Smt. Doddawwa and Others vs Sri Vithal Mallappa Balamatti and Others

N. Kumar, J.—This is the plaintiff''s appeal challenging the judgment and decree of the trial Court which has declined to grant a decree for partition and separate possession in respect of Items 1, 2, 3, 4, 5, 7 and 8 and granted a decree only in respect of Survey No. 93/1 of Chinagundi village.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The suit schedule properties items 1 to 7 are all agricultural lands and 8th item is a house property situated at Bijapur. According to the plaintiffs one Mallappa Balamatti was the propositor. He had three sons and a daughter by name Pandappa, Vithal, Channappa and Tangewwa. The first plaintiff claims to be the widow of Pandappa and other plaintiffs are their children. Their case is all the suit schedule properties are joint family properties. The plaintiffs and defendants are living jointly. They are the members of the joint Hindu family and they are in joint possession and enjoyment of the properties. When the defendants obstruct their joint possession and enjoyment, the elders in the village tried to mediate and sort out the problem, when it failed, they have no other option except to file a suit for partition and separate possession. Defendants 1, 2 and 3 are the two sons and a daughter of Mallappa Balamatti. 1st defendant filed a written statement contesting the claim. They admitted that Pandappa and defendants are the sons and daughter of deceased Mallappa Balamatti. However, according to them, genealogy is wrong. The said Pandappa has gone in adoption on 11.05.1957 as per customs and under a registered adoption deed to one Sri Pandappa S/o Bhimappa Melligeri. The plaintiffs got their names entered in the suit properties without their knowledge illegally. The plaintiffs are not the members of the joint family, they are not in joint possession of the property. It was also contended that one Kasawwa was the wife of Pandappa and one Yankappa is his son. They are not made parties to the suit. The plaintiffs are not the legal representatives of the deceased Pandappa. Defendant No. 2 filed a memo adopting the written statement of defendant No. 1.

On the aforesaid pleadings, the trial Court framed the following six issues:

(1) Whether plaintiffs prove that their father Pandappa together with defendants constituted a Hindu joint family?

(2) Whether plaintiffs further prove that such a joint family properties as such in the form of suit schedule properties in which they have a share?

(3) Whether plaintiffs prove that they are entitled for the relief of partition and separate possession of their share in the suit schedule properties by metes & bounds?

(4) Whether defendants prove that the plaintiffs suit is bad for non-joinder of necessary parties like Smt Kasawwa & Sri Venkappa and that the plaintiffs are stranger to their family as such not entitled for the reliefs being sought in the suit?

(5) Whether the defendants prove that plaintiff''s suit is barred by limitation and the declaratory relief is a necessity?

(6) What order or decree?

The plaintiffs in support of their case examined the 1st plaintiff as PW- 1 and they also examined one of the sons Prakash as PW-2 and a witness by name Satyappa Yankappa Vantagodi as PW-3. They have produced 51 documents, which are marked as Ex.P1 to Ex.P51. On behalf of the defendants, 1st defendant was examined as DW-1. They have produced 8 documents, which are marked as DW-1 to DW-8.

The trial Court on appreciation of oral and documentary evidence on record held that the plaintiffs have failed to prove that their father Pandappa together with defendants constituted a Hindu joint family. Further the plaintiffs have failed to prove that they have a share in the suit schedule properties except in respect of Survey No. 93/1 The trial Court held that the plaintiffs are not entitled for the relief of partition and separate possession in respect of other items of the properties. It held that the suit is not bad for non-joinder of necessary parties. In fact, coming to the conclusion the main issues whether the Pandappa has gone in adoption in the year 1957 and thus he is ceased to be a member of the joint family was not raised in the suit. However, though no specific issue was raised, the parties understood the issue involved, led evidence, relying on the admissions of PW-1 and PW-2 who unequivocally admitted that the deceased plaintiff had gone in adoption prior to 1957, it recorded a finding that the Pandappa ceased to be a member of the joint family. After his death, the plaintiffs who claimed to be LRs cannot be held as member of the joint family, they belong all together different family. Therefore, it dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree of the trial Court, the plaintiffs are in appeal.

The learned Counsel for the plaintiffs assailing the judgment and decree contended, in the first place, no specific issue regarding validity of adoption was raised, but a finding is recorded that the deceased Pandappa is the adopted son. Therefore, the judgment and decree of the trial Court requires to be interfered with on that ground. Secondly, he contended that once the adoption is held to be not proved admittedly, the suit schedule properties are joint family properties and plaintiffs being son of the deceased Mallappa, on his death, the plaintiffs are entitled to 1/3rd at least 1/4th share in the suit schedule properties. Therefore, he contends that to that extent the judgment is wrong. Lastly, he contended that when an application is filed by plaintiff before the Land Tribunal seeking for grant of occupancy rights, it has been granted. It is his exclusive property. Therefore, defendants 1 and 2 have no share in the said property. This aspect has not been properly appreciated by the trial Court. Therefore, he contends that the judgment and decree of the trial Court requires interference.

Per contra, learned Counsel for the respondents submitted when once in the evidence, it is admitted by the plaintiffs 1 and 2 that the deceased Pandappa had gone out of the family in adoption, he ceased to be a member of the joint family, he had no title or interest in the joint family properties and therefore, the trial Court was justified in dismissing the claim of the plaintiffs. He further contended though the tribunal granted occupancy rights in favour of deceased Pandappa along with defendants 1 and 2, the tenancy was that of Mallappa and Pandappa has no right in the property. Further he contended that Pandappa''s wife was Kasawwa, through whom he had a son by name Yankappa. They are not made as parties to the suit. Secondly, when first wife was very much alive, the second wife has no legal right over the properties whatsoever. Therefore, he submitted that the judgment and decree of the trial Court requires no interference.

In the light of the aforesaid facts and rival contentions, the points that arise for consideration in this appeal is as under:

Whether the finding of the trial Court that Pandappa Melligeri had gone in adoption and therefore, he ceased to be member of a joint family consisting defendants 1 to 3 and their father is valid, without a specific issue being framed in this regard?

Whether the occupancy rights granted in respect of Survey No. 93/1 is the exclusive property of deceased Pandappa Melligeri?

Point No. 1: The plaintiffs have pleaded that all the suit schedule properties are the joint family properties of Mallappa and his children. It is not in dispute that he had three sons and a daughter. One such son being Pandappa, the husband of the 1st plaintiff and father of other plaintiffs. In the written statement, the defendant No. 1 has specifically pleaded that the deceased plaintiff was the son of Mallappa, he had gone in adoption on 11.05.1957 as per customs and registered document deed to one Sri Pandappa Bhimappa Melligeri. Therefore, they contended that the plaintiffs are not the members of the joint family. It is true that the trial Court did not frame an issue regarding adoption. But it is unfortunate that both the parties also did not take any steps to get the said issue framed. But nonetheless both the parties knew that what was the matter in issue. The defendants knew that if they have to succeed in the suit, they have to establish adoption. In the nature of things, the original adoption deed would not be in possession of the defendants. It should have been in the possession of plaintiffs. It is not produced. Defendants could have obtained a registered adoption deed and produced the same which they have not done. But at the same time in the cross examination of PW-1 who claims to be the wife of the said Pandappa has unequivocally admitted that her husband Pandappa is also called Melligeri. It is his surname. Her husband Pandappa was taken in adoption by Chinnawwa wife of Pandappa Melligeri. The said Chinnawwa is no more. Her husband Pandappa is also no more. This adoption took place about 30 to 35 years back. The said Chinnawwa and her husband Pandappa were owing about 23 acres of land. That land stands in the name of Pandappa, the husband of the 1st plaintiff. She says she has given it on lease and cultivating the said land. Her son Prakash who has been examined as PW-2 has deposed that Pandappa his father was given in adoption to the family of Melligeri. The name of the adoptive father of his father is also Pandappa. The name of the father of his father is not Pandappa Balamatti. It is Melligeri. Pandappa, the adoptive father was owning 23 acres 20 guntas in Tungala village. He also owned a house. After his death, the name of his grand mother Chinnawwa was entered in respect of the said property. After her death, the name of her father is entered in respect of the said land and the house. In fact, when they made an application for mutating their name, after the death of Pandappa, 1st defendant filed objection contending that Pandappa has left behind wife by name Kasawwa and a son by name Yankappa. The Deputy Tahasildar after enquiry, entered the name of Kasawwa and Yankappa. That order is under challenge. It is on consideration of this evidence, by way of admission available on record, the trial Court held that the deceased Pandappa ceased to be a member of the joint family from the year 1957 and therefore his LRs, the plaintiffs are not entitled to a share in the said property as the deceased Pandappa himself had no share in the property. When the parties understood the case, led evidence, argued the matter and invited a finding by the Court merely because a specific issue was not framed regarding adoption, it would not vitiate the judgment and decree of the trial Court. In fact while discussing issue No. 1 as framed, the trial Court has kept in mind the dispute between the parties, evidence adduced on record and rightly negatived the case of the plaintiffs. That apart, the adoption is of the year 1957. The suit is filed in the year 1997 nearly about 40 years. Therefore, in the nature of things, it is not possible to examine any eye witness to such adoption. As stated earlier when it is by way of registered adoption deed, deed could have been produced which defendants have failed to produce, but in the light of the admissions by PW1 and PW2 in the cross examination, circumstances and acceptable material on record, the finding recorded by the trial Court that he ceased to be a member of the joint family as he was given in adoption is fully corroborated and the said finding is based on legal evidence on record and does not call for interference.

Point No. 2: Insofar as granting occupancy rights in respect of Survey No. 93/1, no doubt tenancy right is that of Mallappa but when they have filed the application, it was mentioned that it belongs to the joint family. The deceased Pandappa and defendant 1 and 2 had made the application. The tribunal held enquiry and granted occupancy rights to all the three persons, as if they are the members of the joint family. The said order is not challenged by defendants 1 and 2. When once the tribunal grants occupancy rights in respect of a land, the Civil Court has no jurisdiction to declare that the order passed by the Land Tribunal as invalid and void or do not confer any right and deny tenancy right granted by the tribunal. Therefore, so far as Survey No. 93/1 is concerned, as the land tribunal has granted occupancy rights to all the three persons, Pandappa has 1/3rd share in that, the trial court was justified in granting 1/3rd share to the plaintiff.

In so far as the contentions regarding Pandappa'' wife Kasawwa and his son Yankappa are not made parties and the plaintiffs are not the legal heirs are concerned, it is a matter to be agitated between 1st wife and her son and the plaintiff. Defendants 1 and 2 have no say in the matter. It is wholly unnecessary to go into the said dispute in this case. Therefore, the finding of the trial Court as that the suit is not bad for non-joinder of the parties to the suit do not call for interference. In that view of the matter, we do not see any merit in this appeal. Accordingly, the appeal is dismissed.