- 1 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 113 OF 2013 (INJ) BETWEEN: MADAIAH S/O ARASAIAH AGED ABOUT 65 YEARS R/AT PUTTAMMA VATARA 5TH WARD, BEERANAHALLI HASSAN 573 201 …APPELLANT (BY SRI. BASAVARAJ S., SR. COUNSEL FOR SRI. L. SRINIVAS BABU, ADVOCATE) AND: 1. SIDDAIAH S/O SIDDAIAH OCC: RETIRED KSRTC DRIVER R/AT No.545, SJP ROAD, K R PURAM HASSAN 573 201 SINCE DEAD BY LRS 1(A) S.J. SHREYAS S/O LATE SIDDAIAH AGED ABOUT 34 YEARS KUVEMPUNAGAR NEAR SUB-REGISTRAR OFFICE HASSAN TALUK HASSAN – 573 201 Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 1(B) JANAKI W/O LATE SIDDAIAH AGED ABOUT 52 YEARS R/AT No.545, SJP ROAD, K R PURAM HASSAN 573 201 1(C) DIVAKAR H.S. S/O LATE SIDDAIAH AGED ABOUT 34 YEARS R/AT No.545, SJP ROAD, K R PURAM HASSAN 573 201 1(D) GOWTHAM S S/O LATE SIDDAIAH AGED ABOUT 32 YEARS R/AT No.545, SJP ROAD, K R PURAM HASSAN 573 201 …RESPONDENTS [BY SMT. VAISHALI HEGDE, ADVOCATE FOR R1(B TO D) SRI. JAGADEESH H.T., ADVOCATE FOR R1(A)] THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 30.10.2012 PASSED IN R.A.NO.200/2011 ON THE FILE OF ADDITIONAL DISTRICT JUDGE AND PRESIDING OFFICER, FAST TRACK COURT-I, HASSAN, ALLOWING THE APPEAL AND DISMISSING THE JUDGEMENT AND DECREE DTD 18.4.2006 PASSED IN OS.NO.402/1997 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC, II COURT, HASSAN. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 30.10.2012 passed in R.A.No.200/2011 by the Presiding Officer, Fast Track Court -1, Hassan. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents are the legal representatives of the defendant. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant seeking relief of a declaration and a perpetual injunction. It is the case of the plaintiff that the defendant is the husband of the elder sister of the plaintiff. The suit schedule property is under the right and possession of the plaintiff and khata is standing in the name of the plaintiff. Except the plaintiff, - 4 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 either the defendant or anybody has no right, title or interest over the suit schedule property. About three months back, a misunderstanding arose between the plaintiff and defendant and in this connection, the defendant told the plaintiff that he was going to cause trouble to him and thereafter he filed a caveat petition before the Court regarding the suit schedule property and kept quiet. After 8 days of filing the caveat petition, the defendant is trying to mislead the tenants of the suit schedule property under the plaintiff by stating that the plaintiff is not the owner of the suit schedule property and to hand over the rents of the house to him. The defendant attempted to trespass into the suit schedule property and to remove the roof-tiles of the house on the suit schedule property. Despite advice the defendant is trying to interfere with the peaceful possession and enjoyment of the suit schedule property. Thus, a cause of action arose for the plaintiff to file a suit for declaration of title and possession. Accordingly, prays to decree the suit. - 5 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 4. The defendant filed a written statement contending that the wife of the plaintiff, by name Smt. Hemalata is a mortgagee in possession of the house situated near the house of the defendant and she used to come to the house of the defendant very often. And she requested the defendant to give some portion of the house property. The defendant refused to give a portion of the property. Approximately, 3 months prior to filing the suit, the plaintiff lodged a complaint with the police against the wife of the defendant. 5. It is contended that Hassan Taluk Tahasildar granted a big house site vide order dated 10.01.1956 to an extent of 277 sq. yards at SJP Park Road, Hassan and later the defendant brought 60x55 sq. ft. in a partition orally effected between him and his siblings about 30 years back and khata stood in the name of the defendant and it is contended that the defendant made 3 portions and mortgaged two portions to one Smt. Bhagyamma and - 6 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 one Sri. Varadaraj and both of them are enjoying the property as a mortgagee. The plaintiff to evict all these persons colluding with the wife of the defendant, who is none other than the sister of the plaintiff, got filed the present suit. It is contended that there is no cause of action to file the suit. The cause of action arose in the plaint is imaginary and notice is delivered to the plaintiff on the suit schedule property and hence prays to dismiss the suit. 6. The trial Court, based on the pleadings of the parties, framed the issues and additional issues which are as under: ISSUES 1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of filling of the suit? 2. Whether the plaintiff further proves the alleged interference by the defendant? 3. Whether the plaintiff is entitled for the relief of permanent injunction as sought? 4. What order or decree? - 7 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 Additional issue: 1. Whether the plaintiff proves that he is the absolute owner of the suit property? 7. The plaintiff, to substantiate his case, examined himself as PW-1, examined one witness as PW-2 and marked 66 documents as Ex.P.1 to Ex.P.66. The defendant examined himself as DW-1, examined two witnesses as DW-2 and DW-3 and marked 59 documents as Ex.D.1 to Ex.D.59. The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 3 and additional issue No.1 in the affirmative and issue No.4 as per final order. 8. The suit of the plaintiff was decreed with cost vide judgment dated 18.04.2006. It was declared that the plaintiff is the absolute owner of the suit schedule property and a permanent injunction was granted in favour of the plaintiff, restraining the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the - 8 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 suit schedule property. The defendant, aggrieved by the judgment and decree passed in O.S.No.402/1997 preferred an appeal in old R.A.No.75/2006 new R.A.No.200/2011 on the file of the learned Additional District Judge and the Presiding Officer, Fast Track Court – I, Hassan. 9. The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:- 1. Whether the appellant/defendant proves that the Trial Court has committed error in decreeing the suit even though the title of the plaintiff has not been proved on evidentiary valued document? 2. Whether the appellant/defendant proves that, the Trial Court has committed error in decreeing the suit by taking weakness of the defendant, which is opposed to the cordinal principle? 3. Whether defendant proves there is a need for interference with the judgment of the Trial Court? 4. If so, what is an order? 10. The first appellate Court, after reassessing the verbal and documentary evidence, answered points No.1 - 9 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 to 3 in the affirmative and point No.4 as per the final order. The appeal was allowed vide judgment dated 30.10.2012. The judgment and decree passed in O.S.No.402/1997 dated 18.04.2006, was set aside. The suit of the plaintiff for relief of a declaration of title and relief of an injunction was dismissed. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.200/2011 (old R.A.No.75/2006) filed this Regular Second Appeal. 11. Heard the arguments of Sri. S. Basavaraj, learned Senior Counsel for the plaintiff and Smt. Vaishali Hegde, learned counsel for the defendant. 12. Learned Senior Counsel for the plaintiff submits that the first appellate Court has dismissed the suit solely on the ground that the plaintiff has not produced the original title deeds. He submits that original title deeds are deposited in the Bank. He submits that he filed a memo along with the documents, wherein he obtained copies of - 10 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 the original title deeds from the Bank. He also submits that he has filed an application for summoning the documents from the Bank. He submits that said site was granted under an undated Niveshana Hakku Patra. Based on the Niveshana Hakku Patra, the plaintiff became the absolute owner of the suit schedule property. Thus, the first appellate Court committed an error in passing the impugned judgment. Accordingly, on these grounds prays to allow the appeal. 13. Per contra, learned counsel Smt. Vaishali Hegde submits that the plaintiff has not produced original Hakku Patra to show that the suit schedule property was granted in favour of the plaintiff. She submits that the plaintiff has not pleaded in the plaint that the said documents were deposited with the Bank. She submits that in view of the non-production of the title deeds, the first appellate Court was justified in dismissing the suit of the plaintiff. She submits that the suit filed by the plaintiff is one for a declaration of title and in the absence of a title deed, the - 11 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 Court cannot decree the suit for a declaration of the title. Further, she also contends that revenue records are not the title deeds. The first appellate Court, after considering the entire evidence on record, has rightly dismissed the suit of the plaintiff. Hence, on these grounds, she prays to dismiss the appeal. 14. This Court, vide order dated 27.01.2020, framed the following Substantial Questions of Law: “i) Whether the first appellate Court has committed a mistake in not appointing the Commissioner for local inspection of the suit property, more so when the schedule to suit disclosed that the house existed on the suit property and the boundaries were clearly delineated. ii) Whether the First Appellate Court was justified in reversing the judgment and decree of the trial Court.” Additional Substantial Question of Law was framed on 23.08.2024 i) Whether the First Appellate Court fails to consider that the suit schedule property was allotted to the plaintiff under the resolution passed by the Municipality followed by the Hakku Pathra and also confirmation order? ii) What order or decree? - 12 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 15. Perused the records and considered the submissions of the learned counsel for the parties. Reg: Substantial Questions of Law 1 and 2: Both the Substantial Questions of Law No.1 and 2 are interlinked and taken together for common discussion to avoid the repetition of facts. 16. The plaintiff, to substantiate his case, examined himself as PW-1 and he reiterated the plaint averments in the examination-in-chief. To prove his ownership over the suit schedule property, the plaintiff has produced 66 documents. Ex.P.1 is the notice issued by the Municipality, i.e., the City Municipal Council, Hassan, dated 11.07.1977, wherein a notice was issued to the plaintiff to show cause regarding the construction with reference to any approval by the municipal authority. From the perusal of the notice, it does not disclose the property number. Ex.P.2 is the resolution passed by the municipality regarding the grant - 13 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 of the sites in favour of the allottees, Ex.P.3 is the layout plan sketch, Ex.P.4 is the endorsement issued by the municipality, Ex.P.5 is the endorsement and also produced other documents marked as Ex.P.6 to Ex.P.66. 17. To prove the possession over the suit schedule property, the plaintiff also examined a witness i.e., PW-2, who deposed that the plaintiff is the owner and in possession of the suit schedule property. 18. In rebuttal, defendant No.1 was examined as DW-1. He has denied the title of the plaintiff over the suit schedule property and claims that defendant is the owner in possession of the suit schedule property. To prove the defence of the defendant, he has produced documents, marked as Ex.D.1 to Ex.D.59 and also examined two witnesses as DW-2 and DW-3 who deposed that the defendant is the owner in possession of the suit schedule property. - 14 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 19. From the perusal of the entire evidence on record, the plaintiff claims to be the owner of the suit schedule property by a resolution passed by the Municipality as per Ex.P.2. The plaintiff has not produced any records, after passing of a resolution regarding the execution of title deed in favour of the plaintiff. The suit is one for a declaration of title, the burden is on the plaintiff to establish that the plaintiff is the owner of the suit schedule property. The plaintiff, except producing the resolution, passed by Municipality has not produced any other records to establish his title to the suit schedule property. 20. The plaintiff filed an application I.A.No.1/2020 for the production of an additional evidence. In support of an application, the plaintiff filed an affidavit stating that initially the suit in O.S.No.402/1997 was filed for permanent injunction and later on the prayer in the suit was amended and he sought a declaration of ownership over the suit schedule property. It is stated that in - 15 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 advertently, at the time of adducing the evidence, the documents produced at the time of filing suit for permanent injunction were only marked in the course of evidence and an important and relevant documents demonstrating his ownership were not marked. It is stated that, meanwhile, due to financial crisis, the plaintiff obtained a loan by mortgaging title documents of the suit schedule property at Hassan City Cooperative Society Ltd., Hassan in 2004 and all the original documents, including original Hakku Patra related to his ownership over the suit schedule property, were deposited with the Hassan City Cooperative Society Ltd., at Hassan. 21. It is stated that the suit in O.S.No.402/1997 was decreed. The first appellate Court reversed the judgment and decree passed by the trial Court and consequently, dismissed the suit of the plaintiff. It is stated that the original Hakku Patra was deposited with the Hassan City Cooperative Society Ltd., and he requested the Officials of the Hassan City Cooperative - 16 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 Society Ltd., to issue a certified copy of the Hakku Patra with respect to the suit schedule property and an endorsement was issued and the said endorsement is produced. The said endorsement issued by the Hassan City Cooperative Society Ltd., was not in custody of the plaintiff during the pendency of the suit. Hence, the plaintiff was unable to produce the said documents before the trial Court. It is stated that the said documents go to the root of the cause. Hence, prays to allow the application. 22. The suit was filed in 1997 and it is the case of the plaintiff that the plaintiff had obtained a loan from the Cooperative Society, in 2004, i.e., during the pendency of the suit. The plaintiff entered the witness box and no where in the evidence of the plaintiff it has been stated that the plaintiff has produced the original title deeds which are before the Hassan City Cooperative Society Ltd., and further, from the perusal of the Niveshana Hakku Patra it does not disclose the date as to when the Hakku - 17 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 Patra was issued. That itself creates a doubt in the mind of the Court regarding the genuineness of this document i.e., Hakku Patra. Further, though the Hassan Cooperative Society and Municipality have issued an endorsement, the said records were in the custody of the plaintiff. 23. The object of Order 41 Rule 27 of Code of Civil Procedure, 1908 (for short CPC) is not to fill up any lacuna, the Hon’ble Apex Court in the case of N. Kamalam (dead) and another Vs. Ayyasamy and Another reported in AIR 2001 SC 2802 held, in paragraph No.19, which reads 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 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: (AIR p. 1012) - 18 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 “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 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 clause (b) of sub-rule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision.” Further in Pramod Kumari Bhatia v. Om Prakash Bhatia [(1980) 1 SCC 412 : 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 - 19 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 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 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. 24. Admittedly, the plaintiff had an opportunity to produce the said documents before the trial Court. The plaintiff did not produce the said documents before the trial Court and the plaintiff made no attempt to produce the same before the first appellate Court. Hence, the plaintiff has filed an application for the production of - 20 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 additional documents only to fill up the lacuna in this case. As the first appellate Court has recorded a finding that the plaintiff did not produce the original title deed and instead produced a photocopy, as observed above. Even from a perusal of the Hakku Patra, there is no date as to when the Hakku Patra was issued, hence, it creates a doubt in the mind of the Court that whether the authorities have actually issued a Hakku Patra in favour of the plaintiff. Thus, the plaintiff failed to fulfil the requirements of Order 41 Rule 27 of the CPC . Considering the proposition laid down by the Hon’ble Apex Court in the case of N. Kamalam (supra) the plaintiff has failed to make out a ground to allow application I.A.No.1/2020. The application in I.A.No.1/2020 deserves to be rejected. 25. The plaintiff has also filed two applications today, i.e., I.A.No.1/2025 and I.A.No.2/2025 seeking to summon the Hassan City Cooperative Society Ltd., and City Municipal Council, Hassan to produce the documents mentioned in the applications in support of an applications, - 21 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 the plaintiff has filed an affidavit reiterating the averments made in the affidavit filed along with the application in I.A.No.1/2020. On the last date of hearing, the learned Senior Counsel for the plaintiff addressed the arguments. During the course of argument, this Court has put a query to the learned Senior Counsel whether the plaintiff has produced the original title records. The learned Senior Counsel had sought a time to produce the original records. Despite granting sufficient opportunity, the plaintiff did not produce the original title deeds and instead filed these applications for issuing summons to the Hassan City Cooperative Society Ltd., and the City Municipal Council, Hassan for the production of documents mentioned in the application. 26. Though, the first appellate Court has disposed of the appeal on 30.10.2012 dismissing the plaintiff’s suit the plaintiff being well aware that the suit was dismissed only on the ground that the plaintiff had not produced the original title deeds. The plaintiff did not take any steps - 22 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 until 2024 to summon the documents. The plaintiff had filed these applications only with the intention to protract the proceedings and for filling up the lacuna. Though the plaintiff has produced documents, i.e., Hakku Patra and a resolution passed by the municipality marked at Ex.P.2. From a perusal of the entire records, it appears that the plaintiff has failed to establish that the suit property was granted in favour of the plaintiff. Hence, the plaintiff has failed to establish i.e., be the absolute owner of the suit schedule property. Therefore, the question of issuing a summons to the Hassan Cooperative Society Ltd., for production of the documents does not arise. 27. As much water has already flown, the documents which are sought for/call for, are not relevant for the parties to decide the matter in dispute. Accordingly, I do not find any grounds to entertain I.A.Nos.1/2025 and 2/2025. Accordingly, I.A.No.1/2025 and 2/2025 are liable to be rejected. - 23 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 28. During the pendency of the appeal before the first appellate Court the defendant has filed an application under Order 26 Rule 9 of the CPC for the appointment of a Court Commissioner. The plaintiff himself has filed the objections to the said application. The first appellate Court rejected the said application on the ground that the Commissioner cannot be appointed to determine the possession of any party to the suit. If the application for the appointment of a Commissioner was to be allowed, it would have amended to virtually collecting the evidence. 29. It is well settled position that a Court Commissioner cannot be appointed to collect evidence and the parties have to establish their case by oral and documentary evidence. In the case on hand, the suit has been filed for declaration of permanent injunction as the first appellate Court has rightly rejected the application filed by the defendant for the appointment of the Court Commissioner. The first appellate Court has not committed any mistake in not appointing the Court Commissioner for - 24 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 local inspection of the suit property. There is no dispute regarding the identity or measurement of the suit schedule property arose. Hence, the question of appointing the Court Commissioner would not arise. As observed above, the plaintiff has filed a suit for declaration of title and permanent injunction. It is for the plaintiff to establish his ownership over the suit schedule property, by producing the title deeds. Admittedly, in the instant case, the plaintiff has not produced the title deeds to establish his ownership over the suit schedule property. In view of the above, I answer the Substantial Questions of Law 1 and 2 in the negative. Reg: Additional Substantial Question of Law: 30. As the plaintiff, except producing the resolution passed by the municipality, has not produced original Hakku Patra and also the confirmation order, the first appellate Court has rightly recorded the finding that the plaintiff has failed to produce the Hakku Patra, title deed - 25 - HC-KAR NC: 2025:KHC:26051 RSA No. 113 of 2013 and confirmation order and has rightly passed the impugned judgment. 31. In view of the above discussion, I answer additional Substantial Question of Law framed on 23.08.2024 in the negative. 32. Accordingly, I proceed to pass the following: ORDER (i) The Regular Second Appeal is dismissed. (ii) The judgment and decree dated 30.10.2012 passed in R.A.No.200/2011 (old R.A.No.75/2006) is hereby confirmed. (iii) The applications in, I.A.Nos.1/2020, 1/2025 and 2/2025 are rejected. In view of the dismissal of the appeal, I.A.No.1/2013 does not arise for consideration. Accordingly, I.A.No.1/2013 is disposed off. Sd/- (ASHOK S.KINAGI) JUDGE BVK; List No.: 1 Sl No.: 4