Parayya S O Ishwarayya Bhavi Vs Gadagayya S O Parayya Bhavi - Citation 1232505 - Court Judgment

Judgment:

- 1 - RSA No.5252/2010 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE24H DAY OF FEBRUARY, 2023 R BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5252 OF2010BETWEEN:

1. . PARAYYA S/O : ISHWARAYYA BHAVI AGE :

59. YEARS, OCC : AGRICULTURE and PUJARAKI, R/O : TERDAL-587315, TQ : JAMAKHANDI, DIST : BAGALKOT.

2. ASHWINI D/O : CHANNAYYA BHAVI AGE :

17. YEARS, MINOR REP. BY NATURAL GUARDIAN GRAND MOTHER, SMT. GOURAWWA ISHWARAYYA BHAVI, AGE :

62. YEARS, OCC : HOUSEHOLD WORK, R/O : TERDAL-587315, JAMAKHANDI, DIST : BAGALKOT.

3. NINGAYYA S/O : ISHWARAYYA BHAVI AGE :

47. YEARS, OCC : AGRL. and PUJARI, R/O : TERDAL-587315, TQ : JAMAKHANDI, DIST : BAGALKOT.

4. MALLIKARJUN @ HAMPAYYA S/O : ISHWARAYYA BHAVI, AGE :

47. YEARS, OCC : AGRL and PUJARI, R/O : TERDAL-587315, TQ : JAMKHANDI, DIST : BAGALKOT. ...APPELLANTS (BY SRI.RAVI S BALIKAI, ADV.) AND:

1. . GADAGAYYA S/O : PARAYYA BHAVI SINCE DECEASED BY HIS LRS. 1A. SMT.BHAGIRATHI W/O GADAGAYYA BHAVI, AGE :

82. YEARS, OCC : HOUSEHOLD WORK, R/O : PRABHUDEVAR GALLI, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT.-. 2 - RSA No.5252/2010 1B. SHRISHAIL S/O GADAGAYYA BHAVI, AGE :

63. YEARS, OCC : AGRICULTURE, R/O : PRABHUDEVAR GALLI, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT. 1C. BASAYYA S/O GADAGAYYA BHAVI, AGE :

63. YEARS, OCC : HOUSEHOLD WORK, R/O : PRABHUDEVAR GALLI, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT. 1D. SMT.NEELAWW W/O GIRIMALLAPPA MATHAPATI, AGE:

61. YEARS, OCC:HOUSEHOLD WORK, R/O : PRABHUDEVAR GALLI, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT. 1E. SMT.MAHADEVI W/O SHANKARAYYA GANACHARI, AGE:57 YEARS, OCC: HOUSEHOLD WORK, R/O : PRABHUDEVAR GALLI, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT. 2 . CHANABASAYYA S/O : PARAYYA BHAVI AGE :

62. YEARS, OCC : AGRICUTLURE, R/O : PRABHUDEVAR GALLI, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT. 3 . ISHWARAYYA CHANNAYYA BHAVI AGE :

45. YEARS, OCC : AGRICULTURE, R/O : PRABHUDEVAR GALLI, TERDAL, TQ JAMAKHANDI, DIST : BAGALKOT. 4 . SMT. SUNDRAYANI D/O : CHANNAYYA BHAVI (AFTER MARRIAGE NOW CALLED AS SMT. SUJNA W/O : MANOHAR MATHAPATI ) AGE :

40. YEARS, OCC : HOUSEHOLD WORK, NOW R/O : EXAMBA, TQ : CHIKKODI, DIST : BELGAUM. 5 . ANAND S/O : KALLAYYA BHAVI AGE :

28. YEARS, OCC : AGRL., R/O : PRABHUDEVAR GALLI, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT.-. 3 - RSA No.5252/2010 6 . SANJAY S/O : KALLAYYA BHAVI AGE :

26. YEARS, OCC : AGRL., R/O : PRABHUDEVAR GALLI, R/O : TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT. 7 . SMT. SAVITA W/O : MALLAYYA GANACHARI AGE :

25. YEARS, OCC : HOUSEHOLD WORK, R/O : NEAR PRABHUDEVAR TEMPLE, TERDAL, TQ : JAMAKHANDI, DIST : BAGALKOT. …RESPONDENTS (BY SRI.JAGADISH PATIL, ADV. FOR C/R4; SRI.F.V.PATIL & SRI.NANDISH PATIL, ADV. FOR R1(A TO E); SRI.V.P.KULKARNI, ADV. FOR R1(B) & R1(C); SRI.MRUTYUNJAY TATA BANGI, ADV. FOR R2; R3, R5, R6 SERVICE HELD SUFFICIENT; NOTICE TO R7 SERVED) THIS RSA IS FILED U/SEC.100 CPC., 1908 AGAINST THE

JUDGMENT

& DECREE DTD:22-12-2009 PASSED IN R.A.NO.60/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, JAMKHANDI, DISMISSING THE APPEAL, FILED AGAINST THE

JUDGMENT

DTD:31-03-2008 AND THE DECREE PASSED IN O.S.NO.113/1989 ON THE FILE OF THE PRL. CIVIL JUDGE(JR.DN) JAMKHANDI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

, THIS DAY THE COURT PRONOUNCED AND DELIVERED THE FOLLOWING: - 4 - RSA No.5252/2010

JUDGMENT

1 Present appeal is filed by the appellants/defendants being aggrieved by the judgment and order dated 22.12.2009 passed in R.A.No.60/2008 on the file of the Fast Track Court, Jamakhandi (hereinafter referred to as ‘the First Appellate Court’), in and by which the First Appellate Court dismissed the appeal filed by the appellants/defendants confirming the judgment and decree dated 31.03.2008 passed in O.S.No.113/1989 on the file of the Principal Civil Judge (Jr.Dn.), Jamkhandi (hereinafter referred to as ‘the Trial Court’).

2. Parties in this appeal are referred to by their rankings before the Trial Court.

3. The above suit in O.S.No.113/1989 was filed by the plaintiffs namely (i) Gadagayya, (ii) Magayya and (iii) Chanbasayya, all sons of Parayya Bhavi against the defendants namely (i) Channayya s/o Parayya Bhavi, (ii) Parayya S/o Ishwarayya Bhavi and (iii) Chanayya S/o Ishwarayya Bhavi for following reliefs; - 5 - RSA No.5252/2010 i) permanent injunction restraining the defendant Nos.2 to 5 from disturbing the possession and enjoyment of the plaintiffs and defendant No.1 in respect of suit land; ii) for declaration that plaintiffs and defendant No.1 are entitled to perform pooja and to share the offerings made to deity of Prabhudev Devasthan during the turn of one year out of the cycle of 8 years jointly with defendant Nos.2 to 5; and, iii) for consequential relief of permanent injunction not to disturb in share of offerings and performance of pooja by the plaintiffs and defendants along with defendant Nos.2 to 5.

4. Case of the plaintiffs is; 4.1. That the plaintiffs and the defendants are pujaris of Prabhudev temple at Terdal, Jamakhandi taluk and they belong to Bhavi family and are related to each other as bhahubhand. The relationship between the plaintiffs and the defendants is explained by a genealogy annexed to the plaint. 4.2. That, the land bearing Sy.No.585 and Sy.No.712 together measures 19 acres 4 guntas is an Inam Land of Prabhudev Devasthan, which has been divided into various strips and these strips and names of - 6 - RSA No.5252/2010 their occupants have been described in Schedule ‘B’ to the plaint. 4.3. It is further the case of the plaintiffs that one Allayya Bhavi was the propositus. He had three sons namely (i) Magayya, (ii)Chanayya and (iii)Parayya. First son-Magayya had a son by name Channayya and a daughter by name Parawwa, of whom Channayya died issueless and Parawwa was survived by her only daughter by name Guravva. The second son of the propositus, Channayya died issueless. The defendants 2 to 5 are the descendants of the third son -Parayya. 4.4. The poojaraki rights belonging to Parawwa and her daughter Gurawwa was inherited by the plaintiffs and the defendant No.1 who are the sons of Gurawwa. The income by way of offerings in the devasthan was shared equally by the plaintiffs and the defendants as they belong to single group. That there are eight groups in the family and each group gets its right to offer pooja once in the cycle of eight years. Plaintiffs and defendants belong to - 7 - RSA No.5252/2010 one such group and they together get their turn once in eight years to offer pooja, as such they are entitled for half of the income while the defendants are entitled for remaining half. 4.5. Parawwa and her daughter Gurawwa being female heirs could not personally take part in the pooja, however they were only sharing the offerings to the deity. Taking advantage of the absence of names of Parawwa and Guravva, in the charge report for they being female heirs, defendants Nos.2 to 5 appropriated share of the plaintiffs. That defendant Nos. 2 to 5 also interfered with the possession of land of the plaintiffs and also prevented plaintiffs from appropriating their share in the offerings. 4.6. Plaintiffs being the male members also wanted to perform pooja along with the defendants, but they are being prevented by defendant Nos.2 to 5, constraining the plaintiffs to file suit seeking the reliefs as noted above.

5. Defendant No.2 filed written statement and defendants 3 to 5 have adopted the same; - 8 - RSA No.5252/2010 5.1. denying the plaint averment and also denied the entitlement of the plaintiffs and defendant No.1 in the land and their poojaraki rights along with defendant Nos.2 to 5 and sharing of the offering to the deity. 5.2. It is further contended that Parawwa had another daughter by name Mogevva who was given in marriage to one Mugulkhod husband. 5.3. It is specifically contended that Parawwa through and under whom the plaintiffs are claiming rights had relinquished her share in the year 1919 in favour of Parayya Bhavi by taking Rs.500/- in O.S.No.102/1917 of Terdal Court. The said Parayya Bhavi was grandfather of defendant No.2 to 5 as such, the plaintiffs cannot claim their share. That the Plaintiffs are not in possession of property in strip No.1 and 2 measuring 4 acres 30 guntas, as such the question of defendants disturbing their possession would not arise. Hence, sought for dismissal of the suit.-. 9 - RSA No.5252/2010 6. Initially on 07.07.1997, defendant No.1 had also filed written statement in the lines of written statement filed by defendant No.2. Subsequently on 14.07.1997 he filed yet another written statement admitting the plaint averments and claiming his share in the suit property.

7. Based on the pleadings, the Trial Court framed the following issues: “1. Do the plaintiffs prove that strip No.1 and 2 in schedule ‘C’ belongs to them and defendant no.1 and they are in possession of the same?.

2. If so do they prove interference by defendant No.2 to 3 in their enjoyment of those strips?.

3. Do plaintiffs prove that they and defendant No.1 have equal joint right of worshiping deity of Terdal with defendants 2 to 5 for one year in 8 years cycle as alleged?.

4. If so do they prove interference by defendants 2 to 5 in exercising of such right and receiving offerings?.

5. Are plaintiffs entitle to the reliefs sought for?.

6. What decree or order?.

8. The plaintiffs examined 5 witnesses as PWs.1 to 5 and exhibited 21 documents marked as Exs.P1 to P21.-. 10 - RSA No.5252/2010 Three witnesses have been examined on behalf of defendants as DW1 to DW3 and exhibited 18 documents marked as Exs.D1 to D18(a).

9. On appreciation of evidence, the Trial Court answered issues No.1 and 2 partly in the affirmative, issue Nos.3 and 4 in the affirmative and consequently decreed the suit as under; “

ORDER

Plaintiffs and defendant No.1 are entitle to perform the Pooja and share the offerings before the deity of Sri Prabhudev Devasthanam, Teradal during the turn of one year out of the cycle of 8 years belonging to the plaintiffs and defendants no.1 with defendants no.2 to 5 jointly. The defendants No.2 to 5 are restrained by permanent injunction from disturbing the performance of Pooja of plaintiffs and defendant no.1 at Sri Prabhudev Devasthan and receiving the share in offerings before the deity by the plaintiffs and defendant No.1. The plaintiffs and defendant No.1 on one hand and defendants No.2 to 5 on the other hand have equal rights of Pooja with equal share in the offerings. The plaintiffs and defendant No.1 are entitle to amount in deposit in the court in accordance with their share. Further the defendants No.2 to 5 are restrained by way of permanent injunction from disturbing the peaceful possession and enjoyment of their share of land out of Inam land regranted in the suit schedule - 11 - RSA No.5252/2010 property, this order of injunction will come into force only after final determination of their ownership before appropriate forum until which the order of Injunction will be in abeyance. Draw Decree accordingly.

10. Being aggrieved by the aforesaid judgment and decree, defendant Nos.2 to 5 filed regular appeal in RA No.60/2008. Considering the grounds urged in the memorandum of appeal, the First Appellate Court framed the following points for its consideration: “1. Whether the appellants/original defendant No.2, 3A, 4 and 5 proves that the findings one arrayed(sic arrived) by the learned Prl.Civil Judge (Sr.Dn.) Jamakhandi on issues in O.S.No.113/1989 after remand in the judgment dated 31.03.2008 are perverse, capricious and erroneous and deserves to be interfered with?.

2. Whether the appellants further proves that the deceased Parawwa who was grandmother of plaintiffs 1 to 3 and defendant No.1 had relinquished her pujaraki rights and receiving of offerings in kind of deity Prabhudev Math of Terdal in favour of Parayya Ningayya Bhavi under compromise decree one entered in OS No.102/1917 of Middle Division of Munsiff Court of Terdal (in the erstwhile princely state of Sangli sitting at Terdal)?.

3. Whether the respondents proves that the judgment and decree passed by the lower court deserves to be maintained?. - 12 - RSA No.5252/2010 4. What order?.

11. The First appellate court answered point no.1 and 2 in the negative and point no.3 in the affirmative and consequently dismissed the appeal confirming the judgment and decree dated 31.03.2008 passed by the Trial Court.

12. This Court by the order dated 23.04.2014 framed the following substantial questions of law: “1. Whether the trial Court as well as the first appellate Court have committed a serious error in decreeing the suit, more particularly, by misreading Ex.D1, the compromise decree passed in OS No.102/1917 and compromise petition?.

2. Whether under the facts and circumstances involved in the case, both the courts below committed error in granting the relief of permanent injunction, when the tenancy issue is pending before this court in Writ Appeal Nos.30286/2013, c/w. Writ Appeal No.30277/2013?.” (As reframed/reformulated by order dated 30.08.2021) 3. Whether both the Courts have committed a serious error in holding that deceased Parawwa had succeeded to the estate of the deceased Channayya in 1917, ignoring the provisions of the Hindu Women’s Right to Property Act, 1937?. - 13 - RSA No.5252/2010 4. Whether the judgments of the trial Court as well as the first appellate Court are perverse and illegal by ignoring material evidence placed on record?.

13. Submissions of Sri.Ravi S Balikai, learned counsel for the defendant Nos.1 to 5 :

13. 1. Reiterating the grounds urged in the memorandum of appeal learned counsel submitted that the Trial Court and the First Appellate Court have at the first instance committed grave error in not appreciating the fact that the plaintiffs had right to perform pooja only to an extent of four annas inherited through their father and that they had no right of any nature whatsoever either to perform pooja or on the suit schedule property through their mother and grandmother namely Gurawwa and Parawwa respectively. He submits that for more than 70 years, the poojaraki rights have been performed by defendants No.2 to 5 and at no point of time, plaintiffs offered pooja or shared the offering along with the defendant Nos.2 to 5.-. 14 - RSA No.5252/2010 13.2. Referring to Ex.D8 to D12, learned counsel submits that these exhibits which are material evidence regarding handing over of charge of poojaraki rights by respective family members to the successive family members at their respective turn, would establish that the plaintiffs never performed pooja along with defendant Nos.2 to 5 but they were performing pooja only to the extent of their four annas, which they inherited from their paternal side separately at their turn. He submits that the first appellate court and the trial court have failed to appreciate these aspects of the matter. 13.3. Referring to Ex.D1- certified copy of the compromise decree in O.S.No.102/1917 on the file of Munsiff, Terdal; Ex.D.1(b)-hand written application filed in suit in O.S.No.102/1917; Ex.D.1(c)- Typed copy of Ex.D.1(b); Ex.D14-compromise petition in O.S.No.102/1917; Ex.D14(a)-Kannada translation of Ex.D.14; Ex.D15-Order copy of the Land Tribunal, Jamkhandi; Ex.D17-hand written copy of the Plaint, compromise decree and order in O.S.No.102/1917 and Ex.D18- Typed - 15 - RSA No.5252/2010 copy of Ex.D.17, learned counsel submits that the aforesaid documents reveal that Parawwa had filed a suit against propositus of defendant Nos.2 to 5 namely Parayya, in which, compromise was entered into, in terms of which, the said Parawwa in consideration of a sum of Rs.500/- had relinquished her right in the property as well as right to perform pooja. He submits that in the light of the said material evidence, trial court and the first appellate court failed to appreciate the same when admittedly female heirs cannot perform pooja of a deity, there was no possibility of plaintiffs inheriting right of pooja through Parawwa and Guravva. 13.4. He further submits that Parawwa having given up her rights in favour of propositus of defendant Nos.2 to 5 in consideration of receipt of Rs.500/-, the trial court and the first appellate court have failed to appreciate that there was nothing for the plaintiffs to inherit through her and as such burden of proving their right title and interest over suit property was on the plaintiffs. However, he submits that, the trial court and - 16 - RSA No.5252/2010 the first appellate court erroneously cast the burden on the defendants to prove that they were in exclusive possession of the suit property and they had Poojaraki rights. 13.5. He further submits that the suit in O.S.No.102/1917 had been filed for possession. The said suit was dismissed. No compromise decree was passed. He submits that Ex.D.1, Ex.D.14, Ex.D.17 and Ex.D.18 needs to be read conjointly to arrive at a proper conclusion by appreciating as to what exactly had transpired between Parawwa and Parayya with regard to their rights over the property and poojaraki rights. That the trial court and the first appellate court erred in reading the contents of Ex.D1 in isolation with other exhibits and thereby arrived at a wrong conclusion resulting in same being perverse. 13.6. It is further contended that the trial court and the first appellate court failed to look into the provisions of Hindu Women’s Right to Property Act, 1937 - 17 - RSA No.5252/2010 inasmuch as Channayya the brother of Parawwa passed away prior to 1917 and Parawwa being his sister could not have succeeded to the estate of her brother Channayya. Defendant Nos.2 to 5 being the next heirs of said Channayya were entitled to his estate in its entirety. Thus, he submits that finding of the trial court and the first appellate court of Parawwa succeeding to the rights of Channayya was contrary to provisions of Hindu Women’s Right to Property Act, 1937. 13.7. He submits that on the one hand, Parawwa had relinquished her rights by receiving consideration of Rs.500/- in favour of propositus of defendant Nos.2 to 5 and on the other hand, she was disentitled to have any right in terms of provisions of Hindu Women’s Right to Property Act, 1937. Thus, both factually and legally Parawwa had no right either in the suit property or Poojaraki, as such, there was nothing available for the plaintiffs to succeed through Parawwa.-. 18 - RSA No.5252/2010 13.8. That since the matter with regard to registration/grant of occupancy rights are still pending consideration before the appropriate authority, the Trial Court and the First Appellate Court had no jurisdiction to grant the relief of injunction in respect of the subject property. 13.9. He further submits that suit is also barred by limitation, as in terms of Article 58 of the Limitation Act, plaintiffs ought to have filed suit within three years from the date of accrual of cause of action and in the instant case, the plaintiffs ought to have filed the suit upon the demise of Parawwa. 13.10. Appellants/defendants 2 to 5 have filed an application in IA No.3 of 2013 under Order XLI Rule 27 of CPC seeking production of following documents:

1. Certified copy of the order sheet in OS No.102/1917 before the Munsiff Court, Sangli, 2. Kannada translation of the above order sheet 3. Certified copy of the compromise decree in OS No.102/1917 passed by Munsiff, Sangli.-. 19 - RSA No.5252/2010 4. Kannada translation of compromise decree. 13.11. In support of the above application, I.A.No.3/2013 learned counsel submits that production of said documents are necessary as earlier document at Ex.D1 was not in good shape as it was torn into pieces and could not be translated properly. That though subsequently document at Ex.D14 compromise petition and document at Ex.D17, plaint was produced, the trial court and the first appellate court could not relate to Ex.D1 with Ex.D14 and D17 and thereby got confused. In order to secure the same, plaintiffs visited Sangli, Pune, Bagalkote and Bijapur number of times and with great effort could obtain certified copies of order sheet, plaint copy, compromise decree etc., from Bijapur District Court record room only in the second week of February 2013 and which they now seek to produce for proper adjudication of the matter and the same are required for proper understanding of the fact situation. Hence, he submits that application be allowed.-. 20 - RSA No.5252/2010 13.12. Learned counsel relied upon the following judgment in support of his case:

1. 1969 (2) SCC201–Baldevdas Shivlal and another Vs.Filmistan Distributors (India) P.Ltd., and others 2. AIR1956SC346– Raja Sri Sailendra Narayan Bhanja Deo Vs.State of Orissa 3. (1973)2 SCC40Bhavan Vaja and Others vs.Solanki Hanuji Khodaji Mansang and another 4. 1968 (1) Mysore Law Journal 14. Submission of Sri. V.P.Kulkarni, learned counsel along with Sri. F.V.Patil, learned counsel appearing for the plaintiffs; 14.1. Justifying the judgment and decree passed by the Trial Court and the First Appellate Court learned counsel submitted that admittedly, there was a prior partition between the two branches of Magayya and Parayya who were the sons of original propositus of Allayya Bhavi. The branch of Magayya was survived by Parawwa and Gurawwa who are the grandmother and mother respectively of plaintiffs and defendant No.1. The branch of Parayya survived by Ningayya, Parayya, Ishwarayya who are the great grandfather, grandfather - 21 - RSA No.5252/2010 and father respectively of defendants Nos.2 to 5. That in the branch of Magayya, Parawwa was the sole legal heir. In the said partition, the family property was divided into 10 strips which fact is even admitted by DW.1 in his deposition. 14.2. That the said Parawwa had right in the property as well as Poojaraki rights. He further submits that there is no pleading in the written statement regarding the claim of the defendant Nos.2 to 5 to the effect that since there were no male heirs in the branch of Magayya, the defendant Nos.2 to 5 being the next male heirs in the Parayya’s branch inherited the rights in the land and poojaraki. In other words, he submits that no foundation is laid in the pleadings with regard to right of defendant Nos.2 to 5 as reversionaries. 14.3. Alternatively, he submits that even if it is to be held that there was no prior partition, in terms of Chapters V & VI of Mulla’s Hindu Law, Parawwa being sister of Channayya was a heir in accordance with law applicable to - 22 - RSA No.5252/2010 Bombay State and since admittedly parties to the suit are governed by Hindu Law applicable to the Bombay State, Parawwa being the sister of Channayya inherited his estate including Poojaraki rights of the deity. 14.4. Adverting to claim of the defendant Nos.2 to 5 of Parawwa relinquishing her rights in favour of Parayya their grandfather, it is submitted that the alleged relinquishment was for a sum of Rs.500/- and the documents relied upon by them are Exs.D1, D14, D17 and D18. That, perusal of which would not even indicate that Parawwa had relinquished her right to Poojaraki in favour of Parayya Lingayya Bhavi as claimed. 14.5. He submits that the Trial Court and the First Appellate Court have taken note of the fact that DW.4 who is the witness produced by the defendant Nos.2 to 5 to read, interpret and translate the said documents at Exs.D1, D14, D17 and D18 has expressed his inability and as such, the said documents cannot be taken into consideration.-. 23 - RSA No.5252/2010 14.6. He submits that even if the said documents are to be accepted as a compromise in which Parawwa relinquished her right in favour of Parayya, the said documents are inadmissible for want of registration under Section 17(1)(b) of the Registration Act, 1908. Defendant Nos.2 to 5 admittedly had no pre-existing rights over the suit property. Therefore, the said document relating to rights in respect of immovable property cannot be taken in evidence without compliance under Section 17(1)(b) of the Registration Act. Poojaraki rights also being in the nature of immovable property requires registration. 14.7. He submits that even as admitted by the defendants and the plaintiffs have 1/4th share in the Pooja rights and in the land. In the absence of proof of compromise or relinquishment as claimed by defendant Nos.2 to 5 they are entitled for half share in the Pooja rights as well as right of property as claimed in the plaint.-. 24 - RSA No.5252/2010 14.8. Responding to the application filed by the defendants seeking production of additional documents, learned counsel submits that, the said application is filed only to fill up the lacuna, as DW.3 in his deposition has already stated that, he could only read 50% of the documents and the remaining 50% of the document is in a rotten condition. Therefore, he strongly opposes the production of additional documents and submits that, defendant Nos.2 to 5 cannot be permitted to produce evidence in piece meal at every stage of the proceedings. That neither any explanation nor sufficient reason is offered for acceptance of the additional evidence, hence, seeks for rejection of the said application. Learned counsel relies upon the following judgments in support of his contention: i. HANUMAMMA Vs. M.T.RAMALINGAIAH AND ORS. Passed in MSA.No.67/2000 dated 27.02.2001 before this Court. ii. BHOOP SINGH Vs. RAM SINGH MAJOR reported in ILR1996KAR iii. CHAND KAUR VS. RAJ KAUR AND ORS. reported in AIR1997PUNJAB AND HARYANA155- 25 - RSA No.5252/2010 iv. RAM RATTAN LRs Vs. BHAJANG LAL AND ORS. reported in AIR1978SC1393v. RAJ KALI KUER Vs. RAM RATHAN PANDEY reported in AIR1955SC49314.9. Thus, he submits that the appeal be dismissed answering the substantial question of law in favour of the plaintiffs.

15. Heard learned counsel for the parties and perused the records.

16. On production of additional evidence :

16. 1. Before adverting to the aforesaid substantial questions of law it is necessary and imperative to dispose of the application in I.A.No.3/2013 filed under Order XLI Rule 27 of CPC by the appellants/defendants. As already noted above, the defendants have made this application to permit them to produce four additional documents as listed herein above. The First of the above documents sought to be produced is a certified copy of the order sheet in O.S.No.102/1917 filed before the Munsiff Court, Sangli, and the second document is its translation, third - 26 - RSA No.5252/2010 document is copy of the compromise decree passed in O.S.No.102/1917 and fourth document is the translation of the said document. 16.2. Perusal of the copies of the translation sought to be produced by the defendants reveal that first two documents are the order sheets and the third document is an order purportedly dismissing the suit in O.S.No.102/1917. The said document has already been produced as per Ex.D.18 which contains plaint in O.S.No.102/1917 and order on compromise. Even according to the learned counsel for defendants there is no difference between the documents sought to be produced and documents already on record. The Trial Court and the First Appellate Court have already taken note of Ex.D.18. The document now sought to be produced would be a mere repetition of Ex.D.18 and would be superfluous for the purpose of determination of the matter. Even in the absence of the said documents and in view of availability of Ex.D.18, this Court is of considered view that, the instant appeal can be disposed - 27 - RSA No.5252/2010 of without the additional documents sought to be produced. Hence, the application in I.A.No.3/2013 filed for production of additional document is rejected.

17. THIS COURT'S ANALYSIS :

17. 1. There is no much of a dispute by defendant Nos.2 to 5 with regard to the genealogy furnished by the plaintiffs at schedule-A to the plaint as noted above, except contending that Parawwa had two daughters namely Gurawwa and Mogevva. However, it is contended by the defendant Nos.2 to 5 that the said Magewwa was given in marriage to Mugalkhod and that none surviving in her family. In that view of the matter, the genealogy furnished by the plaintiffs is reliable even according to defendant Nos.2 to 5. The said genealogy is reproduced herein for ready reference; - 28 - RSA No.5252/2010 Allayya Bhavi (Propositus) Magayya Chennayya(Extinct) Parayya Channayya Parawwa Magayya Ningayya Hampayya Allayya (died before 1917) Gurewwa Parayya Channayya Gadagayya Magayya Chanbasayya (Deft.1) (Plff.1) (Plff.2) (Plff.3) Ishwarayya Parayya (D.2) Channayya (D.3) Ningayya(D.4) Hampayya (D.5) 17.2. There is also no dispute, that the families of the plaintiffs and defendant No.1 on the one hand and defendant Nos.2 to 5 on the other hand having inherited Poojaraki rights. It is also not in dispute that the suit schedule property belongs to the families of both the plaintiffs and the defendants and that the same were endowed to Shri Prabhudev Temple of Terdal at Jamakhandi Taluk. 17.3. The dispute is only with regard to claim of the plaintiffs and defendant No.1 having inherited their rights over land and Poojaraki rights through their grandmother Parawwa, the only surviving heir in the branch of Magayya - 29 - RSA No.5252/2010 and their claim of performing poojaraki rights along with defendants 2 to 5. Regarding substantial question of law No.1 :

17. 4. It is to be seen that as per the genealogy shown in the plaint, propositus Allayya Bhavi had three sons namely (i) Magayya, (ii) Chennayya and (iii) Parayya. Magayya the first son, had a son by name Channayya and a daughter by name Parawwa. Second son Chennayya had admittedly died issueless. Third son Parayya had four sons namely (i) Magayya, (ii) Ningayya, (iii) Hampayya and (iv) Allayya. Thus, after the demise of propositus Allayya Bhavi, there existed two branches of his family, one branch of Magayya and the another branch of Parayya. Each branch becoming entitled for half of the share in the family property and Poojaraki rights of their family deity. 17.5. In the Branch of Magayya his son Channayya admittedly passed away prior to 1917. Therefore, the only surviving heir in the Magayya’s branch was his daughter - 30 - RSA No.5252/2010 Parawwa. There is no details about the date of death of Parawwa. But it is not in dispute that Parawwa passed away leaving behind her daughter Gurawwa who is the mother of plaintiffs and defendant No.1. The said Gurewwa passed away on 03.10.1986 as per Ex.P4. Thus, the branch of Magayya is now represented by plaintiffs and defendant No.1. 17.6. On the other hand in the branch of Parayya it is stated that his first, third and fourth sons namely Magayya, Hampayya and Allayya died issueless. It is only the second son Ningayya survived by his son Parayya. Said Parayya was survived by his son Ishwarayya who is the father of defendants No.2 to 5. Thus, the branch of Parayya is now represented by defendant Nos.2 to 5. 17.7. The plaintiffs’ case is that there was a partition between Magayya and Parayya two surviving sons of original propositus Allayya Bhavi each entitled for half of share in property as well as Poojaraki rights. Since son of Magayya namely Channayya had died issueless, upon his - 31 - RSA No.5252/2010 demise, his sister Parawwa succeeded to entire half share of Magayya in the property and in the Poojaraki rights. Till here, defendant Nos.2 to 5 have not disputed the case of the plaintiffs. 17.8. The further case of the plaintiffs is that Parawwa passed away leaving behind Gurawwa mother of the plaintiffs who in turn succeeded to the said half share of land and Poojaraki rights, which has been seriously and vehemently disputed by defendant Nos.2 to 5 on two folds. Firstly it is their categoric contention in their written statement Parawwa had relinquished her share in the year 1919 in favour of their grandfather Parayya Bhavi, by taking a sum of Rs.500/- in terms of a compromise entered into in suit in O.S.No.102/1917 of Terdal Court. As such, the defendants have succeeded to the right of Parawwa and her daughter Gurewwa in exclusion to the plaintiffs. Secondly, though not pleaded in the written statement in this appeal it is their case that in terms of provisions of Hindu Women’s right to Property Act, 1937 Parawwa being sister of Channayya could not - 32 - RSA No.5252/2010 inherit his estate in the presence of forefathers of defendants. 17.9. Apart from above grounds, the defendants have also claimed that the plaintiffs have only four annas of share in the suit property and in the Poojaraki rights that too, through their paternal side alone and that the plaintiffs did not have any share much less half share as claimed in the suit from their maternal side i.e., through Parawwa as she had relinquished her share. 17.10. In the above factual background of the matter, for the purpose of answering the first substantial question of law, it is necessary to advert to the evidence led in by the parties and appreciation of the same by the Trial Court and the First Appellate Court on the issue of construction of Ex.D.1 and the compromise decree passed in O.S.No.102/1917. 17.11. Defendants as noted above, have specifically contended at paragraph No.6 of the written statement that Parawwa had relinquished her share in the - 33 - RSA No.5252/2010 property in favour of their grandfather Parayya Bhavi in consideration of Rs.500/- in a compromise entered into in O.S.No.102/1917. In justification of this plea, defendants have produced Exs.D1, D14, D17 and D18. The said pleading postulates Parawwa having had half a share right, title and interest in the family properties as well as poojaraki rights. 17.12. It is necessary at this juncture to note that, the suit of the plaintiffs had been earlier decreed on 31.07.1997 which was confirmed by the I Additional District Judge, Bijapur by its judgment and order dated 17.03.1998 in R.A.No.29/1997 and the said judgment and decree was carried in second appeal in RSA.No.369/1998 by the defendants- 2 to 5 before this Court. In the said regular second appeal, defendants- 2 to 5 had filed application seeking production of additional evidence and this Court accepting the said application allowed the regular second appeal setting aside the judgment and decree passed by the Trial Court and the First Appellate Court and remanded the matter to the original file with - 34 - RSA No.5252/2010 direction to dispose of the suit in accordance with law after affording sufficient opportunity to lead additional evidence by its judgment and order dated 20.11.2001. 17.13. After the said remand, the defendant Nos.2 to 5 adduced additional evidence by producing copy of the plaint, compromise application filed in O.S.No.102/1917, and the order on compromise filed in O.S.No.102/1917 which are marked as Exs.D14, D17 and the typed copy of the same is at Ex.D18 respectively. The said documents in Exs.D1, D14, D17 and D18 are in old Marathi language and for the purpose of proving the contents of the same defendants examined DW.4 namely one Laxman aged 91 years who in his evidence recorded on 16.03.2006 has deposed that he knew old Marathi and Kannada languages and that he was requested by the defendants about 3 years ago to translate the decree which was in Marathi/Moodi language into Kannada and accordingly he has written the same and translated into Kannada language in his handwriting. He has identified his - 35 - RSA No.5252/2010 signature and his handwriting at Exs.D.14 and D17. He also identified Ex.D18 and his signature on Ex.D.18. 17.14. It is necessary to extract the contents of the Ex.D1, D14 and D17. Document at Ex.D18 is the typed version of Ex.D17. Ex.D1 consists of two parts that is plaint and application for compromise. Ex.D1 is torn into pieces and kept in a plastic cover. Hand written portion of application for compromise is produced and marked as Ex.D1a. Ex.D1a which is a hand written document is purportedly an application filed by Parawwa and Paraiah reporting compromise which reads as under; ¥ÀgÀªÁé PÉÆÃA ²ªÀ°AUÀAiÀÄå ªÀÄjUÀÄ¢Ý -----ªÁ¢ «gÀÄzÀÞ ¥ÀgÀAiÀÄå vÀAzÉ ©AUÀAiÀÄå ¨sÁ« -----¥ÀæwªÁ¢ zÁªÉzÀ §UÉÎ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢ £ÀA.1 EªÀgÀ £ÀqÀÄªÉ C¥À¸ÁvÀ vÉÆqÀeÉÆÃqÀ DV zÁªÉÃzÀ ªÉÄÃ¼ÀRw ªÉÄÃ°£À ªÀÄvÀÄÛ ªÀÄAiÀÄvï ZÀ£ÀßAiÀÄå ¥ÀgÀAiÀÄå ¨sÁ« FvÀ£À J¯Áè ªÉÄÃ¼ÀRw ªÉÄÃ¯É ªÀÄvÀÄÛ ªÉÄÃ¯É ªÁ¢AiÀÄzÀÄ EzÀÝ J¯Áè ºÀPÀÄÌ ¸ÀA§AzsÀ ¥ÀæwªÁ¢ £ÀA.1 EªÀ¤UÉ ©lÄÖ PÉÆnÖzÁÝgÉ ªÀÄvÀÄÛ CzÀgÀ ªÉÆ§zÀ¯É §UÉÎ ¥ÀæwªÁ¢ £ÀA.1 EªÀgÀÄ ªÁ¢UÉ gÉÆÃR50000 gÀÆ¥Á¬Ä PÉÆnÖzÁÝgÉ. PÁgÀt FUÀ zÁªÉzÀ°èAiÀÄ ªÉÄÃ¼ÀRwUÉ ªÀiÁ®Q ¥ÀæwªÁ¢ £ÀA.1 EªÀ£ÀÄ EzÁÝ£É. CªÀÅUÀ¼À ªÉÄÃ¯É ªÁ¢AiÀÄgÀ ªÀiÁ°ÌÃ ªÀÄvÀÄÛ ºÀPÀÄÌ ¸ÀA§AzsÀ K£ÀÆ G½¢gÀÄªÀÅ¢®è. zÁªÉzÀ RZÀÄð CªÀgÀÄ CªÀgÉÃ ¸ÉÆÃ¸ÀvÀPÀÌzÀÄÝ. »ÃUÉ oÀgÁ¬Ä¹zÉ. EzÀgÀAvÉ ºÀÄPÀÄA£ÁªÀiÁ DUÀ¨ÉÃPÀÄ CAvÁ «£ÀAw CzÉ vÁ:18.06.1919.-. 36 - RSA No.5252/2010 F JqÀUÉÊ ºÉ©ânÖ£À UÀÄgÀÄvÀÄ ¥ÀgÀ¥Áà PÉÆÃA ²ªÀ°AUÀAiÀÄå ªÀÄgÉUÀÄ¢Ý EªÀgÀzÀÄÝ zÀ¸ÀÆÛgÀ gÁªÀÄZÀAzÀæ ¥ÀgÀAiÀÄå ¤AUÀAiÀÄå ¨sÁ« RÄzÀÝ. ¸À»/- PÀÈµÁÚf UÉÆÃ«AzÀ F.J.

£ÁAiÀÄPÁªÁqÀ ¢£ÁAPÀ:18.06.1919 f.Dgï.¦. Gist of the above document (Ex.D1a) in English reads as under; “That the plaintiff Parawwa and defendant No.1 Parayya mutually resolved their dispute and in terms of which all the rights and entitlement of deceased Channayya and the plaintiff have been given up and relinquished in favour of defendant No.1 and in consideration thereof defendant No.1 has paid a sum of Rs.500/- to the plaintiff and accordingly defendant No.1 became the owner of the suit property and that the plaintiff has not retained any right or ownership over the same and have accordingly requested for passing of the decree.

17.15. Ex.D14 is another application for compromise purportedly filed by Parawwa and Paraiah in the said suit. Ex.D14(a) is hand written version of the said document while Ex.D14(b) is the typed version of the said document. This document is produced by the defendants - 37 - RSA No.5252/2010 2 to 5 after the remand of the matter. The said document reads as under; E ¸ÁgÀUÀ° ªÀÄzsÀå ¨sÁUÀ ªÀÄÄ¤ìªÀé PÉÆÃnð£À°è 1. ¥ÀgÀªÁé PÉÆÃªÀÄ ²ªÀ°AUÀAiÀÄå ªÀÄgÉUÀÄ¢Ý ¸ÁQ£À : vÉÃgÀzÁ¼À. «gÀÄzÀÞ 2. ªÀgÀAiÀÄå. ¤AUÀAiÀÄå ¨Á« ¸ÁQ£À ¥ÀæwªÁ¢ vÉÃgÀzÁ¼À ªÀUÉÊgÉ. EzÀgÀ°è ªÁ¢AiÀÄ vÀ¥Éð Cfð ªÀÄAiÀÄvÀ ZÀ£ÀßAiÀÄå ªÀÄWÀAiÀiÁå ¨ÁA« ªÀÄvÀÄÛ ¥ÀæwªÁzÀ £ÀA:1 ¥ÀgÀAiÀiÁå ¤AUÀAiÀiÁå ¨sÁA« JPÀvÀæ EzÀÝgÀÆ ªÀÄAiÀÄvÀ£À ªÁgÀì ¥ÀæwªÁ¢ £ÀA§gÀ:1 EzÀÄÝzÀÝjAzÀ ªÉÄÊvÀ ZÀ£ÀßAiÀiÁå EªÀgÀ C«¨sÀPÀÛ ¸ÁéªÀgÀ «Ä¼ÀPÀvÀÄUÀ¼ÀÄ EªÀ£À vÁ¨ÉzÀ°è EzÀÄÝ DvÀ£ÀzÀÄ CAzÀgÉ ªÉÄÊvÀ ZÀ£ÀßAiÀiÁå EvÀ£ÀzÀÄ AiÀÄ®è ¸ÁéªÀgÀ «Ä¼ÀPÀvÀÄUÀ¼ÀÄ ªÀÄvÀÄÛ ²æÃ ¥Àæ¨sÀÄ¸Áé«Ä zÉÃªÀgÀ ¥ÀÆeÁ ªÀÄvÀÄÛ ²æÃ ¥Àæ¨sÀÄ ¸Áé«Ä zÉÃªÀgÀ PÀªÀÄvÀPÀmÉÖ ªÀÄvÀÄÛ vÉÃgÀzÁ¼À ªÀÄvÀÄÛ vÀªÀÄzÀrØAiÀÄ°èAiÀÄ ¸ÁÜªÀgÀ «Ä¼ÀPÀvÀÄ ¥ÀÄgÀµÀ ¸ÀAvÀw PÀqÉUÉ EgÀvÀPÀÌzÀÄÝ »ÃUÉ ªÉÆzÀ°¤AzÀ®Æ ªÀ»ªÁl EzÀÝ §UÉÎ ¥ÀæwªÁ¢ £ÀA§gÀ 1 ¥ÀgÀAiÀiÁå ¤AUÀAiÀiÁå ¨sÁA« EªÀgÀ PÀqÉUÉ C«¨sÀPÀÛ ZÀ£ÀßAiÀiÁå EªÀgÀ «Ä¼ÀPÀvÀÄÛ ªÀÄvÀÄÛ ²æÃ ¥Àæ¨sÀÄ¸Áé«Ä zÉÃªÀgÀ GvÀà£Àß ªÀÄvÀÄÛ ¥ÀÆeÁ ªÀUÉÊgÉ ¥ÀæwªÁ¢ £ÀA§gÀ 1 EªÀgÀ PÀqÉUÉ EzÀÄÝzÀjAzÁ EªÀ£ÀÄ ¥ÀÆtð ªÀiÁ°Ì EzÁÝ£É. ªÉÄÊAiÀÄvÀ£ÀzÀÄÝ £ÁåAiÀÄzÀÄÝ ²æÃ ¥Àæ¨sÀÄ ¸Áé«ÄzÀÄ ¸ÁÜªÀgÀ d«ÄÃ£À ªÀÄvÀÄÛ ªÀÄ£É ªÀÄvÀÄÛ ¸ÀzÀgÀ zÉÃªÀgÀ ¥ÀÆeÁ ªÀUÉÊgÉ ªÉÄÃ¯É £À£Àß ºÀPÀÄÌ E¯Áè ªÉÄÊvÀ£À £ÁåAiÀÄzÀÄÝ ²æÃ ¥Àæ¨sÀÄ ¸Áé«Ä zÉÃªÀgÀzÀÄ ¸ÁÜªÀgÀ GvÀà£Àß ªÀÄvÀÄÛ ¥ÀÆeÁ ªÀÄvÀÄÛ ªÀÄ£É RÄ¯Áè eÁUÀ ªÀUÉÊgÉ ªÉÄÃ¯É ¥Àæw ªÀgÀ¢ £ÀA§gÀ 1 ¥ÀgÀAiÀiÁå ¤AUÀAiÀiÁå ¨sÁA« EªÀgÀ ºÀPÀÄÌ ¸ÀA§AzsÀ CzÉ. F zÁªÉzÀ PÉÆÃlð RZÀÄð CªÀgÀ CªÀgÉÃ ¸ÉÆÃ¸ÀvÀPÀÌzÀÄÝ, EzÀgÀAvÉ ºÀÄPÀÄÌA £ÁªÀiÁ DUÀ¨ÉÃPÀÄ CAvÁ «£ÀAw CzÉ. vÁ:- ªÀiÁºÉ dÆ£ï ¸À£ï 1919 E¹é. ¸ÀzÀgÀ zÁªÁ C¥À¸ÁvÀ vÀqÀeÉÆÃqÀ DVzÀÝjAzÀ F zÁªÁ ªÀÄÄAzÉ £ÀqÉ¸ÀÄªÀzÀÄ dgÀÆgÀ E¯Áè. ¸ÀzÀgÀ Cfð ªÉÆÃr °¦AiÀÄ°è EzÀÝzÀÄÝ CzÀ£ÀÄß PÀ£ÀßqÀzÀ¯Éè ¨sÁµÁAvÀj¹ £ÀPÀ®Ä ªÀiÁrzÀÄÝ CzÉ. vÁ:10.05.2000. zÀ¸ÀÆÛgÀ :- ¸À»/- - 38 - RSA No.5252/2010 17.16. Gist of Ex.D14 in English reads as under:

"That the deceased Channayya Magayya Bhavi and defendant No.1 Parayya Ningayya Bhavi were in joint possession of all the immovable properties and poojaraki rights of Sri.Prabhudeva Swamy. Since immovable properties of Sri.Prabhudeva Swamy Devaru, Kamadakatte and Terdal and Tamadaddi shall remain with male progeny, from the beginning defendant No.1 Parayya Ningayya Bhavi is in Wahivat of the same. Since the undivided property and the emoluments of Sri.Prabhudeva Swamy Devaru and Pooja rights etc., were with defendant No.1 he is the absolute owner of the same. That Parawwa has no right in respect of estate of the deceased over the immovable property, house or pooja rights of Sri.Prabhudeva Swamy Devaru and the same belong to defendant No.1 -Parayya Ningaiah Bhavi and the court expenses to be borne by him and hence sought for orders in this regard. Dt: Month June 1999 Since the dispute is settled there is no need to prosecute the suit. 17.17. Ex.D17 is hand written version of Ex.D1. This consist of plaint in O.S.No.102/1917 and the order purportedly passed pursuant to a compromise application filed by the parties thereto, dismissing the said suit as same having been settled between the parties. Ex.D18 is the typed version of the Ex.D17. The same is extracted hereunder; - 39 - RSA No.5252/2010 £ÀPÀ°UÉ Cfð zÁR® vÁjÃR :- 2 ªÀiÁºÉ dÄ¯ÉÊ ¸À£ï 1919 E¹é ²æÃ¤ªÁ¸À £ÀPÀ® vÀAiÀiÁgÀ vÁjÃR :- 17£ÉÃ ªÀiÁºÉ dÄ¯ÉÊ ¸À£ï 1919 E¹é ²æÃ¤ªÁ¸À £ÀPÀ®Ä PÉÆlÖ vÁjÃR :- 17 ªÀiÁºÉ dÄ¯ÉÊ ¸À£ï 1919 ²æÃ¤ªÁ¸À ªÉAPÀmÉÃ±À E:: ¸ÁAUÀ¯É ªÀÄzsÀå¨sÁUÀ ªÀÄÄPÁÌªÀÄ vÉÃgÀzÁ¼À vÉÃgÀzÁ¼À C¸À° £ÀA§gï 102/17 1-¥ÀgÀªÁé PÉÆÃªÀÄ ²ªÀ°AUÀAiÀÄå ªÀÄgÉUÀÄ¢Ý eÁw °AUÁAiÀÄvÀ ªÀAiÀÄ¸ÀÄì 50 zÀAzÁ ªÀÄ£ÉPÉ®¸À ¸Á: vÉÃgÀzÁ¼À - ªÁ¢. «gÀÄzÀÞ 1- ¥ÀgÀAiÀiÁå ¤AUÀAiÀÄå ¨sÁ«ªÀÄ¤ eÁw °AUÁ¬ÄvÀ ªÀAiÀÄ¸ÀÄì 25 zÀAzÁ MPÀÌ®ÄvÀ£À ¸Á:vÉÃgÀzÁ¼À 2- ¤AUÀ¥Áà ºÀA¥ÀtÚ ¨sÁ«ªÀÄ¤ C. ¥Á. vÀ. D¬Ä. ¥ÀgÀªÁé PÉÆÃªÀÄ ªÀÄrªÀAiÀiÁå ªÀ¸ÀÛçzÀ eÁw °AUÁ¬ÄvÀ ªÀAiÀÄ¸ÀÄì ªÀµÀð 70 zÀAzÁ ªÀÄ£É PÉ®¸À ¸Á:vÉÃgÀzÁ¼À. 3-ZÀ£ÀßAiÀiÁå ©£ï zÁåªÀuÁÚ ¨sÁ«ªÀÄ¤ C. ¥Á. vÀ. D¬Ä. ¥ÀgÀªÁé PÉÆÃªÀÄ ªÀÄrªÁ®AiÀiÁå ªÀ¸ÀÛçzÀ eÁw °AUÁ¬ÄvÀ ªÀAiÀÄ¸ÀÄì ªÀµÀð 70 zÀAzÁ ªÀÄ£É PÉ®¸À ¸Á:vÉÃgÀzÁ¼À ---- ¥ÀæwªÁ¢ zÁªÁ gÀÆ¥Á¬Ä 369 5 CtÂ 7.5 ¥ÉÊ¸É ¸ÀzÀgÀ zÁªÁ w½¸ÀÄªÀ F ¥ÀæPÁgÀ:- 1- PÉ¼ÀUÉ PÀ®«Ä£À¯Éè §gÉzÀ ¥ÀæPÁgÀ «Ä¼ÀPÀwAiÀÄÄ ªÁ¢AiÀÄ vÀªÀÄä ZÀ£ÀßAiÀiÁå ©£ï ªÀWÀAiÀiÁå ¨Á«ªÀÄ¤ EªÀgÀ ¥ÀÆtð ªÀiÁ°ÌAiÀÄÄ EzÀÄÝ DvÀ£ÀÄ ªÉÄAiÀÄvÀ DVzÁÝ£É CªÀ¤UÉ ªÁ¢ EªÀ¼ÀÄ SÁ¸À vÀAV DUÀ¨ÉÃPÀÄ ¸ÀzÀgÀ vÀAV vÀAV £ÁvÉ¬ÄAzÀ ªÁgÀ¸ÀÄzÁgÀ EgÀÄvÁÛ¼É ªÁ¢ ºÉÆvÁÛV F £ÁåAiÀÄPÉÌ JgÀqÀ£ÉAiÀÄªÀgÀÄ ªÁgÀ¸ÀÄzÁgÀgÀÄ E¯Áè.-. 40 - RSA No.5252/2010 2- ¥ÀæwªÁ¢ ªÁ¢ vÀªÀÄä£À §ºÀ¼À zÀÆj£À ¨ÁªÀÅ §AUÀ EgÀÄvÁÛ£É CªÀ£À ¥ÀÆªÀðdgÀÄ CzÀgÀ ZÀ£ÀßAiÀÄå£À ¥ÀgÁ£É¬ÄAzÀ §ºÀ¼À ªÀµÀðzÀ ªÉÆzÀ®Ä ¨ÉÃgÉ DVgÀÄvÁÛgÉ. 3- PÉ¼ÀUÉ PÀ®ªÀÄ£À°è (D)zÉÃ±À¯ÉèAiÀÄ d«ÄÃ£ÀÄ ªÁ¢AiÀÄ vÀ§±ÉzÀ°è EzÁÝUÀ dUÀ½¤AzÀ ªÉÊUÉgÉ ºÀQÌ¤AzÀ ºÉÆÃVgÀÄvÀÛzÉ. PÉ¼ÀUÉ PÉÆlÖ d«ÄÃ£ÀUÀ¼ÀÄ ¥ÀæwªÁ¢ EªÀgÀ PÀ¨ÁÓ vÀPÀÌArzÁÝgÉ ªÀÄvÀÄÛ (§) PÀ®A£À°è £ÀªÀÄÆzÀ ªÀiÁrzÀ d«ÄÃ£ÀUÀ¼ÀÄ C®è¥Áà zÁ£À¥Áà ªÀiÁ§£À±ÉnÖ EªÀgÀ PÀqÉgÉ ªÁ¢AiÀÄ CtÚ£À PÀqÉ UÀºÁt EzÁÝUÀ UÀºÁt vÀPÉÆÌ¼ÀÄîªÀªÀgÀ ªÁgÀ¸ÀÄzÁgÀ CAvÀ UÉÊgÀ ºÀQÌ¤AzÀ ¥ÀæwªÁ¢ EªÀgÀÄ ºÉÆÃzÀ ªÀµÀð UÀºÁtzÁgÀt ¸ÀAUÀ£ÀªÀÄvÀ¢AzÀ vÀ£Àß PÀ¨ÁÓzÀ°è vÀUÉÆArzÁÝ£É F ¥ÀæPÁgÀ ¥ÀæwªÁ¢ PÀ¨ÁÓ UÉÊgÀ £ÁåAiÀÄzÀÄÝ CzÉ CªÀÅ PÁAiÉÄÝ ¥ÀæPÁgÀ ªÁ¢ EªÀjUÉ ¹UÀ¨ÉÃPÁVzÉ. 4- zÁªÁPÉ 1916 ¸Á°£À ªÉÄÃ wAUÀ¼À 10£ÉÃAiÀÄ vÁjÃRÄ ¸ÀÄªÀiÁjUÉ vÉÃgÀzÁ¼ÀzÀ°è WÀqÁ¬Ä¹ 5-«ÄQÌgÀÄªÀ ªÀtð£É ¸ÀªÉð d«ÄÃ£ÀÄUÀ¼À ¸ÀªÉð £ÀA§gÀ ®PÁgÀ gÀÆ¥Á¬Ä (JPÀgÉ - UÀÄAl) 47 38-03 3 CtÂ 5 ¥ÉÊ¸É 711 02-28 1 CtÂ 1 ¥ÉÊ¸É EzÀgÀ ¥ÉÊQ18 (MAzÀÄ JAl CA±À) d«ÄÃ£À GvÀÛgÀ ¨ÁdÄ PÀqÉAiÀÄ JPÀgÉ -UÀÄAmÉ C gÀÆ 5-04 11-00 EzÀgÀ ZÀÄvÀgÀÄ ¹ÃªÀiÁ ¥ÀÆªÀðPÉÌ :- ¤AUÀ¥Áà ¤gÀªÁtÂÃ EªÀgÀ d«ÄÃ£ÀÄ ¥À²ªÑ ÀÄPÉÌ - zÉÃ¹¸ÀA EªÀgÀ d«ÄÃ£ÀÄUÀ¼ÀÄ zÀQëtPÉÌ : ZÀ£ÀßAiÀiÁå PÀqÀ© EªÀgÀ d«ÄÃ£ÀÄ GvÀÛgÀPÉÌ :- ZÀ£ÀßAiÀiÁå ªÀiÁWÀAiÀiÁå ¨Á« EªÀgÀ d«ÄÃ£ÀÄ EzÀgÀ ¥ÉÊQ CzÀgÀ DPÁgÀ 10 gÀÆ¥Á¬Ä 6 CtÂ 7.5 ¥ÉÊ EzÀgÀ ºÀvÀÄÛ ¥ÀnÖ. DPÁgÀ 104 2 CtÂ 3 ¥ÉÊ ªÀÄvÀÄÛ PÉÆqÀ¨ÉÃPÁzÀ DPÁgÀ 10 CtÂ 1.5 ¥ÉÊ EzÀgÀ LzÀÄ ¥ÀnÖ DPÁgÀ 3 gÀÆ¥Á¬Ä 2 CtÂ 3.5 ¥ÉÊ ¥ÀnÖ DPÁgÀ 107 gÀÆ 4 10.5 ¥ÉÊ. ¨É) PÀ¸À¨É vÉÃgÀzÁ¼ÀzÀ°èAiÀÄ d«ÄÃ£À ¸À.£ÀA JPÀgÉ -UÀÄAmÉ D-gÀÆ 533 18-07 gÀÆ.33 EzÀPÉÌ j«d£À ¸ÀªÉð £ÀA JPÀgÉ-UÀÄAmÉ D-gÀÆ 7:2 3-31 14gÀÆ 14 CtÂ 585 14-27 19gÀÆ 15 CtÂ MnÖUÉ DPÁgÀ gÀÆ¥Á¬Ä ¥ÉÊ¸É 34 gÀÆ 13 CtÂ 1:4 (MAzÀÄ £Á¯ÁÌA±À) EzÀgÀ°è ¥ÀnÖUÀ¼ÀÄ ªÀÄÆgÀÄ 1- ªÉÆzÀ®£É ¥ÀnÖ JPÀgÉ -UÀÄAmÉ 2-12 EzÀgÀ ZÀvÀÄgÀ ¹ÃªÀiÁ ¥ÀÆªÀðPÉÌ:£ÁgÁAiÀÄt gÁªÀÄZÀAzÀæ ªÀÄÄ:¥ÁnÃ® EªÀgÀ d«ÄÃ£ÀÄ ¥À²ÑªÀÄPÉÌ : gÀ¸ÁÛ zÀQëtPÉÌ : ZÀ£ÀßAiÀiÁå ¨Á« EªÀgÀ d«ÄÃ£ÀÄ GvÀÛgÀPÉÌ: ZÀ£ÀßAiÀiÁå PÀqÀ¨É EªÀgÀ d«ÄÃ£ÀÄ.-. 41 - RSA No.5252/2010 2- ¥Àæw ¥ÀnÖ JgÀqÀ£ÉzÀÄÝ 1 JPÀgÉ 5 UÀÄAmÉ EzÀgÀ ZÀvÀÄgÀ ¹ÃªÀiÁ ¥ÀÆªÀðPÉÌ : §¸À¥ÀgÀAiÀiÁå ¨Á« EªÀgÀ d«ÄÃ£ÀÄ ¥À²éªÀÄPÉÌ : aªÀÄäqÀzÁ gÀ¸ÁÛ zÀQëtPÉÌ : EzÀgÀ°èzÀÄÝ ¸ÀªÀiÁAiÀÄPÀ ¨Á« CzÀgÀ DZÉ ¨sÁ« EªÀgÀ d«ÄÃ£ÀÄ GvÀÛgÀPÉÌ : §¸À¥ÁgÀAiÀiÁå ¨Á« RÄzÀ ªÁ¢AiÀÄ ¥ÀnÖ.. 3- ¥Àæw ¥ÀnÖ ªÀÄÆgÀ£ÉAiÀÄzÀÄÝ 1 JPÀgÉ 5 UÀÄAmÉ EzÀgÀ ZÀvÀÄgÀ ¹ÃªÀiÁ ¥ÀÆªÀðPÉÌ :¥ÀgÀAiÀÄ ¨sÁ« EªÀgÀ d«ÄÃ£ÀÄ ¥À²ÑªÀÄÌPÉÌ: EgÀÄªÀ §¸À¥ÀgÀAiÀiÁå ¨sÁ« EªÀgÀ d«ÄÃ£ÀÄ zÀQëtPÉÌ :………….. 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PÀ) ¦gÁå¢ vÁjÃT¤AzÀ ªÁ¢UÉ d«ÄÃ£ÀzÀ PÀ¨ÁÓ ¹UÀÄªÀªÀjUÉ ªÀÄÄA¢£À zÀgÀªÀiÁå£À GvÀà£Àß PÉÆr¸À¨ÉÃPÀÄ. qÀ) F zÁªÉ¢ PÉÆÃmïð PÀZÀÄð ªÁ¢UÉ ¥ÀæwªÁ¢ PÀqÉ¬ÄAzÀ PÉÆr¸À¨ÉÃPÀÄ. E) ¥ÀæwªÁ¢AiÀÄ vÀPÀgÁgÀ ªÉÄÃ°AzÀ CxÀªÁ EvÀgÉ AiÀiÁªÀÅzÉÃ PÁgÀt¢AzÀ ¦AiÀiÁð¢ CfðAiÀÄ°è dgÀÆgÀ«zÀÝ°è zÀÄgÀ¹Û ªÀiÁqÀ°PÉÌ ¸ÀªÀ®vÀÄÛ EgÀÄvÀÛzÉ. ªÉÄÃ¯É §gÉzÀ ¥ÀæPÁgÀ ¸À» vÁ: EgÀÄvÀÛzÉ ®UÀvï: ªÀQÃ® ¥ÀvÀæ ¦üÃ CfðAiÀÄ £ÀPÀ®Ä ªÀUÉÊgÉ eÉÆÃr¹gÀÄvÀÛzÉ. vÁ:17 ªÀiÁºÉ ¸É¥ÉÖA§gï ¸À£ï 1917 £É E¸À«. ºÉ§âlÄÖ F J ºÉ UÀÄ ¥ÀgÀªÁé PÉÆÃªÀÄ ²ªÀ°AUÀAiÀÄå ªÀÄgÉUÀÄ¢Ý EªÀgÀzÀÄÝ DzÀ zÀ¸ÀÆÛgÀ gÀAUÉÆÃzÀvÀÄÛ ¥ÁgÀUÁAPÀgÀ ºÁdgÀÄ ªÀiÁrzÀ vÁ:17.09.17 ¸À»: eÉ.J.

CtÂ¥Àà£ÀªÀgÀ - 42 - RSA No.5252/2010 £Á£ÀÄ ªÁ¢ ¥ÀgÀªÁé PÉÆÃA ²ªÀ°AUÀAiÀiÁå ªÀÄgÉUÀÄ¢Ý ¥ÀæweÁÕ ªÀiÁqÀÄvÉÛÃ£À £Á£ÀÄ ¸ÀzÀj ¦üAiÀiÁð¢ CfðAiÀÄ°è §gÉ¹zÀ ªÀÄ,dPÀÆgÀ £À£Àß ¸ÀªÀÄeÁw ¥ÀæPÁgÀ ªÀÄvÀÄÛ ªÀiÁ»w ¥ÀæPÁgÀ RgÉ CªÉ vÁ: ªÀiÁºÉÃ ¸À£ï ªÀdPÀÆgÀ ¸ÀzÀgÀ. ºÉ§âlÄÖ F ¤¸Á¤ ºÉ§âlÄÖ ¥ÀgÀªÁé PÉÆÃªÀÄ ²ªÀ°AUÀAiÀÄå ªÀÄgÉUÀÄ¢Ý EªÀgÀzÀÄÝ DzÀ zÀ¸ÀÆÛgÀ gÀAUÉÆÃzÀvÀÄÛ ªÀÄÄvÁ°Pï vÉÃgÀzÁ¼À ºÀÄPÀÄä £ÁªÀÄ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ C¥À¸ÁwAiÀÄ°è ªÀÄÄVzÀ §UÉÎ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢ £ÀA§gÀ 1 EªÀgÀzÀÄ ¹:24£ÉÃzÀÄÝ Cfð §A¢gÀÄvÀÛzÉ ªÁ¢AiÀÄªÀgÀÄ ¥ÀæwªÁ¢AiÀÄªÀgÀÄ vÀªÀÄä vÀªÀÄä RZÀÄð vÁªÉ ¸ÉÆ¸ÀvÀPÀÌzÀÄÝ £ÀA§gÀ 3 ¥ÀæwªÁ¢ CªÀgÀ ºÉ¸ÀgÀÄ ªÉÆzÀ¯É ªÁ¢AiÀÄªÀgÀÄ PÀrªÉÄ ªÀiÁrzÁÝgÉ ªÀÄvÀÄÛ ¥ÀæwªÁ¢ £ÀA§gÀ 2 EªÀjUÉ ¸ÀªÀÄ£Á¸À E£ÀÆßªÀgÉUÉ ¯ÁUÀÆ DVgÀÄªÀÅ¢¯Áè PÁgÀt ªÁ¢AiÀÄªÀgÀ zÁªÀ gÀzÀÄÝ ªÀiÁrgÀÄvÀÛzÉ vÀUÀ18-6-1919 E¹é (¸À» EAVèµï ) eÉ.Dgï ¥ÀlPÉ £ÀPÀ®Ä ªÀiÁqÀÄªÀªÀgÀÄ ªÀÄvÀÄÛ §gÉzÀªÀgÀÄ ¸À»:- Dgï PÉ. £ÁAiÀÄPÀªÁr gÀÄdÄ ªÀiÁqÀÄªÀªÀgÀÄ ¸À» (EAVèÃµï) ------ EzÀÄ C¸À® §gÀºÀÄPÀÄA £ÀA§gÀ RgÉ £ÀPÀ® ±À§Ý ¸ÀASÉå:970 ¥À»uÁªÀ½ 15 CtÂ ªÀÄÄPÁ§® 5 C¤ ªÀÄÄPÁ§® ªÀiÁqÀÄªÀªÀgÀÄ PÁUÀzÀ 1 CtÂ 6 ¥ÉÊ MlÄÖ 1 gÀÆ¥Á¬Ä 5 CtÂ 6 ¥ÉÊ dªÀiÁ ªÀiÁrPÉÆAqÀÄ ¥ÀæwªÁ¢ £ÀA§gÀ 1 ¥ÀgÀAiÀiÁå ¤AUÀAiÀiÁå ¨Á« EªÀjUÉ PÉÆqÀ°PÉÌ vÀAiÀiÁgÀ ªÀiÁrzÀÄÝ CzÉ vÁ:17.07.19 E¹é. ¸À»/- ²æÃ¤ªÁ¸À ªÉAPÀmÉÃ±À ¹.M.¹ 17.18. As already noted the only witness who has spoken about the contents of these documents is DW-4. In the cross-examination recorded on 30.03.2006, D.W.4 has admitted that the Ex.D14 is in a bad condition and only 50% of the said document could be read. The said witness has read the contents of second page of Ex.D.1, - 43 - RSA No.5252/2010 which has been recorded by the Trial Court and reads as under; ¥ÁnÃ ¸ÀªÁ®Ä : ²æÃ. JA.¹.©. ªÀQÃ®jAzÀ ¤.r. 14 zÀÄ¹ÜwAiÀÄ°èzÉ. ±ÉÃ. 50 gÀµÀÄÖ NzÀ§ºÀÄzÀÄ. ¤.r. 1 gÀ°è JgÀqÀ£ÉÃ ¥ÀÄl F ¥ÀæPÀgÀtzÀ ªÀiÁ»w F PÉ¼ÀV£ÀAwzÉ. EzÀÄ gÀÆ. 369, 5 D….. 7 ªÀgÉÃ ¥ÉÊ¸É ¸ÀzÀgÀ zÁªÁ w½¸ÀÄªÀ F ¥ÀæPÁgÀ 1£ÉÃ ¥ÁågÁ PÉ¼ÀV£À PÀ®AzÀ°è §gÉzÀ ¥ÀæPÁgÀ «Ä¼ÀRwAiÀÄÄ ªÁ¢AiÀÄ vÀªÀÄä ZÀ£ÀßAiÀÄå ©£ï ªÀÄAUÀAiÀÄå ¨Ás « ªÀÄ£É EªÀgÀ ªÀiÁ®QÃAiÀÄzÀÄ. DvÀ£ÀÄ ªÀÄÈvÀ DVzÁÝ£É. ªÁ¢ EªÀ¼ÀÄ SÁ¸À vÀAV DUÀ¨ÉÃPÀÄ. ¸ÀzÀgÀ vÀAV vÀAV£ÁvÉ¬ÄAzÀ ªÁgÀ¸ÀÄzÁgÀ EgÀÄvÁÛgÉ. ªÁ¢ ºÉÆgÀvÁV ZÀ£ÀßAiÀÄå ©£ï ªÀÄAUÀAiÀÄå ¨Ás A« ªÀÄ£ÉUÉ ¸À«ÄÃ¥ÀzÀ 2£ÉÃ ªÁgÀ¸ÀÄzÁgÀgÀÄ E®è. vÁ:28.03.2006 gÀAzÀÄ ¸ÁQëAiÀÄ£ÀÄß PÀgÉ¹ ¥ÀæªÀiÁt ªÀiÁr¸À¯Á¬ÄvÀÄ. ªÀÄÄAzÀÄªÀgÉzÀ ¥ÁnÃ ¸ÀªÁ®Ä: ²æÃ JA.¹.©. ªÀQÃ®jAzÀ: zÁR¯ÉAiÀÄ 2£ÉÃ ¥ÁågÁzÀ°è ¥ÀæwªÁ¢ ªÁ¢AiÀÄ ¸ÀºÉÆÃzÀgÀ£À §ºÀ¼À zÀÆgÀzÀ ¸ÀºÉÆÃzÀgÀ ¸ÀA§A¢ü EgÀÄvÁÛ£É. CªÀ£À ¥ÀÆªÀðdgÀÄ ZÀ£ÀßAiÀÄå£À ªÀÄ£ÉvÀ£À¢AzÀ §ºÀ¼À ªÀµÀð ªÉÆzÀ¯ÉÃ ¨ÉÃgÉAiÀiÁVgÀÄvÁÛgÉ (JAzÀgÉ ¥Á¯ÁVgÀÄvÁÛgÉ). ¥ÁågÁ 3 PÉ¼ÀV£À D C£ÀÄZÉÒÃzÀzÀ°è£À d«ÄÃ£ÀÄ ªÁ¢AiÀÄ ¸Áé¢üÃ£À EzÁÝUÀ ¥ÀæwªÁ¢AiÀÄgÀÄ §¯ÁvÁÌgÀ¢AzÀ CªÀgÀ ¸Áé¢üÃ£ÀªÀ£ÀÄß QvÀÄÛ PÉÆArzÁÝgÉ. ªÀÄvÀÄÛ C£ÀÄZÉÒÃzÀ § zÀ°è £ÀªÀÄÆzÁzÀ d«ÄÃ£ÀÄUÀ¼ÀÄ. ªÀÄÄA¢£À ¥ÁnÃ ¸ÀªÁ°UÉ ªÀÄÄAzÀÆrzÉ. (vÉgÉzÀ £ÁåAiÀiÁ®AiÀÄzÀ°è £À£Àß ºÉÃ½PÉAiÀÄAvÉ ¨ÉgÀ¼ÀZÀÄÑ ªÀiÁr¸À¯Á¬ÄvÀÄ) N.ºÉÃ.PÉ. ¸Àj CzÉ. ¸ÀÀ»/- (PÉ.©.JA. ¥ÀmÉÃ®) ¥Àæ.¹.£Áå. (».±ÉæÃ) dªÀÄRAr. (Gist of the aforesaid deposition reads as under; In paragraph No.1 of the said document it is mentioned that the plaintiff’s brother Channayya S/o.Magayya Bhavi was the owner of the property. He passed away. Plaintiff is his sister. Being his - 44 - RSA No.5252/2010 sister, she is his legal heir. Except the plaintiff there are no other legal heirs of Channayya son of Magayya. In paragraph No.2 of the said document it is stated that defendant is a far distant relative of the brother of the plaintiff. His ancestors were separated from Channayya several years ago (partitioned). That in paragraph No.3 of the said document it is stated that the possession of the schedule property has been forcibly taken from the plaintiff. 17.19. Learned counsel for the defendants -2 to 5 emphatically submitted that the Trial Court and First Appellant Court erred in reading Ex.D1 in isolation. They ought to have read the said document along with Ex.D14, 17 and 18 to get clear picture. A reading of the aforesaid documents even as insisted by the learned counsel for the defendants would reveal that Ex.D1(a) is an application filed by Parawwa referring to she purportedly relinquishing her right in the property for a sum of Rs.500/- in favour of Parayya. Ex.D14(a) is another application purportedly filed by the parties to the said suit reporting compromise, in which there is reference to immovable property as well as poojaraki - 45 - RSA No.5252/2010 rights of Sri.Prabhuswamy Devar Kamadakatte Teradal. Ex.D17 and 18 consists of two parts which is plaint and an order dated 18.06.1919 passed in the said suit. The contents of the plaint refers only to the immovable property and the claim for mesne profit made by said Parawwa. All these three documents contain distinct and different subjects and are not similar to one another. In any event reading of the said documents would not support and justify the contention of the defendants that Parawwa had given up /relinquished her rights in respect of immovable property as well as poojaraki rights and that the same culminated in any compromise decree. 17.20. The Trial Court while recording the evidence of DW.4 had asked the witness to translate some of the lines of Ex.D.1, which even according to the said witness Ex.D.1 is in a bad condition and not legible and has recorded that the witness found it difficult to give correct version of the same and that he had pleaded his inability to give complete translation of the document.-. 46 - RSA No.5252/2010 17.21. In said situation, the Trial Court has read into handwritten version of Ex.D.1 marked as Ex.D1(a) and has read the contents of the same as extracted at paragraph No.29 of its judgment. 17.22. The Trial Court at paragraph No.30 of its judgment has considered the contents of the plaint in O.S.No.102/1917 produced by the defendants and also it’s translation and on reading of the same, has come to the conclusion that the averments in the said plaint pertains only to the landed properties. 17.23. Ex.D1(a) and the said plaint thus read together would only establish that Parawwa, the plaintiff in the said suit had apparently given up her rights only in respect of suit lands and that the said documents do not reveal that she had given up her Poojaraki rights in respect of Shri Prabhudeva Temple.-. 47 - RSA No.5252/2010 17.24. Ex.D14, Ex.D.14(a), Ex.D.14(b) which according to defendants are application reporting compromise and its handwritten Kannada translation and typewritten Kannada translation respectively. In which, there is a reference to the property of deceased Channayya and also there is a reference to Shri Prabhudeva Swami Devar Pooja. That there is also reference to Shri Prabhudeva Swami Devar, Kamakatti, Terdal and Thamadaddi properties with a condition that the same shall remain with the male progeny. In the said document, there is also a reference with regard to a statement of Parawwa not having any right in the property or Poojaraki and that the said Parayya having all the rights. 17.25. As rightly held by the Trial Court and the First Appellate Court on reading of the contents of Plaint in O.S.No.102/1917 (part of Ex.D-18), Ex.D.1-compromise, and compromise application at Ex.D.14 reveal that there is no similarity in the contents of these three documents. While in the Plaint (part of Ex.D-18) and compromise at - 48 - RSA No.5252/2010 Ex.D1 there is no reference with regard to the Shri Prabhudeva Swamy temple or with regard to right of Poojaraki, whereas the same find mentioned in Ex.D.14. 17.26. Even if Ex.D-14 is an independent document as contended by defendants, in view of the deposition of DW.4, who has stated that he is able to read only 50% of Ex.D.14 as it is in a worst condition, as rightly held by the Trial Court and the First Appellate Court, the translation of the said documents as per Ex.D.14(a) & (b) cannot be relied upon. 17.27. The Trial Court and the First Appellate Court thus, in the considered view of this Court have read the contents of the aforesaid documents in detail and having appreciated the same with the evidence of DW.4 have rightly come to the conclusion that, Ex.D.14 cannot be relied upon. No fault or infirmity can be found with the said reasoning of the Trial Court and the First Appellate Court. Thus, the contention of the defendants as made in - 49 - RSA No.5252/2010 the written statement that Parawwa had given up her Poojaraki rights becomes unacceptable. 17.28. At this juncture, it is relevant to refer to evidence of DW.2 namely Parappa aged about 75 years who resides near the Shri Prabhudeva Temple. The said witness is produced by the defendants and he has deposed that he has been a worshiper in the said temple for about 60 to 70 years and he has also spoken about he being aware of Gurevva and also her mother Parawwa and that their turn of Poojaraki was once in eight years and they were performing pooja through their children till their demise and after their demise their children have been continuing to offer Pooja. 17.29. In the light of the aforesaid documentary evidence in the nature of Ex.D1, contents of plaint in O.S.No.102/1917 (part of Ex.D-18) and the deposition of DW.2, the Trial Court and the First Appellate Court have rightly come to the conclusion that the said documentary and oral evidence produced by the defendants would not - 50 - RSA No.5252/2010 indicate that Parawwa had given up her rights of Poojaraki. 17.30. The other aspect of the matter is assuming the said Parawwa had indeed relinquished her rights over the immovable property along with her right of Poojaraki as contended by the defendants, for a sum of Rs.500/- in favour of Parayya grandfather of the defendants, a question that arises is whether such a relinquishment is acceptable/admissible in law. In other words, the relinquishment claimed by the defendants is in respect of immovable property for a consideration of Rs.500/- which requires to be registered under Section 17(1)(b) of Indian Registration Act, 1908 as it purports to create and extinguish right in respect of immovable property by Parawwa in favour of Parayya. 17.31. As already noted, Exs.D1 D14, D17 and D18, even if taken into consideration as the documents evidencing relinquishment of the right by Parawwa in favour of Parayya as claimed by the defendants cannot be - 51 - RSA No.5252/2010 relied upon for want of admissibility of the said document. Relinquishment of rights by Parawwa in immovable property in consideration of Rs.500/- and also in view of defendants and their forefathers not having any pre- existing right over the suit properties, the alleged transaction of relinquishment requires compulsory registration under Section 17(1)(b) of the Indian Registration Act. That not having been done, the case of the defendants of their grandfather acquiring rights in respect of immovable property including right of poojaraki cannot be accepted. 17.32. It is relevant to refer to the judgment of the Apex Court in the case of Boop Singh (Supra) wherein the Apex Court dealing with compromise decree involving creation of new right and title in praesenti in respect of immovable property value of which Rs.100/- or upwards has held that if there is no pre-existing rights involved in such a compromise, document is compulsorily registerable under Section 17 of the Registration Act.-. 52 - RSA No.5252/2010 17.33. It is also relevant to refer to judgment of the Apex Court in the case of Ram Rathan by his LRs. (Supra) wherein at paragraph No.13 has held as under:

13. The definition of immovable property in S. 3 of the Transfer of Property Act is couched in negative form in that it does not include standing timber, growing crops, or grass. The statute avoids positively defining what is immovable property but merely excludes certain types of property from being treated as immovable property. Section 2(6) of the Registration Act defines immovable property to include lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or grass. Section 2 (26) of the General Clauses Act defines immovable property to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. It may be mentioned that the definition of immovable property in Registration Act lends assurance to treating Shebait's hereditary office as immovable property because the definition includes hereditary allowances. Office of Shebait is hereditary unless provision to contrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other. Old texts, one of the principal sources of Hindu law and the commentaries thereon, and over a century the Courts with very few exceptions have recognised hereditary office of Shebait as immovable property, and it has all along been treated as immovable property almost uniformly. While examining the nature and character of an office as envisaged by Hindu law it would be correct to accept and designate it in the same manner as has been done by the Hindu law text writers and accepted by courts over a long period. It is, therefore, safe to conclude that the hereditary office of Shebait which would be enjoyed by the person by turn would be - 53 - RSA No.5252/2010 immovable property. The gift of such immovable property must of course be by registered instrument. Exhibit 1 being not registered, the High Court was justified in excluding it from evidence. On this conclusion the plaintiff's suit has been rightly dismissed. 17.34. Thus, from the above it is clear that, even if compromise entered in a suit creating right for the first time in respect of immovable property along with poojaraki rights of which Rs.100/- onwards requires registration under Section 17(1)(b) of the Registration Act. 17.35. Learned counsel for the defendants 2 to 5 relied upon the judgment of the Apex Court in the case of Baldevdas Shivlal (supra) referring to paragraph Nos.7 and 9 of the said judgment submits that, consent decree is merely a record of contract between the parties to the suit which is super added with the seal of the Court. The aforesaid judgment is referred by the counsel for the defendants 2 to 5 in the context of Ex.D.17, which is apparently according to the defendants contain the plaint - 54 - RSA No.5252/2010 averments and the order dated 18.06.1919 appearing thereon already extracted hereinabove. 17.36. Referring to the said order, learned counsel submits that since the suit in O.S.No.102/1917 was dismissed, though taking on record the application filed by the parties for compromise, the same does not require registration as the suit is not decreed in terms of the compromise. He insists that the said document has to be read to mean that the parties had indeed arrived at a settlement and that the said document evidence record of settlement between the parties. 17.37. In response, learned counsel for the plaintiffs pointing out contents of Ex.D.14, insist that a compromise decree has to contain terms of compromise entered into between the parties. In this regard, he relied upon the judgment in the case of CHAND KAUR (supra), wherein it is held that under Order XXIII Rule 3 of CPC a court must record satisfaction that adjustment of a claim is made by lawful agreement and that the compromise - 55 - RSA No.5252/2010 decree shall contain terms of the compromise. Thus he submits that since Ex.D.14 does not contain the terms of the compromise, the same does not amount to order of the Court. 17.38. It is to be seen that the specific case of the defendants is that, their grandfather Parayya acquired rights in the immovable properties along with rights of Poojaraki belonging to Channayya by virtue of relinquishment made by Parawwa for consideration of Rs.500/- and in proof of said contention produced Ex.D.1, Ex.D.14 and Ex.D.17 and Ex.D.18. As already pointed out creation of right in respect of immovable property for a value of Rs.100/- and above requires registration and the same cannot be dispensed with. 17.39. From the aforesaid discussion and the submissions of counsel for the parties, what emanates is, though the defendants has specifically contended that their grandfather Parayya acquired rights in respect of land and Poojaraki rights from the branch of Magayya in - 56 - RSA No.5252/2010 terms of the relinquishment by Parawwa in the year 1919 in consideration of Rs.500/- by entering into compromise in the suit in O.S.no.102/1917, they have not been able to establish the factum of relinquishment by producing acceptable and admissible evidence in the manner known to law. As already noted, contents of Ex.D.1, Ex.D.14, Ex.D.18 are not similar and are not legible and they are not safe to rely upon. They are not even registered as required under law. Therefore, the submission that these documents have to be read conjointly to arrive at a proper understanding is only an attempt to make out or otherwise non existing case. 17.40. In support of their contentions regarding their rights over the land and Poojaraki rights plaintiffs have produced Exs.P1 and P2/RTC Extracts in respect of land in R.S.Nos.585 and R.S.No.712 and the order copy of Land Tribunal at Ex.P.3. They have also produced Ex.P.6, mutation entries No.19, 45 and 46 reflecting the names of plaintiffs and the defendants and also produced mutation entries No.204 and 205 at Ex.P.9 reflecting the names of - 57 - RSA No.5252/2010 the plaintiffs and defendants in respect of land in Sy.Nos.585 and 712. Based on these documents and oral evidence of PW-1 to 5 plaintiffs have claimed their right over land and poojaraki rights. 17.41. DW.1 in his deposition recorded on 04.06.1997 has admitted the division of land in R.S.Nos.585 and R.S.No.712 into 10 strips as contended by the plaintiffs. He has also admitted that there was a partition but has pleaded ignorance as to which are the properties that were allotted to the share of Parawwa at the time of entering into compromise in the year 1919. He admits that at the time of survey conducted by the Land Tribunal a list with regard to the persons in occupation of the lands was also prepared. He admits that from the paternal side plaintiffs have inherited four annas of share and the same has been retained by them. He also admits that as per the strips, the first strip consists of 1 acre 15 guntas, second strip consists of 2 acres 5 guntas, third strip consist of 1 acre 35 guntas, fifth strip consist of 1 acre, sixth strip consist of 1 acre, seventh strip consist of - 58 - RSA No.5252/2010 1 acre, eighth strip consist of 4 acres 3 guntas, ninenth strip consist of 1 acre and tenth strip consist of 1 acre. 17.42. Referring to the said admission of DW.1 read with exhibits produced by the plaintiffs, learned counsel for the plaintiffs submits that the factum of partition of the land stand proved and established. 17.43. The Trial Court and the First Appellate Court having gone into these material evidence produced by the plaintiffs have held that the plaintiffs are in possession of their portion of the land as claimed by them in the plaint. 17.44. Defendant Nos.2 to 5 on the other hand in furtherance to their contention have relied upon the order of the Land Tribunal and emphatically contend that the Land Tribunal taking note of the relinquishment of share made by Parawwa in the year 1919 has granted the land exclusively to them and which grant is now subject matter of the Writ Appeals in W.A.No.3286/2013 C/w W.A.No.30277/2013.-. 59 - RSA No.5252/2010 17.45. In justification of their contention of Parawwa relinquishing her rights by a compromise purportedly arrived at in a suit in O.S.No.102/1917 they have relied upon Exs.D1, D14, D17 and D18. With regard to the claim of plaintiffs on Poojaraki rights, the defendants have relied upon Exs.D8 to D12 ‘Charge Pattis’ which according to defendants would establish the fact that the defendants have been exclusively enjoying Poojaraki rights once in every cycle of eight years and that plaintiffs are enjoying their four annas of share in their Poojaraki rights inherited through their father. 17.46. As rightly taken note of by the Trial Court and the First Appellate Court, the defendants have also not produced any documents to evidence that the names of their grandfather was mutated in respect of land to the extent of half share of Magayya, which according to them was relinquished by Parawwa in terms of a compromise entered into in O.S.No.102/1917. No revenue records in this regard has been produced by the defendants.-. 60 - RSA No.5252/2010 17.47. Holistic reading of these material evidence would reveal that the said documents referred to by the defendants namely Exs.D.8 to 12 cannot be read in isolation with the other factual aspect of the matter namely the alleged relinquishment of right of Poojaraki and half a share in the immovable property by Parawwa. The said fact not having been established by the defendants it is hard to accept the plaintiffs were not offering the Poojaraki to the extent of their half share at their turn along with the defendants. The admission of DW.1 and deposition of DW.2 with regard to division of properties and Poojaraki respectively becomes relevant at this juncture and the Trial Court and the First Appellate Court have rightly taken these aspects of the matter into consideration in negating the claim of the defendants that they were exclusively enjoying their Poojaraki rights during their turn of cycle of eight years in exclusion to the plaintiffs. 17.48. Aforesaid reasons and analysis, the substantial question of law No.1 is answered in the - 61 - RSA No.5252/2010 negative. In that, the Trial Court and the First Appellate Court have committed no error in decreeing the suit and there is no misreading of Ex.D.1, a compromise decree passed in O.S.No.102/1917 and the compromise petition. Reg: Substantial question of Law No.2 :

17. 49. Substantial question of law No.2 was reframed/reformulated on 30.08.2021 referring to relief of granting of permanent injunction, when the tenancy issue is pending before this Court in W.A.No.30286/2013 C/w W.A.No.30277/2013. 17.50. For the purpose of answering this substantial question of law it is necessary to bear in mind the pleadings in the suit and the issues involved. The suit is one for injunction in respect of Poojaraki rights and the benefits attached to the Poojaraki rights and also in respect of suit schedule properties. The said relief of injunction is being sought by the plaintiffs based on their claim of inheritance through their grandmother Parawwa. Defendants on the other hand while denying the claim of - 62 - RSA No.5252/2010 the plaintiffs have set up their rights both in respect of Poojaraki rights as well as the suit properties on the basis of relinquishment purportedly made by Parawwa in favour of their grandfather Parayya in the year 1919 for consideration of Rs.500/- as already noted above. Thus, there is no issue or contention raised in the suit which bars the jurisdiction of the Civil Court either expressly or impliedly. 17.51. For a better understanding of the scope of the present suit it is appropriate at this juncture to refer to section 5 of the Karnataka Certain Inams Abolition Act, 1977 providing the categories of persons who are entitled to be registered as occupants of minor Inam land which is extracted as under; 5. Right to be registered as occupants.- Save as otherwise provided in this Act, with effect from and on the appointed date ,- (1) every tenant of the inamdar or holder of a minor inam shall be entitled to be registered as an occupant of lands in respect of which he was a tenant immediately before first day of March, 1974; (2) where the inamdar is an institution of religious worship, a person,- - 63 - RSA No.5252/2010 (i) rendering religious service in or maintaining the institution as a pujari, archak or the holder of a similar office by whatever name called, or (ii) rendering any service in such institution, and personally cultivating for a continuous period of not less than three years prior to the first day of March, 1974, by contributing his own physical labour or that of the members of his family and enjoying the benefits of any land comprised in the inam of such institution without paying rent as such in money or in kind to that institution in respect of such land, shall be entitled to be registered as an occupant of such land ; (3) every inamdar including the holder of a minor inam shall be entitled to be registered as an occupant of all lands it was personally cultivating immediately before the said date. 17.52. A perusal of Section 5 (2) (i) (ii) reveal that a person rendering religious service in or maintaining institution as Pujari, Archak or holder of similar office whatever name called is entitled to be registered as occupant. 17.53. In terms of Section 11 of the Karnataka Certain Inams Abolition Act, 1977, application for registration of occupant shall be adjudicated and determined by the Tribunal constituted under Karnataka Land Reforms Act, 1961. In terms of Section 133 of the - 64 - RSA No.5252/2010 Karnataka Land Reforms Act, jurisdiction of the Civil Court is expressly excluded in respect of the matters jurisdiction of which is exclusively conferred on the Tribunal. It is necessary at this juncture to refer to Section 133 of the Karnataka Land Reforms Act, 1961, in this regard, which reads as under; "Section 133. Suits, proceedings, etc., involving questions required to be decided by the Tribunal.— (1) Notwithstanding anything in any law for the time being in force,— (i) no Civil or Criminal Court or officer or Authority shall, in any suit, case or proceedings concerning a land, 2 [x x x].2 decide the question whether such land is or is not agricultural land and whether the person claiming to be in possession is or is not a tenant of the said land from prior to 1st March 1974; (ii) such Court or officer or Authority shall stay such suit or proceedings in so far as such question is concerned and refer the same to the Tribunal for decision; (iii) all interim orders issued or made by such Court, officer or Authority, whether in the nature of temporary injunction or appointment of a Receiver or otherwise, concerning the land shall stand dissolved or vacated, as the case may be; (iv) the Tribunal shall decide the question referred to it under clause (1) and communicate its decision to such Court, officer or Authority. The decision of the Tribunal shall be final. (2) Nothing in sub-section (1) shall preclude the Civil or Criminal Court or the officer or authority from proceeding with the suit, case or proceedings in respect of any matter other than that referred to in that sub-section.-. 65 - RSA No.5252/2010 17.54. Perusal of aforesaid provision make it clear that Civil or Criminal Court or officer or any Authority are barred from deciding the questions namely; (i)Whether the land subject matter of the proceeding is or is not agricultural land?. and (ii) Whether the person claiming to be in possession, is or is not a tenant of the said land?.. 17.55. Sub-Section (2) of Section 133 makes it clear that, except the above nothing in sub-section (1) shall preclude civil or criminal court or the officer authority from proceeding with the case or proceedings. 17.56. Division Bench of this Court in the case of Mallayya Murigeyya Naduvinmath Vs. Puttanna Shivappa Mosali AIR1976KAR192at paragraph No.7 and 8 has held as under;

"7. Section 133 of the Act as it stands now takes away the Jurisdiction of any civil or criminal court or officer or authority to decide the Question whether a land is an agricultural land or not and whether a person claiming to be in possession is or is not a tenant of the said land from prior to 1-3- 1974. In a case where the plaintiff claiming to be a tenant of a land in question while admitting that - 66 - RSA No.5252/2010 the defendant is the owner prays for an injunction restraining the defendant from interfering with his possession, we are of the opinion that the question whether the plaintiff is a tenant or not would arise for consideration, since the suit would have inevitably to be dismissed if a finding is not given in the affirmative on the said question as admittedly the defendant is the owner of the property. The reason is not far to seek. It is well settled that no person in possession of land can sue for injunction against a true owner unless he is able to maintain that either under an agreement or under a statute he is entitled to the said relief even as against him. If he is not able to rely on any such agreement or statute his possession would be wrongful. No Court will by its order help a party who is found to be in wrongful possession as against the lawful owner (see Alamelu Achi v. Ponniah, AIR1962MAD149. It follows that in order to decide the case on hand it is absolutely necessary to decide the question whether the plaintiff is a tenant or not for a just disposal of the case. Section 133 provides that when the question before the Civil Court is whether the person, claiming to be in possession, is or is not a tenant of the suit land from prior to 1-3-1974, then the Court shall stay such suit in so far as such question is concerned and refer the same for decision. Section 133 applies to all such cases irrespective of the fact that the person who claims to be the tenant is a plaintiff or a defendant".

"8. In view of the foregoing, we are of the opinion that in the case before us the question whether the plaintiff is or is not a tenant of the agricultural land in question from prior to 1-3-1974 arises for consideration and that question has to be referred to the Tribunal for its decision. The order of remand passed by the lower appellate Court has therefore to be affirmed. The appeal, therefore fails and it is dismissed. The trial Court shall refer the question to the decision of the Tribunal in accordance with the provisions of Section 133 of the Act as it stands now".-. 67 - RSA No.5252/2010 17.57. It is useful to refer to the judgment of Apex Court in the case of Thomas Antony Vs. Varkey Varkey reported in (2000) 1 SCC35wherein dealing with the issue the Apex Court has held; "While making a reference to the Tribunal mandatory the legislature cannot be said to have intended that even a patently frivolous, malafide and illegal plea of tenancy taken by a party merely to delay the proceeding and to remain in possession of the property is also to be referred to the Tribunal. The statutory provisions in our considered view, envisage a case where a bonafide and legally sustainable plea of tenancy is taken by the party, that question shall be referred to the Tribunal. It is of significance that in sub-section (6) of Section 125 a provision is made that the decision of the Land Tribunal on the question referred to it shall for the purposes of appeal be deemed to be a part of the finding of the civil court. It follows that while the trial court is to accept the decision of the Tribunal and base its decision in the suit or proceeding on the same no such constraint is placed on the Appellate Court while deciding the appeal arising from the suit or proceeding. Before the Appellate Court is open to the parties to challenge the finding recorded by the trial court on the basis of the decision of the Tribunal as any other finding. The Tribunal has been created as a special forum for adjudication of the question of status of a person who claims to be a tenant or Kudikidappukaran. The legislative scheme appears to be that at the trial stage adjudication on the question should be confined to one forum i.e. the Tribunal and the civil court should not go into the very same question again after the decision of the Tribunal is received by it".-. 68 - RSA No.5252/2010 17.58. Coordinate Bench of this Court in the case of Montu Dalmeda Vs. Poul Dhalmeda reported in 2003 (4) KCCR2642 referring to the judgment of the Division Bench of this Court in the case of Mallayya (Supra) as well as the judgment of the Apex Court in the case of Thomas Antony (supra) and pargraph Nos.7 and 8 has held as under; "7……………… The latest position in law, therefore, is predominantly in favour of the courts proceeding with the suits filed for reliefs which do not directly involve questions reserved by the statute for the consideration of the Tribunal. Courts appear to hold the view that even where the issue of tenancy arises incidentally either out of the defence taken by the defendant or in a suit filed by the plaintiff- tenant for permanent injunction or possession, on the ground of tenancy, the same can be gone into incidentally to record a finding on the question of lawful possession in order to decide the suit for possession or permanent injunction.

8. Such a conclusion can be supported also on the ground that the valuable rights of a owner of the land should not be put on hold or kept in abeyance on the mere assertion by a defendant that he is a tenant of the suit land. That the decree of the civil court will not bind the ultimate order of the Tribunal bestowing on the tenant the occupancy rights is not a circumstance that could be urged against the civil court adjudicating upon the questions, other than those to be decided by the Tribunal, coming up before it in a properly instituted suit. It is so because in the event of the land being declared as a tenanted land, by operation of law, the tenanted land would vest in - 69 - RSA No.5252/2010 the Government as on 01.03.1974 and any decree obtained by the plaintiff-owner of the land against the defendant-tenant would become invalid and rights, if any, that accrued to him under the decree would also get wiped out and, therefore, the tenant's interest would not be adversely affected. If the civil court gathers the opinion that the tenancy issue may be decided in favour of the tenant by the Tribunal, it could protect the interests of the tenant by appointing a Receiver while proceeding with the suit. On the contrary putting-off of the adjudication of the claim made by the owner of the land in a suit for permanent injunction or possession for an unduly long period till the matter of tenancy is ultimately decided by the Tribunal and the appellate authority would work undue hardship on the rightful owner of the land if the claim of the tenant is found to be untenable and is ultimately rejected by the Tribunal. For, in that event, it would amount to denying to the rightful owner the valuable right of protecting his possession from unwanted interference by a person having no right whatsoever over the land. Examined in this angle, the interests of the parties would be best served by the civil court adjudicating upon the questions arising in a suit for permanent injunction or for possession rather than by putting the proceedings before the civil court on hold till a finding is reached by the Tribunal on the tenancy issue. Matters of tenancy usually pending for so many years that it would not be prudent to condemn the litigants to a situation where both of them could assert rights over the suit land with the court remaining a mute spectator unable to resolve it one way or the other because the matter is seized of by the Tribunal on a related question". 17.59. It is also useful to refer to another judgment of a coordinate Bench of this Court in the case of G.Gopalakrishna Vs. K.Bhaseer reported in 2016 (3) KCCR2398wherein referring to the judgment of - 70 - RSA No.5252/2010 Division Bench of this Court in the case of Mallayya (supra) dealing with an issue involving tenancy in respect of agricultural land pending consideration before the Assistant Commissioner wherein the plaintiff had claimed right as a tenancy, at paragraph No.18 and 23 has held as under;

"18. In so holding, the Division Bench held that even in a suit for bare injunction, the question of tenancy would arise when such a suit is filed by a plaintiff who claims to be a tenant as against the true owner, for the simple reason that if the plaintiff fails to prove that he is in possession of the suit lands as a tenant, then the suit would have to be dismissed. There can be no injunction granted against the true owner, unless the plaintiff who is in possession is able to establish that he is in possession of that property either under an agreement or under a statute in which he is entitled to seek the relief against the true owner. In my view, the decision of the Division Bench and the reasons given in the said case clearly apply to the present case also".

"23. Thus, in a suit or other proceeding, where a question would arise as to in what capacity a person is in possession of the land and if either party claims that person is in possession of the agricultural land as a tenant, that issue would have to be enquired into by only the Land Tribunal and not by the Civil Court". 17.60. Analysis of the aforesaid judgments of the Apex Court and of this Court would make it clear that the - 71 - RSA No.5252/2010 jurisdiction of the Civil Court is not barred merely because a matter is pending consideration which regard to issue of tenancy. The test to be applied is, if the proceedings before the Civil Court directly deal with the question of determination of nature of the land to be agricultural land or not and claim of tenancy. As noted above, these two issues are not at all subject matter of the present proceedings. Therefore the Trial Court and the First Appellate Court have committed no error in granting permanent injunction. 17.61. It is also necessary to note that the Land Tribunal by its order dated 18.04.2002 as per Ex.D.15 relying upon the decree in O.S.No.102/1917 observed that Parawwa had given up her share of her property in favour of ancestors of defendants by taking Rs.500/- and accordingly adjudicated the matter in their favour. Admittedly, the aforesaid order of the Land Tribunal was challenged by the plaintiffs before this Court in a writ petition in W.P.No.43508/2002. This court taking note of contents of said decree opined that there is absence of - 72 - RSA No.5252/2010 such stipulation and further holding that the Tribunal is required to determine the question as to if Parawwa continued to be in possession of the subject land allowed the said petition on 16.01.2013 and remitted the matter to the Land Tribunal. The said order has been assailed by the defendants in W.A.No.30286/2013 C/w W.A.No.30277/2013, which is pending consideration. The Division Bench of this Court by its order dated 19.04.2017, taking note of its earlier order dated 10.12.2014 postponed the hearing of the said writ appeals till after disposal of the present regular second appeal. 17.62. Thus, in view of the above the substantial question of law No.2 is answered in the negative. Reg: Substantial Question of Law No.3 :

17. 63. It is not the case of the defendants that they had pre-existing right over the suit property. Though it is not pleaded in the written statement, in this appeal memo, it is contended that since Parawwa did not have right under the Hindu Women’s Right to Property Act, - 73 - RSA No.5252/2010 1937, the defendants being reversionary heirs became entitled to share in the property of Channayya. 17.64. The aforesaid contention cannot be accepted inasmuch as Chapter-V of Mulla’s Hindu Law, 22nd Edition, Synopsis No.64 under the heading ‘Female Heirs in Bombay School of Inheritance’ recognizes, not only the widow daughter, mother, father’s mother and father’s father’s mother as heirs but also recognizes sister as a heir, whether whole or half blood. The sister is considered to be Sapinda by virtue of her affinity to her brother. She is also considered as Galraj’s Sapinda having been born in her brother’s Gothra or family. 17.65. Further Synopsis No.72 under Chapter-VI of the aforesaid Mulla’s Hindu Law, under the heading “Order of succession to males in Bombay State” with reference to “Law prior to Hindu Succession Act, 1956” “Order of Succession in cases governed by Mithakshara” refers to Full Sister being entitled for a share. Parawwa - 74 - RSA No.5252/2010 being full sister of deceased Channayya was thus, entitled to inherit the estate of deceased Channayya. 17.66. It is not in dispute that Chanayya passed away some where prior to 1917 and succession opened upon on his demise and Parawwa was the only legal heir. There is also no dispute that parties were governed under the Bombay School of inheritance. Thus, as noted above, both in terms of Chapter-V as well as Chapter-VI of Mulla’s Hindu Law, Parawwa being full sister of Channayya was entitled for inheritance of his estate. This being legal and factual aspect of the matter, undoubtedly Parawwa was entitled for half of the share of the family properties and also half of the share in the poojaraki rights. 17.67. Thus from the above, it is clear that the appellants/defendants have failed to establish that the provisions of Hindu Women’s Right to Property Act, 1937 disentitled Parawwa from succeeding to the estate of her brother-Channayya. On the other hand, as seen above under Bombay School of Inheritance, sister being - 75 - RSA No.5252/2010 proximately related to brother was entitled for inheritance and was also considered as an heir along with other female heirs. The substantial question of law No.3 is answered in the negative. In that the Trial Court and the First Appellate Court have committed no error in this regard. Reg: Substantial Question of Law No.4 :

17. 68. A judgment is said to be perverse if it is not based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. Perusal of the judgment and decree passed by the Trial Court and the judgment and order passed by the First Appellate Court, it is clear that both the Courts have independently appreciated and assessed the material evidence produced by the parties and have meticulously gone through the contents of documents produced by the parties. As seen in paragraph Nos.29, 30, 31 and 32 of the judgment the Trial Court has read through the contents of Ex.D.1, Ex.D.14 and also the Plaint in - 76 - RSA No.5252/2010 O.S.No.102/1917. It has also gone through the deposition of DW.2 and DW.3 and has analyzed the contents of documents in the light of the deposition of these witnesses. The First Appellate Court has yet again re- appreciated the evidence minutely and thereafter has affirmed the finding and conclusion arrived at by the Trial Court. 17.69. In that view of the matter, Substantial question of Law No.4 is answered in the negative. The judgments of the Trial Court and the First Appellate Court are neither perverse nor illegal. They have appreciated the material evidence produced by the parties in accordance with law.

18. The learned counsel for the defendants/appellants has raised the ground of limitation in this appeal memo and has addressed argument thereon though not pleaded in the written statement. It is to be seen that, learned counsel insists that the suit ought to have been filed on the demise of Parawwa. The date of - 77 - RSA No.5252/2010 demise of Parawwa is not forthcoming. Plaintiffs have claimed right through their mother Gurawwa, who passed away on 03.10.1986 as per Ex.P.4. The cause of action of the suit according to the plaintiffs arose on 02.08.1989 and the suit has been filed 14.08.1989. In the written statement there is no specific denial to the averment made in the plaint regarding the cause of action. Except bald statement of suit not being tenable, no specific averments touching upon the issue of limitation is made. In that view of the matter, submissions of the learned counsel for the defendants/appellants on the limitation point cannot be accepted.

19. For the reasons and analysis and reasoning and in view of answers to substantial questions of law as noted above, this Court pass the following; :

ORDER

: i. This Regular Second Appeal is hereby dismissed. ii. The judgment and decree dated 31.03.2008 passed in O.S.No.113/1989 on the file of - 78 - RSA No.5252/2010 Principal Civil Judge (Jr.Dn.), Jamkhandi and the judgment and order dated 22.12.2009 passed in R.A.No.60/2008 on the file of Fast Track Court, Jamkhandi are hereby confirmed. iii. The plaintiffs are also held entitle to receive half of the amounts deposited before the Courts as the case may be, pursuant to the interim orders in these proceedings. iv. I.A.No.3/2013 filed under Order XLI Rule 27 by the appellant seeking production of additional evidence is rejected. Sd/- JUDGE KGK/RH/EM

Court	Karnataka Dharwad High Court
Decided On	Feb-24-2023
Case Number	RSA 5252/2010
Judge	M.G.S. KAMAL
Appellant	Parayya S/o : Ishwarayya Bhavi
Respondent	Gadagayya S/o : Parayya Bhavi

Parayya S/o : Ishwarayya Bhavi Vs. Gadagayya S/o : Parayya Bhavi - Court Judgment