1 IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE C.M. POONACHA REGULAR SECOND APPEAL No.2883 OF 2006 BETWEEN 1 . SRI HONNUR SAB SINCE DECEASED BY HIS LRS SMT AMINABI W/O HONNURSAB SHAIKH SINCE DECEASED BY HIS LRS APPELLANTS NO.2 TO 5 AND 7 ARE THE LEGAL HEIRS OF THE DECEAASED APPELLANT NO.1- AMINABI (AMENDED VIDE COURT ORDER DATED 16.4.2024) 2. SMT KHUTIZABI W/O PEERASAB BELAKERI AGED ABOUT 45 YEARS, OCC;HOSUEHOLD WORK, R/O RANEBENNUR HAVERI DISTRICT. 3. SHAMASHUNNISA D/O HONNURSAB SHAIK AGED ABOUT 44 YEARS, OCC;HOUSEHOLD WORK, R/O HARIHAR, DAVANAGERE DISTRICT. 4. SMT JAIBUNNISA W/O BUDNASAB KANAMANI AGED ABOUT 38 YEARS, 2 OCC: HOUSEHOLD WORK, R/O KUDUPALI HIREKERUR TALUK. 5. SMT FATIMA W/O PEERASAB NANDYAL AGED ABOUT 36 YEARS, OCC: SERVICE AND HOUSEHOLD WORK, R/O RANEBENNUR HAVERI DISTRICT. 6. 6a. 6b. 6c. 6d. RAJESAHEB S/O HONNURSAB SHAIK SINCE DECEASED BY HIS LRs FATHIMA W/O RAJESAB SHAIKH AGED ABOUT 52 YEARS OCC: HOUSE HOLD WORK TANVEER S/O LATE RAJESAB SHAIKH AGED ABOUT 34 YEARS OCC: AUTO DRIVER AND MECHANIC SMT ANUSHA D/O LATE RAJESAB SHAIKH AGED ABOUT 32 YEARS OCC: HOUSE HOLD WORK SRI MUNAFF S/O LATE RAJESAB SHAIKH AGED ABOUT 28 YEARS OCC: MECHANIC ALL RESIDENTS OF KULKARNI GALLI RANEBENNUR, TQ: RANEBENNUR DIST: HAVERI (AMENDED VIDE COURT ORDER DTD 16.4.2024) 7. SRI ABDUL REHMAN 3 S/O HONNURSAB SHAIKH AGED ABOUT 34 YEARS, OCC: MECHANIC, R/O RANEBENNUR, HAVERI DISTRICT. ...APPELLANTS (BY SRI. G.I. GACHCHINAMATH, ADVOCATE FOR A2 TO A5 & A7) AND SRI SUBANSAB S/O ABDUL GAFARSAB HARAPANAHALLI AGED ABOUT 38 YEARS OCC: BUSINESS R/O RANEBENNUR, HAVERI DISTRICT …RESPONDENT (BY SRI. N P VIVEKMEHTA, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DT.29.3.2006 PASSED IN R.A.NO.30/2000 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN), RANEBENNUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DT.31.3.2000 PASSED IN O.S.NO.191/2994 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) AND II ADDL. JMFC, RANEBENNUR AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.12.2024 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:- CORAM: HON'BLE MR JUSTICE C.M. POONACHA CAV JUDGMENT The present Second Appeal is filed under Section 100 of Code of Civil Procedure, 19081 by the plaintiffs challenging the judgment and decree dated 29.03.2006 passed in R.A. 1 Hereinafter referred to as ‘CPC’ 4 No.30/2000 by the Addl. Civil Judge (Sr.Dn.), Ranebennur2 and the judgment and decree dated 31.03.2000 passed in O.S No.191/1994 by the Additional Civil Judge (Jr.Dn.) & II Additional JMFC., Ranebennur, wherein the suit for declaration and possession has been partly decreed by the trial Court ordering that the plaintiffs are entitled for possession of the suit property which has been set aside by the first Appellate court and the suit of the plaintiff was dismissed. 2. For the sake of convenience, the parties herein are referred as per their rank before the Trial Court. 3. It is the case of the plaintiff that he purchased CTS No.3322-C + 3371/A-3 measuring 13.94 sq.meters of Tennur Village in Ranebennur Taluk vide registered Sale Deed dated 30.05.1990 (erroneously mentioned as 30.03.1990 in the judgments in RA No.30/2000 and OS No.191/1994) for a total sale consideration of ₹12,000/- from one Shabuddin Abdul Sattarkhan, Smt. Kamarunnisha kom Shabuddin Roufkhanavar and Akbar Khan S/o. Shabuddin Roufkhanavar. That after 2 Hereinafter referred to as the ‘first appellate Court’ 5 purchasing the suit property, he is in possession and enjoyment as its owner. 4. It is the further case of the plaintiff that towards northern side of the suit property, the plaintiff’s son is running an electronic shop in the name and style of Mamatha Electronics. That in the Southern side of Mamatha Electronics, an open space is existing measuring East-West 8 feet and North-South 9 feet, wherein the defendant was running a stove repair shop in the said open space. The property in possession of the defendant has been described in the schedule to the plaint. 5. It is the further case of the plaintiff that the defendant was running his business by obtaining licence from its previous owner and the previous owner of the plaintiff asked the defendant to vacate and handover possession of the property to the plaintiff. That the defendant requested to continue for some more time and accordingly the previous owner of the plaintiff permitted the defendant to run the business as a licencee. That the plaintiff has constructed a building in the suit property in the year 1994 and towards northern side of the suit property, he intended to 6 construct a staircase. But the defendant obstructed to construct the staircase. Hence, the plaintiff filed a suit in O.S. No.47/1994 against the defendant for injunction. That in the said suit, the defendant entered appeared and denied the ownership of the plaintiff as also violated the oral agreement of licence. Hence, the plaintiff got issued a legal notice through his counsel on 23.08.1994 and demanded the defendant to vacate the suit property within 15 days and handover possession to the plaintiff. That the defendant tried to trespass into the suit property. Hence, the defendant having not complied with the demands made in the legal notice, the plaintiff filed the suit for declaration and possession. It is relevant to note that Honnursab, the original plaintiff filed OS No.191/1994. Subsequently, after his death, his legal representatives have come on record and have prosecuted the proceedings before the Trial Court, the first Appellate Court and this Court. 6. The defendant entered appearance before the trial Court through his counsel and filed his written statement. The 7 defendant denied the boundaries of the suit property and also contended that the plaintiff has not furnished the correct boundaries. Further, the defendant denied that the plaintiff is in possession of the suit property. The defendant has in detail denied the case of the plaintiff. 7. It is the specific contention of the defendant that his ancestors were running the stove repair business in the suit property for more than 50 years. That the defendant is in possession of the property as a tenant under Smt.Janabbi and he also paid taxes to the municipality. That the defendant is not the licensor of the plaintiff. Further, it is contended that upon receipt of the legal notice dated 23.8.1994, the defendant gave a suitable reply. It is further contended by the defendant that he is in actual possession and enjoyment of the suit property for more than 50 years and he is in possession of the property peacefully without any interruption and to the knowledge of the plaintiff and he has perfected his title to the suit property by way of adverse possession and he had become the owner of the suit property. Hence, the defendant sought for dismissal of the suit. 8 8. Consequent to the pleadings of the parties, the Trial Court framed the following issues: 1. “Does the plaintiff proves that he has purchased the suit property described in the schedule from one Shabuddinsab Abdul Sattar Khan Roufkhanavar and others, for Rs.12,000/- on 30.3.90? 2. Does the plaintiff further proves that towards the southern side of the suit property, plaintiff is running Mamata Electronics, Radio shop and which was running by the plaintiffs’ son? 3. Does the plaintiff further proves that towards the southern of the Mamata Electronics there is a open space measuring 8 ft. x 9 ft. East-West and North South 9 ft. and in which the defendant is running the business of welding and stove repair? 4. Does the plaintiff proves that the defendant is running the welding and stove repair business under the licencee from the original owners of the suit property and the plaintiff has also allowed the defendant to use the said property on a leave and licensee basis? 5. Does the plaintiff proves that he has terminated the licence of the defendant over the suit property? 6. Does the defendant proves that he is in possession of the suit property as a tenant under one Smt. Jainabbi and the said Jainabbi was previous owner of the suit property? 7. Does the defendant proves that he is in possession of the suit property peacefully without interruption and to the knowledge of everybody and thereby he is perfected his title of the suit property by way of adverse possession and he has become owner of the suit property? 9 8. What relief or Order?” Issue nos.2 and 3 (deleted as per order dated 15.3.2000 passed in IA. VIII) 9. The plaintiff No.1(a) examined herself as PW.1 and the vendor of the plaintiff was examined as PW.2. Exs.P1 to P7 have been marked in evidence. The defendant examined himself as DW.1 and another witness as DW.2. Exs.D1 to D56 have been marked in evidence. The Trial Court by its judgment and decree dated 31.03.2000 partly decreed the suit and passed the following order: Suit of the plaintiff is hereby partly decreed. Further ordered that the plaintiff entitled for possession of the suit schedule property i.e., CTS No.3322-C and 3371-A/3 from the defendant under the facts and circumstances of the case. Parties to bear their own costs. 10. Being aggrieved, the defendant preferred RA No.30/2000. The plaintiff entered appearance in the said appeal and contested the same. The first appellate Court framed the following points for consideration: 10 1. “Whether trial Court committed error in holding that plaintiff is the owner of suit property? 2. Whether trial Court committed error in holding that defendant is the licensee under plaintiff? 3. Whether trial Court committed error in holding that defendant has not perfected his title to the suit property by adverse possession? 4. Whether judgment and decree of the trial Court is not sustainable under law and on facts? 5. What order or decree?” 11. The first appellate Court by its judgment and decree dated 29.03.2006 allowed the appeal, set aside the judgment and decree of the Trial Court and dismissed the suit. Being aggrieved, the present second appeal is filed. 12. This Court by order dated 30.5.2024 admitted the appeal and framed the following substantial question of law: ‘Whether the property acquired by the plaintiff by way of a registered sale deed dated 30.03.1990 (Ex.P7) would include the property being occupied by the defendant i.e., open space bearing east-west 8 feet, north-south 9 ft in CTS No.3322-C + 3371-A in Ranebennur taluk of Ranebennur City?’ 11 13. I.A.1/2024 has been filed by the appellants under Order XLI Rule 27 r/w Section 151 of CPC to permit the appellants to produce four documents. The documents sought to be produced are the extract of Property Register Card and Sale Deed in respect of the property No.3322C1+3371A/4. A copy of e-swattu and the extract of the Property Register Card of property bearing No.3322C1+3371A/3 are also produced along with the application. It is deposed in the affidavit accompanying the application that the documents sought to be produced along with the application would reflect that the property measuring 13.94 sq.mts., belongs to the plaintiff and the neighbouring property also measures 13.94 sq.mts., which belongs to the neighbouring owner and there is no property which the respondent claims to be that of the vendors of the plaintiff under whom he claims to be a tenant which measures 8x9 sq.mtrs. Hence, it is contended that the said documents are necessary for adjudication of the question that arise for consideration in the present appeal. 14. The respondent has filed objections to IA No.1/2024, inter alia, contending that the appellants are trying to make out a 12 new case and there are many contradictions in the statements made by the appellants. It is further contended that no grounds have been made out for allowing the said application. That the said application is made only to confuse the factual matrix. Hence, the respondent seeks for dismissal of the application. 15. Learned counsel for the appellants/plaintiff Sri Gurudev Gachchinamath assailing the judgment and decree passed by the first appellate Court submits that the defendant was a tenant and he is not a rival claimant to the title of the property. That the plaintiff had purchased the suit property vide registered Sale Deed dated 30.5.1990. That there was no other property of the vendors that was required to be sold. It is further contended that one of the vendors of the plaintiff was examined as PW.2, has also supported the case of the plaintiff. Hence, the judgment and decree passed by the Trial Court is just and proper and the judgment and decree passed by the first appellate Court is liable to be set aside. 16. In support of IA No.1/2024 filed in this appeal, it is submitted that the documents produced along with the application 13 are necessary for adjudication of the question that arises for consideration in the present appeal, which indicates that the entire property of the vendors has been purchased and the property documents of the neighbouring property have also been produced. 17. Per contra, learned counsel for the respondent/defendant Sri.Vivek Mehta contends that PW.2 has categorically admitted that the suit property and the property purchased by the plaintiff are different. He further contends that there are various inconsistencies in the case of the plaintiff especially with regard to the boundaries and measurements of the property purchased by him as also with regard to the boundaries of the neighbouring properties. It is further contended that if the measurements of the boundaries are noticed, the suit property in respect of which the relief of declaration and possession is sought has not been adequately described. It is further contended that the vendors of the plaintiff have sold their property by excluding the property that is in occupation of the defendant. Opposing IA.1/2024 it is contended on behalf of the respondent that new 14 documents are sought to be produced which are not required to adjudicate the issue that arises for consideration and a reading of the said documents would only demonstrate further contradictions in the case of the appellants/plaintiff. 18. In addition to the substantial question of law framed by this Court on 30.05.2024, another question that is required to be considered in the present appeal is: ‘Whether the appellants have made out grounds to allow IA.1/2024 ?’ 19. The submissions of both the learned counsels have been considered and the material on record has been perused including the records of the Trial Court and First Appellate Court. 20. Before considering the case of the parties, it is relevant to notice the findings of both the Courts. The Trial Court while considering issue Nos.1, 4 and 5 in the affirmative has recorded the following findings: i. The plaintiff purchased the suit property on 30.5.1990 for a sale consideration of `12,000/- 15 from one Shabuddin Abdul Sattarkhan and another as per Ex.P7; ii. Plaintiff in order to prove the Sale Deed, examined PW.2, the vendors of the plaintiff and his signature is marked as Ex.P7(a); iii. Suit schedule property bearing CTS No.3322-C and 3371-A/3 measure 13.94 sq.mts. On the southern side of the said property, he is running Mamatha Electricals. The remaining portion i.e., east to west 8x8 feet of the suit property, the boundaries are, east – road, west – National Welding Works, north – remaining portion of the plaintiff’s property i.e., Mamatha Electricals and south – government road. The defendant is running business in the said portion of the suit property i.e., stove repair shop as licencee from the vendor of the plaintiffs; iv. It is contended that the property of the defendant is given separate number i.e., CTS 16 No.3322/C and 3371-A/4 and the defendant and the defendant’s father name is entered in the CTS records pertaining to the suit property; v. The municipality gave CTS No.486. DW.2 admitted that the defendant is in possession and enjoyment of the suit property, but DW.2 has not disclosed whether the defendant is tenant or licencee. The evidence of DW.2 is not helpful to the defendant; vi. The defendant has taken a contention that property bearing CTS No.3322-C and 3371-A/4 belongs to Jainabbi. But defendant has not produced single iota (of document) to show that the said property belongs to Jainabbi; vii. Further defendant has not produced single iota (of document) to show that he is in possession and enjoyment of the suit property bearing CTS No.3322-C + 3371-A/4; 17 viii. Further the defendant has produced municipal records and also tax paid receipts. However, the said documents are not documents of title. The entries in revenue records can by no stretch of imagination form basis of declaration of title; ix. The defendant has not produced any single iota (of evidence) to show that he is in possession of the suit property as tenant; x. DW.2 has not deposed anything regarding defendant is a tenant under Jainabbi; xi. The defendant contended that one Jainabbi is absolute owner of the suit property. The said Jainabbi is the mother of PW.2, the vendor of the plaintiffs. PW.2 is the sole legal heir of deceased Jainabbi. After death of Jainabbi, PW.2 inherited the property of Jainabbi as legal heir; 18 xii. The plaintiffs have proved the defendant as licencee and further, the plaintiffs renewed the said licence on the request of the defendant; xiii. PW.2 clearly corroborates the evidence of PW.1; xiv. I come to the conclusion that the defendant is licencee and licence can be revoked by the plaintiffs as per Ex.P3 – notice; xv. The plaintiffs are in possession and enjoyment of the suit schedule property as owners. Further, the defendant is in possession of the suit property as licencee; 20.1. The Trial Court while answering issue Nos.6 and 7 in the negative, recorded the following findings: i. The defendant contended that his father and he is in possession of the suit property as tenant under Jainabbi. Further, the defendant contended that he has acquired the title by way 19 of adverse possession. But defendant has not proved when he denied the ownership of the property and also he is in hostile possession of the suit schedule property. The defendant has not produced the property extract of property bearing No.3322-C + 3371-A/4. Non production of the documents pertaining to the said property, adverse inference is drawn against the defendant; ii. The defendant is running business in the suit schedule property in the shed. Hence, the defendant has not acquired adverse possession of the suit property; iii. The defendant failed to prove his defence that he is a tenant under Jainabbi and he has also acquired title to the suit property by way of adverse possession; 20 iv. The plaintiffs proved that the defendant is in possession and enjoyment of the suit property as a licencee; v. The possession of the defendant is permissive possession of the suit property. Hence, the defendant has not acquired adverse possession of the suit property. 21. The First Appellate Court while considering point Nos.1 and 2 framed by it, has recorded the following findings: i. The suit property is not the subject matter of sale deed under which the plaintiff is claiming title to the suit property. The description of the suit property in Ex.P.7 is shown as consisting of a commercial stall bearing CTS No.3322/C + 3371A/3 totally measuring 13.94 Sq.meters. Thus, the property which was purchased by the plaintiff under Ex.P.7 is a Commercial Stall. Ex.P.7 does not disclose that there is an open space measuring 8 X 9 feet on the 21 southern side of the said stall. The description of the suit property also does not disclose that the suit property purchased under Ex.P.7 is consisting of a stall as well as an open space. ii. Thus the contention of the plaintiff that an open space measuring 8 feet East-West and 9 feet North- south situated towards southern side of a stall purchased by them under Ex.P.7 is the part of the property purchased by them is not supported by the sale deed Ex.P.7. iii. PW.2 has categorically admitted that the suit property is entirely a different property than the property sold by him in favour of the plaintiff. That the property in possession of the defendant wherein he is carrying out stove repair work and the property sold by him in favour of the plaintiff are entirely different property. That the father of the defendant used to pay municipal tax in respect of the suit property. 22 iv. All the admissions of PW.2 goes to prove that the suit property is not part and parcel of the property sold by him in favour of the plaintiff under Ex.P.7. v. In the cross-examination of DW.1 it is elicited that the defendant is in possession of the suit property for the last 40 – 50 years and it bears CTS No.3371/A/4. vi. From the cross-examination of DW.1 it becomes clear that that the suit property admittedly was of the ownership of Jainabi. It is not the case of the plaintiff that Jainabi also joined along with other vendors while executing Ex.P.7. The plaintiff has not purchased the property from Jainabi. vii. When Jainabi was the owner of the suit property as admitted by PW.2 in his cross-examination and suggested by plaintiff’s counsel in the cross- examination of DW.1, the plaintiff cannot acquire any title to the suit property under Ex.P.7. 23 viii. The suit property was not the subject matter of the sale deed under Ex.P.7 as rightly argued by learned counsel for the defendant. ix. From the evidence of DW.1 and DW.2 it becomes clear that the defendant has been in possession of the suit property for the last 40 to 50 years. x. Therefore, the contention of the plaintiff that while purchasing the property bearing CTS No.3322/C + 3371/A/3 they took possession of the suit property and later gave it to the defendant on licence on his request proved to be false. xi. The plaintiff cannot acquire title to the suit property merely by mentioning wrong boundaries in the sale deed. When the vendor of the plaintiff had no title to the suit property, they could not have conferred title on the plaintiff. xii. There is sufficient documentary evidence on record to show that the suit property was of the 24 ownership of Jainabi i.e., tax paid receipts marked at Ex.D.1 to Ex.D.6 and extracts of municipal tax assessment register marked at Ex.D.14 t Ex.D.17. xiii. The vendor of the plaintiff himself admitted that Jainabi was the owner of the property and it is also suggested in the cross-examination of DW.1 that Jainabi was the owner of the suit property. xiv. Absolutely, there is no cogent and reliable evidence on record to prove that the suit property is part of the property purchased under Ex.P.7. Absolutely, there is no evidence on record to prove that the suit property was given to defendant by plaintiff on license. xv. The defendant has adduced evidence to rebut the contention of the plaintiff and successfully proved by adducing cogent and reliable evidence that the suit property was in his possession for the last 40 to 50 years . 25 xvi. The plaintiff has failed to prove that he is the owner of the suit property. Therefore, question of he giving the suit property to the defendant on licence does not arise. xvii. The finding of the Trial Court is not based on the material evidence on record. The Trial Court came to a wrong conclusion because the Lower Court placed burden on the defendant to prove the defence. The Lower Court ought to have held that the burden is on the plaintiff to prove the ownership and also to prove that the suit property was given on licence to the defendant. 21.1. The First Appellate Court while considering point No.3 has affirmed the finding of the Trial Court that the defendant has failed to prove that he has perfected the title to the suit property by adverse possession. 22. Admittedly, the original deceased plaintiff purchased the property bearing CTS No.3322-C + 3371/A-3 measuring 13.94 26 sq.meters of Tennur Village in Ranebennur Taluk vide registered Sale Deed dated 30.05.1990 (Ex.P7) for a total sale consideration of `12,000/- from his vendors i.e., Shabuddin Abdul Sattarkhan, Smt. Kamarunnisha kom Shabuddin Roufkhanavar and Akbar Khan S/o. Shabuddin Roufkhanavar. It is the case of the plaintiff that the suit property is a part of the property purchased by the plaintiff vide registered Sale Deed 30.05.1990 (Ex.P7). 23. At this juncture, it is relevant to notice the property purchased vide the Sale Deed dated 30.05.1990 (Ex.P7), which is described in the said document as follows: zsÁgÀªÁqÀ r. gÁuɨɣÀÆßgÀÄ vÁ®ÆèPÀ, ¸À¨ï gÀf¸ÁÖçgïªÀgÀ ªÀ. ªÀÄĤ¹¥Á¯ï ºÀ¢ÝUÉ ¸ÉÃjzÀ PÀ¸À¨Á gÁuɨɣÀÆßgÀ £ÀUÀgÀzÀ PÀÄgÀ§UÉÃj gÉÆÃrUÉ ºÉÆA¢ ¬ÄgÀvÀPÀÌ £ÀªÀÄä ªÀiÁ°Ì ªÀ»ªÁnªÀżÀî CAUÀr ªÀĽUÉAiÀÄ ¹n ¸ÀªÉð £ÀA§gï 3322¹+3371 J/3. F £ÀA§gï ¥ÀÆgÁ ¬ÄgÀÄvÀÛzÉ. ¬ÄzÀgÀ C¼ÀvÉ 13- 94 ¸ÉæöéÃgÀ «ÄÃlgÀ ¬ÄgÀÄvÀÛzÉ ¬ÄzÀgÀ ZÀPÀ̧A¢ ¥ÀƪÀðPÉÌ:- gÀ¸ÉÛ ¥À²ÑªÀÄPÉÌ :_ £ÀfÃgÀ CºÀäzï SÁ¹ªÀiï ¸Á¨ï zÁªÀtUÉÃj AiÀĪÀgÀ ¨Á§ÄÛ D¹Û GvÀÛgÀPÉÌ :- ºÁ¸ÀA© PÉÆÃA PÀjêÀi SÁ£À gÀªÀÇ¥sÀ SÁ£ÀªÀgÀ AiÀĪÀgÀ ¨Á§ÄÛ D¹Û zÀQëtPÉÌ :- ¸ÀgÀPÁj eÁUÀ 24. The suit property as described in the schedule to the plaint is described as under: 27 ±ÉqÀÆå¯ zÁªÁzÁ¹Û ªÀtð£É:- gÁuɨɣÀÆßgï vÁ®ÆPÀ gÁuɨɣÀÆßgï ±ÀºÀgÀzÀ ¹ n J¸ï £ÀA: 3322¹+3371J-3 «¹ÛÃtð 13-94 ¸ÉÌ÷é «Äà ¸ÀvÁÛ ¥ÀæPÁgÀ J, EzÀgÀ ¥ÉÊQ zÀQët ¨sÁUÀzÀ RįÁè eÁUÉ EzÀgÀ C¼ÀvÉ ¥ÀƪÀð¥À²ÑªÀÄ 8 ¥sÀÆl GvÀÛgÀzÀQët 9 ¥sÀÆl EzÀgÀ ZÀPÀ̧A¢ ¥ÀƪÀðPÉÌ:- gÀ¸ÉÛ ¥À²ÑªÀÄPÉÌ :_ £Áå±À£À¯ï ªÉ°ØAUï ªÀPÀìð GvÀÛgÀPÉÌ :- EzÉà D¹ÛÃAiÀÄ ªÁ¢AiÀÄ PÀ§eÁzÀ°ègÀĪÀ ªÀĪÀÄvÁ J¯ÉPÁÖç¤Pïì ªÀĽUÉ zÀQëtPÉÌ :- ¸ÀPÁðj eÁUÉ ªÀ gÀ¸ÉÛ. F ZÀPÀ̧A¢ ªÀÄzsÀåzÀ°ègÀĪÀzÀÄ zÁªÁzÁ¹Û EgÀÄvÀÛzÉ. 25. The defendant is claiming to be in occupation of the suit property as a tenant under Smt. Jainabi. 26. The plaintiff/s, in order to prove their case has examined the plaintiff No.1(a) as PW.1 and the vendor No.1 of the original deceased plaintiff as PW.2. 27. PW.2 in his examination-in-chief has admitted the Sale Deed dated 30.05.1990 (Ex.P7). His signature, as well as the signature of his wife and son have been marked as Ex.P7 (a) to (c). He has further deposed that himself, his wife and son sold the entire property owned by them to the plaintiff vide Ex.P7. However, in the cross examination of PW.2 he states that he does not know the property number and dimension sold by him. He 28 states that boundaries of the property sold by him was East by Road, West by his property, North by his sister’s property and South by defendant’s property. He admits in the cross examination that the defendant and his father have been in possession of the property under their occupation for more than 40 to 50 years. He states that the property sold by him and the property in the occupation of the defendant are different/separate; that the property sold by him and the suit property do not have any connection with one another; that the defendant has been paying Municipal Tax in respect of the property under his occupation; that the property bearing CTS No.3371/A-4 belongs to Smt. Jainabi who is the mother of PW.2. 28. The appellants have produced document Nos.1 and 2 along with IA.No.1/2024 i.e., the extract of the Property Register Card and Sale Deed dated 19.9.2003 in respect of property bearing CTS No.3322C1+3371A/4, which is allegedly located on the southern boundary of the property purchased by the plaintiff under Ex.P7. Document No.1 i.e., Property Register Card does not reflect the boundaries of the said property. The boundaries mentioned in the said Sale Deed dated 19.9.2003 are as under: 29 ¥ÀƪÀðPÉÌ:- PÀÄgÀħUÉÃj gÀ¸ÉÛ ¥À²ÑªÀÄPÉÌ :_ ºÁ¸ÀA© PÉÆÃA PÀjêÀiSÁ£À gÀªÀÇ¥sÀSÁ£À EªÀgÀ ªÀÄ£É GvÀÛgÀPÉÌ :- ªÀÄ»§Æ§SÁ£À gÀªÀÇ¥sÀSÁ£ÀªÀgÀ ªÀĽUÉ zÀQëtPÉÌ :- gÁeÁ¸Á§ ±ÉÃR EªÀgÀ D¹Û 29. The appellants have also produced as document Nos.3 and 4 along with IA.No.1/2024 i.e., the e-swattu and extract of Property Register Card of property bearing CTS No.3322C1+3371A/3. Document No.3 discloses the boundaries as north by Ashok Mylar’s property, east by road, west by other’s property and south by Harapanahalli’s property. There are no boundaries mentioned in document No.4. The appellants have not explained the difference in the boundaries of the property purchased under Ex.P7 and document No.3 produced along with the application. 30. In the affidavit filed in support of IA.No.1/2024 it is deposed by appellant No.7 that the Sale Deed which is executed in their favour reflects property bearing CTS number 3322C + 3371A/4 to the southern side. However, the said statement is erroneous inasmuch as the southern boundary in the Sale Deed dated 30.5.1990 (Ex.P7) is shown as Government land. It is further deposed in the affidavit accompanying IA.No.1/2024 that 30 property bearing No.3322C + 3371A/4 measures 13.94 sq.mts., and the property purchased under the Sale Deed dated 30.5.1990 (Ex.P7) which bears CTC No.3322C +3371A/3 also measures 13.94 sq.mts., and hence there is no property which the respondent claims to be of Jainabi under whom he claims to be the tenant. That the documents sought to be produced along with the application are public documents and there is no property measuring 8 x 9 sq.ft. It is further deposed in the affidavit accompanying the application that the documents produced along with the application would clarify the contentions of the parties. 31. It is relevant to note that the application is filed under Order XL1 Rule 27 of the CPC, wherein a party is entitled to produce additional evidence at the appellate stage only if it is demonstrated that the said documents could not be produced earlier or that the applicant was prevented by sufficient cause from producing the said documents, and that the documents are necessary for adjudication of the matter in dispute. 32. It is relevant to note here that in the affidavit filed in support of the application, the deponent has not deposed as to 31 why the said documents could not be produced either before the Trial Court or the First Appellate Court. The appellants have further stated that the documents produced along with the application will clarify the contentions of the parties. However, the appellants have miserably failed in demonstrating as to how and in what manner the said documents are necessary for the purpose of adjudication of the matter in dispute between the parties. On the contrary, there is justification in the submission made by the learned counsel for the respondents that a perusal of the documents produced along with the application only creates further contradictions in the case of the plaintiff/s. 33. It is pertinent to note here that the appellants/plaintiff were required to demonstrate that the suit property was part of the property purchased by them vide Sale Deed dated 30.5.1990 (Ex.P7). In the schedule to the plaint, the property has been described as open space measuring north to south 8 feet and east to west 9 feet on the southern side of property bearing CTS number 3322C + 3371A/3 which measures 13.94 sq.mts. The boundaries of the suit schedule property have also been mentioned as has been noticed above. However, if the suit 32 property north to south 8 feet and east to west 9 feet is situated on the southern side of the property purchased under Ex.P7, the northern boundary of the suit property and Ex.P7 property would not be the same. However, in the description given by the plaintiffs, the northern boundary of both the properties is shown as road. Further, there is no description in the Sale Deed dated 30.5.1990 (Ex.P7) that there is any open space measuring 8 feet and 9 feet as per the description given in the suit schedule. 34. It is the consistent case of the defendant that he was a tenant under Jainabi. Although vendor No.1 of the original deceased plaintiff (PW.2) has stated that he is the son of Jainabi, it is not the case of the plaintiffs that the property conveyed under Ex.P7 was inherited by his vendors from Jainabi. The same has also not been deposed by PW.2 in his testimony. 35. Further, the testimony of PW.2 in no manner supports the case of the plaintiff inasmuch as PW.2 has not given the details of the property and the dimensions sold by him vide Sale Deed (Ex.P7). Further, PW.2 has also admitted that the property sold by him and the property in occupation of the defendant, i.e., 33 suit property are different/separate. PW.2 does not, in clear/categorical terms, state that the suit property is part of the property conveyed under the Sale Deed (Ex.P7). 36. The plaintiffs, apart from producing the Sale Deed dated 30.5.1990 as Ex.P7 and examining PW.2, have not in any manner demonstrated by adducing any oral or documentary evidence that the suit property forms part of the property purchased vide the Sale Deed (Ex.P7). 37. The appellants have failed to demonstrate that the documents produced along with IA.No.1/2024 are required to be taken on record. Hence, the question framed for consideration at para 18 hereinabove as to whether the application in IA.No.1/2024 is liable to be allowed is answered in the negative. 38. It is forthcoming that the Trial Court without considering as to whether the plaintiffs have adduced any evidence (either oral or documentary) to prove their case, has merely noticed that the defendant has not produced any evidence to show that he is in possession of the suit property as a tenant. The First Appellate Court has rightly re-appreciated the oral and 34 documentary evidence on record, noticed that the plaintiff has not produced any material to prove their case, and accordingly recorded a finding in that regard as has been noticed above. 39. The appellants have miserably failed to demonstrate that the suit property is part of the property purchased by them vide the Sale Deed dated 30.5.1990 (Ex.P7). The appellants have further failed in demonstrating that the finding of the First Appellate Court is in any erroneous and liable to be interfered with. 40. The substantial questions of law framed in the above appeal is answered in the negative. 41. Accordingly, the following: ORDER i. IA.No.1/2024 is rejected; ii. The above appeal is dismissed; 35 iii. The judgment and decree dated 29.03.2006 passed in R.A.No.30/2000 by the Addl. Civil Judge (Sr.Dn.), Ranebennur, is affirmed. Sd/- (C.M. POONACHA) JUDGE Bs/nd/-