- 1 - NC: 2025:KHC:13813 RSA No. 891 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO.891 OF 2017 (INJ) BETWEEN: SRI. B.LINGEGOWDA DEAD BY LRs., 1. G.L. SHIVALINGEGOWDA, S/O LATE B. LINGEGOWDA, AGED ABOUT 60 YEARS. 2. G.L. BOREGOWDA S/O LATE B. LINGEGOWDA AGED ABOUT 58 YEARS. 3. G.L. VARALAKSHMI D/O B. LINGEGOWDA AGED ABOUT 48 YEARS. ALL ARE RESIDING AT GURUDEVARAHALLI VILLAGE, C.A. KERE HOBLI, MADDUR TALUK-571428. …APPELLANTS (BY SRI. GANGADHARAIAH A.N., ADVOCATE) AND: SRI. LINGAIAH, DEAD BY HIS LRs., 1. DEVAMMA W/O LATE G. LINGAIAH AGED ABOUT 82 YEARS. 2. G.L. NAGARAJU, S/O LATE G. LINGAIAH Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13813 RSA No. 891 of 2017 AGED ABOUT 61 YEARS 3. NAGARAJAMMA W/O JAVAREGOWDA, AGED ABOUT 59 YEARS. 4. THAYAMMA W/O JAYARAMU AGED ABOUT 57 YEARS. LRs. 1 & 2 ARE RESIDENTS OF GURUDEVARAHALLI, C.A. KERE HOBLI, MADDUR TALUK - 571428. LRs., 3 & 4 ARE RESIDENTS OF M. KAGEPURA VILLAGE, KIRUGAVALU HOBLI, MALAVALLI TALUK - 571401. 5. SUNANDAMMA W/O SHANKAREGOWDA AGED ABOUT 79 YEARS, R/AT ARECHAKANAHALLI VILLAGE, C.A. KERE HOBLI, MADDUR TALUK-571428. 6. CHANNAMMA W/O KEMPEGOWDA AGED ABOUT 79 YEARS R/AT K. BELLUR VILLAGE, KASABA HOBLI, MADDUR TALUK-571428. 7. SAVITHA W/O CHELUVARAJU AGED ABOUT 38 YEARS R/AT CHIKKEGOWDANADODDI VILLAGE, MANDYA CITY-571401. …RESPONDENTS (BY SRI. AKARSH KUMAR GOWDA, ADVOCATE) - 3 - NC: 2025:KHC:13813 RSA No. 891 of 2017 THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 05.01.2017 PASSED IN R.A.NO. 19/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE MADDUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 04.04.2015 PASSED IN OS.NO.431/1989 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., MADDUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 05.01.2017 passed in R.A.No.19/2015 by the learned Senior Civil Judge, Maddur and the judgment and decree dated 04.04.2015 passed in O.S.No.431/1989 by the learned Principal Civil Judge and JMFC, Maddur. 2. For convenience, parties are referred to based on their ranking before the trial Court. Appellants were the legal representatives of deceased-defendant No.1, respondent Nos.1 to 4 are the plaintiffs, and other respondents are the other defendants. - 4 - NC: 2025:KHC:13813 RSA No. 891 of 2017 3. Brief facts leading rise to the filing of the appeal are as follows: 4. The original plaintiff filed a suit against the deceased defendant No.1 for the relief of declaration of title and permanent injunction at the first instance, and thereafter, it was restricted for the relief of permanent injunction. It is the case of the plaintiff that the plaintiff had purchased the land measuring 85 guntas from his original owner Sri. Nanjundegowda under the registered sale deed dated 30.04.1984, and accordingly, he became the absolute owner in possession of the suit schedule property, and all the revenue records were stand in the name of the plaintiff. Out of the said extent of land, the plaintiff had sold the extent of 30 guntas of land in favour of one Sri. Puttaswamy, and he is in possession of the said extent of land. After the sale in favour of Puttaswamy, the plaintiff is in possession of the suit property measuring 55 guntas including kharab land. The land sold in favour of Puttaswamy was re-numbered as Sy.No.87/B, and the suit - 5 - NC: 2025:KHC:13813 RSA No. 891 of 2017 land was re-numbered as Sy.No.87/A. The kharab portion was not entered in the RTC extract, only 45 guntas of land was shown to be in possession of the plaintiff. It is contended that the defendant has no right or interest over the suit schedule property, but he is continuously attempting to interfere with the plaintiff’s peaceful possession and attempted to destroy the standing crops. Hence, a cause of action arose to the plaintiff to file a suit for permanent injunction. 5. The defendant No.1 filed a written statement denying the averments made in the plaint, more particularly regarding the purchase of land, possession of the plaintiff over the suit land and cultivation made by the plaintiff in the suit property and also existence of kharab land as stated in the plaint. It is contended that the Surveyor measured the disputed suit property as well as the defendant No.1's land thrice. On 21.08.1976, the Surveyor has shown the encroached portion of the land of the defendants. After the measurement by the Surveyor, - 6 - NC: 2025:KHC:13813 RSA No. 891 of 2017 the elders of the village have evicted the plaintiff from the encroached portion of 08 guntas of land. It is also contended that the defendant No.1 filed a suit for the relief of declaration of title against one Siddegowda@Annegowda who is none other than the brother of the plaintiff. It is contended that the plaintiff is not in possession of the suit schedule property. Hence, prays to dismiss the suit. 6. The trial Court, based on the pleadings of the parties, framed the relevant issues. The original plaintiff, to substantiate his case, examined himself as PW.1, examined two witnesses as PWs.2 to 3 and marked five documents as Exs.P1 to P5. On the other hand, the original defendant examined himself as DW.1, examined two witnesses as DWs.2 and 3 and marked eleven documents as Exs.D1 to D11. The trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, decreed the suit of the plaintiff and the defendants were restrained - 7 - NC: 2025:KHC:13813 RSA No. 891 of 2017 from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. 7. The legal representatives of the deceased- defendant No.1 aggrieved by the judgment and decree passed in O.S.No.431/1989, preferred an appeal in R.A.No.19/2015 on the file of the learned Senior Civil Judge, Maddur. The First Appellate Court on assessing the oral and documentary evidence, dismissed the appeal vide judgment dated 05.01.2017 and confirmed the judgment and decree passed in O.S.No.431/1989. The legal representatives of deceased-defendant No.1 aggrieved by the impugned judgments, filed this Regular Second Appeal. 8. Heard the arguments of the learned counsel for the legal representatives of deceased-defendant No.1. 9. Learned counsel for the legal representatives of deceased-defendant No.1 submits that there is a dispute regarding the extent of 10 guntas of kharab land of suit - 8 - NC: 2025:KHC:13813 RSA No. 891 of 2017 schedule property. He submits that there is no mention of kharab land in the RTC extract and submits that the plaintiff is not in a possession of 10 guntas of kharab land. Hence, the Courts below have not properly appreciated the evidence on record. He further submits that the Courts below have not considered the Commissioner's Report and proceeded to pass the impugned judgments. Hence, on these grounds, he prays to allow the appeal. The legal representatives of deceased-defendant No.1 have also filed an application-I.A.No.1/2017 for production of additional evidence and prays to allow I.A.No.1/2017. 10. Perused the records and considered the submissions made by learned counsel for the parties. 11. The plaintiff, to substantiate his case, examined himself as PW.1 and reiterated the plaint averments in the examination-in-chief and to prove the case, the plaintiff has produced documents i.e., Ex.P1 is the registered sale deed, which discloses that the plaintiff had purchased 85 guntas of land in Sy.No.87; Ex.P2 is the RTC extract, - 9 - NC: 2025:KHC:13813 RSA No. 891 of 2017 which discloses that the plaintiff is the owner and is in possession of the suit schedule property; Ex.P3 is Kandayam Patta; Ex.P4 is Sketch, which discloses the extent of the suit land and boundaries and Ex.P5 is the RTC extract. The plaintiff, to prove the possession over the suit schedule property, examined two witnesses as PWs.2 to 3. They have deposed that the plaintiff is in possession and enjoyment of 55 guntas of land in Sy.No.87/A. 12. On the other hand, the original defendant examined himself as DW.1; he reiterated the written statement averments in the examination-in-chief and contended that the plaintiff is not in possession and enjoyment of the suit schedule property. It is also contended that the defendant is in possession of the suit schedule property and to prove the defence of the defendant, he has produced documents i.e., Ex.D1-Grant Certificate of plaintiff; Exs.D2 and D3 are certified copies of registered sale deeds; Ex.D4 is the Saguvali chit; Ex.D5 is the Sale Deed; Exs.D6 to D8 are the receipts; Ex.D9 is - 10 - NC: 2025:KHC:13813 RSA No. 891 of 2017 Tippani copy; Ex.D10 is Sketch and Ex.D11 is Mahazar and the defendant also examined two witnesses as DWs.2 and 3, who have deposed that the defendant is in possession and enjoyment of the suit schedule property. 13. From the perusal of the entire evidence on record, it is seen that the defendant filed a suit in O.S.No.105/2000 for relief of declaration of title and permanent injunction in regard to the suit schedule property. The said suit was dismissed. The defendant, aggrieved by the judgment and decree passed in O.S.No.105/2000, preferred an appeal in R.A.No.41/2005. The said appeal was dismissed. Further, the Court Commissioner was appointed by the trial Court. The Court Commissioner after inspecting the suit schedule property and the property of the defendant, the Court Commissioner submitted a report, in which, he was of the opinion that the plaintiff is in possession of 20 guntas of land in Sy.No.161. The trial Court, as well as the First Appellate Court, considering the findings recorded in - 11 - NC: 2025:KHC:13813 RSA No. 891 of 2017 O.S.No.105/2000, R.A.No.41/2005 and the report of the Court Commissioner, has held that the plaintiff has proved that he is in possession and enjoyment of the suit schedule property. The defendant by filing suit after suit, is trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. Though the defendant contended that there is dispute regarding the extent of the suit schedule property, this Court in the case of Muniyamma vs. Chikkanarayanappa reported in 2024 (4) KCCR 3388, held that disputed question of fact as to the boundaries, contents of the revenue records as to the description of unidentified properties cannot give rise to any substantial question of law and this Court has also relied on the judgment of the Hon'ble Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar reported in (1999) 3 SCC 722. 14. The contention of the learned counsel for legal representatives of deceased defendant No.1 is that there - 12 - NC: 2025:KHC:13813 RSA No. 891 of 2017 is a dispute in regard to the extent of land, is not a substantial question of law. Both the Courts below have rightly passed impugned judgments. Hence, I do not find any error in the impugned judgments or any substantial question of law does not arise for consideration in this appeal. 15. The legal representatives of defendant No.1, filed I.A.No.1/2017 for the production of additional evidence. In support of the application, legal representatives of defendant No.1 have filed an affidavit stating that at the time of leading evidence, inspite of due diligence, the defendant could not produce tippani copies of new Sy.No.161 and Sy.No.87. It is necessary to produce these documents to establish the fact that the land of the defendant in Sy.No.161 is situated on both sides of nala and even on the western side of the nala and towards eastern side of the suit schedule property. The legal representatives of defendant No.1 applied for the certified copy and got typed the same as to assist the - 13 - NC: 2025:KHC:13813 RSA No. 891 of 2017 Court, to arrive at the exact location of the defendants' property and misrepresentation made by the plaintiffs in obtaining the injunction. Hence, prays to allow the application. Learned counsel for legal representatives of deceased defendant No.1 submits that the said documents were not in the custody of the defendant and the same could not be produced before the trial Court and the First Appellate Court. He submits that the said documents go to the root of the case. If the defendants are permitted to produce the said documents, this Court can come to the right conclusion. Hence, he prays for allowing the application. Perused the records. The said documents were issued on 06.10.2004. The said documents were in the custody of the defendant. The defendant did not produce the said documents before the trial Court and the First Appellate Court. Further, the legal representatives of defendant No.1 has not shown any cause for non- production of said documents before the First Appellate Court and the Trial Court. The legal representatives of - 14 - NC: 2025:KHC:13813 RSA No. 891 of 2017 defendant No.1 has not fulfilled the ingredients of Order 41 Rule 27 of CPC. 16. The Hon'ble Apex Court in the case of N. Kamalam (dead) and Another v. Ayyasamy and Another reported in AIR 2001 SC 2082 has held at Para-19 as follows: "19. Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal — It does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in Municipal Corpn. of Greater Bombay v. Lala Pancham AIR 1965 SC 1008 has been candid enough to a record that the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In para 9 of the judgment, this Court observed: “................This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate - 15 - NC: 2025:KHC:13813 RSA No. 891 of 2017 Court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports ‘in a large measure’ the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under C1. (b) of sub-r. (1) of R. 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision.” Further in Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia, AIR 1980 SC 446 this Court also in more or less an identical situation laid down that since an application to the High Court has been made very many years after the filing of the suit and also quite some years after the appeal had been filed before the High Court, question of interfering with the discretion exercised by the High Court in refusing to receive an additional evidence at that stage would not arise. The time-lag in the matter under consideration is also enormous and the additional evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April 1983 but the application for permission to adduce additional evidence came to be made only in August 1993. Needless to record that the Courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after - 16 - NC: 2025:KHC:13813 RSA No. 891 of 2017 a long lapse of time. In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it, to be a stage-managed affair in order to somehow defeat the claim of the respondents — and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court cannot be found fault with for rejecting the prayer of the appellants for additional evidence made in the belated application. In that view of the matter, the first issue is answered in the negative and thus against the plaintiffs being the appellants herein. The defendant has failed to fulfil the requirements of Order 41 Rule 27 of CPC. I do not find any ground to entertain I.A.No.1/2017. 17. In view of the above discussion, I proceed to pass the following: - 17 - NC: 2025:KHC:13813 RSA No. 891 of 2017 ORDER (i) Appeal is dismissed; (ii) I.A.No.1/2017 is rejected; (iii) The judgment and decree dated 05.01.2017 passed in R.A.No.19/2015 by the learned Senior Civil Judge, Maddur and the judgment and preliminary decree dated 04.04.2015 passed in O.S.No.431/1989 by the learned Principal Civil Judge and JMFC, Maddur, are hereby confirmed; (iv) No order as to the cost; (v) In view of the dismissal of the appeal, I.A.Nos.1/2018 and 2/2017 does not survive for consideration. Accordingly, I.A.Nos.1/2018 and 2/2017, stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SMJ List No.: 1 Sl No.: 20