Karnataka High Court
Sri Shivanna Shetty vs Sri Sunder Shetty on 20 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:48000
RSA No. 1074 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1074 OF 2025 (PAR)
BETWEEN:
1. SRI SHIVANNA SHETTY
AGED ABOUT 77 YEARS,
S/O LATE KITTI SHEDTHI,
R/O HOSAVAKLU,
MOODUKUDOOR,
VARANGA VILLAGE
HEBRI TALUK,
UDUPI DISTRICT - 574106.
2. SMT. ARUNDATHI D. SHETTY
AGED ABOUT 50 YEARS,
D/O SHIVANNA SHETTY,
R/O HOSAVAKLU,
MOODUKUDOOR,
Digitally signed VARANGA VILLAGE
by DEVIKA M HEBRI TALUK,
Location: HIGH UDUPI DISTRICT - 574106.
COURT OF
KARNATAKA
3. SMT. SHOBHA R. SHETTY
AGED ABOUT 45 YEARS,
D/O SHIVANNA SHETTY,
R/O HOSAVAKLU,
MOODUKUDOOR,
VARANGA VILLAGE
HEBRI TALUK,
UDUPI DISTRICT- 574106
...APPELLANTS
(BY SRI. NATARAJA BALLAL A, ADVOCATE)
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RSA No. 1074 of 2025
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AND:
SRI. SUNDER SHETTY
DEAD BY LRS.
1. SMT. SUSHEELA
AGED ABOUT 78 YEARS,
D/O LATE SUNDAR SHETTY
R/O HOSAVAKLU, MOODUKUDOOR,
VARANGA VILLAGE, HEBRI TALUK,
UDUPI DISTRICT - 574106.
2. SRI. RAVINDRA SHETTY
AGED ABOUT 58 YEARS
S/O LATE SUNDAR SHETTY
R/O HOSAVAKLU, MOODUKUDOOR,
VARANGA VILLAGE, HEBRI TALUK,
UDUPI DISTRICT - 574106
3. SMT. SUJATHA
AGED ABUT 55 YEARS
D/O LATE SUNDAR SHETTY
R/O HOSAVAKLU, MOODUKUDOOR,
VARANGA VILLAGE, HEBRI TALUK,
UDUPI DISTRICT - 574106.
4. SRI SURENDRA SHETTY
AGED ABOUT 53 YEARS
S/O LATE SUNDAR SHETTY
R/O HOSAVAKLU, MOODUKUDOOR,
VARANGA VILLAGE HEBRI TALUK,
UDUPI DISTRICT - 574106
5. 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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6. SRI SATHISH SHETTY
AGED ABOUT 43 YEARS,
S/O LAE SUNDAR SHETTY
R/O HOSAVAKLU,
MOODUKUDOOR,
VARANGA VILLAGE,
HEBRI TALUK,
UDUPI DISTRICT- 574106
7. SRI DINESH SHETTY
AGED ABOUT 40 YEARS,
S/O LAE SUNDAR SHETTY
R/O HOSAVAKLU,
MOODUKUDOOR,
VARANGA VILLAGE,
HEBRI TALUK,
UDUPI DISTRICT - 574106.
8. 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.
9. SRI SANJEEVA SHETTY
AGED ABOUT 65 YEARS,
S/O LATE KITTI SHETTY,
R/O HOSAVAKLU,
MOODUKUDOOR,
VARANGA VILLAGE,
HEBRI TALUK,
UDUPI DISTRICT - 574106.
10. SMT. PREMA SHETTY
AGED ABOUT 60 YEARS,
D/O LATE KITTI SHETTY
R/O HOSAVAKLU,
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RSA No. 1074 of 2025
HC-KAR
MOODUKUDOOR,
VARANGA VILLAGE,
HEBRI TALUK,
UDUPI DISTRICT - 574106.
11. SMT. SIRIYALA SHETTY
AGED ABOUT 58YEARS
D/O LATE KITTI SHETTY
R/O HOSAVAKLU,
MOODUKUDOOR,
VARANGA VILLAGE,
HEBRI TALUK,
UDUPI DISTRICT - 574106
...RESPONDENTS
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.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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RSA No. 1074 of 2025
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ORAL JUDGMENT
This second appeal 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 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.
4. 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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22.08.1979. Hence the plaintiff and defendant Nos.2 to 5 were
never in possession of the suit schedule properties.
5. 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.
6. 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 1/6th 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 1/6th share in the suit schedule property
i.e., the share of defendant No.1.
7. 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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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.
8. 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 self-
acquired property of defendant No.1 and as a result the
plaintiffs and other defendants have no right over the said
property.
9. 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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10. 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
