- 1 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1357 OF 2009 (PAR) BETWEEN: 1. RUDRAPPA AGED ABOUT 55 YEARS 2. RAJANNA AGED ABOUT 45 YEARS BOTH ARE THE SONS OF LATE PUTTAVEERABHADRAIAH GARANI VILLAGE, I.D. HALLI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572101 …APPELLANTS (BY SRI. R.A. DEVANAND, ADVOCATE) AND: RUDRAPPA S/O. BHADRAIAH AGED ABOUT 41 YEARS (ALLEGED THAT IN THE CAUSE TITLE IN THE TRIAL COURT ADOPTED SON OF NARAYANAPPA) R/O. GARANI VILLAGE, I.D. HALLI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572 101. …RESPONDENT (BY SRI. GOUTHAM K.V., ADVOCATE FOR SRI. VIVEK .S., ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 14.08.2009 PASSED IN R.A.NO.113/1999, ON THE FILE OF THE PRL. CIVIL JUDGE, (SR. DN.) Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 AND JMFC, MADHUGRI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 19.03.1999 PASSED IN O.S.318/1989 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, (JR. DN.), MADHUGIRI. THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT The appellants being the defendants in OS No.318 of 1989 on the file of the learned Civil Judge (Jr.Dn), Madhugiri (hereinafter referred to as 'the Trial Court' for short), are seeking to set aside the judgment and decree dated 14.08.2009 passed in RA No.113 of 1999 on the file of the learned Principal Civil Judge (Sr.Dn) and JMFC, Madhugiri (hereinafter referred to as 'the First Appellate Court' for short), allowing the appeal by setting aside the judgment and decree dated 19.03.1999 and thereby decreeing the suit of the plaintiff for declaration, partition and separate possession of the properties. 2. For the sake of convenience, the rank of the parties shall be referred to as per their rank and status before the Trial Court. - 3 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 3. Facts of the case in brief are that, the plaintiff filed the suit OS No.318 of 1989 before the Trial Court against the appellants seeking declaration that the plaintiff being the adopted son of deceased Narayanappa is entitled for 3/4th share in the suit properties, for partition and separate possession of his share by metes and bounds and to put him in possession of the same, restraining defendants No.1 and 2 and all others claiming under them from interfering with his possession and enjoyment of the suit properties and for costs. The schedule appended to the plaint describes as many as 10 agricultural properties, situated in Garani Village, I.D.Halli Hobli of Madhugiri Taluk and 2 house properties, with the boundaries mentioned therein. 4. It is the contention of the plaintiff before the Trial Court that, one Rudrappa had 3 sons by name, Ashwathappa, Narayanappa and Puttaveerabhadrappa. Ashwathappa and Narayanappa have died. Ashwathappa was having a son by name Bhadraiaah and plaintiff is the biological son of said Bhadraiah. Basavaraju and Shivaraju are the brothers of the plaintiff, being the sons of Bhadraiah. Late Narayanappa is having a wife by name Doddalingamma-defendant No.3. - 4 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 Puttaveerabhadrappa is having 2 sons by name, Rudrappa and Rajappa i.e. defendants No.1 and 2. 5. It is the contention of the plaintiff that, since late Narayanappa and defendant No.3 were not having any issues, they adopted the plaintiff on 05.03.1968. Narayanappa died on 23.09.1988. At the time of his death, he was owning the properties described in the schedule. The same were his ancestral properties acquired under the partition dated 23.04.1971 entered into between him and his two brothers. Since the plaintiff is the adopted son of Narayanappa, he is entitled for 1/2 share in the plaint schedule properties and on the death of Narayanappa, the plaintiff is entitled for 3/4 share in the suit schedule properties and the remaining 1/4 share devolved on defendant No.3 being the wife. 7. It is contended that the share of the plaintiff in the schedule properties was denied by the defendants contending that Narayanappa had left behind the registered Will dated 16.08.1979. But Narayanappa had no authority to bequeath the schedule properties by executing the Will, since the schedule properties are the joint family properties and the plaintiff - 5 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 acquired legitimate share in the same on his adoption. Therefore, it is contended that defendant Nos.1 and 2 have not acquired any right, title or interest over the schedule properties under the so-called Will. It is contended that the defendants started denying the right of the plaintiff over the schedule properties even though he was in joint possession of the same. Therefore, cause of action for the suit arose subsequent to 23.09.1988 i.e. from the date of the death of Narayanappa - the adoptive father of the plaintiff and prayed for declaration, partition and separate possession and also permanent injunction against the defendants. 8. Defendant No.1 has filed his written statement denying the contentions taken by the plaintiff. It is denied that the plaintiff is the adopted son of late Narayanappa. The plaintiff being the son of Bhadraiah, is residing with his father at Garani. The genealogy mentioned in the plaint showing the relationship between the parties is denied. It is denied that Narayanappa had adopted the plaintiff on 05.03.1968 and thus, the plaintiff has acquired any share, right or title in the schedule properties. - 6 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 9. Defendant No.1 contended that Narayanappa had died on 23.09.1988. He was owning the schedule properties as the same was acquired by him under the partition dated 09.06.1965, which was reduced into writing on 23.04.1971. Since Narayanappa and his wife defendant No.3 were aged, they were residing with defendants No.1 and 2 and their father Puttaveerabhadrappa. They were in possession and joint cultivation of the schedule properties, including the house properties. Narayanappa executed the Registered Will dated 16.08.1979 in favour of defendant Nos.1 and 2 bequeathing the schedule properties. The Will in question was executed bequeathing the properties in favour of defendant Nos.1 and 2, since the Testator was residing with them and the defendants were in joint possession of the schedule properties. It is contended that the plaintiff has no manner of right, title or interest over the schedule properties and there is no cause of action for the suit. It is also contended that defendant Nos.1 and 2 and their father have paid the land revenue in respect of the suit properties and also in respect of the house properties which was constructed by the father of the defendants where - 7 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 they were residing together. Accordingly, he prays for dismissal of the suit. 10. Defendant No.2 has filed written statement taking similar contentions and denying the right of the plaintiff to seek partition in the schedule properties. 11. On the basis of these pleadings, the Trial Court framed the following issues for consideration: "1. Whether plaintiff proves that he is adopted son of Narayanappa? 2. Whether plaintiff proves genealogical tree of the family? 3. Whether plaintiff proves that suit property is joint family property of plaintiff and defendant No.3? 4. Whether cause of action arose to file this suit? 5. Whether plaintiff is entitled for the reliefs sought for? 6. What Order or Decree?" - 8 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 12. The plaintiff examined PWs.1 to 7 and got marked Ex.P1 in support of his contention. The defendants examined DWs.1 to 4 and got marked Exs.D1 to 35 in support of their defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 5 in the negative and proceeded to dismiss the suit. Being aggrieved by the same, the plaintiff has preferred RA No.113 of 1999. An application under Order XLI Rule 27 of CPC was filed by the plaintiff / appellant seeking production of additional documents. The First Appellate Court on re-appreciation of materials on record, allowed the application filed under Order XLI Rule 27 of CPC and also allowed the appeal, consequently the judgment and decree passed by the Trial Court was set aside. Being aggrieved by the same, defendant Nos.1 and 2 are before this Court. 13. Heard Sri R.A.Devanand, learned counsel for the appellants and Sri. Goutham K.V. learned counsel for Sri. Vivek S., learned counsel for the respondent. Perused the materials including the Trial Court records. - 9 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 14. Learned counsel for the appellants contended that the plaintiff is the adopted son of Narayanappa. He produced Ex.P1 which was marked subject to objection raised by the defendants. It is an unregistered document. The plaintiff except producing the same and getting it marked as per Ex.P1 subject to the objection, has not made any effort to prove the same. No other witnesses are examined in proof of his adoption by Narayanappa. According to PW1, he was hardly 1½ years old when he was adopted by his uncle. The evidence of PW2 being the witness to Ex.P1 and PW3 being the Document Writer who said to be the author of Ex.P1 are not helpful for the plaintiff to prove due execution of Ex.P1. PW4 is the father-in-law of the plaintiff. PWs.5 and 6 are the biological father and mother of the plaintiff and PW7 is the friend of the plaintiff. The evidence of these witnesses are inconsistent with one another and do not support the case of the plaintiff. Even if the evidence led by these witnesses are to be taken into consideration, the contention of the plaintiff is not proved. 15. Learned counsel further contended that even though the plaintiff has referred to the registered Will - Ex.D2, he has not sought for any relief in respect of the same. When the - 10 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 plaintiff examined himself as PW1, even in his chief examination, there is no reference to the Will executed in favour of the defendants. When the plaintiff referred to the Will in the plaint he should have taken a stand with regard to the said Will and should have spoken to about the same in the chief-examination. When defendant Nos.1 and 2 have categorically stated regarding bequeathing the schedule properties in their favour by Narayanappa by executing the Registered Will as per Ex.D2, the plaintiff has not filed any rejoinder to deny the same. Under such circumstances, the Trial Court had not framed any issue in proof of the Will relied on by the defendants. The Trial Court, after taking into consideration the materials on record, answered issues No.1 to 5 in the negative and dismissed the suit of the plaintiff. 16. Learned counsel further contended that PW1 during his cross-examination, pleaded his ignorance as to who were all present when he was adopted by Narayanappa. He also pleads ignorance about possession of the schedule properties atleast since 20 years prior to filing of the suit. He was also not aware of his date of birth. According to the plaintiff, he has not gone to the school. Ex.D3 is the school record pertaining to the - 11 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 plaintiff, which discloses that he had studied upto 9th standard in the Government School at Garani Village. DW3 is the classmate of the plaintiff, who deposed that himself and plaintiff had studied upto 7th Standard in the Government School at Garani. These materials falsify the contention of the plaintiff. 17. Learned counsel further contended that even though DW1 has referred to execution of the Will as per Ex.D2 by Narayanappa, there is absolutely no cross-examination to DW1 in that regard. There is not even a suggestion to DW1 denying execution of the Will. DWs.2 and 4 are the attesting witnesses to the Will who have fully supported the case of the defendants. 18. Learned counsel further submitted that even though the Trial Court has dismissed the suit of the plaintiff, the reasoning of the Trial Court is found only in paragraph 23 of the judgment, answering issue Nos.1 to 3 in the negative. It could have given better reasons against Ex.P1 and in favour of the Will - Ex.D2. However, since no issues were framed with regard to the execution of Will, no finding was recorded by the Trial Court. - 12 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 19. Learned counsel further contended that PW5 is the biological father of the plaintiff. He is still alive, but strangely he is not a party to the proceedings. Therefore, the suit of the plaintiff is liable to be dismissed for non-joinder of necessary party. 20. Learned counsel contended that the First Appellate Court committed an error in allowing the application filed under Order XLI Rule 27 of CPC and allowing the appeal by setting aside the judgment and decree passed by the Trial Court thereby, decreeing the suit of the plaintiff. Strangely, the First Appellate Court has not recorded any finding regarding Ex.P1- the Adoption Deed relied on by the plaintiff. The finding of the First Appellate Court is based on a compromise petition. Such compromise petition was never pleaded by the plaintiff nor produced before the Trial Court. Even according to the finding of the First Appellate Court, no suit or proceedings was settled pursuant to the compromise petition. On the other hand, the same was rejected as void-ab-initio. Under such circumstances, the First Appellate Court committed grave error in referring to such imaginary document which was not referred to by any of the parties. Therefore he prayed for allowing the appeal or - 13 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 atleast to remand the matter to the Trial Court for fresh consideration. 21. Learned counsel for the respondent fairly concedes that there is no pleadings with regard to the Will relied on by the defendants. No issues were framed. He also concedes that the unregistered adoption deed - Ex.P1 was marked subject to objection and no other evidence is led in proof of the same. Learned counsel further submitted that both the parties to the suit have not led the evidence in accordance with law. Similarly, both the Courts have lost sight of the fact that there is no proper pleading or evidence with regard to the Will on behalf of the plaintiff. 22. Learned counsel for the respondent concedes that the First Appellate Court could not have relied on the additional documents produced before it without giving opportunity to the respondents to counter those documents. 23. Learned counsel for the appellants and the respondent submit in unison that the matter will have to be remanded back to the Trial Court for fresh consideration by permitting both the parties to set right their pleadings, produce - 14 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 additional documents and adduce additional evidence so that the rights of the parties can be decided finally. 24. This Court vide order dated 18.01.2010 has formulated the following substantial questions of law: "i) Whether the First Appellate Court, having accepted the Adoption Deed in favour of the plaintiff, was right in proceeding on that basis without seeking to reconcile the terms of a registered Will in favour of the appellant? ii) Whether the Will claimed by the appellant could be accepted inspite of a contest to the same by the plaintiff?" 25. It is a very strange case where in the plaint the plaintiff refers to the Will - Ex.D2 but has not claimed any relief with regard to the same. In the written statement, the defendants refers to the registered Will - Ex.D2 and claims right over the property as the same was bequeathed in his favour. Inspite of that, the plaintiff has not filed any rejoinder. No issues were framed by the Trial Court. The plaintiff who is examined as PW1 has not whispered anything about the Will - Ex.D2 in his chief examination. Consequently, there is no cross - 15 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 examination to PW1 on this document. The defendant who is examined as DW1 has stated elaborately about the Will and also examined the attesting witnesses. Taking into consideration all these facts, the Trial Court dismissed the suit. However, the First Appellate Court on re-appreciation of the materials on record, proceeded to allow the appeal ignoring all these material facts which are referred to above and also considered the additional documents relied on by the plaintiff under Order 41 Rule 27 of CPC, without affording an opportunity to the defendants to counter the same. No additional evidence was recorded to prove the said document by the plaintiff and no opportunity was given to the defendants to cross examine the plaintiff about the same. 26. It is also pertinent to note that Ex.D2 - Will is dated 16.08.1979. The propositor Narayanappa died on 23.09.1988. Defendant No.3 is the wife of Narayanappa and was residing with him at the time of his death, but she was not given any share in the property as per Ex.D2. However, the suit came to be filed in the year 1988 and originally it was numbered as OS No.89 of 1988. The possession of the properties in all these days by paying the land revenue is also the material fact to be - 16 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 taken into consideration. The other point that is to be considered is with regard to proof of adoption deed - Ex.P1, which is marked subject to objection. It is not made clear as to whether there are any other documents or circumstances to prove adoption of plaintiff by Narayanappa. 27. Since all these facts and circumstances and the irregularities in prosecuting and defending the suit are not taken into consideration, I find considerable force in the submission made by the learned counsel for the appellants and respondent that instead of disposing off the appeal on merits, the same is required to be allowed and to be remanded back to the Trial Court for fresh consideration in accordance with law, as the same will enable the parties to place necessary materials before the Court and the Court will be in a better position to decide the rights of the parties over the schedule properties. Hence, I hold that the substantial questions of law referred to above does not arise for consideration. Therefore, I proceed to pass the following: ORDER i) The appeal is allowed. - 17 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 ii) The judgment and decree dated 14.08.2009 passed in RA.No.113 of 1999 on the file of the learned Principal Civil Judge (Sr.Dn.) and JMFC, Madhugiri, is set aside; iii) The matter is remanded back to the Trial Court with liberty to both the parties to amend their pleadings in accordance with law, to produce additional documents and to lead further evidence, if any; iv) The Trial Court shall provide reasonable opportunity to both the parties and dispose of the suit expeditiously atleast within a period of six months from the date of appearance of the parties; v) It is needless to say that the plaintiff, defendants and their counsel shall co-operate with the Trial Court in such early disposal; vi) Both the parties are directed to appear before the Trial Court on 01.12.2025 without awaiting for fresh summons by the Trial Court; Registry is directed to send back the Trial Court records along with copy of this judgment to the Trial Court, for - 18 - HC-KAR NC: 2025:KHC:43343 RSA No. 1357 of 2009 information and needful action along with the additional documents produced before the First Appellate Court. In view of disposal of main appeal, pending interlocutory applications does not survive for consideration, accordingly, the same stands disposed off. SD/- (M G UMA) JUDGE PNV/MKM/BGN List No.: 1 Sl No.: 2