JUDGMENT

Anil R. Dave, J. —

1. Leave granted.

2. Being aggrieved by the common Judgment delivered by the High Court of Karnataka at Bangalore on 6th December, 2007 in RFA No. 1067/2006 and RFA No. 1068/2006, these appeals have been filed by the original plaintiff and defendant no.3.

3. For the sake of convenience, the parties to the litigation have been referred to as arrayed before the trial court.

4. The plaintiff (appellant No. 1 herein) is a sister of defendant no.4 who filed a suit claiming her right to the extent of 1/6th share in the properties described in Schedule-A to the plaint. The case of the plaintiff before the trial court was that her father, Appuraya was an absolute owner of the suit property and, therefore, the plaintiff had a right in the said property. According to her, after the death of her father Appuraya, defendant No.4, brother of the plaintiff was in occupation of the suit property but as the suit property was an absolute property of her father, she too had a share in the property. Moreover, defendant no.4 had also executed a writing to the effect that he would give 1/6th share in the suit property to the plaintiff. Inspite of the above fact, as no part of the suit property was given to the plaintiff, the plaintiff was constrained to file O.S. No.92/1995 in the Court of Additional Civil Judge (Sr. Div.), Udupi, claiming her right in the suit property.

5. After considering the evidence led before the trial court, the trial court decreed the suit holding that the plaintiff was entitled to 1/18th share in the suit property.

6. Being aggrieved by the judgment delivered by the trial court, the plaintiff; and defendant nos. 1 and 3 filed RFA No. 1067 of 2006 whereas defendant no. 4 filed RFA No. 1068 of 2006 in the High Court of Karnataka. The High Court heard both the appeals together and by the impugned common judgment, the High Court dismissed RFA No. 1067/2006 filed by the plaintiff and allowed RFA No. 1068/2006 filed by the 4th defendant.

7. For coming to the aforesaid conclusion, the High Court had considered the fact that by virtue of the order passed by the Land Tribunal, defendant no. 4 was declared to be a tenant in respect of the suit property. The order passed by the Tribunal, whereby occupancy right in respect of the suit property had been granted to defendant no. 4 had never been challenged by the plaintiff or by any other party and, therefore, the occupancy right in favour of defendant no.4 had become final. In view of the said fact, the High Court came to the conclusion that defendant no. 4 was having occupancy right in respect of the land in question and, therefore, the plaintiff, sister of defendant no. 4 had no right of whatsoever type in suit property.

8. The High Court brushed aside the documents whereby defendant no. 4 had agreed to give 1/6th share in the suit property to the plaintiff because according to the High Court, by virtue of the said assurance, the plaintiff would not get any share in the suit property. The plaintiff had asserted her right in the property because it was her case that the property belonged to her father and, therefore, she had 1/6th right in the suit property.

9. The High Court also came to the conclusion that the plaintiff had failed to establish that the suit property was an absolute property of her father and in absence of any evidence to that effect, the occupancy right given in favour of defendant no. 4 by the Land Tribunal would prevail. Therefore, the High Court had come to the conclusion that the Trial Court was not right when it decreed the suit and granted 1/18th right in the suit property to the plaintiff.

10. We heard the learned counsel appearing for the parties.

11. Learned counsel appearing for the appellant/original plaintiff submitted that the Land Tribunal ought not to have recognised defendant no.4 as a tenant in respect of the land in question as the land was not agricultural land as there was a building and shops on the land and so the