Sri Vasu Sherigar Vs Smt Gulabi Sherigrthi

SRI VASU SHERIGAR S/O KALYANI SHERIGARTHI AGED ABOUT 68 YEARS R/AT D.NO.2-85B, CHITPADY INDIRANAGARA KUKKIKATTE NO.76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶11

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

¶12

SMT. SHARADA SHERIGARTHI D/O KALYANI SHERIGARTHI AGED ABOUT 66 YEARS R/AT D. NO. 2-85B CHITPADY, INDIRANAGARA KUKKIKATTE NO.76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶13

SMT. SANJEEVI SHERIGARTHI D/O KALYANI SHERIGARTHI AGED ABOUT 53 YEARS R/AT D. NO. 2-85B CHITPADY, INDIRANAGARA KUKKIKATTE

¶14

NO. 76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶15

2 - NC: 2025:KHC:46683 RSA No. 354 of 2024

¶16

HC-KAR

¶17

SRI RATHNAKARA SHERIGAR S/O KALYANI SHERIGARTHI AGED ABOUT 43 YEARS R/AT D. NO. 2-85B CHITPADY, INDIRANAGARA KUKKIKATTE NO. 76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶18

SRI KRISHNA SHERIGAR S/O KALYANISHERIGARTHI AGED ABOUT 48 YEARS R/AT D. NO. 2-85B CHITPADY,INDIRANAGARA KUKKIKATTE NO. 76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶19

SMT. YASHODA SHERIGARTHI D/O KALYANI SHERIGARTHI AGED ABOUT 46 YEARS R/AT D. NO. 2-85B CHITPADY, INDIRANAGARA KUKKIKATTE NO. 76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶20

SRI SATHISH SHERIGAR S/O KALYANI SHERIGARTHI AGED ABOUT 43 YEARS R/AT D. NO. 2-85B CHITPADY, INDIRANAGARA KUKKIKATTE NO. 76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶21

SRI PRABHAKARA SHERIGAR S/O KALYANI SHERIGARTHI AGED ABOUT 41 YEARS R/AT D. NO. 2-85B CHITPADY, INDIRANAGARA

¶22

3 - NC: 2025:KHC:46683 RSA No. 354 of 2024

¶23

HC-KAR

¶24

KUKKIKATTE

¶25

NO. 76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶26

SRI RAMESH SHERIGAR S/O KALYANI SHERIGARTHI AGED ABOUT 38 YEARS R/AT D. NO. 2-85B CHITPADY, INDIRANAGARA KUKKIKATTE NO. 76 BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST

¶27

SMT. INDIRA SHERIGARTHI D/O LAXMI SHERIGARTHI AGED ABOUT 53 YEARS R/AT INDIRANAGARA NO. 76, BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST.

¶28

SMT SAROJINI SHERIGARTHI D/O LAXMI SHERIGARTHI AGED ABOUT 47 YEARS R/AT INDIRANAGARA NO. 76, BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST.

¶29

SRI SUDHAKARA SHERIGARA D/O LAXMI SHERIGARTHI AGED ABOUT 43 YEARS R/AT INDIRANAGARA NO. 76, BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST.

¶30

SMT GEETHA SHERIGARTHI D/O LAXMI SHERIGARTHI AGED ABOUT 35 YEARS R/AT INDIRANAGARA NO. 76, BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST.

¶31

4 -

¶32

NC: 2025:KHC:46683 RSA No. 354 of 2024

¶33

HC-KAR

¶34

SMT. BHARATHI D/O BABY SHERIGARTHI AGED ABOUT 37 YEARS R/AT INDIRANAGARA NO. 76, BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST.

¶35

SMT. POORNIMA D/O BABY SHERIGARTHI AGED ABOUT 33 YEARS R/AT INDIRANAGARA NO. 76, BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST.

¶36

SMT. PRATHIMA D/O BABY SHERIGARTHI AGED ABOUT 37 YEARS R/AT INDIRANAGARA NO. 76, BADAGABETTU VILLAGE UDUPI TALUK, UDUPI DIST.

¶37

…APPELLANTS

¶38

(BY SRI K PRASANNA SHETTY, ADVOCATE)

¶39

AND:

¶40

SMT. GULABI SHERIGRTHI W/O LATE GOPALA SHERIGARA AGED ABOUT 68 YEARS R/AT ADAPUDA MANE NEAR ANANTHA PADMANABHA TEMPLE PERDOOR, UDUPI DISTRICT.

¶41

SMT. NAYANA D/O LATE GOPALA SHERIGARA AGED ABOUT 33 YEARS R/AT ADAPUDA MANE NEAR ANANTHA PADMANABHA TEMPLE PERDOOR, UDUPI DISTRICT.

¶42

5 - NC: 2025:KHC:46683 RSA No. 354 of 2024

¶43

HC-KAR

¶44

SMT. SUMANA D/O LATE GOPALA SHERIGARA AGED ABOUT 31 YEARS R/AT KADIYALI POST KUNJIBETTU UDUPI-576102

¶45

…RESPONDENTS

¶46

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.11.2023 PASSED IN R.A No.14/2020 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI AND ETC.

¶47

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

¶48

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

¶49

ORAL JUDGMENT

¶50

This second appeal is filed against the concurrent finding

¶51

of the Trial Court as well as the First Appellate Court.

¶52

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

¶53

The factual matrix of the case of the plaintiffs before the Trial Court is that the plaint properties along with certain other properties were originally held on mulageni right by Smt. Akku Sherigarthi, the maternal grandmother of the

¶54

6 -

¶55

NC: 2025:KHC:46683 RSA No. 354 of 2024

¶56

HC-KAR

¶57

plaintiffs as Yejamanthi of her joint Aliyasanthana family consisting of her, her children, the plaintiffs and her other grandchildren i.e., daughters children. The said joint family of Akku Sherigarthi will hereafter referred to as the ‘plaint family’ for short. After coming into force of the Karnataka Land Reforms Amendment Act, 1974, said Akku Sherigarthi filed an application in Form No.7 claiming occupancy right in respect of the leasehold properties of the plaint family in her capacity as the Yejamanthi of the plaint family. In pursuance of the same, the Land Tribunal was pleased to register her as occupant of the said leasehold properties of the plaint family after holding an enquiry and certificate of registration in Form No.10 was also issued in her name. The said order and the certificate of registration enured for the benefit of the plaint family. All the members of the said joint family were in joint possession and enjoyment of the aforesaid joint property of the plaint family. Subsequently, an oral arrangement was entered into between Akku Sherigarthi and other members of her joint family in the year 1987 for separate possession and enjoyment of the joint properties of the family. However, the plaint family did not enter into a registered deed of partition to record the oral

¶58

7 - NC: 2025:KHC:46683 RSA No. 354 of 2024

¶59

HC-KAR

¶60

arrangement. In terms of the said oral arrangement, the plaint properties and the family house bearing Door No.2.85, 2.85B standing in Item No.1 of the plaint properties were kept joint to be held jointly by the Aliyasantana family members of the plaint family. The sacred stone of Rahubootha family daiva of the plaint family is consecrated in Item No.2. The family members of the plaint family are and have been performing viniyogas of family daivas in the aforesaid family house since several decades. As per the terms of oral arrangement, all the kavarus of the plaint family have been given right to draw the water from the well standing in Item No.2 of the plaint property and to use the same for domestic purposes as well as for watering the trees standing in the properties allotted to their separate enjoyment.

¶61

The plaint family members are and have been in possession and enjoyment of the respective properties allotted to their separate enjoyment since the time of Akku Sherigarthi. But the plaint properties are and have been throughout being enjoyed as joint family properties of the plaint family and the plaint properties continued to be in joint properties of the plaint

¶62

8 - NC: 2025:KHC:46683 RSA No. 354 of 2024

¶63

HC-KAR

¶64

family and all members of the plaint family are having right in the plaint properties as a members of the plaint family. It is also contented that even during the lifetime of Akku Sherigarthi, the deceased Gopala Sherigara, who is the husband of defendant No.1 and father of defendant Nos.2 and 3 was residing in a portion of the family house bearing Udupi Municipal D.No.2.85. Even after his marriage with defendant No.1, Gopala Sherigara continued his residence in the said house. His wife is permanently residing in Adapu house of Perdoor Village of Udupi Taluk, which is her parental home and she and her children never shifted their residence to Door No.285. The defendants never resided in the family house along with Gopal Sherigara nor were they in possession and enjoyment of any of the plaint properties. After the death of Akku Sherigarthi, her only son, Gopala Sherigara as the defacto Yejman of the plaint family, continued his residence in a portion of the family house, and all the family members used to assemble together in the said family house on festive occasions and for offering annual viniyogas to the family daivas of the plaint family and the plaint family members were and have been jointly celebrating the said viniyogas and festivals in the

¶65

9 - NC: 2025:KHC:46683 RSA No. 354 of 2024

¶66

HC-KAR

¶67

family house. The RTC and other revenue records relating to the plaint properties being the joint properties of the plaint family came to be mutated in the name of Gopala Sherigara as the senior member and Yejman of the plaint family. Gopala Sherigara was in joint possession and enjoyment of the plaint properties along with other family members of the plaint family till his death. Even after his death, the plaintiff Nos.1 to 9 continued their residence in a portion of the family house.

¶68

The fact remains that the plaint properties and the residential houses bearing Door No.2-85 and 2-85B also the well and other improvements standing in the plaint properties and have been throughout treated and enjoyed as the joint family properties of that plaint family. Every member of the plaint family having right and interest in the same. The deceased, Gopala Sherigara did not have any absolute and exclusive right to the plaint properties and the family house comprised therein. The defendants as his legal heirs did not inherit any exclusive or absolute right to the plaint properties. Recently, the plaintiffs have come to know that taking advantage of the RTC entries relating to the plaint properties

¶69

10 - NC: 2025:KHC:46683 RSA No. 354 of 2024

¶70

HC-KAR

¶71

and Municipal Khata relating to the D.No.2-85 standing in the name of Gopala Sherigara, defendants clandestinely have mutated their names in the revenue records as they are the legal heirs of deceased Gopala Sherigara without notifying the plaintiffs or other family members. Taking the advantage of the revenue entries, now they are interfering with possession and enjoyment of the suit sale property. Hence, filed the suit seeking for the relief of permanent injunction.

¶72

The defendant in pursuance of the suit summons appeared and defendant No.1 filed written statement and defendant Nos.2 and 3 have adopted the same. Defendant No.1 has denied all the averments made in the plaint and contend that during the lifetime and sound disposing mind of the said Akku Sherigarthi had executed a Will in favour of her son Gopala Sherigara and other children including mothers of the plaintiffs which was duly registered on 07.09.1987 in respect of the properties enjoined by her. The Will came into existence and thereafter Item No.1 of the plaint property was enjoyed by aforesaid Gopala Sherigara in an absolute and exclusive possession along with wife and children who are the defendants

¶73

11 -

¶74

NC: 2025:KHC:46683 RSA No. 354 of 2024

¶75

HC-KAR

¶76

in their khas possession as the absolute owner and also rest of her properties are also enjoyed by other children in terms of the said Will. In view of the said Will, The property is also mutated in favour of the defendants and defendants are having all right over the property and plaintiffs never have any manner of right, title or interest over the said property and the same absolutely belongs to the defendants.

¶77

The Trial Court having considered the averments made in the plaint as well as in the written statement, framed the Issues and allowed the parties to lead evidence and in detail discussed both oral and documentary evidence placed on record. In paragraph 16, taken note of the admissions of PW1 and PW2 and in paragraphs 17 to 19, comes to the conclusion that plaintiffs have not established the exclusive possession over the property as contented and dismissed the suit.

¶78

Being aggrieved by the judgment of the Trial Court, an appeal was preferred in R.A.No.14/2020 before the First Appellate Court. The First Appellate Court having considered the grounds which have been urged, formulated the Points that whether interference of the Court is necessary and whether

¶79

12 -

¶80

NC: 2025:KHC:46683 RSA No. 354 of 2024

¶81

HC-KAR

¶82

Trial Court properly considered the pleadings and oral and documentary evidence. The First Appellate Court having reassessed both oral and documentary evidence placed on record answered the points as negative taking note of the answer elicited from the mouth of PW1 in paragraph 18 and also the evidence of DW1 in paragraph 20 and comes to the conclusion that the Trial Court has not committed any error in considering both oral and documentary evidence and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

¶83

The main contention of the learned counsel appearing for the appellants is that both the Courts have committed serious material irregularity in appreciating the evidence. It is also contended that both the Courts have erred in not considering that in the year 1987, a oral agreement was taken place among the family members of Akku Sherigarthi and the family members of Akku Sherigarthi have been in possession and enjoyment of their respective shares. Hence,

¶84

13 -

¶85

NC: 2025:KHC:46683 RSA No. 354 of 2024

¶86

HC-KAR

¶87

this Court has to admit the appeal and frame the substantive question of law.

¶88

Having heard the learned counsel for the appellants and also the reasoning given by the Trial Court and First Appellate Court, it discloses that the Will was executed and in the said Will, a provision is also made to the family members. There is no dispute that property was earlier belongs to Akku Sherigarthi by virtue of the order passed by the Land Tribunal. The material also discloses that she had executed the Will in favour of her son Gopala Sherigara and other children including the mother of the plaintiffs and the same was also registered in the year 1987. The plaintiffs also not disputes the fact that there was a separate arrangement among the family members and even not disputed the Will, though content that Will was denied by the plaintiffs. But the fact that the said Akku Sherigarthi made the provision to all the members of the family including the mother of the plaintiffs and hence, mother is also a beneficiary and the said document came into force in the year 1987 itself. When such being the case, subsequent to the death of the said Akku Sherigarthi, revenue records are also changed

¶89

14 -

¶90

NC: 2025:KHC:46683 RSA No. 354 of 2024

¶91

HC-KAR

¶92

in favour of the defendants i.e., Gopala Sherigara and subsequently, the property stands in the name of the defendants also. When the suit is filed only for the relief of permanent injunction, the Court has to look into the possession as on the date of filing of the suit and the plaintiffs also not dispute the fact that all the revenue record stands in the name of the defendants. When such being the case, plaintiffs except relying upon the RTCs at Ex.P1 to P4, tax paid receipt to prove that property stands in their names and the same was allotted in their favour, nothing is placed on record. Both oral and documentary evidence clearly discloses that the plaintiffs are not in possession of the property. Even Trial Court also extracted the answer elicited from the mouth of PW1 and PW2 in paragraph 16 in this regard. It is also settled law that as on the date of filing of the suit, the plaintiff must establish his possession but in the case on hand, the same has not been done by the plaintiffs. The First Appellate Court also reassessed both oral and documentary evidence and comes to the conclusion that plaintiffs have not established the possession taking into note of answers elicited from the mouth of the witnesses i.e., PW1, PW2 and DW1. Hence, I do not find any

¶93

NC: 2025:KHC:46683 RSA No. 354 of 2024

¶94