PARUSHURAM NEMANI KUDUCHAKAR Vs. SHANTABAI RAMACHANDRA KUDUCHAKAR

JUDGEMENT

(1.) THE Bench consisting of my esteemed learned brothers Justice Tirath Singh Thakur and justice K. Sreedhar Rao, upon hearing the Regular First Appeal, RFA No. 446/1993, and having differed in their opinion on a point of law, have stated the point of law on which they differ, and in terms of Section 98 (2) of the Code of Civil Procedure, the appeal is placed before me for hearing on the points of law so stated only, by an order of the Hon'ble Chief Justice.

(2.) THOUGH my learned Brothers in the course of their judgment have set out the facts of the case, in order to appreciate the case in a proper perspective and to give my opinion on the point of law stated, it is necessary to advert to the pleadings of the parties in the suit. For the sake of convenience, the parties are referred to by their ranks to in the original suit.

(3.) THE plaintiffs contend that the propositus Sri Balaram Kuduchakar died in the year 1930 leaving behind four sons, out of whom two sons expired in their young age and only two sons namely Sri Namani and Sri Ramachandra survived. Sri Namani died in the year 1981 leaving behind two sons and three daughters namely Sri Parasharam, Sri Subash, Sri Yallappa, Smt. Maya, Smt. Indu and Sri Chanda. Sri Yallappa one of the sons of Sri Namani died in the year 1990 leaving behind his wife Smt. Maiutai, defendant No. 3 in the suit and one minor son Sri nemani, defendant No. 4. Shri. Ramachandra died in the year 1987 leaving behind his wife, sons sri Mohan, Sri Madan and Sri Shyam and daughter Smt. Anita who are the plaintiffs in the suit. The suit properties consisted of a house property and agricultural lands. After the death of Sri balaram, his two sons namely Sri Namani and Sri Ramachandra lived in the family house at No. 983, Narveker Galli, Gade Marg, Shahapur, Belgaum, together and they were in joint possession and enjoyment of the property. They were also cultivating the agricultural lands held by the joint family. Late Sri Namani being the elder in the family was managing the joint family affairs. Agricultural lands bearing Sy. No. 236 measuring 2 acres 14 guntas, Sy. No. 744 measuring 2 acres 26 guntas and Sy. No. 741 measuring 10 guntas, all situated at Belgaum Taluk, Belgaum district, were the tenanted properties. Though the said property was cultivated by the family as tenants, the revenue records stood in the name of Sri Ramachandra from 1942 to 1948 as protected tenant. In the year 1948 Late Sri Ramachandra joined service and taking advantage of the same Late Sri Namani got his name entered in the revenue records. However, the name of Sri ramachandra also continued in the revenue records as tenant. As both the families did not get on well somewhere in the year 1980-81 they started messing separately. But, the suit properties were enjoyed by the family members jointly. No partition by metes and bounds was effected. In the year 1973 when Sri Ramachandra retired from service, he requested his brother Late Sri namani to effect partition by metes and bounds and allot him half share in the suit properties. Sri namani did not accede to the said request. As the agricultural lands were tenanted lands and with the amendment of the Karnataka Land Reforms Act in the year 1974, all the tenanted lands vested with the Government. Therefore, Sri Ramachandra filed an application in Form No. VII for grant of occupancy rights. Similarly, Late Sri Namani also filed an application before the land Tribunal for grant of occupancy rights. Late Sri Ramachandra claimed half share whereas sri Namani claimed the entire property. Both the applications were clubbed together and by an order dated 22. 4. 1976 in case No. LBM. . Belgaurn/sr-l10-165, the Land Tribunal granted occupancy rights in respect of both the brothers. Late Sri Namani challenged the said order by preferring a Writ Petition W. P. No. 4478 of 76 before this Court. The order of the Land Tribunal was set aside by this Court by its order dated 6. 2. 1978 and the matter was remanded back for fresh enquiry. Again after fresh enquiry by an order dated 27. 5. 1981 the Land Tribunal granted occupancy rights in respect of both the brothers. Challenging the said order Sri Namani preferred writ Petition No. 11352/81. Again the said order of the Land Tribunal was set aside by this court by its order dated 24. 5. 83 and the matter was remanded back to the Tribunal for fresh enquiry. By that time Sri Ramachandra was dead and his LRS were brought or record. This time the Land Tribunal held Sri Namani as only occupant of the suit lands. Being aggrieved by the said order of the Land Tribunal, the plaintiffs being the legal heirs of Late Sri Ramachandra preferred a statutory Appeal before the Land Reforms Appellate Tribunal, Belgaum, in R. A. L. R. No. 84/1988. The said Appeal came to be dismissed directing the plaintiff to seek the relief in civil Court in so far as his share of occupancy right is concerned. Against the said order of the appellate Authority the plaintiff preferred a Revision Petition before this Court in C. R. P. No. 3656/1990. Affirming the order of the Appellate Authority this Court directed the plaintiff to seek remedy in the Civil Court in so far as his share of property is concerned. It is in this background the plaintiffs filed a suit O. S. No. 59/1991 on the file of the Civil Judge, Belgaum, for a decree of partition in respect of the suit schedule properties by metes and bounds and for other consequential reliefs.