GANESH RAI Vs. MAHALINGA RAI

JUDGEMENT

(1.) THIS Appeal is directed against the order dated 7. 11. 1998 passed by the III Addl. District Judge, Dakshina Kannada, Mangalore, in RA no. 2/1993, wherein the judgment and decree passed by the Court of the Civil Judge at Puttur, Dakshina Kannada, in OS No. 141/1987 dated 28th November 1992 has been set aside and the matter is remitted to the Civil Court with a direction to make a reference to the Land Tribunal, Puttur, under Section 133 of the Land Reforms act with regard to the question as to whether Chalgeni tenancy rights over the suit properties were held by the Kutumba, to which the parties to the suit belonged or by the deceased 1st defendant alone.

(2.) THE essential facts of the case necessary for disposal of this appeal are as follows: the parties would be referred to with reference to their rank before the Trial Court.

(3.) PLAINTIFFS, being the wife and children of late Kunhanna Rai and Ammu Banta filed a suit O. S. No. 141/1987 seeking for partition and separate possession of their 1/6th share in the suit schedule 'b' property averring that the suit schedule property had been leased to the grand father of plaintiffs 1 to 5 and defendant No. 1. It is averred in the plaint that: Plaintiff No. 6 - Seetharnma is the mother of plaintiffs 1 to 5; defendant No. 1 Mahaiinga Rai since deceased, defendant No. 2 Seetharnma, one Mammakke-late mother of defendant No. 4 (Sundari), one Vittamma, late mother of Vasanthi (defendant No. 5) are the children of one Bhandri Banta @ Bhandari alva and Derakke; the properties mentioned in 'b' schedule to the plaint were taken on lease by the grant father of plaintiffs 1 to 5 and after his death, properties continued to be in possession of members of the family; as the tenancy dissolved upon members of the joint family after the death of Bhandari Banta, Defendant No. 1 filed Form no. 7 before the Land Tribunal on behalf of the family for grant of occupancy right and occupancy right has been granted on 24. 8. 1979 and since the tenancy is the joint family right, plaintiffs are entitled to 1/6th share in the schedule properties.