Karnataka High Court
V. Ashwatha Gowda vs Smt. Chikka Subbamma on 17 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:41407
RSA No. 911 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 911 OF 2023 (DEC/INJ)
BETWEEN:
1. V. ASHWATHA GOWDA
S/O LATE VENKATARAYAPPAA
AGED 62 YEAWRS
R/A MANCHANAHALLI VILLAGE
KASABA HOBLI, GUDIBANDE TALUK
CHIKKABALLAPURA DISTRICT PIN-561209.
2. SMT. CHIKKA SIDDAMMA
SINCE DECEASED REP BY HIS LR'S
SRINIVAS
S/O CHIKKAPAPANNA
3. ADEPPA
S/O CHIKKAPAPANNA
AGED ABOUT 52 YEARS
Digitally signed
by DEVIKA M 4. VENKATESH
Location: HIGH S/O CHIKKAPAPANNA
COURT OF
KARNATAKA AGED ABOUT 40 YEARS
ALL ARE RESIDING AT
NAMILIGURKI VILLAGE
MANDIKAL HOBLI
GUDIBANDETALUK
CHIKKABALLAPURA DISTRICT PIN-561209.
...APPELLANTS
(BY SRI. B RAMESH., ADVOCATE)
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NC: 2025:KHC:41407
RSA No. 911 of 2023
HC-KAR
AND:
1. SMT. CHIKKA SUBBAMMA
W/O CHIKKA NANJAPPA
SINCE DECEASED REP BY HER LR'S
A. NAGARAJ
S/O LATE CHIKKA NANJAPPA
AGED 40 YEARS
B. NANJUNDAPPA
S/O LATE CHIKKA NANJAPPA
AGED 38 YEARS
C. GANGARATHANAMMA
D/O LATE CHIKKA NANJAPPA
AGED 35 YEARS
R/AT MANCHANAHALLI VILLAGE
KASABA HOBLI
GUDIBANDE TALUK
CHIKKABALLAPURA DISTRICT PIN-561209.
2. SMT. NANJAMMA
W/O NANJAPPA
AGED 67 YEARS
R/A BYRAGANAHALLI VILLAGE
THIMMASANDRA POST
SIDLAGHATTA TALUK
CHIKKABALLAPURA DISTRICT PIN -563125.
3. SMT. DODDA SUBBAMMA
W/O GANGAI REDDY
AGED 65 YEARS
4. SMT. ASHWATHAMMA
W/O SHIVAPPA
AGED 61 YEARS
R3 AND R4 ARE R/AT
MANCHANAHALLIL VILLAGE
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NC: 2025:KHC:41407
RSA No. 911 of 2023
HC-KAR
KASABA HOBLI
GUDIBANDE TALUK
CHIKKABALLAPURA DISTRICT PIN-561209
...RESPONDENTS
(BY SRI. ADINARAYAN., ADVOCATE FOR R1(B & C);
R2 & R1(A) ARE SERVED;
R3 & R4 ARE CALLED OUT, ABSENT )
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED: 22.11.2022
PASSED IN RA NO. 39/17 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE CHIKKABALLAPURA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 30.01.2017 PASSED IN OS NO.180/2009
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, CHIKKABALLAPUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard learned counsel for the appellants and learned counsel for respondent No.1(b) and (c).
2. This second appeal is filed against the concurrent finding.
3. The factual matrix of the case of the plaintiffs while seeking the relief of declaration and permanent injunction is -4- NC: 2025:KHC:41407 RSA No. 911 of 2023 HC-KAR that plaint schedule properties belong to one Ashwatha Narayanappa and he has bequeathed the said properties in favour of one Venkatarayappa, father of the plaintiffs under the Will dated 18.03.1956. It is contented that Will has come into operation on the death of the testator Ashwatha Narayanappa during 1980. It is further contented that during his lifetime, Ashwatha Narayanappa had transferred properties other than the plaint schedule properties, though they were also the subject matter of the Will. It is further contented that after the death of the father of the plaintiffs during 1987, the plaintiffs continued in possession of the plaint schedule properties as absolute owners. It is further contented that the defendants, who are the children of Ashwatha Narayanappa, though have no right in respect of the plaint schedule properties are trying to interfere with their possession denying their title. During the pendency of the suit, plaintiff No.2 died and her legal representatives have been brought on record.
4. The defendant Nos.1 and 2 have filed written statement denying the plaint averments and further contending that plaint schedule properties are the joint family properties of -5- NC: 2025:KHC:41407 RSA No. 911 of 2023 HC-KAR themselves and their sisters. It is further contended that defendant No.1 had filed a suit in O.S.No.99/2005 and the same was decreed on 06.07.2006. The same is challenged in R.A.No.161/2006 and the same was also dismissed. It is further stated that defendant No.1 has filed F.D.P.No.5/2006 on the file of the Civil Judge, Gudibande. It is further contented that knowing all those proceedings, the plaintiffs have filed the suit on the basis of the alleged, concocted and created Will just to defeat the rights of the defendant Nos.1 to 3. It is further contented that plaintiffs and defendant Nos.3 and 4 have colluded with each other and filed the suit.
5. The Trial Court considering the pleadings of the parties, framed issues with regard to whether the plaintiffs are the absolute owners and in possession of the suit schedule properties, whether the defendants are interfering with their possession and whether they are entitled for the relief as sought. Having considered both oral and documentary evidence of P.Ws.1 to 5 and Exs.P1 to P13 and also the evidence of D.W.1 and Exs.D1 to D6, the Trial Court comes to the conclusion that plaintiffs have not proved the Will and also their -6- NC: 2025:KHC:41407 RSA No. 911 of 2023 HC-KAR possession and defendants are not interfering with their possession and dismissed the suit
6. Being aggrieved by the judgment and decree of the Trial Court, appeal is filed in R.A.No.39/2017. The First Appellate Court also having considered the grounds which have been urged in the appeal, formulated the point whether the plaintiffs are absolute owners and in possession of the suit schedule properties based on the Will, whether the judgment and decree of the Trial Court is perverse and arbitrary and whether it requires interference of this Court. The First Appellate Court having reassessed the material available on record, answered all the points as 'negative' and dismissed the appeal. Hence, the present second appeal is filed before this Court.
7. The main contention of learned counsel appearing for the appellants before this Court is that both the Courts have committed an error in considering the material available on record, particularly the Will which was executed in the year 1956. Learned counsel would submit that one of the daughter of Ashwatha Narayanappa, who had executed the Will also -7- NC: 2025:KHC:41407 RSA No. 911 of 2023 HC-KAR supported the case of the plaintiff, who has been arrayed as defendant No.4. The counsel also would vehemently contend that the appellants are in physical possession of the property from the year 1956 itself along with Ashwatha Narayanappa and even subsequent to the death of said Ashwatha Narayanappa in the year 1980. The counsel also vehemently contend that, in order to prove the Will, examined the witnesses P.W.3 and P.W.4 and though attesting witnesses are no more, relatives of attesting witnesses are examined and all these materials were not considered by the Trial Court and the First Appellate Court. The counsel also vehemently contend that the very approach of both the Courts is erroneous. The counsel would vehemently contend that the Trial Court and the First Appellate Court committed an error in relying upon the judgment and decree passed in O.S.No.99/2005, R.A.No.151/2006 and R.S.A.No.452/2014 and the appellants are not at all parties to the said proceedings, ought not to have considered the same. Hence, this Court has to admit the appeal and frame substantial question of law.
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NC: 2025:KHC:41407 RSA No. 911 of 2023 HC-KAR
8. Per contra, learned counsel for the respondent No.1(b) and (c) would submit that both Courts have given concurrent finding with regard to proving of the Will is concerned and the Will which was executed in the year 1980 also did not come to light and the suit was filed in the year 2005 itself between the children of Ashwatha Narayanappa for the relief of partition. Subsequently, when the suit was decreed and appeal was dismissed, FDP was filed and thereafter filed the present suit in O.S.No.180/2009 in the year 2009 and both the Courts rightly comes to the conclusion that Will has not been proved. Hence, it does not require any interference.
9. Having heard learned counsel for the appellants, learned counsel for the respondent No.1(b) and (c) and also considering the factual aspects of the case, it is not in dispute that originally the property belongs to Aswatha Narayanappa. It is the claim of the appellants that Will was executed in the year 1956 and the same did not come to light till filing of the suit in the year 2009. It is important to note that the very executant of the Will passed away in the year 1980 and based on the said Will also even not made any attempt to get it transfer the -9- NC: 2025:KHC:41407 RSA No. 911 of 2023 HC-KAR properties in favour of the beneficiaries of the Will from 1980. The records also reveal that the very legal heirs of said Aswatha Narayanappa have filed the suit in the year 2005 which is numbered as O.S.No.99/2005 and the said suit was decreed in 2006. Against the said judgment and decree, an appeal is filed in R.A.No.151/2006 and the same was also dismissed and there is a concurrent finding. Apart from that, appeal is filed in R.S.A.No.452/2014 and the same was also dismissed. All these documents were also placed on record before the Trial Court as Exs.D2 to D6 and when the appellants pleaded about the Will, the same is an unregistered Will and apart from that the Will did not come to light from 1956-2009 and the Will is set up only while filing the suit in the year 2009 and no documents are placed before the Court evidencing the fact that appellants are in possession of the properties as contented.
10. Having considered the material available on record i.e., both oral and documentary evidence, nothing is placed on record with regard to possession is considered, except the self- testimony of the plaintiffs that they are in possession of the
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NC: 2025:KHC:41407 RSA No. 911 of 2023 HC-KAR properties. When such being the case, I do not find any ground to admit and frame substantial question of law and both the Courts have taken note of oral and documentary evidence and there is no perversity in the finding of the Trial Court and the First Appellate Court. Hence, question of invoking Section 100 of CPC does not arise and there is no merit in the appeal to admit and frame any substantial question of law.
11. In view of the discussion made above, I pass the following:
ORDER The regular second appeal is dismissed. In view of dismissal of appeal, I.A.No.1/2023 for condonation of delay is also dismissed.
Sd/-
(H.P.SANDESH) JUDGE ST LIST NO.: 1 SL NO.: 35