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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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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RSA No. 911 of 2023
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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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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
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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
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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
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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
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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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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
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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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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
