Back
2007 Supreme(Kar) 307
2007(6) Kar. L.J. 468
H.N. NAGAMOHAN DAS, J.
A. RANGASWAMY (DECEASED) BY L.Rs -Appellant
versus
P. VENKATAPPA (DECEASED) BY L.R. AND OTHERS -Respondent
Regular First Appeal No. 523 of 1997.
Decided on:1st June, 2007
Sri V.N. Satyanarayana, Advocate for Appellants;
Sri R. Narayanappa, Advocate for Respondents-4(a), 4(c), ii, 7 and 8;
Smt. Anuradha for Sri C.V. Sudhindra and Sri B.R. Prakash, Advocates for Respondent-4(b);
Sri A. Niranjankumar for Sri Basavaprabhu S. Patil and Sri Krishnappa, Advocates for Respondent-6;
Sri M. Ramachandra Reddy, Advocate for Respondent-12; Other Respondents are served.
Headnote:Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954 - Section - Grant of occupancy right - Effect - Co-ownership property - Defendant in possession - Grant of occupancy - Plaintiffs were not in possession, they were not ousted as a result of co-ownership - Right of plaintiffs remains unaffected which right cannot be dealt with by the authorities under - Their right subsits to be adjudicated in a civil court. [Nagamohan Das, J]: The authorities under Inam Abolition Act granted occupancy rights in favour of the defendants only on the ground that they were found to be in possession of schedule land. The authorities under the act have not decided the right, title and interest of plaintiff as co-owner in the plain schedule properties. The Special Deputy Commissioner for Inam Abolition while rejecting the claim plaintiffs holds, that he had no jurisdiction to go into the question title. Int he absence of any finding by the authorities unde the Act on the question of plaintiff s right over the scheudle properties, he is entitled to maintain a suit for partion. It is the civil court alone competent to entertain the suit and to grant decree for partition. Therefore the reasoning of the trial court is contrary to the law declared by the Apex Court and this court in the decisions referred to supra.
Case Referred: ILR 2000 Kar 4809: AIR 1996 SC 112: AIR 1981 SC 77: AIR 1954 SC 575:1982 (2) KLJ 565: 1992 (2) KLJ 307: 1979 (1) KLJ 18:1964 (2) Mys. LJ 444: 1970 (1) Mys. L.J. 382: 1978 (1) Kar L.J. 116: 1979 (1) Kar L.J. 457: 1982 (2) Kar L.J. 531: ILR 1995 Kar 2495: ILR 2005 Kar 568: ILR 2005 Kar 5219
Partition - Right of co-owner - Grant of occupancy right in respect of co-ownership property in favour of one co-owner - Other co-onwer s right to seek partition - Not ousted.
Case Referred: ILR 2000 Kar 4809: AIR 1996 SC 112: AIR 1981 SC 77: AIR 1954 SC 575:1982 (2) KLJ 565: 1992 (2) KLJ 307: 1979 (1) KLJ 18:1964 (2) Mys. LJ 444: 1970 (1) Mys. L.J. 382: 1978 (1) Kar L.J. 116: 1979 (1) Kar L.J. 457: 1982 (2) Kar L.J. 531: ILR 1995 Kar 2495: ILR 2005 Kar 568: ILR 2005 Kar 5219
Adverse Possession - Co-onwership of property - Once party in possession other party is said to be constructive possession of property through his co-sharer - Hence, adverse possession cannot be claimed.
JUDGMENT
This regular first appeal is directed against the judgment and decree dated 21-7-1997 in O.S. No. 151 of 1980 passed by the 10th Additional City Civil Judge, Bangalore City, dismissing the suit of plaintiffs.
2. Appellants are the plaintiffs and respondents are defendants before the Trial Court. The parties are referred to their status before the Trial Court.
3. Plaintiffs contend that their father Sri Appajappa and the father of defendants, Sri Puttarangappa were close relatives and both had business relationship. They jointly purchased Survey No. 110 and Survey No. 207/2 of Doddagunta Village under a registered sale deed dated 28-9-1929. Sri Appajappa died in the year 1940 and Sri Puttarangappa died in the year 1957. Sri Appajappa and Sri Puttarangappa jointly enjoyed the schedule properties during their lifetime and thereafter the plaintiffs and defendants who are their legal representatives enjoyed the properties till the, year 1963. Thereafter differences arose between the parties. The defendants started taking hostile attitude towards the plaintiffs. Since the defendants refused to partition the schedule properties, the plaintiffs filed the suit for partition and separate possession of their half share in the schedule properties.
4. Defendants in their written statement contend that their father Sri Puttarangappa was in exclusive possession of the suit properties right from the date of purchase and he was discharging all liabilities. It is further contended that under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 the Special Deputy Commissioner for Inam Abolition in Case Nos. 4 and 5 vide orders dated 27-10-1959 and 26-10-1959 granted occupancy rights in respect of the schedule properties in favour of the defendants and they are in possession and enjoyment of schedule properties as absolute owners. The plaintiffs have no manner of right, title and interest in the schedule properties. The defendants denied the claim of plaintiffs.
5. On the basis of the pleadings, the Trial Court framed issues and additional issues. They are:
I. Does the plaintiff prove that he is a joint owner of the schedule properties and he is entitled to half share?
II. Is the suit properly valued?
III. Whether this Court has got the pecuniary jurisdiction to try this suit?
IV. Do defendants 5 to 10 prove they have perfected the title to the schedule property by adverse possession?
V. To what reliefs the parties entitled to?
Additional Issues:
I. Whether defendants 7 and 8 proves that the suit filed by the plaintiff is not maintainable in law in view of the earlier decision of the then Mysore Appellate Tribunal?
II. Whether this Court has no jurisdiction to try the suit?
III. Is there any cause of action for the plaintiff to file this suit?
6. The Trial Court vide order dated 24-6-1975 held issues 2 and 3 in affirmative. The plaintiffs examined one witness as P.W. 1 and got marked Ex. P.1 to Ex. P. 3. Defendants examined one witness as D.W. 1 and got marked Ex. D.1 to Ex. D. 7. The Trial Court on appreciation of the pleadings, oral and documentary evidence on record passed the impugned judgment and decree dismissing the suit of plaintiff. Hence, this appeal.
7. Sri Y.N. Satyanarayana, learned Counsel for the plaintiffs contend that plaintiffs and defendants are the joint owners of suit schedule properties. A suit for partition by one of the joint owners is maintainable. He contends that the occupancy rights granted by the Special Deputy Commissioner for Inam Abolition in favour of the defendants had enured to the benefit of plaintiffs and therefore, the suit for partition is maintainable. The Special Deputy Commissioner for Inam Abolition rejected the claim of the plaintiffs mainly on the ground that it had no jurisdiction to go into the question of title to the schedule properties. It is further contended that the reasoning of the Trial Court that the plaintiffs are not coparcenor of defendants' family and theref
