- 1 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 122 OF 2020 (PAR) C/W REGULAR SECOND APPEAL NO. 551 OF 2025 IN RSA No. 122/2020 BETWEEN: MR. CHANDRASHEKAR SHETTY S/O LATE BABU SHETTY, AGED ABOUT 57 YEARS, R/AT AJEKALA HOUSE, AMTADY VILLAGE, P.O.KINNIBETTU BANTWAL TALUK, D.K.DISTRICT-574 219 …APPELLANT (BY SRI. K RAVISHANKAR, ADVOCATE) AND: 1. MR. BABU SHETTY AGED ABOUT 67 YEARS, S/O LATE BOGGU SHETTY, 2. SMT. RAMAVATHI SHEDTHI AGED 62 YEARS, W/O BUBU SHETTY BOTH ARE R/O SVS COLLEGE ROAD, BANTWAL KASABA VILLAGE, BANTWAL TALUK, D.K.DISTRICT-574 219 3. MRS.CHADRAVATHI RAI AGED 67 YEARS, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 W/O ANANDA RAI, R/O GURUNIVAS, R.K.ADYAR, MANGAURU, D.K.DISTRICT-575 001 4. MRS.INDIRA J RAI AGED ABOUT 65 YEARS W/O JAGANNATH RAI, R/O SUTHARABETTU, PUTTUR TALUK, P.O.KASABA, D.K.DISTRICT-574 201 5. MRS.PUSHPA AGED 63 YEARS, W/O SURESH SHETTY, R/O YEYYADI, YEYYADI POST, MANGALURU TALUK, D.K.DISTRICT-575 008 6. MRS PREMA Y SHETY AGED 54 YEARS, W/O YOGESH SHETTY, 7. MR.RAVINDRA SHETTY AGED 51 YEARS, S/O BABY SHETTY, 8. KUMARI USHA D/O BABU SHETTY, AGED 49 YEARS, RESPONDENT Nos.6 TO 8 ARE R/O AJEKALA, BANTWAL P.O. BANTWAL TALUK, D.K.DISTRICT-574 211 …RESPONDENTS (BY SRI. PRASANNA V R., ADVOCATE FOR C/R1 R2, R4, R6, R8 ARE SERVED AS PER POSTAL TRACK REPORT R3 & R7 ARE SERVED) V/O DATED 28.03.2025 NOTICE TO R5 IS D/W) THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.10.2019 PASSED IN - 3 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 RA NO 75/2013 ON THE FILE OF THE VI ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.08.2013 PASSED IN OS NO 7/2010 (OLD OS NO 87/2000) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K. IN RSA NO. 551/2025 BETWEEN: MR. CHANDRASHEKAR SHETTY S/O LATE BABU SHETTY AGED ABOUT 62 YEARS, R/AT AJEKALA HOUSE, AMTADY VILLAGE, P O KUNNIBETTU, BANTWAL TALUK D K DISTRICT 574219 ...APPELLANT (BY SRI. K RAVISHANKAR.,ADVOCATE) AND: 1. SMT SUMATHI SHETTY W/O LATE THIMMAPPA SHETTY AGED ABOUT 74 YEARS 2. SOWMYA SHETTY W/O KRISHNA RAJA SHETTY AGED ABOUT 48 YEARS 3. SACHIN SHETTY S/O LATE THIMMAPPA SHETTY AGED ABOUT 40 YEARS 4. SAMPATH SHETTY S/O LATE THIMMAPPA SHETTY AGED ABOUT 37 YEARS - 4 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 5. MRS SEETHA W/O SANJEEVA SHETTY AGED ABOUT 83 YEARS 6. KRISHNAPPA SHETTY S/O LATE BABU SHETTY AGED ABOUT 76 YEARS 7. MRS JAYANTHI W/O RAGURAMA SHETTY AGED ABOUT 76 YEARS 8. MISS LEELA D/O LATE BABU SHETTY AGED ABOUT 65 YEARS RESPONDENT Nos.1 TO 8 ARE R/A DENJOLI HOUSE, POST GARADADI, BELTHANGADY TALUK D K DISTRICT 574214 9. SAROJINI E. RAI W/O B.S. ESHWARA RAI AGED ABOUT 65 YEARS, R/A THALETHMANE POST, MANGALORE ROAD, MADIKERI COORG DISTRICT – 571201 10. B. DEVADAS SHETTY S/O LATE RUKMAYYA SHETTY AGED ABOUT 62 YEARS, R/A S.V.S. COLLEGE ROAD, BANTWAL KASBA VILLAGE, BANTWAL TALUKM, D.K DISTRICT - 574 211 11. JAYANTHI N. SHETTY W/O NARAYANA SHETTY - 5 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 AGED ABOUT 57 YEARS, R/A 4, SIDDIVINAYAK BHAVAN, 1ST FLOOR, KISAN NAGAR NO.2, WAGLE ESTATE, ROAD NO. 16, THANE MUMBAI-400 604, 12. BABU SHETTY S/O LATE BOGGU SHETTY, AGED ABOUT 73 YEARS, R/A THUMBE, S.VS. COLLEGE ROAD. BANTWAL TALUK, D. K DISTRICT-574 211 13. GOPALA SHETTY, MAJOR S/O LATE SHIVANNA SHETTY AND SMT. TUNGAMMA R/A KALYANA (WEST), MUMBAI. 421 301 AND ALSO R/AT ROOM NO.13/ C1., NEAR BIRLA COLLEGE, NAKA, MURBAD ROAD, THANE DISTRICT, KALYANA MUMBAI 421301. 14. CHANDRASHEKARA SHETTY, MAJOR S/O LATE SHIVANNA SHETTY AND SMT. TUNGAMMA, R/A VIDYA VIHAR, GHATKOPER (EAST) MUMBAI 421 301 AND ALSO R/ AT ROOM NO.13/C1, NEAR BIRLA COLLEGE, NAKA, MURBAD ROAD, THANE DISTRICT, KALYANA MUMBAI 421301. 15. SMT. SAROJINI, MAJOR W/O LATE GANAPA SHETTY, R/A S.V.S. COLLEGE ROAD, THUMBE, BANTWAL -574 211, 16. SATHISH SHETTY, MAJOR, S/O LATE GANAPA SHETTY, - 6 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 ILIA S.V.S. COLLEGE ROAD, BANTWAL-574 211 17. YASHODA, MAJOR D/O LATE GANAPA SHETTY, R/AT S.V.S. COLLEGE ROAD, THUMBE, BANTWAL D.K DISTRICT -574 211. 18. VANAJAKSHI, MAJOR D/O LATE GANAPA SHETTY, R/AT S.V.S. COLLEGE ROAD, THUMBE, BANTWAL D.K DISTRICT-574 211 ...RESPONDENTS (BY SRI. V.R. PRASANNA, ADVOCATE FOR R12) THIS RSA IS FILED UNDER SEC.100 OF CPC.. AGAINST THE JUDGMENT AND DECREE DATED 14.10.2019 PASSED IN RA NO.72/2013 ON THE FILE OF VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.08.2013 PASSED IN OS NO.138/2006 (OLD OS NO.334/2002) ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal in RSA No.122/2020 is filed by the appellant challenging the judgment and decree - 7 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 dated 14.10.2019 passed in R.A.No.75/2013 on the file of the learned VI Additional District and Sessions Judge, D.K. Mangaluru and the judgment and decree dated 13.08.2013 passed in O.S.No.7/2010 (old No.87/2000) on the file of the learned Senior Civil Judge and JMFC, Bantwal, D.K. District, Mangaluru. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession and mesne profit. It is the case of the plaintiff that one Appanna Shetty was the original propositus. He had two sons, Boggu Shetty and Babu Shetty. Boggu Shetty had two children, i.e., defendant No.1 and Ramavathi Shedthi, defendant No.2. - 8 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 Babu Shetty had 8 children i.e., the plaintiff and defendants No.3 to 9. The parties are governed by the Mithakshara Law of Inheritance read with the Hindu Succession Act, 1956. The plaintiff’s father, Babu Shetty and defendant No.1 and 2’s father, Boggu Shetty are siblings. They were Chalageni tenants of plaint ‘A’ schedule properties and the Land Tribunal granted occupancy rights in the joint names of the plaintiff’s father and defendant No.1 in the proceedings. Babu Shetty died in 1984 leaving behind the plaintiff and defendants No.3 to 9. Hence, the plaintiff and defendants No.3 to 9 inherited his right over ‘A’ schedule properties. However, ‘B’ schedule property was purchased by defendant No.1 from the income of the joint ‘A’ schedule properties in the name of defendant No.2. The name of defendant No.2 was inserted to deprive the legitimate right of the plaintiff. No partition is effected between the plaintiff and defendants. The plaintiff demanded partition and separate possession, however, the defendants refused to effect a partition. - 9 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 Hence, a cause of action arose for the plaintiff to file a suit. Accordingly, prays to decree the suit. 4. The defendants filed a written statement denying the averments made in the plaint and contended that the plaintiff’s father executed a Will dated 22.09.1983 bequeathing the properties in favour of defendant No.1. Hence, he became the absolute owner by virtue of a Will dated 22.09.1983 and also denied the relationship between the parties to the suit. Hence, prays to dismiss the suit. 5. One Akkamma and others claiming to be the wife and children of Babu Shetty filed a suit in O.S.No.138/2006 against defendant No.1 and others regarding the same suit schedule properties and the same relief. In the said suit, defendant No.1 had raised a plea of Will dated 22.09.1983. 6. The trial Court, based on the pleadings of the parties, framed the relevant issues. - 10 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 7. The plaintiff, to substantiate his claim, examined himself as PW-1 and marked 23 documents as Ex.P.1 to Ex.P.23. In rebuttal, defendant No.1 was examined as DW-1, examined three witnesses as DW-2 to DW-4 and marked 38 documents as Ex.D.1 to Ex.D.38. 8. The trial Court after recording the evidence of the parties of both the sides, hearing the parties and on appreciating the verbal and documentary evidence, in O.S.No.7/2010 (old No.87/2000) and O.S.No.138/2006, dismissed the suits filed by the plaintiffs vide judgment and decree dated 13.08.2013 by separate judgments. The plaintiffs, in both the suits, aggrieved by the judgment and decree passed in O.S.No.7/2010 (old No.87/2000) and O.S.No.138/2006 (old No.334/2002), preferred the appeals in R.A.Nos.72/2013 and 75/2013 on the file of the VI Additional District and Sessions Judge, D.K.Mangaluru. 9. The first appellate Court, clubbed both the appeals, dismissed the appeals vide judgment and decree - 11 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 dated 14.10.2019 and also the findings recorded by the trial Court in O.S.No.7/2010 on issue No.1 to the effect that plaintiffs are not the legal heirs of Babu Shetty was set aside. The plaintiff in O.S.No.7/2010, aggrieved by the judgment and decree passed in R.A.No.75/2013 and O.S.No.7/2010, filed this Regular Second Appeal in RSA No.122/2020. The plaintiff in O.S.No.7/2010, preferred the Regular Second Appeal in RSA No.551/2025, challenging the judgment and decree passed in O.S.No.138/2006 and R.A.No.72/2013. 10. Heard the arguments of the learned counsel for the plaintiff. 11. Learned counsel for the plaintiff in O.S.No.7/2010 submits that admittedly, the suit schedule properties were granted by the Land Tribunal in favour of both i.e., the defendants father, Boggu Shetty and Babu Shetty. Babu Shetty had no right to bequeath the suit schedule properties in favour of defendant No.1 as there - 12 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 was a prohibition on transferring tenanted lands under Section 61 of the Karnataka Land Reforms Act, 1961. He also submits that the trial Court ought to have clubbed both suits and recorded common evidence. However, the trial Court has recorded the evidence separately and passed separate judgments. There is a conflict in the decisions. He also submits that the Courts below have committed an error in recording the findings that the defendant No.1 proved the execution of a Will. He submits that the Will is surrounded by suspicious circumstances and defendant No.1 failed to remove the suspicious circumstances and also submits that the propounder of the Will was not in a sound disposition of the mind. He was a paralytic patient. Without considering these aspects, the Courts below have committed an error in passing the impugned judgments, hence, on these grounds, he prays to allow the appeal. 12. He also submits that the plaintiff in O.S.No.57/2010 aggrieved by the judgments passed in - 13 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 O.S.No.138/2006 and R.A.No.72/2013, filed the second appeal in RSA No.551/2025 and accordingly, prays to allow the appeals. 13. Perused the records and considered the submissions of the learned counsel for the parties. 14. There is no dispute that Appanna Shetty had two sons namely, Boggu Shetty and Babu Shetty. Boggu Shetty and Babu Shetty were the Chalageni tenants of the ‘A’ schedule properties and the Land Tribunal granted occupancy rights in the name of plaintiff’s father and defendant No.1. Babu Shetty died in 1984, leaving behind the plaintiff and defendants No.3 to 9 as his legal heirs. ‘B’ schedule property was purchased by defendant No.1 from the income of the joint ‘A’ schedule properties in the name of defendant No.2. There is no partition effected between the plaintiff and the defendants. Defendant No.1 contended that plaintiff’s father i.e., Babu Shetty executed a Will dated 22.09.1983, bequeathing suit schedule - 14 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 properties in favour of defendant No.1. Further, based on the Will executed by Babu Shetty in favour of defendant No.1, he became the absolute owner of the suit schedule properties. The plaintiff has denied the execution of the Will. The burden of proving the Will is on defendant No.1. 15. Defendant No.1 examined himself as DW-1 and he reiterated the written statement averments, in the examination-in-chief and to prove the defence that Babu Shetty bequeathed the suit schedule properties by a Will, produced the original registered Will marked as Ex.D.26, which discloses that Boggu Shetty bequeathed the suit schedule properties in favour of defendant No.1. Based on the Will executed, the name of defendant No.1 was entered in the revenue records. The stepmother and stepbrothers and sisters of the plaintiff in O.S.No.7/2010, also filed a suit for partition and separate possession. Defendant No.1 has taken the same defence regarding the execution of a Will by Babu Shetty in favour of defendant No.1. - 15 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 16. Defendant No.1 has also examined DW-2 the scribe. Who has deposed that he drafted Ex.D.26 as per the instructions of the testator of the Will and after drafting the Will, he read over and explained the contents of the Will to the testator. The testator after having understood the contents of the Will affixed his thumb. Furthermore, defendant No.1 also examined one attesting witness, DW-3, who deposed that Babu Shetty executed a registered Will dated 22.09.1983 bequeathing the suit schedule properties in favour of defendant No.1 and he identified his signature on Ex.D.26 (marked in O.S.No.138/2006). None of the plaintiffs in either suits challenged the registered Will executed by Babu Shetty in favour of defendant No.1. 17. To prove the execution of a Will, the defendants have examined the attesting witness to Ex.D.26. Defendant No.1 has fulfilled the requirements of Section 68 of the Indian Evidence Act, 1872 and Section 63 of the - 16 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 Indian Succession Act, 1926. The main grievance of the plaintiff is that the Land Tribunal granted the suit lands and there was a prohibition Clause. The testator had no right to bequeath the suit schedule properties as per Section 61 of the Karnataka Land Reforms Act, 1961. 18. Section 61 of the Karnataka Land Reforms Act, 1961 provides restrictions on the transfer of land, which the tenant has become an occupant, which reads as under: 61. Restriction on transfer of land of which tenant has become occupant. _ (1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this Chapter shall, within [fifteen years] [from the date of the final order passed by the Tribunal under sub-section (4) or sub-section (5) or sub-section (5) or sub-section (5-A) of Section 48-A] be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder’s joint family. (2) Notwithstanding anything contained in sub-section (1), it shall be lawful for the occupant registered as such or his successor-in-title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, [a financial institution, a co-operative land development bank, a co-operative society] or a company as defined in section 3 of the Companies Act, 1956 in which not less than fifty one per cent of the paid-up share capital is held by the State Government or a Corporation owned or - 17 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 controlled by the Central Government or the State Government or both for development of land or improvement or agricultural practices; [or for raising educational loan to prosecute the higher studies of the children of such person] and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilized in the payment of such loan.] [Explanation: For the purpose of this sub-section, “Higher studies” means the further studies after Pre-university Examination or 12th standard Examination conducted by CBSE or ICSE or any Diploma courses.] (3) Any transfer or partition of land in contravention of sub-section (1) shall be invalid [and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77.] 19. A plain reading of the Section contemplates that Section applies only to the transfer made regarding the granted land through a registered sale deed, gift deed, exchange or lease or assignment, but there is no bar to bequeath the property by way of a Will by tenant in whose favour the occupancy right was granted by the Tribunal to any family member. A transfer of agricultural land with occupancy rights is permissible only in favour of one of the - 18 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 heirs who would be entitled to claim partition of the land and not others, having regard to the definition family or joint family. For a testamentary disposition of the land with occupancy right within the period of embargo, the recipient heir must be a member of the joint family as defined in the Act, who is entitled to claim such a right in the land occupancy right. This would be further clarified, since even the partition permitted under Section 61 of the Act is only among the holders of the joint family, that being so a Will would become valid only if the legatee/beneficiary establishes that he is the member of the joint family as defined under the Act. Admittedly, the propounder of the Will is a family member of the testator. 20. Admittedly, in the instant case, defendant No.1 is a family member of the testator. Further the trial Court has recorded a finding in O.S.No.138/2006 that defendant No.1 had proved the execution of a Will by Babu Shetty in favour of defendant No.1. The plaintiff in O.S.No.7/2010 knew about the filing of a suit by his step mother and - 19 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 siblings in O.S.No.138/2006. The plaintiff did not make any application to implead himself in O.S.No.138/2006. The issue involved in both the suits and the subject matter is one and the same. 21. The plaintiff had knowledge regarding the disposal of the suit in O.S.No.138/2006, regarding the Will dated 22.09.1983 set up by the defendant No.1 which was valid and binding on the plaintiffs in O.S.No.138/2006. The plaintiff in O.S.No.7/2010 did not challenge the judgment and decree passed in O.S.No.138/2006. The plaintiffs in O.S.No.138/2006 filed an appeal in R.A.No.72/2013. The first appellate Court dismissed the appeal vide the impugned judgment dated 14.10.2019 in R.A.Nos.72/2013 and 75/2013. The plaintiff i.e., Chandrashekar, did not challenge the judgment and decree passed in R.A.No.72/2013 till 07.04.2025. 22. This appeal in R.S.A.No.122/2020 was listed for admission and the matter was heard for some time and at - 20 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 the request of learned counsel for the plaintiff, the matter was adjourned. During the course of the argument, the Court has put a query to the plaintiff whether the plaintiff had challenged the finding recorded in O.S.No.138/2006. Learned counsel for the plaintiff submitted that the plaintiff did not challenge the judgment and decree passed in O.S.No.138/2006 and R.A.No.72/2013. Thereafter, sought a time. The matter was adjourned, at the request of learned counsel for the plaintiff in O.S.No.7/2010. Thereafter, the plaintiff in O.S.No.7/2010 filed a Regular Second Appeal in RSA No.551/2025. 23. Both the Courts below have categorically recorded a finding that defendant No.1 has proved the execution of Will dated 22.09.1983, by examining the attesting witness as DW-3 and scribe as DW-2. Further, the finding recorded in O.S.No.138/2006 has attained a finality as the plaintiffs in the said suit have not challenged the judgment and decree passed in O.S.No.138/2006 and the judgment and decree passed in R.A.No.72/2013. In a - 21 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 connected matter, the Courts below have already held that defendant No.1 has proved the execution of the Will. If this Court holds that defendant No.1 has failed to prove the execution of the Will, there will be a conflict in decision. As both parties, are claiming rights through Babu Shetty and a common interest is involved in both the suits. A finding recorded in the judgment and decree passed in O.S.No.138/2006 on issue No.2, regarding the Will dated 22.09.1983 set up by the defendant was valid and binding on the plaintiff. 24. As observed above, defendant No.1 had proved the execution of the Will by Babu Shetty in favour of defendant No.1. Both the Courts below have concurrently recorded the finding of facts. I do not find any error in the impugned judgments or any Substantial Question of Law that arises for consideration in R.S.A.No.122/2020. - 22 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 RSA No.551/2025 25. The appellant, who is not a party to the suit in O.S.No.138/2006, filed this Regular Second Appeal challenging the judgment and decree passed in O.S.No.138/2006 dated 13.08.2013 on the file of the learned Senior Civil Judge and JMFC, Bantwala, D.K. District and the judgment and decree dated 14.10.2019 passed in R.A.No.72/2013 by the learned VI Additional District and Sessions Judge, D.K. Mangaluru. 26. The appellant also filed an application in I.A.No.3/2025 seeking the leave of the Court to file an appeal and in support of an application, he has filed an affidavit enclosed with I.A.No.3/2025. 27. Heard the arguments of the learned counsel for the appellant in RSA No.551/2025. He submits that the trial Court advocate has advised him, not to file another appeal on the ground that one appeal is sufficient and the said appeal will take care of the rights of the appellant. - 23 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 Hence, for the said reason the appellant did not challenge the impugned judgment. Hence, he prays to allow I.A.No.3/2025 permitting him to file an appeal. 28. Admittedly, the step mother and siblings of the appellant herein, filed a suit against defendant No.1 in O.S.No.138/2006 for partition and separate possession. Respondent No.1 filed a written statement contending that Babu Shetty had executed a Will bequeathing the suit schedule properties in favour of defendant No.1. Hence, based on the Will, defendant No.1 became the absolute owner of the suit schedule property. The trial Court proceeded with both the suits simultaneously, and it was also brought to the notice of this Court that the present appellant filed an application for impleading him as a party in the said suit. The said application was dismissed and thereafter, both suits in O.S.No.138/2006 and O.S.No.7/2010, the trial Court, proceeded with both the suits simultaneously and the appellant had knowledge - 24 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 regarding the suit filed by his family members. In the said suit, the trial Court has framed the issue: Issue No.2 reads as under: “2. Whether the Will dated 22.09.1983 set up by the defendant is valid and binding on the plaintiff?” 29. The said issue was answered in the affirmative, holding that defendant No.1 proved the execution of a Will dated 22.09.1983. The appellant herein, did not challenge the findings recorded on issue No.2 in O.S.No.138/2006. The plaintiffs in O.S.No.138/2006 preferred an appeal in R.A.No.72/2013. 30. Babu Shetty filed Misc. Petition No.45/2018 on the file of the Principal District Judge, D.K. Mangaluru under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of R.A.No.75/2013 pending on the file of VI Additional District Judge, D.K. Mangaluru to the IV Additional District Judge, Mangaluru, to take up the same along with R.A.No.72/2013 pending on the file of IV Additional District Judge, Mangaluru, simultaneously. The - 25 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 said Miscellaneous petition was allowed in part, vide order dated 21.08.2018 and R.A.No.72/2013 was withdrawn from the file of the IV Additional District Judge, Mangaluru and the same was transferred to VI Additional District Judge, Mangaluru to hear R.A.No.72/2013 and R.A.No.75/2013, simultaneously. 31. The first appellate Court heard both the appeals simultaneously and passed a common judgment on 14.10.2019. The appellant preferred an appeal in R.S.A.No.122/2020. The appellant did not make any attempt to challenge the finding recorded on issue No.2 in O.S.No.138/2006 until 07.04.2025. 32. As observed above, when this Court has put a query to the learned counsel for the appellant in RSA No.122/2020, whether the appellant has challenged the finding recorded on issue No.2 in O.S.No.138/2006, which led to file this Regular Second Appeal, the appellant knew about the finding recorded on issue No.2 in - 26 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 O.S.No.138/2006. The appellant did not challenge the finding on issue No.2 recorded in O.S.No.138/2006. 33. Further, the appellant has not chosen to file a first appeal against the judgment and decree passed in O.S.No.138/2006. The appellant has no right to file the regular second Appeal. The appellant cannot maintain a second appeal in view of the above discussion. Hence, I do not find any ground to grant the leave to prefer an appeal. Accordingly, I.A.No.3/2025 is rejected. 34. Accordingly, I proceed to pass the following: ORDER IN RSA No.122/2020 (i) The Appeal is dismissed. (ii) The judgments and decrees passed by the Courts below are hereby confirmed. No order as to the costs. - 27 - HC-KAR NC: 2025:KHC:20623 RSA No. 122 of 2020 C/W RSA No. 551 of 2025 IN RSA No.551/2025 I.A.No.3/2025 is rejected. Consequently, the Regular Second Appeal in RSA No.551/2025 is dismissed. No order as to the costs. In view of the dismissal of the appeals, pending I.A.s, if any, in both the appeals do not survive for consideration and accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK