Tulasappa Budhappa Zapate vs Yashodhabai Gundappa Zapate and Others

S. Sujatha, J—This appeal is directed against the judgment and decree of the lower appellate Court modifying the judgment and decree of the trial Court.

The facts in brief are:

The plaintiff filed the suit for the relief of partition and separate possession against the defendants claiming his right as the son of Sri Buddappa who was permanent tenant cultivating the suit properties. The said suit was resisted by the defendants contending that the suit properties exclusively belongs to the defendants by virtue of the occupancy rights granted by the Land Tribunal. After considering and evaluating the evidence on record, the trial Court dismissed the suit. Being aggrieved by the said judgment and decree, appeal was preferred by the plaintiffs. The lower appellate Court after re-appreciating the evidence, allowed the appeal in part, modified the judgment and decree of the trial Court holding that the plaintiff is entitled for half share in the suit properties bearing R.S. Nos. 41 and 54/2 situated at Karanjal village in Khanapur Taluk. The said judgment and decree of the lower appellate Court is impugned in this appeal.

The learned counsel appearing for the appellant contended that the trial Court without appreciating the material evidence on record dismissed the suit.

Per contra, learned counsel appearing for the respondents supports the judgment and decree passed by the Courts below and contended that, when the suit property was originally a joint family property, the deceased Buddappa, father of plaintiff and defendants was cultivating the land bearing R.S. Nos. 41 and 54/2, the Land Tribunal granted occupancy rights in favour of the joint family based on the mutation entry i.e., M.E. No. 210 dated 17.11.1973. Though occupancy rights standing in the name of the defendant, he does not have any exclusive right over the property, the same being the joint family property.

After hearing the learned counsel appearing for the parties and perusing the material available on record, it is noticed that defendants have failed to establish that there was an earlier partition between the parties. It is undisputed fact that Buddappa was cultivating the land bearing R.S. Nos. 41 and 54/2 and his name was deleted and defendant got mutated his name as per M.E. No. 210 dated 17.11.1973. It is settled law that mutation entry do not confer any right or title to the property. However, Ex. D29, the order of Land Tribunal itself reveals that, based on the mutation entry, the Land Tribunal had granted occupancy rights to the defendant.

This Court in the case of Sri. Chikkarangaiah since deceased by his L.R and Another Vs. Sri. Gurusiddaiah and Others, (2011) 4 KarLJ 467 : (2011) 2 KCCR 1097 , while considering the decision of the Apex Court in Ishwaragouda and Others Vs. Mallikarjun Gowda and Others, (2008) 12 JT 650 : (2009) 1 SCC 626 and Mudakappa vs. Rudrappa and others (1996 (6) KLJ 129) has held thus:

"considering these decisions and also considering the evidence on record in this case, when the defendant 1 has claimed occupancy rights has having inherited the same from his father, plaintiff being one of the heirs, the tenancy being heritable, it devolves nor only on one of the heirs, but it devolved on all the heirs. May be, the other heirs might not have filed an application for grant of occupancy rights, but it being the estate of the deceased, he having died intestate, by succession, by survivorship, it devolves on the heirs of the deceased, plaintiff being one of the Class I heirs, he is also entitled to the share. No doubt, if the defendant had claimed exclusive cultivation independent of his father and had claimed his tenancy not by inheritance, but by acquisition by himself, if the other heirs had claimed right out of the said grant, the Civil Court could not have decided the said issue, but it is not a case here that the defendant 1 had claimed his exclusive separate tenancy, but he having claimed as successor to his father, it cannot be said that one of the successors alone is entitled for grant particularly in the light of the definition "to cultivate personally"."

In view of the said judgment and also evaluating the evidence on record, it is clear that the plaintiffs are claiming their rights through Buddappa, though the occupancy rights were conferred by the Land Tribunal in the name of defendant, who inherited the same from his father, who was cultivating the suit property as protected tenant. Plaintiff being one of the heirs, tenancy being inheritable devolves on all the heirs irrespective of the application filed by any member of the joint family for grant of occupancy right. Defendant had claimed his tenancy as successor to his father, deleting the name of his father and getting his name entered in the mutation register. The Land Tribunal mainly relying on this entry made in the mutation register granted the occupancy rights in the name of defendant, which enures to the benefit of the joint family. Considering this aspect, in the instant suit, the lower appellate Court decreed the suit of the plaintiff only to the two properties in which, Buddappa was a protected tenant. Accordingly, the judgment and decree of the trial Court is modified, which cannot be found fault with. In the circumstances, no substantial question of law arises for consideration in this appeal.

Accordingly, the appeal is dismissed.