- 1 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1075 OF 2009 (DEC/INJ) BETWEEN: SRI. G.K. MAHADEVA S/O KARIGOWDA, AGED ABOUT 36 YEARS, GANDHANAHALLY, HOSAGRAHARA HOBLI, K. R. NAGAR TALUK, MYSORE DISTRICT - 570 001. …APPELLANT (BY SRI. H. KANTHARAJA, SR. ADVOCATE FOR SRI. RAVI H.K., ADVOCATE) AND: SRI. G.S. BEEREGOWDA, SINCE DEAD BY LRS., 1(A). G.B. KALALINGAMMA,. W/O LAE SHANTHAPPA, AGED ABOUT 72 YEARS R/O, KAMENAHALLI VILLAGE, HOUSUR KALAHALLIPOST, K R NAGAR TALUK, MYSORE DISTRICT - 571 602. 1(B). G.B. RENUKA W/O LATE RAMEHA AGED ABOUT 55 YEARS R/O. HADGUR VILLAGE KALIKERGERE POST K R NAGAR TALUK MYSORE DISTRICT - 571 601. Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 1(C). G.B. MEENAKSHI W/O LATE BALU AGED ABOUT 52 YEARS R/O, SONNEGOWDA COLONY RATHNAPURI POST, HUNSUR TALUK MYSORE DISTRICT - 571 189. 1(D). G.B. SAROJA W/O GANGADHAR AGED ABUT 49 YEARS R/O, KURUBARA BATHI BUKUNKERE HOBLI MAVINKERE POST K R PETE TALUK, MANDYA DISTRICT - 571 812. 1(E). G.B. PUTTASWAMY GOWDA LATE. G.S. BEERE GOWDA AGED ABOUT 68 YEARS R/O, GANDHANAHALLI VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT - 571 603. 1(F). G.B. RAVISHNAKARA AGED ABOUT 65YEARS LATE. BEEREGOWDA R/O, GANDHANAHALLI VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT - 571 603. 1(G). G.B. JAYARAMEGOWDA LATE. BEEREGOWDA AGED ABOUT 62 YEARS R/O, GANDHANAHALLI VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT - 571 603. 1(H). G.B. KUMARA, LATE. BEEREGOWDA AGED ABOUT 62 YEARS R/O, GANDHANAHALLI VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT - 571 603. - 3 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 1(I). G.B. MANJUNATH, LATE. BEEREGOWDA AGED ABOUT 57 YEARS, R/O, GANDHANAHALLI VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT - 571 603. 1(J). SUMITHRA W/O LATE. G.B. NAGARJAEGOWDA, AGED ABOUT 55 YEARS R/O, GANDHANAHALLI VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT - 571 603. 1(K). TILAK PRASAD, LATE. G.B. NAGARJAEGOWDA, AGED ABOUT 34 YEARS, R/O, GANDHANAHALLI VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT - 571 603. AMENDMENT CARRIED OUT AS PER ORDER DATED: 23.10.2024 …RESPONDENTS (BY SRI. A. LOURDU MARIYAPPA, ADVOCATE FOR R1 (A TO J) R1(K) - SD/-) THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD: 06.06.2009 PASSED IN R.A.NO.22/2007 ON THE FILE OF THE CIVIL JUDGE (SR. DN) & JMFC, K.R.NAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD: 09.08.1996 PASSED IN OS.184/1992 ON THE FILE OF THE MUNSIFF AND JMFC, K.R.NAGAR. THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA - 4 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 ORAL JUDGMENT The petitioner being the plaintiff in OS.No.184/1992 on the file of the learned Munsiff and JMFC, K.R.Nagar (hereinafter referred to as 'the Trial Court') is impugning the judgment and decree dated 06.06.2009 passed in RA No.22/2007 on the file of the learned Civil Judge (Sr.Dn.) and JMFC, K.R.Nagar, (hereinafter referred to as the First Appellate Court) where under, the appeal was allowed, and the judgment and decree dated 09.08.1996 passed by the Trial Court was set-aside and consequently, the suit in OS.No.184/1992 filed by the appellant for declaration of his title and for permanent injunction was dismissed. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. The facts of the case in brief are that, the plaintiff filed the suit in OS.No.184/1992 against the defendant before the Trial Court contending that, the suit schedule property i.e., the mangalore tiled house is situated in Gandhanahalli, measuring 26 by 40 feet with vacant site measuring 9 by 15 feet. Khata No.162, assessment No.214 with the boundaries - 5 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 mentioned therein originally belonged to one Poojari Chikkegowda, the grandfather of the plaintiff. The said Poojari Chikkegowda, being the absolute owner in exclusive possession and enjoyment of the suit schedule property, bequeathed the same in favour of the plaintiff by executing the registered Will dated 30.01.1985. Till the death of testator-Poojari Chikkegowda, he was in possession and enjoyment of the property in question and after his death, it is the plaintiff, who is in exclusive possession and enjoyment of the schedule property consisting of a tiled house and the vacant site. It is the contention of plaintiff that, the defendant being the brother of testator Poojari Chikkegowda, started interfering with his peaceful possession and enjoyment of the schedule property and therefore, filed the suit seeking declaration of his title based on registered Will, and for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the schedule property. 4. The defendant has appeared before the Court and filed his written statement denying the contentions taken by the plaintiff. It is denied that Poojari Chikkegowda had executed a Will in favour of the plaintiff. The description of the - 6 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 schedule property is also denied. It is contended by the defendant that, he is the brother of Poojari Chikkegowda referred to by the plaintiff. He along with Poojari Chikkegowda constructed the house in the schedule property, and they were living together about 30 years ago. They got divided the suit schedule property orally. The western half portion was allotted to the share of Poojari Chikkegowda and the Eastern half portion was allotted to the share of the defendant. Since then, Poojari Chikkegowda was enjoying the western half portion, while the defendant was in possession and enjoyment of the eastern half portion. Therefore it is contented that, Poojari Chikkegowda had no absolute right and title over the schedule property and he could not have executed the Will bequeathing the property in favour of plaintiff. As a result, it is contented that the plaintiff had not acquired any title over the schedule property and he is not entitled for any relief. 5. On the basis of these pleadings, the following issues were framed. (i) Whether the plaintiff proves that the late Karigowda was in sound disposing mind while bequeathing the plaint schedule property, in - 7 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 his favour under a registered Will deed dated 30.01.1985? (ii) Whether the defendant proves that he derived the title under the suit will, to the suit property? (iii) Whether the defendant proves that in that family partition, he got half portion of plaint scheduled property? (iv) Whether the plaintiff proves, his exclusive lawful possession over the plaint schedule property? (v) Whether the defendant proves that he is in lawful possession of the half portion of the plaint schedule property? (vi) Whether the description of the suit is correct and proper? (vii) Whether the suit is barred by limitation? (viii) Whether the plaintiff proves illegal interference to his use and enjoyment of the suit house? (ix) Whether the plaintiff is entitled to relief of declaration and injunction, as sought? (x) What decree or order? - 8 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 Additional Issues: (i) Whether the plaintiff proves that Chikkegowda was being called as Poojari Chikkegowda son of Savadegowda? (ii) Whether the defendant proves that the revenue entries are got up by the plaintiff as pleaded in para - 2 of the additional written statement? 6. Plaintiff examined himself as PW1 and examined PWs.2 to 5, got marked Exs.P1 to 7 in support of his contentions. The defendant examined himself as DW1, examined DW2 and got marked Exs.D1 to 14 in support of his defence. The Trial Court after taking into consideration all these materials on record came to the conclusion that, the plaintiff is successful in proving execution of the Will and his title over the schedule property. It was also held that the Chikkegowda was the absolute owner of the schedule property and therefore, plaintiff is entitled for declaration of his title and for the relief of permanent injunction as prayed for. 7. It was also held that the defendant was not successful in proving his contentions as stated in the written - 9 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 statement and accordingly, Trial Court answered Issue Nos.1, 2, 4, 6, 8 and 9, additional Issue No.1 in the Affirmative and Issue Nos.3, 5, 7 and Additional Issue No.2 in the negative. Accordingly, the suit of the plaintiff was decreed with cost, declaring that the plaintiff is the owner of property and the defendant was restrained by issuance of permanent injunction from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff. Being aggrieved by the same, the defendant had preferred RA No.22/2007. The First Appellate Court on re-appreciation of the materials on record, formed an opinion that, none of the documents produced by the plaintiff would establish the exclusive ownership of Chikkegowda over the scheduled property. Even though the plaintiff is successful in proving the execution of Will Ex.P1, he is not entitled for either declaration or permanent injunction and therefore, allowed the appeal, by setting aside the impugned judgment passed by the Trial Court and consequently, dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff is before this Court. 8. As per the order dated 07.04.2010, the following substantial question of law was framed for consideration: - 10 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 (i) Whether the judgment and decree of the lower appellate Court is perverse in misconstruing the evidence on record with reference to Ex.P1? 9. Heard Sri. H.Kantharaja, learned Senior Advocate for Sri. Ravi.H.K., learned counsel for the appellant and Sri. A.Lourdu Mariyappa, learned counsel for respondent Nos.1(A to J). Perused the materials including the Trial Court records. 10. It is the contention of the plaintiff that, Chikkegowda, who bequeathed the scheduled property in favour of the plaintiff under the registered Will Ex.P1, and was the absolute owner in possession and enjoyment of the schedule property. The schedule property is described as Khata No.162, assessment No.214 of Gandhanahalli village village with a tiled house and a vacant site. Ex.P2 is the assessment register extract in respect of property No.214 A-B for the year 1982 of Gandhanahalli Mandala Panchayath. As per this document, at an undisputed point of time, in the year 1982, the name of Chikkegowda was shown as the owner in possession and enjoyment of the property, and he was paying property tax. - 11 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 11. Even though, Ex.P3 is produced by the plaintiff, as the demand register extract for the year from 1961-62 to 75- 76, the same does not refer either to property No.214 or khata No.162 of Gandhanahalli village. Therefore, Ex.P3 is not helpful to the plaintiff to establish his contention. 12. Ex.P4 is again the assessment register extract for the year 1982-83 pertaining to property No.214 A-B again standing in the name of Chikkegowda as owner in possession of the property, paying property tax. 13. Ex.P5 is the reply issued by the Secretary of Hampapura Mandalapanchayath, addressed to the defendant. It is dated 22.03.1989 i.e., much prior to filing of the suit by plaintiff, according to which, defendant has asserted his right over half share over property bearing khata No.162, but his name was not entered in any of the revenue records, at any point of time. Moreover, the defendant has not produced any piece of paper to substantiate his contention regarding right over half share in the house and therefore, his name cannot be entered in the revenue records, including the revenue record assessment register and demand register. Even though, EX.P5 - 12 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 is admitted by the defendant, issued much prior to filing of the suit, admittedly, the defendant had not challenged this Ex.P5 as fairly conceded by the learned counsel for the respondent. 14. Ex.P7 is again the extract of assessment register for the year 1994-95, according to which, the suit property No.214 A referring to a tiled house, and 214 B - the open site was entered in the name of the plaintiff on the basis of the registered Will produced as per Ex.P1. Therefore, Exs.P2, 4, 5 and 7 fully supports the contention of the plaintiff that, it was Chikkegowda, who was in exclusive possession and enjoyment of the schedule property since from an undisputed point of time. But the defendant, who is claiming right over the half portion of property, is not having any piece of paper to support his claim. 15. The plaintiff examined himself as PW1, and also examined PWs.2, 4 and 5 - the neighbors, who deposed about right, title and possession of the schedule property by the plaintiff. Even though these witnesses were cross-examined at length, nothing has been elicited from them to disbelieve their version. The defendant examined himself as DW1 and also - 13 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 examined DW2-the son of the other brother of Chikkegowda and the defendant. But the evidence is not helpful for the defendant to establish his contention. Even though the defendant has produced Exs.D1 to 9 - the revenue records, the same are not helpful to the case on hand. Exs.D10 to 14 are the copies of the plaint and judgment in suit OS.No.218/1986, RA No.42/1991, CC No.72/1992 and CC No.446/1995. Learned counsel for the respondent could not highlight these documents as to how they support the contention of the defendant. 16. The plaintiff has spoken about the Will - Ex.P1 as PW1 and also examined PW3 - one of the attesting witnesses to the Will. Ex.P1 is the original registered Will and the evidence of plaintiff and PW3, proves the execution of the Will by Chikkegwoda, bequeathing the schedule property in favour of the plaintiff. 17. It is pertinent to note that, the Trial Court held that the execution of Ex.P1 is proved by the plaintiff. Even though the First Appellate Court allowed the appeal, finding of the Trial Court that execution of the Will is proved by the plaintiff is confirmed. In view of these facts and circumstances, I am of - 14 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 the opinion that, the plaintiff is successful in proving that it was Chikkegowda, the testator, who was the owner in possession and enjoyment of the schedule property and he bequeathed the same in favour of the plaintiff under the registered Will Ex.P.1. 18. The First Appellate Court on re-appreciation of the materials on record made much comment on Ex.P3 as the same does not make reference to the schedule property. But the Court fails to take into consideration the relevant revenue documents i.e., Exs.P2, 4, 5 and 7, which fully supports the contention of the plaintiff. Without taking into consideration any of these materials, the First Appellate Court committed an error in allowing the appeal by setting aside the impugned judgment and decree passed by the Trial Court. Therefore, I am of the opinion that, the impugned judgment passed by the First Appellate Court is perverse, illegal and it has not appreciated the materials on record in a proper perspective. Hence, the same is liable to be set aside. 19. Accordingly, I answer the above substantial question of law in favour of the plaintiff and against the defendants and proceed to pass the following: - 15 - HC-KAR NC: 2025:KHC:40017 RSA No. 1075 of 2009 ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 09.08.1996 passed in OS.No.184/1992 on the file of the learned Munsiff and JMFC, K.R.Nagar, is restored. Registry is directed to send back the Trial Court records along with copy of this judgment. BH List No.: 3 Sl No.: 3 Sd/- (M G UMA) JUDGE