Dismissed

Smt Leelavathi Shedthi v. Smt Sundari Shetty

Karnataka HC22 Oct 2024RSA/1692/2021

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by a sister against a partition and separate possession decree. The court held occupancy rights were granted in individual capacity, not the joint family, and additional evidence was inadmissible.

What did the court decide?

The regular second appeal and the application for additional evidence were dismissed. The lower decree of partition stands affirmed.

Smt Leelavathi Shedthi Vs Smt Sundari Shetty — Partition | Karnataka HC (2024)

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NC: 2024:KHC:42406 RSA No. 1692 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1692 OF 2021 (PAR)

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BETWEEN:

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SMT. LEELAVATHI SHEDTHI D/O LATE SMT GIRIJA SHEDTHI AGED ABOUT 65 YEARS, R/A NANGIBAIL HOUSE NALLUR VILLAGE, KARKALA TQ - 577 120.

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…APPELLANT

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(BY SRI. PRANESH CHANDRA, ADVOCATE)

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AND:

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SMT SUNDARI SHETTY W/O LATE CHANDAYYA SHETTY AGED ABOUT 71 YEARS

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SMT USHA SHETTY D/O CHANDAYYA SHETTY AGED ABOUT 47 YEARS

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SMT ASHA

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D/O CHANDAYYA SHETTY AGED ABOUT 45 YEARS

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SRI UDAYA SHETTY S/O CHANDAYYA SHETTY AGED ABOUT 41 YEARS

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ALL ARE R/A NANGIBAIL NALLURU VILLAGE, KARKALA TALUK - 577 120

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…RESPONDENTS

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(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE FOR C/R2)

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2 - NC: 2024:KHC:42406 RSA No. 1692 of 2021

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATE 19.02.2021 PASSED IN RA.No.8/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.12.2011 PASSED IN OS.No.181/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE KARKALA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This second appeal is filed by the appellant challenging the judgment and decree dated 19.02.2021 passed in R.A.No.8/2012 by the learned Senior Civil Judge and ACJM, Karkala and the judgment and decree dated 15.12.2011 passed in O.S.No.181/2009 by the learned Principal Civil Judge, Karkala.

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For convenience, parties are referred to as per their ranking before the trial Court. The appellant is the defendant, and the respondents are the plaintiffs. The plaintiffs filed a suit for partition and separate possession against the defendants regarding the suit schedule properties.

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3 - NC: 2024:KHC:42406 RSA No. 1692 of 2021

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The brief facts leading rise to the filing of this appeal are as follows:

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It is contended that one late Smt. Girija Shedthi holds the suit schedule properties on tenancy rights, and the Land Tribunal at Karkala granted occupancy rights by order dated 19.10.1981. Smt. Girija Shedthi had two children, the late Chandayya Shetty and Smt. Leelavathi Shedthi. The plaintiffs are the legal heirs of Chandayya Shetty and sought their share in the suit schedule properties. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession.

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The defendant filed the written statement contending that Smt. Lingamma, i.e., the grandmother, possessed the suit schedule properties on Chalageni's right and cultivated the suit schedule properties along with her family members. Smt. Lingamma died in the year 1973, leaving behind three children, namely Girija Shedthi, Meenu Shedthi and Shivanna Shetty, who jointly continued the possession and enjoyment of the suit schedule

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4 - NC: 2024:KHC:42406 RSA No. 1692 of 2021

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properties. Smt. Girija Shedthi, the elder member of the family, managed the suit schedule properties and paid yearly rent to the landlord. After the advent of the Karnataka Land Reforms Act, Smt. Girija Shedthi, the elder member of the joint family, submitted a declaration in form No.7 under the Karnataka Land Reforms Act on behalf of the joint family seeking occupancy rights regarding the suit schedule properties. It is contended that the Land Tribunal granted the land to any family of the plaintiff and the defendant. Hence, prays to dismiss the suit.

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The Trial Court, based on the above said pleadings, framed the issues.

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The plaintiffs, to prove their case, plaintiff No.4 was examined as PW.1 and got marked eight documents as Exs.P1 to P8. In rebuttal, the defendant was examined as DW.1 and no documents were marked. The trial Court, after recording the evidence, hearing on both the sides and after assessment of oral and documentary evidence,

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5 - NC: 2024:KHC:42406 RSA No. 1692 of 2021

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decreed the suit of the plaintiffs and held that the plaintiffs are entitled to half share in the suit schedule properties. The defendant, aggrieved by the judgment and preliminary decree passed in O.S.No.181/2009, preferred an appeal in R.A.No.8/2012.

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The First Appellate Court, after hearing the parties, has framed the points for consideration.

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The First Appellate Court, on re-assessment of oral and documentary evidence, dismissed the appeal vide judgment dated 19.02.2021. The defendant, aggrieved by the impugned judgments, has filed this regular second appeal.

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Heard the learned counsel for the defendant.

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Learned counsel for the defendant submits that

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all the legal representatives of Smt. Lingamma Shedthi is entitled to share in the suit schedule properties. He submits that the said aspect was not considered by the

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courts below. Hence, he prays to allow the appeal and I.A.No.2/2021.

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Perused the records and considered the

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submissions of learned counsel for the defendant.

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Before filing this suit, Shivanna Shetty had filed a suit for partition and separate possession in O.S.No.84/1993 against his sisters Girija Shedthi, Meenu Shedthi and Leelavathi. In the said suit, the defendant refused to accept the summons, and they were placed exparte. In the suit, the trial Court recorded a finding that Shivanna Shetty had taken contention about the suit schedule properties that initially belonged to Lingamma Shedthi. She was the Chalageni tenant of the suit schedule properties, and she died before coming into force of the Karnataka Land Reforms Act. She is the elder daughter of Smt. Lingamma Shedthi filed an application for a grant of occupancy right for and on behalf of the legal heirs of Smt. Lingamma Shedthi. The occupancy right was conferred under the name Girija Shedthi. The Trial Court has

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recorded a finding that the said land was granted in the name of Girija Shedthi for her benefit and not for the benefit of the family or the benefit of the legal heirs of Smt. Lingamma Shedthi. The judgment passed in R.A.No.84/1993 was challenged in R.A.No.95/2005. The said appeal was dismissed for non-prosecution. The judgment passed in O.S.No.84/1993 has attended the finality, wherein in the said judgment, the trial Court has recorded a finding that the occupancy right was conferred in the name of Girija Shedthi in her capacity and not for the enure to the benefit of the family. Then, this Court has already recorded a finding that the said land was granted in the name of Girija Shedthi in her individual capacity. The other legal representatives of Lingamma Shedthi have no right to share in the suit schedule properties.

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Admittedly, Girija Shedthi died intestate, leaving behind the late Channayya Shetty and Smt. Leelavathi. As per Section 15 of the Hindu Succession Act, 1956, if a female Hindu dies intestate, the property

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belongs to their legal heirs. Sri Channayya Shetty and Leelavathi are the legal heirs of Girija Shedthi and are entitled to equal shares in the suit schedule properties. The trial Court was justified in decreeing the plaintiff's suit and rightly granted half share to the plaintiffs. The First Appellate Court, on a reassessment of the entire material on record, was justified in confirming the judgment and decree passed by the trial Court. Hence, I do not find any error in the impugned judgment or any substantial question of law that arises for consideration in this appeal.

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The defendant filed I.A.No.2/2021 to produce additional evidence. In support of an application, the defendant filed an affidavit contending that the respondent filed a suit in O.S.No.181/2009 seeking for partition of the suit schedule properties and to establish that the said suit schedule properties were granted in favour of Girija Shedthi for individual capacity and the defendant has taken the defence in the written statement. Smt. Girija Shedthi, being the elder daughter of late Lingamma,

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continued in possession and managing the suit schedule properties on behalf of the joint family, later on the advent of the Karnataka Land Reform Act Smt. Girija Shedthi, being the family's eldest member on behalf of the joint family, submitted a declaration in form No.7 on behalf of the joint family. Hence, prays to allow the application.

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The respondents/plaintiffs have not filed

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objections to I.A.No.2/2021 and perused the records.

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Though sufficient opportunity was provided to the defendant to produce the documents, the defendant has not produced the documents either before the trial Court or the First Appellate Court. The defendant has produced the document only to fill up the lacuna. The defendant has failed to fulfil the requirements under Order XLI Rule 27 of CPC . Though the said documents were in the custody of the defendant, the defendant did not choose to produce the documents before the trial Court or the First Appellate Court. Further, even though the said

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documents are taken on record, the said documents are contrary to the judgment rendered in O.S.No.84/1993.

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The Civil Court has already recorded the finding that the occupancy right was granted in favour of Smt. Girija Shedthi for individual capacity. Hence, the said documents are irrelevant for deciding the dispute. Hence, I do not find any grounds to entertain I.A.No.2/2021.

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In view of the above discussion, I proceed to

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pass the following:

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ORDER

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The appeal is dismissed .

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I.A.No.2/2021 is also dismissed.

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Sd/(ASHOK S.KINAGI) JUDGE

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SSB

Smt Leelavathi Shedthi v. Smt Sundari Shetty

Case brief

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Smt Leelavathi Shedthi v. Smt Sundari Shetty

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