- 1 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 759 OF 2019 (DEC/INJ) BETWEEN: 1. SRI ABDUL SUBHAN SAB S/O ADAM SAB AGED ABOUT 68 YEARS 2. SMT. SADIKABI W/O ABDUL SUBHAN SAB AGED ABOUT 61 YEARS BOTH ARE R/AT HOLAVANAHALLI VILLAGE KORATAGERE TALUK TUMKUR DISTRICT-572121. …APPELLANTS (BY SRI. K V NITISH, ADV., FOR SRI. K.V.NARASIMHAN, ADV.) AND: MOHAMMED KHAZA HUSSAIN SAB SINCE DEAD BY HIS LRS. 1. SHABUDDIN S/O LATE MOHAMMED KHAZA HUSSAI SAB MAJOR R/AT HOLAVANAHALLI VILLAGE KORATAGERE TALUK Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 TUMKUR DISTRICT-572121. 2. ALLA BAKASH S/O LATE MOHAMMED KHAZA HUSSAI SAB MAJOR R/AT HOLAVANAHALLI VILLAGE, KORATAGERE TALUK TUMKUR DISTRICT-572121. 3. SHASHER @ IQBAL S/O LATE MOHAMMED KHAZA HUSSAI SAB NAJOR R/AT HOLAVANAHALLI VILLAGE, KORATAGERE TALUK TUMKUR DISTRICT-572121. …RESPONDENTS (BY SRI. M.B.CHANDRA CHOODA, ADV. FOR R1 TO R3) RSA FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.11.2018 PASSED IN RA NO 48/2011 ON THE FILE OF THE ADDDITIONAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.09.2011 PASSED IN OS NO 145/2008 ON THE FILE OF THE CIVIL JUDGE AND JMFC KORATAGERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 3 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree 30.11.2018, passed in R.A.No.48/2011 by the learned Additional Senior Civil Judge and JMFC at Madhugiri, confirming the judgment and decree dated 22.09.2011 passed in O.S.No.145/2008 by the learned Civil Judge and JMFC, Koratagere. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the deceased respondent was the defendant. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for a declaration and a permanent injunction. It is the case of the plaintiffs that plaintiff No.2 is the wife of plaintiff No.1. The site property bearing khata No.491/2 Sl.No.219 shown by the letters ‘MNFGHK’ in the plaint rough sketch which is - 4 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 referred as ‘A’ schedule property belonging to the plaintiffs and the same was purchased by plaintiff No.2 from one Krishnappa S/o Puttarangaiah of Holavanahalli under a registered sale deed dated 02.08.2007. The property bearing khata No.491/1 Sl.No.314 of Holavanahalli village, the house and open space more fully shown by the letters ‘AWBCEFNMLO’ in the plaint rough sketch, which is referred as ‘B’ schedule property belongs to the plaintiffs, and the same is acquired by plaintiff No.1 under a partition effected between himself and his siblings. The khata was transferred in the name of plaintiff No.1. The defendant owns the house and open space on the western side of the plaintiffs’ aforesaid properties, and the same is more fully shown by the letters ‘QRSBWAP’ in the plaint rough sketch. The portion shown by the letters ‘AWBCDO’ is an open space belonging to the plaintiff, and the same is part and parcel of the property bearing khata No.491/1 and Sl.No.314 of Holavanahalli village, and the portion shown by the letters ‘WBCEFGHND’ in the plaint rough sketch - 5 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 belongs to the plaintiffs, and the same is part and parcel of khata number 491/2 Sl.No.314 of Holvanhalli village. The portion shown by the letters ‘WBCEFGHND’ in the plaint sketch is measuring 3 feet width and length 60 ft. It is used as a oni, both by the plaintiffs and the same is neither a panchayath conservancy nor Government road, but the same is left by the plaintiffs to reach panchayath road. The defendant having owned the property on the western side of the plaintiffs’ properties has a right to reach pachayath road in WBCEFGHND portion. Now the defendant is trying to deny the existence of an open space, and intervening with the plaintiffs’ peaceful possession and enjoyment of the suit schedule properties by attempting to enlarge the width of WBCEFGHND. Hence, a cause of action arose for the plaintiffs to file a suit for a declaration and a perpetual injunction. Accordingly, prays to decree the suit. 4. The defendant filed a written statement denying the averments made in the plaint, and admitted that a - 6 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 house and open space belonging to him, is existed at the western side of the plaintiffs’ properties but denied the space shown with the letters WBCEFGHND left to the defendant to use as a oni to reach the panchayti road and also denied that he tried to enlarge the space shown with the letters AWBCDO and interfering with the peaceful possession and enjoyment of the suit properties. It is contended that defendant never tried to enlarge oni and that he is using the said oni from the date of purchase of his property and it is also contended that the defendant has no objection to appoint a Court commissioner to ascertain the width of the said oni, and contended that the suit is bad for non-joinder of necessary parties. Hence, on these grounds, prays to dismiss the suit. 5. The trial Court, based on the pleading of the parties framed the following issues. 1. Whether the plaintiffs prove their title over the suit schedule properties? 2. Whether the plaintiffs prove that defendant is illegally trying to extend the suit “B” schedule oni? - 7 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 3. Whether the defendant prove that suit “A” schedule property is measuring 9 ft. width and the said space is a oni from time immemorial? 4. Whether the plaintiffs are entitle for trelief of declaration? 5. Whether the plaintiffs are entitle for permanent injunction in the nature as sought? 6. What order or decree? 6. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined one witness as PW.2, and marked 11 documents as Exs.P1 to P11. In rebuttal, the Power of Attorney holder of the defendant was examined as DW.1, and marked 3 documents as Exs.D1 to D3. The trial Court after recording the evidence, hearing both sides, and on the assessment of verbal and documentary evidence, answered issue Nos.1, 2, 4, 5 in the negative, issue No.3 in the affirmative, and issue No.6 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 22.09.2011. The plaintiffs aggrieved by the dismissal of the suit in O.S.No.145/2008, preferred an - 8 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 appeal in R.A.No.48/2011 on the file of the learned Additional Senior Civil Judge and JMFC, Madhugiri. 7. During the pendency of the appeal, the plaintiffs have filed an application for the appointment of a Commissioner under Order 26 Rule 9 of the CPC in I.A.No.2, and the defendant also filed an application for the production of additional evidence under Order 41 Rule 27 of the CPC. 8. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1. Whether the trial Court justified in holding that plaintiffs failed to prove their title over the suit property? 2. Whether the I.A-II filed U/O 26 Rule 9 by appellants deserves to be allowed? 3. Whether the I.A-IV filed U/O 41 Rule 27 of C.P.C by respondents deserves to be allowed? 4. Whether the trial Court justified in holding that, the defendant has proved that, there - 9 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 exists 9 feet width Oni as contended by him? 5. Whether the judgment and decree of trial Court is erroneous and capricious and call for interference in the judgment and decree of the trial Court? 6. What order? 9. The first Appellate Court, after reassessing the verbal and documentary evidence answered point Nos.1 and 3 in the affirmative, point No.2, 4 and 5 in the negative, and point No.6 as per the final order. The appeal was dismissed vide judgment dated 30.11.2018. The plaintiffs, aggrieved by the impugned judgments, filed this regular second appeal. 10. Heard the arguments of the learned counsel for the plaintiffs, and learned counsel for the defendant. 11. Learned counsel for the plaintiffs submits that there is a dispute regarding the measurement of the oni, and further, he submits that the defendant in para No.11 of the written statement has contended that the trial Court - 10 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 may appoint a Court commissioner to ascertain the width of the alleged oni. The plaintiffs have filed an application in I.A.No.2 to appoint a Court commissioner for ascertaining the width of the alleged oni. However, the first Appellate Court rejected the said application on the ground that the suit schedule property does not reveal the total extent of the said property. The plaintiffs ‘B’ schedule property is of 3 feet width oni, and it belongs to them, and they have permitted the defendant to use and enjoy 3 ft width oni to reach panchayati road. There is no dispute regarding the existence of oni; now the dispute is regarding the width of the oni. To ascertain the width of the oni, the appointment of the Court commissioner is necessary. The said aspect was not adequately considered by the first Appellate Court, and committed an error in rejecting I.A.No.2 filed under Order 26 Rule 9 of CPC. He also submits that the defendants have filed an application for the production of additional evidence under Order 41 Rule 27 of CPC. The said application was allowed by the - 11 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 first Appellate Court. The first Appellate Court, having allowed the said application, ought to have recorded the evidence under Order 41 Rule 28 of CPC, or could have remitted the matter for a limited purpose for recording the evidence on the additional documents to the trial court. On the contrary, the first Appellate Court, without recording the evidence, on the additional documents, has placed reliance on the said documents, and passed the impugned judgment. Therefore, he submits that the first Appellate Court committed an error in passing the impugned judgment. He submits that the judgment and decree passed by the first Appellate Court is arbitrary, erroneous and liable to be set aside. He submits that the matter be remitted to the first Appellate Court for a fresh consideration by the first Appellate Court. 12. Per contra, learned counsel for the defendants supported the impugned judgment passed by the first Appellate Court, and he submits that the first Appellate Court was justified in rejecting the I.A.No.2, and allowing - 12 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 I.A.No.4 filed by the defendant. He submits that the first Appellate Court was justified in placing reliance on the sale deed produced along with the application, i.e., I.A.No.4. Therefore, he submits that the judgment and decree passed by the first Appellate Court is just and proper, and do not call for any interference. Accordingly, prays to dismiss the appeal. 13. This Court admitted the appeal to consider the following the substantial question of law: 1. Whether the first Appellate Court was justified in rejecting the application for appointment of Court Commissioner despite the respondent has taken a contention in the written statement regarding that the Court Commissioner be appointed to measure the width of the disputed oni? 2. Whether the appellant proves that though the first Appellate Court has allowed the application for production of additional evidence without compliance of Order 41 Rule 28 of CPC, considered the documents and passed the judgment? - 13 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 Reg. Substantial question of law No.1: 14. The dispute between the parties is regarding the width of the oni. It is the case of the plaintiffs that the width of the oni is 3 feet, and it is the defence of the defendants that the width of the oni is 9 feet. There is a dispute regarding the width of the oni. To ascertain the width of the oni, it is necessary to appoint a Court commissioner. However, the defendant in his written statement has clearly stated in para 11, which reads as follows: “That even the Hon’ble Court can appoint a Court commissioner to measure the width of the disputed oni”. 15. From the perusal of the written statement filed by the defendant, the defendant has no objection to appoint a commissioner to measure the width of the disputed oni. The parties cannot lead oral evidence regarding the width of the oni except which can be ascertained by appointing a Court commissioner. The said aspect was not properly considered by the first Appellate - 14 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 Court and committed an error in rejecting I.A.No.2. Further, the defendant himself has submitted no objection to appoint a commissioner to measure the width of the disputed oni. The first Appellate Court should have allowed the application; on the contrary, it has rejected the said application. Thus, the first Appellate Court committed an error in rejecting the application for the appointment of a Court commissioner in I.A.No.2. In view of the above discussion, I answer the substantial question of law No.1 in the negative. Reg. Substantial question of law No.2: 16. The defendant has filed an application under Order 41 Rule 27 of CPC for the production of additional evidence. The application was allowed by the first Appellate Court, without permitting the defendant to mark the said document. The first Appellate Court has placed reliance on the said document. Wherever the additional evidence is allowed to be produced, the first Appellate Court may either take such evidence or direct the Court - 15 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 from whose decree the appeal is preferred or any other subordinate Court, to take such evidence, and to send it, when brought to the first Appellate Court. 17. Admittedly, the first Appellate Court allowed the application for the production of additional evidence filed under Order 41 Rule 27 of CPC. After allowing the application, the first Appellate Court could have permitted the defendant to mark the said document as per Order 41 Rule 28 of the CPC. However, there is no compliance of Order 41 Rule 28 of the CPC. The first Appellate Court, placing reliance on an unexhibited document, considered the same, and passed the impugned judgment. The procedure adopted by the first Appellate Court, in considering the document, which is unexhibited, is perverse and illegal. Hence, in view of the above discussion, I answer the substantial question of law No.2 in the affirmative. 18. Accordingly, I proceed to pass the following order: - 16 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 ORDER i. The Regular Second Appeal is allowed. ii. The judgment and decree dated 30.11.2018 passed in R.A.No.48/2011 by the learned Additional Senior Civil Judge and JMFC, Madhugiri, is set aside; consequently, I.A.No.2 is allowed. iii. The Taluk Surveyor of Koratagere taluk is appointed as a Court commissioner. The Court commissioner is directed to visit the spot and ascertain the width of the disputed oni and submit a report to the first Appellate Court, and further, the first Appellate Court is directed to permit the defendant to lead evidence on the additional documents and thereafter, pass an appropriate judgment in accordance with law. iv. R.A.No.48/2011 is restored to its original file. v. The parties are directed to appear before the first Appellate Court on 10.11.2025 without awaiting any further notice. - 17 - HC-KAR NC: 2025:KHC:33349 RSA No. 759 of 2019 vi. This Court has not made any adjudication on the merits in issue. vii. All the contentions of the parties are kept open. viii. Office is directed to transmit the records forthwith, to the first Appellate Court. Sd/- (ASHOK S.KINAGI) JUDGE SSB,SKS