Prema & Anr vs Deva Rao & Ors

C IVIL APPEAL NOS. 2286-2287 O F 2011

(Arising out of Special Leave Petition (Civil) Nos. 29963-29964/2008)

PREMA & ANR. .....APPELLANTS.

VERSUS

DEVA RAO & ORS. .....RESPONDENTS.

J U D G M E N T

lAN IL R. DAVE, J.

1 Leave granted.

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2. Being aggrieved by the common Judgment delivered by the

High Court of Karnataka at Bangalore on 6th December, 2007 in RFA

No. 1067/2006 and RFA No. 1068/2006, these appeals have been filed

by the original plaintiff and defendant no.3.

3. For the sake of convenience, the parties to the litigation have

been referred to as arrayed before the trial court.

4 The plaintiff (appellant No. 1 herein) is a sister of defendant no.4

who filed a suit claiming her right to the extent of 1/6th share in the

properties described in Schedule-A to the plaint. The case of the

plaintiff before the trial court was that her father, Appuraya was an

absolute owner of the suit property and, therefore, the plaintiff had

a right in the said property. According to her, after the death of her

father Appuraya, defendant No.4, brother of the plaintiff was in

occupation of the suit property but as the suit property was an

absolute property of her father, she too had a share in the property.

Moreover, defendant no.4 had also executed a writing to the effect

that he would give 1/6th share in the suit property to the plaintiff.

Inspite of the above fact, as no part of the suit property was given to

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the plaintiff, the plaintiff was constrained to file O.S. No.92/1995

in the Court of Additional Civil Judge (Sr. Div.), Udupi, claiming her

right in the suit property.

4 5. After considering the evidence led before the trial court, the

trial court decreed the suit holding that the plaintiff was entitled

to 1/18th share in the suit property.

4 6. Being aggrieved by the judgment delivered by the trial

court, the plaintiff; and defendant nos. 1 and 3 filed RFA No.

1067 of 2006 whereas defendant no. 4 filed RFA No. 1068 of 2006

in the High Court of Karnataka. The High Court heard both the

appeals together and by the impugned common judgment, the

High Court dismissed RFA No. 1067/2006 filed by the plaintiff

and allowed RFA No. 1068/2006 filed by the 4th defendant.

4 7. For coming to the aforesaid conclusion, the High Court had

considered the fact that by virtue of the order passed by the Land

Tribunal, defendant no. 4 was declared to be a tenant in respect

of the suit property. The order passed by the Tribunal, whereby

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occupancy right in respect of the suit property had been granted

to defendant no. 4 had never been challenged by the plaintiff or

by any other party and, therefore, the occupancy right in favour

of defendant no.4 had become final. In view of the said fact, the

High Court came to the conclusion that defendant no. 4 was

having occupancy right in respect of the land in question and,

therefore, the plaintiff, sister of defendant no. 4 had no right of

whatsoever type in suit property.

4 8. The High Court brushed aside the documents whereby

defendant no. 4 had agreed to give 1/6th share in the suit property

to the plaintiff because according to the High Court, by virtue of

the said assurance, the plaintiff would not get any share in the

suit property. The plaintiff had asserted her right in the property

because it was her case that the property belonged to her father

and, therefore, she had 1/6th right in the suit property.

4 9. The High Court also came to the conclusion that the plaintiff

had failed to establish that the suit property was an absolute

property of her father and in absence of any evidence to that

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effect, the occupancy right given in favour of defendant no. 4 by

the Land Tribunal would prevail. Therefore, the High Court had

come to the conclusion that the Trial Court was not right when it

decreed the suit and granted 1/18th right in the suit property to

the plaintiff.

4 10. We heard the learned counsel appearing for the parties.

11. Learned counsel appearing for the appellant/original plaintiff

submitted that the Land Tribunal ought not to have recognised

defendant no.4 as a tenant in respect of the land in question as the land

was not agricultural land as there was a building and shops on the land

and so the land was a house site and, therefore, the Land Tribunal was

in error while deciding any right in respect of the land in question. He

further submitted that even a deed was executed by defendant no. 4

whereby he had agreed to give share of the plaintiff-sister to her. But

for the reasons best known to defendant no. 4, he did not give any share

to the plaintiff. In the circumstances, he submitted that the trial court

was right when it decreed the suit filed by the plaintiff.

5 12. On the other hand, the learned counsel appearing for defendant

no.4 submitted that the conclusion arrived at by the High Court is just

and proper for the reason that the Land Tribunal had jurisdiction to

decide the matter pertaining to the suit land. He submitted that the

order passed by the Land Tribunal was never challenged by the

plaintiff and it had become final. According to him, the plaintiff could

not be permitted to submit at this stage that the Land Tribunal had no

jurisdiction, especially when the Land Tribunal had recognised right of

defendant no.4 by an order dated 27.11.1976. He, therefore, submitted

that the conclusion arrived at by the trial court was incorrect and that

the order passed by the High Court required no interference.

13. Upon hearing the learned counsel, we find substance in the

submissions made by the learned counsel appearing for defendant no. 4.

14. In our opinion, the High Court has rightly set aside the decree

passed by the Trial Court. By virtue of the order passed by the Land

Tribunal dated 27.11.1976, right of defendant no. 4 had been

recognised. The Land Tribunal had arrived at a finding that as on

1.3.1974 defendant no. 4 was a tenant in respect of the land in question

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and, therefore, he was declared to be a tenant and he got right in

respect of the suit land. The said order has already become final and,

therefore, it would not be proper to take a view that the land in

question was not an agricultural land at the time when right of

defendant no. 4 was recognised by the Land Tribunal on 27.11.1976.

15. The deed executed by defendant no. 4 in favour of the plaintiff

would also not give any right to plaintiff to ask for partition or share in

the suit land as the plaintiff had no share in the suit property.

16. In our opinion, for the aforestated reasons, the High Court has

rightly allowed the appeal of defendant no.4 and dismissed the appeal

filed by the plaintiff and defendant nos.1 and 3. In the facts and

circumstances of the case, we dismiss both the appeals with no order as

to costs.

................................................J.

(Dr. MUKUNDAKAM SHARMA)

....................................................J.

(ANIL R. DAVE)

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New Delhi

March 3, 2011.

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