Karnataka High Court
Smt Latha vs Smt Thayamma on 3 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:18872
MSA No. 178 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO. 178 OF 2024 (RO)
BETWEEN:
1. SMT. LATHA
W/O KRISHNEGOWDA
AGED ABOUT 35 YEARS
RESIDING AT NO.22, 1ST CROSS
SURYA BAKERY CIRCLE
MANCHEGOWDANAKOPPALU MAIN ROAD
DEVARAJA MOHALLA
MYSURU - 570 001.
2. SRI. KRISHNEGOWDA
S/O BETTEGOWDA
AGED ABOUT 45 YEARS
RESIDING AT NO.22, 1ST CROSS
Digitally signed
by DEVIKA M SURYA BAKERY CIRCLE
Location: HIGH MANCHEGOWDANAKOPPALU MAIN ROAD
COURT OF DEVARAJA MOHALLA
KARNATAKA MYSURU - 570 001.
...APPELLANTS
(BY SRI. RAJENDRA KUMAR SUNGAY T.P., ADVOCATE)
AND:
1. SMT. THAYAMMA
W/O LATE JAGGI MADEGOWDA
AGED ABOUT 51 YEARS
RESIDING AT NO.22
1ST CROSS, SURYA BAKERY CIRCLE
-2-
NC: 2025:KHC:18872
MSA No. 178 of 2024
HC-KAR
MANCHEGOWDANAKOPPALU MAIN ROAD
DEVARAJA MOHALLA
MYSURU - 570 001.
...RESPONDENT
(BY SRI. SRINIVASA D.C., ADVOCATE)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.11.2023
PASSED IN R.A.NO.40/2022 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 24.11.2021 PASSED IN O.S.NO.591/2018
ON THE FILE OF THE VI ADDITIONAL CIVIL JUDGE AND JMFC,
MYSURU, DISMISSED THE SUIT FOR EVICTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant and also the learned
counsel for the respondent.
2. The respondent before this Court filed a suit
before the Trial Court in O.S.No.591/2018 seeking the
relief of eviction against the defendants, direct the
defendants to hand over the vacant possession of the suit
schedule property that is room and prevent the defendant
NC: 2025:KHC:18872
HC-KAR
perpetually from interfering with peaceful possession and
enjoyment of the suit schedule property.
3. It is the case of the plaintiff before the Trial
Court that she is the owner of the suit schedule property
and constructed a room therein and the plaintiff's husband
was also living with the plaintiff in the parental home of
the plaintiff in Mysuru City after the marriage. There were
some misunderstanding between the plaintiff and her
husband which resulted in decree of divorce. Thereafter,
the plaintiff started to live with her father. Originally, the
property was belonging to father of the plaintiff by name
Madegowda and he has gifted the property in favour of the
plaintiff very long back during 1991. It was a vacant site
when the father of the plaintiff gifted the property. The
plaintiff investing her money constructed a building in the
said site. Since the plaintiff is issue less, used to spend
her earnings for nephews and nieces. Defendant No.1 is
the daughter of plaintiff's younger sister Smt.Jayamma.
Defendant No.1 had much attachment with the plaintiff
NC: 2025:KHC:18872
HC-KAR
hence, the plaintiff spent money for the marriage of
defendant No.1 held with defendant No.2.
4. It is also her claim that few days of marriage of
defendant No.1, defendants came to the plaintiff and
requested the plaintiff to permit them to be in portion of
the property for some days since there are some
misunderstandings between defendant No.1 and mother of
defendant No.2. The plaintiff on humanitarian ground
permitted the defendants to temporarily stay in a room
i.e., in the suit schedule property. Though permission was
granted temporarily, the defendants dodged the matter of
vacating the schedule room on one or the other pretext.
The plaintiff with a humanitarian view, never strongly
insisted the defendants to vacate the suit schedule
property. But from last one year, the defendants have
turned hostile and interfering with the affairs of the
property. The defendants started to force the plaintiff to
transfer the property in their favour. Therefore, the
plaintiff was constrained to withdraw the schedule room.
NC: 2025:KHC:18872
HC-KAR
But the defendants refused to vacate the schedule room.
Hence, filed the suit.
5. The Trial Court also taken note of the contention
of the defendants that the suit schedule property was
belonged to the father of the plaintiff by name
Jaggimadegowda i.e., the defendant No.1's grandfather
and the said Jaggimadegowda executed an unregistered
Will in favour of defendant No.1 and her mother Smt.
Jayamma. Thereafter, the defendants have constructed the
suit schedule entire house, hence, the question of vacating
the suit schedule property does not arise and there is no
cause of action.
6. Having considered the pleadings of the parties,
the Trial Court framed the issues and also recasted the
issues and considering both oral and documentary
evidence placed on record, dismissed the suit.
7. Being aggrieved by the dismissal of the suit, an
appeal is filed in R.A.No.40/2022 and also filed an
application under Order 41 Rule 27 of CPC. The First
NC: 2025:KHC:18872
HC-KAR
Appellate Court having considered the grounds urged in
the application as well as on merits framed the points for
consideration. The First Appellate Court having reassessed
the material on record it is observed that the plaintiff
claims that the suit schedule property was allotted by way
of gift in her favour but no document is placed before the
Trial Court for having gifted the property in favour of the
plaintiff by the father but some documents are placed
before the First Appellate Court i.e., gift deed executed by
the mother on 13.12.2019 and the sale deed to show that
the portion of the property was sold on 23.12.2019 in
favour of one Rakesh.S and same was objected by the
appellants herein.
8. The First Appellate Court taken note of the
material on record and also considered the grounds urged
in the application filed under Order 41 Rule 27 of CPC and
also take note of the judgment of the Apex Court reported
in AIR 2016 SC 2250 between Muddasant
Venkatanarasaiah (D) th. LRs. Vs Muddasani
NC: 2025:KHC:18872
HC-KAR
Sarojana wherein the Apex Court held that defendant
unable to prove adoption, plea does not prima facie put
any cloud over plaintiff's title. Even in the absence of any
suit for declaration, suit for possession simplicitor without
seeking the declaration of title is maintainable and also
taken note of the fact that defendants have taken the
specific defence that there was a Will in their favour and
claiming the right based on the Will. The First Appellate
Court made an observation that in the absence of Will, the
theory of permissive possession is believed by the Trial
Court. However, to determine the real fact in dispute, it is
necessary to frame issue on the Will based on the plea of
the defendants.
9. The First Appellate Court also made an
observation that when the defendants also pleaded about
the Will, the decision of the Trial Court definitely suffers
from infirmity and having taken note of the said fact into
consideration, answered the points Nos.1 and 2 as
affirmative and remitted back the matter to the Trial Court
NC: 2025:KHC:18872
HC-KAR
to consider the same afresh and also while remanding the
matter, the First Appellate Court directed the Trial Court to
try all the issues afresh along with the issue framed by the
First Appellate Court i.e., whether the defendants prove
that Jaggimadegowda, grandfather of defendant No.1
executed unregistered Will in favour of defendant No.1 and
her mother Smt.Jayamma for suit schedule property
though the Will was placed before the Trial Court by the
appellants herein and not examined any attested witnesses
to prove the Will also. When such reasoning is given by
the First Appellate Court, I do not find any error committed
by the First Appellate Court in remanding the matter to the
Trial Court in view of filing of the application under Order
41 Rule 27 of CPC as well as when specific pleading was
made by the defendants that there was a Will in terms of
Ex.D2 and also not examined any witnesses to prove the
Will and issue was also framed by the First Appellate Court
itself while remanding the matter. When such material is
available on record, the very contention of the counsel that
NC: 2025:KHC:18872
HC-KAR
the plaintiff ought to have proved the case by placing on
record the gift deed executed by the father and only on
that ground the matter was remanded to consider afresh
and said contention cannot be accepted since even First
Appellate Court also having taken note of the defense of
the defendants/appellants that there was a Will, framed an
issue and remitted back the matter to consider the same.
10. The learned counsel for the appellants would
vehemently contend that the document of Will, the
document of gift deed executed by the mother and sale
deed are subsequent to the filing of the suit. In respect of
those documents also the Trial Court can consider the
material afresh in view of remanding the matter and
contention of the appellants' counsel that those documents
came into existence subsequent to filing of suit also kept
open for consideration before the Trial Court while
considering the matter and the Trial Court can also frame
the issue to that effect also. Thus, I do not find any error
in remanding the matter by the First Appellate Court to
- 10 -
NC: 2025:KHC:18872
HC-KAR
consider the same. No ground is made out to set aside the
order of remand passed by the First Appellate Court and
also framing of an issue regarding specific plea with
respect to the Will is concerned and Will also to be proved
in respect of the very premises in which the
appellants/defendants are in possession of the property.
Accordingly, the MSA is dismissed with the above
observations.
Sd/-
(H.P.SANDESH)
JUDGE
RHS, SN
