- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF SEPTEMBER 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO R.S.A.NO.386 OF 2018 BETWEEN: 1. SRI. CHOWDAPPA, S/O LATE RAMAPPA, AGED ABOUT 57 YEARS, 2. SMT. MUNIRATHNAMMA, W/O LATE THAMMANNA, AGED ABOUT 56 YEARS 3. SRI. CHOWDAREDDY, S/O LATE THAMMANNA, AGED ABOUT 30 YEARS, THE APPELLANT NO.1 TO 3 ARE RESIDENTS OF PERJENAHALLI, VEMAGAL HOBLI, KOLAR TALUK – 563 101 4. SMT. GAYATRI, D/O LATE THAMMANNA, AGED ABOUT 28 YEARS, RESIDENT OF MEDIHAL VILLAGE, VEMAGAL HOBLI, KOLAR TALUK – 563 101. 5. SMT. BHAGIRATHI, W/O LATE RAMESH BABU, AGED ABOUT 53 YEARS, - 2 - 6. NARESH BABU, S/O LATE RAMESH BABU, AGED ABOUT 33 YEARS, 7. MANJUNATHA GOWDA, S/O LATE RAMESH BABU, AGED ABOUT 24 YEARS, APPELLANT NO.5 TO 7 ARE RESIDENTS OF 142/3, ALLALASANDRA, YALAHANKA HOBLI, BENGALURU NORTH TALUK – 560 065. 8. SMT. KRISHNAMMA, W/O LATE RAMESH, AGED ABOUT 40 YEARS, 9. ARAVIND GOWDA, S/O LATE RAMESH, AGED ABOUT 25 YEARS, APPELLANT NO.8 AND 9 ARE RESIDENTS OF RAMA PATANA, MANDIKADA HOBLI, CHIKKABALLAPURA TALUK – 562 101. ... APPELLANTS (BY SRI. SHRIDHARA K., ADVOCATE) AND: 1. SRI. SRINIVAS, S/O LATE DODDA KEMPANNA, AGED ABOUT 47 YEARS, 2. SRI. ASHWATHAPPA, S/O LATE DODDA KEMPANNA, AGED ABOUT 42 YEARS, 3. SMT. RATHNAMMA, W/O LATE GANESH, AGED ABOUT 39 YEARS, - 3 - 4. ABILASH, S/O LATE GANESH, AGED ABOUT 20 YEARS, 5. ANUSHA, D/O LATE GANESH, AGED ABOUT 17 YEARS, SINCE MINOR REP. BY HER MOTHER SMT. RATHNAMMA, THE RESPONDENT NO.3 RESPONDENT NO.3 TO 5 ARE RESIDENTS OF PERJENDAHALLI VILLAGE, KURUGAL POST, VEMGAL HOBLI, KOLAR TALUK – 563 101. 6. SMT. PARIJATHA, W/O LATE MANJUNATH, AGED ABOUT 46 YEARS, 7. ARUN KUMAR, S/O LATE MANJUNATH, AGED ABOUT 20 YEARS, 8. ISHWARYA, D/O LATE MANJUNATH, AGED ABOUT 16 YEARS, SINCE MINOR REPRESENTED BY HER MOTHER SMT. PARIJATHA, RESPONDENT NO.6 RESPONDENT NO.6 TO 8 ARE RESIDENTS OF PERJENAHALLI VILLAGE, KURUGAL POST, VEMGAL HOBLI, KOLAR TALUK – 563 101 9. MUNINARAYANAPPA, S/O LATE MUNIYAMMA, AGED ABOUT 54 YEARS, - 4 - 10. VARALAKSHMI, D/O LATE MUNIYAMMA, W/O ASHVATHAPPA, AGED ABOUT 49 YEARS, 11. PARIJATHA, W/O LATE MANJUNATH, D/O LATE MUNIYAMMA, AGED ABOUT 46 YEARS, RESPONDENT NO.9 TO 11 ARE RESIDENTS OF PERJENAHALLI VILLAGE, KURUGAL POST, VEMGAL HOBLI, KOLAR TALUK – 563 101. 12. PUTTAMMA, D/O LATE MUNIYAMMA, W/O KRISHNAPPA, AGED ABOUT 41 YEARS, R/O CHIKKA KORATI VILLAGE, NANDAGUDI HOBLI, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT – 562 114. 13. SAKAMMA, D.P LATE DODDAKEMPANNA, AGED ABOUT 45 YEARS, R/O PERJENAHALLI VILLAGE, KURUGAL POST, VEMGAL HOBLI, KOLAR TALUK – 563 101. ... RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.12.2017 PASSED IN RA.NO.68/2015 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT - 5 - AND DECREE DATED 25.01.2011 PASSED IN OS.NO.139/2007 ON THE FILE OF THE II ADDL. CIVIL JUDGE, KOLAR. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV JUDGMENT The present Regular Second Appeal is filed assailing the Order dated 02.12.2017, in R.A.No.68/2015, passed by the I Additional Senior Civil Judge, Kolar (hereinafter referred to as ‘the first appellate Court’ for short) and judgment and decree dated 25.01.2011, in O.S.No.139/2007, passed by II Additional Civil Judge at Kolar (hereinafter referred to as ‘the trial Court’ for short). 2. The appellants herein are the plaintiffs/appellants before the Courts below and the respondents herein are the defendants/respondents before the Courts below. - 6 - 3. For convenience of reference, the parties herein are referred to as per the rankings before the trial Court. 4. The plaintiffs filed O.S.No.139/2007 against the defendants on the file of II Additional Civil Judge at Kolar for partition and separate possession of the suit schedule properties, claiming them as joint family ancestral properties. 5. The brief facts of the case are that:- The genealogy discloses that late Dodda Thammanna was the original propositus of the family, having five children viz., Dodda Narayanappa (elder son), Ramanna (since deceased), Muninarayanagowda (since deceased), Kempanna (since deceased), and defendant No.5, being the daughter. The plaintiffs No.1 and 2 are the children of deceased Ramanna, and plaintiff No.3 is the son of deceased Muninarayanagowda, whereas defendants No.1 to 4 are the children of deceased Kempanna. It is the case of the plaintiffs that the suit schedule properties, though item No.1 stands in the name of Akkemma, wife of deceased Dodda Thammanna, and item No.2 was - 7 - purchased by her under a registered sale deed for the benefit of the joint family, they are ancestral properties held in common. The plaintiffs further contended that the entries in respect of item No.3 standing in the names of defendants No.5 and 6 were obtained illegally without their knowledge or consent. 6. It is their further case that under a registered partition deed dated 17.08.1971, bearing document No.2326/71-72, deceased Dodda Narayanappa, father of defendants No.1 to 4, and defendant No.5 partitioned certain properties, but the suit schedule properties were not included therein, having been left to the share of Dodda Thammanna and his wife Akkemma for their livelihood and maintenance. The plaintiffs averred that after the death of Dodda Thammanna and Akkemma, Dodda Narayanappa and his branch consented to the plaintiffs and defendants No.1 to 4 to take the suit schedule properties, and hence, they were not arrayed as parties. They alleged that on 25.02.2007, defendants No.5 and 6, by taking undue advantage of revenue entries, attempted to alienate item No.3 of the schedule properties to third parties, and upon convening a Panchayat on the same day, - 8 - their demand for legitimate share was denied. They further contended that defendant No.6, who was married 35 years ago, has no right or share over the suit schedule properties. 7. The defendants No.5 and 6 entered appearance and filed their written statement denying the plaint averments, contending that they were the absolute owners in possession of Sy.No.135/2 measuring 2 acres situated at Hullankallu Village, Kolar Taluk, derived under a Will dated 14.10.1985 executed by their mother/grandmother Akkemma. They contended that though by oversight, the Will mentioned Sy.No.137 and measurement as 3 acres 2 guntas instead of 3 acres 4 guntas, the boundaries tally with the sale deed dated 30.06.1969 and the Will, thereby clarifying that it was only a bona fide mistake. They further asserted that Akkemma had bequeathed other schedule properties Sy.No.163 and 135/1 also in their favour under the said Will, and during her lifetime, she was in possession and enjoyment of the properties, which later stood mutated in their names. They claimed to be absolute owners in exclusive - 9 - possession, denying the plaintiffs’ right, title, or interest, and sought dismissal of the suit. 8. Upon trial, the II Additional Civil Judge, Kolar, by judgment and decree dated 25.01.2011 in O.S.No.139/2007 dismissed the suit of the plaintiffs. Being aggrieved, the plaintiffs preferred an appeal in R.A.No.68/2015 before the I Additional Senior Civil Judge, Kolar, along with an application under Section 5 of the Limitation Act seeking condonation of delay of 4 years 5 months. The said Court, by order dated 02.12.2017, dismissed the application for condonation of delay and consequently dismissed the appeal with costs throughout as barred by limitation, thereby confirming the judgment and decree dated 25.01.2011 in O.S.No.139/2007. Aggrieved by the judgment and decree dated 25.01.2011 and the order dated 02.12.2017, the appellants/plaintiffs have preferred the present appeal. 9. Based on the pleadings, the trial Court has framed following issues for consideration:- - 10 - 1) Whether the plaintiffs prove that the suit schedule properties are the ancestral properties of plaintiffs and defendant Nos.1 to 4? 2) Whether the plaintiffs further prove that the 5th defendant is neither having right in the suit schedule properties nor concerned to the family of plaintiffs and defendant Nos.1 to 4? 3) Whether the defendants 5 & 6 prove that the absolute deceased Akkemma was owner of the suit schedule property and they acquired right, title and interest over the suit properties by virtue of Will dated by deceased 14.10.1985 executed by deceased Akkamma? 4) Whether the plaintiffs are entitled to the relief of partition and separate possession over the suit schedule properties? 5) Whether the plaintiffs are entitled to the relief of mesne profit? 6) What order or decree? 10. In order to substantiate the plaintiffs case, plaintiff No.1 got examined as PW.1 and plaintiff No.2 as PW.2 and got marked 9 documents at Ex.P1 to Ex.P9. Since, P.W.2 has not tendered for cross-examination, his evidence was discarded. In support of the defendants case, defendant No.6 got examined as DW.1 and got marked 8 documents at Ex.D1 to Ex.D8. - 11 - 11. The trial Court, upon appreciation of the oral and documentary evidence, dismissed the plaintiffs’ suit on the ground that the plaintiffs failed to establish that the suit schedule properties were joint family ancestral properties and further held that the defendants No.5 and 6 had derived valid title and possession under the registered Will dated 14.10.1985 executed by Akkamma, which stood corroborated by revenue records and mutation entries. 12. Assailing the said Judgment and decree of the trial Court, the plaintiff has preferred an appeal in R.A.No.68/2015. The first appellate Court has framed following issues for consideration:- (i) Whether the appellants have made out sufficient cause for the condonation of delay in preferring the present appeal as prayed for? (ii) What order? 13. The first appellate Court after considering the facts and circumstances passed the following Order:- - 12 - The I.A.No.I filed by the appellants under Sec.5 of Limitation Act is hereby dismissed with costs. Consequently, the appeal filed under Order 41 Rule 1 of CPC is also stands dismissed with costs throughout, as barred by limitation and the judgment and decree passed by the trial Court in O.S.No.139/2007, dated 25.01.2011 is confirmed. 14. In view of the facts, the learned counsel for the appellants has raised the following substantial questions of law:- i. Whether the Trial Court is justified in dismissing Suit without appreciating that the Defendants N:5 and 6 failed to prove due execution of the Will dated 14.10.1985 as they failed to examine at least one attesting witness to the Will to prove the same as required under law? ii. Whether the Trial Court is justified in dismissing Suit without appreciating that the Defendants N:5 and 6 failed to prove that the alleged will was executed bequeathing item No: 2 of the Suit Schedule Property bearing Sy.No: 135/2? iii. Whether the Trial Court is justified in dismissing Suit without appreciating that Item No: 3 of the Suit Schedule property bearing Sy. No: 135/1 measuring 2 Acres 14 Guntas is not subject matter of the Ex.D2 Sale Deed and as such she could have executed alleged EX.D1 Will bequeathing the same to Defendant Nos: 5 and 6? iv. Whether the Trial Court is justified in dismissing Suit without appreciating that Akkemma had no right to execute - 13 - the will in favour of Muniyamm and Sakamma in respect of the suit schedule Item No. 1, 2 and 3 of the suit schedule property as the same are joint family properties? v. Whether the Civil Judge is justified in dismissing the suit in O.S. No. 139/2007 without appreciating that the suit schedule properties are ancestral properties? vi. Whether the Civil Court is justified in dismissing the suit in O.S. No. 139/2007 in entirety especially when the issues No. 3 was answered as partly affirmative in respect of the item No. 3 of the suit schedule property is co? vii. Whether the civil Court is justified in dismissing the suit of the plaintiffs without appreciating the documentary and oral evidence of the parties? viii. Whether the First Appellant Court is justified in dismissing the Appeal only on the ground of delay when the impugned judgment and Decree are per say illegal and against evidence? 15. It is contended by the learned counsel appearing for the appellants that the findings of the Courts below are contrary to the facts, circumstances and law, and that the first appellate Court erred in dismissing the appeal along with the application for condonation of delay without considering the sufficient cause shown for the delay. It is further urged that the Courts below - 14 - have failed to appreciate that the suit schedule properties are ancestral properties, and thereby erred in their conclusions. 16. It is also urged that the Courts below failed to appreciate that neither the plaintiffs nor their father were parties to the earlier suit filed by Muniyamma and Sakamma, and hence the said proceedings are not binding on them. It is contended that Muniyamma and Sakamma had illegally entered their names in the RTC in respect of Item No.3 of the suit schedule properties. Further, it is contended that the Courts below failed to appreciate that Muniyamma and Sakamma had not established that the suit schedule properties were not ancestral properties, and erroneously concluded that Akkamma was the absolute owner of Item Nos.1 and 2 of the suit schedule properties, and that Muniyamma and Sakamma acquired right, title and interest over the same by virtue of a Will. 17. Heard learned counsel appearing for the appellants. 18. At the outset, it has to be noticed that this being a second appeal, it is only substantial question of law which gives - 15 - raise for this Court to clutch the jurisdiction and answer the said question of law as otherwise, this Court would lack jurisdiction to entertain second appeal. 19. As could seen from the materials on record, it appears that the appellant herein is a third party and she is neither party to the proceedings in O.S.No.139/2007 nor in R.A.No.68/2015 but she is aggrieved by the judgment and decree in the suit and first appeal, hence, she preferred present appeal before this Court for the relief sought for to allow the appeal by setting aside the judgment and decree dated 25.01.2011 in O.S.No.139/2007 passed by the II Additional Civil Judge at Kolar and Order dated 02.12.2017 in R.A.No.68/2015 passed by the I Additional Senior Civil Judge, Kolar. 20. As could seen from the impugned order dated 02.12.2017 in R.A.No.68/2015 it is observed that the appellants filed the first appeal with an I.A.No.1 u/s.5 of the Limitation Act seeking condoning the delay of 4 years 5 months in preferring the appeal. The first appellate Court dismissed the I.A.No.1 on - 16 - the ground that the sufficient cause for the delay having not been proved by the appellants, no well grounds were made out for allowing the IA No.1 and dismissed the IA No.1 filed by the appellants u/s. 5 of the Limitation Act. Consequently, the appeal filed under Order 41 Rule 1 stands dismissed with costs throughout, as barred by limitation and the judgment and decree passed by the trial Court in O.S.No.139/2007 is confirmed. 21. It appears that the appellate Court has dismissed main appeal on the ground of delay not on merits. In view of the same the appellants herein filing this present appeal, seeking permission to come on record as appellant No.8 and 9 and raising substantial question of law is not proper. Further, it is observed that the affidavit filed in IA No.1/2019 before this Court for seeking permission to represent the matter as appellants No.8 and 9 and to contest the appeal, it is stated that the appellants herein are not parties to the suit proceedings and appeal proceedings and further stated that appellants herein are the - 17 - second wife and son of plaintiff No.3, during pendency of the appeal the plaintiff No.3 was died on 30.06.2016. 22. In view of the above discussions, if at all the appellants herein are aggrieved by the judgments and decree O.S.No.139/2007 and in R.A.No.68/2015, they have to avail a legal remedies under civil law not by way of filing present appeal. 23. For the reasons mentioned above the second appeal is not maintainable and the substantial questions of law raised by the appellants are also not maintainable because the first appeal dismissed on the ground of delay not on the merits of the case. Further, the appellants No.8 and 9 are directed to agitate their rights in accordance with law before the appropriate Court. 24. Accordingly, the following order is passed: i) Regular Second Appeal is dismissed. ii) Judgment and Decree dated 02.12.2017, in R.A.No.68/2015, passed by the I Additional Senior Civil Judge, Kolar is dismissed and the Judgment - 18 - and Decree dated 25.01.2011, in O.S.No.139/2007, passed by II Additional Civil Judge at Kolar, is hereby affirmed. Pending I.As, if any, shall be consigned to file. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV CT: UR