanded their half share in the suit lands, defendants failed to allot it to them. Hence, the plaintiffs filed a suit seeking the aforesaid reliefs.

On receipt of suit summons and court notices from the trial court, defendants appeared through their counsel and filed their written statement. They admitted the relationship between the parties. According to them, Siddayya died prior to 1940 leaving behind his two sons, Doddayya and Basayya. That the family had possessed landed property bearing Sy. No. 7, situated at Hungund Taluk, measuring 14 acres 18 guntas. Basayya and Doddayya partitioned the said property in the year 1960. Soon after the partition, Doddayya sold his share in favour of one Hanumanthappa of Rakkasagi, under a registered sale deed. However, Basayya retained his share of the property and after his demise, the defendants succeeded to the said property. Hence, it was contended that after the partition between Doddayya and Basayya, the family never remained as Hindu Undivided Family and there was no joint cultivation of the suit land. That along with Shankrayya, one Ayyappayya had filed Form No. 7 claiming occupancy right in respect of Sy. No. 129. However, the Land Tribunal granted the land in favour of Shankrayya. He paid premium of Rs. 579.96 and Form No. 10 was also issued by the Land Tribunal in his name. Thus, Shankrayya became absolute owner of the suit property and his name was entered in the revenue records. During his life time, he divided the said property into two parts and allotted 5 acres of land to the defendants and retained remaining portion measuring 3 acres 2 guntas. After his demise, that portion of the land, also, had fallen to the share of defendants by way of succession. Hence, the defendants contended that the plaintiffs have no right in the suit property. The suit is barred by limitation and that the suit had to be dismissed.

On the basis of the above pleadings, following issues were framed by the trial court for its consideration:

"i) Whether the plaintiffs prove that the suit properties are granted by the land tribunal for the benefit of family of deceased Doddayya i.e., father of plaintiffs and deceased Shankrayya i.e., husband and father of defendants?

ii) Whether the defendants prove that the father of plaintiffs and father of defendants by name Doddayya and Basayya entered into partition before 1960?

iii) Whether the suit is barred by law of limitation?

iv) Whether this court has no pecuniary jurisdiction to try this suit as averred by the defendant in his written statement?

v) Whether the plaintiffs are entitled for half share?

vi) Whether the plaintiffs are entitled for partition and separate possession?

vii) What order or decree ?"

In support of their case, the plaintiffs examined four witnesses as PWs.1 to 4 and produced 27 documents marked as Exs.P-1 to P-27. The defendants examined two witnesses as DWs.1 and 2 and produced 45 documents, which were marked as Exs.D-1 to D-45. On the basis of the evidence on record, the trial court answered issue Nos. 1, 2, 5 and 6 in the affirmative and issue Nos. 3 and 4 in the negative and decreed the suit of the plaintiffs by holding that the plaintiffs were jointly entitled to half share in the suit properties and that the suit lands had to be divided by metes and bounds and that the defendants were jointly entitled to the remaining half share.

Being aggrieved by the judgment and decree of the trial court dated 13/9/2013, defendants filed R.A. No. 47/2013 before the first appellate court, which, on hearing the respective parties, framed the following point for its consideration:

"Whether the judgment and decree passed by the Additional Civil Judge and JMFC, Hungund, in O.S. No. 146/2009 dated 13/09/2013 is perverse, capricious and liable to be interfered by this court?"

The first appellate court answered the said point in favour of the respondent-plaintiffs and held that the judgment and decree of the trial court does not call for any interference and consequently, dismissed the appeal by confirming the judgment and decree of the trial court. Being aggrieved by the judgment of the first appellate court, defendants in the suit have preferred this second appeal.

I have heard the learned counsel for appellants and learned counsel for respondents as well as perused the material on record.

Appellants'' counsel contended that the respondent-plaintiffs had no right to seek partition in the suit schedule land as the said property was tenanted land. In terms of the judgment of the Division Bench of this Court in Nimbavva v. Channaveerayya [, 2015 (1) KCCR 205 (DB)] married daughters are not entitled to any share in tenanted property. Drawing my attention to the definition of family under sub-section (12) of Section 2 of Karnataka Land Reforms Act, 1961 ["the Act" for short], he contended that the definition of family includes in the case of an individual who has a spouse, his spouse, their minor sons and un-married daughters if any, and it does not include married daughters. Therefore, married daughters have no right to seek partition in the tenanted properties. He also contended that there is no dispute in the instant case that Siddayya the propositus was the tenant of the suit property and thereafter, on his demise, Doddayya and Basayya had continued as tenants but on the demise of Doddayya and in the absence of any male issue would imply, that respondent-plaintiffs who are the married daughters, would not be entitled to any share in the suit lands and it is only the family of Shankrayya, who is son of Basayya who could inherit the suit lands. It is contended that the trial court as well as the first appellate court were not right in holding that the respondent-plaintiffs had right, title and interest in the suit lands and thereby granting the relief. It was, further, contended that on the demise of Siddayya, his two sons Doddayya and Basayya had entered into partition of the joint family properties and that the share of land allotted to Doddayya was sold to a third person by him. That Shankrayya had filed Form No. 7 in his individual capacity and the occupancy rights were granted to Shankrayya in his individual name. The said grant enured to his benefit as his self-acquired property and therefore, the family members of Doddayya had no right, title and interest in the suit properties. He also contended that the suit was barred by limitation. But the courts below did not appreciate that aspect of the matter. He, contended that substantial questions of law would arise in this appeal, which would call for admission of the matter for a detailed hearing.

Learned counsel for the appellants also relied upon a judgment of the Hon''ble Supreme Court in the case of Ishwaragouda & others v. Mallikarjun Gowda & others [, (2009)1 SCC 626] to contend that the trial court ought to have referred the matter to the Land Tribunal in order to decide as to whether the grant of occupancy right was in respect of Shankrayya alone, or enured to the benefit of the entire family, having regard to Section 133 of the Act.

Per contra, learned counsel for the respondent-plaintiffs, supporting the judgment and decree of the Courts below, contended that under Section 24 of the Act, tenancy could be inherited by the heirs of a tenant on the same terms and conditions of which the earlier tenant was holding at the time of death. The said section does not make any distinction between male and female heirs when it is concerning the right of a tenant to inherit tenancy. In the instant case, Siddayya was the tenant of the suit land. On his demise, his sons Doddayya and Basayya had inherited the tenancy. The inheritance of tenancy was to the extent of half share each. After the enforcement of the Karnataka Land Reforms Amendment Act, 1974, Shankrayya filed the application in Form No. 7 on behalf of the joint family as the family remained joint. The grant of occupancy rights was to the benefit of the entire family and not to Shankrayya in his individual capacity as the family remained joint at that time. Hence, the right, title and interest in respect of the half share of tenancy, which was inherited by Doddayya would enure to the benefit of his widow and daughters. Doddayya''s widow Nagavva died and thereafter his daughters, who are the respondent-plaintiffs are entitled to their share in the said lands. The question as to whether the grant of occupancy rights was in the name of Shankrayya alone would not arise in the instant case as the family was joint when the application in Form No. 7 was filed by Shankarayya and therefore, the trial court as well as the first appellate court were right in decreeing the suit. He also contended that the bar, if any, is with regard to seeking partition within the family of Shankrayya vis-�-vis his sons and daughters. That the said bar as has been stated in the decision of the Division Bench of this court would not be as against the share of Doddayya, as plaintiffs are claiming their share in the tenancy. He, therefore, contended that there is no merit in the appeal as no substantial question of law arises in this appeal and hence, the appeal may be dismissed, in limine.

Having heard the learned counsel for the parties and perusing the material on record, it is noted that the relationship between the parties is not in dispute. The original propositus is one Siddayya. He was the tenant of the suit schedule land. On his demise, his sons Doddayya and Basayya inherited tenancy under Section 24 of the Act. Section 24 of the Act reads as under:

"24. Rights of tenant to be heritable.- Where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death."

That Section does not make any distinction between a male and female heir. But it specifies that a tenancy is to be inherited on the demise of the tenant.

The possession or occupancy of land under a lease is by a tenancy. Thus, a tenancy is created by a lease of land. A lease, in its generic sense, is a form of encumbrance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the separation of ownership and possession. Therefore, it is an encumbrance of the owner''s title. Thus, the right which is encumbered by a lease is usually the ownership of a material object. The lessee is one who is rightfully in possession of the land, but does not own it. The lessor of the land who owns it would only transfer the possession to the lessee. Thus, the owner of the land owns it for ever or at any rate till he alienates it by a sale or by any other manner known to law, but the lessee possesses it for a time. Under Section 24 of the Act, tenancy is inheritable by the heir of a tenant on the same terms as the tenant. Thus, tenancy passes on from one tenant to his heir on the same terms as the previous tenant. The heir of a tenant as his representative, has a vested right in him or her by virtue of the inheritable rights of tenancy. Thus, under the Act, the rights of a tenant continue to vest in the heir of a tenant as tenancy is inheritable. Section 24 does not make a distinction with regard to inheritance of tenancy, between a male heir and a female heir of a tenant. Inheritance can be in two ways, namely by a testament (under a Will) or by intestate succession.

In the instant case, on the death of Siddayya, the tenant, Doddayya and Basayya inherited the tenancy in respect of the suit land. Both the courts have held that the family continued to remain joint and the branch of Doddayya and Basayya continued to cultivate the lands jointly. After the demise of Doddayya, Shankrayya filed an application in Form No. 7 under the provisions of the Act seeking grant of occupancy rights. The grant of occupancy rights in the name of Shankrayya would enure to the benefit of the entire family comprising of two branches, which according to both the courts below, had remained joint. In fact, it is not in dispute that just as Basayya had inherited the tenancy Doddayya had also inherited tenancy rights in respect of the land in question. Therefore, the question is with regard to partition and separate possession of the land having regard to the inheritance of tenancy by Doddayya and Basayya. During their lifetime there being no partition of the suit land, the family of Doddayya and Basayya continued to be joint. Therefore, when the application was filed by Shankrayya for grant of occupancy rights, it was not in his individual capacity. It was as a member of the joint family comprising of Doddayya''s branch as well as Basayya''s branch. In fact, Shankrayya had male and female children. It was not as if, only he could have been registered as a sole occupant of the land in question. Thus, it is held that if the Land Tribunal, Hungund, granted occupancy rights in the name of Shankrayya, it enured to the benefit of the entire family, comprising of two branches, whose heads were the heirs of the original tenant, Siddayya.

Thus, in the instant case, as already been noted, the question is with regard to inheritance of tenancy rights and it is in that regard the controversy has arisen. In Smt. Kamala & others v. Smt. Lingamma Hengsu & others [, 2002(2) KLJ 456], this court has held that where a tenant has died prior to 1/3/1974, the right to inherit his estate stands vested in persons who were members of the family at the time of his death. In that case, on the death of widow subsequent to 1/3/1974, it was held that the married daughters were entitled to a share equally along with her other children in her estate as she had inherited the tenancy along with her children on the death of her husband. In that case, the Civil Court by way of preliminary decree in a partition suit, granted an equal share to all children of tenant who died prior to 1/3/1974, which was held to be erroneous and it was modified.

In the instant case, it is noted that Doddayya, first son of the tenant had inherited tenancy rights along with Basayya, his brother who died after the enforcement of the Karnataka Land Reforms Amendment Act, 1974. Thus, as on 1/3/1974, he continued to be a tenant, but the lands stood vested with the State Government. He continued to remain a tenant along with Shankrayya, son of Basayya, as the latter had died by then. The land had vested with the State Government by operation of law under Section 44 of the Act. All that remained was, the registration of occupancy rights on proving tenancy. That was determined by the Land Tribunal, Hungund, on the application filed by Shankrayya. The said application was filed on behalf of the family of Siddayya, including two branches of Doddayya and Basayya, as there had been no partition with regard to tenancy rights vis-�-vis the land in question and that the grant of occupancy rights was ordered by the Land Tribunal for the benefit of both the branches of Doddayya and Basayya. Therefore, in the instant case, what the respondent-plaintiffs are seeking is, the right of half share in the tenancy inherited by their father Doddayya in the suit lands under Section 24 of the Act. This is not a case where after the grant of occupancy rights they are seeking share in the suit lands by way of partition. The judgment of the Division Bench is with regard to seeking a share in the lands by his married daughters where the father was the tenant. The facts of the present case being distinct from the facts as has been stated in Nimbavva v. Channaveerayya, supra, that decision does not apply to the present case.

Learned counsel for the respondent-plaintiffs rightly submitted that the said decision would apply in a case where a partition is to be made in the family of Shankrayya. But that decision would not apply when it is a case of succession to tenancy rights between the two branches namely, Doddayya''s branch and Basayya''s branch as both of them had inherited the tenancy in equal proportion. That being the case, the decision of the Division Bench is not applicable to the present case.

In the case of Balawwa v. Hasanabi [, (2000)9 SCC 272] (Balawwa) a suit was filed for partition in respect of four items of property i.e., two house properties and two landed properties. The trial Court decreed the suit in favour of the plaintiff. The first appellate Court confirmed the decree as far as it related to the house property but reversed the decree insofar as it related to the landed properties. The first appellate Court while doing so, came to the conclusion that the order of the Land Tribunal in favour of those defendants under Section 48A of the Karnataka Land Reforms Act, conferred exclusive title on them and therefore, the plaintiff could not have been granted a right of partition in the same. In appeal, the High Court reversed the decree of the first appellate Court and granted the relief of partition. The judgment of the High Court was upheld by the Hon''ble Supreme Court, by holding that the Tribunal can only grant the relief of declaring occupancy rights in favour of the applicant provided the preconditions for the same are satisfied, namely, that the land was in possession of the tenant concerned on the relevant date. That being the position under the Act, the Tribunal has no jurisdiction to grant the relief of partition, the civil court itself has the jurisdiction to entertain the suit for partition.

In fact, in case of Rati alias Varija v. The State of Karnataka and Others [, ILR 2005 Kar. 5219], it has been held that if the Tribunal has not decided the question as to whether confirmation of occupancy rights is exclusive, then the said decision could be made by a Civil Court when a suit for partition of occupancy rights granted is sought. Similarly, in Narayana and Others v. A.Sadashiva and Others [, ILR 2000 Kar. 487], it has been held that once the occupancy rights are granted to the Tribunal, the lease-hold rights would get converted into freehold right without affecting the other rights of the joint family of which the person to whom occupancy rights are granted, is a member. It is always open to the other members to claim their share in a Civil Court. In Balagouda Alagouda Patil & others v. Babasaheb Ramagouda Patil [, ILR 1999 Kar. 831], it has been held that where tenancy rights have been acquired by a member of the joint family, such rights shall be held to be for the benefit of the entire family.

As it is held that the grant of occupancy rights, though in the name of Shankrayya enures to the benefit of the entire family, as the original propositus Siddayya was the tenant and it was a case of inheritance of tenancy by Doddayya and Basayya''s branch, it is held that Form No. 7 though was filed in the name of Shankrayya, the registration of occupancy rights enured to the family members of Doddayya as well as Basayya, whose son is Shankrayya. Thus, Section 133 of the Act also does not come into play in the present case.

Having regard to the evidence on record, in my view, both the courts below have rightly decreed the suit of the plaintiffs. There is no lacuna in the judgments and decrees of the courts below. No substantial question of law arises in this appeal and the appeal is devoid of any merit.

Appeal is dismissed. Parties to bear their respective costs.