- 1 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 385 OF 2023 (INJ) BETWEEN: SMT. D. SHEELA PILLAI D/O. LATE S. DORAISAMI PILLAI AGED ABOUT 60 YEARS R/AT 'SAI ASHISH', 19 STANDAGE ROAD FRAZER TOWN BANGALORE - 560 005. …APPELLANT (BY SRI NARASIMHARAJU, ADVOCATE) AND: SRI SYED SHABBIR S/O. LATE NAZEER AGED ABOUT 38 YEARS R/AT NO. 636/C THAYAPPA COMPOUND DASARAHALLI MAIN ROAD HA FARM POST BANGALORE - 560 024. …RESPONDENT (SOLE RESPONDENT NOTICE HELD SUFFICIENT VIDE ORDER DATED 18.04.2024) THIS RFA IS FILED UNDER ORDER LXI RULE 1 READ WITH SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 06.01.2023 PASSED IN O.S.NO.6456/2021 ON THE FILE OF XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PERMANENT INJUNCTION. Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT This Regular First Appeal is filed calling in the question the judgment and decree dated 06.01.2023 passed in O.S.No.6456/2021 by XVI Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as the ‘Trial Court’ for short), insofar as it declined to grant a decree of permanent injunction in respect of site No.50 (item No.2) of the suit schedule properties. Accordingly, the present appeal is confined only to the claim relating to site No.50 (item No.2) of the suit schedule properties. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 3. The plaintiff instituted a suit for permanent injunction against the defendant, seeking to restrain the defendant, his agents, GPA Holder, anti-social elements or - 3 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 anybody claiming under him from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties. 4. It is the case of the plaintiff that she is the absolute owner and is in lawful possession and enjoyment of vacant site Nos.49 and 50, bearing Khata No.457, carved out of survey No.40, situated at Dasarahalli Village, K.R. Puram Hobli, Bengaluru South Taluk, Bengaluru, which are described as item Nos.1 and 2 of the suit schedule properties. It is stated that site No.49 was acquired by the plaintiff under a registered Sale Deed dated 12.11.1992, whereas site No.50 was acquired by the plaintiff's brother, D.S. Sundaram, under a registered Sale Deed dated 06.11.1992. Both the properties are situated adjacent to each other. 5. It is also stated that the said D.S.Sundaram died on 07.03.2017. During his lifetime, he had executed a registered Will dated 13.09.2004 bequeathing site No.50 - 4 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 (item No.2) of the suit schedule properties in favour of the plaintiff. Consequently, upon the death of D.S.Sundaram, the plaintiff succeeded to her estate and became the owner of site No.50 (item No.2) of the suit schedule properties. It is the case of the plaintiff that she is in lawful possession and enjoyment of both the suit schedule properties. 6. It is further stated that the BBMP has effected the khata in the name of the plaintiff and that she has been regularly paying property taxes and other statutory charges in respect of the suit schedule properties. Thus, according to the plaintiff, she is the absolute owner and is in lawful possession and enjoyment of the suit schedule properties. It is alleged that, despite having no manner of right, title or interest over the suit schedule property, the defendant attempted to interfere with the plaintiff's peaceful possession and enjoyment thereof. Consequently, the plaintiff was constrained to institute the suit seeking a decree of permanent injunction against the defendant. - 5 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 7. Despite service of summons, the defendant remained absent and was accordingly placed ex parte. 8. In order to establish the case, plaintiff examined herself as PW.1 and got marked 55 documents as per Exs.P1 to P55. On the other hand, the defendant neither appeared before the Court nor entered the witness box to adduce evidence. Further, no documents were produced on his behalf. 9. The trial Court has framed the following points for consideration: "1. Whether the Plaintiff proves that she is the absolute owner and in peaceful possession and enjoyment of the suit schedule property as on the date of filing of the suit as pleaded in the plaint? 2. Whether the plaintiff proves the interference caused by the defendant? 3. Whether the plaintiff is entitled to the reliefs as prayed for? 4. What order or decree?" - 6 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 10. The Trial Court has partly decreed the suit by granting the relief sought in respect of site No.49 (item No.1) of the suit schedule property. However, insofar as site No.50 (item No.2) of the suit schedule properties is concerned, the Trial Court refused to grant the relief sought by the plaintiff. Being aggrieved by the same, the plaintiff has preferred the present appeal by raising various grounds in the memorandum of appeal. 11. Learned counsel for the appellant submitted that the findings of the Trial Court in refusing to grant injunction in respect of Site No.50 (Item No.2) is erroneous and contrary to the evidence on record and the observation made by the trial Court is that the plaintiff has failed to prove that the execution of Will is not correct, in the absence of any challenge to the Will. 12. Further, submitted that late D.S. Sundaram had purchased site No.50 (item No.2) of the suit schedule properties. During his lifetime, he had executed a Will in - 7 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 favour of the plaintiff, who is his sister. Upon execution of the said Will in favour of the plaintiff in respect of site No.50 (item No.2) of the suit schedule properties, she became owner and is in possession of the property. 13. It is further contended that, on the basis of the said Will, the Khata of the property was mutated in her name and she has been regularly paying property taxes and other statutory charges to the Authorities. Accordingly, she became the owner of the property. Therefore, submitted in the absence of any challenge to the Will or denial of the fact of execution of the Will bequeathing property in favour of the plaintiff, the execution of Will is not correct. Therefore, prays to grant decree in so far as site No.50 (item No.2) of the suit schedule properties and sought for the reliefs as claimed in the suit. 14. Learned counsel for appellant has relied upon the following judgments in support of his case: - 8 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 1. Metpalli Lasum Bai (Since Dead) and Others v/s Metapalli Muthaiah (D) by Lrs. in Civil Appeal No.5921/2015. 2. Karpagam and Pachaiappan vs. E.Purushothaman, Ayyavu and Munusamy reported in 2010-3-L.W.282. 3. Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and Others reported in AIR 1990 KERALA 226. 15. Neither the respondent nor his counsel appeared before the Court. 16. Upon hearing a short point that arises for consideration before this Court is: "Whether, under the facts and circumstances involved in the case, the plaintiff proves that she has acquired title over the site No.50 (item No.2) of the suit schedule properties by virtue of the registered Will dated 13.09.2004 executed by her brother D.S. Sundaram?" 17. It is stated that site No.49 (item No.1) was acquired by the plaintiff under a registered Sale Deed dated 12.11.1992, whereas site No.50 (item No.2) was - 9 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 purchased by the plaintiff’s brother, late D.S. Sundaram, under a registered Sale Deed dated 06.11.1992. It is also stated that the said D.S.Sundaram died on 07.03.2017. It is the case of the plaintiff that late D.S. Sundaram had executed a registered Will dated 13.09.2004, where under he bequeathed site No.50 (item No.2) in her favour. According to the plaintiff, by virtue of the said Will, she has succeeded to the property and become the owner thereof. In support of her claim, she has relied upon the registered Will dated 13.09.2004, marked as Ex.P33, under which site No.50 (item No.2) forms the subject matter of the bequest. 18. Based on the said Will, the plaintiff approached the Competent Authorities of the BBMP and got the Khata of site No.50 (item No.2) mutated in her name. It is also stated that she has been regularly paying property taxes and other statutory charges in respect of the said properties. In support of the same, she has produced and got marked the Khata and tax paid receipts as Exs.P52 to - 10 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 P55. Ex.P52-Khata extract, which is found in the name of the plaintiff. However, the plaintiff claims title to site No.50 (item No.2) of the suit schedule property solely on the basis of the registered Will-Ex.P33, alleged to have been executed by her brother, late D.S. Sundaram and when there is no challenge to the said Will, requirement of proof of execution of the same is not correct. 19. The plaintiff has taken special contention in the plaint that D.S.Sundaram had executed the Will in favour of the plaintiff in respect of site No.50 (item 2). When this being the specific pleading has been taken by the plaintiff, there is no denial of the pleading by the defendant. Therefore, as per Order VIII Rule 5 of CPC, when there is no specific denial of the fact pleaded in the plaint, the same shall be taken in the admission except as against a person under disable. Also, discretion is given to the Court to receive any other evidence in support of the facts pleaded in the plaint. When her brother had executed a Will in favour of plaintiff and the Will is registered one then - 11 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 question arises about execution of the Will, though the said Will is rebuttable, but there is no contradiction by the defendant rebutting the execution of the Will. Also, there is no denial of the fact that the plaintiff is not the sister of D.S.Sundaram. 20. When this being the facts proved, absolutely there is no ground to disbelieve the Will. The Trial Court has observed that the plaintiff has failed to prove that there is absolute bequeath of item No.2 property in favour of the plaintiff, but upon perusal of Ex.P33-copy of the registered Will, the said late D.S.Sundaram had bequeathed all his immovable properties in favour of the plaintiff. 21. When there is no denial of execution of the Will by the defendant, there is no necessity of calling for the plaintiff to prove execution of Will as per Sections 68 and 69 of Indian Evidence Act, 1872. Therefore, on this reasons, dismissal of the suit so far as item No.50 (item - 12 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 No.2) property is not correct. In this regard, the Trial Court has committed an error in not granting decree so far as item No.50 (item No.2) of property is concerned. The plaintiff has established her title over the property by the registered Will executed by D.S. Sundram and in the absence of any contra evidence or denial of the fact of execution of the Will disbelieving the said Will is not correct. In this regard, the reasoning assigned by the Trial Court in not granting decree insofar as site No.50 (item No.2) is concerned, is not correct. Hence, the plaintiff has successfully proved that she became owner of the site No.50 (item No.2) of the suit schedule properties and acquired the same through registered Will by her brother D.S.Sundaram. Accordingly, I answer point in the Affirmative. Thus, the appeal is liable to be allowed. 22. In the result, I proceed to pass the following: ORDER i. The appeal is allowed; - 13 - HC-KAR NC: 2026:KHC:26441 RFA No. 385 of 2023 ii. The judgment and decree dated 06.01.2023 passed in O.S.No.6456/2021 by the Court of XVI Additional City Civil and Sessions Judge (CCH-12), Bengaluru insofar as site No.50, is hereby set-aside. iii. The plaintiff’s suit is decreed in respect of site No.50 of the suit schedule property. The defendants, his agents, GPA holder, anti-social elements or anybody by way of permanent injunction, are restrained from interfering with the peaceful possession and enjoyment of site No.50 of the plaintiff’s property. iv. Draw Decree accordingly. v. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE CPN List No.: 1 Sl No.: 46