- 1 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1640 OF 2007 (PAR-) BETWEEN: VEERANAGOUDA S/O. RUDRAGOUDA SHANTANGOUDAR, SINCE DEAD BY LR’S. 1. NINGAVVA W/O. LATE VEERANAGOUDA SHANTANGOUDAR, AGE: 65 YEARS, R/O. CHIKKERUR, TQ: HIREKERUR, HAVERI-581 125. 2. NAGARATNA D/O. LATE VEERANAGOUDA SHANTANAGOUDRA, AGE: 22 YEARS, 3. KUMARAGOUDA S/O. VEERANAGOUDA SHANTANAGOUDRA, AGE: 20 YEARS, 4. RUDRAGOUDA S/O. VEERANAGOUDA SHANTANAGOUDRA, AGE: 17 YEARS, REPRESENTED BY MOTHER & NATURAL GUARDIAN THE FIRST APPELLANT NINGAVVA, APPELLANTS 1 TO 4 ARE R/O. CHIKKERUR, TQ: HIREKERUR, DIST: HAVERI-581 125. Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:19 +0530 - 2 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 PARVATHAVVA W/O. SHIVAPPA NAGANAGOUDRA, SINCE DECEASED BY HER LR’S. 5. SHIVAPPA S/O. MUDIYAPPA NAGAGOUDRA, AGE: 70 YEARS, R/O. CHIKKERUR, TQ: HIREKERUR, DIST: HAVERI-581 125. 6. BASAVARAJ S/O. SHIVAPPA NAGANAGOUDRA, AGE: 48 YEARS, R/O. CHIKKERUR, TQ: HIREKERUR, DIST: HAVERI-581 125. 7. NAGARAJ S/O. SHIVAPPA NAGANAGOUDRA, AGE: 40 YEARS, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 125. 8. MALLANAGOUDA S/O. SHIVAPPA NAGANAGOUDRA, AGE: 32 YEARS, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 111. 9. [SMT. SUVARNA W/O. UJJAPPA SHIDDAPPAGOUDRA, AGE: 30 YEARS, R/O. BURADIKATTI, TQ: HIREKERUR, DIST: HAVERI-581 111.] SINCE DECEASED BY HER LR’S. 9A) HANUMANTHGOUDA UJJAPPA SHIDDAPPAGOUDRA, AGE: 36 YEARS, OCC: AGRICULTURE, 9B) SURESH UJJAPPA SHIDDAPPAGOUDRA, AGE: 33 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 9C) RAMESH UJJAPPA SHIDDAPPAGOUDRA, AGE: 36 YEARS, OCC: AGRICULTURE, ALL ARE RESIDING AT: R/O. BURADIKATTI, TQ: HIREKERUR, DIST: HAVERI. AMENDED AS PER ORDER DATED 08/11/2013. 10. SMT. LEELA W/O. BASANAGOUDA GOUDRA, AGE: 27 YEARS, R/O. HOLABIKONDA, TQ: HIREKERUR, DIST: HAVERI-581 111. …APPELLANTS (BY SRI. AVINASH BANAKAR, ADVOCATE) AND: 1. MALLIKARJUNAPPA, S/O. JATTEPPGOUDA KODIGOUDRA, AGE: 37 YEARS, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 111. 2. RAVI S/O. JATTEPPGOUDA KODIGOUDRA, AGE: 35 YEARS, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 111. 3. SUBHASH S/O. JATTEPPGOUDA KODIGOUDRA, AGE: 31 YEARS, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 111. - 4 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 4. SMT. VANAJAKSHI W/O. BASANAGOUDA BANAKAR, AGE: 40 YEARS, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 111. 5. SMT. MALLIGEVVA W/O. VIVEKANANDA GANGANAGOUDRA, AGE: 27 YEARS, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 111. 6. SMT. PARVATEVVA W/O. JATTEPPAGOUDA KODIGOUDRA, AGE: MAJOR, R/O. DIVIGIHALLI, TQ: HIREKERUR, DIST: HAVERI-581 111. SMT. SULOCHANA SINCE DEAD BY LR’S. 7. SURESH S/O. SHEKAPPA BELLUR, AGE: 20 YEARS, R/O. HIREMANDAPUR, TQ: HIREKERUR, DIST: HAVERI-581 111. 8. MANJAMMA D/O. SHEKAPPA BELLUR @ BANAKAR, AGE: 20 YEARS, R/O. HIREMANDAPUR, TQ: HIREKERUR, DIST: HAVERI-581 111. …RESPONDENTS (R1-R5 & R8 SERVED AND UNREPRESENTED; R7-ABATED; R6-DECEASED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED:2.3.2007 PASSED BY THE COURT OF CIVIL JUDGE (SR.DN.), ITINERATE COURT AT HIREKERUR, IN R.A.NO.67/2002 AND RESTORE THE JUDGMENT AND DECREE DATED: 30.9.2002 PASSED BY THE CIVIL JUDGE (JR.DN.) & J.M.F.C., - 5 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 HIREKERUR IN O.S.NO.102/1993, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by legal representatives of deceased plaintiff No.1 challenging the judgment and decree dated 02.03.2007 in R.A.No.67/2002 on the file of Civil Judge (Sr.Dn.) Itinerate Court, at Hirekerur, allowing the appeal and setting aside the judgment and decree dated 30.09.2002 in O.S.No.102/1993 on the file of Civil Judge (Jr.Dn.) & JMFC, Hirekerur, decreeing the suit of the plaintiffs. 2. For the sake of convenience, parties are referred with reference to their rank before the trial court. 3. It is the case of the plaintiffs that suit schedule property is belonging to Gouravva – grandmother of the plaintiffs. It is also stated that the grandmother of the plaintiffs died during 1981 and thereafter the entire suit schedule property was devolved to her only daughter - Basavva (mother of the plaintiffs). It is also stated in the plaint that one Rudragouda - 6 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 Shivanagouda Kodigoudar has filed form-7 before the Land Tribunal claiming occupancy rights in respect of the suit schedule property and the Land Tribunal, by order dated 12.11.1979, rejected the form-7 filed by said Rudragouda Shivanagouda Kodigoudar and therefore, it is the claim of the plaintiffs that the suit schedule property is belonging to the plaintiffs. It is also stated that the defendants are the grand children of Rudragouda Shivanagouda Kodigoudar and therefore, it is the case of the plaintiffs in O.S.No.102/1993 that the defendants have no right to claim suit schedule property in the suit. 4. After service of notice, the defendants entered appearance and filed written statement contending that the defendants are in possession of the suit schedule property for more than 30 years and therefore, the plaintiffs have no right or title in respect of the suit schedule property. It is also stated in the written statement that the revenue records stand in the name of the father of the defendants – Jattappa Gowda as grantee of the land and therefore, the defendants have sought for dismissal of the suit. - 7 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 5. The Trial Court based on the material on record, formed issues for consideration. In order to establish their case, plaintiffs have examined three witnesses as P.W.1, P.W.2 and P.W.3 and produced 28 documents which were marked as Exs.P1 to P28. Defendants have examined three witnesses as D.W.1, D.W.2 and D.W.3 and marked 12 documents as Exs.D1 to D12. The Trial Court after considering the material on record, by its judgment and decree dated 30.09.2002, decreed the suit holding that the plaintiffs are the owners of the suit schedule property. Feeling aggrieved by the same, defendants have filed R.A. No.67/2002 before the First Appellate Court and the same was resisted by the plaintiffs. The First Appellate Court after considering the material on record, by its judgment and decree dated 02.03.2007, allowed the appeal and as such, set aside the judgment and decree in O.S.No.102/1993. Feeling aggrieved by the same, the plaintiffs have preferred this Regular Second Appeal. 6. This Court, vide order dated 08.01.2014 has formulated the following substantial question of law: “ whether the First Appellate Court has committed serious error in coming to the conclusion that the - 8 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 Power of Attorney Holder examined as PW1 was not competent to depose on behalf of the plaintiffs? ” 7. Heard Sri. Avinash Banakar, learned counsel appearing for the appellants. No representation has been made on behalf of the respondents though served in this appeal. 8. It is contended by the learned counsel Sri. Avinash Banakar appearing for the appellants, that the property in question is belonging to the grandmother of the plaintiffs and after her death, the same was inherited by mother of the plaintiffs and the said aspect is also fortified in the judgment and decree passed by the Trial Court. It is also contended by the learned counsel for the appellants that the grandfather of the defendants – Rudragouda Shivanagouda Kodigoudar has filed form-7 seeking occupancy rights which came to be rejected by the Land Tribunal and therefore, he contended that the finding recorded by the First Appellate Court requires to be set aside in this appeal. 9. It is also pleaded by the learned counsel for the appellants that the First Appellate Court, on the sole ground that the plaintiffs have examined their son as P.W.1, rejected - 9 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 the claim on the ground that P.W.1-son has no personal knowledge with regard to the property in question and therefore sought to allow the appeal. 10. In the light of the submissions made by the learned counsel appearing for the appellants, I have carefully examined the finding recorded by both the Courts below and perused the original records. 11. The Trial Court has arrived at the conclusion to declare that the plaintiffs are the owners of the suit schedule property as the same belongs to the grandmother of the plaintiffs – Gowravva. It is also to be noted that the Land Tribunal has rejected the application made by the grandfather of the defendants as per order dated 12.11.1979. In that view of the matter, the First Appellate Court has committed an error in interfering with the decreeing of the suit by the Trial Court on the sole ground that P.W.1 has been examined by the plaintiffs who had no personal knowledge about the suit land. Admittedly P.W.1 is the son of plaintiff No.2 – Parvathavva, w/o Shivappa Naganagoudar and it is also to be noted that the declaration has been sought for in the plaint in so far as the - 10 - NC: 2025:KHC-D:4944 RSA No. 1640 of 2007 suit schedule property is concerned and therefore, the finding recorded by the First Appellate Court is contrary to the factual aspects on record and accordingly, the appellants have made out a case for interference in this appeal. Accordingly, the substantial question of law framed in this appeal favours the plaintiffs and therefore, I pass the following: ORDER (i) The Regular Second Appeal is allowed. (ii) Judgment and decree dated 02.03.2007 in R.A.No.67/2002 on the file of Civil Judge (Sr.Dn.) Itinerate Court, at Hirekerur, is hereby set aside. (iii) Judgment and decree dated 30.09.2002 in O.S.No.102/1993 on the file of Civil Judge (Jr.Dn.) & JMFC, Hirekerur is hereby confirmed. (iv) Suit of the plaintiff is hereby decreed. Sd/- (E.S.INDIRESH) JUDGE sac CT-MCK List No.: 1 Sl No.: 29