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2025 DAILYLAW 26191 (KAR)

SRI. B. M. CHENNAIAH v. SMT. BHADRAMMA

RSA/685/2025 · 2025-06-30

H P Sandesh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.685 OF 2025 (DEC/POS) BETWEEN: 1. SRI. B.M. CHENNAIAH, S/O. LATE MYLARASHETTY, AGED ABOUT 78 YEARS. 2. SMT. PUTTALAKSHMI, W/O. B.M.CHENNAIAH, AGED ABOUT 78 YEARS. 3. SRI. B.C.RAVI KUMAR, S/O. B.M. CHENNAIAH, AGED ABOUT 46 YEARS. 4. SRI. B.C.CHANDRU, S/O. B.M. CHENNAIAH, AGED ABOUT 52 YEARS. ALL THE APPELLANTS ARE R/AT M.G.ROAD, SOMWARPET TOWN, KODAGU DISTRICT-571 236. …APPELLANTS (BY SRI. MANJUNATHA K., ADVOCATE) AND: 1. SMT. BHADRAMMA, W/O. B.M.CHENNAIAH, AGED ABOUT 78 YEARS, C/O. MOHAN, R/AT ABHINAYA TAILOR, 2ND CROSS, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 NEAR HEBBAL POLICE STATION, HEBBAL, BENGALURU – 560 024. …RESPONDENT (BY SRI. MURALI M., ADVOCATE FOR C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.02.2025 PASSED IN R.A.NO.21/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE, SOMWARPETE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.06.2022 PASSED IN O.S.NO.64/2015 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, SOMWARPETE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for the caveator/respondent. 2. This second appeal is filed against the concurrent finding. 3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff is the absolute owner of the suit schedule property and the defendants are in illegal possession and enjoyment of the suit schedule property and hence, the plaintiff filed a suit seeking the relief of - 3 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 possession. The defendants appeared and filed the written statement contending that the Will was executed on 25.07.1975 and they are entitled for possession of the suit schedule property as averred in paragraph Nos.3 and 7 of their written statement. The Trial Court framed the issue as to whether the plaintiff is entitled for the relief as prayed. Having considered both oral and documentary evidence available on record, the Trial Court comes to the conclusion that the plaintiff is the owner of the property bearing Sy.No.16/5P1 (Old Sy.No.16/2) and directed the defendants to deliver the possession within three months. Though the defendants took the defence of the Will, the same has not been proved by examining any attesting witnesses. 4. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed in R.A.No.21/2022 and the First Appellate Court having considered the grounds urged in the appeal memo, formulated the points whether the appellants prove that Mallamma executed her last Will in favour of the plaintiff and defendant No.1 jointly vide Will dated 25.07.1975 and as a result, whether the appellants become the absolute owners and whether the appellants are - 4 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 in lawful possession and enjoyment of the suit schedule property. The First Appellate Court on re-appreciation of both oral and documentary evidence available on record, answered all the points in the negative and comes to the conclusion that the Trial Court rightly considered the material on record and passed the judgment. 5. Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court. 6. The learned counsel for the appellants in this appeal would vehemently contend that both the Courts committed an error in not appreciating both oral and documentary evidence on record. The Trial Court failed to consider the fact that the revenue records were standing in the name of the appellants and held that mere revenue records does not define the title of the property. The approach of both the Courts is erroneous. The Trial Court failed to note that the appellants have filed an application in original suit for examining the attesting witnesses, but since they could not trace out the whereabouts of the attesting witnesses, they were not able to appear before the Court and examine those witnesses. The learned counsel contend that - 5 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 the First Appellate Court also not given an opportunity to examine the witnesses and the application was rejected and hence writ petition was filed and within a span of one week of rejection, an order was passed and the writ petition became infructuous with regard to the proving of the same. Hence, the learned counsel contend that this Court has to frame the substantial question of law that both the Courts committed an error in granting the relief of declaration. The learned counsel contend that the Trial Court as well as the First Appellate Court has not properly construed and understood the evidence adduced and committed an error in not giving an opportunity to prove the Will by examining the children of the attesting witnesses of the Will dated 27.05.1975 and hence this Court has to admit the appeal and frame substantial question of law. 7. Per contra, the learned counsel for the caveator/respondent would contend that even inspite of an opportunity was given to the defendants, the defendants did not examine the witnesses before the Trial Court and the suit was pending for a period of 7 years. The learned counsel contend that though they propounded the Will, the same has - 6 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 not been proved and even an attempt was made before the First Appellate Court and the First Appellate Court rightly rejected the application, since an opportunity was given before the Trial Court for examining the attesting witnesses and none of them have been examined and hence the question of giving an opportunity to prove the Will does not arise. When an opportunity was given, the same was not utilized. Hence, no question of admitting the appeal and framing any substantial question of law, as contended by the learned counsel for the appellants. 8. Having heard the learned counsel for the appellants and the learned counsel for the caveator/ respondent and also considering the material available on record, the suit is filed for the relief of declaration as well as possession on the ground that the defendants are in illegal possession and enjoyment of the suit schedule property. Though the defendants took up the contention that there was a Will dated 25.07.1975 and they are entitled for possession, the same was not proved. The learned counsel for the appellants not disputes the fact that an application was filed before the Trial Court for examining the persons who are - 7 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 having acquaintance with the attestors signatures. Having perused the records, the application was allowed on 23.09.2021 and the judgment was passed on 17.06.2022. The First Appellate Court observed that when such an application was allowed and an opportunity was given, the opportunity was not utilized and hence the question of granting similar relief in the appeal does not arise. The First Appellate Court dismissed the application and thereafter considered the matter on merits. 9. Having considered the reasons assigned by the Trial Court, though the defendants contend that there was a Will, the Will has not been proved and the same ought to have been proved by examining the witnesses under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The First Appellate Court having re-assessed the material on record, comes to the conclusion that on the basis of the said Will, khatha of the suit property was not changed in the name of defendant No.1 and the plaintiff and it is the case of the defendants that the Will was executed in favour of the plaintiff and defendant No.1. The First Appellate Court having considered the grounds which have been urged, - 8 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 in paragraph No.26 extracted Section 68 of the Indian Evidence Act regarding proving of the same. In paragraph No.29 observed that the appellants deposed that with consent of the respondent, khatha of the schedule property has been changed in the name of the appellants and they are the absolute owners and they are in possession of schedule property from 1998. In order to prove the said contention, the appellants have not produced any document to show that consent was given for change of khatha. In one breath, they claim that there is a Will and also other contention is that consent was given for change of khatha. The First Appellate Court observed that on re-appreciation of the material on record about the execution of the Will, the Trial Court has elaborately considered all the contentions raised by the appellants before the Trial Court and has come to the right conclusion that as per Section 15 of the Hindu Succession Act, the respondent is the absolute owner of the schedule property and after the death of her mother, the respondent become the owner of the schedule property and it is considered that it is her self-acquired property. The First Appellate Court comes to the conclusion that in the absence of proving of the Will - 9 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 and placing on record cogent evidence, the contention of the appellants cannot be accepted and dismissed the appeal. 10. Having considered the reasons assigned by the Trial Court and the First Appellate Court, both the Courts have taken note of the very contention of the respective learned counsel and also appreciated the facts in issue as well as the question of law. The appellants have not proved the Will as under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act and when such reasoning was given by both the Courts and even extracted the provisions of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act, I do not find any error committed by both the Courts in appreciating oral and documentary evidence and the reasons are also assigned that the Will was not proved. In the absence of proving of the Will, the contention of the appellants that an opportunity was not given cannot be accepted when the application was allowed and opportunity was given and opportunity was not utilized by the appellants. Hence, I do not find any ground to admit the appeal and frame any substantial question of law. - 10 - HC-KAR NC: 2025:KHC:23091 RSA No. 685 of 2025 11. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 73