Karnataka High Court
Ningappa Shankrappa Hachdad vs Neelamma W/O Sahebgouda Patil By Lrs on 9 February, 2024
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RSA NO.200094 OF 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200094 OF 2020 (INJ)
BETWEEN:
NINGAPPA SHANKRAPPA HACHDAD
AGE: 70 YEARS,
OCC: AGRICULTURE,
R/O: HEBBAL, BASAVANA BAGEWADI TALUK,
VIJAYAPUR DISTRICT.
...APPELLANT
(BY SRI. D.P. AMBEKAR, ADVOCATE)
AND:
NEELAMMA
W/O SAHEBGOUDA PATIL
DECEASED BY LR'S.
Digitally signed
by SACHIN 1. RUDRAMMA
Location: HIGH
COURT OF W/O BASAVANTRAYA GIRANI,
KARNATAKA
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O LINGADALLI,
MUDDEBIHAL TALUK,
VIJAYAPUR DISTRICT - 586 116.
2. MALLANGOUDA SAHEBGOUDA PATIL
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O: HEBBAL,
BASAVANA BAGEWADI TALUK,
VIJAYAPUR DISTRICT - 586 213.
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RSA NO.200094 OF 2020
3. ERAMMA
W/O AMEENAPPA HACHADAD
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O: HEBBAL,
BASAVANA BAGEWADI TALUK,
VIJAYAPUR DISTRICT - 586 213.
...RESPONDENTS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE FOR C/R2
AND R3)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CIVIL PROCEDURE CODE, AGAINST THE
JUDGEMENT AND DECREE DATED 03RD DECEMBER, 2019
PASSED IN REGULAR APPEAL NO.23 OF 2010 ON THE FILE
OF THE ADDITIONAL SENIOR CIVIL JUDGE, BASAVANA
BAGEWADI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 05TH APRIL, 2010
PASSED IN ORIGINAL SUIT NO.09 OF 2020 ON THE FILE
OF THE CIVIL JUDGE (JR.DN.) AND JMFC, BASAVANA
BAGEWADI.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff challenging the
judgment and decree dated 03rd December, 2019 passed
in Regular Appeal No.23 of 2010 on the file of the
Additional Senior Civil Judge, Basavana Bagewadi (for
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short, hereinafter referred to as 'First Appellate Court'),
dismissing the appeal and confirming the judgment and
decree dated 05th April, 2010 passed in Original Suit No.09
of 2000 on the file of the Civil Judge (Jr.Dn.), Basavana
Bagewadi (for short, hereinafter referred to as 'Trial
Court'), wherein the suit filed by the plaintiff came to the
dismissed.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. The plaint averments are that the plaintiff
claims to be the owner of the suit schedule property,
alleging that the defendants 2 and 3 are the son and
daughter of defendant No.1. The defendant No.1 is the
daughter of the deceased Shankaramma and the suit
schedule property belongs to said Shankaramma. It is
stated in the plaint that the deceased Shankaramma died
on 16th October, 1976 leaving behind the registered Will
dated 23rd July, 1976 bequeathing the schedule property
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to the plaintiff and as such, the defendants interfered with
the peaceful possession of the schedule property. Being
aggrieved by the same, plaintiff filed Original Suit No.09 of
2000 before the Trial Court seeking relief of permanent
injunction against the defendants.
4. After service of summons, defendants entered
appearance and filed detailed written statement denying
the existence of the Will dated 23rd July, 1976 said to have
been executed by the deceased Shankaramma and
accordingly, defendants sought for dismissal of the suit.
The defendants have filed counter claim seeking
possession of the suit schedule property stating that the
defendant No.1 is the daughter of the deceased
Shankaramma.
5. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration.
6. In order to establish the case, plaintiff has
examined two witnesses as PW1 and PW2 and produced
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21 documents as Exhibits P1 to P21. On the other hand,
defendants have examined the defendant No.2 as DW-1
and no documents were produced.
7. The Trial Court, after considering the material
on record, by its judgment dated 05th April, 2010,
dismissed the suit of the plaintiff and decreed the counter
claim of the defendants. Being aggrieved by the same,
plaintiff has preferred Regular Appeal No.23 of 2010 on
the file of the First Appellate Court and the said appeal
was resisted by the defendants. The First Appellate Court,
after re-appreciating the facts on record, by its judgment
and decree dated 03rd December, 2019, dismissed the
appeal and confirmed the judgment and decree passed by
the Trial Court in Original Suit No.09 of 2000. Being
aggrieved by the same, the appellant/plaintiff has
preferred this Regular Second Appeal under Section 100 of
the Civil Procedure Code.
8. Heard Sri. D.P. Ambekar, learned counsel
appearing for the appellant/plaintiff and Sri.
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Sanganabasava B. Patil, learned counsel appearing for
respondents 2 and 3.
9. Sri. D.P. Ambekar, learned counsel appearing
for the appellant/plaintiff argued that, both the Courts
below have ignored the fact that the deceased
Shankarmma executed the registered Will bequeathing the
property in question in favour of the plaintiff. So also, the
Trial Court has committed an error in dismissing the suit
on the sole ground that the plaintiff has failed to prove the
Will in question. Accordingly, he sought for interference of
this Court.
10. Per contra, Sri. Sanganabasava B. Patil, learned
counsel appearing for respondents 2 and 3 sought to
justify the impugned judgment and decree passed by the
Courts below.
11. Heard the learned counsel appearing for both
the parties and perused the material on record. It is the
claim of the plaintiff that the plaintiff had acquired suit
schedule property pursuant to the registered Will dated
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23rd July, 1976 said to have been executed by late
Shankaramma, bequeathing the suit schedule property in
favour of the plaintiff. The execution of the Will was
disputed by the defendants. In that view of the matter,
plaintiff being the propounder of the Will ought to have
proved the Will to remove the suspicious circumstances
alleged by the defendants. Following the law declared by
Hon'ble Apex Court in the Case of H. VENKATACHALA
IYENGAR vs. B.N. THIMMAJAMMA AND OTHERS
reported in AIR 1959 SC 443 and in the case of MURTHY
AND OTHERS vs. SARADAMBAL AND OTHERS reported
in (2022)3 SCC 209, impugned judgment and decree
passed by the Courts below is just and proper as the
plaintiff being a propounder of the Will failed to prove the
Will as required under section 69 of the Evidence Act.
Accordingly, I do not find any merit in the appeal.
12. Therefore, I do not find any material
irregularities or perversity in the judgment and decree
passed by the Courts below and Regular Second Appeal is
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liable to be dismissed, since, the appellant/plaintiff has not
made out grounds for formulation of substantial question
of law as required under Section 100 of the Code of Civil
Procedure. In that view of the matter, appeal is liable to
be dismissed at the stage of Admission itself. Accordingly,
Regular Second Appeal is dismissed.
Sd/-
JUDGE
ARK
