Smt. Devaki v. Sri Sadashiva Kottary

ORDER,DATED,01.06.2022., , , NC:(2026:KHC:19181( RSA(No.(265(of(2015( ( , ,,HC-KAR( ( (

3., SRI.,THIMMAPPA,KOTTARY, AGED,ABOUT,51,YEARS., ,

4., SRI.,VISHWANATH,KOTTARY, AGED,ABOUT,48,YEARS., ,

5., SRI.,KAMALAKSHA,KOTTARY, AGED,ABOUT,46,YEARS., ,

6., SRI.,SHANKARA,KOTTARY, AGED,ABOUT,43,YEARS., ,

7., SMT.,JAYANTHI,KOTTARY, AGED,ABOUT,41,YEARS., ,

8., SMT.,BHARATHI,KOTTARY, AGED,ABOUT,39,YEARS., ,

9., SMT.,CHANDRAVATHI,KOTTARY, AGED,ABOUT,36,YEARS, , RESPONDENT,NO.,2,IS,THE,WIFE,AND,NO.,3,TO,9, ARE,THE,CHILDREN,OF,LATE,GOPAL,KOTTARY, ALL,ARE,R/AT,BELMA,NADUMANE, KONAJE,VILLAGE, MANGALORE,TALUK-575,008., ,

10., SMT.,LEELAVATHI, AGE:MAJOR, W/O,LATE,PADMANABHA,KOTARY, ,

11., SRI.,MOHANDAS, S/O,LATE,PADMANABHA,KOTARY, AGE:,MAJOR, ,

12., KUM.,MALATHI, D/O,LATE,PADMANABHA,KOTARY, AGE:,MAJOR, , NC:(2026:KHC:19181( RSA(No.(265(of(2015( ( , ,,HC-KAR( ( (

13., KUM.,SUNITHA, D/O,LATE,PADMANABHA,KOTARY, AGE:,MAJOR, ,

14., SRI.,SHANKARA, S/O,LATE,PADMANABHA,, AGE:,MAJOR,, , RESPONDENTS,NO.,10,TO,14,ARE, R/AT,K,C,ROAD,, KALLADKA,POST,, BANTWAL,TALUK,,, DAKSHINA,KANNADA,-574,218., …RESPONDENTS, , (BY,SRI.,AJAY,PRABHU,M.,,ADVOCATE,FOR,, ,,,,,,R3,TO,R9,&,R1(A,&,B), ,,,,,,R3,TO,R9,ARE,LRS,OF,R2,V/O,DATED,01.06.2022;, ,,,,,,NOTICE,TO,R11-H/S,,V/O,DATED,04.08.2025;, ,,,,,,R10,,R12,,R13,&,R14,ARE,SERVED,AND,UNREPRESENTED), , , THIS,RSA,IS,FILED,UNDER,SEC.100,OF,CPC.,,AGAINST, THE, JUDGMENT, AND, DECREE, DATED, 21.11.2014, PASSED, IN, R.A.NO.151/2007,ON,THE,FILE,OF,THE,I,ADDL.,SENIOR,CIVIL, JUDGE,, MANGALURU,, DISMISSING, THE, APPEAL, AND, CONFIRMING,THE,JUDGMENT,AND,DECREE,DATED,25.08.2007, PASSED, IN, O.S.NO.198/2005, ON, THE, FILE, OF, THE, II, ADDL., CIVIL,JUDGE,(JR.DN),MANGALURU,,D.K.,, , THIS,APPEAL,,COMING,ON,FOR,ADMISSION,,THIS,DAY,, JUDGMENT,WAS,DELIVERED,THEREIN,AS,UNDER:, CORAM:, HON'BLE,MR.,JUSTICE,E.S.INDIRESH, , , ORAL(JUDGMENT( (

1., This,appeal,is,preferred,by,the,defendant,Nos.,1,to,11,, assailing, the, Judgment, and, Decree,dated, 21.11.2014,in, R.A.,

No.151/2007 on the file of the I Additional Senior Civil Judge, Mangaluru, dismissing the appeal and confirming the Judgment and Decree dated 25.08.2007 in O.S. No.198/2005 on the file of II Additional Civil Judge (Jr. Dn.), Mangaluru, decreeing the suit of the plaintiffs.

¶2For the sake of convenience, parties are referred with reference to their rank before the Trial Court.

¶3It is the case of the plaintiffs that the original propositus Subbayya Kottari had five children namely Sadashiva (P1), Devaki (D1), Radha (mother of D2 to D11), Gopala, (husband of P2 and father of P3 to P9) and Padmanabha (husband of D12 and father of D13 to D16). It is further averred in the plaint that the father of the plaintiff No.1-late Subbayya Kottari was cultivating the suit schedule properties, and after the death of Subbayya Kottari, the elder daughter of the Subbayya Kottari-Radha had filed declaration in Form No. 7 before the Land Reforms Tribunal, Mangaluru, seeking occupancy right in respect of the scheduled properties. It is also stated that, since the scheduled properties are being cultivated by the father of plaintiff No.1-Subbayya Kottari and therefore, the plaintiffs are

entitled for share in the suit schedule properties after the demise of their father-Subbayya Kottari and accordingly, the plaintiffs have preferred suit in O.S.No.198/2005 before the Trial Court, seeking relief of partition and separate possession in respect of the suit schedule properties.

¶4After service of notice, defendants entered appearance. Defendant No.4 has filed the written statement, denying the averments made in the plaint. It is the specific case of defendant No.4 that, the late Subbayya Kottari was not cultivating the land in question and Smt. Radha Kottari was cultivating the land in question and as such the Land Tribunal has conferred occupancy right in favour of Smt. Radha Kottari and she was in continuous possession of the land in question and accordingly, the suit schedule properties are the self-acquired properties of late Radha Kottari. It is further pleaded that, after the demise of Radha Kottari, the defendant Nos.2 to 11 are entitled for the suit schedule properties as her legal heirs and accordingly sought for dismissal of the suit. The defendant Nos. 1 to 3, 5 to 12 and 14 to 16 have adopted the written statement filed by the defendant No.4. Defendant

No.13 though served notice through paper publication, remained absent and was placed ex-parte. The trial Court after considering the material on record, based on the pleadings has formulated the issues for its consideration.

¶5In order to establish their case, the plaintiffs have got examined plaintiff No.1 as P.W.1 and got marked 24 documents as Exhibits P1 to P24. Defendants have got examined defendant No.1 as D.W.1 and produced 56 documents and same were marked as Exhibits D1 to D56. The Trial Court after considering the material on record, by its Judgment and Decree dated 25.08.2007, decreed the suit holding that the children of late Subbayya Kottari, are entitled for one fifth share each in the suit scheduled properties. Feeling aggrieved by the Judgment and Decree passed by the Trial Court, the defendants have preferred R.A.No.151/2007 before the First Appellate Court and the said appeal was resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its Judgment and Decree dated 21.11.2014, dismissed the Appeal and as such, confirmed the Judgment and Decree in O.S.No.198/2005. Feeling aggrieved by the same, the

contesting defendants have preferred this Regular Second Appeal.

¶6I have heard Sri.Suyog Herale E., learned counsel for the appellants and Sri. Ajay Prabhu M., learned counsel appearing for the respondent Nos.1(a &b), and 3 to 9.

¶7It is contended by Sri.Suyog Herale E., learned counsel appearing for the appellants, that the plaintiffs have admitted in their plaint itself that late Radha Kottari, elder daughter of late Subbayya Kottari was cultivating the land in question and as such she had filed Form No.7 before the Land Tribunal on behalf of entire family of late Subbayya Kottari and after the death of Subbayya Kottari, Radha Kottari was enjoying the suit schedule properties along with her children i.e. defendant Nos.2 to 11 and therefore, the finding recorded by both the Courts below requires to be interfered with in this Appeal. It is also argued by the learned counsel appearing for the appellants by placing reliance on the Judgment of this Court, in the case of NIMBAVVA AND OTHERS Vs. CHANNAVEERAYYA AND OTHERS reported in (2015) 1 KCCR 205 and in the case of VENKATARAYAPPA AND OTHERS Vs. RAMAKKA

NARAYANAPPA AND OTHERS reported in 2017 SCC OnLine Kar 7116, with reference to the definition of 'family' Under Section 2(12) of the Karnataka Land Reform Act, 1961, that the said provision excludes married daughters and therefore, he contended that the said aspect of the matter has not been considered by both the Courts below and accordingly sought for interference of the Court.

¶8Sri. Ajay Prabhu M., learned counsel appearing for the respondent Nos.3 to 9 sought to justify the impugned Judgment and Decree passed by the Trial Court and further submitted that not only Radha Kottari, but all the children of the late Subbayya Kottari had filed an application in Form No.7 and also the names of the children of the late Subbayya Kottari are mentioned in the order passed by the Land Tribunal as to conferring occupancy right and therefore, it is contended that since the properties in question stand in the name of late Subbayya Kottari (father of the plaintiff No.1) and therefore, sought for dismissal of the present Appeal.

¶9In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined

the finding recorded by both the Court below and perused the records.

¶10The core question to be answered in this Appeal is as to whether the suit schedule properties are the self-acquired properties of Radha Kottari on account of the conferring the occupancy right by the Land Tribunal?

¶11In this regard, it is relevant to extract the relationship between the parties through the genealogy tree which is as below: Devaki

(D1) Radha (deceased) Gopala (deceased) Padmanabha (deceased) Sadashiva (P-1)

¶1Indira (D-2)

¶2Mohini (D-3)

¶3Rajiva (D-4)

¶4Ramanna(D-5)

¶5Sugandi (D-6)

¶6Usha (D-7)

¶7Geetha (D-8)

¶8Dakshayani(D-9)

¶9Rajeshwari (D-10)

¶10Sunil (D-11) Subbayya Kottari

¶1Lakshmi (P-2)

¶2Thimmappa (P-3)

¶3Vishwanath (P-4)

¶4Kamalaksha(P-5)

¶5Shankara (P-6)

¶6Jayanthi (P-7)

¶7Bharati (P-8)

¶8Chandravathi (P-9)

¶1Leelavathi (D-12)

¶2Mohandas (D-13)

¶3Malathi (D-14)

¶4Sunitha (D-15)

¶5Shankara (D-16)

¶12Perusal of the genealogy would indicate that late Subbaiah Kottari had five children, namely Devaki (D1), Radha (mother of the D2 to D11), Gopala (husband of P2 and father of P3 to P9), Padmanabha, (husband of D12 and father of D13 to D16) and Sadashiva (P1).

¶13In the light of the submissions made by the learned counsel appearing for the parties, perusal of the RTC Extracts produced by the plaintiffs at Exhibit P11 to Exhibit P16, wherein the name of the late Subbayya Kottari-father of the plaintiff No.1 has been shown in the cultivators' column. It is also to be noted that though the occupancy right in respect of suit schedule properties was conferred to Radha Kottari, being the eldest daughter of late Subbayya Kottari, however, the perusal of the record would indicate that all the children of late Subbayya Kottari had filed application seeking occupancy right in respect of the subject matter of the suit schedule properties. In that view of the matter, since the suit schedule properties were being cultivated by the father of the plaintiff No.1 and defendant No.1 prior to 01.03.1974 and continued thereafter, and as such, following the declaration of law by this Court in

the case of VERUPEGOWDA AND ANOTHER Vs. SHANKAREGOWDA AND ANOTHER reported in ILR 2009, KAR 1867, wherein it is held that, when the occupancy right is ordered to be registered in the name of a member of the family whose name appeared in the record of rights or in any other public or revenue record, it would enure to the benefit of the entire family. The moment occupancy right is registered or granted, such property becomes partible. It is only the vesting of the land under the Act, which can be ordered to be granted. The land in respect of which occupancy rights are registered/granted, the same would be with reference to the date of vesting in the State Government though the orders are passed by the Tribunal effectuating the conferment of occupancy rights.

¶14In that view of the matter, since the land in question is being cultivated by the father of the plaintiff No.1 and defendant No.1, and therefore, the finding recorded by both the Courts below holding that the suit schedule properties have to be partitioned and all the five children of late Subbayya Kottari are entitled for one fifth share each in the suit schedule

properties, cannot be found fault with. Accordingly, taking into account the material and record and the concurrent finding recorded by both the Courts below, I am of the view that no interference is called for in this Appeal and the Judgments referred to by the learned counsel appearing for the appellants cannot be made applicable to the facts of this case, since all the children of the late Subbayya Kottari had filed application seeking occupancy rights.

¶15In that view of the matter, the appellants have not made out a case for formulating a substantial question of law as required under Section 100 of CPC. Accordingly the Regular Second Appeal is dismissed. SD/- (E.S.INDIRESH) JUDGE

sac List No.: 2 Sl No.: 25

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 265 OF 2015 (PAR) BETWEEN: 1. SMT. DEVAKI W/O LATE BABU KOTTARI AGED ABOUT 90 YEARS R/AT KAMBLA PADAVU HOUSE PAJIR VILLAGE MANGALURU TALUK SINCE DEAD, REPRESENTED BY HER LRS. 1(a) A. VARIJA W/O SHEKAR KOTARY GANESH KRIPA, VASANTH NAGAR KAPITHAMIYA, MAROLI, KULASHRKARA MANGALURU (D.K). 1(b) RATHNA W/O BHOJA KOTTARY SOMAPPA KOTTARY COMPOUND ATTAVARA, MELINA MOGARU MANGALURU (D.K). 1(c) GIRIJA KOTTARY W/O KRISHNA KOTTARY PARTHOSH DOOR NO.1-68/5 KULUR KAVOOR ROAD MANGALURU (D.K). by CHAYA S A Location: HIGH COURT OF KARNATAKA NC:(2026:KHC:19181( RSA(No.(265(of(2015( ( , ,,HC-KAR( ( ( 1(d), HEMAVATHI, W/O,RAMESH,KOTTARY, SHESHAGIRI,NIVAS, NAGARAKATTE,ROAD, MOODABISRE,POST, MOODABIDRI,(D.K)., , 1(e), DEVADAS,K., S/O,BABU,KOTTARY, KAMBLAPADAV,HOUSE, KAVOOR,POST, MANGALURU,TALUK,(D.K)., , 2., SMT.,INDIRA,KOTTARY, AGED,ABOUT,58,YEARS., , 3., SMT.,MOHINI,KOTTARY, AGED,ABOUT,54,YEARS., , 4., SRI.,RAJEEVA,KOTTARY, AGED,ABOUT,52,YEARS., , 5., SRI.,RAMANNA,KOTTARY, AGED,ABOUT,50,YEARS., , 6., SMT.,SUGANDHI,KOTTAY, AGED,ABOUT,48,YEARS., , 7., SMT.,USHA,KOTTARY, AGED,ABOUT,45,YEARS., 8., GEETHA,KOTTARY, AGED,ABOUT,40,YEARS., , 9., DAKSHAYINI,KOTTARY, AGED,ABOUT,38,YEARS., , 10., RAJESHWARI,KOTTARY, AGED,ABOUT,35,YEARS., , NC:(2026:KHC:19181( RSA(No.(265(of(2015( ( , ,,HC-KAR( ( ( 11., SRI.,SUNIL,KOTTARY, AGED,ABOUT,32,YEARS., , (APPELLANTS,NO.2,TO,11,ARE, THE,CHILDREN,OF,, LATE,RADHA,KOTTARY, ALL,ARE,R/AT,NADUMANE, BELMA,KONAJE,VILLAGE, MANGALURU,TALUK-575,008., …APPELLANTS, , (BY,SRI.,SUYOG,HERALE,E.,,ADVOCATE), ( AND:( ( 1., SRI.,SADASHIVA,KOTTARY, S/O,LATE,SUBBAYYA,KOTTARY, AGED,ABOUT,70,YEARS, R/AT,PAKKALAPADE,HOUSE, MERAMAJALU,POST, BANTWAL,TALUK,D.K, SINCE,DEAD,BY,HIS,LRS., , 1(a), SMT.,GIRIJA,KOTTARY, W/O,SADASHIVA,KOTTARY, AGED,:,MAJOR, ADYAR,BANATHADI,,ADYAR,POST, MANGALURU,-,575,009,(D.K), , 1(b), RAJESH,KOTTARY, S/O,SADASHIVA,KOTTARY, ADYAR,BANATHADI,,ADYAR,POST, MANGALURU,-,575,009,(D.K), , 2., LAXMI, DEAD,BY,LRS,R3,TO,R9,AS,PER,,