Review Petition No. 578 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:4444-DB RP No. 578 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA REVIEW PETITION NO. 578 OF 2023 BETWEEN: 1. 2. SRI. BHARATH SUDARSHAN @ VIKKI S/O LATE SUDARSHAN BANAPPA AGED ABOUT 36 YEARS R/AT NO 28, 3RD CROSS VINAYAKA LAYOUT, BOOPASANDRA BANGALORE 560 094 SRI NAGARATHNA B S W/O LATE SUDARSHAN BANAPPA AGED ABOUT 55 YEARS RESIDING AT NO 38, ADHITHI APARTMENTS 2ND FLOOR, FLAT NO 201 BOOPASADRA, RMV 2ND STAGE BANGALORE 560 094 …PETITIONERS
Legal Reasoning
Digitally signed by MALA K N Location: HIGH COURT OF KARNATAKA
Legal Reasoning
(BY SRI. SHATHABISH SHIVANNA, ADV.) AND: 1. 2. SMT. SAROJAMMA H W/O LATE T S BANAVAPPA AGED ABOUT 86 YEARS R/A NO 302, 6TH CROSS VYALAIKAVAL BANGALORE 560 003 SMT PRAFULLA @ PREMA W/O BANAPPA AGED ABOUT 68 YEARS R/A NO 8, 1ST MAIN B.S.K V STAGE, VASANTHPURA BANGALORE 560 061 - 2 - NC: 2025:KHC:4444-DB RP No. 578 of 2023 3. 4. SRI T B GOVARDHAN AGED ABOUT 57 YEARS R/A NO 302, 6TH CROSS VYALAIKAVAL BANGALORE 560 003 SMT MEENA T B W/O JAYARAJU AGED ABOUT 61 YEARS DEPARTMENT OF ANAESTHETICS WEST WALES GENERAL HOSPITAL DYFED-CARMARTHEN SELF ACQUIRED - 31-2AF UNITED KINGDOM REP. BY HER GPA HOLDER SMT SAROJAMMA (BY SRI.H.S.DWARAKANATH,A DV. FOR SMT.ARCHANA K M., ADV.) …RESPONDENTS THIS REVIEW PETITION UNDER SECTION 114 R/W ORDER XXXXVII RULE 1 OF CPC, 1908, PRAYING THAT THIS HONBLE COURT BE PLEASED TO REVIEW THE FINAL JUDGMENT DATED 29/09/2023 IN RFA NO. 2200/2010 (PAR) VIDE ANNEXURE-A, TO DISMISS THE SAME AND PASS OTHER SUCH ORDERS AS MAY BE NECESSARY IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA ORAL ORDER (PER: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA) In this review petition, petitioner Nos.1 and 2, who were respondent Nos.1 and 2 in RFA.No.2200/2010 have sought review of the - 3 - NC: 2025:KHC:4444-DB RP No. 578 of 2023 judgment dated 29.09.2023 passed by this Court in the said appeal. 2. The review petitioners, who were the plaintiffs before the Trial Court, have filed a suit for partition and separate possession of the suit schedule properties against the defendants before XXII Additional City Civil Judge, Bengaluru in O.S.No.10396/2005. After contest, the suit came to be decreed against the defendants as per the judgment and decree dated 29.09.2010. Questioning the same, the defendants have preferred the appeal before this Court. After hearing both parties, this Court allowed the appeal and set aside the judgment and decree passed by the Trial Court and suit came to be dismissed with cost. 3. It was the defense of the defendants that, the propositus T.S.Banvappa had executed a Registered Will on 12.04.1988 bequeathing the suit schedule properties in favour of defendant No.1 and after her death, defendant No.3 sold item No.2 of the suit - 4 - NC: 2025:KHC:4444-DB RP No. 578 of 2023 properties in favour of defendant no.4 under a Registered Sale Deed dated 28.03.1989. By virtue of the same, defendant Nos.1 and 4 are claiming to be the owners of the properties. The Trial Court has framed issue Nos.4 and 5 regarding the Will dated 12.04.1988 and also the sale of item No.2 in favour of defendant No.4. The Trial Court answered issue No.4 in the negative, issue No.5 in the affirmative and partly decreed the suit on the ground that Will was not proved. The same is questioned in the appeal by the defendants. 4. After hearing the arguments of both parties and considering the evidence on record, this Court came to the conclusion that the findings recorded by the Trial Court that Will was not proved is erroneous and on re-appreciation of the evidence, it was recorded that the Will has been proved. Execution of the Will is accepted by this Court holding that the plaintiff loses the right of the partition and accordingly the suit came to be dismissed. - 5 - NC: 2025:KHC:4444-DB RP No. 578 of 2023 5. Aggrieved by the same, the plaintiffs have filed this review petition on the ground that this Court came to a misplaced conclusion regarding contradictions of the testimonies of the attesting witnesses. There is an error apparent on the face of the record in the judgment of this Court in interpreting Sections 63 and 68 of the Evidence Act with regard to the evidence on record. Hence, review of the judgment is necessary. 6. We have heard the arguments of Sri Shathabish Shivanna, learned counsel appearing for the review petitioners and Sri H.S.Dwarakanath, learned counsel for Smt.Archana K.M, learned counsel for the defendants. 7. It is the contention of the learned counsel for the plaintiffs / respondents / review petitioners that this Court has wrongly appreciated the evidence of the attesting witnesses and contrary to the findings of the Trial Court. The evidence of the attesting witnesses is not appreciated by this Court in the light of the - 6 - NC: 2025:KHC:4444-DB RP No. 578 of 2023 provisions under Sections 63 and 68 of the Evidence Act. Relying on the evidence of the attesting witnesses Will cannot be held to be proved and therefore findings of this Court has to be reviewed. 8. Per contra, Sri H.S.Dwarakanath, learned counsel for the defendants contended that the Trial Court has not accepted the execution of the Will and on re-appreciation of the evidence, this Court has accepted the Will. The claim of the plaintiff is based on the proof of the Will. When this Court has re- appreciated the evidence and recorded clear finding, the review petitioner cannot ask for redoing the same, the Court cannot re-appreciate the evidence and to record a different finding, which is beyond the scope of the review. 9. In this regard, he has relied on the judgment of Hon'ble Apex Court in Sanjay Kumar Agarwal and ors. vs. State Tax Officer and Ors.1, to the effect that, in order to review the judgment, review petitioner 1 (2024) 2 SCC 362 - 7 - NC: 2025:KHC:4444-DB RP No. 578 of 2023 has to make out any mistake or error apparent on the face of the record in the judgment. 10. Shanti Conductors (P) Ltd. and Ors. vs. Assam State Electricity board and Ors.,2 to the effect that, only an error in the judgment could only be the review. 11. Arun Dev Upadhyaya vs. Integrated Sales Service ltd. and Ors.,3 to the effect that an error on the face of the record must be such an error which, mere looking at the records should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. 12. We have carefully gone through the submissions made on behalf of both parties. This Court has re-appreciated the evidence of the attesting witnesses to the Will and recorded the finding that the Will is proved. The learned counsel for the review
Decision
ORDER Review Petition is dismissed. SD/- (K.S.MUDAGAL) JUDGE SD/- (T.G. SHIVASHANKARE GOWDA) JUDGE MKM List No.: 1 Sl No.: 4