Sri K M Mahesh v. Smt. Nanjamma

Judgment on merits.

 The First Appellate Court being the final Court of facts was required to re-assess the entire evidence on record and decide the Appeal in requirement of Order-XLI, Rule-31 of the Code of Civil Procedure. But it has failed to comply with the mandatory requirement of law in deciding the appeal mechanically agreeing with the findings and conclusions of the Trial Court.

 The findings of the Courts below on the Issues relating to title and possession over the suit land

claimed by the Plaintiffs are perverse and contrary to the evidence on record and realities.

 Even otherwise the impugned judgments and decrees of the Courts below suffer from illegal infirmities warranting interference of this Hon'ble Court.

 The appellants seek leave of this Hon'ble court to urge such other additional grounds at the time of hearing.

¶17Sri. V. Vinod Reddy, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum would contend that in respect of the suit in O.S.No.154/2001, there is already a settlement by the plaintiffs with other defendants; the properties involved in this suit will also be settled by reaching amicable settlement.

¶18Therefore the appeal needs to be admitted on the following substantial questions of law.

SUBSTANTIAL QUESTIONS OF LAW:

1) Whether the First Appellate Court committed substantial procedural illegality in considering the application of the Appellant/Plaintiff filed under Order-XLI Rule-27 of Code of Civil Procedure seeking permission to produce documents as additional evidence in support of their case and passing appropriate orders thereon?

2) Whether the Courts below were justified in placing reliance on the judgment passed in the other suit where the appellants are not the parties and dismissing the present for declaration of their title while giving their findings on the Issues involved and reaching their conclusions while passing the impugned judgments and decrees?

3) Whether the Courts below were justified in not scrutinising and discussing and evaluating the evidentiary value of the entire oral and documentary evidence on record while giving their findings on the Issues involved in the Suit?

4) Whether the findings of the Courts below on the Issues relating to title and possession over the suit property claimed by the Plaintiff are perverse and contrary to the evidence on record?

5) Whether the First Appellate Court committed illegality in not complying with the mandatory requirement of Order-XLI Rule-31 of Code of Civil Procedure Code while dismissing the Appeal RA-29 of 2015?

6) Whether inferences drawn and the conclusions arrived at by the Courts below are erroneous and resulted in miscarriage of justice?

¶19Per contra, learned counsel Sri. N. Murali and Sri. Umesh B.N, learned counsel for the respondents would oppose the appeal grounds and supported the impugned judgments.

¶20Having heard the arguments of both sides, this Court perused the matter on record meticulously.

¶21On such perusal of material on record, the suit before the trial Court was one for declaration and injunction. As such, a legal right has to be made out by the plaintiffs by placing necessary oral and documentary evidence on record to grant the said relief.

¶22The plaintiffs claim right over the suit properties by virtue of the will said have been executed by Devamma in their favour appointing defendant No.5 - mother as the natural guardian.

¶23Admittedly, PW.1 came in custody of the original will said to have been executed by Devamma in

favour of the plaintiffs in the year 1988. No reason whatsoever is forthcoming as to non-production of the original will before the first appellate court.

¶24The original will is produced with an application under Order XLI Rule 27 of the CPC, wherein it has been stated that the said original will was produced in the earlier suit in O.S.No.154/2001. Therefore, he took back the same from that said case and filed it before the first appellate court.

¶25Such an exercise could have been carried out when the suit was pending before the trial court assuming that the case is still pending and not yet disposed of then, which is incorrect, as RSA No.2077/2008 concluded in 2013.

¶26At last, the will could have been summoned by filing an application under Order XVI of the CPC. But no such effort has been made by the plaintiffs.

¶27As such, the non-production of the will, which is the basis for seeking declaratory relief, is rightly taken note by the learned trial judge while dismissing the suit of the plaintiffs.

¶28Furthermore, to establish that Devamma had acquired the right to bequeath the property, no material evidence is placed on record. Mere production of the certified copy and examining PW.2 would not ipso facto result in proof of the will. Even for production of the certified copy of the will and to rely upon it, no foundational facts are pleaded to lead the secondary evidence.

¶29These aspects of the matter would go to the very root of the case, which has been rightly considered by the learned judge in the first appellate court by holding that plaintiffs failed to make out a case for granting declaratory relief.

¶30Having regard to scope of Section 100 of the CPC, this Court does not find any merit in any one of the grounds urged in the appeal or in the substantial questions of law.

¶31Accordingly, following order: ORDER i. Admission declined. ii. Regular Second Appeal is dismissed.

Sd/- (V SRISHANANDA) JUDGE

SKS

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 464 OF 2020 BETWEEN: 1. SRI K M MAHESH S/O SRI.T.MUNE GOWDA R/O NO.1, ABHI NILAYA, 1ST CROSS DIESEL SHED ROAD DEAD END LEFT POOJAPPA LAYOUT, KRISHNARAJAPURAM BENGALURU-560036 2. SRI.K.M.KUMAR S/O SRI.T.MUNE GOWDA AGED ABOUT 39 YEARS R/O NO.666, ARMY AVN SQN (R AND O) C/O 56 APO JAMMU AND KASMIR- 925666 …APPELLANTS (BY SRI. V VINOD REDDY., ADVOCATE) AND: 1. SMT. NANJAMMA W/O LATE VENKATASWAMY GOWDA AGED ABOUT 79 YEARS 2. SRI.V.MUNE GOWDA S/O LATE VENKATASWAMY GOWDA AGED ABOUT 58 YEARS 3. SRI.GOPALA GOWDA Location: HIGH COURT OF KARNATAKA ((((((((((((HC-KAR, NC:(2026:KHC:43999( RSA(No.(464(of(2020( ( ,,,,,,,,,, , CNR:(KAHC010529652019( ( ( S/O,LAE,VENKATASWAMY,GOWDA, AGED,ABOUT,53,YEARS, , RESPONDENT,1,TO,3,ARE,RESIDING,AT, C.HOSURU,VILLAGE,,NAMBIHALLI,POST,, SRINIVASAPURA,TALUK,, PIN-563126, , 4., SRI.T.MUNE,GOWDA, S/O,LATE,VENKATASWAMY,GOWDA, AGED,ABOUT,70,YEARS, , 5., SMT.SUNANDAMMA, W/O,T.MUNE,GOWDA, AGED,ABOUT,56,YEARS, , RESPONDENTS,4,AND,5,BOTH,ARE,, R/O,KENDATTI,VILLAGE,, VOKKALERI,HOBLI,, KOLAR,DISTRICT,-,563130, , 6., SRI.GOPALA,GOWDA, S/O,YALACHE,GOWADA, AGED,ABOUT,56,YEARS, , 7., SRI.VENKATESHAPPA, S/O,YALACHE,GOWDA, AGED,ABOUT,56,YEARS, , 8., SRI.MARE,GOWDA, S/O,YALACHE,GOWDA, AGED,ABOUT,53,YEARS, , 9., SRI.NAGARAJ, S/O,YALACHE,GOWDA, ((((((((((((HC-KAR, NC:(2026:KHC:43999( RSA(No.(464(of(2020( ( ,,,,,,,,,, , CNR:(KAHC010529652019( ( ( AGED,ABOUT,49,YEARS, , 10., SRI.M.NARAYANASWAMY, S/O,CHIKKA,MUNISWAMAPPA, AGED,ABOUT,49,YEARS, R-6,TO,R9,ARE,ALL,RESIDENTS,OF,, C.,HOSUR,VILLAGE,,NAMBIHALLI,POST, SRINIVASAPURA,TALUK, PIN-,563126, , 11., SMT.CHANDRAMMA, D/O,LATE,SRIRAMAPPA, AGED,ABOUT,50,YEARS, , 12., SRI.S.RAJANNA, S/O,LATE,SRIRAMAPPA, AGED,ABOUT,47,YEARS, , 13., SMT.AMARAVATHI, D/O,LATE,SRIRAMAPPA, AGED,ABOUT,45,YEARS, , 14., SMT.LAKSHMIDEVI, D/O,LATE,SRIRAMAPPA, AGED,ABOUT,40,YEARS, , 15., SRI.K.S.MUNISWAMY,GOWDA, S/O,LATE,SRIRAMAPA, AGED,ABOUT,40,YEARS, , 16., SRI.MUNIVENKATAPPA, S/O,VENKATESHAPPA, AGED,ABOUT,65,YEARS, , RESPONDENTS,10,TO,16,ARE,, ALL RESIDENTS OF KENDATTI VILLAGE VOKKALERI HOBLI KOLAR TALUK PIN-563130 …RESPONDENTS (BY SRI. N. MURALI., ADVOCATE FOR C/R1 SRI. UMESH B.N., ADVOCATE FOR R11, R13 TO R15) (R2 TO R10, R12, R16 ARE SERVED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.08.2019 PASSED IN RA.NO.77/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.04.2017 PASSED IN OS.NO.373/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, AT KOLAR AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT 1. Heard Sri. Vinod Reddy, learned counsel for the appellant, Sri. N. Murali, learned counsel for Caveator/respondent No.1 and Sri. Umesh B.N., learned counsel for respondents No.11, 13 to 15. 2. Plaintiffs second appeal challenging the dismissal of the suit in O.S.No.373/2014, confirmed in R.A.No.77/2017, whereby the suit for declaration and injunction came to be dismissed in respect of the following properties (hereinafter referred to as the 'suit properties'). SCHEDULE 1. Land bearing Sy.No. 33/5 measuring 03 guntas 2. Land bearing Sy. No. 45/9 measuring 05 guntas 3. Land bearing Sy. No. 96/2 measuring 0.34 guntas 4. Land bearing Sy.No. 122/2 measuring 0.38 guntas 5. Land bearing Sy.No. 54/4 measuring 03 guntas 6. Land bearing Sy.No. 138/3 measuring 1 acres 05 guntas 7. Land bearing Sy.No. 138/5 measuring 0.15 guntas 8. Land bearing Sy.No. 70/4 measuring 0.24 guntas 9. Land bearing Sy.No. 4/1 measuring 1 acre 36 guntas 10.Land bearing Sy.No. 4/4 measuring 1 acre 19 guntas 11.Land bearing Sy.No. 33/9 measuring 05 guntas 12.Land bearing Sy. No.67/16 measuring 02 guntas 13.Land bearing Sy.No. 47/24 measuring 03 guntas Items No. 1 to 8 and 11 to