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IN THE HIGH COURT OF KARNATAKA,CIRCUIT BENCH AT DHARWAD

DATED THIS THE 4TH DAY OF OCTOBER, 2012

:BEFORE :

THE HON’BLE MR. JUSTICE N.K. PATIL

R.S.A.NO. 742 OF 2004 (Par)

Between:

1. Smt. IravvaW/O Shanmukhappa Zalaki75 years,R/O Akki Alur, Taluk Hangal,Dist: Haveri-581102.

2. Malleshappa Shanmukhappa ZalakiSince deceased by his L.Rs.

2a. NeelavvaW/O Malleshappa Zalaki,61 years,R/O Andalagi, Tq. Shiggaon,Dist: Haveri-581203.

2b. Akkamahadevi Alias Lalitha,W/O Shambulingappa Javali,37 years, R/O Andalgi, Tq. Shiggaon,Dist: Haveri-581203.

2c. VijayaW/O Iranna Misrikoti,Major, R/O Shiggaon,Dist: Haveri-581205.

2d. NandaW/O Iranna Puttanashetty

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Alias Gurammanavar,33 years, R/O Veerapur Oni,Hubli-580020.

2e. Jagadeesh Malleshappa Zalaki31 years,R/O Hukkerimath High School,Dist: Haveri-581110.

3. Gangappa Shanmukhappa ZalakiSince deceased by his L.R.s

3a. Smt. Shivagangavva Gangappa Zalaki,58 years, R/o Akki Alur,Tq. Hangal, Dist: Haveri-581102.

3b. Basavaraj Gangappa Zalaki,37 years, R/o Akki Alur,Tq. Hangal, Dist: Haveri-581102.

3c. Smt. Saroja Alias NarmadaW/o Chennabasappa Margur,35 years, R/o Koppal-583231.

3d. Geeta D/o Gangappa Zalaki,24 years, R/o Akki Alur,Tq. Hangal, Dist: Haveri-581102.

3e. Prabhuling Gangappa Zalaki,22 years, R/o Akki Alur,Tq. Hangal, Dist: Haveri-581102.

[ 3(a) to 3(e) amended vide court orderdated 27.10.2006]

4. Babu Shanmukhappa Zalaki61 years, R/O Akki Alur, Tq. Hangal,Dist: Haveri-581102.

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5. Channaveerappa Shanmukhappa Zalaki,43 years, R/O Akki Alur,Tq. Hangal, Dist: Haveri-581102.

... Appellants(By Sri. M G Malavade, Advocate.)

And

1. Karanappa Gurappa Zalaki71 years, R/O Akki Alur, Tq. Hangal,Dist: Haveri-581102.

2. Chandrashekharappa Bhammukhappa Zalaki,Since deceased by his L.Rs.

2a. Smt. ChampaW/o Chandrashekhar Zalaki,Aged about 50 years,R/o C/o Smt. KavitaW/o Ashok Hosamani,Chetana College Road,Akshay Colony, Main Road (Sali Badavane)Sirur Park, Near 2nd Stage,Hubli-580021.

2b. Smt. Kavita, W/o Ashok Hosamani,Chetana College Road,Akshay Colony, Main Road (Sali Badavane)Sirur Park, Near 2nd Stage,Hubli-580021.

2c. Smt. Mamatha, W/o Vijaya Hottiholi,Aged about 36 years,R/o C/o Hattiholi, Retd. Dy.S.P.Opposite to Lions School, Vijayanagar,Hubli-580032.

2d. Smt. Roopa Basavaraj Devagiri,34 years, R/o Shrinagar,

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2nd Cross, Dharwad-580001.

2e. Vijaya S/o Chandrashekhar Zalaki,Aged about 31 years,R/o 101, Vittal Nagar,Near National Convent School,Next to ISRO Badavane,Bangalore-560078.

[ 2(a) to 2(e) amended vide court orderdated 16.09.2010]

3. Smt. RatnavvaW/O Topanna Puttanashetty,59 years, R/O Sankeshwar, Hukkeri Taluka,Belgaum Dist.-591313.

4. Sharavva Chandrashekharappa MudholkarAged about 57 years, R/O Annapoorna Nilaya,Prashant Colony, Vidhyanagar,Hubli-580021.

5. Bebakka Alias SavitaW/O Basavaraj Attikatti,41 years, R/O Hansabhavi, Hosapet Oni,Hirekerur Taluka, Haveri Dist. 582109.

6. Bangerappa Baasvannappa Zalaki,60 years, R/O Akki Alur, Tal: Hangal,Dist: Haveri-581102.

... Respondents(By Sri. V P Kulkarni, Advocate for R1, R2(a-e)- served, R3-R6 – served.)

This RSA is filed U/S. 100 of CPC against theJudgement & Decree dated 19.6.2004 passed inR.A.No.11/03 on the file of the District Judge, Haveri,allowing the appeal and setting aside the Judgement and

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Decree dated 17.2.2003 passed in OS No.111/2002 on thefile of the Civil Judge (Sr. Dn.), Hangal.

This RSA coming on for Final Hearing this day, theCourt delivered the following:

: J U D G M E N T :

This appeal is by the defendants against the

impugned judgment and decree dated 19.6.2004 passed in

R.A.No.11/2003 by the District Judge, Haveri wherein the

judgment and decree dated 17.2.2003 passed in OS

No.111/2002 by the Civil Judge (Sr.Dn) Hanagal has been

set aside, for considering the following substantial questions

of law:

a) Whether the finding of the lower court thatsuit schedule properties are joint family

properties and grant of occupancy rights byLand Tribunal over suit lands toShanmukhappa, enure to the benefit ofplaintiff and defendant No.10 is sustainableunder law, when admittedly from 1962, thefamily of plaintiff, Shanmukhappa and

defendant No.10 are separated and partitiondecree has been passed in L.C.243/62 inrespect of family properties and they areenjoying the lands fallen to their respectiveshare and as on 1.03.1974 or prior to it,plaintiff and defendant No.10 were notmembers of joint family and they were not

cultivating the suit lands.

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b) Whether the lower appellate court justified indecreeing the suit for partition and giving of1/3rd share each to plaintiff and giving of

1/3rd share each to plaintiff and defendantNo.10, when admittedly since 1962 theynever cultivated the suit lands andShanmukhappa alone has been cultivatingthe lands as tenant till his death.

c) Whether the lower appellate court was rightin holding that plaintiff and defendant No.10were joint family members as on 1.3.1974,so that the grant of occupancy rights infavour of Shanmukhappa will enure to their

benefit also.

d) Whether the finding of the lower appellatecourt is correct that in 1962 at the time offiling L.C.243/62 the rights of plaintiff wasnot crystalized and he could not have

included the suit lands as one of the items ofproperties in LC No.243/62 is correct whenthe tenancy rights are subjected to partitionbetween the family members.

e) Whether the finding of the lower appellate

court that the suit is not barred by limitationis correct. According to PW1 they are livingseparately since 1962 and enjoying theirshare and their rights over suit lands havebeen crystalized on 20.5.1975 by virtue ofgrant of occupancy rights over suit lands by

Land Tribunal and cause of action arose on20.05.1975 and the suit O.S.111/2002 isfiled on 22.09.1990.

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f) Whether the lower appellate court is justifiedin holding that the suit lands were not freehold rights and that the same were lease

hold rights, and as such deceasedShanmukhappa cannot assign his rights inrespect of suit lands to his heirs.

2. For the sake of convenience, the parties herein

are referred to as per their rankings in the Trial Court.

3. It is the case of the plaintiff that one Gureppa was

the propositus of the family. He died leaving behind him

three sons by name Sri. Shanmukhappa, Sri.

Basavanneppa and Sri. Karnappa. Sri. Shanmukhappa

died in 1987 leaving behind him defendants -1 to 9 as his

legal heirs. Sri. Basavanneppa died leaving behind him

defendant No.10 as his legal heir. Sri. Karnappa who is son

of Sri. Gureppa is the plaintiff in original suit.

4. Deceased Sri. Gureppa had two wives by name Smt.

Shivakka and Smt. Puttavva and Sri. Shanmukhappa was

the son of first wife of the deceased Sri. Gureppa, namely

Smt. Shivakka. After the death of Smt. Shivakka, Sri.

Gureppa took second marriage and married Smt. Puttavva.

The plaintiff Sri. Karneppa is the son of Sri. Gureppa

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through second wife Smt. Puttavva. In fact, Smt. Puttavva

gave birth to two sons, namely Sri. Basavanneppa and Sri.

Karneppa, namely, plaintiff and Sri. Basavanneppa died

during 1941-42 leaving behind him his son Sri. Bangareppa.

Smt. Virupaxavva was carrying when Sri. Basavanneppa

passed away. Smt. Virupaxavva gave birth to Sri.

Bangareppa, who is defendant No.10.

5. It is the further case of plaintiff that suit schedule

properties which are lands bearing RS No.212/3 measuring

2 acres 19 guntas and 212/5 measuring 3 acres and 23

guntas of Havanagi, Hanagal Taluk and District Haveri are

raitwari lands and the same were managed by the deceased

Sri. Shanmukhappa being the eldest member in Hindu

Undivided Joint Family and as Manager of the said Family.

Sri. Shanmukhappa took the above said two lands on lease

and filed application in Form No.VII before the Land

Tribunal, Hanagal and Land Tribunal, Hanagal held Sri.

Shanmukhappa as occupant and passed an order on

20.5.1976 holding that the said Shanmukhappa as tenant of

the above said lands and registered the occupancy rights in

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his favour and his name came to be entered as cultivator

and kabjedar of the above said two lands.

6. It is the further case of the plaintiff that,

excluding the suit property involved in OS No.111/2002

(Old No.245/1990) he filed a suit in LC No.243/1962 before

Munsiff, Haveri for partition and separate possession of joint

family properties. The said suit was filed by the plaintiff

against deceased Sri. Shanmukhappa since difference arose

between them. In the said case, panchas were appointed by

Munsiff, Haveri, for settlement of the dispute in LC

No.243/1962 and panch award was passed. Since suit

properties involved in OS No.111/2002 were free hold lands

and since the said lands were tenancy lands, suit in LC

No.243/1962 was filed excluding lands bearing RS No.212/3

and 212/5 of Havanagi, Hanagal Taluk. Aggrieved by panch

award passed in LC No.243/1962, deceased Sri.

Shanmukhappa preferred appeals and the said appeals were

finally disposed off in 1979 and panch award passed by

panchas came to be confirmed.

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7. It is the further contended by the plaintiff at

paragraph No.9 of the plaint that he could not bring within

the frame of the suit in LC No.243/1962 lands bearing RS

No.212/3 and 212/5 for partition, since the said lands were

raitwari (tenanted) lands and that himself or Sri.

Shanmukhappa had no ownership rights with regard to said

lands. Sri. Shanmukhappa passed away during 1987 at

Akki Alur, Hanagal Taluk. Shri. Shanmukhappa, during his

life time, without the knowledge of plaintiff and defendant

No.10 took steps in getting entered the names of defendant

Nos. 2 and 6 as owners of lands bearing RS No.212/3 and

212/5 and he came to know about entry of names of

defendant Nos. 2 and 6 recently. It is the case of the plaintiff

that he has 1/3rd share in suit property and `15,000/- is the

income which was derived from suit properties in question

and he is entitled for mesne profits for a period of three

years, immediately prior to filing of the suit which amounts

to `45,000/- and thus, he prayed to grant 1/3rd share in suit

properties and an order for handing over of possession of his

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share and to pass orders for grant of mesne profits at

`15,000/- per year with costs.

8. Upon service of notice, defendant No.4 appeared

through his counsel and filed written statement under order

8 Rule 1 CPC on 23.9.1991 contending that suit filed by the

plaintiff is barred by law of limitation. It is the case of the

defendant No.4 that, suit filed by the plaintiff is hit by order

2 Rule 2 of CPC and is liable to be dismissed summarily. He

has admitted the contents of paras 1 to 4 of the plaint.

Genealogy of the family stated by plaintiff at paragraph No.3

of the plaint is admitted by defendant No.4. He has

contended that his father Sri. Shanmukhappa was

cultivating suit lands in question in his individual name and

as a tenant and Sri. Shanmukhappa obtained occupancy

rights with regard to suit property and plaintiff has no right

or interest in the same. He has taken up a contention that,

if really the suit properties were properties of joint family, the

plaintiff ought to have included the same within the suit

frame of LC No.243/1962 and the plaintiff, at this stage

cannot seek a share in suit properties. He denied the

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averments made in paras-5 to 10. It is the contention of

defendant No.4 at para-9 of the written statement that, suit

filed in LC No.243/1962 came to be decided finally in 1979

and if at all the plaintiff has any right in suit schedule

properties, he could have included the same in that case

prior to 1979 and suit of plaintiff is, therefore, bad in law. It

is the further case of the defendant No.4 that Sri.

Shanmukhappa in 1962, took possession of suit properties

allotted towards his share and separated from joint family

and Shri. Shanmukhappa began to cultivate the properties

which were allotted to him in the partition and that he began

to cultivate the suit schedule properties as a tenant, in his

individual name and applied for grant of occupancy rights in

his individual capacity and accordingly, occupancy rights

were conferred on him in his individual name and plaintiff

has no share in suit properties, since there was partition in

1962 and thus has prayed to dismiss suit of the plaintiff

with cost.

9. Defendant No.10 filed consenting written statement

prayed the court to decree suit of the plaintiff and to award

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him 1/3rd share in suit schedule properties. Counsel

appearing for defendant No.3 filed a memo on 22.10.1991

adopting written statement filed by defendant No.4 as his

written statement. Counsel appearing for defendant Nos. 1 to

3, 5 to 9 filed a memo praying the court to treat the written

statement filed by defendant No.4 as their written

statements.

10. On the basis of the pleadings of both the parties,

the Trial Court has framed five issues on 1.8.1995 and also

filed an additional issue No.6 on 12.6.1998 which reads

thus:

1. ªÁ¢AiÀÄÄ, zÁªÁ ¸ÀéwÛ£À°è vÀ£ÀUÉ 1/3 CA±À »¸Éì EzÉ

JAzÀÄ ªÀÄvÀÄÛ CzÀgÀ ¥ÀævÀåPÀë PÀ¨ÉÓ AiÉÆAzÀ®Ä ºÀPÀÄ̼ÀîªÀ£ÉAzÀĹzÀÞ¥Àr¸ÀĪÀ£ÉÃ?

2. ªÁ¢AiÀÄÄ vÀ£Àß »¸Éì ¨Á§vÀÄÛ ªÁ¶ðPÀ gÀÆ.1500-00 zÀªÀiÁåð£ÀGvÀà£ÀߪÀ£ÀÄß ¥ÀæwªÁ¢¬ÄAzÀ ºÉÆAzÀ®Ä ªÀÄvÀÄÛ zÁªÁ RZÀð£ÀÄß

¥ÀqÉAiÀÄ®Ä CºÀð JAzÀÄ ¹zÀÞ¥Àr¸ÀĪÀ£ÉÃ?

3. ¥ÀæwªÁ¢AiÀÄgÀÄ ªÁ¢UÉ zÁªÁ ¸ÀéwÛ£À°è ºÀPÀÄÌ E®è

JAzÀÄ ¹zÀÞ¥Àr¸ÀĪÀgÉÃ?4. ªÁ¢ zÁªÁ ¥ÀjºÁgÀ ºÉÆAzÀ®Ä CºÀð£ÉÃ?

5. CAwªÀÄ DzÉñÀ ªÀ rQæ K£ÀÄ?

ºÉZÀÄѪÀj «ªÁzÁA±À:

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6. ¥ÀæwªÁ¢ £ÀA: 1 jAzÁ 9£ÉÃzÀªÀgÀÄ ªÁ¢AiÀÄ zÁªÉAiÀÄÄ

¸ÀªÀÄAiÀÄ «ÄÃjzÉÝAzÀÄ ¹zÀÝ¥Àr¸ÀĪÀgÉÃ?

11. In order to prove their case, plaintiff got

examined himself as PW1 and got marked 7 documents as

per Exs.P1 to P7. On the other hand, defendant No.10 was

examined as DW1, defendant No.4 was examined as DW2

and they got marked 11 documents as per Exs.D1 to D11.

12. The Trial Court, after hearing both sides, has

proceeded to hold that plaintiff does not have share in suit

properties and dismissed the suit of the plaintiff with costs.

Further, the Trial Court has observed that, it cannot decide

as to whether tenancy with regard to suit properties are of

the joint family or of any particular individual in view of

nature of documents produced by the parties before the

Court and also observed that, it is to be presumed that

tenancy is in favour of Sri. Shanmukhappa which is now

inherited by defendant Nos. 1 to 9 being legal heirs of

deceased Shanmukhappa.

13. Being aggrieved by the said judgment and decree

passed by the Trial Court, plaintiff has preferred an appeal

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before the District Judge, Haveri (‘First Appellate court’ for

short) in Regular Appeal No.11/2004.

14. The First Appellate Court, after hearing the

parties, after going through the judgment and decree passed

by the Trial Court and other materials available on file, has

raised the following points for its consideration:

1. Whether plaintiff has 1/3rd share in suit scheduleproperties?

2. Whether suit of the plaintiff is bad under order 3Rule 2 of CPC?

3. Whether suit of plaintiff is barred by law oflimitation?

4. Whether plaintiff has the right claim partition insuit schedule properties of which occupancy rightswere conferred by Land Tribunal, Hangal, in favourof deceased Sri. Shanmukhappa, as per Order inLRMSR No.132/1 of Land Tribunal, Hanagal dated20.5.1976?

5. Whether any illegality is committed by the Courtbelow in dismissing suit of plaintiff as perjudgment and decree dated 17.2.2003?

6. What order?

15. First Appellate Court, after re-appreciation of the

oral and documentary evidence and other materials available

on file, has answered point Nos. 1,4 and 5 in the affirmative

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and point Nos. 2 and 3 in the negative and as per final

order, allowed the said appeal and set aside the judgment

and decree passed by the Trial Court in OS No.111/2002

dated 17.2.2003 and decreed the suit of the plaintiff with

costs, holding that plaintiff has got 1/3rd share in suit

schedule properties bearing RS No.212/3 and 212/5 of

Havanagi, Hanagal Taluk and defendant Nos. 1 to 9 have

1/3rd share in suit schedule properties and that defendant

No.10 is entitled to 1/3rd share in the said properties.

Further, it is ordered that since suit schedule properties are

assessed to land revenue by the Government, plaintiff is

required to be put in possession of his 1/3rd share of those

properties after partition being made by Deputy

Commissioner, Haveri, or any gazetted subordinate of

Deputy Commissioner, Haveri, deputed by him in this behalf

in accordance with law, as per Section 54 read with Order 20

Rule 18 of CPC. Since no specific evidence is adduced by

plaintiff with regard to second prayer of para No.16 of the

plaint, has rejected the prayer of plaintiff for grant of mesne

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profits at the rate of `15,000/- per year for the period of

three years.

16. Being aggrieved by the said judgment and decree

passed by the First Appellate Court, the defendants-

appellants felt necessitated to present this appeal.

17. Heard the learned counsel for the parties. When

this matter had come up for Admission, this Court had

admitted the appeal for considering the following question of

law:

1. Whether the First Appellate Court was justified inreversing the finding of the Trial Court havingregard to the fact that there was partition of thefamily properties in 1962 and occupancy rightshas been confirmed on the appellants in 1976?

18. The undisputed facts of the case are that,

deceased Sri. Shanmukhappa and Gureppa are the step

brothers. It is also not in dispute that, they lived together in

joint family. Sri. Shanmukhappa being the elder son was

the Kartha/Manager of the family. It is the case of the

defendants that, deceased Sri. Shanmukhappa was

cultivating the suit lands as tenant in his individual

capacity and has filed Form No.VII before the Land Tribunal

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for registration of occupancy rights and accordingly,

occupancy rights were conferred in his favour in the year

1976. Further, it is not in dispute that, LC 242/1962 had

been filed by the plaintiff for partition and separate

possession before Munsiff, Haveri in respect of joint family

properties, which was allowed and panch award was passed.

19. It is the specific case of the plaintiff that, he could

not include the suit schedule properties in the said petition,

since the lands were raitwari (tenanted) lands and that

neither the plaintiff nor Sri. Shanmukhappa had ownership

rights with regard to the said lands. Sri. Shanmukhappa

died in the year 1987 and during his life time, without the

knowledge of plaintiff and defendant No.10, he took steps to

enter the names of defendant Nos. 2 and 6 as owners of

lands bearing RS No.212/3 and 212/5 and when he came

to know about the same, immediately, he filed a suit for

partition contending that the suit properties are cultivated

jointly by himself and his brother deceased Sri.

Shanmukhappa and non mentioning of their names at the

time of filing Form No.7 will not take away their legitimate

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entitlement of their share, if once the occupancy rights are

registered. But, this fact has not been looked into or

considered or appreciated by the Court below. Further, it is

significant to note that, DW2 himself has admitted in his

cross examination that his father deceased Sri.

Shanmukhappa was the head of the family of the Undivided

joint family and looking after the administration and welfare

of the family till 1982 and at that time he was aged about 15

years. Further on perusal of Ex.P5, which is Form No.VII

filed by the deceased Sri. Shanmukhappa before the Land

Tribunal for grant of occupancy rights, a mention is made

with regard to filing of suit in LC 242/1962 before the

Munsiff Court at Hanagal and with regard to 3 properties

mentioned at 2nd half portion of page No.1 of Ex.P5. On

perusal of Ex.P6 which is the certified copy of statement

made by deceased Sri. Shanmukhappa before Land

Tribunal, Hanagal in LRM:DSR:132:1 on 20.5.1974, last but

4th line of page No.1 of Ex.P6 reads as follows:

“£À£Àß ºÁUÀÆ £À£Àß vÀªÀÄäA¢gÀ SÁvÉAiÀÄ°è F PɼÀUÉ PÁt¹zÀ

d«ÄãÀÄUÀ¼ÀÄ EzÀݪÀÅ:

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UÁæªÀÄ ¸À. £ÀA: PÉëÃvÀæ

... ... ... ... ... ... ... ... ...

... ... ... ... ... ... ... ... ...

... ... ... ... ... ... ... ... ...

... ... ... ... ... ... ... ... ...

... ... ... ... ... ... ... ... ...

... ... ... ... ... ... ... ... ...

ºÁªÀtV 212:5 3-23)

212:3 2-19) gÉÊvÀ

£ÁvɬÄAzÀ

Last but 6th line of Ex..P.6 reads as follows:

“14 JPÀgÉ 17 UÀÄAmÉ ¸ÀéAvÀ d«ÄãÀÄ ºÁUÀÆ 6 J 2 UÀÄA gÉÊvÀ

£ÁvɬÄAzÀ ¸ÁUÀĪÀ½ ªÀiÁqÀĪÀ d«ÄãÀÄ G½¢gÀÄvÀÛªÉ. s̈ÀÆ £ÁåAiÀÄ

ªÀÄAqÀ½AiÀĪÀgÀÄ 6 J 2 UÀÄA d«ÄäUÉ zÁgÀt ºÀPÀÄÌ ªÀÄAdÆgÀ ªÀiÁrgÀÄvÁÛgÉ.”

20. Further, in Ex.D1 there is a mention of

execution of Will by Sri. Shanmukhappa Zalaki in favour of

defendant No.6 bequeathing the suit properties. The said

Will came to be registered on 30.12.1985 and in pursuance

of the said Will, name of defendant No.6 came to be entered

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as owner as per ME No.7145 at Ex.D2. Further, there is a

mention in Ex.D3 that name of defendant No.6 in entered

in pursuance of defendant No.4 relinquishing his rights with

regard to land bearing RS No.212/5. The Land Tribunal,

Hanagal conferred occupancy rights in favour of father of

defendant No.1 as per order dated 20.5.1976 and

accordingly, the name of father of defendant No.1 came to be

entered as owner as per ME No.6366 dated 26.2.1978.

Further, it could be seen from Ex.D9 certified copy of plaint

filed by Sri. Karneppa in LC No.243/1962 before Munsiff at

Haveri for partition that, suit properties involved in the said

suit are not the subject matter of OS No.111/2002.

21. Further, it is pertinent to note that, learned

counsel for plaintiff placed reliance on the Full Bench

decision of this Court reported in KLR 1992, Karnataka

page 1359 (Booda Poojary Vs. Thomu Poojarthy ), wherein it

is held that upon grant of occupancy rights, lease hold rights

stand converted into free hold rights without damaging

rights of family or member of the family. It is also held by

this Court in the aforesaid case that, it is open for a member

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of joint family to claim a share or rights in the lands which

occupancy rights are conferred in the competent Civil Court.

22. Learned counsel for plaintiff has also placed

reliance on the ruling of the Apex Court reported in ILR

1994 Karnataka page 2327, wherein, it is held that, it is

the Land Tribunal which is competent to adjudicate the

point of tenancy of agricultural land and decision of the Land

Tribunal is final on the above said point and Civil Court is

competent to decide the other issues. In view of the well

settled principles of law laid down by the Apex Court and

this Court in hosts of cases that, if the occupancy rights is

registered in the name for kartha/manager of the joint

family, the other members of the joint family are entitled for

occupancy rights and they are entitled to their respective

shares. But these aspects of the matter has not been looked

into or considered or referred by the Trial Court while

deciding the matter. Taking all these aspects of the matter

into consideration, the First Appellate Court, after re-

appreciation of the oral and documentary evidence and other

material available on file has recorded the finding of fact

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that, even though father of the defendant No.1 was

cultivating the suit property in question personally, and

since, partition as per plaintiff took place in the year 1962

and since the plaintiff is a member of Hindu Undivided joint

Family has legal right in suit schedule properties, in view of

the admission made by DW2 in his cross examination that

his father was the head of the family and he being the

kartha of the family looking after the entire administration of

the family and in view of not including the suit properties in

the earlier suit, plaintiff and defendant No.10 are entitled

to their respective shares and accordingly, allowed the said

appeal by setting aside the impugned judgment and decree

passed by the Trial Court. Therefore, I am of the considered

view that the First appellate Court is justified in allowing the

appeal filed by the plaintiff and setting aside the judgment

and decree passed by the Trial Court after assigning valid

reasons. The reasoning given by the First Appellate Court is

well founded and well considered one and following the well

settled law laid down by this Court and Apex Court and

interference by this Court is not called for. Hence, the

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substantial question of law raised in this case is answered in

the negative.

23. For the foregoing reasons, the appeal filed by the

appellants is dismissed as devoid of merits. Ordered

accordingly.

Sd/-

JUDGE

tsn*