K.V. Sudharshan vs A. Ramakrishnappa & Ors

3. The relevant facts leading to the filing of this appeal, as emerging from the case made out by the appellant in the plaint, are as under :-

Late Anjanappa had two sons viz., Ramakrishnappa and Venkataramachar, arrayed as defendant Nos. 1 and 2 in the suit. Defendant No.2/respondent No.2 is the father of the plaintiff/appellant. Defendant No. 3/respondent No.3 is the wife of Defendant No. 1/respondent No.1. When Anjanappa was alive, he was serving as an Archak of Sri Anjaneya Swamy Temple situated in Belesivalaya and there were Devadaya inam lands attached to the temple, which were cultivated by him. After Anjanappa's death, the said lands were granted to the 2 respondent No. 1 with the consent of the Tehsildar obtained on the ground that he was the eldest son of Anjanappa. Apart from these inam lands, Late Anjapppa also possessed ancestral and self acquired properties and after his demise, the respondent No.1 was acting as the manager of the family but the joint family of the appellant and the respondents possessed all these properties as joint family properties described in Plaint Schedule A to D of the plaint. Schedule A consisted of ancestral properties viz., two agricultural lands measuring 4.11 acres and 1.34 acres respectively and five house sites. Schedule B property was a vacant site. Schedule C property consisted of two agricultural lands, which were inam lands, granted subsequently in the name of respondent No.1. Schedule D properties were moveable properties. There was no partition effected by metes and bounds and the respondent No.1, 3 taking advantage of the simplicity of respondent No.2 was managing all the properties and had also refused to effect partition. On 4th of July, 1988, the appellant issued a legal notice to the respondent No.1 demanding partition of the joint family properties. The respondent No.1 replied to the said notice alleging that the moveable properties had already been partitioned on 23rd of April, 1962 and subsequently on 8th of May, 1996, the immoveable properties were also partitioned. Since the respondent No. 1 refused to partition the immovable properties, the appellant was constrained to file the suit for partition and separate possession of his share in Plaint A to D schedule properties along with mesne profits.

4. The respondent no.1 and 3 entered appearance by filing a written statement in which they denied the 4 material allegations made in the plaint. In the written statement, it was alleged by them that since partition had already been effected between respondent no.1 and respondent no.3 i.e. the father of the appellant and that they were separately enjoying the properties that had fallen to their respective shares. It was further alleged that after the death of Anjanappa, respondent No.1, became the archak of the said temple and he was looking after and cultivating the lands attached to the said temple i.e. `C' schedule properties of the plaint. After coming into force of the Mysore (Religious and Charitable Inams) Abolition Act, 1955, (in short `the Act') the respondent No.1 filed an application for grant of occupancy rights in respect of `C' schedule properties as the Archak of the temple which was conferred on him.

5. The respondent No.2 supported the plaint case and deposed that there was no partition of the properties by metes and bounds and that the respondent No.1 did not allow him to cultivate the lands belonging to the joint family but only a small portion of the same was allowed to be cultivated. The reason behind staying under separate mess was stated to be the quarrel between the women in the family.

6. The Trial Court by the judgment and order dated 25th of January, 1996 dismissed the suit filed by the appellant on the ground that the parties were shown to be in possession of separate portion of the lands and having separate mess. Relying on the deposition of respondent No.2, it held that prior partition was established in view of the admission of respondent 6 No.2 and as such the appellant could not demand partition. Against this decision of the trial court, the appellant filed an appeal before the High Court, which, however, was dismissed. The appellant filed a review petition in the High Court, which was also dismissed. It is this decision of the High Court, which is impugned in this appeal in respect of which leave has already been granted.

16. For the aforesaid reasons, the impugned Judgment is set aside and the appeal is remanded back to the High Court to decide the share of each party in respect of Schedule `C' properties within 3 months from the date of supply of a copy of this judgment to it. The appeal is thus allowed to the extent indicated above. There will be no order as to costs.

September 15, 2008. [Harjit Singh Bedi] 20