Full Judgment
K. Sreedhar Rao, J.
1. This appeal filed against the judgment and decree passed in R.A. No. 108 of 1994 on the file of Civil Judge (Senior Division), arising out of the judgment and decree passed in O.S. No. 616 of 1989 on the file of Munsiff, Srirangapatna. The appellant is the plaintiff filed a suit for partition and possession of 1/3 share in the suit lands. The respondents are the defendants in the suit. Respondent 1 and the husband of 4th defendant are the brothers of the plaintiff/appellant. One Patel Thimmegowda is the father of the plaintiff and first defendant and husband of defendant 4. According to the plaintiff the suit lands are the tenanted lands of the joint family. The brothers got divided under Ex. D. 4 during the lifetime of their father. The plaintiff was a minor then. After the partition and during the lifetime of Patel Thimmegowda the first defendant and husband of 4th defendant were granted occupancy rights under the Karnataka Land Reforms Act.
2. It is the contention of the plaintiff that the tenancy was obtained by the father, therefore it is a joint family tenancy and he has a share in the suit lands. The Trial Court dismissed the suit on the ground that the plaintiff has failed to prove that the tenancy of the suit lands was a joint family tenancy. The first Appellate Court dismissed the appeal on the ground that the Civil Court has no jurisdiction to decide the question of the status of tenancy in view of the ruling of the Supreme Court in Mudakappa v. Rudrappa and Ors., : AIR 1994 SC1190 . Hence, the second appeal.
3. The following substantial question of law is framed for consideration in this appeal:
1. Whether the grant of occupancy rights to first defendant and to the husband of the fourth defendant is not an individual grant in their favour and that the plaintiff has a share in the suit lands?
2. Whether the finding of the Appellate Court that the Civil Court has no jurisdiction to grant the relief of partition is bad in law?
4. Counsel for the appellant relies on the ruling of Supreme Court in Balawwa and Anr. v. Hasanabi and Ors., : (2000)9SCC272 , In the said decision the Supreme Court has declared that the Land Tribunal has no jurisdiction to grant the relief of partition and that the Civil Court alone has jurisdiction to grant the relief of partition and incidentally could adjudicate whether the land in question is a joint family tenancy or otherwise.
5. The facts of the case disclose that one Patel Thimmegowda is the propositus. Exs. P. 1 and P. 2 Index of land and record of rights extract disclose that the land was taken for cultivation on tenancy basis by Patel Thimmegowda in the year 1942-43. Therefore, it cannot be said that the first defendant and husband of the 4th defendant had taken lease of the land for the first time after the partition. The partition had taken place during the minority of the plaintiff. The tenanted lands are not the subject- matter of partition. However, other properties were divided between the first defendant, the husband of the 4th defendant, the plaintiff and his father.
6. The plaintiff was a minor, therefore, there was no possibility of division of status between the plaintiff and his father and the plaintiff had to be under the care and protection of the father. There could be a valid partition between the father of the plaintiff and his other major sons. After the partition under Ex. D. 4, the defendant 1 and husband of defendant 4 are deemed to be separated and living separately. Under the Karnataka Land Reforms amended Act of 1974 the tenanted lands got vested in the Government. The father of the plaintiff was alive but did not apply for occupancy rights. The first defendant and husband of the defendant 4 applied for occupancy rights and they were granted.
7. Now precisely the question would be whether the grant of occupancy rights to first defendant and his brother is a individual grant or grant in favour of the other divided family members.
8. The facts indisputably disclose that when the first defendant and his brother filed application for grant of occupancy they were divided from their father and they claimed occupancy rights by making individual applications. When the application is made for grant of occupancy rights the family was not joint. Therefore, the application made by the first defendant and husband of the 4th defendant cannot be considered as a one made for and on behalf of the plaintiff and his father. If the family was joint at the time when the application in Form 7 is made it would make a difference in law. But after partition there is disruption of joint status and the divided members cannot be deemed to represent the other divided members of the erstwhile joint family. In that view, the occupancy rights obtained by the first defendant and the husband of the fourth defendant in law would be an individual grant in their favour.
9. The Appellate Court failed to consider the case on merits and disposed of the appeal only on the jurisdictional ground. Irrespective of the fact whether the Civil Court has jurisdiction or not, on merits the plaintiff cannot seek any share in the suit lands which are in law the individual grants made in favour of the first defendant and husband of the fourth defendant. The first question of law answered in negative, the second question does not arise for consideration. Appeal dismissed.