- 1 - HC-KAR NC: 2025:KHC:38622 RSA No. 1092 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.1092 OF 2020 (RES) BETWEEN: SRI KENCHAPPA SON OF HALAPPA AGED ABOUT 61 YEARS RESIDING AT SIRIGERE VILLAGE HARNAHALLI HOBLI, SHIVAMOGGA TALUK AND DISTRICT -577201 …APPELLANT (BY SRI M.C.JAYAKIRTHI, ADVOCATE) AND: 1. DURGAPPA SON OF HALAPPA AGED ABOUT 61 YEARS RESIDING AT SIRIGERE VILLAGE HARNAHALLI HOBLI, SHIVAMOGGA TLAUK, AND DISTRICT -577201 2. SRI SHANKARAPPA SON OF HALAPPA AGED ABOUT 61 YEARS RESIDING AT SIRIGERE VILLAGE HARANAHALLI HOBLI, SHIVAMOGGA TALUK AND DISTRICT -577201 …RESPONDENTS (BY SRI P.N.HARISH, ADVOCATE FOR R2; R1 IS SERVED AND UNREPRESENTED) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:38622 RSA No. 1092 of 2020 THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 02.03.2020 PASSED IN RA.NO.18/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGA ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.12.2015 PASSED IN O.S.NO.633/2009 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Jayakeerthi M.C., learned counsel for the appellant and Sri P.N. Harish for respondent No. 2. 2. Present second appeal can be disposed of on short issue while answering the substantial question of law No.(i), framed by this Court at the time of admitting the appeal by order dated 26.11.2021. 3. Substantive questions of law No.(i) reads as under: i. Whether the First Appellate Court was justified in dismissing the suit as not maintainable for want of jurisdiction even when the suit was tried as a original suit pursuant to the order passed by the District Judge at Shivamogga ? - 3 - HC-KAR NC: 2025:KHC:38622 RSA No. 1092 of 2020 4. In respect of the Will marked at Ex.P1, Smt.Eramma executed in favour of Kenchappa was the subject matter of proceedings before the District Court in P and SC No.3/2008, which was later converted into suit in O.S.No.633/2009, on account of contest as to the genuineness of the Will. 5. Learned Principal District and Sessions Judge, after converting the proceedings into the suit, transferred the suit to the II Additional Civil Judge and JMFC, Shivamogga for further consideration. 6. However, without any objections from the parties, suit was proceeded before the transferee Court and learned II Additional Civil Judge and JMFC, Shivamogga decreed the suit of the plaintiff. 7. An Appeal came to be filed by the defendant - Shankarappa before the First Appellate Court in R.A.No.18/2016 against the plaintiff and defendant No.1. 8. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and - 4 - HC-KAR NC: 2025:KHC:38622 RSA No. 1092 of 2020 allowed the appeal of defendant No.2 and set aside the judgment of the trial Court and dismissed the suit of the plaintiff. 9. Being aggrieved by the same, it is the plaintiff who has filed the present second appeal on various grounds. 10. As stated supra, appeal came to be admitted on two substantial questions of law. But, by consent of the parties, this appeal is now being disposed only on the first substantive question of law. 11. Probate proceedings, which was converted into a suit on account of the objections raised by the respondents, was continued to be adjudicated by the District Court itself. 12. However, without noticing that in respect of such matters, Civil Judge, Junior Division has no jurisdiction, in view of the provisions of Indian Succession Act, the suit was transferred to II Additional Civil Judge and JMFC., Shivamogga. 13. Thus, adjudication of the suit by the trial Judge, decreeing of the suit and later on, the First Appellate Court allowing the appeal and dismissing the suit has resulted in - 5 - HC-KAR NC: 2025:KHC:38622 RSA No. 1092 of 2020 miscarriage of justice on account of want of jurisdiction with the Civil Judge (Jr.Dn) and JMFC., Shivamogga. 14. It is needless to emphasize that a Court without jurisdiction, trying a suit and delivering the judgment is a nullity. 15. Therefore, the judgments of the trial Court and First Appellate Court need to be set aside and matter needs to be remitted to the District Court for disposal in accordance with law. 16. Further, the parties have filed a joint memo in this regard which reads as under: “The appellant and the respondent named above prayed for the evidence lead by them before the Trial Court may be treated as part of the evidence of de-novo trial. However the appellant and the respondent pray that they may be permitted to lead further evidence. The appellant and the respondents further submit that this Hon’ble Court may dispense with regarding the 2nd substantial question of law in view of the fact that this appeal is disposed by Court.” - 6 - HC-KAR NC: 2025:KHC:38622 RSA No. 1092 of 2020 17. Placing the memo on record, de novo trial is dispensed. But, parties are at liberty to place additional evidence, if any, before the District Court and thereafter, learned Judge in the District Court shall dispose of matter as early as possible, having regard to the fact that original probate proceedings was of the year 2008 and suit itself is of the year 2009. 18. In view of foregoing discussion, following order is passed: ORDER (i) Regular Second Appeal is allowed. (ii) Judgments passed by the II Additional Civil Judge and JMFC., Shivamogga in O.S.No.633/2009 as well as I Additional Senior Civil Judge and CJM., and AMACT-VII, Shivamogga in R.A.No.18/2016 are hereby set aside, as they are being passed without jurisdiction and they are to be treated as non- est. - 7 - HC-KAR NC: 2025:KHC:38622 RSA No. 1092 of 2020 (iii) Consequently, the matter is ordered to be remitted to the District Court for fresh disposal in accordance with law after affording the necessary opportunity for the parties to place additional evidence, if any. (iv) In view of the joint memo filed by the parties, de novo trial is dispensed with and evidence already recorded by the II Additional Civil Judge, Shivamogga, shall remain as evidence on record. But, parties are at liberty to place additional evidence, if any. (v) Parties shall appear without further notice before the Principal District and Sessions Judge, Shivamogga on 17.10.2025. Thereafter, matter shall be disposed off as early as possible. (vi) No order as to costs. Sd/- (V SRISHANANDA) JUDGE MR