before the hon’ble mr.justice b.s -...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 4TH DAY OF FEBRUARY, 2013

BEFORE

THE HON’BLE MR.JUSTICE B.S.PATIL

R.S.A.No.3/2012 c/w

R.S.A.No.80/2012, R.S.A.No.2465/2011

IN R.S.A.3/2012

BETWEEN

1. SMT NAGAMMA AGED ABOUT 59 YEARS W/O LATE SHEENA SHETTY

2. SMT JAYANTHI AGED ABOUT 40 YEARS W/O JAYARAMA SHETTY BOTH R/AT SHIVA SHAKTI NIVAS, RAMDAS NAGAR POS T,KASARAGOD TALUK &DIST KERALA STATE

3. MISS VIJAYA AGED ABOUT 25 YEARS D/O LATE SHEENA SHETTY

4. SRI SHIVANANDA AGED ABOUT 23 YEARS S/O LATE SHEENA SHETTY

5. SMT NALINI AGED ABOUT 21 YEARS W/O PRAKASH SHETTY 3 TO 5 R/AT SAVITHRI COMPOUND, PINTO LANE, NEAR SATHYANARAYANA BHAJANA MANDIRA BOLAR, MANGALORE

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6. SMT KALYANI SHEDTHI AGED ABOUT 72 YEARS W/O SANJEEVA SHETTY R/AT KALYANI SHEDTHI COMPOUND BOKKAPATNA BOLOOR, MANGALORE-6

7. SMT SHOBHA SHETTY

AGED ABOUT 32 YEARS W/O LATE KESHAVA SHETTY C/O SMT NAGAMMA KAMALA SHETTY COMPOUND NEAR POLRAI KATTE,P O BEJAI MANGALORE-4

8. MASTER DEEPAK SHETTY

AGED ABOUT 11 YEARS S/O LATE KESHAVA SHETTY C/O SMT NAGAMMA,KAMALA SHETTY COMPOUND NEAR POLRAI KATTE,P O BEJAI MANGALORE-4,SINCE MINOR REP BY HIS MOTHE AND NEXT FRIEND NAMELY APPELLANT NO 7

9. YASHAVANTHA SHETTY

AGED ABOUT 37 YEARS S/O LATE SHANKARA SHETTY R/AT KAMALA SHETTY COMPOUND BEJAI,ANEGUDI MANGALORE

10. SMT SUMATHI SHETTY

AGED ABOUT 50 YEARS W/O NAGARAJA SHETTY R/AT KAMALA SHETTY COMPOUND POLARAI KATTE,P ON BEJAI MANGALORE. ... APPELLANTS

(By Sri. NAGARAJA HEGDE, ADV.) AND

1. SMT SHAMBAVATHI AGED ABOUT 46 YEARS W/O VISHWANATHA RAI R/AT ENOLI,PAVOOR POST &VILLAGE MANGALORE

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2. SMT SOMAKKE SHEDTHI

AGED ABOUT 74 YEARS W/O SHANTHA SHETTY R/AT IV BLOCK ,SITE NO 180,POST KATIPALL A,MANGALORE

3. SMT SEETHA SHEDTHI

AGED ABOUT 72 YEARS W/O AITHAPPA SHETTY R/AT ALIYAR HOUSE,AMBALAMOGARU VILLAGE MANGALORE TALUK

4. SMT APPI S PERGADE

AGED ABOUT 66 YEARS W/O LATE SHANTHARAM PERGADE R/AT KOPPARA THOTA HOUSE PUMPWELL, KANKANADY B VILLAGE KANKANADY, MANGALORE-02

5. MR TARANATH PERGADE

AGED ABOUT 36 YEARS S/O LATE SHANTHARAM PERGADE R/AT KOPPARA THOTA HOUSE PUMPWELL, KANKANADY B VILLAGE KANKANADY, MANGALORE-02

6. KRISHNA @ SATHISH PERGADE

AGED ABOUT 33 YEARS S/O LATE SHANTHARAM PERGADE

7. MR PADMA PERGADE AGED ABOUT 29 YEARS S/O LATE SHANTHARAM PERGADE 4 TO 7 R/AT KOPPARA THOTA HOUSE PUMPWELL, KANKANADY B VILLAGE KANKANADY, MANGALORE-02

8. SRI VASANTHA ALVA AGED ABOUT 68 YEARS S/O LATE VEERAMMA SHEDTHI R/AT THARIGUDDE,NEERMARGA MANGALORE

9. SMT GULABI SHEDTHI

AGED ABOUT 66 YEARS

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W/O BHOJA SHEDTHI R/AT NEAR KRISHNAPUR MUTT,SURATHKAL MANGALORE

10. SHREE SEETHARAMA ALVA

AGED ABOUT 64 YEARS S/O LATE VEERAMMA SHEDTHI R/AT YEKKUR MANGALORE-10

11. SRI RAVINDRA ALVA

AGED ABOUT 62 YEARS S/O LATE VEERAMMA SHEDTHI R/AT MAJAPE KESANAMOGARU PODDU POST,BANTWAL TALUK,D.K

12. SRI NARASIMHA ALVA

AGED ABOUT 60 YEARS S/O LATE VEERAMMA SHEDTHI R/AT BELMA BARIKE HOUSE BELMA VILLAGE DERALAKATTE POST MANGALORE ,D.K.

13. SMT SAMPAVATHI ALVA

AGED ABOUT 58 YEARS W/O SANKAPPA SHETTY R/AT PLOT NO54,WADUJKAR ESTATE BEGWAN ROAD,BARAMATHI -412102 POONA

14. SRI HEMANTHA ALVA

AGED ABOUT 56 YEARS S/O LATE VEERAMMA SHEDTHI R/AT HOTEL VINAYAKA MARGAW BUS STAND,BARAMATHI ,POONA

15. SMT SUNANDA SHEDTHI

AGED ABOUT 54 YEARS W/O JAYA SHETTY R/AT GURUPRASAD,NEAR YUVAKA MANDALA KRISHNAPURA, SURATHKAL MANGALORE TALUK

16. MR MOHAMMED KUNHI

AGED ABOUT 58 YEARS KAPILA OIL,PUMPWELL

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KANKANADY POST MANGALORE-02

17. MR U ABDULLA

AGED ABOUT 50 YEARS PUMPWELL KANKANADY POST MANGALORE-02

18. SMT LEELA

AGED ABOUT 50 YEARS W/O NBUJANGA SHETTY R/AT ENOLI,PAVOOR POST MANGALORE. ... RESPONDENTS

IN R.S.A.80/2012:

BETWEEN

1. SRI VASANTHA ALVA AGED ABUOT 69 YEARS S/O LATE VEERAMMA SHEDTHI R/AT THARIGUDDE NEERMARGA MANGALORE

2. SMT GULABI SHEDTHI

AGED ABOUT 67 YEARS W/O BHOJA SHETTY RESIDING NEAR KRISHNAPUR MUTT, SURATHKAL, MANGALORE TALUK

3. SRI RAVINDRA ALVA

AGED ABOUT 63 YEARS S/O LATE VEERAMMA SHEDTHY R/AT MAJAPE KESANAMOGARU PUDU POST, BANTWAL TALUK, D K

4. SRI NARASIMHA ALVA

AGED ABOUT 61 YEARS S/O LATE VEERAMMA SHEDTHY R/AT BELMA BARIKE HOUSE BELMA VILLAGE, DERALAKATTE POST MANGALORE TALUK & DIST

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5. SMT SUNAND SHEDTHI AGED ABOUT 55 YEARS W/O JAYA SHETTY R/AT GURUPARSAD, NEAR YUVAKA MANDALA KRISHNAPURA, SURATHKAL MANGALORE TALUK & DIST. ... APPELLANTS

(By Sri. K ANANDARAMA, ADV.) AND

1. SMT APPI S.PERGADE AGED ABOUT 67 YEARS W/O LATE SHANTHARAM PERGADE

2. MR.TARANATH PERGADE

AGED ABOUT 37 YEARS S/O LATE SHANTHARAM PERGADE

3. KRISHNA @ SATHISH PERGADE AGED ABOUT 34 YEARS S/O LATE SHANTHARAM PERGADE

4. MR PADMA PERGADE

AGED ABOUT 30 YEARS S/O LATE SHANTHARAM PERGADE 1 TO 4 R/AT KOPPARA THOTA HOUSE, PUMPWELL KANKANADI B VILLAGE, KANKANADY, MANGALORE- 575002

5. SMT NAGAMMA SHEDTHI ( DEAD)

AGED ABOUT 74 YEARS W/O KRISHNA SHETTY

6. SMT KALYANI SHEDTHI AGED ABOUT 73 YEARS W/O SANJEEVA SHETTY R/AT KALYANI SHEDTHI COMPOUND, BOKKAPATNA , BOLOOR, MANGALORE- 575006

7. SMT NAGAMMA

AGED ABOUT 60 YEARS W/O LATE SHEENA SHETTY

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8. SMT JAYANTHI AGED ABUOT 41 YEARS W/O JAYARAMA SHETTY R/AT SHIVA SHAKTI NIVAS, RAMDAS NAGAR POST, KASARGOD TALUK & DIST KERALA STATE

9. MISS VIJAYA

AGED ABUOT 26 YEARS D/O LATE SHEENA SHETTY

10. SRI SHIVANANDA AGED ABUOT 24 YEARS S/O LATE SHEEN SHETTY

11. SMT NALINI AGED ABUOT 22 YEARS W/O PRAKASH SHETTY 9 TO 11 R/T SAVITHRI COMPOUND PINTO LANE, NEAR SATHYANARAYANA BHAJANA MANDIR , BOLAR, MANGALORE


AGED ABUOT 33 YEARS W/O LATE KESHAVA SHETTY C/O SMT NAGAMMA KAMALA SHETTY COMPOUND, NEAR POLRAI KATTE, P O BEJAI, MANGALORE-575004


S/O LATE KESHAVA SHETTY REP BY HIS MOTHER & NEXT FRIEND NAMELY RESPONDENT NO.12( A), R/AT KAMALA SHETTY COMPOUND, POLRAI KATTE, P O BEJAI, MANGALORE-575004

14. YASHAVANTHA SHETTY

AGED ABUOT 38 YEARS S/O LATE SHANKARA SHETTY R/AT KAMALA SHETTTY COMPOUND BEJAI ANEGUNDI MANGALORE

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AGED ABUOT 51 YEARS W/O NAGARAJA SHETTY R/AT KAMALA SHETTTY COMPOUND POLRAI KATTE, P O BEJAI MANGALORE- 575004

16. SHREE SEETHARAMA ALVA

AGED ABOUT 65 YEARS S/O LATE VEERAMMA SHEDTHI R/AT YEKKUR MANGALORE


AGED ABOUT 59 YEARS W/O SANKAPPA SHETTY R/AT PLOT NO. 54, WADUJKAR ESTATE, BEGWAN ROAD, BARAMATHI- 413102, PUNE.

18. SRI HEMANTHA ALVA

AGED ABOUT 57 YEARS S/O LATE VEERAMMA SHEDTHI HOTEL VINAYAKA MARGAW BUS STAND, BARAMATHI, PUNE

19. MR MOHAMMED KUNHI

AGED ABOUT 59 YEARS KAPILA OIL PUMPWELL, KANKANADY POST MANGALORE-575002

20. MR U ABDULLA

AGED ABOUT 51 YEARS KAPILA OIL PUMPWELL, KANKANADY POST MANGALORE-575002

21. SMT LEELA

AGED ABOUT 51 YEARS W/O BUJANGA SHETTY R/AT ENOLI, PAVOOR POST MANGALORE

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22. SMT SHAMBAVATHI AGED ABOUT 47 YEARS W/O VISHWANATHA RAI R/AT ENOLI, PAVOOR POST AND VILLAGE, MANGALORE

23. SMT SOMAKKE SHEDTHI

AGED ABOUT 75 YEARS W/O SHANTHA SHETTY R/AT IV BLOCK, SITE NO. 180, POST KATIPALLA, MANGALORE


AGED ABOUT 73 YEARS W/O AITHAPPA SHETTY R/AT ALIYAR HOUSE AMBALAMOGARU VILLAGE, MANGALORE TALUK. ... RESPONDENTS

IN R.S.A.2465/2011: BETWEEN

1. SMT SHAMBHAVATHI AGED ABOUT 60 YEARS W/O VISHWANATH RAI R/AT ENOLI, PAVOOR POST MANGALORE

2. SMT SOMAKKAE SHEDTHI

AGED ABOUT 75 YEARS W/O SHANTHA SHETTY IV BLOCK, SITE NO. 180, KATIPALLA, MANGALORE , D.K


AGED ABOUT 73 YEARS W/O AITHAPPA SHETTY R/O ALIYAR HOUSE, AMBALAMOGSU VILLAGE, & POST, MANGALORE TALUK. ... APPELLANTS

(By Sri.SANATH KUMAR SHETTY K., ADV.)

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AND

1. SMT APPI S PERGADE AGED ABOUT 67 YEARS W/O LATE SHANTHARAM PERGADE

2. THARANATH PERGADE AGED ABOUT 36 YEARS

3. KRISHNA @ LATHISH PERGADE

AGED ABOUT 33 YEARS

4. PADMA PERGADE AGED ABOUT 29 YEARS 2 TO 4 ARE S/O DECEASED SHANTHARAMA PERGADE R/AT KOPPARA THOTA VILLAGE, KANKANADY "B" VILLAGE, KANKANADY, MANGALORE- 575002

5. SMT KALYANI SHEDTHI

AGED ABOUT 73 YEARS W/O SANJEEVA SHETTY KALYANISHEDTHI COMPOUND BOKKAPATNA BOLOOR, MANGALORE- 575006

6. SMT NAGAMMA

AGED ABOUT 60 YEARS W/O LATE SHEENA SHETTY KAMALASHETTY NEAR POLLARI KATTE, BEJAI, MANGALORE- 575004

7. SMT JAYANTHI

AGED ABOUT 41 YEARS W/O JAYARAM SHETTY R/O SHAKTHI NIVAS RAMADAS NAGAR, KASARATGODU DISTRICT KERELA – 671121

8. VIJAYA

AGED ABOUT 40 YEARS D/O LATE SHEENA SHETTY R/O SHAKTHI NIVAS

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R/O KAMALASHETTY COMPOUND, NEAR POLLARI KATTE, BEJAI, MANGALORE- 575004

9. SHIVANANDA

AGED ABOUT 38 YEARS S/O LATE SHEENA SHETTY R/O KAMALA SHETTY COMPOUND NEAR POLLARI KATTE, BEJAI, MANGALORE- 575004

10. SMT NALINI

AGED ABOUT 36 YEARS W/O PRAKASH SHETTY SAVITHRI COMPOUND, PINTO LANE, NEAR SATYANARAYANA BHAJANA MANDIR, BOLOOR, MANGALORE- 575005


AGED ABOUT 33 YEARS W/O LATE KESHAVA SHETTY R/O KAMALA SHETTY COMPOUND POLLARI KATTE, P.O. BEJAI, MANGALORE-575004


S/O LATE KESHAVA SHETTY MINOR, REP BY HIS MOTHER AND NATURAL SMT. SHOBHA SHETTY, RESPONDENT NO.12, R/AT KAMALA SHETTY COMPOUND, POLLARI KATTE, P.O. BEJAI, MANGALORE- 575004

13. YASHAVANTH SHETTY

AGED ABOUT 38 YEARS S/O LATE SHANKARA SHETTY R/O KAMALA SHETTY COMPOUND BEJAI, ANEGUNDI MANGALORE- 575004


AGED ABOUT 51 YEARS W/O NAGARAJA SHETTY R/O KAMALA SHETTY COMPOUND BEJAI, ANEGUNDI MANGALORE- 575004

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15. SRI VASANTHA ALVA

AGED ABOUT 69 YEARS S/O LATE VEERAMMA SHETTY R/O THARIGUDDE NEERMARGA, MANGALORE- 575305

16. GULABI SHETTY

AGED ABOUT 67 YEARS W/O BHOJA SHETTY R/AT KRISHNAPURA MUTT SURATHKAL, MANGALORE- 575014

17. SEETHARAMA ALVA

AGED ABOUT 65 YEARS S/O LATE VEERAMMA SHETTY YEKKUR, MANGALORE- 575006

18. RAVINDRA ALVA

AGED ABOUT 63 YEARS S/O VEERAMMA SHETTY MAJAPE KESANA MOGARU PUDU POST, BANTWAL TALUK, D.K

19. NARASIMHA ALVA

AGED ABOUT 61 YEARS S/O LATE VEERAMMA SHETTY BELMA BARIKE HOUSE, BELMAR VILLAGE, DERALAKATTE, MANGALORE TALUK


AGED ABOUT 59 YEARS W/O SANKAPPA SHETTY PLOT NO. 54, WADUJKAR ESTATE, BEGWAN ROAD, BARAMATHI- 413102 PUNE

21. HEMANTH ALVA

AGED ABOUT 57 YEARS S/O LATE VEERAMMA SHETTY R/AT HOTEL VINAYAKA MARGAN, BUS STAND, BARAMATHI PUNE- 413102

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22. SMT SUNANDA SHETTY AGED ABOUT 51 YEARS W/O JAYA SHETTY GURU PRASA, YUVAKA MANDALA, KRISHNAPURA, SURATHKAL, MANGALORE TALUK, D.K- 575014

23. MOHAMMED KUNHI AGED ABOUT 75 YEARS R/AT KAPILA OIL, PUMP WELL, KANAKANADY MANGALORE- 575002

24. U ABDULLA

AGED ABOUT 65 YEARS R/AT KAPILA OIL , PUMP WELL, KANAKANADY POST MANGALORE- 575002

25. SMT LEELA

AGED ABOUT 63 YEARS W/O BHUJANGA SHETTY ENOLI, PAVOOR POST MANGALORE- 575007. ... RESPONDENTS

R.S.A.NO.3/2012 IS FILED UNDER SEC.100 & ORDER XLII RULE 1

R/W ORDER RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE

DATED 13.9.2011 PASSED IN R.A.NO.76/2010 ON THE FILE OF THE I

ADDL. DISTRICT JUDGE, D.K., MANGALORE, DISMISSING THE APPEAL

AND CONFIRMING THE JUDGMENT AND DECREE DATED: 5.4.2010

PASSED IN O.S.NO.40/1996 ON THE FILE OF THE I ADDL. SENIOR CIVIL

JUDGE & CJM, MANGALORE.

R.S.A. NO.80/2012 IS FILED UNDER SEC.100 OF CPC., AGAINST THE

JUDGMENT AND DECREE DATED 13.9.2011 PASSED IN R.A.NO.76/2010

ON THE FILE OF THE I ADDL. DISTRICT JUDGE, D.K., MANGALORE,

DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND

DECREE DATED:5.4.2010 PASSED IN O.S.NO.40/1996 ON THE FILE OF

THE I ADDL. SENIOR CIVIL JUDGE & CJM, MANGALORE.

R.S.A.NO.2465/2011 IS FILED UNDER SEC.100 R/W ORDER XLII

RULE OF CPC., AGAINST THE JUDGMENT AND DECREE DATED

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13.9.2011 PASSED IN R.A.NO.76/2010 ON THE FILE OF THE I ADDL.

DISTRICT JUDGE, D.K., MANGALORE, DISMISSING THE APPEAL AND

CONFIRMING THE JUDGMENT AND DECREE DATED: 5.4.2010 PASSED IN

O.S.NO.40/1996 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE,

MANGALORE,

THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

1. These three appeals arise out of the judgment dated

13.09.2011 passed by the learned I Addl. District Judge,

D.K., Mangalore, dismissing R.A.No.76/2010 and thereby

confirming the judgment and decree dated 05.04.2010

passed by the Trial Court in O.S.No.40/1996.

2. R.S.A.No.2465/2011 is filed by plaintiffs 1(b), 2 & 3,

whereas R.S.A.No.3/2012 is filed by defendants 4(a), 4(b),

4(c), 4(d), 4(e) and 3 & 6. Appellants 7 to 9 in

R.S.A.No.3/2012 were not parties before the Trial Court, but

were arrayed as respondents before the lower Appellate

Court. R.S.A.No.80/2012 is filed by defendants 7, 8, 10, 11

& 14. They were arrayed as respondents before the lower

Appellate Court and they were not aggrieved by the judgment

and decree passed by the Trial Court. In other words, it was

only plaintiffs 1(b), 2 & 3 who were aggrieved by the

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judgment and decree passed by the Trial Court and had

challenged the same before the lower Appellate Court. All

other appellants in the connected appeals had not challenged

the judgment and decree passed by the Trial Court. However,

the fact remains that all of them are fighting for share in the

properties for which occupancy rights have been granted in

favour of the 1st defendant – brother.

3. The suit filed by the plaintiffs in O.S.No.40/1996

seeking partition and separate possession of the alleged joint

family properties came to be dismissed by the Trial Court

holding that the suit schedule lands being the properties for

which occupancy rights were conferred in favour of 1st

defendant under the provisions of the Karnataka Land

Reforms Act, 1961 (for short, ‘the Act’) on the basis of the

application filed by him in Form-7, they were the exclusive

properties of the 1st defendant, therefore, the plaintiffs who

were the sisters (and their legal representatives) were not

entitled for partition in the said properties. The Trial Court

also found that the 1st defendant was the exclusive tenant of

the land and that as on 01.03.1974, when the lands vested

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in the State, plaintiffs and other sisters of the 1st defendant

were not the members of the joint family, hence they were

not entitled for any share in the granted lands.

4. Aggrieved by the judgment and decree passed by the

Trial Court, the unsuccessful plaintiffs preferred

R.A.No.76/2010 before the I Addl. District, Judge, D.K.,

Mangalore. On re-appreciation of the evidence on record,

both oral and documentary, the lower Appellate Court has

concurred with the findings recorded by the Trial Court,

while dismissing the appeal. In this background, challenging

the concurrent findings of both the courts below, these

Regular Second Appeals are filed.

5. In these appeals, the following contentions are urged

by the learned Counsel for the appellants.

(i) Both the courts below have seriously erred in

construing the contents of Form-7 marked as Ex.P-1 and the

chalageni chit marked as Ex.D-63.

(ii) That the courts below have not applied their mind to

the provisions contained under Sections 6 & 24 of the

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Karnataka Land Reforms Act while coming to the conclusion

that the daughters of deceased Doomakke Pergadthi were not

entitled for any share in the suit schedule properties.

Reliance is placed on the judgment in the case of

NARENDRA NATH SUPAKAR VS SHAKUNTALA DEVI & ORS. –

AIR 2006 (NOC) 723 (JHAR) and also another judgment in the

case of MISS T.S.VEDAVALLI VS THE COMMISSIONER,

BANGALORE DEVELOPMENT AUTHORITY, BANGALORE –

1998(4) KAR.LJ 504. Elaborating the above contention, it is

submitted by the learned Counsel that although the

documents clearly disclosed that the lands were cultivated by

the joint family since time immemorial, both the courts, by

wrongly construing the documents have come to an incorrect

conclusion that the suit properties were exclusively held by

the 1st defendant as tenant and therefore his sisters were not

entitled for any share in the same.

6. I have carefully considered the contentions urged in the

light of the findings recorded by both the courts.

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7. It is seen from the concurrent findings recorded by

both the courts below that the application in Form-7 was

filed by the 1st defendant seeking occupancy rights claiming

that he was cultivating the land. He has stated in Form-7

that he was cultivating the land for the last 15 years and was

a tenant as per the provisions of the Act. Both the courts

have considered the Form-7 marked as Ex.P-1 by referring to

its contents in coming to the conclusion that the claim of the

1st defendant was not for and on behalf of the family, but it

was in his individual capacity.

8. Learned Counsel for the appellants contends that the

courts below have failed to properly construe the statement

made in Form-7, wherein he has stated that for the last 60

years the land was being cultivated by the family. In this

background, I have perused the findings recorded by the

Trial Court as confirmed by the lower Appellate Court. Both

the courts have specifically referred to the contents of Form-7

and have after appreciation of the same come to the

conclusion that the tenancy was not for and on behalf of the

joint family, but was individual tenancy of the 1st defendant.

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Useful reference can be made to paragraph 40 of the

judgment of the lower Appellate Court in this regard. It is

clearly stated in the said paragraph that in Form-7 – Ex.P-1,

1st defendant had clearly stated that he was the tenant of the

lands in question and was cultivating the land since 15

years, he has shown his wife and children as his family

members, which indicated that he was cultivating the suit

lands for himself and for his family members consisting of

his wife and children. The lower Appellate Court has found

that even though reference has been made to the cultivation

of the land for the last 60 years by the family, the same could

not be construed to mean that admittedly the tenancy of the

land was that of the undivided joint family consisting of

himself and his five sisters. This approach of both the courts

below in recording the finding that the tenancy was that of

the 1st defendant and not that of the 1st defendant and his

five sisters jointly, is a factual finding returned after

appreciating the oral and documentary evidence on record.

This Court in exercise of its jurisdiction under Section 100

CPC cannot re-appreciate the same to come to a contrary

conclusion.

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9. Though the learned Counsel for the appellant has

made an endeavour to contend by referring to Sections 6 &

24 of the Act, that in the facts and circumstances of the case,

the tenancy of the 1st defendant enures to the benefit of his

sisters as the land was tenanted initially in favour of the

ancestors of the 1st defendant, there is no foundation in the

facts proved before both the courts for this contention. Both

the courts have held that the land was cultivated by the 1st

defendant as tenant and that his sisters had no right in the

same.

10. Ex.D-63, which is the Xerox copy of the chalageni chit

on which reliance is placed by the appellants to contend that

the land was tenanted in favour of the mother of deceased 1st

defendant and therefore the appellants who are the

daughters of Doomakke Pergadthi have inherited the tenancy

rights, the courts below have, upon consideration of Ex.D-63

have come to the conclusion that it was a chalageni chit for a

single year and that there was nothing to show that as on

01.03.1974, the land was cultivated by the joint family and

the joint family had inherited the tenancy rights. It is

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necessary to notice here that if the joint family had inherited

the tenancy rights, the sisters who have been married away

would have certainly asserted their rights by filing Form-7 in

their individual capacity or by joining the 1st defendant in

filing Form-7. They were aware that the 1st defendant had

claimed occupancy rights by filing Form-7 in his individual

capacity and was not seeking grant of occupancy rights for

himself and on behalf of his sisters. Even the order of the

Land Tribunal makes it clear that occupancy rights were

granted exclusively in favour of 1st defendant. The said

order is passed as back as in the year 1978. The sisters-

appellants herein did not make any grievance about the

same for nearly 18 years. It is relevant to notice here that

one item of the land for which occupancy rights was granted

came to be sold by the 1st defendant by a registered sale deed

executed in favour of defendants 15 & 16 during the year

1996. It is only thereafter, in the year 1996, that the present

suit is brought seeking partition and separate possession of

the properties granted exclusively in favour of the 1st

defendant. The courts below have bestowed careful and

detailed consideration on this aspect of the matter as well

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while holding that there was no justification for the claim

made by the appellants. Therefore, neither the provisions of

Sections 6 & 24 of the Act nor the decisions on which the

learned Counsel for the parties have placed reliance have any

application to the facts and circumstances of the present

case. As the scope of this appeal is confined only to the

substantial questions of law and as both the courts have

recorded findings of fact after considering the evidence on

record, I do not find any substantial question of law arising

for consideration. Hence, these appeals being devoid of

merits are dismissed at the stage of admission.

Sd/- JUDGE

KK

before the hon’ble mr.justice b.s -...

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