Prema & ANR. Vs
Deva Rao & Ors.
J U D G M E N T
ANIL R. DAVE, J.
aggrieved by the common Judgment delivered by the High Court of Karnataka at
Bangalore on 6th December, 2007 in RFA No. 1067/2006 and RFA No. 1068/2006, these
appeals have been filed by the original plaintiff and defendant no.
the sake of convenience, the parties to the litigation have been referred to as
arrayed before the trial court.
plaintiff (appellant No. 1 herein) is a sister of defendant no.4 who filed a
suit claiming her right to the extent of 1/6th share in the properties described
in Schedule-A to the plaint. The case of the plaintiff before the trial court
was that her father, Appuraya was an absolute owner of the suit property and,
therefore, the plaintiff had a right in the said property. According to her,
after the death of her father Appuraya, defendant No.4, brother of the plaintiff
was in occupation of the suit property but as the suit property was an absolute
property of her father, she too had a share in the property. Moreover, defendant
no.4 had also executed a writing to the effect that he would give 1/6th share
in the suit property to the plaintiff. Inspite of the above fact, as no part of
the suit property was given to the plaintiff, the plaintiff was constrained to file
O.S. No.92/1995 in the Court of Additional Civil Judge (Sr. Div.), Udupi,
claiming her right in the suit property.
considering the evidence led before the trial court, the trial court decreed
the suit holding that the plaintiff was entitled to 1/18th share in the suit
property.4. Being aggrieved by the judgment delivered by the trial court, the plaintiff;
and defendant nos. 1 and 3 filed RFA No. 1067 of 2006 whereas defendant no. 4 filed
RFA No. 1068 of 2006 in the High Court of Karnataka. The High Court heard both the
appeals together and by the impugned common judgment, the High Court dismissed RFA
No. 1067/2006 filed by the plaintiff and allowed RFA No. 1068/2006 filed by the
coming to the aforesaid conclusion, the High Court had considered the fact that
by virtue of the order passed by the Land Tribunal, defendant no. 4 was
declared to be a tenant in respect of the suit property. The order passed by the
Tribunal, whereby occupancy right in respect of the suit property had been
granted to defendant no. 4 had never been challenged by the plaintiff or by any
other party and, therefore, the occupancy right in favour of defendant no.4 had
become final. In view of the said fact, the High Court came to the conclusion that
defendant no. 4 was having occupancy right in respect of the land in question
and, therefore, the plaintiff, sister of defendant no. 4 had no right of
whatsoever type in suit property.
High Court brushed aside the documents whereby defendant no. 4 had agreed to
give 1/6th share in the suit property to the plaintiff because according to the
High Court, by virtue of the said assurance, the plaintiff would not get any share
in the suit property. The plaintiff had asserted her right in the property because
it was her case that the property belonged to her father and, therefore, she
had 1/6th right in the suit property.
The High Court also came to the conclusion that the plaintiff had failed to
establish that the suit property was an absolute property of her father and in absence
of any evidence to that effect, the occupancy right given in favour of defendant
no. 4 by the Land Tribunal would prevail.
the High Court had come to the conclusion that the Trial Court was not right when
it decreed the suit and granted 1/18th right in the suit property to the
heard the learned counsel appearing for the parties.
counsel appearing for the appellant/original plaintiff submitted that the Land Tribunal
ought not to have recognised defendant no.4 as a tenant in respect of the land
in question as the land was not agricultural land as there was a building and
shops on the land and so the land was a house site and, therefore, the Land
Tribunal was in error while deciding any right in respect of the land in
question. He further submitted that even a deed was executed by defendant no. 4
whereby he had agreed to give share of the plaintiff-sister to her. But for the
reasons best known to defendant no. 4, he did not give any share to the
plaintiff. In the circumstances, he submitted that the trial court was right
when it decreed the suit filed by the plaintiff.
the other hand, the learned counsel appearing for defendant no.4 submitted that
the conclusion arrived at by the High Court is just and proper for the reason
that the Land Tribunal had jurisdiction to decide the matter pertaining to the suit
land. He submitted that the order passed by the Land Tribunal was never challenged
by the plaintiff and it had become final. According to him, the plaintiff could
not be permitted to submit at this stage that the Land Tribunal had no jurisdiction,
especially when the Land Tribunal had recognised right of defendant no.4 by an
order dated 27.11.1976. He, therefore, submitted that the conclusion arrived at
by the trial court was incorrect and that the order passed by the High Court
required no interference.
hearing the learned counsel, we find substance in the submissions made by the
learned counsel appearing for defendant no. 4.
our opinion, the High Court has rightly set aside the decree passed by the
Trial Court. By virtue of the order passed by the Land Tribunal dated 27.11.1976,
right of defendant no. 4 had been recognised. The Land Tribunal had arrived at a
finding that as on 1.3.1974 defendant no. 4 was a tenant in respect of the land
in question and, therefore, he was declared to be a tenant and he got right in respect
of the suit land. The said order has already become final and, therefore, it would
not be proper to take a view that the land in question was not an agricultural land
at the time when right of defendant no. 4 was recognised by the Land Tribunal
deed executed by defendant no. 4 in favour of the plaintiff would also not give
any right to plaintiff to ask for partition or share in the suit land as the
plaintiff had no share in the suit property.
our opinion, for the afore stated reasons, the High Court has rightly allowed
the appeal of defendant no.4 and dismissed the appeal filed by the plaintiff and
defendant nos.1 and 3. In the facts and circumstances of the case, we dismiss
both the appeals with no order as to costs.
(Dr. MUKUNDAKAM SHARMA)
(ANIL R. DAVE)