- 1 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 63 OF 2024 (DEC/INJ) BETWEEN: SMT. RATHNAMMA W/O NARAYANAPPA D/O PILLAPPA AGED ABOUT 48 YEARS, R/AT THYAGANADODDI VILLAGE, MASTHI HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 139. …APPELLANT [BY SMT. POONAM N., ADVOCATE (PH)] AND: 1. SMT. RATHNAMMA W/O LATE SAMPANGIRAME GOWDA AGED ABOUT 54 YEARS, 2. 2(a) T R THIMMARAYAPPA S/O PATEL RAMASWAMY GOWDA DEAD BY LRS SMT. SHANTHAMMA, D/O LATE THIMMARAYAPPA, W/O LATE RAJAPPA, AGED ABUT 62 YEARS, R/A CHALAGANAHALLI VILLAGE, BALIGANAHALLI POST, LAKKUR HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 139. Digitally signed by ANUSHA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 2(b) RAJAPPA S/O LATE THIMMARAYAPPA AGED ABOUT 60 YEARS R/AT THYAGANADODI VILLAGE, MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT - 563 139. 2(c) SMT. PADMAMMA D/O LATE THIMMARAYAPPA W/O NAGARAJU AGED ABOUT 50 YEARS, R/AT HAMUDAGANDAHALLI VILLAGE, BERIKERE POST, SULAGIRI TALUK KRISHNAGIRI DISTRICT TAMILNADU - 635 001. 2(d) RAMESH S/O LATE THIMMARAYAPPA AGED ABOUT 48 YEARS R/AT THYAGANADODI VILLAGE, MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT - 563 139. 2(e) SMT. MUNILAKSHMAMMA D/O LATE THIMMARAYAPPA W/O MANJUNATHA AGED ABOUT 46 YEARS, R/AT JADIGENAHALLI VILLAGE AND POT, HOSAKOTE TALUK BANGALORE RURAL DISTRICT - 562 114. 2(f) SMT. RAMAKKA D/O LATE THIMMARAYAPPA W/O SAMPANGI AGED ABOUT 45 YEARS R/AT BMT LAYOUT BANGALORE - 560 076. 2(g) SMT. MANJAMMA D/O LATE THIMMARAYAPPA - 3 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 W/O BABU, AGED ABOUT 44 YEARS R/AT HAMUDAGANDAHALLI VILLAGE, BERIKE POST SULAGIRI TALUK, KRISHNAGIRI DISTRICT TAMILNADU - 635 001. 2(h) SMT. SHARADHAMMA D/O LATE THIMMARAYAPPA W/O NALLAPPA AGED ABOUT 43 YEARS R/A HOSUR TOWN AND TALUK KRISHNAGIRI DISTRICT, TAMILNADU - 635 001. 3. 3(a) T R KEMPEGOWDA S/O LATE RAMASWAY GOWDA DEAD BY LRS SMT. KASHAMMA W/O LATE T R KEMPEGOWDA AGED ABOUT 60 YEARS 3(b) RAMMURTHY S/O LATE T R KEMPEGOWDA AGED ABOUT 47 YEARS 3(c) VENKATESH S/O LATE T R KEMPEGOWDA AGED ABOUT 45 YEARS 3(d) THYAGARAJU S/O LATE T R KEMPEGOWDA AGED ABOUT 42 YEARS 3(e) SMT. PUSHPA D/O LATE T R KEMPEGOWDA W/O KRISHNEGOWDA AGED ABOUT 40 YEARS ALL ARE RESIDING AT THYAGANADODI VILLAGE, - 4 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT - 563 139. 4. SMT. BHAGYAMMA W/O RAJAPPA D/O PILLAPA R/A SONNAPPANAHATTI VILLAGE, KASABA HOBLI, MALUR TALUK KOLAR DISTRICT 5. SMT. RAMAKKA W/O NARAYANAPPA AGED ABOUT 54 YEARS R/AT THYAGANADODDI VILLAGE, MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT - 563 139. …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.09.2023 PASSED IN RA NO.55/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, MALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.06.2015 PASSED IN OS NO.417/2011 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, MALUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI - 5 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 ORAL JUDGMENT Challenging judgment and decree dated 29.09.2023 passed by Senior Civil Judge and J.M.F.C., Malur, in R.A.no.55/2015 and judgment and decree dated 16.06.2015 by II Additional Civil Judge, Malur, in O.S.no.417/2011, this second appeal is filed. 2. Smt.Poonam N., learned counsel for appellant submitted that appeal was by plaintiff no.1 in O.S.no.417/2011 filed for relief of declaration of plaintiffs as absolute owners of 'A' schedule property and for permanent injunction restraining defendants from interfering with plaintiffs' possession over 'A' schedule property. In plaint, it was stated that 'A' schedule property belonged to ancestors of plaintiffs and defendant no.1. It was stated, mother of plaintiff no.1 had sold eastern portion of suit schedule property i.e., an extent of 01 Acre 09 guntas to father of defendants no.2 and 3 under registered Sale Deed dated 23.07.1965. Later, grandfather of plaintiff no.1 - Venkatagiriyappa bequeathed western half portion of 'A' schedule property to plaintiffs’ mother and her sisters under registered Will dated 24.07.1975 and after death of - 6 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 Venkatagiryappa, plaintiffs were in possession and enjoyment of 'A' schedule property as absolute owners. 3. It was submitted, mother of defendant no.1 had filed OS no.134/1969 for declaration against Sale Deed dated 23.07.1965, which was dismissed. But, in RSA no.629/1978, this Court moulded relief and granted half share to each of parties and declared Sale Deed as null and void. Consequently, defendants no.2 and 3 lost their right, title and interest. Thereafter, when defendant no.1 filed FDP no.10/1996, plaintiffs opposed same. But, defendants no.2 and 3 contended that they had filed OS no.163/1994 for declaration and obtained ex-parte decree against plaintiffs. Even in said proceedings, this Court had held Sale Deed as null and void and ex-parte decree obtained by defendants no.2 and 3 as not binding on plaintiffs. Therefore, plaintiffs had filed suit for declaration of their title in respect of 'A' schedule property. 4. On service of suit summons, defendants no.1 and 2 entered appearance. Defendant no.3 had died and though legal representatives were brought on record, they did not file written statement. In their written statement, defendants no.1 - 7 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 and 2 denied relationship between parties, disputed sale deed dated 23.07.1965 and bequeathal in favour of plaintiffs under Will dated 24.07.1975. They also mentioned filing of suits, final decree proceedings as well as judgment passed by this Court. They specifically stated that they derived possession over eastern half of land measuring 01 Acre 09 guntas in Sy.no.40/2 from their father Patil Ramaswamygowda, who purchased same from mother of plaintiff no.1 under registered Sale Deed dated 23.07.1965. It was stated that proceedings in suit, final decree proceedings as well as judgment passed by this Court in RSA no.629/1978 had concluded in their favour and therefore, sought dismissal of suit. 5. Based on pleadings, trial Court framed following: ISSUES: 1) Whether the plaintiffs prove that they are the absolute owners of the suit schedule properties? 2) Whether the plaintiffs prove that they are in possession of the suit schedule properties? 3) Whether plaintiffs prove that the alleged interference by the defendants? 4) Whether the defendants prove that suit is barred by law of res-judicata? - 8 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 5) Whether plaintiffs are entitled for the relief as sought for? 6) What order or decree? 6. Thereafter, plaintiff no.1 deposed as PW.1 and got marked Exhibits-P1 to P16. In rebuttal, defendant no.2 and another deposed as DWs.1 and 2 and Exhibits-D1 to D31 were got marked. 7. On consideration, trial Court answered issues no.1 to 3 and 5 in negative; issue no.4 in affirmative and issue no.6 by dismissing suit. Aggrieved, plaintiff no.1 filed RA no.55/2015 on various grounds, based on which, first appellate Court framed following: POINTS: 1) Whether the conclusion of the trial Court in dismissed the suit of the plaintiff is proper? 2) Whether the findings of the trial Court calls for interference by this Court? 3) What order? 8. After answering point no.1 in affirmative; point no.2 in negative, it answered point no.3 by dismissing appeal. Against concurrent findings, present appeal was filed. - 9 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 9. It was submitted, that plaintiffs were claiming right under registered Will of antiquity. It was submitted, boundary description of suit property in OS no.163/1994, referred to plaintiffs property on western side, establishing they were in settled possession under Will dated 24.07.1975. Such being case, trial Court and first appellate Court were not justified in holding that Will dated 24.07.1975 was not proved and in dismissing suit. It was contended there was improper appreciation and therefore following substantial questions of law would arise for consideration: "1. The Courts below have failed to appreciate the fact that, the plaintiffs has right, title and interest and possession to the extent of 1 Acre 9 guntas of land out of 2 Acre 19 guntas of land in Sy.no.40/2 of Thayaganadoddi village, Masthi Hobli, Malur Taluk. 2. The Courts below have failed to consider that the defendants have obtained the exparte decree from the Hon'ble Court and on the basis of the exparte obtained final decree in respect of the schedule property of the plaintiff and claiming right under the same. In the said suit they have suppressed the fact and the said judgment and decree passed in the earlier suits are not binding on the plaintiffs. 3. Both the Courts below failed to appreciate the facts that, the - 10 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 plaintiffs are the owners of the suit schedule property and they have valid title and possession of the suit property. The defendants only claiming right under the exparte decree and the revenue records obtained under the said exparte decree." 10. Learned counsel sought for answering them, in favour of appellants and allow appeal. 11. Heard learned counsel for appellant and perused impugned judgment and decree passed by both Courts. 12. At outset, it is seen, this second appeal is by unsuccessful plaintiff no.1 in suit for declaration of title over 'A' schedule property, on basis of Exhibit-P1 - registered Will dated 24.07.1975, but, which was disputed by defendants in written statement. 13. Under such circumstances, it was incumbent on plaintiffs to prove Will, by producing original and establishing due execution and attestation. 14. However, only witness examined by plaintiff is himself as PW.1 i.e. legatee. Thus requirement of law under Section 63 and Section 68 of Indian Evidence Act and Indian - 11 - HC-KAR NC: 2026:KHC:3331 RSA No. 63 of 2024 Succession Act are not complied. It is seen, dismissal of suit and its confirmation in appeal are precisely on this ground and same are in accordance with law. 15. Thus, no substantial questions of law, including those proposed, arise for consideration. Hence, appeal is dismissed. In view of dismissal of appeal, I.A.no.1/2025 is also dismissed. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 39