1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR SECOND APPEAL NO.734/2010 (DEC) BETWEEN: 1 . RAJASHEKHAR S/O BIDARI VIRUPAKSHAPPA AGED ABOUT 53 YEARS RESIDING AT RMC LINK ROAD DAVANAGERE. 2 . SMT. RENUKA W/O T.M. MALLIKARJUNASWAMY AGED ABOUT 50 YEARS OCC: HOUSEHOLD WORK K.B. EXTENSION DAVANAGERE. 3 . B.S. VISHWANATHA S/O SRI. SAJYOTHAPPA AGED ABOUT 43 YEARS RESIDING AT KANCHIKERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT. 4 . SMT. ANNAPURNAMMA W/O LATE MALLIKARJUNA AGED ABOUT 61 YEARS 5 . DEVENDRA S/O LATE MALLIKARJUNA Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA 2 AGED ABOUT 39 YEARS 6 . B.M. SURESH S/O LATE MALLIKARJUNA AGED ABOUT 37 YEARS 7 . MAHESHA S/O LATE MALLIKARJUNA AGED ABOUT 35 YEARS APPELLANTS 4 TO 7 ARE LRS OF PLAINTIFF NO.4 IN THE SUIT AND RESIDENTS OF KANCHIKERE VILLAGE HARAPANAHALLI TALUK, DAVANAGERE DISTRICT. … APPELLANTS [BY SRI. B.M.SIDDAPPA, ADVOCATE] AND: 1 . SMT. BHAGYAMMA W/O LATE MAHABALESHA AGED ABOUT 57 YEARS 2 . SMT. VIDHYA D/O LATE MAHABALESHA AGED ABOUT 37 YEARS 3 . VINAY S/O LATE MAHABALESHA AGED ABOUT 35 YEARS 4 . KUM. VEENA D/O LATE MAHABALESHA AGED ABOUT 31 YEARS 3 R1 TO R4 ARE LRS OF DEFENDANT 1(b) IN THE SUIT AND RESIDENTS OF KANCHIKERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT. 5 . MURTHY S/O LATE R.N. BASAPPA AGED ABOUT 57 YEARS 6 . PRAKASH S/O LATE R.N. BASAPPA AGED ABOUT 55 YEARS 7 . 7(a) NAGARAJ S/O LATE R.N. BASAPPA AGED ABOUT 53 YEARS SINCE DEAD BY LRS JAYASHEELA W/O NAGARAJ 7(b) AKILA REDDY S/O T.M. NAGARAJ 7(c) KUM. ARCHANA D/O T.M. NAGARAJ 7(a) TO 7(c) ARE R/O. NO.852, NEAR BASAVANAGUDI TEMPLE DODDAPET, DAVANAGERE. (AMENDED VIDE ORDER DATED 21.03.2014) 8 . PALAKSHA S/O LATE R.N. BASAPPA, AGED ABOUT 61 YEARS 4 9 . SHANMUKHA S/O LATE R.N. BASAPPA AGED ABOUT 47 YEARS 10 . MURUGESH S/O LATE R.N. BASAPPA AGED ABOUT 45 YEARS 11 . KASHINATH S/O LATE R.N. BASAPPA AGED ABOUT 41 YEARS 12 . SMT. SAROJA D/O LATE R.N. BASAPPA AGED ABOUT 45 YEARS R5 TO R12 ARE ALL RESIDENTS OF D.NO.852 DODDAPET, DAVANAGERE-577 001. 13 . B. LOHITASHWA S/O BIDARI VIRUPAKSHAPPA AGED ABOUT 51 YEARS 14 . B. VEERABASAPPA S/O BIDARI VIRUPAKSHAPPA AGED ABOUT 47 YEARS 15 . B. SIDDAPA S/O BIDARI VIRUPAKSHAPPA AGED ABOUT 42 YEARS R13 TO R15 ARE ALL RESIDENTS OF KANCHIKERE VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT. 5 16 . M. CHANDRASEKHAR S/O GANGAPPA SHETTY AGED ABOUT 83 YEARS RESIDENT OF 8TH CROSS K.T.J. NAGAR DAVANAGERE-577 002. 17 . SMT. SHAKUNTALA W/O LATE SAJYOJOTHA AGED ABOUT 67 YEARS 18 . SMT. K. SOUBHAGYA D/O LATE SAJYOJOTHA AGED ABOUT 49 YEARS 19 . SMT. K. TRIVENI D/O LATE SAJYOJOTHA AGED ABOUT 47 YEARS 20 . SMT. CHAYA D/O LATE SAJYOJOTHA AGED ABOUT 39 YEARS R17 TO R20 ARE LRS OF PLAINTIFF NO.3 ALL ARE RESIDENTS OF KANCHIKERE VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISRICT. 21 . KOTRESH @ KOTTURESHAPPA S/O BIDARI SIDDAPPA AGE: MAJOR RESIDENT OF KANCHIKERE VILLAGE HARPANAHALLI TALUK DAVANAGERE DISTRICT. 22 . T.M. JYOTHI D/O T.M. MALLIKARJUNASWAMY AGED ABOUT 29 YEARS 6 23 . T.M. MRUTHUNJAYA D/O T.M. MALLIKARJUNASWAMY AGED ABOUT 27 YEARS R22 AND R23 ARE RESIDENTS OF D.NO.346/1 MALLIKARJUNA NILAYA 2ND CROSS, K.B.EXTENSION DAVANAGERE-577 002. 24 . K.C. KOTRESH S/O KOTRABASAPPA AGED ABOUT 67 YEARS RETIRED TEACHER RESIDENT OF KANCHIKERE VILLAGE HARAPANAHALLI TALUK DAVANGERE DISTRICT. 25 . K.C. CHANDRAPPA S/O KOTRABASAPPA AGED ABOUT 63 YEARS RETIRED TEACHER R/O VODDARAHALLI HOSPET TALUK BELLARY DISTRICT. 26 . N.G. SIDDESH S/O N.G.GURUSIDDAIAH AGE: MAJOR RESIDENT OF C/8 VIDHYA NAGAR DAVANAGERE-577 004. 27 . Y. SATHYANARAYANA SHETRU S/O POOLAPPA SHETRU AGE: MAJOR BUSINESSMAN 7 RESIDING AT NO.1374/2 8TH CROSS, KTJ NAGAR DAVANAGERE-577 002. 28 . SMT. FLORENCE K. MAISTRY W/O JOSEPH Y. BYLOOR AGED ABOUT 48 YEARS RESIDING AT NO.1393/3 8TH CROSS, KTJ NAGAR DAVANAGERE-577 002. 29 . M. MOHAMMED RAFI S/O PHAKEER SAB AGE: MAJOR RESIDING AT NO.1366/1 8TH CROSS, KTJ NAGAR DAVANAGERE-577 002. … RESPONDENTS [R1 TO R4, R7(a), R10, R14, R18, R21, R24 TO R26, R28, R29 – SERVED UNREPRESENTED; VIDE ORDER DATED 05.11.2013, NOTICE TO R9, R13, R15 TO R17, R19, R20, R22, R23 AND R27 IS DISPENSED WITH; VIDE ORDER DATED 05.11.2013, NOTICE TO R5, R6, R8, R11, R12 ARE HELD SUFFICIENT; VIDE ORDER DATED 17.03.2014, SERVICE OF NOTICE ON R7(b) IS HELD SUFFICIENT, R7(c) IS MINOR REPRESENTED BY R7(a)] THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.10.2009 PASSED IN R.A.NO.89/2003 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 21.3.2003 PASSED IN O.S.NO.1258/1989 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.), DAVANAGERE. 8 THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 09.06.2026 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE H.P.SANDESH CAV JUDGMENT Heard learned counsel for the appellants. The respondent Nos.1, 2, 3, 4, 7(a), 10, 14, 18, 21, 24, 25, 26, 28 and 29 are served and unrepresented. Vide order dated 05.11.2013, notice to respondent Nos.9, 13, 15 to 17, 19, 20, 22, 23 and 27 is dispensed with and notice to respondent Nos.5, 6, 8, 11, 12 is held sufficient and vide order dated 17.03.2014 service of notice to respondent No.7(b) is held sufficient. 2. This second appeal is filed against concurrent finding of the Trial Court in dismissing the suit in O.S.No.1258/1989 and confirming the same in R.A.No.89/2003 and prayed this Court to set aside the judgment passed in O.S.No.1258/1989 on the file of Principal Civil Judge (Jr.Dn.) Davanagere as well as R.A.No.89/2003 on the file of I Additional District and Sessions Judge, Davanagere. 9 3. The factual matrix of case of the plaintiffs before the Court while seeking the relief of declaration and permanent injunction is that one Bidari Siddappa was the propositus of the family of the plaintiffs. He died on 26.06.1965. He had two wives. First wife is Veeramma, she died on 06.02.1957 prior to the death of Bidari Siddappa. The second wife Basamma died on 22.01.1979. The second wife Basamma died issueless. The plaintiffs are the sons and daughters of Siddappa through his first wife Veeramma. Hence, the plaintiffs are the owners, who are the sons of the deceased Bidari Siddappa. Since the second wife of Bidari Siddappa died issueless, the plaintiffs are the only legal heirs and legal representatives of deceased Basamma as per law and these plaintiffs are also legal heirs of Bidari Siddappa, who is the husband of the deceased Basamma. 4. It is contended in the plaint that during the lifetime of Bidari Siddappa, he had effected a partition by means of registered partition deed dated 27.10.1957. The 5th plaintiff was minor as on the date of registered partition. After he attained majority, he filed a suit for partition and separate possession of 10 his 1/4th share in O.S.No.15/1966 after the death of Bidari Siddappa. In the said suit, the plaintiffs have challenged the partition deed dated 27.10.1957 as a sham and nominal document and not intended to be acted upon. The said suit was decreed in part and the same was challenged by filing a Regular First Appeal by deceased Basamma the 5th plaintiff in R.F.A.Nos.82/1973 and 92/1973 respectively. In R.F.A.No.82/1973, this Court has modified the judgment and decree passed by the Civil Judge at Bellary in O.S.No.15/1966 and consequently, R.F.A.No.92/1973 has been dismissed subject to modifying the decree passed in R.F.A.No.82/1973. While adjudicating the said R.F.A, this Court held that partition deed dated 27.10.1957 is acted upon and suit schedule properties are the absolute properties of deceased Basamma. When the appeals were pending before this Court, deceased Basamma died on 22.01.1979. The first defendant and his sister Siddamma filed an application in R.F.A.No.92/1973 to bring them on record as legal representatives of deceased Basamma and they are brought on record as legal heirs of Basamma. While bringing defendant No.1 and Siddamma as legal heirs of Basamma, no 11 enquiry was conducted regarding the alleged right of the first defendant and Siddamma. In the said legal Representatives Petition, the first defendant and Siddamma have contented that deceased Basamma has executed gift deed and Will. While disposing of the appeals, this Court has held that “if the parties are so advised, they are at liberty to bring a separate suit to enforce their rights, if any, in the properties left over by Basamma on her death”. 5. It is also contented that the plaintiffs were entitled to succeed to the estate of deceased Basamma being the legal heirs. It is further contended that Nagarathnamma, the 6th plaintiff is in possession of item No.2 of the suit schedule properties since several years. It is the contention that Basamma had executed mortgage deed in respect of item No.1 of the suit schedule properties with the possession of the second defendant for a sum of Rs.5,500/- since the second defendant is in possession of the same. The mortgage created by deceased Basamma can be redeemed by the plaintiffs only, who are the lawful owners of the suit schedule properties. Except plaintiffs, 12 none others have right, title or interest over the said properties. But, the second defendant is proclaiming that he is going to deliver the possession of the suit schedule properties to the first defendant. It is also contended in the suit that Basamma was not aware of reading or writing Kannada or any other language, except putting her signature in Kannada, that too which she had learnt subsequently. Initially, Basamma used to put her left thumb mark only. She was not having worldly knowledge and had no knowledge about the transactions. She had no capacity to carry on any transaction independently and even she was not in a position to understand what she is doing and she was unable to comprehend the activities going on couple of months prior to her death. Under these circumstances, Basamma could not have executed any document like Will or gift deed and the defendants have fabricated and concocted the document and on the strength of the said document, first defendant is trying to alienate the suit schedule properties. Hence, the plaintiffs have sought for the relief of permanent injunction not to alienate as well as not to interfere with suit schedule properties. 13 6. The cause of action for the suit arose in the year 1979 when the first defendant filed an application to bring him on record as legal representative of deceased Basamma in R.F.A.No.82/1973 and from first week of September, 1989, when the first defendant tried to alienate the suit properties. 7. The defendants appeared and filed the written statement and not disputed the relationship between the parties. It specifically contended that the second defendant handed over the possession of the suit schedule properties to the first defendant through registered cancellation deed dated 26.09.1989. This was within the knowledge of the plaintiffs prior to filing of the suit. The plaintiffs are not in possession of the suit schedule properties. Basamma in her sound state of mental health and condition disposed of the property by executing a registered Will on 27.12.1978, wherein she has bequeathed all her properties in favour of defendant No.1 and another sister Siddamma. After the death of Siddamma, the first defendant became owner of item No.1 of the suit schedule properties and she has also executed a gift deed on 15.01.1979. By virtue of 14 the said gift deed, the defendant No.1 became owner of item No.2 of the schedule properties. Hence, defendant Nos.1(a) to (j) have also become the owners and in possession and enjoyment of the suit schedule properties. It is also contended that plaintiff No.5 was never in possession of item No.2 of the suit schedule properties. Hence, the plaintiffs are not entitled for the relief as sought for and so also contention was taken that in the application itself, it is pleaded that there was a gift deed and a Will and appeal was disposed of in the year 1983 itself. But, suit is filed in the year 1989 and the same is barred by limitation. 8. Having considered pleadings of the parties, the Trial Court framed in total 14 issues and allowed the parties to lead evidence. The plaintiffs got examined the witnesses as P.Ws.1 to 3 and got marked documents as Exs.P1 to P10. On the other hand, the defendants examined the witnesses as D.Ws.1 to 6 and got marked the documents as Exs.D1 to D13(b). 9. The Trial Court having considered both oral and documentary evidence, dismissed the suit in answering issue 15 No.1 as ‘partly affirmative’, issue Nos.2 to 7 as ‘negative’, issue No.8 as ‘affirmative’ in coming to the conclusion that defendant No.1 has proved that defendant No.2 has already given possession of mortgaged property by deed dated 26.09.1989. So also, Trial Court answered issue No.9 as ‘affirmative’ that suit is barred by limitation considering that appeals are disposed of by giving liberty to the parties to file a separate suit in the year 1983 and suit was filed in the year 1989. The learned Trial Judge also answered issue No.10 as ‘negative’, issue No.11 as ‘affirmative’ that suit of the plaintiffs in present form is not maintainable. 10. The judgment of the Trial Court has been challenged before the First Appellate Court in R.A.No.89/2003. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the suit is barred by law of limitation. The First Appellate Court answered the point for consideration in coming to the conclusion that suit is barred by limitation. But, not considered other issues involved between the parties on re-appreciation of evidence both in respect of 16 question of fact and question of law. Hence, the present second appeal is filed before this Court. 11. This Court, while considering the second appeal, admitted the appeal on 05.04.2014 and framed the following substantial questions of law which reads as hereunder: “1. Whether in the facts, circumstances and evidence, both oral and documentary, the Trial Court recorded perverse findings of facts to dismiss the suit for declaration and injunction? 2. Whether the Lower Appellate Court having failed to consider the first appeal as required Order 41 Rule 1 CPC, the findings recorded by it are perverse?” 12. Learned counsel for the appellants in his argument keeping in view the substantial questions of law framed by this Court vehemently contend that the Trial Court committed an error in dismissing the suit and the First Appellate Court committed an error in confirming the same and no dispute with regard to the fact that properties were allotted in favour of Basamma in the partition of the year 1957. The original 17 propositus Bidari Siddappa died in 1965 and first wife Veeramma pre-deceased him and second wife Basamma died in the year 1979. The plaintiffs are the children of Siddappa and Veeramma i.e., first wife. The 5th plaintiff challenged the very partition of the year 1957 i.e., the partition between the original propositus Siddappa and the family members. The 5th plaintiff filed the suit and the said suit was decreed and the same was challenged by both the plaintiffs and defendants in R.F.Nos.82/1973 and 92/1973. The said judgment was modified in coming to the conclusion that Basamma became the owner of the properties in view of the partition of the year 1957. Hence, it is clear that property belongs to Basamma. The counsel also would submit that in the Regular First Appeal, liberty was given to the parties to claim their rights separately when the gift deed and Will are proposed and there was a mortgage and relief is also sought by the plaintiff for redemption of the same. The defendants also claim that they are the owners based on the gift deed and Will executed by Basamma. The Trial Court dismissed the suit in answering issue No.9 that suit is barred by limitation and so also given the finding in the respect of other contentions. But, the 18 First Appellate Court not discussed the issues involved between the parties and only framed point for consideration whether the suit is barred by law of limitation and not met the question of fact and question of law and also the finding given by the Trial Court while considering the regular appeal. 13. The counsel would vehemently contend that this Court framed substantial questions of law with regard to perversity, since evidence available on record was not considered by the First Appellate Court and the findings of the Trial Court on both oral and documentary evidence is perverse while dismissing the suit for the relief of declaration. The second substantial question of law framed by this Court is whether Lower Appellate Court failed to consider the first appeal as required under Order 41, Rule 1 CPC and the question of fact and question of law was not considered and finding recorded by the First Appellate Court is also perverse. 14. Having heard learned counsel appearing for the appellants and also considering the substantial questions of law framed by this Court and the issue involved between the parties, 19 the plaintiffs claim that they are the legal heirs of deceased Basamma and hence, they succeeded to her properties. But, the Trial Court given the finding answering the same as ‘partly affirmative’, accepting the case of the plaintiffs, but not accepted the claim that they have succeeded to her properties. The Trial Court also comes to the conclusion that plaintiffs failed to prove that deceased Basamma was not in sound mind few months prior to her death and also the contention of the plaintiffs that defendant No.1 has fabricated the documents in the name of Basamma and the same will not take away the rights of the plaintiffs was answered as ‘negative’ and comes to the conclusion that plaintiffs have not proved that they are in lawful possession of the suit schedule properties as on the date of the suit and so also comes to the conclusion that plaintiffs failed to prove the interference of first defendant to the lawful possession and so also an attempt made by the first defendant to alienate the suit schedule properties and comes to the conclusion that plaintiffs are not entitled to get redeem item No.1 of the suit schedule properties from defendant No.2. But, answered issue No.8 as ‘affirmative’ that first defendant proves that defendant 20 No.2 has already given possession of mortgaged property by the deed dated 26.09.1989 and so also answered issue of limitation as ‘affirmative’ that suit is barred by limitation and suit in the form of declaration is not maintainable. When such finding is given by the Trial Court, the First Appellate Court exercising the power under Order 41, Rule 1 CPC i.e., the statutory appeal against the findings of the Trial Court ought to have considered the material in respect of all the issues involved and the same is not considered. 15. Apart from that, on perusal of the judgment of the First Appellate Court, the only point that was framed for consideration is whether the suit is barred by law of limitation and in respect of other issues as framed by the Trial Court are concerned, except issue No.9 of the Trial Court, has not dealt with any point for consideration whether the finding of the Trial Court in respect of other issues is correct or not. The First Appellate Court being a statutory Appellate Court ought to have framed the point for consideration keeping in view the issues involved between the parties in the suit and there is no finding in 21 respect of other factual aspects and the First Appellate Court being a statutory Appellate Court ought to have considered both question of fact and question of law and given finding in respect of all the issues involved between the parties and the same was not done and the First Appellate Court has not exercised the power under Order 41 Rule 1 CPC while disposing the appeal and erroneously proceeded to consider the law of limitation only and a cryptic order is passed without evaluating the evidence of witnesses P.Ws.1 to 3 as well as the evidence of D.Ws.1 to 5 and so also the documentary evidence. 16. When such being the case, this Court cannot give any finding with regard to first substantial question of law in view of non-exercising of power by the First Appellate Court under Order 41 Rule 1 CPC. The second substantial question of law framed by this Court is that whether Lower Appellate Court failed to consider the first appeal as required under Order 41 Rule 1 CPC and the First Appellate Court has to consider the finding of the Trial Court whether it is correct or not and this Court cannot record the finding of the Trial Court as perverse 22 unless the statutory Appellate Court considers the same. Hence, substantial questions of law Nos.1 and 2 are answered accordingly. 17. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is allowed in part. (ii) The judgment of the First Appellate Court is set aside and the matter is remitted back to the First Appellate Court to consider the appeal both on question of fact and question of law as observed by this Court exercising the power conferred under Order 41 Rule 1 CPC and give a finding within a stipulated time, since the suit is of the year 1989 and second appeal is of the year 2010. (iii) The respondents, inspite of service of notice, did not choose to appear before this Court. Hence, notice is directed to be issued by the 23 First Appellate Court to the respondents herein. After service of notice on the respondents, the First Appellate Court to immediately consider the appeal from the date of service of notice to the respondents within a period of three months and no further time will be extended. Such direction is given abundantly, since the suit is of the year 1989 and almost 37 years have elapsed. (iv) The registry is directed to transmit the records of Trial Court and the First Appellate Court to the First Appellate Court to enable the First Appellate Court to take up the matter on 06.07.2026. (v) If the respondents appear on that date voluntarily, no need to issue notice and the First Appellate Court to dispose of the same within a period of three months from that said date. If the respondents fail to appear on the 24 said date, First Appellate Court to issue emergent notice to the respondents as well as the advocate, who represented them before the First Appellate Court and dispose of the matter within the stipulated time as directed. (vi) The learned counsel for the respective parties are also directed to assist the First Appellate Court to dispose of the appeal within the time bound period. Sd/- (H.P. SANDESH) JUDGE ST