- 1 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1350 OF 2009 (DEC) C/W REGULAR SECOND APPEAL NO. 1351 OF 2009 (DEC) IN RSA NO. 1350/2009 BETWEEN: VENKATARAMAIAH @ CHIKKA VENKATARAMAIAH S/O KUSHALAPPA, AGED ABOUT 50 YEARS, R/A O.B. CHOODANAHALLI VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK &APPELLANT (BY SRI. V.B. SHIVA KUMAR, ADVOCATE) AND: 1. SMT SAVITHRAMMA D/O LATE MUNICHINNAPPA @ MUNICHINNANNA, AGED ABOUT 69 YEARS 2. SMT. SHANTHAMMA D/O LATE MUNICHINNAPPA @ MUNICHINNANNA AGED ABOUT 54 YEARS, BOTH ARE R/A UTTARAHALLI HOBLI BANGALORE SOUTH TALUK - 96. 3. SRI MUNISWAMY S/O KRISHNAPPA AND PUTTAMMA AGED ABOUT 24 YEARS Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 4. SMT. VAJRAMMA D/O KRISHNAPPA AND PUTTAMMA AGED ABOUT 23 YEARS NO.3 AND 4 ARE R/A THIPPASANDRA VILLAGE, UTTARAHALLI HOBLI, ANJANAPURA POST, BANGALORE SOUTH TALUK - 96. 5. SMT. DHANALAKSHMI, D/O LATE CHINNATHAYAMMA, AGED ABOUT 20 YEARS 6. SRI. UMESH S/O LATE CHINNATHAYAMMA, AGED ABOUT 21 YEARS 7. SMT. LEELAVATHI D/O LATE CHINNATHAYAMMA AGED ABOUT 22 YEARS 8. SMT. JAYALAKSHMI D/O LATE CHINNATHAYAMMA AGED ABOUT 19 YEARS RESPONDENTS NO. 5 TO 8 ARE LATE CHINNATHAYAMMA AND GURUMURTHY AND ARE R/A GUTTEPALYA VILLAGE, THARALU POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK-96. &RESPONDENTS (BY SRI. PRASANNA B.R., ADVOCATE FOR R1-8) THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 09.07.2009 PASSED IN R.A.NO.163/2008 ON THE FILE OF THE PRL. SESSIONS JUDGE, BANGALROE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGEMENT AND DECREE DATED:04.07.2008 PASSED IN O.S.2062/2005 ON THE FILE OF THE I ADDL. CIVIL JUDGE, (SR. DN.), BANGALORE RURAL DISTRICT, BANGALORE. - 3 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 IN RSA NO. 1351/2009 BETWEEN: VENKATARAMAIAH @ CHIKKA VENKATARAMAIAH, S/O KUSHALAPPA AGED ABOUT 50 YEARS, R/A O.B. CHOODANAHALLI VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK - 96. ...APPELLANT (BY SRI. V.B. SHIVA KUMAR, ADVOCATE) AND: SMT MUNIYAMMA, D/O LATE MUNICHINNAPPA @ MUNICHINNANNA, AGED ABOUT 59 YEARS, R/A O.B. CHOODANAHALLI VILLAGE, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK - 96, REP. BY HER P.A. HOLDER, HANUMANTHAPPA S/O LATE RAMAIAH, AGED ABOUT 30 YEARS, R/A GUTTEPALYA VILLAGE, THARALU POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK. ...RESPONDENT (BY SRI. PRASANNA B.R., ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED: 09.07.2009 PASSED IN R.A.NO.164/2008 ON THE FILE OF THE PRL. SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED:04.07.2008 PASSED IN O.S.2063/2005 ON THE FILE OF THE I ADDL. CIVIL JUDGE, (SR.DN.), BANGALORE RURAL DISTRICT, BANGALORE. THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA - 4 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 ORAL JUDGMENT Defendant in OS.No.2062/2005 on the file of the learned I Additional Civil Judge Senior Division, Bengaluru District, Bengaluru (hereinafter referred to as the Trial Court) has preferred RSA.No.1350/2009 being aggrieved by the common judgment and decree dated 04.07.2008. The defendant in OS.No.2063/2005 has preferred RSA.No.1351/2009 being aggrieved by the very same common judgment and decree, and declaring that the plaintiffs are absolute owners in lawful possession and enjoyment of the suit scheduled properties and restraining the defendant from interfering or meddling in any manner with the plaintiff's peaceful possession and enjoyment of the properties and from creating any encumbrance over the same, which were confirmed in RA.Nos.163 and 164/2008 on the file of the learned Principal District Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as 'the First Appellate Court') vide judgment dated 09.07.2009. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. - 5 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 3. The facts of the case in brief are that, plaintiff Nos.1 to 8 in OS.No.2062/2005 being the respondents in RSA.No.1350/2009 have contended before the Trial Court that one Munichinnappa @ Munichinnanna, son of Lachuma Bhovi, had left behind five daughters viz plaintiff No.1 Savitramma, plaintiff No.2 Santhamma, Muniyamma, Puttamma, who is the mother of plaintiff Nos.3 and 4, and one Chinthayamma, the mother of plaintiff Nos.5 to 8. Puttamma and Chinthayamma have died leaving behind their legal representatives to succeed their estate. It is contended by the plaintiffs that Munichinnappa @ Munichinna acquired property bearing i) Sy.No.27 measuring 33 guntas, ii) Sy.No.32 measuring 33 guntas, iii) Sy.No.32 measuring 21 guntas, iv) Sy.No.34 measuring 30 guntas, v) Sy.No.34 measuring 15 guntas, vi) Sy.No.35 measuring 5 guntas, vii) Sy.No.31 measuring 1 acre 10 guntas, and viii) The house property measuring 2 ankanas situated at O.B.Choodanahalli Village, Uttrahalli Hobli, Bangalore South Taluk. Under the gift deed dated 19.12.1951 executed by one Galappa son of Chinnaswami Bovi. The said gift deed was destroyed as the same was eaten away by white ants and therefore, the certified copy of the same is produced. - 6 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 4. It is contented that the said Munichinnanna having accepted the gift deed was in possession and enjoyment of the properties. He also acquired the land bearing Sy.No.31 measuring 1 acre 20 guntas situated at O.B.Choodanahalli Village, Utrrahalli Hobli, Bangalore South Taluk, under the registered gift deed dated 20.05.1959, executed by the very same Galappa and the said gift deed was also accepted by the downee and was in possession and enjoyment of the property. 5. One of the plaintiffs in OS.No.2062/2005 by name, Muniyamma being one of the daughters of late Munichinappa @ Munichinnanna filed the similar suit in OS.No.2063/2005, raising similar contentions in respect of land bearing Sy.No.35 measuring 1 acre 4 guntas and a tiled house of 4 ankanas situated at O.B.Choodanahalli Village, Uttrahalli Hobli, Bengaluru South Taluk with the boundaries mentioned therein seeking similar relief of declaration and for permanent injunction against the defendants. 6. It is contended that Munichananna @ Munichinaappa had no male issues, but had five daughters. Therefore, Munichananna executed a registered Will dated - 7 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 04.08.1983 in favour of the plaintiffs in OS.No.2062/2005 in respect of 7 items of properties described in the schedule. Sy.No.35 measuring 1 acre 4 guntas and the house property measuring 4 ankanas situated at O.B.Choodanahalli village (hereinafter referred to as 'the Schedule Properties' in O.S.2063/2005) were bequeathed in favour of Muniyamma, who is the plaintiff in OS.No.2063/2005. The said Munichinappa died on 23.04.1998 and thus the plaintiffs in both OS.Nos.2062 and 2063/2005 acquired right, title and interest over the properties that are described in the schedule in both the suits. The plaintiffs recently obtained the copy of revenue records and came to know that the defendant managed to include his name in the revenue records in collusion with the Village Accountant, laying false and fictitious claim over the scheduled properties. The defendant by getting his name in the revenue records falsely, is making an attempt to alienate the properties in favour of third parties. When such high handed act of the defendant was questioned by the plaintiffs, he started denying the right of the plaintiffs. Even though, he has no manner of right, title or interest over the same. Therefore, the plaintiffs filed the suit seeking declaration that they are the absolute - 8 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 owners in lawful possession and enjoyment of the suit schedule properties, and to restrain the defendant from interfering with their possession and enjoyment, and from alienating or creating interest or encumbering the suit schedule properties in any manner. 7. The plaintiffs in these two suits are the class-1 legal representatives of late Munichinnanna and they are claiming right through him under the registered Will dated 04.08.1983, contenting that Munichinnanna had acquired the title over the scheduled properties in both the suits under the registered gift deeds dated 19.12.1951 and 20.05.1959 executed by Galappa, son of Chinnaswami Bhovi. Accordingly, praying to decree the suits. 8. The defendant has appeared before the Trial Court and filed his written statements denying the contentions taken by the plaintiffs in both the suits. It is contended that the suits were filed at the instigation of one Hanumanthappa, who is the Power of Attorney Holder of the plaintiffs, only to harass the defendant. The plaintiffs have no manner of right, title or interest over the scheduled properties in both the suits. It is - 9 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 contented that there are no such properties which are in existence as described in the schedules. The defendant pleaded ignorance regarding the relationship between the plaintiffs and correctness of a genealogical tree produced by them. It is contented in the written statement that the deeds referred to by the plaintiffs are fabricated and the same are not admitted. It is contented that the plaintiffs have not acquired any title over any of the properties. The defendant contended that Galappa referred to by the plaintiffs is the son of Chinnaswami Bhovi He had two daughters by name Thayamma and Chinnathayamma. He had no male issues. His first daughter Thayamma was married to one Buddaiah and the second daughter Chinnathayamma was married to Kushalappa, who is the father of the defendant. 9. The defendant contended that the said Galappa had executed the registered gift deed in favour of his daughter Chinnathayamma on 20.04.1959 and another Gift Deed was executed in favour of Buddaiah, the son-in-law of Galappa in respect of the other properties on 20.05.1959. Buddaiah executed a registered Will on 01.03.1996 in favour of the son - 10 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 of the defendant who was also named as Galappa. The defendant contended that he is the only son of his mother Chinnathayamma - the daughter of Galappa and inherited the properties mentioned in the scheduled. The revenue records were mutated in his name in the year 1981-82 and 1982-83. Thus the defendant is the absolute owner in possession and enjoyment of the properties inherited by him. The plaintiffs have no right whatsoever and therefore, prayed for dismissal of both the suits. 10. On the basis of these pleadings, the Trial Court has framed the following common issues in both OS.Nos.2062 and 2063/2005: "1. Whether the plaintiffs prove that they are the absolute owners in lawful possession and enjoyment of the suit schedule properties? 2. Whether the plaintiffs prove that the defendant is trying to interfere with their peaceful possession and enjoyment over the suit schedule properties? 3. Whether the plaintiffs prove that the defendant is trying to alienate or create encumbrance over the suit schedule properties? 4. Whether defendant proves that late Galappa had executed a registered gift deed dated 20.05.1959 in favour of Chinathayamma the - 11 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 mother of the defendant and Buddaiah the uncle of the defendant in respect of the suit schedule properties? 5. Whether the defendant proves that late Buddaiah had executed a registered Will dated 01.03.1996 in favour of the defendant bequeathing the property which were gifted to him by late Galappa? 6. Whether the defendant proves that he is the absolute owner in possession and enjoyment over the suit schedule properties as sated in para-10 of the written statement? 7. Whether the plaintiff is entitled for relief of declaration and permanent injunction? 8. What Decree or Order?" 11. Since the plaintiff Nos. 1 to 8 in O.S. No.2062/2005 and the plaintiff in O.S. No.2063/2005, are said to be the legal representatives of late Munichinnanna filed a similar suit against the defendant seeking declaration of their title under similar set of documents leading to similar set of facts and documents, and since the defendant has raised similar defence in both the suits, common issues were framed by the Trial Court. The Trial Court took up the matters for common trial. 12. The plaintiffs got examined PWs.1 to 3 and got marked Exs.P1 to 31 in support of their contention. The defendants got examined DWs.1 to 3 and got marked Exs.D1 to - 12 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 31 in support of their defence. The Trial Court, after taking into consideration all these materials on record, answered issue Nos.1 to 3 and 7 in the affirmative, issue Nos.4 to 6 in the negative and proceeded to decree both the suits of the plaintiffs, declaring that they are the absolute owners in lawful possession and enjoyment of the suit scheduled properties and restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiffs, and also from alienating or creating any encumbrance over the suit schedule properties. 13. Being aggrieved by the same, the defendant has preferred RA.Nos.163 and 164/2008. The First Appellate Court on re-appreciation of materials on record dismissed both the appeals through the common judgment dated decree 09.07.2009. Being aggrieved by the same, the common defendant in both the suits is before this Court. 14. As per orders dated 07.11.2025 and 15.12.2025 the following substantial questions of law were came to the framed: - 13 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 "1. Whether the Trial Court and the First Appellate Court were right in raising the presumption under Section 90 of the Indian Evidence Act, in respect of the gift deed - Ex.P2 produced by the plaintiffs when the original gift deed is not produced before the Court? 2. Whether both the Court below have committed an error in not considering the rebuttable presumption with regard to the title and possession as provided under Section 133 of the Karnataka Land Revenue Act when the record of rights evidently establishes the factum of title and possession in relation to columns 9 and 12?" 15. Heard Sri. V B Shivakumar, learned counsel for the appellant and Sri. Pasanna B.R, learned counsel for the respondents. Perused the materials on record including the Trial Court records. 16. Learned counsel for the appellant contended that, the plaintiffs being the legal representatives of Late Munichinnanna claim right over the schedule properties in both the suits, who said to have acquired title over the schedule properties through one Galappa under the gift deed dated 19.12.1951 said to have been executed by Galappa in his - 14 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 favour. They also claim that Munichinnanna had bequeathed the scheduled properties in favour of the plaintiffs as per the registered Will dated 04.08.1983. Thus they have become the absolute owners of the properties respectively. Execution of the gift deed by Galappa in favour of Munichinnanna as per Exs.P2 and P3 are denied by the appellant/defendant. The Will said to have been executed by Munichinnanna in favour of the plaintiffs as per Ex.P4 is also denied. The appellant/defendant claims right under the registered gift deed dated 20.04.1959 executed by Galappa in favour of his two daughters Tayamma and Chinnathayamma. Tayamma was married to Buddaiah, but they had no issues. Chinnathayamma was married to Kushalappa. Defendant is the only son of the said Chinnatayamma and Kushalappa. The revenue records in respect of all the scheduled properties stand in the name of the defendant from 1981-82 till date. Therefore, it is the contention of the learned counsel for the appellant that, there is a presumption in favour of the defendant under Section 133 of Karnataka Land Revenue Act. Even on the date of filing the suit on 06.09.2005 the revenue records were standing in the name - 15 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 of the defendant. Under such circumstances, the plaintiffs could not have succeeded in the matter. 17. Learned counsel contended that, the plaintiffs claim right under the certified copy of the registered gift deed dated 19.12.1951 marked as Ex.P2 and the original gift deed dated 20.05.1959 marked as Ex.P3 which are said to have been executed by Galappa in favour of Munichinnanna. Both these documents are not proved. The original of Ex.P2 is also not produced. Even though the original gifted Ex.P3 is produced, the same is not legible. The certified copy is marked as Ex.P27 and typed copy is marked as Ex.P27(a). None of the witnesses to these gift deeds were examined. Admittedly, on the basis of these gift deeds, the name of Munichinnanna was never mutated in any of the revenue records. Hence, it is clear that even if the said gift deeds were executed by Galappa, the same were not acted upon. It is only for the first time, while filing this suit on 06.09.2005 these gift deeds dated 19.12.1951 and 20.05.1959 were referred to by the plaintiffs. 18. Learned counsel contended that the plaintiffs in both the suits place reliance on the registered Will Ex.P4 dated - 16 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 04.08.1983 said to have been executed by Munichinnanna in favour of the plaintiffs in both the suits. No attempt was made to prove the Will in accordance with law, except producing the Will and getting it marked as Ex.P4. Under such circumstances, the plaintiffs are not entitled for declaration of their title. 19. Learned counsel contended that mere producing the certified copy of the gift deed and marking it as per Ex.P2 will not attract the presumption under Section 90 of the Evidence Act. The Trial Court and the First Appellate Court, ignoring these facts, proceeded to raise the presumption under Section 90 of the Evidence Act to hold that the plaintiffs have proved Exs.P2 to 4 which are against the settled proposition of law. The plaintiffs never proved the execution of Ex.P4 the Will by Munichinnanna in their favour. Therefore, the impugned judgment and decree passed by the Trial Court is liable to be set aside. 20. Learned counsel also contended that since from 1981-82 all the revenue records stand in the name of the defendant. In spite of that, the Trial Court, ignoring the presumption under Section 133 of Karnataka Land Revenue Act - 17 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 proceeded to decree the suit by granting the permanent injunction against the defendant whose name is found in the revenue records, since from an undisputed point of time. Learned counsel also contended that the defendant is claiming right over the very same properties under the gift deed dated 19.12.1951 executed by Galappa in favour of his daughter Chinnathayamma and the original gift deed is marked as Ex.D1. The defendant also places reliance on the registered gift deed dated 20.05.1959 executed by the said Galappa in favour of Buddhaiah, who is the son-in-law of Galappa. In turn, the defendant also places reliance on Ex.D3 the registered sale deed dated 19.10.1998 executed by Chinnathayamma in favour of one Anjanappa. Thereby, she has exercised her right over the scheduled properties much before filing of the suit. 21. Learned counsel for the appellant further contend that, even if the contentions of the plaintiffs are to be accepted, no specific share is allotted in favour of the plaintiffs in both the suits. There are other beneficiaries under Ex.P3 in favour of whom the gift deed was executed. But none of them are parties to the present suit. It is not stated as to whether they are alive - 18 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 or dead and whether there was a partition between them and the plaintiffs or not. Under such circumstances, the plaintiffs could not have succeeded in this suit. 22. Learned counsel contended that the defendant has categorically denied the genuineness of the gift deeds Exs.P2 and P3 and contended that, it is a fabricated document. In spite of that the plaintiffs have not taken any steps to prove the document in accordance with law. When admittedly, those gift deeds are never acted upon by the parties and none of the revenue records changed on the basis of the gift deed, it cannot be said that the plaintiffs have proved due execution of Exs.P2 and P3. Similarly, Ex.P4 is not proved in accordance with law by examining any of the attesting witnesses. On the other hand, the defendant relied on Exs.D1 and D2, the registered deeds dated 20.12.1951 and 20.05.1959 executed by Galappa, who is none other than the grandfather of the defendant. Even though, the gift deeds Exs.P2 and P3 are of the same date as that of Exs.D1 and 2, the plaintiffs have failed to prove the due execution of gift deed by Galappa in favour of Munichinnanna. The plaintiffs have never challenged Exs.D1 - 19 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 and D2, they have also never challenged the revenue entries in favour of defendant in the revenue records from 1981-82 till date. The defendant examined himself as DW1, DW2 and DW3 are the attesting witnesses to Ex.D30 - Will dated 01.03.1996 executed by Buddaiah. In spite of that, the Trial Court held issue No.5 in the negative and held issue Nos.1 to 3 and 7 in the affirmative without any basis. 23. Learned counsel further submitted that the plaintiffs have never stepped into the witness box, they examined their Power of Attorney Holder Hanumanthappa, who is the root cause for filing the suit against the defendant. Adverse inference will have to be drawn against the plaintiffs for not stepping into the witness box to speak about their contentions. The Power of Attorney Holder who signed the plaint and stepped into the witness box as PW1 was hardly aged 26 years when the suit was filed. He could not have any knowledge about execution of the gift deed or the Will, and he is not a competent person to speak about any of these documents or about the facts regarding the execution of the documents or about the possession of the suit schedule properties by the - 20 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 plaintiffs. PW.2- Chowdamma even though speaks about the possession, her version cannot be believed in the absence of any materials. PW3 is the scribe of the Will Ex.P4, but none of the attesting witnesses to the Will are examined. It is not the contention of the plaintiffs that none of the attesting witnesses are alive. Under such circumstances, the Will Ex.P4 is not proved. Learned counsel also submitted that, the contention of learned counsel for the plaintiffs that, proof of Will Ex.P4 is inconsequential as the plaintiffs in both the suits are the legal representatives of Munichinnanna is not sustainable, since they have filed suits separately, and unless the plaintiffs in their respective suits, prove their claim over the Will Ex.P4, they are not entitled for any decree. 24. Learned counsel placed reliance on the decision of Hon'ble Apex Court in Tilak Chanda Kureel V.s Bhim Raj1 and in Harihar Prasad Singh and Another V.s Deonarain Prasad and Others2, in support of his contention that no presumption under Section 90 of the Indian Evidence Act would be raised when the original document is not produced. 1 (1996) 3 SCC 367 2 (1956) 1 SCC 4 - 21 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 25. Learned counsel also submitted that in all the revenue records, name of the defendant is entered in respect of item No.1 and there is reference to IHC.4/1981-82. Till today the revenue records stand in the name of the defendant and in respect of item No.2 IHC.3/1982-83 is effected as per the revenue records. Therefore, the learned counsel contended that the Trial Court as well as the First Appellate Court have ignored all these material irregularities and ignored the position of law and proceeded to decree the suit without any basis. 26. Learned counsel for the appellant placed reliance on the decision of the Division Bench of this Court in Miss Chandra R and Others V.s The State of Karnataka, Department of Revenue and Others3 to highlight his contention that when the revenue records, which for a long time stand in the name of the defendant, the presumption under Section 133 of Karnataka Land Revenue Act arises in favour of the defendant and against the plaintiff. Placing a reliance on these decisions, learned counsel for the appellant sought for allowing the appeals. 3 ILR 2023 KAR 14 - 22 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 27. Per contra, learned counsel for the respondents - plaintiffs opposing the appeals submitted that the relationship of the plaintiffs in both the suits with Munichinnanna is not disputed. Whether the Will Ex.P4 is proved or not, will not have any effect on the right of the plaintiffs as they are class-I legal representatives of Munichinnanna. Even in the absence of the Will, they succeed to the property after the death of Munichinnanna. Therefore, non-examination of the attesting witnesses to the Will Ex.P4 will not have any bearing on the merits of the case. He submits that there is no inter-se dispute between the plaintiffs in both the suits. Under such circumstances, the Trial Court and the First Appellate Court were right in decreeing the suits. 28. Learned counsel contended that Ex.P2 is the certified copy. Plaintiffs have laid the foundations for producing such secondary evidence in the pleading itself stating that the entire original document was eaten away by white ants. Therefore, the secondary evidence is admissible in law. Learned counsel submits that Ex.P3 is the registered gift deed. Since it is not readable, the certified copy is produced as per Ex.P27 - 23 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 and it's typed copy is as per Ex.P27(a). The very same Galappa is said to have executed Exs.D1 and D2 in favour of his daughters. All these gift deeds i.e., Exs.P2 and D1 are dated 19.12.1951, whereas Exs.P3 and D2 bear the date 20.05.1959. The defendant who was examined as DW1 categorically admitted execution of the gift deeds by late Gadappa. His only grievance is that, Galappa had executed several gift deeds exceeding the actual extent of land which was in his possession. Under such circumstances, execution of Exs.P2 and P3 by Galappa cannot be disputed by the defendant. The recitals in the gift deed disclose that Galappa had handed over the actual possession of the suit schedule properties in favour of Munichinnanna on the date of the gift. Under such circumstances, the possession of Munichinnanna and thereafter the plaintiffs cannot be disputed. Learned counsel referring to Exs.P6 and P7 contended that, even in the revenue records the name of the plaintiffs is shown and therefore, the contention of the learned counsel for the respondents that the name of the plaintiffs were never mutated in the revenue records cannot be accepted. - 24 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 29. Learned counsel contended that since the gift deeds Exs.P2 and P3 are of the year 1951 and 1959 respectively, the presumption under Section 90 of the Indian Evidence Act would operate in favour of the plaintiffs. Learned counsel for the respondents placed reliance on the decision of the Hon'ble Apex Court in Lakhi Baruah and Others V.s Padma Kanta Kalita and Others4 in support of his contention that if a proper foundation is laid for admission of secondary evidence under Section 63 of Evidence Act, then the copy of such document is admissible in evidence. Moreover presumption under Section 90 Evidence Act could be raised even in respect of such copies. He placed reliance on the decision of the Hon'ble Apex Court in Smt. Dayamathi Bai V.s K M Shaffi5 to contend that even in respect of a certified copy of a registered document, if it is more than 30 years old, the presumption under Section 90 of the Evidence Act would operate. He placed reliance on the decision of the Hon'ble Apex Court in Asokan V.s Lakshmikutty and Others6 to contend that when a registered document is executed the presumption arises with regard to 4 (1996) 8 SCC 357 5 AIR 2004 SC 4082 6 (2007) 7 SCC 210 - 25 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 the correctness of its contents as well. When as per the registered gift deeds, the possession is already handed over to the donee, the possession of the plaintiffs cannot be questioned. 30. He placed reliance on the decision of the Hon'ble Apex Court in Suraj Bhan and Others V.s Financial Commissioner and Others7 to contend that the revenue records are not the documents of title. The entries made in the revenue records are only for collection of revenue, but the same will not prove the contention of the defendant. He placed reliance on the decision of the Hon'ble Apex Court in Balwant Singh and Another V.s Daulat Singh and Another8, in support of his contention that even though the name of the defendant is found in the revenue records, the same will not divest the rights of the plaintiffs acquired under the registered deeds. He placed reliance on the decision of the Division Bench of this Court in Bhimappa Channappa Kapali and Others V.s Bhimappa Satyappa Kamagouda and Others9 in support of his contention that, to raise the presumption under 7 (2007) 6 SCC 186 8 (1997) 7 SCC 137 9 ILR 2002 KAR 3055 - 26 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 Section 133 of Karnataka Land Revenue Act, it is to be proved that such entries were duly certified as required under Section 129 of the Karnataka Land Revenue Act. In the present case, no such evidence is led by the defendant and therefore, the presumption under Section 133 of the Karnataka Land Revenue Act does not rise. 31. Learned counsel for the respondent by filing a memo and the revenue sketches contended that the schedule properties referred to in the plaint are separately shown in these sketches. Only a portion of the larger extent of land is being claimed by the plaintiffs. Whereas the defendant is claiming the remaining extent of the land as shown in the sketches. Therefore, the claim of the plaintiffs with regard to the scheduled property cannot be denied. When admittedly, Galappa who was the owner of large extent of land executed various gift deeds i.e., Exs.P2 and 3, Exs.D1 and 2, in respect of a small bits of land out of the larger extent, the Trial Court and the First Appellate Court were right in decreeing the suit of the plaintiff. The claim of the defendant in respect of the - 27 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 remaining extent of land is never disputed by the plaintiffs and hence prays for dismissal of the appeals. 32. On consideration of the materials on record, in the light of the submissions made by both the parties, I answer substantial questions of law Nos. 1 and 2 in favour of the appellant and against the respondents - plaintiffs for the following: REASONS 33. It is the contention of the plaintiffs in both the suits that, they are the legal representatives of Munichinnanna, who executed the Will as per Ex.P4. Admittedly, the plaintiffs have not examined any of the attesting witnesses to prove the Will in accordance with law. It is the contention of the learned counsel for the plaintiffs that proof of the Will is inconsequential since the plaintiffs in both the suits are not having any inter-se dispute amongst themselves, and even in the absence of the Will Ex.P4 they are entitled to succeed to the properties being the natural heirs of Munichinnanna. But it is pertinent to note that the plaintiffs in OS.No.2062/2005 are claiming right in respect of item Nos.1 to 7 described in the schedule. While the - 28 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 plaintiff in OS.No.2062/2005 is claiming right in respect of two items of properties described in the schedule separately willed away in the same will by Munichinnanna in favour of the plaintiff therein. Admittedly, the schedule properties described in OS.No.2062/2005 are entirely different from the properties described in the schedule in OS.No.2063/2005. When the plaintiffs separately seek declaration of their respective title in respect of a particular property, described in both the suites separately, they are bound to prove the Will Ex.P4 by examining at least one attesting witness. If it is the contention of the plaintiffs that the plaintiffs are the natural heirs of Munichinnanna, they should have filed a single suit seeking declaration and permanent injunction. When no such step is taken and they have chosen to file two separate suits seeking declaration of their respective title in respect of two different sets of properties, they are bound to prove the Will to succeed i.e., to claim declaration of their respective titles. Therefore, the contention of the plaintiffs that proof of Ex.P4 is inconsequential, cannot be accepted. - 29 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 34. Plaintiffs are relying on Exs.P2 and P3 the gift deeds dated 19.12.1951 and 20.05.1959 respectively. The defendant is also relying on similar gift deeds marked as Exs.D1 and D2 which are also dated 19.12.1951 and 20.05.1959. Interestingly, all these deeds are executed by one Galappa. It is stated that Galappa is the grandfather of the defendant and he bequeathed his properties in favour of Munichinnanna under Exs.P2 and P3 and in favour of Chinnathayamma i.e., the mother of the defendant under Ex.P1 and in favour of one Buddaiah i.e., the son-in-law of Galappa. It is the contention of the defendant that Buddaiah had no issues and thus, the defendant came in possession of the properties that are subject matter of Ex.D2. The defendant has examined himself as DW1, and has also examined DW2 and 3 to prove the Will dated 01.03.1996 marked as Ex.D30 executed by Buddaiah in favour of Galappa who is the son of the defendant. PW1 during cross- examination categorically stated that, Galappa had executed various gift deeds even though, he was not in possession of such an extent of land to bequeath under various gift deeds. But the same cannot be taken advantage by the plaintiffs. Since, it is they who approached the Court seeking declaration - 30 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 of their title and for permanent injunction. When the plaintiffs have not proved their title over the properties, they are not entitled for any relief. 35. Even if the contention of the plaintiffs that Exs.P2 and P3 are the gift deeds executed by Galappa in favour of Munichinnanna, is to be accepted for a moment, the same will not prove the title of the plaintiffs in respect of different scheduled properties in two different suits in the absence of proof of the Will Ex.P4. Moreover, the plaintiffs are required to prove the identification of the properties claimed by them in the schedule with reference to the gift deeds marked as Exs.P2 and P3. Unfortunately, no such attempt was made by the plaintiffs to identify their respective shares in the schedule properties. More so when the defendant is also claiming right over the very same survey numbers under two different registered gift deeds Exs.D1 and D2. Admittedly, no Court Commissioner was got appointed by the plaintiffs to identify the schedule properties and to contend that the properties that are claimed by the defendant on the basis of Exs.D1 and D2 are entirely different. An attempt was made by the learned counsel for the plaintiffs - 31 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 to contend that the scheduled properties claimed by the plaintiffs are entirely different from the claim of the defendant by referring to the survey sketch. But the authenticity of this sketch is not tested by making the same as an exhibit and subjecting the witness to the cross-examination. Nothing prevented the plaintiffs to produce and mark such documents before the Trial Court. Interestingly, the plaintiffs have not sought for appointment of the Court Commissioner to identify their respective lands, at least before the Appellate Court/s. 36. Learned counsel for the respondents placed reliance on the decisions of Hon'ble Apex Court in Lakhi Baruah and Others, (supra) and Dayamathi Babi (supra), to contend that the presumption under Section 90 of Indian Evidence Act could be raised even in respect of a copy of the original document, when a foundation is laid, regarding admissibility of the secondary evidence under Section 63 of the Evidence Act. The Apex Court in Lakhi Baruah and Others, (supra) referring to the earlier decision of the Privy Council in Seethayya Vs. Subramanya Somayajalu10 and Basant 10 AIR 1929 PC 115 - 32 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 Singh Vs. Brij Raj Savan Signh11 held in paragraph 17 as under: "17. The position since the aforesaid Privy Council decision being followed by later decisions of different High Courts, is that presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old; but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act, 1872 by proof of loss or destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine." 37. Hence, it is clear that, generally the presumption under Section 90 of the Evidence Act does not apply to a copy or a certified copy even though 30 years old. However, if a foundation is laid for admission of the secondary evidence, by proof of loss or destruction of the original, and the copy which is also a 30 years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 of the Evidence Act be presumed to be genuine. Therefore, automatically the production of a copy of a 30 year old document will not enable to raise the presumption under Section 90 of Evidence Act. The destruction or loss of the 11 AIR 1935 PC 132 - 33 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 original is to be proved by the plaintiffs after laying the foundation by raising such contention in the plaint. The copy of said document which is also 30 years old is to be produced from proper custody. Then only the presumption under Section 90 of the Evidence Act could be raised in favour of the authenticity of the signature of the executor. 38. In the present case even if Ex.P2- the certified copy of the gift deed is to be taken as admissible in evidence on the ground that a foundation is laid in the plaint that the original is eaten away by white ants, the plaintiffs have not proved the Will executed in their favour. Moreover, they have not made any efforts to identify the schedule properties in the larger extent of the land particularly when the defendant has denied the rights of the plaintiffs and claiming right under different sent of documents. 39. It is not in dispute that the revenue entries in respect of the scheduled properties stood in the name of the defendant since from 1981-82. In only two records of rights i.e., Exs.P6 and P7, the names of the plaintiffs are shown in column No.12 and not in column No.9. There is absolutely no - 34 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 explanation by the plaintiffs as to why their names were not mutated in the revenue records either as per the gift deeds executed by Galappa in favour of Munichinnanna or on the basis of the Will executed by Munichinnanna as per Ex.P4. On the other hand, the revenue records are standing in the name of the defendant since from 1981-82 till date which give rise to a presumption under Section 133 of Indian Evidence Act, which is supported by the document of title i.e., Exs.D1, 2 and 30, the Will dated 01.03.1996. which is spoken to by the defendant as well as by DWs.2 and 3. 40. Even if all the title deeds that are relied on by the plaintiffs are to be accepted, they are required to prove the identification of the properties with certainty to seek declaration of their title. In the present case, the plaintiffs have made only a half-hearted attempt to prove their title as well as their possession but not made any efforts to identify their properties described in the schedule attached to both the suits. Under such circumstances, they are not entitled for any relief. 41. I have gone through the impugned judgment in detail passed by the Trial Court as well as by the First Appellate - 35 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 Court. The Courts have held that the gift deed - Exs.P1, P2 and P3 are 30 years old and therefore, the presumption under Section 90 of the Evidence Act arises in favour of the plaint. The Courts have also noted that as per Exs.P6 and P7, the names of the plaintiffs are shown in the record of rights and therefore, the presumption under Section 133 of Karnataka Land Revenue Act would arise in favour of the plaintiffs. Both the Courts have ignored the factual aspects of the matter as described above. In the light of the defence taken by the defendant and the materials that were placed before them, the Courts have not taken into consideration the fact that the plaintiffs have never made any attempt to identify the schedule properties by producing any revenue sketch or by getting the Court Commissioner appointed to survey and identify the lands in question, when the defendant is also claiming right under Exs.D1, D2 and D3 in respect of the very same survey numbers. The failure on the part of the plaintiffs to identify their respective shares would disentitle them from seeking any relief. - 36 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 42. In view of the discussions held above, I answer the substantial questions of law in favour of the appellant and against the respondents and proceed to pass the following: ORDER i. The appeal is allowed with costs. ii. The impugned common judgment and decree dated 04.07.2008 passed by the learned I Additional Civil Judge Senior Division, Bengaluru District, Bengaluru in O.S. Nos.2062 and 2063/2005 which was confirmed in R.A. Nos.163 and 164/2008 by the learned the Principal District Judge, Bangalore Rural District, Bangalore are hereby set aside. iii. Consequently, the suit in OS.Nos.2062 and 2063/2005 filed by the plaintiffs before the Trial Court are hereby dismissed. iv. Draw decree accordingly. - 37 - HC-KAR NC: 2026:KHC:1918 RSA No. 1350 of 2009 C/W RSA No. 1351 of 2009 Registry is directed to send back the Trial Court records along with copies of the judgment and the decree. SD/- (M G UMA) JUDGE PNV CT:VS List No.: 1 Sl No.: 3