KOTTANGADA B. MOTAIAH Vs. MACHIMADA BELLIAPPA

JUDGEMENT

(1.) The appellant, who was defendant no.13 in the partition suit filed by respondent nos.1 to 7, is aggrieved by the dismissal of his Regular First Appeal, affirming the decree in the suit declining to allot any share to the appellant.

(2.) The plaintiffs and the appellant are different branches of the same family. In the suit filed for partition, it was averred that the appellant was in possession of 10 acres of the suit lands as an encroacher, seeking his eviction. The appellant filed his written statement claiming that he was an absolute owner and in possession along with defendants nos. 1 to 7 of the wet lands bearing survey nos. 180, 183, 179/1, 179/2 situated at Ballyamandoor village. He therefore had a share in the "bane" suit lands also. The suit was decreed in favour of the plaintiff holding that the appellant had failed to establish that he was in possession of any wet lands, so as to entitle him to any share in the suit "bane" lands, apparent from his own evidence. The High Court declined to interfere with this finding of fact upon consideration of the evidence in the Regular First Appeal preferred by the appellant.

(3.) Learned counsel for the appellant submitted that "bane" lands could not be partitioned. The suit itself was therefore not maintainable. Reliance was placed on Nandinaravanda Medappa vs. Nandinaravanda Ganapathy, 1979 2 KarLJ 22. A "bane" tenure only constitutes certain privileges to be enjoyed by agriculturists holding attached wet lands. There is no concept of ownership of "bane" lands so as to make it susceptible to partition. The plaintiff should have taken recourse to Section 79(2) of the Coorg Land and Revenue Regulation, 1899 before the Revenue Authorities as they are basically lands granted by the State Government for limited enjoyment. Reliance was placed on a decision of the Karnaraka High Court in B.R. Sharathchandra (D) by LRs. Vs. K.D.Poovaiah and others, RSA No. 258 of 1999. It was fairly stated that these grounds were not raised in the suit or in the Regular First Appeal. But being a pure question of law, they could well be considered in the present appeal.