Karnataka High Court
Sri Vasu Sherigar vs Smt Gulabi Sherigrthi on 14 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 354 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.354 OF 2024 (INJ)
BETWEEN:
1. 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
2. SMT. SHARADA SHERIGARTHI
D/O KALYANI SHERIGARTHI
AGED ABOUT 66 YEARS
R/AT D. NO. 2-85B
Digitally signed CHITPADY, INDIRANAGARA
by DEVIKA M
KUKKIKATTE
Location: HIGH
COURT OF NO.76 BADAGABETTU VILLAGE
KARNATAKA UDUPI TALUK, UDUPI DIST
3. SMT. SANJEEVI SHERIGARTHI
D/O KALYANI SHERIGARTHI
AGED ABOUT 53 YEARS
R/AT D. NO. 2-85B
CHITPADY, INDIRANAGARA
KUKKIKATTE
NO. 76 BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST
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4. 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
5. 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
6. 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
7. 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
8. SRI PRABHAKARA SHERIGAR
S/O KALYANI SHERIGARTHI
AGED ABOUT 41 YEARS
R/AT D. NO. 2-85B
CHITPADY, INDIRANAGARA
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RSA No. 354 of 2024
HC-KAR
KUKKIKATTE
NO. 76 BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST
9. 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
10. SMT. INDIRA SHERIGARTHI
D/O LAXMI SHERIGARTHI
AGED ABOUT 53 YEARS
R/AT INDIRANAGARA
NO. 76, BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST.
11. SMT SAROJINI SHERIGARTHI
D/O LAXMI SHERIGARTHI
AGED ABOUT 47 YEARS
R/AT INDIRANAGARA
NO. 76, BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST.
12. SRI SUDHAKARA SHERIGARA
D/O LAXMI SHERIGARTHI
AGED ABOUT 43 YEARS
R/AT INDIRANAGARA
NO. 76, BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST.
13. SMT GEETHA SHERIGARTHI
D/O LAXMI SHERIGARTHI
AGED ABOUT 35 YEARS
R/AT INDIRANAGARA
NO. 76, BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST.
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14. SMT. BHARATHI
D/O BABY SHERIGARTHI
AGED ABOUT 37 YEARS
R/AT INDIRANAGARA
NO. 76, BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST.
15. SMT. POORNIMA
D/O BABY SHERIGARTHI
AGED ABOUT 33 YEARS
R/AT INDIRANAGARA
NO. 76, BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST.
16. SMT. PRATHIMA
D/O BABY SHERIGARTHI
AGED ABOUT 37 YEARS
R/AT INDIRANAGARA
NO. 76, BADAGABETTU VILLAGE
UDUPI TALUK, UDUPI DIST.
...APPELLANTS
(BY SRI K PRASANNA SHETTY, ADVOCATE)
AND:
1. SMT. GULABI SHERIGRTHI
W/O LATE GOPALA SHERIGARA
AGED ABOUT 68 YEARS
R/AT ADAPUDA MANE
NEAR ANANTHA PADMANABHA TEMPLE
PERDOOR, UDUPI DISTRICT.
2. SMT. NAYANA
D/O LATE GOPALA SHERIGARA
AGED ABOUT 33 YEARS
R/AT ADAPUDA MANE
NEAR ANANTHA PADMANABHA TEMPLE
PERDOOR, UDUPI DISTRICT.
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3. SMT. SUMANA
D/O LATE GOPALA SHERIGARA
AGED ABOUT 31 YEARS
R/AT KADIYALI
POST KUNJIBETTU
UDUPI-576102
...RESPONDENTS
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.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This second appeal is filed against the concurrent finding
of the Trial Court as well as the First Appellate Court.
2. This matter is listed for admission. Heard the
learned counsel appearing for the appellants.
3. 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
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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
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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.
4. 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
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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.2-
85. 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 de-
facto 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
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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.
5. 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
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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.
6. 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
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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.
7. 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.
8. 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
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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.
9. 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,
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this Court has to admit the appeal and frame the substantive
question of law.
10. 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
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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
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ground to admit the appeal and frame the substantial question
of law since, there is no any perversity while considering both
the factual aspects as well as the question of law. Thus, there is
no merit in the appeal to invoke Section 100 of CPC.
11. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any, does
not survive for consideration and the same stands dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
