- 1 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 3 OF 2015 (DEC) BETWEEN: 1. SMT. SHANTHAMMA W/O LATE MUDALAGIRIGOWDA, AGED ABOUT 50 YEARS, 2. SRI RAVISHA, S/O LATE MUDALAGIRIGOWDA, AGED ABOUT 27 YEARS, 3. YOGISHA, S/O LATE MUDALAGIRIGOWDA, AGED ABOUT 17 YEARS, SINCE MINOR REPRESENTED BY HIS NATURAL GUARDIAN SMT. SHANTHAMMA, ALL ARE RESIDENTS OF HINDASKERE GOLLARAHATTI, C.S. PURA HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 101. 4. RAJAMMA, D/O LATE MUDALAGIRIGOWDA, AGED ABOUT 30 YEARS, R/OF AMMANAGHATTA, KASABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 101. 5. KARIYAMMA D/O LATE MUDALAGIRIGOWDA, AGED ABOUT 28 YEARS, R/OF GURUDHALLI HATTI, CHELUR HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 101. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 6. THIMMEGOWDA, S/O KENGAIAH, AGED ABOUT 55 YEARS, 7. SRI KRISHNAPPA, S/O KENGAIAH, AGED ABOUT 50 YEARS, APPELLANTS NO.6 AND 7 ARE RESIDENTS OF HINDASKERE GOLLARAHATTI, C.S. PURA HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 101. &APPELLANTS (BY SRI. PRADEEP NAIK K., ADVOCATE) AND: SRI. MUDALAGIRAIAH S/O LATE GOVINDHAIAH, AGED ABOUT 45 YEARS, R/OF HINDASKERE GOLLARAHATTI, C.S.PURA HOBLI, GUBBI TALUK, TUMKUR DISTRICT - 572 101. &RESPONDENT (BY SRI. P.M. GOPI, ADVOCATE FOR SRI. P.M. SIDDAMALLAPPA, ADVOCATE) THIS REGUALR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT & DECREE DATED 13.11.2014 PASSED IN R.A.NO.85/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.06.2009 PASSED IN O.S.NO.45/2004 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION), GUBBI. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the legal representatives of the defendants challenging the judgment and decree dated 13.11.2014 in R.A. No.85/2009 on the file of Senior Civil Judge, Gubbi (hereinafter termed as 'First Appellate Court') allowing the appeal by setting aside the judgment and decree dated 20.06.2009 in O.S.No.45/2004 on the file of Additional Civil Judge (Junior Division), Gubbi (hereinafter termed as 'Trial Court') dismissing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their ranking before Trial Court. 3. It is averred in the plaint that, the plaintiff claims to be the owner in possession of the suit schedule property. It is further averred in the plaint that, originally the suit property belonged to one Sri. Balaiah @ Balegowda and after his death, the property was inherited - 4 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 by his son Sri. Mudalagiraiah (grand father of the plaintiff). After his demise, the father of the plaintiff - Sri. Govindaiah was in possession of the schedule property and therefore, as the father of the plaintiff died leaving behind the sole legal heir, i.e., the plaintiff and as such, the plaintiff has succeeded to the suit property. 4. It is also stated that, the revenue records stands in the name of the plaintiff and therefore, the plaintiff filed a suit in O.S.No.45/2004 before the Trial Court seeking relief of declaration and permanent injunction against the defendants. 5. After service of notice, the defendants entered appearance and filed detailed written statement. 6. It is the specific contention of the defendants that, originally the property in question belonged to Sri. Mudalagiriyappa Devaru of Hindiskere, Gollarahatti and grand father of the plaintiff - Sri. Mudalagiraiah was a vahivatdar of the temple in question. - 5 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 7. It is also stated that, the said Sri. Mudalagiraiah - grand father of the plaintiff was managing the affairs of the temple of Mudalagiriyappa Devaru and as such, on account of the activities of temple in question, the said Sri.Mudalagiraiah had executed a registered Gift Deed dated 24.04.1962 in favour of father of the defendants - Kengegowda, to an extent of 02 acres 13 guntas in Sy.No.65 of Hindiskere, Gollarahatti out of total extent of 04 acres 26 guntas. In that view of the matter, the defendants sought for dismissal of the suit. 8. The Trial Court based on pleadings and record has formulated the issues for its consideration. In order to establish their case, the plaintiffs have examined two witnesses as P.W.1 and P.W.2 and produced eight documents and same were marked as Exs.P1 to P8. The original defendant was examined as D.W.1. The certified copy of the Gift Deed dated 24.04.1962 was marked as Ex.D1. - 6 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 9. The Trial Court after considering the material on record, by its judgment and decree dated 20.06.2009 dismissed the suit. Feeling aggrieved by the same, the plaintiff has filed R.A. No.85/2009 before the First Appellate Court. The said appeal was contested by the defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 13.11.2014 allowed the appeal and as such, set aside the judgment and decree in O.S.No.45/2004. Feeling aggrieved by the same, the legal representatives of the defendants have preferred this Regular Second Appeal. 10. This Court vide order dated 24.10.2019 has formulated the following substantial question of law: "Whether the First Appellate Court has erred in reversing the judgment and decree passed in O.S.No.45/2004 by finding that the Gift Deed through a registered document is not proved by leading evidence of the attesting witnesses in accordance with law." - 7 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 11. Heard Sri. Pradeep Naik K. learned counsel appearing for the appellants and Sri. P.M. Gopi, learned counsel appearing for the respondent. 12. Sri. Pradeep Naik K. learned counsel appearing for the appellants, invited the attention of the Court to paragraph No.5 and 5(a) of the written statement and submitted that, the grand father of the plaintiff - Sri. Mudalagiraiah had executed a registered Gift Deed on 24.04.1962 in favour of the father of the defendants and therefore, the finding recorded by the First Appellate Court requires to be interference by this Court. 13. It is also argued by Sri. Pradeep Naik K. learned counsel appearing for the appellants that, it is the duty of the plaintiff to establish his right over the property in question based on a registered document, however, the Trial Court after re-appreciating the material on record rightly dismissed the suit. Hence, he contended that, the First Appellate Court on erroneous assumption of law has interfered with the finding recorded by the Trial Court - 8 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 based on the revenue documents and the said finding recorded by the First Appellate Court requires interference by this Court. Accordingly, sought for interference of this Court. 14. Per contra, Sri. P.M. Gopi, learned counsel appearing for the respondent, sought to justify the finding recorded by the First Appellate Court and submitted that, the plaintiff has proved the possession as well as the ownership in respect of the suit schedule property as per Exs.P1 to P7 and the said aspect has been properly re-appreciated by the First Appellate Court. 15. It is also argued by Sri. P.M. Gopi, learned counsel appearing for the respondent that, the defendants have not examined any independent witnesses to prove the execution of the registered Gift Deed dated 24.04.1962 and therefore, the finding recorded by the First Appellate Court requires to be confirmed in this appeal. - 9 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 16. Having heard the learned counsels appearing for the parties, it is not a dispute that the land in question belonged to the grand father of the plaintiff - Late Sri. Balaiah and on his demise, Sri. Mudalagiraiah - grand father of the plaintiff was in possession of the suit property. It is also forthcoming from the pleadings on record that, the total extent of land is 04 acres 26 guntas and out of which, the said Sri.Mudalagiraiah had executed a registered Gift Deed dated 24.04.1962 to an extent of 02 acres 13 guntas in favour of father of the defendant. The certified copy of the registered Gift Deed was marked as Ex.D1. 17. On careful consideration of the averments made in paragraph Nos.4 to 5(a) of the written statement makes it clear that, the defendants have raised a plea relating to the ownership in respect of the schedule property in terms of the registered Gift Deed dated 24.04.1962. 18. Undisputedly, the Trial Court has failed to frame an appropriate issues relating to the said aspect in the - 10 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 matter, though, the issues have been recasted by the Trial Court. In that view of the matter, since there is divergent opinions by both the Courts below, appropriate issue has to be framed with regard to the averments made by the defendants in the written statement relating to the registered Gift Deed dated 24.04.1962. 19. Therefore, I am of the opinion that, it is fit case to remand the matter to the Trial Court for fresh consideration. Accordingly, substantial question of law referred to above, favours for remanding the matter to the Trial Court for fresh consideration. In the result, I pass the following; ORDER i) This Regular Second Appeal is allowed. ii) Judgment and decree dated 13.11.2014 passed in R.A. No.85/2009 by the Senior Civil Judge, Gubbi is hereby set aside. iii) Judgment and decree dated 20.06.2009 passed in O.S.No.45/2004 by the Additional - 11 - HC-KAR NC: 2025:KHC:32122 RSA No. 3 of 2015 Civil Judge (Junior Division), Gubbi is hereby set aside and the matter is remitted back to the Trial Court for fresh consideration in view of the above observation made. iv) It is also made clear that, all the contentions of the parties are kept open and liberty is reserved to the parties to adduce evidence, if so advised in the matter. v) Since the parties are represented through their learned counsels and in order to avoid further delay in the matter, parties are directed appear before the Trial Court on 22.09.2025 at 11.00 a.m. vi) The Trial Court is requested to expedite the hearing. SD/- (E.S.INDIRESH) JUDGE KLV List No.: 1 Sl No.: 37 CT: BHK