SEETHA POOJARTHY Vs. PANJU POOJARY

JUDGEMENT

(1.) The 16th and 17th defendants in O.S.641/92 aggrieved by the judgment and decree dt. 6/1/2002 of the Prl. Civil Judge (Jr.Dn.), Kundapura, declaring plaintiffs and the defendants 1, 2, 4 to 15 are entitled to 1/16th share, while defendants 16 and 17 are jointly entitled to 1/16th share that fell to defendant No. 2 Manja Billava since deceased, in the suit schedule property, preferred R.A.29/05 before the Court of Fast Track, Kundapura, whence by judgment and decree dt. 27/8/2009 whence the trial court's finding was modified entitling plaintiffs 1 & 2 and defendants 1, 4, 5 and 7 to 15 to 1/16th share in 'A' schedule property, while defendants 16 and 17 entitled to 1/15th share, jointly, in the suit schedule properties. Hence this second appeal.There is no dispute that one Venkamma Pujarthy had three children namely Anthamma Pujarthy, Manja Billava and Joga Billava.

(2.) Panju Poojary, the 1st son of Anthamma Pujarthi instituted O.S.641/92 before the Prl. Civil Judge (Jr.Dn.), Kundapura, arraigning as party defendant No. 1, his mother, defendant No. 2 Manja Billava, defendant No. 3 Joga Billava and their children as also grandchildren as defendants 4 to 15 for declaration partition and separate possession of the lands in question. The 3rd defendant Joga Billava was permitted to be transposed as the 2nd plaintiff by the trial court. During the pendency of the proceedings before the trial court, the 2nd defendant Manja Billava died and his widow and daughter were arraigned as defendants 16 and 17. It was the assertion of the plaintiffs that the suit schedule properties were tenancy rights of the joint family, which when accepted by the Land Tribunal, the 2nd defendant being the eldest male member of the joint family was conferred with the occupancy rights for and on behalf of the joint family. According to the plaintiffs, being governed by the aliyasanthana law were entitled to equal share in the immovable properties belonging to the joint family. Defendants on being served with suit summons, entered appearance through learned Counsel, whence the 2nd defendant resisted the suit by filing written statement denying the assertions, while the 3rd defendant admitted the plaint averments and sought declaration of his share in the suit schedule properties. Defendants 5, 6 and 12 to 15 adopted the written statement filed by defendant No. 3, while defendants 16 and 17, when brought on record as the legal heirs of deceased defendant No. 2, adopted the written statement filed by the deceased. In the premise of pleadings of parties, the trial court framed issues, whereafterwards the 2nd plaintiff Joga Billava was examined as PW-1, while defendant No. 16 was examined as DW-1 and another witness as DW-2. For the plaintiffs, seven documents were marked as Ex.P1 to P7 and none for the defendants. The trial court by judgment and decree, returned findings in the affirmative over issue No. 1, that the suit schedule property being agricultural land, its occupancy right was conferred under Sec. 48A of the Land Reforms Act, by the Land Tribunal, in favour of Manja Billava was for and on behalf of the joint family since the tenancy rights were claimed from the time of the ancestors of Manja Billava, and accordingly in the negative over issue No. 3 that the suit land was not the self acquisition of Manja Billava to allow the suit by declaring that the plaintiffs 1 & 2 and defendants 1 & 2, as also defendants 4 to 15 were entitled to l/16th share, each, while defendants 16 and 17 representing the share of deceased defendant No. 2 were jointly entitled to 1/16th share in the suit schedule property.

(3.) The Lower Appellate Court while concurring with the reasons, findings and conclusions arrived at by the trial court on issue Nos. 1 and 3, however concluded that 17 shares were liable to be partitioned into 15 shares, because the 6th defendant by name Gowri Poojarthy had died and defendant No. 15 was her legal representative, while the 2nd defendant Manja Billava's legal representative being defendants 16 and 17 were jointly entitled to the share of the deceased and accordingly modified the judgment and decree of the court below by the judgment and decree.