Sri Shivanna Shetty Vs Sri Sunder Shetty

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1 - NC: 2025:KHC:48000 RSA No. 1074 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.1074 OF 2025 (PAR)

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BETWEEN:

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SRI SHIVANNA SHETTY AGED ABOUT 77 YEARS, S/O LATE KITTI SHEDTHI, R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE HEBRI TALUK, UDUPI DISTRICT – 574106.

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SMT. ARUNDATHI D. SHETTY AGED ABOUT 50 YEARS, D/O SHIVANNA SHETTY, R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE HEBRI TALUK, UDUPI DISTRICT – 574106.

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SMT. SHOBHA R. SHETTY AGED ABOUT 45 YEARS, D/O SHIVANNA SHETTY, R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE HEBRI TALUK, UDUPI DISTRICT- 574106

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…APPELLANTS

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(BY SRI. NATARAJA BALLAL A, ADVOCATE)

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HC-KAR

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AND:

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SRI. SUNDER SHETTY DEAD BY LRS.

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SMT. SUSHEELA AGED ABOUT 78 YEARS, D/O LATE SUNDAR SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT – 574106.

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SRI. RAVINDRA SHETTY AGED ABOUT 58 YEARS S/O LATE SUNDAR SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT – 574106

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SMT. SUJATHA AGED ABUT 55 YEARS D/O LATE SUNDAR SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT – 574106.

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SRI SURENDRA SHETTY AGED ABOUT 53 YEARS S/O LATE SUNDAR SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE HEBRI TALUK, UDUPI DISTRICT – 574106

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SRI SHIVARAMA SHETTY AGED ABOUT 48 YEARS, S/O LATE SUNDAR SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE HEBRI TALUK, UDUPI DISTRICT – 574106

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HC-KAR

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SRI SATHISH SHETTY AGED ABOUT 43 YEARS, S/O LAE SUNDAR SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT– 574106

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SRI DINESH SHETTY AGED ABOUT 40 YEARS, S/O LAE SUNDAR SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT – 574106.

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SRI VITTAL SHETTY AGED ABOUT 69 YEARS S/O LATE KITTI SHETTY R/AT ROOM NO.3, ANANDIBAI GOSAVI CHAWAL VAJENET, PADA WEGESHWARI MATT ROAD KURAR VILLAGE, MALAD (EAST) MUMBAI - 400 097.

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SRI SANJEEVA SHETTY AGED ABOUT 65 YEARS, S/O LATE KITTI SHETTY, R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT – 574106.

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SMT. PREMA SHETTY AGED ABOUT 60 YEARS, D/O LATE KITTI SHETTY R/O HOSAVAKLU,

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NC: 2025:KHC:48000 RSA No. 1074 of 2025

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HC-KAR

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MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT – 574106.

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SMT. SIRIYALA SHETTY AGED ABOUT 58YEARS D/O LATE KITTI SHETTY R/O HOSAVAKLU, MOODUKUDOOR, VARANGA VILLAGE, HEBRI TALUK, UDUPI DISTRICT - 574106

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.04.2025 PASSED IN R.A.NO.7/2024 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, UDUPI (ITINERARY SITTING AT KARKALA) DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.12.2023 PASSED IN O.S.NO.15/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ACJM, KARKALA AND ETC.

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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 H.P.SANDESH

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NC: 2025:KHC:48000 RSA No. 1074 of 2025

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HC-KAR

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ORAL JUDGMENT

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This second appeal filed against the concurrent finding of

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the trial court as well as the first appellate court.

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This matter is listed for admission. Heard the learned counsel appearing for the appellants.

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The factual matrix of case of plaintiffs before the trial Court while seeking the relief of petition is that ‘A’ schedule property belongs to one Kitti Shedthi who acquired the same on chalageni tenancy right. That on advent of Karnataka Land Reforms Act, defendant No.1 being the senior most member, applied for the grant of occupancy rights. The said properties are for the benefit of the family. Defendant No.1 denied for partition and accordingly, the suit is filed.

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Defendant No.1 contend that since Kitti Shedthi expressed her willingness to reside with defendant No.1, Kitti Shedthi was permitted to reside in the house belonging to defendant No.1. That the suit schedule properties were granted to defendant No.1 and conferred with occupancy rights by the Land Tribunal in his personal capacity vide order dated

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HC-KAR

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22.08.1979. Hence the plaintiff and defendant Nos.2 to 5 were never in possession of the suit schedule properties.

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Defendant No.2 in the written statement consensuses with the averments of the plaint and prayed to decree the suit. Defendant Nos.3 to 5 adopted the written statement of defendant No.2 and prays for allotment of one such share in the suit schedule properties.

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Based on the pleadings of the parties, the Trial Court framed the issues and also framed the additional issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence available on record, comes to the conclusion that this grant is in favour of defendant No.1 only based on the fact that he was a senior member of the family and also taken note of definition of the family under Section 2(12) of the Karnataka Land Reforms Act in paragraph 30 and also discussed in detail in paragraphs 31 and 32 and comes to the conclusion that all of them are residing in the very same property and defendant No.1 being the senior member of the family, an application was filed in the name of defendant No1 and defendant No.1 is not having

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exclusive right over the suit schedule property and granting of occupancy right is in the favour of the family and hence, granted 1/6^th share in ‘A’ schedule property. The Trial Court also taken note of the fact that gift deed dated 15.06.2013 and registered settlement deed dated 21.11.2014 executed by defendant No.1 in favour of his daughters i.e., defendant Nos.6 and 7 are not binding upon the share of the plaintiff nos.1(a) to 1(g) and defendant Nos.2 to 5. Defendant Nos.6 and 7 would be only entitled for 1/6^th share in the suit schedule property i.e., the share of defendant No.1.

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Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the First Appellate Court in R.A.No.7/2024. The First Appellate Court also having considered the grounds urged in the appeal that the occupancy right was granted in favour of the appellant exclusively, framed the points for consideration. The First Appellate Court having reassessed the material available on record answered the point Nos.1 to 3 as affirmative and point No.4 as negative and while doing so also, in detail considered the material on record in paragraph 35 wherein taken note of the exact age of defendant

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HC-KAR

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No.1 during the year 1964 it is quite hard to accept that he took the suit properties on chalageni in the year 1964. Further he failed to prove that chalageni was taken in the year 1966. The First Appellate Court also taken note of admission on the part of DW1 in paragraphs 36 to 38 wherein in the cross examination of DW1 when the suggestion was made that defendant No.2 used to send money for religious functions of daiva devaru for which he stated that defendant No.2 used to send money to his mother and not in favour of him. But taken note of the documentary evidence of Ex.P10 to 74 which depict that the amount used to send by defendant No.2 and same is received by defendant No.1 and documents of Ex.P74 to P80 are the letters written by defendant No.1 to defendant No.2 wherein it is clearly stated about the share of defendant in the properties and asking him to send money for cultivation of lands. These documents were also taken note of by the First Appellate Court while reassessing the material available on record and comes to the conclusion that grant is in favour of the family and not in the individual capacity of defendant No.1 and confirmed the judgment of the Trial Court. Being aggrieved

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by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

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The main contention of the counsel appearing for the appellants is that both the Courts have committed an error and failed to take note of the material on record particularly the document of Form No.7 wherein claim is made by defendant No.1 and failed to consider both oral and documentary evidence in a proper perspective and erred in not considering that the suit schedule properties are absolute properties and selfacquired property of defendant No.1 and as a result the plaintiffs and other defendants have no right over the said property.

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Having heard the counsel appearing for the appellants and also considering the material and record, it discloses that the very specific pleading of the plaintiffs that the ‘A’ schedule property is a tenancy property and family members are cultivating the same and also the specific contention of defendant No.1 that it is an exclusive property of defendant No.1. The Trial Court having considered both oral and documentary evidence placed on record taken note of the

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definition of Section 2(12) of the Karnataka Land Reforms Act and in paragraphs 31 and 32 clearly discussed with regard to the nature of the property and all the family members were residing in the said property and cultivating the same. But the contention of defendant No.1 that he himself having exclusive right over the schedule property was denied. Even First Appellate Court also while exercising its power in detail discussed both oral and documentary evidence placed on record and particularly the documents relied upon stating that the amount sent in favour of defendant No.1 when defendant No.2 was in Bombay and the same has been discussed in detail. Though it is contend that he was sending the money to the mother of defendant No.2, considered the documents of Ex.P10 to P74 as well as Ex.P74 to P80 i.e., the letters written by defendant No.1 to defendant No.2 where it clearly stated about the share of defendant in the properties and asking him to send money for cultivation of land. Apart from that even taken note of the documents of Ex.P10 to P74, it clearly depict that the amount used to send by defendant No.2 and same is received by defendant No.1. All these materials were taken note of by the First Appellate Court while confirming the

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judgment of the Trial Court. When such being the case, the very contention of the counsel for the appellants that the occupancy right was granted exclusively in his favour cannot be accepted and also while making an application his age was taken note of since Form No.7 was filed on 26.12.1974 as per Ex.P7 and Ex.P8 is dated 25.08.1979 and also taken note of the answers elicited in the cross examination of DW1 and having considered the evidence in toto comes to a conclusion that there is a grant in favour of the family that too a elder member of the family that is defendant No.1. Under such circumstances, I do not find any grounds to admit the appeal and frame substantial question of law since there is no perversity as contended by the counsel appearing to the appellants in appreciating both oral and documentary evidence placed on record. It is settled law that in a second appeal, the Court can admit the same if appreciation of evidence not proper on record and if it is perverse. In the case on hand, both question of fact and question of law was also taken note of by the trial Court while considering the material on record and so also the same is properly re-assessed by the First Appellate Court. Hence, it is not a case to invoke Section 100 of CPC.

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