NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.    2286-2287     OF 2011   (Arising out of Special Leave Petition (Civil)  Nos. 29963-29964/2008)

PREMA & ANR. .....APPELLANTS.

        VERSUS

DEVA RAO  & ORS.      .....RESPONDENTS.

J U D G M E N T   

lANIL R. DAVE, J.   

1    Leave granted.

1

2.    Being aggrieved by the  common Judgment  delivered by the  

High Court of  Karnataka at Bangalore on 6th December, 2007 in RFA  

No. 1067/2006 and RFA No. 1068/2006,  these appeals have been filed  

by the original plaintiff and defendant no.3.

3. For the sake of convenience,   the parties to the litigation have  

been referred  to as arrayed  before the trial court.

4 The plaintiff  (appellant No. 1 herein)  is a sister of defendant no.4  

who filed a suit claiming her right to the extent of 1/6th share in the  

properties described in Schedule-A to the plaint.   The case of the  

plaintiff before the trial court was that her father,  Appuraya was an  

absolute owner of the suit property and, therefore,  the plaintiff had  

a right in the said property.  According to her, after the death of her  

father Appuraya,  defendant No.4,  brother of the  plaintiff was in  

occupation  of  the  suit  property  but  as  the  suit  property  was  an  

absolute property of her father, she too had a share in the property.  

Moreover,  defendant no.4  had also executed a writing to the effect  

that he would give 1/6th  share in  the suit property to the plaintiff.  

Inspite of the above fact,  as no part of the suit property was given to  

2

the plaintiff,  the plaintiff was  constrained  to  file O.S. No.92/1995  

in the Court of Additional Civil Judge (Sr. Div.), Udupi, claiming her  

right in the suit property.

4 5. After considering the evidence led before the trial  court,  the  

trial court decreed the suit holding that the plaintiff was entitled  

to 1/18th share in the suit property.

4 6. Being  aggrieved  by  the  judgment  delivered  by  the  trial  

court,  the  plaintiff;  and defendant nos. 1 and 3 filed RFA No.  

1067 of 2006 whereas defendant no. 4  filed RFA No. 1068 of 2006  

in the High Court of Karnataka.  The High Court heard both the  

appeals together and  by the impugned common judgment,  the  

High Court dismissed  RFA No. 1067/2006 filed by the plaintiff  

and allowed RFA No. 1068/2006 filed by the 4th defendant.

4 7.  For coming to  the aforesaid conclusion,  the High Court  had  

considered the fact that by virtue of the order passed by the Land  

Tribunal,  defendant no. 4 was declared to be a tenant in respect  

of the suit property. The order passed by the  Tribunal, whereby  

3

occupancy right in respect of the suit property had been granted  

to defendant no. 4 had never been challenged by the plaintiff or  

by any other party and, therefore,  the occupancy right in favour  

of defendant no.4 had become final.    In view of  the said fact,  the  

High  Court  came  to  the  conclusion  that  defendant  no.  4  was  

having occupancy right  in  respect  of  the land in question and,  

therefore, the plaintiff,  sister of defendant no. 4 had no right of  

whatsoever type in suit property.   

4 8.  The  High  Court  brushed  aside  the  documents  whereby  

defendant no. 4 had agreed to give 1/6th share in the suit property  

to the plaintiff because according to the High Court, by virtue of  

the said assurance,  the plaintiff  would not get any share in the  

suit property.  The plaintiff had asserted her right in the property  

because it was her case that the property belonged to her father  

and, therefore, she had 1/6th right in the suit property.   

4 9. The High Court also came to the conclusion that the plaintiff  

had failed  to  establish   that  the  suit  property  was  an absolute  

property  of her father and in absence  of any evidence to that  

4

effect, the occupancy right given in favour of defendant no. 4 by  

the Land Tribunal would prevail.  Therefore, the High Court had  

come to the conclusion that the Trial Court was not right when it  

decreed the suit  and granted 1/18th  right in the suit property to  

the plaintiff.  

4 10. We heard the learned counsel appearing for the parties.

11.    Learned  counsel  appearing  for  the  appellant/original  plaintiff  

submitted  that  the  Land  Tribunal  ought  not  to  have  recognised  

defendant no.4  as a tenant in respect of the land in question as the land  

was not agricultural land as there was a building and shops on the land  

and so the land was a house site and, therefore, the  Land Tribunal was  

in error while deciding any right in respect of the land in question.  He  

further  submitted that even a deed was executed by defendant no. 4  

whereby he had agreed to give share of the plaintiff-sister to her.  But  

for the reasons best known to defendant no. 4, he did not give any share  

to the plaintiff.   In the circumstances, he submitted that the trial court  

was right when it decreed the suit filed by the plaintiff.

5

12. On the other hand, the learned counsel appearing for defendant  

no.4 submitted that the conclusion arrived at by the High Court is just  

and proper for the reason that the Land Tribunal had  jurisdiction to  

decide the matter pertaining to the suit land.  He submitted that the  

order  passed  by  the  Land  Tribunal  was  never  challenged  by  the  

plaintiff and it had become final. According to him, the plaintiff could  

not be permitted to submit at this stage that the Land Tribunal had no  

jurisdiction, especially when the Land Tribunal had recognised right of  

defendant no.4  by an order dated 27.11.1976.  He, therefore, submitted  

that the conclusion arrived at by the trial court was incorrect and that  

the order passed by the High Court required no interference.  

13. Upon  hearing  the  learned  counsel,  we  find  substance  in  the  

submissions made by the learned counsel appearing for defendant no. 4.

14. In our opinion, the High Court has rightly set aside the decree  

passed by the Trial Court.  By virtue of the order passed by the Land  

Tribunal  dated  27.11.1976,  right  of  defendant  no.  4  had  been  

recognised.  The Land Tribunal had arrived at a finding  that as on  

1.3.1974 defendant no. 4 was a tenant in respect of the land in question  

6

and,  therefore,  he  was  declared  to  be  a  tenant  and  he  got  right  in  

respect of the suit land.  The said order has already become final and,  

therefore,  it  would  not  be  proper  to  take  a  view  that  the  land  in  

question  was  not  an  agricultural  land  at  the  time  when  right  of  

defendant no. 4  was recognised by the Land Tribunal on 27.11.1976.

15. The deed executed by defendant no. 4 in favour of the plaintiff  

would also not give any right to plaintiff to ask for partition or share in  

the suit land as the plaintiff had  no share in the suit property.

16. In our  opinion,   for the aforestated reasons,  the High Court has  

rightly allowed the appeal of defendant no.4 and dismissed the appeal  

filed  by the  plaintiff  and defendant  nos.1  and 3.    In  the facts  and  

circumstances of the case, we dismiss both the appeals with no order as  

to costs.

………..……………......................J.                                                   (Dr. MUKUNDAKAM SHARMA)

                           ………...........................................J.                                                                (ANIL R. DAVE)

7

New Delhi March 3,  2011.  

8