- 1 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 57 OF 2020 (PAR) BETWEEN: 1. SRI. SHIVAJI SHETTY S/O. LATE BABU SHETTY, AGED ABOUT 64 YEARS, R/AT HOTEL SRI DEVI BAR AND RESTORAUNT, (SINDHURATHNA) S.G. BHARVE MARG, KURLA NEHRU NAGAR (EAST), MUMBAI - 400 024. 2. SMT. BABU P SHETTY D/O. LATE BABU SHETTY, W/O. PADMANABHA SHETTY, AGED ABOUT 63 YEARS, R/AT PARK WEST-4, R. NO. 404, IV FLOOR, RAHEJA ESTATE, KULUPWADI, NEAR NATIONAL PARK, BORIVALI (EAST), MUMBAI - 400 016. 3. SMT. SOWMYALATHA ADAPA D/O. PADMANABHA SHETTY, W/O. DAMODAR ADAPA, AGED ABOUT 45 YEARS, R/AT SARVAMANGALA NIVAS, ADUR VILLAGE AND POST, MANGALURU - 575 009. 4. SRI. PADMANABHA SHETTY S/O. ANANTHA SHETTY, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 AGED ABOUT 73 YEARS, R/AT SARVAMANGALA NIVAS, ADUR VILLAGE AND POST, MANGALURU-575 009. …APPELLANTS (BY SRI. SANATHKUMAR SHETTY K, ADVOCATE) AND: 1. NALINAKSHI R.SHETTY D/O. LATE SANJEEVA SHETTY, W/O. RAVINDRA SHETTY, AGED ABOUT 53 YEARS, R/AT MOODUKEREGUTHU, KANDAVARA VILLAGE AND POST, MANGALURU TALUK, D.K. DISTRICT - 575 010. 2. SOUMYA SHETTY D/O. SANJEEVA SHETTY, AGED ABOUT 44 YEARS, R/AT SALAKEDA KODI HOUSE, MOODUSHEDDI VILLAGE AND POST, MANGALURU TALUK - 575 011. 3. LAKSHMINARAYANA S/O. LATE SANJEEVA SHETTY, AGED ABOUT 41 YEARS, R/AT SALAKEDA KODI HOUSE, MOODUSHEDDI VILLAGE AND POST, MANGALURU TALUK - 575 011. 4. PREMA SHETTY W/O. LATE SUDHAMA SHETTY, AGED ABOUT 69 YEARS, 5. MRS. SNEHALATHA V. SHETTY W/O. VIVEK SHETTY, D/O. LATE SUDHAMA SHETTY, AGED ABOUT 46 YEARS, - 3 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 6. MR. JITHIN SUDHAMA SHETTY S/O. LATE SUDHAMA SHETTY, AGED ABOUT 44 YEARS, THE RESPONDENTS 4 TO 6 ARE R/AT VISHAL TOWERS, B WING, R. NO.8, 4TH FLOOR, KAMGAR NAGAR, KURLA (E), MUMBAI - 400 024. …RESPONDENTS (RESPONDNTS ARE SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SEC.100 R/W RULE 2 OF ORDER XLI OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 05.07.2019 PASSED IN RA NO 29/2012 ON THE FILE OF THE II ADDL.DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.11.2011 PASSED IN OS NO 152/2007 ON THE FILE OF THE 1ST ADDL. SENIOR CIVIL JUDGE AND CJM MANGALORE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Sanathkumar Shetty K., learned counsel for the appellants. Respondents are served and unrepresented. 2. Present appeal is filed by plaintiff Nos.2 to 5 challenging the judgment of the First Appellate Court reversing the decree of the suit filed for partition in RA - 4 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 No.29/2012 in respect of following immovable properties in O.S.No.152/2007 (hereinafter referred to as suit property). SCHEDULE B Immovable property situated in Moodushedde village of Mangalore Taluk, D.K.District comprised in: 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: 3.1. A suit for separate possession in respect of the suit property came to be filed by five plaintiffs. Plaintiff No.1 having died, his legal representatives did not join the present appellants in filling the present appeal. Therefore, Sy.No. Extent Assessment Remarks Acres Cents Rs. Rs. 45/4(45/4P3) as per RTC 1 16 8 08 45/5 0 53 1 38 45/6 0 18 1 78 45/1 0 94 7 42 45/2 0 88 5 66 82/1B 3 79 1 52 7 48 25 84 Item No.1 to 6 of B schedule properties are the occupancy holding granted as LRT No.5000/- 77-78 and as indicated in the occupancy patta dated 22.06.1994. - 5 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 they have been made as respondent Nos.4 to 6 in this appeal. 3.2. Plaintiffs contended that plaintiffs and defendants are related to each other and suit ‘B’ schedule property originally belonged to Babu Shetty, common ancestor. Upon his death, property devolved to his legal representatives including the wife - Saraswathi Shetty who is no more and Sanjeeva Shetty who is the father of defendant Nos.1 to 3 and plaintiffs No.1 to 3 and Late Gulabi Shetty, mother of plaintiff No.4 and wife of plaintiff No.5. 3.3. When the Land Reforms Act came into force, Sanjeeva Shetty who was one of the sons of Babu Shetty, filed Form No.7 before the Land Tribunal against the owner of ‘B’ schedule property and land Tribunal registered Form No.7 in LRT No.5000/77-78 and after due enquiry, granted occupancy rights in the name of Sanjeeva Shetty. - 6 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 4. Pursuant to the said order dated 24.05.1979, Form No.10 came to be issued in the name of Sanjeeva Shetty dated 22.06.1994. 5. It is further contended by the plaintiffs that when Sanjeeva Shetty filed the application in Form No.7, in the column ‘other particulars’, Sanjeeva Shetty has mentioned that the land was being cultivated as ‘genidars’ from the period of their ancestors. Thus, plaintiffs contended that though the occupancy rights were granted in favour of Sanjeeva Shetty, it should be construed that the occupancy rights are granted in favour of the joint family members. Therefore, plaintiffs also have got share in the ‘B’ schedule property. 6. Pursuant to the suit summons, defendants appeared and filed written statement denying the contentions urged on behalf of the plaintiffs. - 7 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 7. Admittedly, by the time suit came to be filed, Sanjeeva Shetty was no more and his legal representatives contested the suit. 8. Learned Trial Judge after raising necessary issues, recorded the oral and documentary evidence on record and decreed the suit of the plaintiffs inter alia held in paragraph Nos.20 and 21 as under: “20. The learned Advocate appearing for the plaintiffs relied on the rulings reported in 1992(2) KARNATAKA LAW JOURNAL 307 (FB) (BOODA POOJARY -VS-SMT. THOMA POOJARTHI AND OTHERS) and 2000(5) KARNATAKA LAW JOURNAL 334 (NARAYANA AND OTHERS -VS- SADASHIVA AND OTHERS). I have gone through these rulings. From this it is clear that the Civil Court has got jurisdiction to decide the grant of occupancy right on the basis of the tenancy of joint family right or individual right. 21. The learned Advocate appearing for the plaintiffs further relied on the rulings reported in 2004(1) KCCR 585 (SANKAMMA (DECEASED) BY L.Rs. -VS- SANGAPPA MALLAPPA BENNUR AND ANOTHER), 1998(6) KARNATAKA LAW JOURNAL 591 (UMAVATHI AND OTHERS -VS- SUNANDA AND OTHERS), 2007(5) KARNATAKA LAW JOURNAL 413 (SC) (THIMMAPPA RAI -VS- RAMANNA RAI AND OTHERS) and AIR 1974 SC 471(NAGINDAS RAMDAS -VS- DALAPATRAM ICCHARAM ALIAS BRIJRAM AND OTHERS). The above said rulings are aptly applicable to the present case on hand. As stated above, the plaintiffs contended that the declaration filed by the said Sanjeeva Shetty for - 8 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 and on behalf of the joint family and the D.W-1 clearly admitted in his evidence that the plaint "B" schedule property was the chalageni property of the Babu Shetty and the said Sanjeeva Shetty filed declaration for and on behalf of the family. Hence the plaint schedule property will devolve on the legal heirs of Babu Shetty.” 9. Operative portion of the judgment of the Trial Court reads as under: “The suit of the plaintiffs is partly decreed. The plaintiffs No.1 to 3 are entitled for 1/5th share each in the plaint ‘B’ schedule property. The plaintiff No.4 and 5 are jointly entitled for 1/10th share each in the plaint ‘B’ schedule property. The defendants are liable to render true and correct accounts of income of the plaint ‘B’ schedule property and to pay the plaintiffs share to them.” 10. Being aggrieved by the same, defendants who are the legal representatives of Sanjeeva Shetty, filed an appeal before the First Appellate Court in RA No.29/2012. 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties - 9 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 and on reappreciation of the material evidence placed on record, ruled that since the occupancy rights are granted in the name of Sanjeeva Shetty and Form No.10 came to be issued in the name of Sanjeeva Shetty, the suit filed by the plaintiffs claiming that the suit property is the ancestral property, has resulted in miscarriage of justice and dismissed the suit of the plaintiffs by allowing the appeal. 12. Being further aggrieved by the judgment of the First Appellate Court, plaintiff Nos.2 to 5 has filed the present appeal whereas the legal representatives of plaintiff No.1 did not join other plaintiffs in filing the present appeal. 13. After hearing the arguments, a Coordinate Bench of this Court admitted the appeal on the following substantial question of law: “Whether the Appellate Court could have reversed the decree for partition, when admittedly occupancy rights were confrerred in respect of suit property by the Land Tribunal on the basis of Form No.7 filed by - 10 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 Sanjeev Shetty, wherein he had stated that possession was relatable to his ancestors?” 14. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that defendant No.3 who is examined as D.W.1 categorically admitted in his cross- examination that he is aware of the contents of declaration filed by his father Sanjeeva Shetty while filing Form No.7 and he is well acquainted with the narration made therein and they are true narration. 15. D.W.1 admits that in the declaration, Sanjeeva Shetty has filed the declaration as head of the family and there is also narration that for the last 100 years, the ancestors of the plaintiffs and defendants were cultivating the land as ‘genidars’. 16. He also brought to the notice of the Court that Sanjeeva Shetty has deposed before the Land Tribunal and D.W.1 is aware of the statement made by Sanjeeva - 11 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 Shetty before the Land Tribunal and his father has not stated any false suit before the Land Tribunal. 17. He would further contend that in the teeth of such admission made by Sanjeeva Sheety, learned Judge in the First Appellate Court wrongly applied the principles of law enunciated in the case of Sankamma (deceased) by LRs v. Sangappa Mallappa Bennur and Another reported in 2004 (1) KCCR 585 and wrongly allowed the appeal filed by the defendants and dismissed the suit of the plaintiffs resulting in miscarriage of justice and sought for allowing the appeal by answering the substantial question of law in their favour. 18. He would further contend that the consistent view of this Court in Catena of cases would make it clear that whenever a occupancy right in respect of the geni rights is granted in one person’s name and if the parties are able to establish before the Court that the person who has applied for the occupancy right was a member of the - 12 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 joint family, even though the occupancy right is granted in one person’s name, it would enure to the benefit of the joint family and thus, sought for allowing the appeal. 19. Respondents including the legal representatives of the deceased of plaintiff No.1 are served with the notice of the appeal and remained absent. 20. In the light of the arguments put forth on behalf of the appellants, this Court perused the material on record meticulously. 21. Admittedly, suit schedule ‘B’ property was being cultivated by the ancestors of the plaintiffs and defendants from the time immemorial. 22. When the Land Reforms Act came into force, as required, Sanjeeva Shetty being the eldest member in the family as on the date of filing of Form No.7, filed application for and on behalf of the joint family for grant of occupancy rights. Ex.P.1 is the Form No.7 which has been filed before the land tribunal. - 13 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 23. In one of the columns in Ex.P.1, ‘other particulars’, Sanjeeva Sheety has stated that the property was being cultivated by his ancestors for more than 100 years. 24. D.W.1 who is defendant No.3 categorically admits that the contents entered by Sanjeeva Shetty is true and correct and he also admits in his cross- examination that the statement given by his father before the land tribunal vide Ex.P.2 is true and correct and his father has not stated any false facts. 25. Thus, what is to be construed from the principles of law enunciated in the Catena of judgments is the occupancy rights granted in favour of one of the members of the joint family would enure to the benefit of the joint family, if at an undisputed point of time, it is the joint family which was cultivating the land and one of the members of the joint family have applied for grant of occupancy rights. - 14 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 26. Learned Trial Judge while considering the said contentions of the plaintiffs, took into consideration the legal principles enunciated in the Catena of judgments as referred to paragraph Nos.20 and 21 of the Trial Court judgment. 27. Learned Trial Judge also took into consideration the judgment of this Court in the case of Gulabi and Others v. Sanjeeva T., in RFA No.346/2002 dated 15.10.2009 and distinguished the same insofar as the factual aspects of the case on hand in holding that the plaintiffs are also entitled for share in the suit property and decreed the suit. 28. However, the First Appellate Court did not consider the Catena of judgments referred to by the Trial Court and only on the basis of the decision rendered by this Court in the case of Sankamma (deceased) by LRs, referred to supra, dismissed the suit of the plaintiffs which is per se incorrect especially when the suit ‘B’ schedule - 15 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 property was being cultivated by the ancestors of plaintiffs and defendants for a period of more than 100 years as admitted by D.W.1. 29. Therefore, the judgment of the First Appellate Court needs to be set aside and consequently, judgment of the Trial Court needs to be restored by answering the substantial question of law referred to supra in favour of the appellants. 30. Hence, the following: ORDER i. Appeal is allowed. ii. Judgment of the First Appellate Court passed in RA No.29/2012 dated 05.07.2019 on the file of II Additional District and Sessions Judge, Mangalore, Dakshina Kannada District is hereby set aside. - 16 - HC-KAR NC: 2025:KHC:39293 RSA No. 57 of 2020 iii. Consequently, judgment of the Trial Court in O.S.No.152/2007 dated 19.11.2011 on the file of Ist Additional Senior Civil Judge, Mangalore is restored. iv. No order as to costs. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 67 CT: BHK