Karnataka High Court
Smt Leelavathi Shedthi vs Smt Sundari Shetty on 22 October, 2024
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RSA No. 1692 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1692 OF 2021 (PAR)
BETWEEN:
SMT. LEELAVATHI SHEDTHI
D/O LATE SMT GIRIJA SHEDTHI
AGED ABOUT 65 YEARS, R/A NANGIBAIL HOUSE
NALLUR VILLAGE, KARKALA TQ - 577 120.
...APPELLANT
(BY SRI. PRANESH CHANDRA, ADVOCATE)
AND:
1. SMT SUNDARI SHETTY
W/O LATE CHANDAYYA SHETTY
AGED ABOUT 71 YEARS
Digitally 2. SMT USHA SHETTY
signed by R D/O CHANDAYYA SHETTY
DEEPA AGED ABOUT 47 YEARS
Location:
HIGH 3. SMT ASHA
COURT OF
KARNATAKA D/O CHANDAYYA SHETTY
AGED ABOUT 45 YEARS
4. SRI UDAYA SHETTY
S/O CHANDAYYA SHETTY
AGED ABOUT 41 YEARS
ALL ARE R/A NANGIBAIL
NALLURU VILLAGE, KARKALA TALUK - 577 120
...RESPONDENTS
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE FOR C/R2)
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RSA No. 1692 of 2021
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.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
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.
2. 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. The brief facts leading rise to the filing of this
appeal are as follows:
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.
4. 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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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.
5. The Trial Court, based on the above said
pleadings, framed the issues.
6. 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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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.
7. The First Appellate Court, after hearing the
parties, has framed the points for consideration.
8. 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.
9. Heard the learned counsel for the defendant.
10. Learned counsel for the defendant submits that
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.
11. Perused the records and considered the
submissions of learned counsel for the defendant.
12. 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.
13. 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.
14. 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.
15. The respondents/plaintiffs have not filed
objections to I.A.No.2/2021 and perused the records.
16. 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.
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.
17. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
I.A.No.2/2021 is also dismissed.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SSB
