Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 291 OF 2024 (PAR) BETWEEN:
1. SMT. YASHODA BAI W/O LATE HANUMANTA RAO H R AGED ABOUT 64 YEARS HOUSE HOLD
2. SMT. VANI BAI W/O SHIVAJI RAO AGED ABOUT 38 YEARS HOUSE HOLD APPELLANT NO.1 AND 2 R/O BOTH RESIDING AT NO. 2/104, BEHIND RADIO STATION, PAPER TOWN BHADRAVATHI TOWN AND TALUK SHIMOGA DISTRICT - 577 245. …APPELLANTS (BY SRI. M.S. SHYAM SUNDAR, SR. COUNSEL, ADVOCATE FOR SMT. VANDANA P.L, ADVOCATE) AND:
1. SRI. NAGARAJA B K S/O LATE SUMITRA BAI AGED ABOUT 38 YEARS AGRICULTURIST AND ADVOCATE BY PROFESSION R/O BEHIND AGRICULTURE OFFICE Digitally signed by SHARADAVANI B Location: High Court of Karnataka
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 1ST CROSS, T B CIRCLE HONNALI TALUK - 577 217 DAVANAGERE DISTRICT. 2. SRI GOPAL RAO H P HUSBAND OF LATE LEELA BAI @LEELAVATHI AGED ABOUT 72 YEARS RETIRED TEACHER
3. SRI VIJAY POWER S/O LATE LEELA BAI @LEELAVATHI AGED ABOUT 37 YEARS R2 AND R3 ARE R/O D NO. 110 HARALAHALLI VILLAGE KASABA HOBLI HONNALI TALUK - 577 217. 4. SRI NAGESH RAO S/O RAMA RAO AGED ABOUT 54 YEARS (DCEASED REP. BY HIS LRS R2, R3 AND R8 TO R11)
5. MALATHESH R S/O RAMAKRISHNA S AGED ABOUT 37 YEARS EMPLOYEE IN A PRIVATE COMPANY
6. SRI HARISH KUMAR R S/O RAMAKRISHNA S AGED ABOUT 33 YEARS MEDICAL REPRESENTATIVE
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 RESPONDENT NO.5 AND 6 ARE R/O SRI MALATHESHA NIVASA 3RD MAIN, 14TH CROSS VINODHA NAGAR, DAVANAGERE - 577 001. 7. SRI KESHAV RAO S/O RAMA RAO AGED ABOUT 50 YEARS
8. SMT RENUKA BAI D/O RAMA RAO W/O ANNAJI RAO AGED ABOUT 48 YEARS WORKING AS PEON IN MURUGHARAJENDRA SCHOOL R/O 3RD MAIN, 7TH CROSS VINOBHA NAGAR DAVANAGERE - 577 001
9. SRI BHEEMESH RAO S/O RAMA RAO AGED ABOUT 46 YEARS TEACHER RESPONDENT NO.4, 7 AND 9 ARE R/O HALEPETE BEEDI HONNALI TOWN - 577 217. 10.
SMT GEETHA BAI D/O RAMA RAO W/O MANJUNATH RAO AGED ABOUT 44 YEARS WORKING AS TEACHER IN MURUGHARAJENDRA SCHOOL
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 R/O 3RD MAIN, 7TH CROSS VINOBHA NAGAR DAVANAGERE - 577 001
11. SMT. MUKTA BAI D/O RAMA RAO W/O SHIVAKUMAR RAO AGED ABOUT 40 YEARS HOUSE WIFE R/O UPPER UTTA COLONY ABOVE RAILWAY LEVEL CROSSING NEAR GOLDEN JUBILEE POST OFFICE BHADRAVATHI TOWN AND TALUK - 577 245 …RESPONDENTS (BY SRI. S.B. TOTAD, ADVOCATE FOR R1;
SRI. SANDESH T.B, ADVOCATE FOR R5 TO R11;
VIDE ORDER DATED 27.09.2024, NOTICE TO R2 AND R3 IS HELD SUFFICIENT;
VIDE ORDER DATED 17.01.2025, R2, R3 AND R5 TO R11 ARE TREATED AS LRS OF DECEASED R4)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.01.2024. PASSED IN RA NO. 5/2018 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, DVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.11.2016 PASSED IN OS NO.45/2013 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHARA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 ORAL JUDGMENT Heard Sri. M.S. Shyamsundar, learned Senior Counsel for the appellant, Sri. T.B. Sandesh, learned counsel for respondent no.5 to 11 and Sri. S.B. Totad for first respondent.
2. Present second appeal is filed by the legal representatives of the first defendant against the plaintiffs and other defendants challenging the decreeing of the suit in O.S. No.45/2013 whereby plaintiff's suit got decreed in respect of the following suit properties and hereinafter referred to as 'suit properties' granting half share to the plaintiffs and remaining half share to defendants No.1 to 10, which was confirmed in R.A. No.5/2018.
3.
Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 3.1 A suit for partition and separation in respect of suit properties came to be filed, contending that common prepositus is one Huvajappa. He died leaving behind his
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 two sons namely Hanumanthappa alias Hanumantha Rao and Bheema Rao. First son Hanumanthappa died in the year 1939 leaving behind his two sons namely Bheema Rao and Rama Rao and two daughters namely Radhu Bai and Gowru Bai. 3.2 Second son of Huvajappa Bheema Rao died in the year 1941 leaving behind his wife Tulsa Bai. 3.3 Plaintiffs are the descendants of the first son Bheema Rao who are the first son of Hanumanthappa alias Hanumantha Rao. Bheemrao and Tulsa Bai had no issues and accordingly after death of Bheema Rao, wife Tulasa Bai adopted deceased Rama Rao (supposed to be the nephew). First defendant was born through Ellu Bai and defendants 2 to 10 were born through Gowru Bai. Daughters namely Radhu Bai and Gowru Bai died intestate long back and Radhu Bai was also unmarried. Gowru Bai was married before 1945 and there are no further
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 particulars about Gowru Bai. Defendant No. 11 is the purchaser of the suit schedule property. 4. According to the plaintiffs, there is no partition in respect of the properties left behind by common prepositus Huvajappa. 5. Plaintiffs claim that half share in respect of the suit property being the descendants of first son of Hanumanthappa namely Bheema Rao. 6. Suit was resisted by filing detailed written statement by defendants Nos.1 and 5 which was adopted by defendants nos. 2, 4, 8 and 10. Pertinently the 11th defendant filed separate written statement stating that he is the bonafide purchaser of the suit property and therefore that property be allotted to him. - 8 -
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7. Defendants contend that the genealogical tree furnished by the plaintiffs is incorrect. In fact, Huvajappa had three sons namely Yalloji Rao, Hanumantha Rao and BheemaRao and five daughters by name Lakshmi Bai, Bhagirathi Bai, Yellu Bai, Parvathi Bai and Savitri Bai. However, no further particulars or separate genealogy was furnished by defendants No.1 and 5. 8.
Based on the rival contentions, the learned Trial Judge has raised necessary issued and after recording the evidence of the parties, decreed the suit of the plaintiff. 9. Operative portion of the Judgment of the Trial Court is culled out hereunder for ready reference :
"The suit filed by the plaintiffs against the defendants is decreed in part with costs in the following terms; It is hereby declared that the suit land bearing Sy.No.47/2 measuring 2A-37Gs and schedule 'B' property namely country tiled residential house bearing No.1667/1362/1178 are available for partition. - 9 -
HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 It is further declared that on partition by metes and bounds all the plaintiffs jointly entitled for 1/2 share and on the other hand all the defendants No.1 to 10 jointly entitled for 1/2 share in the above said two schedule properties. It is further ordered that item No.2 bearing Sy.No.47/3 measuring 3A-2Gs is not available for partition. Draw preliminary decree accordingly. 10. Being aggrieved by the same, the legal representatives of the first defendant namely Smt. Yashodha Bai and Smt. Vani Bai have filed an appeal before the First Appellate Court in R.A.No.5/2018. 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on re-appreciation of the material evidence on record, also entertained the additional evidence placed by the appellants on record after holding an enquiry and permitting the parties to the additional evidence, dismissed the appeal of the legal representatives of the
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 first defendant, inter-alia holding in paragraphs No.39 to 41 as under:
"39. On perusal of the documents submitted by the legal heirs of defendant No.1 it would show that they have submitted some of the mutation entries in respect of survey No.47/2. In one of the mutation entry it was shown that property was transferred in the name of Bheema Rao.
But mere production of document like mutation entry that itself is not the ground to believe that the property was purchased by Bheema Rao. It is the duty of the legal heirs of defendant No.1 to produce the sale deed before the court to show that suit properties are purchased by Bheema Rao. But on perusal of entire records submitted by the legal heirs of the defendant No.1 who are the appellants before the court it would show that they have not produced the document to show that the suit schedule properties are purchased by Bheema Rao. So when no such documents are before the court to come to the conclusion that suit schedule properties are purchased by Bheema Rao then it would show that these suit schedule properties are the ancestral properties. Accordingly I answer Point No.3 in the affirmative. 40. Point No.4:- In further according to the legal heirs of defendant No.1 the suit is not maintainable as the plaintiffs have not included all the properties. According to the counsel for the legal heirs of defendant No.1 has argued and contended that the plaintiffs have also sold
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 out some of the properties in favour of different persons without the knowledge of the defendant No.1 and those properties are not included at the time of filing the suit. According to the learned counsel those properties are also the properties of the family of plaintiffs and defendants and non inclusion of those properties hits the suit filed by the plaintiffs. 41. Here in this stage it would show that in order to substantiate this fact the legal heirs of defendant No.1 have produced some of the copy of the sale deeds and on that they have argued and contended that the properties shown in the sale deeds are sold out by the plaintiffs and they are also the properties belong to the family of the plaintiffs and defendants.
But on perusal of the written statement filed by the defendant No.1 before the trial court no where he has stated that the suit properties shown in the sale deeds produced by the legal heirs of the defendant No.1 are also the family properties and ancestral properties. It would show that no such pleadings are before the court. In further other defendants have also not supported the contention of the legal heirs of the defendant No.1. None of them have stated that the properties produced by the legal heirs of the defendant No.1 during the course of appeal are also the ancestral properties. So when there is no such substantiated facts are before the court to suggest that the properties which are submitted by the legal heirs of the defendant No.1 who are the appellants of this case along with the application under Order 41 Rule 27 of CPC then it is not
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 correct to come to the conclusion that the plaintiffs have filed the suit before the trial court without including these properties. Accordingly I answer Point No.4 in the negative."
12. Being further aggrieved by the same, it is the legal representatives of the first defendant who are before this Court in the present second appeal on the following grounds: GROUNDS
The impugned judgements are not sustainable either in law or on facts and liable to be set-aside in limine. The impugned judgments are capricious, perverse and contrary to the law and facts and hence liable to be set- aside. The courts below have not properly appreciated the material on record and the evidence on record and had erred in dismissing the suit of the appellant. The first appellate court have failed to take note of the fact that, there is no sufficient opportunity provided to lead his evidence and therefore, the impugned judgements are not sustainable.
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The courts below have failed to notice that, the appellants have disputed the genealogy produced by the plaintiffs/respondent No 1 to 3 under the circumstances there is no material placed to prove the genealogy, therefore the impugned judgement and decree is not sustainable. The court below have believed the genealogy only on the strength of Ex P 99 which is a self serving document and no other material is placed to believe the genealogy and therefore the approach of the court below is wholly erroneous and hence the impugned judgement and decree is not sustainable. The courts below have not appreciated the contentions of the appellants regarding genealogy and erred in decreeing the suit and it is the contention of the appellants that, the plaintiffs are taking undue advantage in the similarities of the name and filed the Instant suit and therefore, the courts below have erred in believing the genealogy, without there being any cogent evidence. The courts below have failed to notice that, the plaintiffs are legatees of Bheema Rao S/o Hanumanthappa @ Hanumantha Rao and they have nothing to do with the properties of Bheema Rao S/o Havajappa and therefore, the entire judgements of the courts below are erroneous. It is an admitted fact that, the Bheema Rao S/o Huvajappa was not having any issues and therefore, his
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 wife Thulasamma have adopted Ramarao S/o Hanumanthappa@ Hanumantha Rao and therefore, the plaintiffs are not entitled for any property in herited by Ramarao from Bheema Rao and therefore, the Impugned Judgement and decree is not sustainable.
The courts below have not appreciated the documents properly in fact Exhibit P 8, 9 would show that, the land bearing Sy No 47/2 was granted to Bheema Rao and therefore, the said property was exclusive property of Bheema Rao and therefore, the plaintiffs being the legatees of Hanumantha Rao have no rights over the same and therefore, the courts below have not applied its judicious mind in this regard and hence the impugned judgement and decree is not sustainable. Though the appellants have filed the written statement disputing the genealogy, the courts below have not framed any issues in this regard. The courts below have held that, the appellants have not placed a material to disprove the genealogy furnished but it is the duty the plaintiff to prove his contentions when disputed and therefore the approach of the courts below was erroneous. The courts below have not properly appreciated any of t documents and therefore, the impugned judgement and decree a not sustainable. - 15 -
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The courts below has not applied its judicious mind and erred decreeing the suit and therefore, the impugned
order is r sustainable. The first appellate court has held that, the plaintiffs are ousted fro the family when the sale deed was executed under circumstances the suit was also barred under the law. It is an admitted fact that, about 3 Acre 2 Guntas was sold in year 1996 and the courts below have held that, the suit as against the purchaser is bad in law and therefore, the courts below ought have held that, the suit was also bad as against other properties. The documents produced by the plaintiffs would show that, property has been mutated in the name of Rama Rao as a legatee of Bheema Rao and these appellants are alone entitled for share in the property of Bheema Rao and the plaintiffs are not entitled the same. The courts below have erred in decreeing the suit when all parties are not made as parties and it is admitted in the plaint itself that, they have not made legatees of daughters of Huvajappa as party to the suit. Viewed from any angle the impugned judgements are not sustainable and liable to be seta-side. - 16 -
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13. A coordinate bench of this Court vide Order dated 20.03.2024, admitted the appeal on the following substantial questions of law: 1) Whether the courts below were justified in believing the genealogy, though there is no supportive and corroborative evidence except the self serving affidavit of plaintiffs ? 2) Whether the courts below were justified in decreeing the suit without looking into the aspect of non- joinder of necessary party ? 3) Whether the Courts were Justified in granting equal shares to the plaintiffs and defendants without giving any finding with regard to legitimate/illegitimacy of the defendant no 2 to 10? 14. Sri.
M.S. Shyamsundar, learned senior counsel appearing for the appellant reiterating the grounds urged in the appeal memorandum, requested this Court to exercise the power under Section 100 (5) of the Code of Civil Procedure to frame appropriate further substantial questions of law apart from what has been raised with regard to the non affording the proper opportunity and
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 non considering the fact of all properties belonging to the joint family having not been included in the suit and therefore suit was bad and sought for remitting the matter to the Trial Court permitting the legal representatives of the first defendant to include all the properties for fresh adjudication of the suit. 15. Sri. M.S. Shyam Sundar, would also invite the attention of this Court that copies of the sale deeds were placed along with Application filed under Order XLI Rule 27 of the Code of Civil Procedure and additional evidence placed on record being taken on record selectively by the First Appellate Court to suit to the decision already reached by the First Appellate Court has resulted in miscarriage of justice and sought for allowing the appeal. 16. Per contra, Sri. T.B. Sandesh and S.B. Totad, appearing for the contesting parties supports the impugned judgment. - 18 -
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17. They would further contend that the first defendant did contest the suit but he died during the pendancy of the suit and legal representatives were brought on record. 18. The present appellants were left behind by the first defendant. Neither Smt. Yashodha Bai who is the wife of the first defendant nor Smt. Vani Bai who is the daughter of the first defendant did enter the witness box before the Trial Court to substantiate the contentions urged in written statements. 19.
Fifth defendant was no doubt examined as DW2 before the Court and he placed on record 24 documents which were exhibited and marked as Exs.D1 to D24 comprising of RTC Extracts, Mutation Register Extract, Tax paid receipts, original sale deed dated 25.10.1996, Mutation Register Extracts thereafter Grama Namuna and 17 RTC Extracts. - 19 -
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20. Learned Trial Judge on consideration of those material on record, decreed the suit which is just and proper and sought for dismissal of the appeal. 21. Having heard the arguments on both sides, this Court perused the material on record meticulously. 22. In the first place, though Sri. M.S. Shyamsundar requested the Court to exercise the power under Section 100(5) of the Code of Civil Procedure, this Court does not deem it fit to raise any additional substantial question of law as non inclusion of all the properties has not effected the disposal of the suit inasmuch as no material particulars are furnished by the defendants in written statements as to the which are the properties which were belonging to the joint family were sold and therefore suit was not maintainable. - 20 -
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23. There is a duty cast on the defendants who plead of non inclusion of the material particulars to disclose the details of the properties as a schedule to the written statement which can be considered as suit properties by the Trial Court as in a suit for partition, irrespective of the ranking of the parties, all the parties are to be construed as plaintiffs and defendants. 24. Therefore, the contentions urged on behalf of the counsel for the appellants that the selective
consideration of the material placed on record under Order XLI Rule 27 of the Code of Civil Procedure by the First Appellate Court has resulted in grave miscarriage of justice cannot be countenanced in this second appeal. 25. Therefore, consideration of the present appeal would only with regard to the substantial questions of law that has been framed at the time of admitting the appeal as referred to supra. - 21 -
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26. In the case on hand, admitted by the first defendant did not enter the witness box nor his legal representatives. 27. However, taking clue from the observations made by the Trial Court in this regard, when the belated appeal came to be filed by the legal representatives of the deceased first defendant before the First Appellate Court in R.A.No.5/2018, an application is filed under Order XLI Rule 27 of the Code of Civil Procedure perhaps to plug the loopholes in the case of the first defendant and placed some additional material documents on record. 28. Among them, Ex.P10 is the prime document which the legal representatives of the first defendant wanted to rely upon the advance their contentions with regard to improper genealogy tree furnished by the plaintiff. - 22 -
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29. Pertinently, Ex.P10 not a new document, but it is nothing but Ex.P8 before the Trial Court marked on behalf of the plaintiffs. 30. In pursuance to the additional evidence, second legal representative of the first defendant namely Smt. Vani Bai B. was examined as PW1 before the First Appellate Court. 31. In her cross-examination, there is a categorical admission by her to the effect that the genealogy tree filed by the plaintiffs is true and correct. 32. In the teeth of such a admission on oath before the First Appellate Court, portion of the substantial question of law to the effect that the denial of relationship as per genealogy produced by the plaintiffs will have to be answered against the appellants. - 23 -
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33. Ex.P19 is the genealogy tree which has been placed on record. Same has been categorically admitted in the cross-examination by the second legal representative of the first defendant who is examined as PW1 before the First Appellate Court in R.A.No.5/2018. 34.
This would now take to the second portion of first substantial question of law whether the impugned judgments are suffering from perversity or illegality on account of not providing the fair opportunity for the first defendant to lead evidence. 35. Insofar as the said portion of the substantial question of law also, the material on record would make it clear that the lacuna or the shortcoming that has occurred in the trial before the Trial Court has been sufficiently taken care of by permitting the second legal
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 representative of first defendant Smt. Vani Bai to place her evidence on record before the First Appellate Court. 36. Pertinently, when the condonation of delay application was decided by the First Appellate Court, First Appellate Court recorded the evidence. While recording the evidence of question of the condonation of delay also, second defendant Smt. Vani Bai has specifically admitted that the fifth defendant is her uncle. 37. Not only from Ex.P19, but also from the answers elicited in the cross-examination, when genealogy is accepted by Smt. Vani Bai, the contention in the written statement that suit is incorrect for non impleading all the sharers as genealogy is imperfect cannot be countenanced in law. 38. Further, by entering the witness box before the First Appellate Court, it was the duty of the legal
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 representatives of the first defendant to advance their case by placing necessary evidence on record. 39. In the written statement, the contentions that were taken is to oppose the suit is that the genealogy is incorrect and non-inclusion of all the properties belonging to the joint family. 40. Further, there was a specific plea that the suit properties are purchased by Sri. Bheema Rao and not by Sri. Huvajappa and therefore, they are not available for partition and alienation of one of the item of the suit properties in favour of the eleventh defendant is incorrect. 41.
In this regard, neither the examination-in-chief of Smt. Vani Bai, nor other materials placed on record on behalf of the legal representatives of the first defendant did not advance the case of the legal representatives of the first defendant to any extent inasmuch as there is no
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HC-KAR NC: 2025:KHC:39337 RSA No. 291 of 2024 cross-examination with regard to Ex.P11 before the Trial Court. 42. On the contrary, Ex.P11 clearly shows that it is Huvajjappa who purchased the property and not Bheema Rao. When there is a title deed available on record, mutation entry cannot over ride the probative value of the title deed. 43. Therefore, the contentions urged that one of the mutation entry is standing in the name of Bheema Rao cannot improve the case of the first defendant to any extent. 44. Having said so, copies of few sale deeds are no doubt placed on record before the First Appellate Court. Admittedly, they were not certified copies. - 27 -
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45. Therefore, the learned Judge in the First Appellate Court not considering alienations under the copies of the sale deeds placed on record by the first defendant cannot be faulted with. 46. Having said so, if there are rights in the first defendant in respect of properties which were exclusively alienated by the plaintiffs, legal representatives of the first defendant are entitled to pursue their remedy in accordance with law. 47. Needless to emphasise that if any such intended action is initiated, it is always open for the contesting parties to canvass their stand with regard to those alienation in accordance with law on all counts. 48. In view of the foregoing discussion, invariably, substantial questions of law have to be answered against appellants. Accordingly, it is answered. - 28 -
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49. Accordingly, following Order :
ORDER Appeal is meritless and hereby dismissed. No order as to cost. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 60