Dismissed¶10

Smt Latha v. Smt Thayamma

Karnataka HC3 Jun 2025MSA/178/2024

Case brief

AI extract

What is this about?

Eviction suit; permissive possession; unregistered Will Ex.D2; attesting witnesses not examined; gift deed dated 13.12.2019; sale deed dated 23.12.2019; Order 41 Rule 27 CPC additional documents; Order 43 Rule 1(u) CPC miscellaneous second appeal; remand to Trial Court for fresh trial; suit for possession simpliciter without declaration of title; AIR 2016 SC 2250 Muddasant/Muddasani Venkatanarasaiah v. Muddasani Sarojana; Mysuru; Karnataka High Court; H.P. Sandesh, J.

What did the court decide?

None. The Miscellaneous Second Appeal is dismissed with observations that the Trial Court shall consider the matter afresh on remand, including the post-suit documents (Will, gift deed executed by the mother, sale deed), may frame an issue on their subsequent execution, and that the Will is to be proved in respect of the premises in the defendants' possession.

Smt Latha Vs Smt Thayamma — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the First Appellate Court erred in allowing the appeal and remanding O.S.No.591/2018 to the Trial Court for fresh consideration along with an additional issue on the defendants' plea of an unregistered Will, instead of requiring the plaintiff to first prove the gift deed alleged to have been executed by her father. +1 more

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Court's answer

No error was committed by the First Appellate Court in remanding the matter to the Trial Court, given the application under Order 41 Rule 27 of CPC, the defendants' specific pleading that there was a Will in terms of Ex.D2, their failure to examine any witness to prove the Will, and the additional issue framed by the First Appellate Court itself; the contention that the plaintiff ought to have proved the gift deed executed by her father cannot be accepted.

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Ratio / Principle

The documents of Will, gift deed executed by the mother and sale deed, though subsequent to the filing of the suit, can be considered afresh by the Trial Court in view of the remand; the appellants' contention that these documents came into existence after the filing of the suit is kept open for consideration before the Trial Court, which may also frame an issue to that effect.

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Key takeaways

No ground is made out to set aside the order of remand passed by the First Appellate Court or the framing of an issue on the specific plea regarding the Will; the Will is 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.ratio¶10

Detailed headnote1 paragraphs

Karnataka High Court (H.P. Sandesh, J.) dismisses a Miscellaneous Second Appeal under Order 43 Rule 1(u) CPC filed by the defendants (a niece and her husband) against the First Appellate Court's judgment and decree dated 10.11.2023 in R.A.No.40/2022, which had allowed the plaintiff-aunt's appeal against the dismissal of her eviction suit (O.S.No.591/2018) and remanded the matter to the Trial Court. The First Appellate Court had admitted, through an application under Order 41 Rule 27 of CPC, a gift deed dated 13.12.2019 and a sale deed dated 23.12.2019, noted the Apex Court decision reported at AIR 2016 SC 2250 (Muddasant Venkatanarasaiah (D) th. LRs. v. Muddasani Sarojana) that a suit for possession simpliciter is maintainable without a declaration of title, observed that the Trial Court's acceptance of permissive possession rested on the absence of the pleaded Will, framed an additional issue whether Jaggimadegowda executed an unregistered Will in favour of defendant No.1 and her mother Smt.Jayamma, and remitted the matter for fresh trial. Upholding the remand, the High Court holds there was no error: the defendants had specifically pleaded a Will in terms of Ex.D2 without examining attesting witnesses, the additional issue required adjudication, and the post-suit documents may be considered afresh with the defendants' objection kept open; the Will must be proved in respect of the premises in the defendants' possession.

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NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF JUNE, 2025

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS SECOND APPEAL NO. 178 OF 2024 (RO)

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BETWEEN:

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SMT. LATHA W/O KRISHNEGOWDA AGED ABOUT 35 YEARS RESIDING AT NO.22, 1^ST CROSS SURYA BAKERY CIRCLE MANCHEGOWDANAKOPPALU MAIN ROAD DEVARAJA MOHALLA MYSURU - 570 001.

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI. KRISHNEGOWDA S/O BETTEGOWDA AGED ABOUT 45 YEARS RESIDING AT NO.22, 1^ST CROSS SURYA BAKERY CIRCLE MANCHEGOWDANAKOPPALU MAIN ROAD DEVARAJA MOHALLA MYSURU - 570 001.

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…APPELLANTS

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(BY SRI. RAJENDRA KUMAR SUNGAY T.P., ADVOCATE)

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AND:

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SMT. THAYAMMA W/O LATE JAGGI MADEGOWDA AGED ABOUT 51 YEARS RESIDING AT NO.22

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1^ST CROSS, SURYA BAKERY CIRCLE

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NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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MANCHEGOWDANAKOPPALU MAIN ROAD DEVARAJA MOHALLA MYSURU - 570 001.

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…RESPONDENT

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(BY SRI. SRINIVASA D.C., ADVOCATE)

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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.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel for the appellant and also the learned counsel for the respondent.

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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

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NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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perpetually from interfering with peaceful possession and

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enjoyment of the suit schedule property.

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It is the case of the plaintiff before the Trial

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Court that she is the owner of the suit schedule property and constructed a room therein and the plaintiff’s husband

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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,

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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

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NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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hence, the plaintiff spent money for the marriage of

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defendant No.1 held with defendant No.2.

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It is also her claim that few days of marriage of

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defendant No.1, defendants came to the plaintiff and requested the plaintiff to permit them to be in portion of

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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.

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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.

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5 - NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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But the defendants refused to vacate the schedule room.

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Hence, filed the suit.

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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.

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Having considered the pleadings of the parties,

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the Trial Court framed the issues and also recasted the issues and considering both oral and documentary evidence placed on record, dismissed the suit.

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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

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6 - NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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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.

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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

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7 - NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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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.

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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

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8 - NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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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

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9 - NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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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.

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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

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10 - NC: 2025:KHC:18872 MSA No. 178 of 2024

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HC-KAR

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consider the same. No ground is made out to set aside the

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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.

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Sd/(H.P.SANDESH) JUDGE

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RHS, SN List No.: 1 Sl No.: 33

Smt Latha v. Smt Thayamma

Case brief

What is this about?

What did the court decide?

Smt Latha v. Smt Thayamma

Case brief

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