- 1 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5270 OF 2012 (DEC/INJ) BETWEEN: SRI. MALLAYYA S/O. SANGAYYA MATHAD, AGE: 64 YRS, OCC: AGRICULTURIST, R/O: KUBIHAL, TQ: KUNDAGOL, DHARWAD DIST – 581 109. …APPELLANT (BY SRI. M. M. HIREMATH, ADVOCATE) AND: 1. SRI. YALLAPPA S/O. GADEGEPPA GIDGANNAVAR, AGE: 69 YEARS, OCC: AGRICULTURIST, R/O: KUDIHAL, TQ: KUNDAGOL, NOW ATVINAHALLI, TQ: SHIGGAON, DIST: DHARWAD – 581 205. 2. SRI. YALLAPPA S/O. VEERABHADRAPPA GIDGANNAVAR, AGE: 42 YEARS, OCC: AGRICULTURIST, R/O: KUDIHAL, TQ: KUNDAGOL, DIST: DHARWAD – 581 109. 3. SRI. RAMANNA S/O. VEERABHADRAPPA GIDAGANNAVAR, AGE: MAJOR, OCC: AGRICULTURIST, R/O: KUDIHAL, NOW AT MADLI, TQ: SHIGGOAN, DIST: DHARWAD – 581 204. 4. SMT. PAKEERAWWA W/O. SHEKAPPA HUBLI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: KUDIHAL, TQ: KUNDAGOL, DIST: DHARWAD – 581 109. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 5. CHANNAVVA (SUBHADRAVVA) W/O. SHANNAMUKAPPA BANAKANNAVAR, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: YALIVAL, TQ: KUNDAGOL, DIST: DHARWAD 581 109. 6. SMT. BASAVANNEVVA W/O. SHIVAPPA AMBLI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: DUNDSI, TQ: SHIGGAON, HAVERI DIST – 581 204. 7. SMT. BASAVANNAVVA W/O. YALLAPPA AMBLI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MADLI, TQ: SHIGGOAN, DIST: HAVERI – 581 204. 8. SMT. YALLAVVA W/O. MALLAPPA ANNIGERI, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: VANAHALLI, TQ: SHIGGOAN, DIST: DHARWAD – 581 205. 8A. SRI. SIDDAPPA S/O. MALLAPPA ANNIGERI, AGE: 61 YRS, OCC: AGRICULTURIST, R/O: VANAHALLI, TQ: SHIGGOAN, DIST: DHARWAD – 581 205. 8B. SMT. RUDRAVVA W/O. TIRUKAPPA KOTAGI, AGE: 64 YRS, OCC: AGRICULTURIST, R/O: HANCHINHAL, TQ: KUNDAGOL, DIST: DHARWAD – 581 109. …RESPONDENTS (BY SRI. R. H. ANGADI, ADVOCATE FOR R1 TO R3; R5 TO R8(B) ARE SERVED; R4, R8, R8(A) NOTICE HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF C.P.C PRAYING TO ALLOW THIS REGULAR SECOND APPEAL SET ASIDE THE REGULAR APPEAL NO.132/2009, BY DISMISSING THE APPEAL. DATED 08.12.2011, BY THE PRL. SENIOR CIVIL JUDGE HUBBALLI, AND CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE LEARNED CIVIL JUDGE (JR-DN) AND JMFC KUNDAGOL IN O.S.NO.5/2001 DATED 29.08.2009. AND ALLOWING THE APPEAL THEREBY SET ASIDE THE JUDGMENT AND DECREE DATED 29.08.2009 PASSED BY THE LEARNED CIVIL JUDGE (JR. DN.) KUNDAGOL IN O.S.NO.5/2001. IN THE INTEREST OF JUSTICE AND EQUITY. - 3 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by the defendant aggrieved by the judgment and decree dated 29.08.2009 passed in O.S.No.5/2001 on the file of Civil Judge (Jr.Dn.) & JMFC, Kundgol (for short the ‘Trial Court’), decreeing the suit of the plaintiffs for declaration and possession of the suit schedule property, which is confirmed by the Prl. Senior Civil Judge, Hubballi (for short the ‘First Appellate Court’) vide its judgment and decree dated 08.12.2011, passed in R.A.No.132/2009. 2. Subject matter of the suit is property bearing VPC.No.56 of Kubihala village consisting of a house of front and backyard (for short, ‘suit schedule property’). 3. The case of the plaintiffs is that one Veerappa was the original propositus of the plaintiffs’ family. That the suit schedule property is the ancestral property of the plaintiffs. Veerappa had two sons by name Ningappa and - 4 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 Gadigeppa. The younger son of Veerappa i.e., Gadigeppa passed away about 59 years ago leaving behind his wife Basavva and minor children by name Yallappa (plaintiff No.1) and Yallavva (plaintiff No.8). The first son Ningappa also died leaving him behind his children by name Veerabhadrappa and Basavannevva (plaintiff No.7) as his legal heirs. Gadigeppa and his elder brother Ningappa died in the suit property. On account of famine members of the family of Gidagannavar migrated from Kubihala to Vanahalli and Madli villages about 50 years ago by locking the suit property. 4. The mother of the defendant Basavannevva was a distant relative of the plaintiffs. She was married to one Sangaiah Matada of Jekinakatte village, Shiggaoan and that by deserting her matrimonial home, came to Kubihala about 44-45 years ago. Veerabhadrappa, father of plaintiff Nos. 2 to 6 had permitted her to reside in suit property on her assurance of she vacating and handing over the possession of suit property as and when asked. Accordingly, she was residing in the suit property shown in letters “ABCDEFRTDY” - 5 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 (C§PÀqÀE¥ÀgÀlqÀAiÀÄ). While said Veerbhadrappa retained the portion of the property shown in letters “PGNT” (¥Àd£Àl) being the back yard of the suit property. After his demise plaintiff Nos.1 to 3 are in possession of the said portion of the suit property. Thereafter the said portion marked by letters “PGNT” (¥Àd£Àl) was permitted to be used by the members of Avari and Gadi families for some time by the members of plaintiffs family. Now plaintiff Nos.1 to 3 are in the possession and enjoyment of said “PGNT” (¥Àd£Àl) portion of the suit property. 5. That after the death of Basavannevva, the plaintiffs permitted the defendant to continue and occupy the suit schedule property shown in letters “ABCDEFRTDY” (C§PÀqÀE¥ÀgÀlqÀAiÀÄ) at his request and also for the reason that the plaintiffs were residing at Vanalli and Madli. During the first week of November 2000, plaintiffs requested the defendant to vacate and hand over the premises in his occupation. In response, though initially defendant sought - 6 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 for time to vacate, later he proclaimed that he had certain documents in respect of the suit property in the name of his mother. Upon inquiry, the plaintiffs learnt that the defendant had got his name entered in the assessment register in respect of the suit property. On further inquiry, plaintiffs learnt that mother of the defendant in collusion with others had obtained certain documents. Accordingly, plaintiffs issued a legal notice dated 11.12.2000 calling upon the defendant to cancel any such illegal documents and deliver the possession of the property. The said notice though served on the defendant on 22.12.2000 has not been replied. Plaintiffs on further verification with the officers of the Sub-Registrar, Kundagol learnt that the mother of the defendant had obtained execution and registration of an illegal and concocted deed of sale by playing fraud and impersonation without the knowledge of predecessors in title of the plaintiffs in respect of the suit property. Accordingly, the suit for declaration and possession. - 7 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 6. The defendant in his written statement denying the plaint averments and genealogy finished by the plaintiffs and also the averments regarding the death of Gadigeppa about 50 years prior and his wife and children migrating from Kubihala village etc. The further averments of mother of Basavanevva having deserted her matrimonial home had come to Kubihala about 44-45 years and Veerbhadrappa permitting her to reside in the portion of the premises as a licensee is also denied. The claim of the plaintiffs being in possession of portion of the property is also denied. 7. It is contended that Smt. Basavannevva, had purchased the suit property from the ancestors of the plaintiffs in the year 1959 and has been in possession and enjoyment as absolute owner thereof. As such, neither the ancestors of the plaintiffs nor the plaintiffs had any right to give permission either to Avari family or Gadi family in any manner to occupy any portion of the suit property. That the mother of the defendant purchased the suit property - 8 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 from its original owners, namely, Shri Gadigeppa Basappa Gidagannavar and Shri Veerabhadrappa Ningappa Gidagannavar, both residents of Madli Village, Shiggaon Taluk. The said transaction was effected for a valuable consideration of Rs.800/- under a registered sale deed dated 02.04.1959, duly registered before the Office of the Sub-Registrar, Kundagol. It is averred that the entire sale consideration was paid and that possession of the property was delivered to the purchaser. Ever since, Smt. Basavannevva had been enjoying the suit property. The sale of the property by the original owners was to meet their financial necessities and also due to their inability to maintain the property, as they were residing in Madli Village and the residential house had become dilapidated. The description of the property purchased by the mother of the defendant is furnished in the written statement. After the demise of the defendant’s mother, the defendant's name was entered in the revenue records as the owner and person in occupation. The mother of the defendant used to pay the property tax to the concerned authority and had - 9 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 constructed a cow shed in the front yard. The defendant has constructed a roof in the front yard, annexing it to the northern wall of the house property. The plaintiffs, or any other person claiming under the vendors, namely Gadigeppa and Veerabhadrappa Gidagannavar, have no right, title, interest, or possession over any portion of the suit property. Hence, the defendant has sought for dismissal of the suit. 8. The Trial court based on pleadings, framed the following issues: 1. Whether the plaintiffs prove that the suit schedule property is their ancestral property? 2. Whether the plaintiffs prove their lawful possession over the portion of suit schedule property? 3. Whether the plaintiffs prove that while leaving suit schedule property they locked the door locks in order to keep the possession of the suit schedule property with them? 4 Whether plaintiffs prove that they put defendant's mother in permissive possession schedule property? of suit 5. Whether plaintiffs prove the alleged interference by the defendant over the of the suit schedule property? - 10 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 6. Whether plaintiffs prove that the sale deed dated 2-4-1959 is a fraudulent document? 7. Whether the Court fee paid is in sufficient? 8. Whether the suit is not maintainable? 9. Whether the suit relief is barred by limitation? 10. Whether the defendant proves that the boundaries and description of the suit schedule property by the plaintiff is in-correct? 11. Whether the plaintiffs are entitled for the relief of declaration of their title over the suit schedule property? 12. Whether the plaintiffs are entitled for the relief possession of portion of the suit schedule property? 13. Whether the plaintiffs are entitled for the relief of permanent injunction in respect of portion of suit schedule property? 14. Whether the plaintiffs are entitled for the relief of cancellation of sale deed dated. 2-4-1959? 15. What Order or Decree? 9. On appreciation of evidence, the Trial Court answered issue Nos.1,2,3,4,5,6,11,12,13 and 14 in the affirmative and issue Nos.7,8,9 and 10 in the negative and consequently, declared that the plaintiffs are the absolute owners of the suit schedule property, and held that the sale - 11 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 deed dated 02.04.1959 is non est in the eye of law. Accordingly, the Trial Court directed the defendant to hand over possession of the suit schedule property to the plaintiffs, as prayed for. 10. Being aggrieved by the said judgment and decree, the defendant preferred Regular Appeal in R.A. No.132/2009 before the Prl. Senior Civil Judge, Hubli. The First Appellate Court formulated the following point for its consideration: Whether the finding given by the lower Court on all the issues are perverse, capricious, un- reasonable and so passed without appreciation of oral and documentary evidence in its true perspective which warrant any interference by this appellate Court? The First Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the defendant is before this Court. 11. This Court by order dated 05.12.2018 framed the following substantial question of law for its consideration: - 12 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 “Whether the plaintiffs prove that the suit schedule property is their ancestral property and they are in lawful possession and enjoyment of the same, as on the date of filing of the suit?” 12. After hearing learned counsel for the parties, following additional substantial question of law is framed: “Whether the Trial Court and the First Appellate Court were justified in holding that the sale deed dated 02.04.1959, marked Ex.D-2, is non est in the eye of law?" 13. Learned counsel Shri M.M. Hiremath, appearing for the defendant taking this Court through the pleadings, evidence, and the records submitted that; (a) The defendant is in possession of the suit property pursuant to a deed of sale dated 02.04.1959 executed by one Gadigeppa Basappa Gidagannavar and Veerabhadrappa Ningappa Gidagannavar in favour of the mother of the defendant. - 13 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 (b) That the said sale deed is more than 30 years old, and therefore a presumption of its due execution must be drawn in the light of Section 90 of the Evidence Act. In the absence of any evidence produced by the plaintiffs to the contrary, its validity cannot be impeached. (c) That the defendant had an earlier occasion filed the suit in O.S. No.46/2000 against one Avari family, who had been permitted by the defendant to occupy the portion of the suit property. In that suit, issue No.1 was framed as to whether the plaintiff therein (who is the defendant in this case) proved that his mother had purchased the suit property. The said issue was answered in the affirmative and was confirmed in the appeal filed in R.A. No.108/2006, which is produced at Ex.P13. Thus, he submits that the title of the defendant over the suit property was put to test in the earlier proceedings and had held in the affirmative. (e) That the name of the mother of the defendant appeared in the revenue records soon after her purchase on 02.04.1959, and she passed away in the year 1977, ever - 14 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 since then, the name of defendant has been reflected in the revenue records, as seen at Ex.D1. (f) Though the plaintiffs’ claim that one of the vendors under the deed of sale dated 02.04.1959, namely Gadigeppa Basappa Gidagannavar, was a fictitious person, as he had passed away in the year 1941, they have failed to prove the said fact by leading any acceptable evidence. (g) That mere production of a death register extract marked as Ex.P4 does not satisfy the requirement of law. Further, the production of the said document does not establish the relationship of the deceased person mentioned therein with his alleged ancestors. In support of his contentions, he relies upon the judgment of the Coordinate Bench of this Court in the case of KHATALSAHEB WD. KHADIRSAHEB INAMDAR VS. AMEERSAHEB1. (f) He further submits that the sale deed was executed in the year 1953, whereas the suit was filed in the year 1 ILR 1995 KAR 78 - 15 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 2001, and is therefore hopelessly barred by limitation. The trial Court and the First Appellate Court have failed to appreciate the evidence in its proper perspective, resulting in perversity. As such, he seeks for a substantial question of law to be answered in favour of the appellant / defendant and for the appeal to be allowed. 14. Per contra, learned counsel Shri R.H. Angadi, appearing for the respondent / plaintiff, taking this Court extensively through the pleadings and the evidence, (a) At the outset points out to the averments made in paragraph No.8 of the written statement to contend that even according to the defendant, the suit schedule property belonged to the ancestors of the plaintiff. In the light of this admission, he submits that nothing remains for the plaintiffs to prove regarding their title over suit property. (b) That Ex.P4, the death certificate issued by the competent authority, clearly indicates that Gadigeppa Veerappa Gidagannavar, the second son of the propositus Veerappa, had passed away in the year 1941. As such, - 16 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 there was no possibility of defendant deriving title through him as he could not have executed the deed of sale dated 02.04.1959 in favour of the mother of the defendant. (c) That one of the vendor mentioned in the deed of sale is Gadigeppa Basappa Gidagannavar, who was no way concerned with the family of the plaintiffs. Therefore, he submits that in either case, Gadigeppa Veerappa Gidagannavar having passed away in the year 1941 and Gadigeppa Basappa Gidagannavar as shown in the sale deed not being a member of the family of the plaintiffs, the sale deed relied upon by the plaintiffs would not create any share, right, title or interest in favour of the mother of the defendant. (d) That when these facts are established, the name of the second vendor namely Veerabhadrappa Ningappa Gidagannavar has to be construed to be a fictitious person and an act of impersonation. (e) Learned counsel refers to the deposition of the defendant in the suit in O.S. No.46/2000, produced as - 17 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 Ex.P7, and points out that the defendant herein who was the plaintiff in the earlier suit categorically admitted that before the purchase, he had verified the revenue records and found the name of Gadigeppa Veerappa Gidagannavar being shown in the records, which clearly points out to the fact that the ancestors of the plaintiffs were the owners of the suit property. (f) He points out to the cross-examination of the defendant recorded in the present suit, wherein the defendant admitted that the original propositus had two sons namely Ningappa and Gadigeppa and that the Gadigeppa was elder son of Veerappa. Thus, based on the aforesaid pleadings and evidence, learned counsel for the plaintiffs contends that nothing further is required to prove the plaintiffs’ title, and that the defendant have not produced any documents to show that the prior to their purchase, the suit property was standing in the name of Gadigeppa Basappa Gidagannavar and Veerabhardappa Ningappa Gidagannavar. - 18 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 (g) Thus, he submits that in the absence of the defendant establishing their title, the suit was automatically required to have been decreed which had been done by the trial Court and confirmed by the First Appellate Court. Learned counsel for the plaintiffs / respondents further submits that the contention of the defendant that the plaintiffs did not belong to the family of Veerappa, but to the family of one Basappa is an afterthought raised during the arguments and the same is not pleaded in the written statement. Hence, he submits that the substantial question of law is required to be answered in favour of the respondents accordingly by dismissing the appeal. 15. Heard. Perused the records. 16. The genealogy under which the plaintiffs are claiming their relationship is shown at paragraph No.3 of the plaint, which is as under: - 19 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 17. From the averments made in paragraph No.4 of the plaint, it is clear that the descendants of the propositus Veerappa, including the plaintiffs, had left the village about 50 years ago and that the mother of the defendant was permitted to occupy the premises, purportedly on a permissive/licensee basis. 18. The defendant, on the other hand has set up a defence that his mother, Basavannevva had purchased the suit property from Gadigeppa Basappa Gidagannavar and Veerabhadrappa Ningappa Gidagannavar in terms of the registered deed of sale dated 02.04.1959, as produced at - 20 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 Exs.P3, P7 and D2. The controversy, therefore revolves around the execution and registration of this document. 19. Defendant in his written statement denied the genealogy as furnished by the plaintiffs. During the cross- examination of plaintiffs witnesses, specific suggestions have been made that original propositus was one Basappa S/o Veerappa, which is denied by the said witnesses by stating that there was no person by name Basappa belonging to the family of the plaintiffs. 20. The plaintiffs have contended that original propositus Veerappa had two sons by name Ningappa and Gadigeppa. The second son was also known as Gadigeppa Veerappa Gidagannavar, who passed away on 09.11.1941 and in support thereof, they have produced Ex.P4. 21. The trial Court and the First Appellate Court have accepted the said contention of the plaintiffs and have held that when Gadigeppa Veerappa Gidagannavar being the second son of the propositus Veerappa, had passed away on 09.11.1941, there was no possibility of such a person, or - 21 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 any other person claming under that name, executing the deed of sale in favour of the mother of the defendant. 22. It is necessary at this juncture to note that except Ex.D4, a death certificate issued under Section 12 and 17 of the Registrars of Births and Deaths Act, 1969, no other document is produced by the plaintiffs. Though, learned counsel for the plaintiffs / respondents submits that the details have been taken from the information available in the original records of the death, which is maintained in the Kubihala village with registration No.48, no such records are produced. 23. Though production of death certificate by itself can be the proof of death of the person named therein, the same however cannot be extended to prove and establish that the entries made there under relate to a particular person. The Coordinate Bench of this Court in the case of KHATALSAHEB WD. KHADIRSAHEB INAMDAR (supra), after referring to judgments of various High Courts on the - 22 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 point, paragraph No.13 has summarized the law which reads as under: “Birth and Death extracts can be admissible in evidence under Section 35 of the Evidence Act to show that a particular person by that name mentioned in the document was either born or dead on that particular day, but, in order to establish that the said entry relates to a particular person, there must be some evidence led by the party contending that such an entry relates to a particular person. Further, it is very clear that the entry in that birth or death extract cannot be a document to prove the paternity of a person mentioned there, because it is not the duty of the person who makes those entries to make any entry as to the paternity of the person mentioned there. The entries are only regarding birth and death of the person concerned and the official concerned is required to make these entries only in the discharge of his official duties. The document cannot be used for any purpose other than to prove the date of birth or death of a particular person mentioned in the extract. On the basis of mere entries in the birth or death extract, the paternity of a person cannot be determined. For that purpose, a party concerned will have to lead some other evidence to prove that a particular person was born to a particular man when that point is in issue in the case.” 24. In the instant case not only the defendant disputed the genealogy furnished by the plaintiffs in the plaint but, have also, during the cross examination of PW1 and PW2 have suggested that Ningappa and Gadigeppa were children of one Basappa Gidagannavar to which the - 23 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 said witnesses while denying the said suggestions have volunteer that there is no person by name Basappa Gidagannavar in their family. Since there is a specific dispute raised by the defendant, it was incumbent upon the plaintiffs to have proved and established that the name of the original propositus was Veerappa and not Basappa and that Gadigeppa Veerappa Gidagannavar was his son whose name is mentioned in Ex.P4. No evidence in this regard is produced by the plaintiffs as required under Sub-section (5) and (6) of Section 32 and Section 50 of the Evidence Act. This was imperative inasmuch as the entire premise on which the plaintiffs instituted a suit questioning the deed of sale dated 02.04.1959 as per Ex.P1 was that the same had not been executed by Gadigeppa Veerappa Gidagannavar as he had passed away on 09.11.1941 which plea has been accepted by both the trial Court and the First Appellate Court. As noted above mere production of death certificate at Ex.P4 would not dispense the requirement of proof in this regard. - 24 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 25. Another aspect of the matter is to be seen is that in the plaint though there is allegation of fabricating the document by impersonation, no further details are furnished. There is no denial in specific terms regarding execution of deed of sale by the aforesaid Gadigeppa Basappa Gidagannavar and Veerabhadrappa Ningappa Gidagannavar. It is only in the evidence that too upon the suggestion made by the defendant existence of person by name Basappa in the family of the plaintiffs is denied. 26. Even according to the plaintiffs Veerappa (though according to defendants it is Basappa) was the original propositus. He had two sons by name Ningappa and Gadigeppa. Even if the name of Gadigeppa has been wrongly shown as Gadigeppa Basappa Gidagannavar instead of Gadigeppa Veerappa Gidagannavar as sought to be contended by the plaintiff, there is no dispute that the grandson of Veerappa namely Veerabhadrappa Ningappa Gidagannavar is the other vendor shown in the deed of sale at Ex.P.3. The Trial Court while taking note of this aspect of - 25 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 the matter has however opined that when the very sale transaction is tainted with illegality the defendant was not permitted to contend that a portion of transaction was genuine as such the entire sale transaction has to be rejected in its entirety. 27. The aforesaid opinion and conclusion arrived at by the Trial Court confirmed by the First Appellate Court solely based on acceptance of death certificate at Ex.P.4 which as already observed herein above was not sufficient to establish the relationship or the entries made therein relates to a particular person. The conclusion thus arrived at by the Trial Court and the First Appellate Court is incorrect and erroneous. 28. Learned counsel for the plaintiff refers to the documents produced at Ex.P2, which is the extract of the Register issued by Gram Panchayat, Kubihala apparently for the year 1954-55 reflecting the name of Veerabhardappa Ningappa Gidagannavar. This document is vehemently relied upon by the learned counsel for the plaintiff to - 26 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 contend that the suit property belonged to the ancestors of the plaintiff and stood in the name of the grand son of the propositus. Similar is the document produced by the defendant at Ex.D5, which also refers the name of Veerabhadrappa Ningappa Gidagannavar, son of Ningappa and grand son of Veerappa. What emanates from the document at Exs.P2 and D5 is that Veerabhadrappa Ningappa Gidagannavar, who is the son of Ningappa (grand son of Veerappa, the propositus) finds mention in the deed of sale at Ex.P3. No evidence is brought on record by the plaintiff to disbelieve, he having executed the document except alleging that there is a impersonation. Thus, in view of the aforesaid aspect of the matter, the Trial Court and the First Appellate Court erred in accepting the contention of the plaintiff and in decreeing the suit without adverting to the proof of Veerabhadrappa Ningappa Gidagannavar executing the deed of sale in favour of the mother of the defendant. - 27 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 29. No attempt has been made to verify the authenticity of the execution of the said document by the said persons by the plaintiff by subjecting the document or the register of the thumb impression of the Sub Registrar Office for examination. Serious allegations of fictitious persons executing document by impersonation require high degree of satisfactory evidence to impeach the validity of document, which is admittedly of more than 30 years old. 30. Another aspect of the matter is to be seen is that, no document with regard to the revenue entries from the year 1954 till filing of the suit is produced by the plaintiffs. A reliance placed by the learned counsel for the plaintiffs on the averments made at paragraph 8 of the written statement to contend that the defendant had admitted to the fact of ancestors of the plaintiffs to be the owners of the property, cannot be taken as an exception inasmuch, the said Veerabhadrappa Ningappa Gidagannavar is also the ancestor of the plaintiffs. In that light of the matter, this Court is of the considered view that - 28 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 the trial Court and the First Appellate Court have erred in not taking these aspects of the matter into consideration, while decreeing the suit merely on the basis of the death certificate produced at Ex.P4 and the admission made at paragraph No.8 of the written statement. 31. The plaintiffs who have approached the Court seeking declaration of title and cancellation of the deed of sale were required to adduce the evidence discharging their burden, they are not expected to rely upon and take advantage of the weakness, if any, of the defendant. That not having been done, the trial Court and the First Appellate Court could not have decreed the suit. It cannot be lost sight of the fact that admittedly from the year 1954-55 onwards, the mother of the defendant and thereafter the defendant has been in possession of the property for over five decades and such possession was admittedly handed over by none other than Veerabhadrappa Ningappa Gadigannavar in consultation with Basavva wife of his uncle (wife of Gadigeppa) as pleaded in the plaint. Thus, there is - 29 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 no satisfactory explanation by the plaintiffs of they not exercising any of their rights in respect of the suit property till filing of the present suit in the year 2001. Ex.D.7 is the tax receipt extract for the year 1959-60 reflecting the name of mother of the defendant being the owner of the suit schedule property. 32. Relevant to note that the defendant on the other hand in exercise of his right of ownership have indeed initiated the proceedings in OS No.46/2000 against certain Gangappa S/o Ramappa Avari wherein an issue with regard to the ownership of the defendant in respect of the suit property, having been purchased by his mother had been framed and the same has been held to be in the affirmative. The plaintiffs in the present suit have claimed that the family of Avari were purportedly inducted by them in the portion of the suit. 33. These circumstances also weigh in favour of defendant of his mother having purchased the property under Exs.P3, P7 and D3. - 30 - HC-KAR NC: 2025:KHC-D:8555 RSA No. 5270 of 2012 34. For the aforesaid reasons and analysis, the substantial question of law is answered accordingly. In that, thought the plaintiffs have proved the suit schedule property as their ancestral property, they have failed to prove their lawful possession and enjoyment and have failed to prove the sale deed dated 02.04.1959 is non est in the eye of law. As such, the trial court and the first appellate court were not justified in decreeing the suit as sought for. Accordingly, the following: ORDER (a) The appeal is allowed. (b) The judgment and decree dated 29.08.2009 passed in O.S.No.5/2001 on the file of Civil Judge (Jr.Dn.) & JMFC, Kundgol and the judgment and decree dated 08.12.2011 passed in R.A.No.132/2009 on the file of the Prl. Senior Civil Judge, Hubballi are accordingly set aside. Sd/- (M.G.S. KAMAL) JUDGE VB 1 to 8, VNP 9 to end CT-ASC List No.: 1 Sl No.: 1