Full Judgment
K.A. Swami, J.
1. This appeal by defendants 1 to 3 is preferred against theJudgment and decree dated 31-8-1987 passed by the learned AdditionalCivil Judge, Bijapur in O.S. No. 178 of 1983.
2. The learned trial Judge has passed a decree for partition andseparate possession of 2/3rd share of the plaintiffs in the suitschedule properties bearing R.S. Nos.64, 74 and 77 of Niralgivillage.
3. The relationship between the parties is not in dispute. It isnot in dispute that the suit lands in question were assigned to thevillage office. Maktumsa was the Walikar of the village. The landswere to be enjoyed by the propositus Maktumsa. Maktumsa had three sonsby name Madansa, Allisa and Mashaksa @ Mashanna. Madansa had threesons by name Mohammadsa, Hanifsa and Kasimsa. The two sons of Maktumsai.e., Allisa and Mashaksa alias Mashanna are the plaintiffs 1 and 2 inthe suit. The aforesaid three sons of Madansa are defendants 1 to 3 inthe suit. The suit was for partition and separate possession of 2/3rdshare in the aforesaid three lands as well as in other two landsbearing R.S.Nos.61/1 and 61/2 of Niralgi village, Sindhgi Taluk.
4. The case of the plaintiffs is that the lands bearing R.S.Nos.64, 74 and 77, which shall hereinafter be referred to as the suitlands were assigned to the village office which was granted to theirfather Muktumsa; that as the suit lands were assigned to the villageoffice, the same were to be enjoyed by the holder of the villageoffice which was to go to the elder member of the family ; that it wasbecause of this, the suit lands were enjoyed by Madansa. The villageoffice came to be abolished by the Karnataka Village Offices AbolitionAct, 1961 and the suit lands were also regranted on 3-9-1973 in thename of Mohammadsa; that after the regrant, the suit lands becamereyatwa lands and as such the plaintiffs became entitled to have 2/3rdshare.
5. The defendants resisted the suit. They contended that theplaintiffs were not entitled to have any share in the suit lands; thatthe suit lands were exclusively enjoyed by their father Madansa andafter his death by the defendants and that the regrant also had takenplace in the name of defendant No. 1; therefore, he had becomeexclusive owner; that the suit was barred by res judicata and that thesuit was barred by time.
6. On the basis of the pleadings of the parties, the trial Courtframed the following issues:
1) Do the plaintiffs prove that they are entitled topartition and possession of 2/3rd share in the suit property?
2) Does defendant-1 prove that defendant-1 alone is the owner ofsuit land in view of the regrant?
3) Is the suit of the plaintiffs hit by the principles of resjudicata?
4) What decree and what order?
ADDITIONAL ISSUE:
1) Whether the suit is barred by time?
7. The trial Court held that the plaintiffs were entitled topartition and separate possession of their 2/3rd share; thatdefendant-1 failed to prove that he alone was entitled to be theexclusive owner of the suit lands because they were regranted in hisname; that the suit was not hit by res judicata and it was not barredby time.
8. The records of the case were also called for and received.
9. In the light of the contentions urged, the following pointsarise for consideration:
1) Whether the suit is barred by res judicata havingregard to the order passed by the Mamalatdar, Sindhgi, in WahiwatiSuit as per Ex.D.28 and the Judgment and decree passed as per Ex.D.6and Ex.D.7 respectively in O.S.No. 69/1966?
2) Whether the suit was barred by time?
POINT NO. 1:
10. Sri Suresh S. Joshi, learned Counsel for the appellants submitsthat during the lifetime of Maktumsa, Madansa, the father of thedefendants officiated as walikar and on that basis, he filed WahiwatiSuit No. 6/1947 in the Court of the Mamalatdar, Sindhgi for apermanent injunction in respect of one of the suit lands viz., S.No.64 of Niralgi village against Allisa, plaintiff-1 and 5 others. Thatsuit ended in his favour and a decree for permanent injunction waspassed on 4-11-1947 as per Ex.D.28, that that that decree operates asres judicata against both the plaintiffs herein as the basis for theshare claimed by the other plaintiff is also similar to the oneclaimed by Allisa who is no other than the brother of plaintiff-2.Similarly Mohammedsa son of Madansa, defendant-1 in the present suit,filed C.S.No. 69/1966 in the Court of the Munsiff, Bijapur againstAllisa for a declaration that he was the owner of the suit landsbearing S.Nos.64, 74 and 77 of Niralgi village which are concerned inthe present suit also and for a permanent injunction. That suit wasdecreed on 30-6-1966. Ex.D.6 and D.7 are the Judgment and decreerespectively passed in the said suit by the Court of the AdditionalMunsiff, Bijapur. The contention is that the decree passed in C.S.No.69/66 operates as res judicata. Therefore, the plaintiffs are notentitled to claim any share in the suit properties.
11. The trial Court has rejected the contention. It has held thatthe order Ex.D.28 and the Judgment and decree D.6 and D.7 are of noconsequence after the abolition of the Village Office as the rights ofthe parties are governed by the provisions of the Karnataka VillageOffices Abolition Act, 1961 (hereinafter referred to as the 'Act');that after the abolition of the village office and regrant, the suitlands have become available for partition as on regrant the suit landshave become ryotwari lands.
12. We have perused the order dated 4-11-1947 (Ex.D.28) passed bythe Mamlatdar, Sindhgi in Wahiwati Suit No. 6/1947. That was a suitfiled under the provisions of the Bombay Mamlatdars Court Act, 1906.It was a wahiwati suit for permanent injunction filed by Madansa,father of the present defendants on the basis of possession againstAllisa (plaintiff-1 herein) and 5 others who were not in any wayconcerned with the parties herein or the land S.No. 64 of Niralgivillage. Mashaksa @ Mashanna (plaintiff-2 herein) does not claimthrough Allisa who was a party to Wahiwati Suit No. 6/1947 even thoughboth of them are brothers. They claim through their father Maktumsa.As such the order passed in Wahiwati Suit No. 6/1947 as per Ex.D.28against Allisa cannot at all operate as res judicata againstplaintiff-2 Mashaksa @ Mashanna as he was not a party to the saidsuit. The Mamlatdar under the Bombay Mamlatdars Court Act, 1906 wasnot competent or had no jurisdiction to entertain and try a suit forpartition and separate possession. Therefore, one of the essentialrequirements to apply the Rule of Res Judicata viz., that the Courtwhich tried the previous suit must have been competent to try thesubsequent suit or issue raised in a subsequent suit is not satisfied.The Court of the Mamlatdar was not competent to try the present suiteven as per the law as it stood then. In addition to this in WahiwatiSuit No. 6/1947, the issue relating to the right of the plaintiffs toone of the suit lands viz., S.No. 64 of Niralgi village which was thesubject matter of Wahiwati Suit No. 6/1947 was not directly andsubstantially in issue. That was merely a suit for permanentinjunction based on the ground that Madansa, the father of thedefendants was in possession and enjoyment of one of the suit landsviz., S.No. 64 of Niralgi village as 'holder of the village office.'In such a suit, the title to the land will not be directly orsubstantially in issue. The only question that arises for decision iswhether the plaintiff was in possession of the suit land on the dateof the suit. Any observations or matters which were not and could nothave been directly in issue and not being essential to support theJudgment, cannot be construed to be conclusive. Therefore, a decreefor permanent injunction does not operate as res judicata in asubsequent suit filed either for partition or for declaration oftitle. (See BASAVANNAGOUDA FAMIRA GOUD PATIL BY LRD. v. STATEGOVERNMENT AND ORS., 1976(2) KLJ 149)
13. Civil Suit No. 69/1966 was filed by the present defendant-1against Allisa, the present plaintiff-1, in respect of all the threesuit lands herein for a declaration that he was the owner of thepresent suit lands and for a permanent injunction. He claimed title tothe suit lands on the ground that the suit lands were walikar inamlands granted to his father who died about two years ago and after hisdeath, the revenue authorities had appointed him as the walikar of thevillage and the three suit lands herein were granted to him and he wasin possession and enjoyment of the same. Allisa remained absent thoughserved. The suit was decreed declaring that the plaintiff (defendant-1herein) was in peaceful possession and enjoyment of the suit landsbeing the walikar of the village in question and the defendant(present plaintiff-1) was restrained by way of permanent injunctionfrom obstructing the possession of the plaintiff therein.
14. From the Judgment Ex.D.6, in C.S.No. 69/66, it is clear thatthe title of the present defendant-1 to the suit lands was declared onthe basis that he was in possession and enjoyment of the suit landsbeing the walikar of Niralgi village, to the office of which the suitlands were assigned. No doubt, it was a suit for declaration of titleand injunction in respect of the suit lands in question. But it wasnot filed against all the sons of Maktumsa; it was filed only againstAllisa, the present plaintiff No. 1. As Mashanna @ Mashaksa, thebrother of Allisa does not claim through Allisa but he claims in hisown right as a heir to Maktumsa, the decree declaring the title andgranting permanent injunction passed in C.S.No. 69/1966 against Allisacannot operate as res judicata because one of the requirements toattract the rule of res judicata is that the former suit must havebeen between the same parties or between the parties under whom they,or any one of them litigating under the same title. In addition tothis, the basis for passing the decree in C.S.No. 69/66 was thatMohamadsa was officiating as walikar of the village as per the lawstood then. Before the abolition of the village office, the landsassigned to the village office were to be enjoyed by the officiator ofthe village office. After the abolition of the village office, on thecoming into force of the Act, that basis has disappeared. The suitlands have ceased to be Sheth-Sanadi lands assigned to the villageoffice and on regrant, the suit lands have become Ryotwari landsavailable for partition among those who are entitled to a share inthem as per the personal law relating to succession and inheritance ofproperties. Therefore, the decree in C.S.69/ 66 cannot be held tooperate as res judicata.
15. The consequences of abolition of village office and regrant ofthe lands assigned to the village office are considered in a DivisionBench decision of this Court in SHIVAPPA FAKIRAPPA SHETSANADI v.KANNAPPA MALLAPPA SHETSANADI, : ILR 1987 KAR3155 . In that decision, after referring toa Full Bench Decision of the High Court of Bombay in LAXMIBAI v.GANESH, : AIR1977 Bom350 which is approved by the Supreme Court in NAGESH BISTODESAI v. KHANDO THIRMAL, : [1982]3SCR341 which arose out of a decision of thisCourt, it has been held thus:
'9..........There is nothing in Section 4 of the Actwhich can be held to affect the personal law of the parties so as todeprive the junior members of the family of their right to claimpartition of the suit land on the abolition of the village office andresumption and regrant of the land.
10. Section 4 of the Act, as it is already pointed out, abolishesall village offices and extinguishes all the incidents appertaining tothe village office and resumes the land annexed to the village officesubject to the provisions of Sections 5, 6 and 7 of the Act. Section 5provides for regrant of the land resumed under Section 4 of the Act tothe holder of the village office. It provides that the land resumedunder clause (3) of Section 4 in case not falling under Sections 6 and7 of the Act shall be regranted to the person who was the holder ofthe village office immediately prior to the appointed date on paymentby or on behalf of such holder to the State Government the occupancyprice. It is this holder of the village office immediately prior tothe appointed date who is referred to as the 'holder' in the latterportion of the Act. As to what would be the effect of regrant will beconsidered a little later.
12. The decision of the Supreme Court in Nagesh Bisto's case : [1982]3SCR341 though rendered under the provisions of the BombayParagana and Kulkarni Watans Abolition Act and Bombay MergedTerritories Miscellaneous Alienations Abolition Act, 1955, havingregard to the similarity of the provisions contained in the Act, itsquarely applies to the case on hand. In the Act also, the expressions'holder of a village office' and 'holder' are defined as meaning aperson having an interest in a village office under an existing lawrelating to such office. The proviso therein is not relevant for ourpurpose. An 'interest in the village office' means and includes theright of survivorship of a member of a joint family. In other words, amember of a joint family even though he may belong to a junior branch,has a right to succeed to the office in the event none is available inthe senior branch to succeed to the office. This right of survivorshipis, as already pointed out, one of the four rights of the members ofthe Hindu Joint Family in respect of a joint family property. Thus theresult of the aforesaid discussion is that the inferior village officewhich was granted to the great-grand-father of the parties and thesuit land which was annexed to the said office, on abolition of thevillage office and resumption of the suit land as a consequence ofabolition of the village office became available for regrant underSection 5 of the Act. The plaintiff, who was officiating asSheth-Sanadi immediately prior to the appointed date became entitled tohave the suit land regranted as per Section 5 of the Act. Accordingly,the regrant has been made in his name. But the village office and thesuit land annexed to it did not cease to be the joint family propertynor there is any evidence to show that the junior members of thefamily, i.e., the defendants, ever relinquished their right either inthe village office or in the suit land so as to make the villageoffice and the land annexed to it, the exclusive property of theplaintiff or his father. Thus the village office and the land annexedto it continued to be the joint family property till the appointeddate on which date the village office was abolished and the landannexed to it was resumed.
13.......Until the abolition of the village office and theresumption of the suit land annexed to the village office, the suitland was to go along with the village office and as such it was notavailable for partition. After the abolition of the village office andresumption of the suit land, it became a ryotwari land only on regrantand as such it was then that the suit land came to be released fromthe nature of its impartibility.
14.......The definition of the expression 'holder of a villageoffice' or 'holder' means a person having an interest in the saidoffice under an existing law relating to such office and theexpression 'existing law relating to a village office' includes anyenactment, ordinance, rule, bye-law, regulation, order, notification,firman, hukum, vat hukum or any other instrument or any custom orusage having the force of law relating to a village office which maybe in force immediately before the appointed date [Section 2(f)]. Thevillage office in question was governed by the Bombay HereditaryOffices Act, which did not exclude the members of the joint familyfrom succeeding to the office in the event of non-availability of amember in the senior branch of the family to succeed to the villageoffice. Thus the law governing the village office on the appointeddate did not prohibit the junior branches succeeding to the villageoffice in the event of non-availability of a member to succeed to thevillage office in the senior branch. It is this right which is calledthe 'right of survivorship' which is one of the rights of the membersof the joint Hindu family. It is this right which is not excluded bythe Act. Therefore, the junior members of the family had an interestin the village office and as such they must also be considered as'holders of the village office' in question. It is this right whichindicated the interest of the junior members of the family in avillage office under an existing law relating to such office. Theregrant was made in the name of the plaintiff under Section 5 of theAct because he was a person who was a holder of a village officeimmediately prior to the appointed date. Such a regrant did not takeaway the right of the junior members to seek partition in the suitland as per their personal law.'
16. No doubt the rule laid down in Shivappa Fakirappa Shetsanadi'scase, : ILR 1987 KAR3155 was in a case arising out of a suit for partition filed bymembers of the Hindu Joint Family whereas the case on hand relates tomembers of a Muslim family, still it can be applied in as much as inthe instant case the plaintiffs and the defendants being thedescendants of the common propositus Maktumsa to whom the villageoffice was granted, also fall within the definition of 'holders of avillage office' because the suit lands were assigned to a villageoffice, and the plaintiffs are the sons of Maktumsa, the defendantsare the grandsons of Maktumsa, being the children of Madansa, who wasthe brother of plaintiffs, being one of the sons of Maktumsa. As suchthe plaintiffs had an interest in the village office under an existinglaw relating to village office because in the absence of the heirsfrom the elder branch, the plaintiffs were entitled to officiate asSheth-Sanadis. On the abolition of the village office, as per Section 4of the Act, the suit lands stood resumed to the State, subject to theprovisions of Sections 5, 6 and 7. Sub-section (1) of Section 5 of theAct provides that 'a land resumed under clause (3) of Section 4 shall,in cases not falling under Section 6 and Section 7, be granted to theperson who was the holder of the village office immediately prior tothe appointed date......' On the abolition of the village office, thesuit lands came to be regranted in the name of the 1st respondent.Such a regrant did not take away the right of a junior member of thefamily who had an interest in the village office to seek partition andpossession of his share in the suit lands according to his personallaw. The regrant was made in the name of the 1st defendant underSection 5 of the Act because he was a holder of village officeimmediately prior to the appointed date.
17. In addition to the above, A Division Bench of this Court in APPASAHEB TULIJARAMRAO NIMBALKAR AND ORS. v. KRISHNABAI BHRITARGANAPATRAO DESHMUKH, RFA 25 of 1963 DD 23-10-1968 while considering the effect of regrant madeunder the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950,which is in pari materia with the Act with which we are concerned hasheld thus:
'The regrant to the holder of the Watan is part of thescheme of the abolition of the watan and resumption of the lands.Suppose the suit lands had been regranted to plaintiff No. 1 as theholder of the watan, the lands could not have been resumed by him fromRamachandra Rao if he were alive or had left male issue. We have heldthat Ramachandra Rao died as an undivided member of his joint family.When he was an undivided member of the family he obtained the suitlands on regrant on the basis that he was the holder of the watan.Illustration (b) to Section 90 of the Indian Trusts Act makes itabundantly clear that in such a case, he must hold the lands for thebenefit of himself and other members of the undivided family.'
This principle is applied to a Mohammedan family holdingSheth-Sanadi lands immediately on the appointed date, by a SeamedSingle Judge of this Court in AMINSAHEB DASTAGIRSAHEB MULLA AND ORS.v. HUSEN-SAHEB RASULSAHEB MULLA AND ANR., RSA 281 of 1972 DD 22-6-1976. The relevant portion ofthe Judgments as follows:
'Shri R.P. Hiremath, learned Counsel for the defendantshas not been able to show any authority in support of the propositionthat the land which was a seth sanadi inam land was not partible. Thelower Appellate Court, while deciding the case, has relied upon adecision of this Court in R.F.A.No. 25/1963 (Appasaheb and ors. v.Krishnabai)
20. The trial Court has rejected this contention. The suit landscame to be regranted in the name of the 1st defendant only on3-9-1973. It is only from that date, the suit lands became availablefor partition. Till then, the plaintiffs could not have maintained asuit for partition. The suit is filed within 12 years from the date ofregrant. Possession of the defendants of the suit lands in exclusionof the plaintiffs can be considered to have become adverse only fromthe date of regrant i.e., from 3-9-1973. The trial Court has appliedArticle 110 of the Limitation Act. That Article applies to a personwho is excluded from joint family properties to enforce a right toshare therein; but it does not apply to Muslims because there is nojoint family among Muslims.
21. On regrant of the suit lands in favour of the 1st defendant,the plaintiffs and the defendants became the co-owners as each one ofthem became entitled to a share in the suit lands. A right of aco-owner can be extinguished by another co-owner by an Act of ousterand thereby depriving or keeping away by positive act the otherco-owner from the use and enjoyment of the property for a continuousperiod of 12 years. Apart from the fact that there is no plea ofouster raised by the defendants and no issue is also raised in thisregard, even if it is presumed that exclusive possession and enjoymentof the defendants from the date of regrant i.e., 3-9-1973 amounted toouster and thereby it became adverse to the plaintiffs, the suit isfiled within a period of 12 years from 3-9-1973, as it is filed on19-12-1983. Therefore, applying Articles 65 of the Limitation Act,1963, the right to seek partition and possession of their share by theplaintiffs cannot be said to have been lost as 12 years have notelapsed from 3-9-1973. Accordingly, it is held that the suit was filedwell within time. Hence point No. 2 is answered in the negative.
22. it is lastly contended that the parties are not residingtogether and they have divided their ryotwari lands long back. Thedivision of the ryotwari properties and the parties not livingtogether are not relevant. The suit lands are the Sheth-Sanadi landsattached to the village office. As long as the village officecontinued, the suit lands were to go along with the village office andwere to be enjoyed by the holder at the village office. They came tobe released from the category of sheth-sanadi inam lands and becameryotwari lands and available for partition only on the abolition ofthe village office and regrant of the same under Section 5 of the Act.Till then the plaintiffs could not have sought for partition andpossession of their shares in the suit lands. Therefore, the fact thatthe plaintiffs and the defendants had divided their ryotwariproperties and were living separately for a long period is of noconsequence and does not have any bearing on the right to seekpartition of the suit lands which had accrued to them only on3-9-1973. Accordingly, the contention is rejected.
23. The learned Counsel for the appellants on 19-1-88 took timetill today (25-1-1988) to point out that 2/3rd share allotted to theplaintiffs by the trial Court is not in accordance with law. Thereforefurther pronouncement of the Judgment was postponed to today(25-1-1988). No argument is advanced today and nothing is pointed outas to how the allotment of 2/3rd share to the plaintiffs in the suitproperties is not in accordance with law.
24. Apart from the plaintiffs and the defendants, there are noheirs of deceased Maktumsa, the original grantee. He had three sons(1) Madansa; (2) Allisa; and (3) Mashanna @ Mashaksa. The last two arethe plaintiffs.The first one Madansa is no more and the defendants arethe sons of Madansa. That being so, the defendants are entitled to theshare to which their father Madansa was entitled in the suit landswhich was 1/3rd. So also each of the plaintiffs is entitled to 1/3rdshare. Thus both of them together are entitled to 2/3rd share. Hencethe 2/3rd share awarded by the trial Court to the plaintiffs in thesuit lands cannot be held to be illegal.
25. No other contention is urged.
26. For the reasons stated above, we do not see any ground to admitthis appeal. It is accordingly dismissed.