- 1 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100101 OF 2019 (PAR/POS) BETWEEN: 1. SMT. MALLAVVA W/O NAGESH TONASHYAL AGE. 29 YEARS, OCC. HOUSEHOLD WORK, AND AGRICULTURE, R/O. MURNAL AND RAMATHAL, TQ. HUNGUND, DIST. BAGALKOTE. 2. SMT. BASAMMA @ BASAVVA W/O BASAPPA KOTI AGE. 54 YEARS, OCC. HOUSEHOLD WORK AND AGRICULTURE, R/O. KAMATAGI, TQ. HUNGUND, DIST. BAGALKOTE. …APPELLANTS (BY SRI. V.G BHAT & J.B HURAKADLI, ADVS FOR APPELLANTS) AND: 1. SRI. MALLAPPA S/O BASAPPA KOTI AGE. 39 YEARS, OCC. AGRICULTURE, R/O. KAMATAGI, TQ. HUNGUND, DIST. BAGALKOTE. Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 2. SRI. HONNAPPA S/O BASAPPA KOTI AGE. 31 YEARS, OCC. AGRICULTURE, R/O. KAMATAGI, TQ. HUNGUND, DIST. BAGALKOTE. 3. SRI. CHANDRASHEKHAR S/O BASAPPA KOTI AGE. 29 YEARS, OCC. AGRICULTURE, R/O. KAMATAGI, TQ. HUNGUND, DIST. BAGALKOTE. 4. SRI. NINGAPPA S/O RAMAPPA ALGUNDI AGE. 49 YEARS, OCC. AGRICULTURE, R/O. KAMATAGI, TQ. HUNGUND, DIST. BAGALKOTE. …RESPONDENTS (BY SRI. CHANDRASHEKHAR R HIREMATH, ADV FOR R1 TO R3 SRI. S.B. HEBBALLI, ADV FOR R4) RFA FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.08.2018 PASSED IN O.S.NO.34/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUNGUND, DISMISSING THE SUIT FILED FOR PARTITION, SEPARATE POSSESSION, DECLARATION AND PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) The Plaintiffs in O.S.No.34/2014, on the file of Senior Civil Judge, Hunagund, preferred this appeal against judgment and decree dated 29.08.2018 passed in the said case. 2. Brief facts of the case of both the parties before the trial Court are as under: The Plaintiffs contend that, one Basappa was the husband of plaintiff No.2, father of plaintiff No.1 and defendant Nos.1 to 3. He was the propositus of the family. Plaintiffs and Defendants No.1 to 3 had an ancestral property at Bennur village. It was acquired by the Government and compensation was received by deceased Basappa. The said Basappa purchased suit property in the name of defendant Nos.1 to 3 out of the said compensation amount. Hence, suit property is ancestral - 4 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 joint family property. Plaintiffs have legitimate share in the said property. Defendant No.4 was in close contact with deceased Basappa and he got created some false documents as if defendant Nos.1 to 3 executed said document in his favour. On the basis of said document, defendant No.4 filed suit for specific performance of contract in OS No.43/2012 on the file of Senior Civil Judge, Hungund and obtained a decree. During pendency of this appeal, respondent Nos.1 to 3 challenged the said decree in RA No.47/2014 before the District and Sessions Judge Court, Bagalkot. Inspite of stay granted by the District Court, defendant No.4 suppressing the said fact filed execution case, got appointed Court Commissioner and obtained the sale deed. The said sale deed does not bind the rights of the plaintiffs. Plaintiffs are entitled for 1/5th share in the suit schedule property. 3. Plaintiffs No.1 and 2 being members of joint family are entitled for a share in the suit schedule - 5 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 property. Plaintiffs were not parties to the sale deed executed in favour of the defendant No.4 and hence it does not bind the rights of the plaintiffs. 4. Defendant Nos.1 and 2 have not filed written statement. Defendant No.3 contends that his father Basappa was addicted to bad vices. An ancestral property was acquired by the Government, which was situated at Bennur village. Out of the said compensation amount suit property was purchased. It was the only property belonging to the family. Defendant No.4 with threat and coercion got executed the document. At that time, defendant No.3 was minor. Hence, said agreement was void. 5. Defendant No.3 further submitted that sale deed got executed in favour of defendant No.4 through process of the Court is illegal and void. Defendant No.3 is entitled to 1/5th share in the said property, since it is joint family property. With these reasons defendant No.3 prayed for following reliefs. - 6 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 a) The Hon’ble Court be please to declare that, the sale deed executed by Court Commissioner in favour of defendant No.4 in Ex.No.14/2014 on the file of this Hon’ble Court dated 29.09.2014 is not binding on the share of defendant No.3. b) To declare that, the agreement dated 29.05.2010 pertaining to suit property void against the defendant No.3 as he was minor. c) A decree for partition be granted in favour of defendant No.3 awarding his 1/5th share in the suit schedule property. d) Any other relief as deemed fit and proper be granted. 6. Defendant No.4 contended that defendant Nos.1 to 3 were absolute owners of suit property. They intended to sell the same. Defendant No.4 proposed to purchase the same for Rs.7,83,000/-. Defendant Nos.1 to 3 agreed to sell the same, have executed agreement of sale. They failed to execute the sale deed. Hence, defendant No.4 filed suit in OS No.43/2012. After contest, - 7 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 it was decreed. Defendant No.4 filed execution petition and through process of the Court got executed sale deed. Plaintiffs and defendant Nos.1 to 3 have no right, title or interest over the suit property. It is collusive suit between them to defraud the interest of the defendant No.4. Hence, prayed to dismiss the suit. After filing of counter claim by defendant No.3, defendant No.4 filed additional written statement with similar contentions. 7. From the rival contention of the parties, trial Court framed the following issues and additional issues:- ISSUES 1. Whether the plaintiffs prove that, suit properties are the ancestral and jointly family properties? 2. Whether plaintiffs are entitled for 1/5th share as prayed for? 3. Whether the defendant no.4 proves that, there was a agreement in respect of suit properties in between the defendant no.1 to 3 & 4 on Dtd.29- 05-2010? 4. Whether the defendant no.4 proves that, suit of the plaintiff is not maintainable as per W.S para no.3? 5. What order or decree? ADDITIONAL ISSUES 1. Whether the defendant no.3 proves that the sale deed dated 29.09.2014 executed in respect of suit property is not binding on his share? - 8 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 8. The Plaintiffs to prove their case examined PW- 1 to PW-3 and got marked Exs.P-1 to P-10. The defendants examined DWs-1 and 2 and marked Exs.D-1 to D-5. The learned trial Judge, after hearing both the parties, by impugned judgment dismissed the suit. 9. Learned counsel for the plaintiffs would submit that there is no dispute regarding genealogy of the family as well as the suit schedule property was purchased out of the joint family nucleus in the name of defendants No.1 to 3 by late Basappa. After the death of Basappa, plaintiffs and defendant Nos.1 to 3 are the members of joint family, each entitled for 1/5th share in the suit property. The Plaintiffs were not parties to the agreement of sale. Therefore, the said agreement does not bind the rights of plaintiffs in respect of their share in the suit schedule property. Defendants Nos. 1 to 3 were not absolute owners of suit property and had no right to sell the same. - 9 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 Trial Court has not considered the same and erroneously dismissed the suit. 10. Learned counsel for the appellant, further contends that, appellants have filed application in I.A.No.1/2025 under Order 41 Rule 27 of Code of Civil Procedure, 1908 (for short ‘CPC’) seeking permission to produce additional evidence. Along with the said application, they have produced copy of the award passed by the Special Land Acquisition Officer, and a copy of the sale deed in respect of suit schedule property which indicates that, from the compensation amount received from the acquisition of the land by the Government, the said property was purchased in the name of the defendants No.1 to 3 when they were minors. These documents are material documents which throw light on the contention of the appellant. Therefore, prayed to allow the said application and permit the appellants to lead additional evidence. - 10 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 11. Learned counsel for respondent Nos.1 to 3 would submit that relationship between the parties, as well as the contention of the plaintiffs that, the suit properties are the joint family properties, are not in dispute. Respondents No.1 to 3 have no objections for decreeing the suit. Defendant No.4 obtained the agreement of sale by playing fraud on defendants No.1 to 3 and one of the defendants was minor at the time of alleged agreement of sale and hence, it was void agreement and not enforceable. Therefore, the alleged agreement of sale executed in favour of defendant No.4 is not valid and legal. With these reasons prayed to allow the appeal. 12. Learned counsel for defendant No.4 submitted that, it is collusive suit between plaintiffs and defendant Nos.1 to 3. After decreeing the suit in O.S.No.43/2012, the plaintiffs filed this suit with an intention to defeat the rights of defendant No.4. O.S.No.43/2012 was decreed by the trial Court and it was challenged by defendants No.1 to 3 herein, before the District Court, Bagalkot in RA - 11 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 No.47/2014 and the said appeal was also dismissed during pendency of this appeal. Defendant No.4 filed execution petition No.14/2014 and got executed the sale deed through process of the Court. The Plaintiffs as well as defendants, utterly failed to establish that suit schedule property was the joint family property and purchased out of the sale proceeds of ancestral property. The submission of the plaintiffs that, from the compensation received by the father of appellant No.1, from the Government, for acquisition of land, the said property was purchased, was not at all pleaded by the plaintiffs. They cannot make out the new case during the appeal. No reasons are assigned in the affidavit filed in support of I.A.No.1/2025 seeking permission to lead additional evidence as to why these documents were not placed on record or no such contention was taken during the pendency of the suit. Therefore, the contention of the plaintiffs in this regard is not tenable. With these reasons, prayed to dismiss the appeal. - 12 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 13. Following points emerges for our determination: a) Whether the learned trial Judge is justified in not holding that suit property is joint family property? b) Whether appellant be permitted to produce additional evidence? c) What order? 14. Our findings on the above points in the negative for the following reasons: It is not in dispute that defendant No.4 filed suit OS No.43/2012 for the relief of specific performance of contract against defendant Nos.1 to 3 herein. It is also undisputed that it was decreed. Respondent Nos.1 to 3 herein have filed RA No.47/2014 on the file of the District Court, Bagalkot. During pendency of this appeal, said RA No.47/2014 was dismissed. Respondent No.4 filed Execution Petition No.14/2014 and through process of the Court got executed sale deed. Defendant No.3 herein was a party to the suit and appeal. Defendant No.3 herein - 13 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 contested both the suit and appeal. The suit was decreed and appeal was dismissed. 15. Respondent No.3 herein was defendant as well as respondent in both OS No.43/2012 and RA No.47/2014. Hence, judgment and order passed in both the cases are binding on respondent No.3. Respondent No.3 cannot make counter claim to set aside the said judgment, in the present suit. Hence, no need to consider the said facts in the present appeal. The contentions of the defendant No.3 herein in respect of agreement of sale cannot be considered in this suit and appeal and that was considered in the suit filed by the defendant No.4 in OS No.43/2012. Moreover, defendant No.3 has not filed any appeal against the impugned judgment. 16. In the plaint, plaintiffs have contended that suit schedule property was purchased in the name of defendants No.1 to 3 by sale proceeds of movable and immovable properties belongs to joint family. The said pleadings are very vague and no particulars were - 14 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 furnished in the pleading regarding sale of the ancestral property. The Appellants produced RTC of the property bearing Sy.No.56/1. Admittedly, the said RTC stands in the name of defendant Nos.1 to 3. No other documents are placed on record to show that the said property was acquired by sale proceeds of ancestral property belonging to Basappa. Except self serving statement of PW-1, there are no other documents placed on record, before the trial Court to prove that suit schedule property was ancestral and joint family property. Only on the basis of admission of defendant Nos.1 to 3, it cannot be held that said property is joint family property. Defendants No.1 to 3 have not approached the Court with clean hands. They agreed to sell the suit property in favour of defendant No.4 and executed agreement of sale and received earnest money. They told to defendants while executing agreement of sale that they were absolute owners. Now, they are contending that it is joint family property. If it were joint family property, then why they executed agreement of sale and received earnest money behind - 15 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 back of the plaintiffs? Hence, their contentions are not believable. 17. It is pertinent to note that, defendant No.4 herein, filed a suit in O.S.No.43/2012 before the Senior Civil Judge Court, Hungund on 30.09.2012. The said suit was decreed after contest on 29.10.2013. Thereafter, the present suit was filed on 23.05.2014. Defendant No.3 in this suit admits the contentions of the plaintiffs and defendant Nos.2 and 3 in his written statement. These facts indicate that defendants Nos.1 to 3 herein being unsuccessful in O.S.No.43/2012 appears to be instigated the plaintiffs to file the suit to defeat the rights of defendant No.4. Therefore, it is not bonafide litigation. 18. The Plaintiffs/appellants have utterly failed to establish and prove that suit property is joint family property. There are no materials to prove the same. 19. The plaintiffs have filed I.A.No.1/2025 seeking permission to produce the additional evidence. The - 16 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 contention of the plaintiffs that, from the compensation awarded for acquisition of ancestral property belonging to late Basappa, suit land was purchased in the name of defendants No.1 to 3. Along with I.A.No.1/2025, the plaintiffs have produced zerox copy of the award passed by the Special Land Acquisition Officer and the sale deed. Later on, along with a memo certified copy of the sale deed was produced by the plaintiffs. The said documents i.e., the sale deed indicates that, out of compensation amount received from the Government for acquisition of the land, the suit property was purchased in the name of defendants No.1 to 3. 20. The recital also, does not show that, the property acquired by the Government was an ancestral property of Basappa. No other records are produced in respect of said land to show that, it was an ancestral property. Under these circumstances, the Court cannot assume and presume that land acquired was an ancestral property. - 17 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 21. Moreover, no sufficient reasons are assigned for non-production of these documents before the trial Court. Under Order 41 Rule 27 of CPC, if, parties intend to produce the documents at the Appellate Court, he must assign justifiable reasons for its non-production before the trial Court. The party cannot be permitted to patch-up lapses and fill up lacunae of his case by the production of additional documents, at the appellate stage. 22. The Hon’ble Apex Court in the below mentioned cases has held as under: 1) In the case of N. Kamalam (dead) and another Vs. Ayyasamy and another reported in 2001 (7) SCC 503 held that: “Incidentally, the provisions of Order 41 Rule 27 has 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 - 18 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 the purpose of pronouncement of judgment in a particular way”. 2) In the case of Sanjay Kumar Singh Vs. State of Jharkhand, reported in (2022) 7 SCC 247 has held that: “ It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in Order 41 Rule 27 CPC are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.” - 19 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 3) In the case of A.Andisamy Chettiar Vs. A.Subburaj Chettiar, reported in (2015) 17 SCC 713, in paragraph Nos.12 and 16 has held that: 12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ex.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition, i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not. 16. In Union of India v. Ibrahim Uddin this Court has held as under: (SCC p. 171, para 49) “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any - 20 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.” The principles of law laid down in the aforesaid judgments are applicable to the facts of the case. 23. The learned trial Judge in detail considered the contention of both the parties and held that, the plaintiffs were unable to establish and prove that suit schedule property was the ancestral and joint family property and there are no materials to hold that, said view of the learned trial Judge is erroneous. Therefore, we answer the - 21 - NC: 2025:KHC-D:656-DB RFA No. 100101 of 2019 above points No.1 & 2 in the negative and proceed to pass the following: ORDER The Appeal is dismissed with costs. The Judgment and decree passed in O.S.No.34/2014 dated 29.08.2018 by the learned Senior Civil Judge, Hungund is confirmed. Application in I.A.No.1/2025 filed by the appellant under Order XLI Rule 27 of Code of Civil Procedure, 1908 is hereby rejected. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE BVK CT: BSB List No.: 1 Sl No.: 2