Karnataka High Court
Rudrappa S/O Sri Badagi Thippaiah vs Hanumakka W/O Sri Eranna on 20 November, 2025
-1-
NC: 2025:KHC:48252
RSA No. 159 of 2010
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR
MAGADUM
REGULAR SECOND APPEAL NO. 159 OF 2010
(DEC/INJ-)
BETWEEN:
1. SRI. RUDRAPPA
S/O SRI. BADAGI THIPPAIAH,
AGE: 65 YEARS,
2. SRI. RANGAPPA
S/O SRI. BADAGI THIPPAIAH,
AGE: 63 YEARS,
BOTH ARE R/O BARHAMPURA VILLAGE
AIMANGALA HOBLI, HIRIYUR TALUK,
CHITHRADURGA DIST-577501.
Digitally signed by
NIJAMUDDIN
JAMKHANDI
...APPELLANTS
Location: HIGH
COURT OF (BY SRI. R. B. SADASHIVAPPA, A/W
KARNATAKA
SRI. G. B. NANDISH GOWDA, ADVOCATE)
AND:
1. SMT. HANUMAKKA
W/O SRI ERANNA,
AGE: 48 YEARS,
2. SMT. CHITTAMMA
W/O SRI. THAMANNA,
AGE: 46 YEARS,
BOTH ARE R/O YELAGHATTA
-2-
NC: 2025:KHC:48252
RSA No. 159 of 2010
HC-KAR
GOLLARAHATTI,
CHELLAKERE TALUK,
CHITHRADURGA DIST-577501.
...RESPONDENTS
(BY SRI. BALAKRISHNA SHASTRY, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE IMPUGNED
JUDGMENT AND DECREE DATED 07.12.2009 PASSED BY THE
ADDL. SESSIONS JUDGE, FAST TRACK COURT,
CHITHRADURGA IN R.A.16/2006 CONFIRMING THE JUDGMENT
AND DECREE DATED 28.02.2006 PASSED BY THE I ADDL.
CIVIL JUDGE (SR. DN) CHITHRADURGA IN O.S.132/1995 AND
CONSEQUENTLY DISMISS THE SUIT IN O.S.132/1995 FILED BY
THE RESPONDENTS.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned second appeal is filed by defendants assailing the concurrent judgments of the Courts below wherein plaintiffs suit is decreed declaring plaintiffs as absolute owners of the suit schedule properties and consequently, the defendants are directed to deliver possession of the suit schedule properties to the plaintiffs -3- NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR within a period of three months from today.
2. For the sake of brevity, the parties are referred to as per their rank before the Trial Court.
3. The plaintiffs instituted the present suit contending that the suit schedule properties were originally owned by one Puttamma. Upon her death, the properties devolved upon her daughter Kariyamma, who is the mother of plaintiff Nos.2 and 3 and the wife of plaintiff No.1. It is the case of the plaintiffs that Kariyamma died about 17 years prior to the institution of the suit. After her demise, plaintiff No.1 married the second wife, Eramma. The plaintiffs alleged that Eramma developed a hostile attitude towards plaintiff Nos.2 and 3, who were minors at the relevant point of time. Consequently, plaintiff No.1 entrusted the care and custody of plaintiff Nos.2 and 3 to one Sannakka, wife of Baggajja of Yalagatta Gollarahatty, Challakere Taluk, who is the maternal aunt of plaintiff Nos.2 and 3. -4-
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR The plaintiffs further stated that being illiterate, they did not take steps to get their names mutated in the revenue records after the death of Kariyamma. Nonetheless, plaintiff Nos.2 and 3 asserted that they, along with plaintiff No.1, continued in exclusive possession of the suit lands.
4. The suit was filed alleging that in July 1995, when the defendants attempted to get their names mutated in the revenue records, the plaintiffs discovered that the defendants were claiming ownership based on a registered sale deed dated 17.09.1986. Plaintiff Nos.2 and 3 specifically contended that they had never executed any such sale deed in favour of the defendants and alleged that the document was fabricated by the defendants in collusion with the attesting witnesses and the scribe. They therefore sought a declaration that the sale deed is null and void, along with consequential relief of possession. The plaintiffs further contended that they were minors on -5- NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR the date of the purported sale and hence legally incapable of executing any such conveyance.
5. Upon service of summons, defendant Nos.1 and 2, the alleged purchasers, entered appearance and contested the suit. In their written statement, the defendants denied the plaint averments in toto. They contended that plaintiff Nos.2 and 3, being the daughters of Kariyamma, inherited the properties exclusively and that plaintiff No.1, being only the husband of the deceased, is not a Class-I heir and therefore did not succeed to the suit properties. They further asserted that plaintiff Nos.2 and 3 voluntarily executed the registered sale deed in their favour and thus, after an unexplained delay of nine years, the plaintiffs were not entitled to challenge a validly executed transaction. On these premises, the defendants claimed absolute title and lawful possession and sought dismissal of the suit.
6. Both parties adduced oral and documentary -6- NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR evidence in support of their respective claims. To prove that plaintiff Nos.2 and 3 were minors on the date of the alleged sale, the plaintiffs examined a Radiologist as PW.3. The defendants, on the other hand, sought to rebut the claim of minority and also counter the allegation of forgery by obtaining the opinion of a finger-print expert with respect to the signatures found on the sale deed dated 17.09.1986, marked as Ex.D-
17.
7. The trial Court, while noting that the finger- print expert's opinion indicated that the signatures on Ex.D-17 tallied with those of plaintiff Nos.2 and 3, nevertheless placed substantial reliance on the evidence of PW.3 and the age certificate issued by him marked as Ex.P-11. On this basis, the trial Court concluded that plaintiff Nos.2 and 3 were indeed minors on the date of the transaction and therefore incapable of executing the sale deed. The Court held the sale deed dated 17.09.1986 to be a concocted and void document, -7- NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR answering Issue No.1 in the affirmative. The trial Court further held that the defendants failed to establish that the plaintiffs had received consideration of Rs.5,000/- under the alleged sale. Additional Issue No.1 was also answered in the affirmative, with the Court recording a finding that the defendants forcibly dispossessed the plaintiffs on 21.02.2001. Consequently, the suit was decreed, declaring the plaintiffs as absolute owners and directing restoration of possession.
8. Aggrieved by the judgment and decree of the trial Court, the defendants preferred an appeal before the First Appellate Court.
9. The Appellate Court, upon reappreciation of the evidence, concurred with the findings of the trial Court. It upheld the conclusion that plaintiff Nos.2 and 3 were minors as on 17.09.1986 based on the age certificate Ex.P-11 and the testimony of PW.3. The Appellate Court reiterated that a minor is incompetent -8- NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR to enter into a contract and therefore incapable of alienating immovable property. It accordingly held that the sale deed did not confer any title upon defendant Nos.1 and 2 and dismissed the appeal.
10. It is these concurrent findings of the Courts below that are under challenge at the instance of the defendants in the present second appeal.
11. This Court, vide order dated 20.09.2010, admitted the appeal on the following substantial question of law:
"Whether the evidence on record was sufficient to hold that the respondents herein were minors as on the date of the execution of the sale deed dated 17.09.1986, which was disputed?"
12. This Court has recalled the judgment earlier rendered on merits, upon noticing that, despite the respondent having duly engaged counsel, the registry -9- NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR had inadvertently failed to reflect the name of the respondent's advocate in the cause-list. Consequently, the respondent was not issued notice and was deprived of an effective opportunity of hearing. In order to rectify this procedural lapse and to uphold the principles of natural justice, this Court found it necessary to recall the judgment.
13. Pursuant to the recall, the matter was taken up for fresh consideration and was heard at length. The learned counsel appearing for the plaintiffs advanced detailed submissions and strenuously contended that the concurrent findings recorded by both the courts below are well-reasoned and do not call for interference by this Court in the exercise of appellate jurisdiction. It was therefore urged that the appeal deserves to be dismissed.
14. Heard learned counsel for defendant Nos.1 and 2 and counsel for plaintiffs.
- 10 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR
15. The plaintiffs' case, as pleaded, proceeds on a narrow but determinative premise: that plaintiff Nos.2 and 3 were minors on 17.09.1986 and therefore lacked the legal capacity to alienate the suit lands by executing the registered sale deed dated 17.09.1986 (Ex.D-17). The gist of the plaintiffs' claim is that Ex.D-17 is a fabricated document and that the purported alienation could not have been effected by persons who were, at the relevant time, legally incompetent to contract. To establish minority, the plaintiffs place primary reliance upon the age certificate exhibited as Ex.P-11 and upon the testimony of PW.3, who gave evidence as a Radiologist. On close scrutiny of Ex.P-11, however, it is apparent that the certificate does not record the date on which plaintiff No.2 (or plaintiff No.3) was examined by PW.3 nor does it indicate the method or particulars of the examination by which the age was ascertained. These lacunae in Ex.P-11 necessarily engage the Court's attention because the evidentiary weight of a
- 11 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR medical age-certificate depends heavily upon (a) the identity of the person examined, (b) the date and circumstances of examination, and (c) the factual basis on which the medical opinion as to age is founded. The credibility and probative value of PW.3's testimony must therefore be tested against his cross-examination, for it is in the cross-examination that the Court can examine whether the certificate was prepared contemporaneously, whether proper records were kept, and whether the methodology employed was capable of yielding a reliable conclusion as to age. The relevant portion of PW.3's cross-examination which goes directly to these crucial points is accordingly relied upon by the parties and will be considered by this Court in determining the evidentiary worth of Ex.P-11.
"¤.¦.11 gÀ°è ºÀ£ÀĪÀÄPÀ̼À UÀAqÀ£À ºÉ¸g À ÁUÀ°Ã DPÉAiÀÄ Hj£À ºÉ¸g À ÁUÀ°Ã §gÉ¢®è J£ÀÄߪÀÅzÀÄ ¤d. ¸Ànð¦üPÃÉ mï PÉÆlÖ vÁjÃRÄ §gÉ¢®è J£ÀÄߪÀÅzÀÄ ¤d. £À£Àß ¥Àª æ ÀiÁt ¥Àvz Àæ ° À è AiÀiÁªÁåªÀ ªÀÄƼÉU¼À À PÀ-ë QgÀt vÉUz É É ªÀÄvÀÄÛ AiÀiÁªÀ DzsÁgÀzÀ ªÉÄðAzÀ £À£Àß C©ü¥ÁæAiÀÄ ªÀåPÀÛ ¥Àr¹zÉ JA§ §UÉÎ §gÉ¢®è J£ÀÄߪÀÅzÀÄ ¤d. C®èzÉ J¦¥Éʹ¸ï PÀÆrPÉÆAqÀ §UÉÎAiÀÄÆ ¥Àª æ iÀ Át ¥Àvz æÀ ° À è §gÉ¢®è. ¤.¦. 11 gÀ°è 'C¨ÉÆÃmï' ªÀÄvÀÄÛ '21' §gÉzÀ ¸Àܼz À ° À è 'NªÀgï
- 12 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR gÉÊnAUï' DVzÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀASÉ 21 gÀ°è 2 JA§ ¸ÀASÉåAiÀÄ£ÀÄß 'NªÀgï gÉÊnAUï' DVzÉ J£ÀߪÀÅzÀÄ ¤d. £Á£ÀÄ ¥ÀjÃQëùzÁUÀ ºÀ£ÄÀ ªÀÄPÀ̽UÉ PÀ¤µÀÖ ¥ÀPÀë 21 ªÀµð À DVvÀÄ.Û D ªÀÄÆ¼É PÀÆrPÉÆAqÀÄ JµÀÄÖ ªÀµð À DVzÉ JAzÀÄ ºÉüÀ®Ä ¸ÁzÀå«®è. ZÀªÀÄðzÀ ºÉÆgÀV£À ZÀºg À É ªÀÄvÀÄÛ ¨É¼ª À t À UÂ É EªÀÅUÀ¼À DzsÁgÀzÀ ªÉÄðAzÀ ªÀAiÀĸÀ£ ì ÀÄß CAzÁf£À ªÉÄÃ¯É ºÉüÀ§ºÀÄzÉ ºÉÆgÀvÀÄ ¤RgÀªÁV ¸ÁzÀå«®è. ºÀ£ÀĪÀÄPÀ̼À ªÀiÁvÀÄ PÉý ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÝÉ Ã£É J£ÀÄߪÀÅzÀÄ ¤dªÀ®.è CzÉà vÁjÃT£ÀAzÀÄ vÀªÀÄät£ Ú À ºÉAqÀw avÀª Û ÄÀ ä JA§ÄªÀª¼ À £ À ÀÄß ¥ÀjÃQëù ªÀAiÀĹì£À §UÉÎ ¥Àª æ ÀiÁt ¥ÀvÀæ PÉÆlÖ §UÉÎ £ÀªÀÄä gÀf¸ÀÖg£ À è £ÀªÀÄÆ¢¸À¯ÁVzÉ J£ÀÄߪÀÅzÀÄ ¤d. CzÀÄ ¥ÀÄl 216 gÀ°z À ° è ÀÄÝ CzÉà ¥ÀÄlzÀ°è PɼU À q À U É É ºÀ£ÀĪÀÄPÀ̼À ¥Àª æ ÀiÁt ¥ÀvÀæ PÉÆlÖ §UÉÎ §gÉAiÀįÁVzÉ. avÀª Û ÄÀ ä FPÉ CAzÁdÄ (C¨ÉÆ) 21 ªÀµð À CAvÀ §gÉAiÀįÁVzÀÄÝ ¤d. DzÀgÉ ºÀ£ÀĪÀÄPÀ̼À ªÀAiÀĸÀÄì (C¨ÉÆ) 21 ªÀµð À CAvÀ §gÉAiÀįÁVzÉ. 'C¨ÉÆ' 21 ªÀµðÀ CAvÀ §gÉAiÀįÁVzÉ. avÀª Û ÀÄä¼À ªÀAiÀĹì£À ¥Àªæ ÀiÁt ¥ÀvÀæ £ÁåAiÀiÁ®AiÀÄPÉÌ ¨ÉÃPÀÄ CAvÀ ¥ÀqAÉ iÀįÁVzÉ. ªÁ¢AiÀÄ ªÀiÁvÀÄ PÉý ¸ÀļÀÄî ¥Àª æ iÀ Át ¥ÀvæÀ PÉÆnÖzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¤dªÀ®.è ºÀ£ÀĪÀÄPÀ̼À ªÀAiÀĸÀÄì 21 jAzÀ 24 gÀªg À U É É EgÀ§ºÀÄzÀÄ. CzÀQÌAvÀ ºÉZÀÄÑ EgÀ§ºÀÄzÀÄ J£ÀÄߪÀÅzÀÄ ¤dªÀ®.è "
16. Upon a meticulous examination of the cross- examination of PW.3, this Court finds that both the Courts below have failed to properly appreciate the slender and unreliable evidence adduced by plaintiff Nos.2 and 3 to demonstrate that they were minors at the time of execution of the sale deed in favour of defendant Nos.1 and 2. PW.3, the Radiologist, has candidly admitted in his cross-examination that Ex.P- 11, the age certificate relied upon by the plaintiffs, does not bear the date of examination. He has further
- 13 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR admitted that the certificate does not disclose which specific bones were examined for the purpose of determining the age of plaintiff No.2. More significantly, he has also admitted, in unequivocal terms, that the expression "about 21 years" appearing in Ex.P-11 is an overwriting. He has further conceded that he is not in a position to state when the bones of plaintiff No.2 had united.
17. These admissions strike at the very root of the credibility of Ex.P-11. When the evidence of PW.3 is assessed in its entirety, it becomes evident that the plaintiffs have failed to place any reliable or cogent material to prove that they were minors on the date of the purported alienation. Consequently, this Court is of the considered view that the concurrent findings of both the Courts below, holding that plaintiff Nos.2 and 3 were minors as on the date of execution of the sale deed, suffer from serious perversity and are vitiated by non-consideration of material admissions elicited in
- 14 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR cross-examination. The findings, therefore, cannot be sustained.
18. It is well settled that while a Radiologist is generally competent to estimate age by conducting a bone ossification test, an assessment based on the degree of fusion of bones through radiographic examination, such tests have reliable probative value primarily when conducted before an individual attains the age of 18 years. After the age of 18, the elongation of bones is substantially complete and ossification approaches its final stage. At that point, variations caused by individual biological characteristics, nutrition, hereditary factors, and environmental influences render the test significantly less reliable. Thus, although the ossification test may offer a relevant indication, it cannot be treated as a conclusive or determinative piece of evidence for establishing age once the individual has crossed adolescence.
- 15 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR
19. In this factual matrix, this Court is not inclined to place reliance on the oral testimony of PW.3 or on the age certificate Ex.P-11 issued by him. If the ossification test conducted after the age of 18 cannot be regarded as fully reliable, the evidentiary value of Ex.P- 11 must necessarily be examined within the limited framework accorded to expert opinions under Section 45 of the Indian Evidence Act. It is well established that expert opinion is merely advisory in nature and cannot, on its own, form the sole basis for determining a crucial fact unless supported by independent and credible evidence. In this regard, reference may be made to the judgment of the Hon'ble Supreme Court in Ramdeo Chauhan v. State of Assam (2000) 7 SCC 455, wherein the Apex Court has clearly laid down the parameters governing reliance on medical opinion for age determination.
"The statement of the doctor is no more than opinion, the Court has to base its conclusions upon all the facts and
- 16 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR circumstances disclosed on examining of the physical features of the person whose age is in question. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform."
20. In Vishnu v. State of Maharashtra, (2006)1 SCC 283, the Hon'ble Supreme Court has categorically clarified that an ossification test conducted by a medical officer falls within the ambit of expert opinion and is intended merely to assist the Court. Such expert opinion is advisory in nature and does not bind the Court. Applying this principle to the present case, it becomes evident that the age certificate issued by PW.3 cannot be treated as reliable evidence, particularly because the certificate fails to disclose the date on which plaintiff No.2 was examined. In the absence of such a foundational detail, Ex.P-11 cannot be accorded conclusive value for determining the age of plaintiff No.2.
- 17 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR
21. Indian Courts, including the Hon'ble Apex Court, have in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223, consistently observed that an ossification test never yields an exact age of the person examined. Radiological assessment leaves a margin of error of nearly two years on either side of the assessed age. Thus, the method is inherently approximate and incapable of furnishing precise age determination.
22. In a country like India, where documentary proof of age may often be unavailable owing to a variety of social and economic circumstances, Courts may be compelled to consider medical evidence. However, where the medical certificate itself does not indicate the date of examination and where significant deficiencies in the evidence of the expert stand exposed in cross-examination, the Courts below ought to have exercised greater caution before accepting such
- 18 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR evidence. In the present case, the concurrent findings of both Courts that plaintiff Nos.2 and 3 were minors on the date of alienation are patently erroneous, having been rendered without due scrutiny of the infirmities in PW.3's testimony. These findings suffer from grave perversity and cannot be sustained.
23. Another vital aspect completely overlooked by both Courts is the inadequacy of oral evidence adduced by the plaintiffs. PW.1, whose deposition was relied upon, has fallen short of establishing the allegations in the plaint regarding minority of plaintiff Nos.2 and 3. Plaintiff No.1--the father has not prosecuted the suit, nor has he stepped into the witness box to affirm the pleadings. More significantly, plaintiff Nos.2 and 3, who have alleged serious acts of forgery and fabrication against the defendants, have abstained from entering the witness box to substantiate such grave charges. Instead, they have prosecuted the suit through a GPA holder, who is admittedly incompetent to
- 19 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR depose regarding matters within the personal knowledge of plaintiff Nos.2 and 3. The GPA holder is not a party to the sale deed dated 17.09.1986 (Ex.D-
17) and therefore cannot speak to the circumstances surrounding its execution. These omissions strike at the core of the plaintiffs' case. Both Courts ought to have taken note of these glaring deficiencies and drawn an adverse inference under Illustration (g) to Section 114 of the Evidence Act.
24. The next important question that arises is whether the Courts below were justified in granting a declaration of ownership in favour of the plaintiffs despite the plaintiffs not seeking cancellation of the registered sale deed dated 17.09.1986. Where plaintiffs allege that a sale deed is forged, fabricated, or executed without lawful authority, they are required to specifically seek cancellation of the said document. In the present case, the plaintiffs have furnished only slender and unreliable evidence to claim that they were
- 20 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR minors. On the other hand, the finger-print expert's opinion, which has been placed on record by the defendants, clearly indicates that the disputed signatures on Ex.D-17 match the specimen signatures of plaintiff Nos.2 and 3. Once such evidence exists, the plaintiffs, who are allegedly parties to the document, were required in law to seek the relief of cancellation of the sale deed. Without such a prayer, the title flowing from the registered document remains intact.
25. It is well settled that while a Court may declare an instrument void even without a specific prayer for cancellation, such a course is permissible only when the document is inherently void ab initio. However, where the document is merely voidable at the instance of a party particularly where allegations of forgery or incapacity are raised,the party aggrieved must necessarily seek a prayer for cancellation. The nature of the relief sought also has a direct bearing on the question of limitation. In the present case, the
- 21 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR evidence indicates that plaintiff Nos.2 and 3 were signatories to the sale deed, and hence, any challenge to the document required an explicit plea for cancellation. Both Courts failed to appreciate this legal distinction and erred in granting a mere declaration of title without addressing the validity of the registered sale deed.
26. Although it is well established that Courts, in appropriate cases, may grant a declaration of invalidity even in the absence of a prayer for cancellation, the present case does not fall within such a category. Given that the finger-print expert's report supports the defendants and that the plaintiffs have failed to bring even minimally acceptable evidence to establish minority at the time of execution, the suit as framed seeking only declaration and possession was not maintainable. The plaintiffs were bound to challenge Ex.D-17 directly, and failure to do so is fatal to their case.
- 22 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR
27. In view of the foregoing discussion, the substantial question of law framed by this Court must be answered in the 'negative' and against the plaintiffs. The material on record is wholly insufficient to establish that plaintiff Nos.2 and 3 were minors as on 17.09.1986. On the contrary, the documentary and expert evidence produced by the defendants supports the execution of the sale deed. Plaintiff Nos.2 and 3 have not participated in the proceedings by entering the witness box; therefore, an adverse inference under Section 114(g) of the Evidence Act necessarily arises against them. Consequently, the concurrent findings of the Courts below are unsustainable in law. Having answered the substantial question of law against the plaintiffs, this Court holds that the suit instituted by plaintiff Nos.2 and 3 is liable to be dismissed.
- 23 -
NC: 2025:KHC:48252 RSA No. 159 of 2010 HC-KAR
28. For the foregoing reasons, the following order is passed:
ORDER
(i) The second appeal is hereby allowed;
(ii) The judgment and decree dated 07.12.2009 passed in R.A.No.16/2006 by the learned Addl.
Sessions Judge, Fast Tract Court, Chitradurga, confirming the judgment and decree dated 28.02.2006 passed in O.S.No.132/1995 by the learned I Addl. Civil Judge (Sr. Dn.), Chitradurga, are set aside. Consequently, the suit stands dismissed;
(iii) All pending interlocutory applications, if any, stand disposed of as having become infructuous.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE NJ List No.: 19 Sl No.: 2