| SooperKanoon Citation | sooperkanoon.com/1173121 |
| Court | Karnataka High Court |
| Decided On | Apr-16-2015 |
| Case Number | R.S.A.No. 1610 of 2005 |
| Judge | A.V. CHANDRASHEKARA |
| Appellant | Kamala and Others |
| Respondent | Rajoovi Padmappa and Others |
(Prayer: RSA filed u/s. 100 of CPC against the Judgment and decree dtd: 12.4.2005 passed in R.A.No.27/2001 on the file of the 1st Addl. Civil Judge (Sr.Dn.), Mangalore, allowing the appeal and setting aside the Judgment and decree dtd: 9.10.2000 passed in OS.No.377/1996 on the file of the II Addl. Civil Judge (Jr.Dn.), Mangalore.)
1. Defendants 1 to 7 of an original civil suit bearing O.S. No.377/1996 which was pending on the file of the then Court of Munisiff, Mangalore, D.K. District, who are aggrieved by the judgment passed against them in the first appeal filed under Section 96 of CPC in R.A. 27/2001 which was pending on the file of the Court of Principal (Senior) Civil Judge, Mangalore, have filed this second appeal under Section 100 CPC. Respondents 1 to 7 herein were the plaintiffs in the said suit and appellants in R.A. 27/2001.
2. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.
3. One person by name Sri Koraga Poojary was the father of plaintiffs and grand father of the defendants 2 to 7 and father-in-law of the first defendant. The said Koraga Poojary had one more son by name Naranappa, the husband of the first defendant and father of defendants 2 to 7. According to the plaintiffs, the said Koraga Poojary had taken the schedule agricultural lands on tenancy and was in possession of the same till his death in 1959. The tenancy, according to the plaintiffs, devolved upon the plaintiffs, Late Naranappa and their mother Thirumale Hengasu. Late Naranappa is stated to have filed an application in Form No.7 seeking occupancy rights in respect of all the eight (8) items of lands before the Land Tribunal at Mangalore as per the provisions of the Karnataka Land Reforms (Amended) Act-1974 which came into effect from 01.03.1974. According to the plaintiffs, the application filed in Form No.7 by Naranappa was for and on behalf of the Joint family consisting of the plaintiffs, deceased Naranappa and their mother Thirmale Hengasu.
4. On 23.10.1979, the Land Tribunal chose to confer occupancy right in favour of Naranappa, the eldest son of Koraga Poojary. This Order of occupancy right, according to the plaintiffs, enured to the benefit of all the members of the joint family. According to the plaintiffs, Naranappa had undivided 1/7th said 1/7th share and the share has devolved upon his wife and children. In spite of several demands, the defendants did not give the plaintiffs their legitimate share and had gone even to the extent of setting up a title unto themselves on the ground that Naranappa had taken the schedule lands on tenancy in his individual capacity. Therefore, plaintiffs chose to file a suit for partition and separate possession seeking 1/7th share each.
5. Defendants have chosen to file a detailed written statement denying all the averments and have called upon the plaintiffs to strictly prove the contents of the plaint. According to the defendants, Naranappa had taken the schedule lands on tenancy (Chaalageni) from the owner Nyampally Ram Rao in his individual capacity and that this was never a tenanted land of Koraga Poojary. According to them, Naranappa had become the absolute owner of suit properties on the basis of the order of the Land Tribunal and that they have succeeded to him under Section 8 of Hindu Succession Act.
6. It is pleaded alternatively by them that even if it is accepted for arguments sake that Koraga Poojary had taken the lands on tenancy, after his death, it was cultivated by Naranappa only and that no other member in the family had contributed physically to cultivate the lands. According to them, the marriages of all the daughters of Koraga Poojary had been performed by 1959 and they were living in the houses of their respective husbands. It is further averred that plaintiff No.2 was living separately at Mangalore working as a mechanic and 4th plaintiff was working as an auditor in Bombay by 1959. Hence, they have averred that Naranappa was entitled for all protection and benefit being a cultivating tenant in terms of Section 2 (a) of the Madras Cultivating Tenants Protection Act, 1955 as amended under ordinance 1 of 1958. They have relied upon this Act since D.K. District was an integral part of Madras Presidency prior to 1.11.1956 i.e., the date of re-organisation of States.
7. On the basis of the above pleadings following issues came to be framed by the Trial Court:
1) Whether the plaintiffs show that suit âA properties are joint family property?
2) Whether the plaintiffs show that plaintiffs have got 6/7th share in the suit schedule property?
3) What decree or order?
Plaintiff No.4-Purshotham and plaintiff No.3-Jayanthi have been examined as PWs 1 and 2 apart from getting 13 documents marked as exhibits. On behalf of the defendants, second defendant alone is examined as DW-1. 9 exhibits have been got marked on their behalf.
8. The learned judge, after hearing arguments and appreciating the evidence on record, chose to answer issues 1 and 2 in the negative and consequently the suit came to be dismissed, as against which an appeal came to be filed under Section 96, C.P.C. by the plaintiffs before the court of Principal Senior Civil Judge, Mangalore, which came to be numbered as R.A.27/2001. The said appeal has been allowed in its entirety and the suit has been decreed as prayed for granting 1/7th share each to all the plaintiffs. The judgment of the first appellate court is in Kannada language.
9. Following are the points framed in Kannada, the translation of which is as follows:
1) Whether the appellants have proved that the suit schedule properties are the undivided properties of the joint family of plaintiffs and defendants?
2) Whether the judgment of the trial court is sustainable in law, and whether any interference is required?
3) Whether the plaintiffs are entitled for a share in the suit properties?
4) To what order?
10. After perusing the lower court records and after hearing arguments from the learned counsel appearing for the parties, the learned judge of the first appellate court has answered point nos.1 to 3 in the affirmative. Consequently the appeal is allowed in its entirety and the suit is decreed as prayed for.
11. The present appeal filed by the defendants has been admitted to consider the following substantial question of law framed on 4.8.2006:
âWhether the lower appellate court was justified in reversing the judgment and decree of the trial court ion the absence of any evidence to show that the tenancy was a joint family tenancy?â
12. The first appellate court, dealing with an appeal under Section 96, C.P.C. is expected to re-assess the entire oral and documentary evidence in right perspective. If it intends to upturn the judgment of the trial court, it has to come to close quarters and assign cogent reasons as to where the trial court has gone wrong and what should be the proper approach. This is very much required because the first appellate court is the final court of facts and even of law, as reiterated by a bench consisting of three Honble Judges of the Supreme Court in the case of SANTOSH HAZARI .v. PURUSHOTTAM TIWARI (DEAD BY L.Rs.) reported in AIR 2001 SC 965. The relevant discussion is found in portion of paragraph 15 of the said decision and the same is extracted below:
â15 ⦠The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.â
13. Plaintiffs have produced thirteen documents which have been exhibited as Exs.P1 to P13. Ex.P1 is the application filed in Form No.7 as per Rule 19(1) of Karnataka Land Reforms Rules and under Section 48A(1) seeking occupancy right on 3.8.1974 by Late Naranappa. Ex.P2 is the certified copy of the order of the Land Tribunal passed on 23.10.1979 granting occupancy right in favour of Naranappa in respect of all the 8 items of suit schedule properties. Ex.P3 is the certified copy of the occupancy certificate issued to Naranappa in Form No.10 on the basis of Ex.P2. The sketch of the properties prepared by the surveyor attached to the Land Tribunal is appended to Ex.P3. Exs.P4 to P10 are the RTCs of the lands in question issued by the Taluq office in respect of all the items for the years 1987-88 to 1995-96. Ex.P11 is the marriage invitation card of Jayanthi. Ex.P12 is the marriage invitation card of Mr.Lohitha, niece of Late M.Naranappa. Ex.P13 is the letter stated to have been written by Late Naranappa to the plaintiff-Smt.Jayanthi on 11.2.1985 purportedly admitting her claim for a share in the suit properties.
14. Ex.D1 is the certified copy of the application filed in Form No.7 by Smt.Thirumale Hengsu-mother of plaintiffs and Late Naranappa before the Land Tribunal seeking occupancy right in respect of all the eight items of lands. Ex.D2 is stated to be the mahazar drawn by the First Division Surveyor in the presence of Thirumale Hengsu, K.Thimmappa and N.Hemantha stating that her application filed in Form No.7 may be rejected since her son Naranappa was cultivating the tenanted lands and that she did not remember to have filed an application in Form No.7. Ex.D3 is the order of the Land Tribunal passed on 29.10.1979 on the basis of the statement of Naranappa, rejecting the application filed by Smt.Thirumale Hengsu. Ex.D4 is the certified copy of the application filed in Form No.7 by Late Naranappa to the Land Tribunal. Exs.D5 and D6 are the notices issued to Narayanapa, Thirumale Hengsu and owner Nyampally Ram Rao to appear before the Tribunal on 6.10.1979 to enquire into the application filed by Smt.Thirumala Hengsu in Form No.7. Ex.D7 is stated to be the letter addressed by Nyampally Rama Rao-the landlord to the Tribunal stating that Naranappa was his tenant for 20-30 years after his fathers death. Ex.D8 is the order sheet of the Land Tribunal maintained in Case No.LRJ/771/1979-80 on 23.10.1979 i.e. the case filed by Naranappa claiming occupancy right. Ex.D9 is stated to be the statement of Late Naranappa recorded before the First Division Surveyor at the time of the visit of the surveyor to the schedule lands.
15. After assessing the oral and documentary evidence placed on record, the trial court has come to the conclusion that the plaintiffs have failed to prove that the suit schedule properties are the joint family properties and they have inherited the same after the death of Koraga Poojary. It is further held that the plaintiffs have failed to prove that they were cultivating the suit properties even though they were the family members.
16. Relying upon the decision reported in the case of S.N.SUDALAIMUTHU CHETTIAR .v. PALANIYANDAVAN (AIR 1966 SC 469), the trial court has further held that plaintiffs have failed to prove that they were also physically contributing in cultivating the suit lands and that plaintiffs have not pleaded that Naranappa was cultivating the suit lands on their behalf.
17. In the application filed in Form No.7 by Naranappa before the Land Tribunal seeking occupancy right in regard to the period from which the tenanted lands being cultivated, it is mentioned as 100 years in Ex.P1. Ex.D4 is the replica of Ex.P1. The learned judge of the trial court has held that such an information found in Ex.P1 or Ex.D1 cannot be called as an admission in terms of Section 17 of the Evidence Act. According to the trial court, to be an admission, it must be clear cut and accurate statement of that very person in his own words. Relying upon a decision reported in the case of H.G.RAMACHANDRA RAO .v. MASTER SRIKANTHA AND OTHERS (1997 (3) Kar LJ 508), the trial court has held that the statement in writing found in Ex.P1 cannot be considered as an admission to demonstrate that Koraga Poojary was the earlier tenant of the suit lands. The person who filed the application in Form No.7 mentioning the period of tenancy as more than 100 years, is dead. The statement of such a dead person is admissible under Section 32 of the Evidence Act. Apart from this, in the application filed in Form No.7 by Thirumale Hengsu, the wife of Koraga Poojary before the Land Tribunal vide Ex.D1 discloses that she was in possession of the property since about 60 years and before that her ancestors were in possession of the same as Chaalageni tenants. Even Thirumale Hengsu is also dead. Hence her statement so made in the application filed before a quasi-judicial authority is very much admissible in evidence under Section 32 of the Evidence Act.
18. What is argued before this court by the learned counsel for the appellant is that the application so filed vide Ex.D1 by Thirumale Hengsu was dismissed through a considered order by the Land Tribunal on 29.10.1979 vide Ex.D3 and therefore the contents of Ex.D1 are not admissible or cannot be considered as admission. Having relied upon Ex.D-1, the defendants cannot blow hot and cold together. Apart from this, the erstwhile owner of the suit lands Mr.Nyampally Rama Rao had addressed a letter on 29.10.1979 to the Land Tribunal vide Ex.D-7, the contents of which are as follows:
âRef LRT 774/79-80
Thirumale widow of Koraga Poojary was the mother of Naranappa Poojary. Naranappa Poojary has been my tenant for the past 20 to 30 years after his fathers death. He has been paying me the rent all through.â
Sd/-
Rama Rao
19. The contents of Ex.D-7 will have to be read in its entirety. The words âmy tenant for the last 20 to 30 years after his deathâ is of great importance, evidence in civil cases will have to be assessed on the basis of broad preponderance of probabilities and degree of proof required is not one of beyond reasonable doubt as is insisted in criminal cases. If Koraga Poojary was not in possession of the suit lands prior to Naranappa, there was no occasion for the owner to have mentioned the words âafter his fathers deathâ.
20. This is to be further analyzed in the light of important answer elicited from the mouth of DW-1 Shyam. DW-1 grandson of Koraga Poojary and son of Naranappa has admitted that his grandfather was an agriculturist, but he has feigned ignorance to a specific suggestion that his grandfather was in possession of the suit schedule lands. He has specifically deposed that his grandfather was in possession of the suit lands. But he has feigned ignorance as to whether his grandfather had taken the suit lands on tenancy basis. Therefore, this oral evidence of DW1 will have to be read in the light of the contents of Ex.P1 and Ex.D1-the applications filed in Form No.7 by Naranappa and Thirumale Hengsu respectively and the letter addressed vide Ex-D1 by Rama Rao to the Tribunal. One hundred years means exactly not 100 years but to show that it was a long standing tenancy relatable to Koraga Poojary.
21. Apart from this, DW1 has admitted that plaintiff, Smt.Mohini has constructed a house in the suit property. It is not the case of DW1 that Koraga Poojary was not cultivating the suit lands, but other lands. In regard to the dismissal of the application filed by Thirumale, DW1 has feigned ignorance about the basis on which she had sought occupancy right. What is deposed by DW1 is that Thirumale Hengsu did not find any necessity to pursue the application filed by her in Form No.7 since there were grown up children in the house. Taking into consideration the totality of the case, the first appellate court has come to the conclusion that Naranappa had not taken the lands on tenancy basis but it was Koraga Poojary who was the tenant and tenancy devolved on his children in 1959 when he passed away.
22. What is argued before this Court by Sri K.Vijayakrishna Bhat is that the first appellate court has compared the signature of Naranappa found in Ex.D9-mahazar drawn by the First Division Surveyor with Ex.13-a letter purported to have been written by Naranappa to his sister-plaintiff, Jayanthi on 11.2.1985, admitting that she had right in the suit property and that he would give her share. It is vehemently argued that such an exercise of comparing the signature of Naranappa found on Ex.D9 with Ex.P13 could not have been made to accept Ex.P13 as a proved document. He has argued that the letter marked as Ex.P13 has been emphatically denied by DW1 and therefore it should have been proved in accordance with law. According to PW-2, Jayanthi, the letter had been sent through post by Naranappa. The alleged custodian of Ex.P13 was Smt.Jayanthi and she is examined. If it had been sent through post, as deposed by PW-2, the postal envelope would have been produced.
23. It is true that the court is the expert of experts as per Section 73 of the Evidence Act. What is laid down by the Honble Supreme Court in the case of STATE (DELHI ADMINISTRATION) .v. PALI RAM (AIR 1979 S.C. 14), while dealing with the provisions of Section 73 of the Evidence Act is that prudence demands that the court shall not take upon itself the responsibility of comparing the admitted signature or handwriting with the disputed handwriting or signature, unless a report is obtained from an expert. This is essential because such an exercise requires scientific analysis. In this view of the matter, the approach of the first appellate court in accepting Ex.P13 as a proved document is incorrect and improper. The relevant discussion is found in paragraph 29 of the judgment and it is extracted below:
â29. The matter can be viewed from another angle, also. Although there is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a judge should take upon himself the task of comparing the admitted writing with the disputed one to fond out whether the two agree with each other: and the prudent course is to obtain the opinion and assistance of an expert.
24. Sri Vijayakrishna Bhat has vehemently argued that the first appellate court has unnecessarily doubted the authenticity of the order of the Land Tribunal dated 29.10.1979 vide Ex.D3 without there being any basis at all. This order of the Tribunal is based on a statement said to have been given by Smt.Thirumale Hengsu before the First Division Surveyor. What is held by the first appellate court is that the alleged statement should have been proved by examining one of the persons who was present at that time. Ex.D2 is stated to be the statement recorded by First Division Surveyor in the presence of one Hemantha who has subscribed her signature in English and another by name one K.Thimmappa who has subscribed his LTM. As rightly pointed out by Sri Sanathkumar Shetty, learned counsel representing the respondents herein, the date on which it was recorded is not forthcoming. He has further pointed out that the order passed vide Ex.D3 on 29.10.1979 is based on a statement given by Naranappa before the Land Tribunal on the basis of a power of attorney purportedly given by Thirumale Hengsu. The order dated 29.10.1979 discloses that the application of Naranappa had already been allowed on 29.10.1979 in LRJ/771/1979-80 and therefore her application was rejected.
25. As rightly pointed out by Mr.Sanathkumar Shetty, it is ununderstandable as to how an agent could act in total hostility to the interest of his own master who has executed a power of attorney. He has further pointed out that 6.10.1979 was the date fixed by the Land Tribunal for the appearance of Thirumale Hengsu, the applicant, owner Rama Rao as per Ex.D5, the notice. Further date for their appearance was 29.10.1979 and on that day her application was dismissed.
26. As further pointed out by Mr.Sanathkumar Shetty, nothing is forthcoming as to what transpired on 6.10.1979 in the Tribunal and as to when was this power attorned to Thirumale. Ex.D8 is the certified copy of the order sheet dated 23.10.1979 passed by the Tribunal and this discloses that Rama Rao was absent and the statement recorded by the surveyor was perused by the Tribunal. Hence it was unanimously resolved to grant occupancy right to Naranappa who was present. As pointed out, if Thirumale Hengsu who was stated to be living with Naranappa had been called upon to appear before the Tribunal on 6.10.1979 in her case, it is not as though she was unaware of the application filed by her vide Ex.D1. All the proceedings were over within a period of 17-18 days from 6.10.1979. Hence it is submitted by Mr.Sanathkumar Shetty that all was not well and these events appear to be stage-managed. There is a lot of force in the submission made by Mr.Sanath Kumar Shetty in this regard. But the order passed on 29.10.1979 vide Ex.D3 is an order passed by the Land Tribunal, the authenticity of which cannot be called in a question in civil court and should have been questioned by filing a writ petition. Nevertheless, it can be said that how a quasi-judicial authority like the Land Tribunal could have relied upon such a statement purportedly recorded by an employee attached to it. Hence, as argued by Mr.Vijaykrishna Bhat, the approach of the first appellate court in ignoring Ex.D3-order of the Tribunal dated 29.10.1979 is incorrect and improper. Anyhow the contents of Ex.D1, Ex.D4 and Ex.D7 have been considered by the first appellate court to hold that the suit properties were tenanted lands of Koraga Poojary and as such it became a joint property of his wife and children soon after his death.
27. Even after finding fault with the approach adopted by the first appellate court in respect of these two aspects as incorrect and improper, the totality of the circumstances clearly indicate that the lands in question had been tenanted lands of Koraga Pojary.
28. What is further argued before this court by Sri Bhat is that the plaintiffs have not placed any acceptable evidence to demonstrate that they were assisting Naranappa Pojary physically in cultivating the lands soon after the death of Koraga Poojary. Reliance is placed on a decision of the Honble Apex Court rendered in the case of S.N.SUDALAIMUTHU CHETTIAR (supra). It is a decision rendered by a Bench consisting of three Honble Judges of the Apex Court, specifically dealing with the definition of âcultivating tenant. under Section 2(a) of Madras Cultivating Tenants Protection Act, 1955. In paragraph 11 of the judgment, the trial court has held that if the plaintiffs had inherited tenancy, they had left the place long back and hence they were not cultivating the suit lands or assisting Naranappa in any manner by way of physical contribution either when Koraga Poojary died or when the amended Karnataka Land Reforms Act, 1974, came into force from 1.4.1974. Therefore, the trial court has held that there is nothing on record to show that the suit property is joint property. Hence reliance is placed on the decision reported in Y.R.VEERANNA .V. STATE OF KARNATAKA AND OTHERS (AIR 1997 SC 2697) to contend that personal cultivation is absolutely required to claim occupancy right even under Karnataka Land Reforms Act, 1974. But the learned trial judge has failed to note that tenancy under the Karnataka Land Reforms Act is heritable.
29. PW1 has deposed that he left Mangalore after 1962. Suggestion put to him that he left the home in 1957-58 has been specifically denied. Plaintiff Mohini has constructed her home in suit property. Unless she was assisting in cultivation she could not have constructed her house and lived there more particularly when it was an agricultural land. Smt.Thirumale was very much with Naranappa assisting him in cultivation of the land. Second plaintiff Sanjeev was also residing in Mangalore Taluk.
30. The decision rendered in the case of S.N. S.N.SUDALAIMUTHU CHETTIAR (supra) is relied upon with force by Sri. V.K.Bhat here in this Court also. The Madras Cultivating Tenants Protection, 1955, came into force 27.9.1955. This was applicable to D.K. District since it was part of erstwhile Madras Presidency. It is now called as Tamil Nadu Cultivating Tenants Protection Act. 1955. Section 2(a) read with Section 2 (ee) defines âCultivating Tenant. Paragraph 2 of the decision has dealt with these sections by reproducing Sections 2 (a) and 2(ee) and the facts leading to the decision of the Apex Court. The same is relevant and hence extracted below:
It is common ground that this Act which was originally to, remain in force for a period of three years is still in force by virtue of the provisions of amending acts passed extending its duration from time to time. The expression âcultivating tenantâ is defined thus in s. 2 (a) of the Act:
âcultivating tenant in relation to any land means a person who carries on personal cultivation on such land and, under a tenancy agreement, express or implied, and includes-
(i) any such person who continues in possession of the land after the determination of the tenancy agreement and
(ii) the heirs of such person, but does not include a mere intermediary or his heirs;â
By the Amending Act, Madras Act 14 of 1956, cl. (ee) was added to Sec.2 which purports to define the meaning of the expression âcarry on personal cultivationâ.
Clause (ee) reads thus:
âa person is said to carry on personal cultivation on a land when he contributes his own physical labour or that of the members of his family in the cultivation of that land;â
The provisions set out above are relevant for consideration in this appeal. What happened was that Kanda Devan, who was the cultivating tenant, died some time before the proceedings before the Sub-Collector commenced. He left behind as his heirs his widow Palaniachi Ammal and his daughter Ramalakshmi Ammal. The respondent before us is the daughters husband and holds a power of attorney both from her and Palaniachi Ammal. There was default in payment of rent and so the respondent by virtue of the power of the attorney in his favour made an application in the year 1962 before the Sub-Collector under s. 3 (3) (a) of the Act for depositing the rental arrears. The appellant who is the landlord contested the application on the ground that neither the wife nor the daughter of the deceased Kanda Devan was a cultivating tenant as defined in the Act because they were not personally cultivating the land and that, therefore, they were not entitled to the protection afforded by the Act. The Sub-Collector overruled the objection and, as already stated, directed the respondent to deposit the rental arrears. The question is whether the respondent was rightly allowed to deposit the arrears.
31. As per the facts of the said case, Kanda Devan was the tenant and he died leaving being his widow and married daughter. They were not physically cultivating the tenanted land. But his son-in-law i.e., the husband of his daughter Smt.Palanichi Ammal was looking after the land as a power of attorney executed in his favour. On 1962 he made application for depositing arrears of rent in terms of Section 3(3) (a) of the Act which was contested by the landlord on the ground that neither the wife nor daughter were cultivating tenants as defined in the Act. Hence, it was contended that they were not entitled for any protection. But the sub-collector over-ruled the contention of the land lord and permitted the son-in-law of the deceased tenant to deposit arrears of rent.
32. Though the heirs of Kanda Devan were not physically cultivating the tenanted land by means of physical labour, they were getting it cultivated though P.A. holder who was none other than the son-in-law of the deceased tenant. What was contented before the Honble apex court was that son-in-law cannot be a member of the family of the tenant and therefore he cannot be permitted to avail protection under Section 2(a) of the Act. But clause 2(ee) of Section 2 of the above Act has been referred to by the Honble Apex Court to hold that the word âfamilyâ should not be narrowly construed. The said contention of the learned counsel appearing for son-in-law has been accepted by the Honble Apex Court on the ground that the Act applies to all the tenants irrespective of the personal laws which governs them. The word âfamilyâ as found in Websters New Dictionary means âa group of people related by blood or marriage relativesâ. This meaning has been applied to hold that the concept of âfamilyâ includes relatives by marriage. Since the exact nature of the agricultural work carried out by the son-in-law was not forthcoming in the evidence and since the pleadings were silent, the matter was sent back to the sub-collector to consider what had been adverted to by the Apex Court.
33. In the present case, Mohini is very much living in the house put up by her in the suit property. Nothing is placed on record by the defendants to show that she or her family members were neither cultivating the lands nor assisting Naranappa in cultivation. Apart from this, the intention behind the legislation will have to be looked into. The purpose for which Madras Cultivating Tenants Protection Act-1955 was brought into force is as follows:-
âAn act for the protection of cultivating tenants in certain areas in the State of Madras.â
Therefore a moot point also arises as to whether Naranappa could have claimed exclusive protection under the above Act as a âcultivating Tenantâ to the exclusion of all the other legal heirs of his father Koragu Poojary when one of them was very much living in the same suit land having built a house on her own. According to this court the decision is not helpful to the defendants in the light of the facts of this case. Hence, the above decision is clearly distinguishable on facts.
34. Learned counsel for the appellant Mr.V.K.Bhat has relied upon this decision reported in AIR 1966 SC 469 to contend that it is a binding precedent. According to this Court, this decision is clearly distinguishable on the facts of this case. A Bench consisting three Honble Judges of the Apex Court in the case of THE STATE FINANCIAL CORPORATION AND ANOTHER V. M/S. JAGDAMBA OIL MILLS AND ANOTHER (AIR 2002 SC 834) has eloquently dealt with the binding precedent as per Article 141 of the constitution. It is held that the settings of a case under which a law has been laid down will have to be looked into. The relevant discussion is extracted below:
â20. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, âLord Atkins speech..is not to be treated as if it was a statute definition. It will require qualification in new circumstances.â Megarry, J. in (1971) 1 WLR 1062 observed: âOne must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.â And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said: âThere is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.â
21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Lord Denning in the matter of applying precedents have become locus classicks:
âEach case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.â
xxx xxx xxx âPrecedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.â
35. Learned counsel Sri.Sanath Kumar Shetty representing the respondents herein has relied upon a decision rendered by three Honble Judges of Supreme Court in the case of N.PADMAMMA AND OTHERS V. S.RAMAKRISHNA REDDY AND OTHERS [(2015) 1 SCC 417] to contend that right of inheritance and succession of the plaintiffs in the present case is a statutory right vested in terms of Section 8 of Hindu Succession Act and same cannot be taken way in terms of the provisions of another statute without having an overriding effect and that the said statute must be a complete code and statute being a latter one. He has argued that such later statute must contain a non-obstante clause.
36. Therefore, it is useful to refer to the decision rendered by two Honble judges of Supreme Court in the case of N.PADMAMMA AND OTHERS V. S.RAMAKRISHNA REDDY AND OTHERS [(2008) 15 SCC 517] . In the said case is held that right of inheritance and succession is determined in terms of the provisions of Hindu Succession Act and same cannot be taken away except in terms of the provisions of another statute. Paragraph 18 of the said decision is relevant and same is extracted herein below:
â18. Right of inheritance and succession is a statutory right. A right in a property which is vested in terms of the provisions of the Hindu Succession Act cannot be taken away, except in terms of provisions of another statute, which would have an overriding effect. Such special statute should be a complete code. It shall ordinarily be a later statute. Ordinarily again it must contain a non-obstante clause.â
37. Honble Judges dealing with Padmammas case reported in (2008) 15 SCC 517 found that decision rendered by the Honble Apex Court in the case of LOKRAJ V. KISHAN LAL [(1995) 3 SCC 291] had not been correctly rendered. Hence, it was felt that the matter required to be considered by a larger Bench. Accordingly reference was made to the larger Bench and thus the decision has been rendered in Padmammas case reported in (2015) 1 SCC 417.
38. What is held in Lokrajs case mentioned above is that the pre-existing right, title and interest of the inamdar or any person having occupation of the inam lands stood divested and vested the same in the State until re-grant is made. It was further held that inamdar, had lost the pre-existing right, title and interest in the land and the right to partition also has been lost by the statutory operation unless re-grant was made. Honble Apex Court has held that it was not concerned with the consequences that would ensue after re-grant and hence it was not necessary to go into the question that might arise after the re-grant. Paragraph 15 of the said decision is relevant and same is extracted herein below:
â15. In Lokhraj (supra) this Court referred to Bhubaneshwar Prasad Narain Singh (supra). The judgment of this Court in Bhubaneshwar Prasad Narain Singh (supra) was, with respect, not correctly read in Lokhraj (supra). Paragraph 4 of the said decision reads, thus:-
â4. Consequent to the abolition, the preexisting right, title and interest of the inamdar or any person having occupation of the inam lands stood divested and vested the same in the State until re-grant is made. The inamdar, thereby lost the pre-existing right, title and interest in the land. The right to partition itself also has been lost by the statutory operation unless re-grant is made. We are not concerned with the consequences that would ensue after re-grant of this appeal. Therefore, it is not necessary for us to go into the question that may arise after the re-grant.â
39. The said decision rendered in Lokrajs case, according to the Bench consisting of two Honble Judges of Supreme Court dealing with Padmammas case reported in (2008) 15 SCC 517, was not an authority for the proposition that only the person in whose name occupancy rights was granted became the sole beneficiary thereof. What is held in the said decision is that Act contemplates resolution of dispute between the inamdar on the on hand and his lessees and assignees on the other hand and it does not take into consideration the dispute, if any, interse amongst the members of the joint family, particularly when, as on the date of grant of occupancy rights did not exist any such right. It is further held that application of doctrine of trust is not contemplated in the said provision and therefore, Section 8 of Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 must thereby be considered having regard to the provisions contained therein. Relying upon the decision reiterated in the case of SK.SHARFUDDIN V. COLLECTOR [(2003) 5 ALT 108], the Honble Apex Court has held that right of inheritance and succession is a statutory right and a right in a property which is vested in terms of the provisions of Hindu Succession Act and cannot be taken away.
40. Elaborate discussion has been made by the larger Bench consisting of three Honble Judges of the Supreme Court in the case of Padmammas case reported in (2015) 1 SCC 417. Interpretation of Sections 4 and 8 of the Hindu Succession Act made in Padmammas case reported in (2008) 15 SCC 517 has been reiterated and it is held that the decision rendered in Lokrajs case has not properly laid down the law.
41. In the present case, the plaintiffs have been able to probabalise that 8 items of lands in question measuring more than 3 acres had been possessed by their father Koraga Poojary as a tenant and after his death, it devolved upon his legal heirs inclusive of plaintiffs and deceased Naranappa. The heirs of Naranappa cannot contend that Naranappa had become the absolute owner of the suit schedule property on the ground of being a cultivating tenant as per Section 2(a) of the Madras Cultivating Tenants Protection Act, 1955.
42. Dealing with provisions of Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 more particularly Sections 8 and 10, the Honble Apex Court has held that occupancy rights in respect of joint family granting in respect of one of the members of the joint family would be considered as constructive possession in respect of other family members. It is further held that possession as found in Section 8 of the said Act would be possession of other co sharers or body of persons. Paragraphs 9 and 10 of the decision rendered in Padmammas case reported in (2015) 1 SCC 417 is relevant and same is extracted herein below:
9. From a reading of Section 3 supra, it is manifest that all inam lands stand vested in the State of Andhra Pradesh with effect from 20.7.1955, the date when the Act came into force. Even so, it is common ground that the inam land in dispute had continued to be in possession of Ramachandra Reddy till his demise in the year 1968 whereupon the rights and privileges in regard to the same including those that would have entitled Ramachandra Reddy to claim occupancy rights under the Act on account of his being in cultivating occupation of the land on the date of the vesting were inherited by his legal heirs-the parties to this appeal. Respondent 1, it is noteworthy was the only male member in the family left behind by the deceased. Any recognition of his being in possession and personal cultivation of the land held by his father was, in the absence of any plea or proof of ouster, to be taken as cultivation on behalf of the entire family, and not in his individual capacity. We say so because the demise of Ramachandra Reddy, the original occupant of the land, could not any juristic principle grant exclusivity to his son (Respondent 1 in this appeal) to claim the right to possession or cultivation of the land which Ramachandra Reddy held in his individual capacity and which upon his demise would logically and as a matter of course devolve upon the legal heirs left behind by him in equal share. The status of respondent 1 as a legal heir of the deceased was no better than other legal heirs of Ramachandra Reddy. Grant of occupancy rights to Respondent No.1 as the only male appellants who had an equal claim in no way inferior to that of respondent 1 to succeed to the estate left behind by the deceased including succession to all such rights that may have been inchoate on the date of the demise of Ramachandra Reddy but as could result in a beneficial grant in his favour based on his being an inamdar. That the family was joint on the demise of Ramachandra Reddy is not in dispute. That it was dependent upon the land is also not in dispute. In the absence of any evidence much less cogent and credible one to establish ouster of the other members of the Ramachandra Reddys family it is difficult to appreciate how respondent could claim the legacy of Ramachandra Reddy whether in regard to the property owned by the deceased or the rights which the deceased had as an occupant. The reference order is, therefore, right when it says: (N.Padmamma case, SCC p 526, para 18)
â18. Right of inheritance and succession is a statutory right. A right in a property which is vested in terms of the provisions of the Hindu Succession Act cannot be taken away, except in terms of provisions of another statute, which would have an overriding effect. Such special statute should be a complete code. It shall ordinarily be a later statute. Ordinarily again it must contain a non-obstante clause.â
10. It is fairly well-settled principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. (See Corea v. Appuhamy4.) Reference may also be made to the decision of this Court in P. Lakshmi Reddy v. L. Lakshmi Reddy5 wherein this Court has succinctly summed up the legal position as under: (AIR p.318, para 4)
âBut it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be. adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.
43. In the present case, the Karnataka Land Reforms Act, 1964 is a latter statute having proper definition of âfamily. Hindu Succession Act, 1956 is a latter statute which has come into after the Madras Cultivating Tenants Protection Act, 1955. Section 4 of Hindu Succession Act which has come into effect from 17.6.1956 has an over riding effect. Section 4 of Hindu Succession Act reads as follows:
â4. Overriding effect of Act
(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.â
Hence, decision rendered in Padmammas case reported in (2015) 1 SCC 417 reiterating earlier decision rendered in the case of Padmammas case reported in (2008) 15 SCC 517 is aptly applicable to the facts of the present case. Hindu Succession is a special statute and is a complete code by itself and is also later statute than the Madras Cultivating Tenants Protection Act, 1955.
44. What is argued before this Court by the learned counsel for the respondents is that defendants could take up any number of inconsistent pleas but while leading evidence, defendants must confine to one of the alternative or inconsistent pleadings and cannot be allowed to blow hot and cold. Reliance is placed upon the decision rendered by a Division Bench in the case of A.E.G., CARAPIET V. A.Y.DERDERIAN (AIR 1961 CALCUTTA 359). What is held in the said decision is that party should put his case in cross examination of witnesses of opposite party and the said rule is one of essential justice and not merely technical one. The said decision has been approved by Honble Apex Court in the case of SARWAN SINGH V. STATE OF PUNJAB (AIR 2002 SC 3652). Paragraph 8 of the Sarwans case is relevant and same is extracted herein below:
8. Incidentally, in early nineties, terrorist activities were on peak in the border districts of Punjab and it has practically been an axiomatic truth in the area in question that no-one would in fact come out of the residential houses after dusk unless perforced at 3o clock in the morning. There exists no other evidence nor even there being any suggestion of existence of any other factor for such perforced outing at 3 a.m. It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above.â
45. It is true that in the written statement main emphasis is on the aspect of Naranappa having taken the lands on tenancy in his individual capacity and also an alternative plea of protection is available under Section 2(a) of the Madras Cultivating Tenants protection Act. During the cross examination of PWs-1 and 2, focus is mainly on the earlier aspect i.e., lands being taken by Naranappa on tenancy in his individual capacity and denying all the suggestion put to him, i.e. DW-1 that Koraga Poojary was the original tenant of the lands in questions.
46. It is true that the First Appellate Court has not adopted proper approach on two aspects i.e., (1) accepting the letter stated to have been written by Naranappa to Jayanthi and (2) rejection of tenancy application of Thirumala Hengasu. But the other approach adopted by the First Appellate Court is quite correct. It has given cogent and valid reasons as to how plaintiffs have been able to probabalise that the lands in question had been taken on tenancy by Koraaga Poojary and he died intestate and therefore, it devolved on all his heirs. Case of the plaintiffs is more probable than the case of the defendants.
47. Burden of proof in the present case does not have much importance and it pales into insignificance. Parties have led their evidence especially knowing the crux of the dispute. The main case of the plaintiffs is that the lands in question were a tenanted lands of their father and since Koraga Poojary died intestate, all the heirs of Koraga Poojary have become co-sharers.
48. Per contra, the main stand of the defendants is that lands in question had been taken by Naranappa in his individual capacity. Both the sides have adduced their evidence in respect of their contentions mentioned above and therefore factual burden of proof in the present case does not survive for greater consideration as reiterated in the decision reported in the case of NARAYAN BHAGWANTRAO GOSAVI BALAJIWALE V. GOPAL VINAYAK GOSAVI AND OTHERS (AIR 1960 SC 100). Relevant discussion is found in paragraph 10 and the same is as follows:
â10. The expression âburden of proofâ really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.â
49. Viewed from any angle, the First Appellate Court has adopted right approach to the real state of affairs. Even otherwise the plaintiffs have been able to further probabalise their case on the basis of the decision rendered in the case of Padmammas case reported in (2015) 1 SCC 417. Accordingly, no grounds are made out to interfere with the divergent finding passed by the First Appellate Court.
50. In the result, the following order is passed:
ORDER
Appeal filed under Section 100 of CPC is dismissed by confirming the judgment of the First Appellate Court passed in R.A.27/2001.
Since the matter is of the year 1996, FDP court to expedite the final decree proceedings in terms of the decision rendered in the case of M.L.SUBBARAYA SHETTY .v. M.L.NAGAPPA SHETTY (AIR 2002 SC 2066).
Parties to bear their own costs.