HUCHAPPA YELLAPPA RADDER Vs. NINGAPPA BHEEMAPPA TALAWAR

JUDGEMENT

(1.) We grant special leave. Since we heard learned counsel for parties on the merits of the appeal, we are finally deciding it.

(2.) An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands comprised in Survey No. 24/2-A and Survey No. 34/2- B of Kubihal Village in Kundgol Taluk of Dharwad District. They are the disputed lands in this appeal. The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act. Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant 1 and father of appellant 2, for their personal cultivation. With the coming into force on 25/01/1951 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, known as the Watan (Abolition) Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans. But, there was a right conferred under the Watan Act on every Watandar - the holder of the Watan land, to obtain its regrant subject to payment of occupancy price. After the resumption of the disputed lands by the State of Bombay under the Watan (Abolition) Act, Basappa Bheemappa, claiming to be their former holder applied for their regrant before the Assistant Commissioner, Savanur, as by then, Dharwad District where the disputed lands were located, had come to Karnataka State from Bombay State by reason of the reorganisation of States under the States Reorganisation Act, 1956. Thereafter, by his order dated 30/11/1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands (resumed Watan lands) in favour of their former Watandar,basappa Bheemappa. The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (the BT and AL Act) from the time Basappa Bheemappa, as their Watandar, had leased them in favour of appellant 1 and father of appellant 2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan (Abolition) Act, did not entitle him to obtain possession of them except under the BT and AL Act. Although, the Karnataka Land Reforms Act, 1961 (the KLR Act) which came into force in Karnataka on 2/10/1965, repealed by its Section 141 the Watan (Abolition) Act and by its Section 143 the BT and AL Act, 1948, nothing thereunder adversely affected the rights of the appellants' tenancy in the disputed lands. However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants (appellant 1 and father of appellant 2/03/1969 under a registered sale deed. The Land tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord-regrantee, Basappa Bheemappa.

(3.) But, on December 8, 1976 the respondent filed a suit in the court of Munsiff at Kundgol, against his eldest brother, Basappa Bheemappa (the seller of the disputed lands) and two other brothers arraying them as defendants 1 to 3. That was a suit for partition of l/4th share in the disputed lands and putting him in separate possession of that share. His claim for partition and separate possession of his share in the disputed lands was based on the plea that the sale deed dated 31/03/1969 by which defendant 1, his eldest brother, had sold the disputed lands (joint family lands) in favour of the tenants, without the prior consent of his brothers and for no legal necessity of the family, was void ab initio. He impleaded in that suit appellants 1 and 2 as defendants 4 and 5, since they were in possession of the disputed lands. Defendants 1, 4 and 5 resisted the plaintiffs claim for partition and separate possession of his l/4th share in the disputed lands urging, inter alia, that he had no right to get any share in them. After trial of the suit, the Munsiff court granted a decree in favour of the respondent. That decree of the Munsiff court was based on its findings (i) that the disputed lands were Hindu joint family properties of the plaintiff and defendants 1 to 3; (ii) that the sale of the disputed lands in favour of defendant 4 and father of defendant 5 had since been made by defendant 1 without the consent of his brothers, the plaintiff and defendants 2 and 3 and without legal necessity of the family, the same was void ab initio; (iii) that the plea of defendants 1, 4 and 5 that the tenancy revived, if the sale by defendant 1 in favour of defendant 4 and father of defendant 5 was found to be void, was unacceptable; and (iv) that the sale by defendant 1 in favour of defendant 4 and father of defendant 5 of the disputed lands was also void since sale of them (fragments) was prohibited under the provisions of the Karnataka (Prevention of Fragmentation and Consolidation of Holdings) Act, 1966 the Karnataka Prevention of Fragmentation Act. However, defendants 4 and 5 challenged the correctness of the decree of the Munsiff court, by filing an appeal before the court of the Civil Judge at Hubli. In that appeal, the court of the Civil Judge, held that the sale deed dated 31/03/1969 by which defendant 1 had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant 1 and claim his share in the disputed lands. Accordingly, it dismissed the appeal. A regular second appeal filed by defendants 4 and 5 before the High court of Karnataka against the decree of the Civil Judge's court affirming the decree of the Munsiff's court, was dismissed in limine. It is those decrees which are impugned by defendants 4 and 5 in the present appeal by special leave.