- 1 - NC: 2025:KHC-D:4716 RSA No. 100860 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100860 OF 2018 (DEC/INJ-) BETWEEN: SURESH S/O. NIJALINGAPPA SHEDLIGERI, AGE: 60 YEARS, OCC: AGRICULTURE, R/O. CHINCHALI, TQ & DIST: GADAG-581109. …APPELLANT (BY SRI. B.V. SOMAPUR, ADVOCATE) AND: VIJAYAKUMAR S/O. NINGAPPA RADDER, AGE: 28 YEARS, OCC: AGRICULTURE, R/O: KATNUR, TQ: HUBBALLI, DIST: DHARWAD-581128. …RESPONDENT (BY SRI. DAYANAND M. BANDI FOR C/R) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C. PRAYING TO THE IMPUGNED JUDGMENT AND DECREE PASSED BY LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, GADAG IN R.A. NO.37/2016 DATED 19/09/2018 AND JUDGMENT AND DECREE PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE, GADAG IN O.S.NO.46/2010 DATED 28/03/2016 MAY PLEASE BE SET ASIDE AND THE SUIT BE DISMISSED WITH COST THROUGHOUT. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4716 RSA No. 100860 of 2018 ORAL JUDGMENT This appeal is filed by the defendant assailing the judgment and decree dated 19.09.2018 in R.A.No.37/2016 on the file of the Principal District and Sessions Judge, Gadag (for short (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 28.03.2016 in O.S.No.46/2010 on the file of the Additional Senior Civil Judge, Gadag (for short “the Trial Court”) decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiff that one Smt.Basamma @ Basavva W/o. Mahadevappa Kamareddi is owner of the suit schedule property and the plaintiff has purchased the suit schedule property as per the registered sale deed dated 03.07.2009 for valuable consideration of Rs.9,10,000/- and therefore, the plaintiff became the owner of the suit schedule property. It is stated in the plaint that, the defendant is illegally interfering with the possession of the suit schedule property based on the Will dated 03.09.1975 said to have been executed by the husband of the vendor of the plaintiff and therefore, the - 3 - NC: 2025:KHC-D:4716 RSA No. 100860 of 2018 plaintiff has filed suit in O.S.No.46/2010 seeking declaratory relief in respect of the suit schedule property. 3.1. After service of notice, the defendant entered appearance and filed detailed written statement contending that Mahadevappa (husband of Basamma) had executed Will dated 03.09.1975 in favour of the defendant and therefore, after the death of Mahadevappa during 1978, the defendant became the owner of the suit schedule property. It is also stated that there were some differences between the defendants and Smt.Basamma and therefore, the plaintiff has filed O.S.No.87/2001 against the vendor of the plaintiff/Smt.Basavva seeking declaration and injunction, which came to be dismissed and being aggrieved by the same, the defendant has preferred R.A.No.94/2008, which is pending consideration before the First Appellate Court. Therefore, the defendant stated that the sale deed dated 03.07.2009 is a sham document and therefore, sought for dismissal of the suit. The Trial Court, on the basis of pleadings on record, formulated issues for its consideration. - 4 - NC: 2025:KHC-D:4716 RSA No. 100860 of 2018 3.2. In order to establish their case, plaintiff has examined two witnesses as PW1 and PW2 and produced nine documents, which were marked as Ex.P1 to Ex.P9. The defendant has examined one witness as DW1 and no documents were produced by the defendant. 3.3. The Trial Court, after considering the material on record, by its judgment and decree dated 28.03.2016 decreed the suit. Being aggrieved by the same, the defendant has preferred an appeal in R.A.No.37/2016 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court, after considering the material on record, by its judgment and decree dated 19.09.2018 dismissed the appeal and consequently, confirmed the judgment and decree passed by the Trial Court in O.S.No.46/2010. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 4. I have heard Sri.B.V.Somapur, learned counsel appearing for the appellant and Sri.Dayanand M Bandi, learned counsel appearing for the respondent. - 5 - NC: 2025:KHC-D:4716 RSA No. 100860 of 2018 5. It is contended by Sri.B.V.Somapur, learned counsel appearing for the appellant that sale deed said to have been executed on 03.07.2009 is a sham document executed by Smt.Basavva in favour of the respondent herein and in this aspect, O.S.No.87/2001 is filed, which came to be dismissed and thereafter, R.A.No.94/2008 is pending consideration before the competent First Appellate Court. It is also contended by the learned counsel appearing for the appellant that the defendant acquired the property as per the Will dated 03.09.1975 said to have been executed by late Mahadevappa and therefore, sought for interference of this Court. 6. Per contra, Sri. Dayanand M Bandi, learned counsel appearing for the respondent, sought to justify the impugned judgment and decree passed by both the Courts below. 7. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. It is the case of the plaintiff that the plaintiff had acquired the suit schedule property as per the registered sale deed dated 03.07.2009 (Ex.P2) from Smt.Basamma @ Basavva W/o.Mahadevappa - 6 - NC: 2025:KHC-D:4716 RSA No. 100860 of 2018 Kamareddi. It is the case of the defendant that Mahadevappa Kamareddi had executed Will dated 03.09.1975 bequeathing property in question to the defendant. In this regard, having taken note of the finding recorded by the Courts below, I am of the view that the plaintiff has established his right over the property in question as per the registered sale deed dated 03.07.2009 and on the other hand, though the defendant has taken up a plea that the defendant acquired the property as per the Will dated 03.09.1975 however, same has not been proved as required under Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. It is well settled principles of law that when a party urge before the Court that he had acquired the property in question through Will, it is the duty of the legatee to remove the suspicious circumstances and also to prove the Will by examining the witnesses/testators to the Will in a manner known to law. In the absence of the same, such plea cannot be accepted. 8. On careful examination of the finding recorded by the Trial Court wherein the defendant has failed to prove the Will in a manner known to law and in that view of the matter, the Trial Court has rightly decreed the suit in favour of the - 7 - NC: 2025:KHC-D:4716 RSA No. 100860 of 2018 plaintiff and same has been considered by the First Appellate Court as required under Order XLI Rule 31 of CPC by confirming the same on re-appreciation of entire material on record. It is also to be noted that the plaintiff has acquired the legal right over the suit schedule properties as per the registered sale deed at Ex.P2 and in that view of the matter, no interference is called for in this appeal as both the Courts below have concurrently held in favour of the plaintiff based on the registered sale deed at Ex.P2. Therefore, no interference is called for as there is no perversity in the judgment and decree passed by the Courts below. Accordingly, the appeal is dismissed at the stage of admissions itself as the appellant herein has not made out a case for formulation of substantial question as required under law. In the result, the appeal fails. 9. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT-MCK, List No.: 1 Sl No.: 23