- 1 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100571 OF 2023 (INJ-) BETWEEN: 1. SRI. SAHADEVA S/O. VEERAPPA @ KAVALURA, AGED ABOUT 48 YEARS, OCC: BUSINESS, R/O. MANVIPLOT MULGUND ROAD, TQ: DIST: GADAG. 2. SMT. PREMA W/O. SHEKHARAPPA KAVALURA @ BANDI, AGED ABOUT 55 YEARS, OCC: HOUSEHOLD, R/O. ADYAPAKA NAGARA, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. 3. SRI. RAGHAVENDRA S/O. SHEKHARAPPA KAVALUR @ BANDI, AGE: 33 YEARS, OCC: HOUSEHOLD, R/O. ADYAPAKA NAGARA, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. 4. SRI. MANJUNATHA S/O. SHEKHARAPPA KAVALAURA @ BANDI, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O. ADYAPAKA NAGARA, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. 5. SRI. RAMESH S/O. SHEKHARAPPA KAVALURA @ BANDI, AGE: 31 YEARS, OCC: HOUSEHOLD, R/O. ADYAPAKA NAGARA, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 6. SRI. GURURAJA S/O. SHEKHARAPPA KAVALURA @ BANDI, AGE: 26 YEARS, OCC: HOUSEHOLD, R/O. ADYAPAKA NAGARA, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. …APPELLANTS (BY SRI. SHANKAR S. BHAT, ADVOCATE) AND: 1. SRI. YALLAPPAGOUDA S/O. GURUNAGOUDA HIREGOUDRA, AGE: 48 YEARS, OCC: DRIVER OF JILLA PANCHAYATH, R/O. GADAG, TQ: DIST: GADAG-58230. 2. SRI. SHEKHARAPPA S/O. VEERAPPA KAVALURA @ BANDI, AGE: 63 YEARS, OCC: RETIRED EMPLOYEE, R/O. GADAG, TQ: DIST: GADAG-58025. …RESPONDENTS (BY SRI. ANIL KALE, ADVOCATE FOR R1; R2-SERVED) THIS REGULAT SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 09.08.2021 PASSED IN O.S. NO.37/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS COURT AND ASIDE THE JUDGMENT AND DECREE DATED 06.04.2023 PASSED IN R.A.NO.80/2021 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, GADAG BY ALLOWING THIS APPEAL AND ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 ORAL JUDGMENT 1. This appeal is preferred by the plaintiffs challenging the judgment and decree dated 06.04.2023 in R.A.No.80/2021 on the file of the Additional Senior Civil Judge, Gadag1 dismissing the appeal and confirming the judgment and decree dated 09.08.2021 in O.S.No.37/2013 on the file of the Principal Civil Judge, Gadag2 dismissing the suit of the plaintiffs. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The facts in nutshell, for the purpose of adjudication of this appeal, are that the plaintiff No.1 is brother of defendant No.2. Plaintiffs 2 to 6 are the children of defendant No.2. It is further averred in the plaint that the defendant No.2 has availed loan from Karnataka State Finance Corporation (for short “KSFC”) and has mortgaged the suit schedule property in favour of KSFC. It is also 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 stated that the defendant No.2 has executed gift deed dated 21.04.2012 in favour of plaintiff No.1. 4. It is also averred in the plaint that defendant No.2 was owner of the property as per the partition taken place in the family of defendant No.2 and plaintiff No.1 and thereafter, as stated above, defendant No.2 has executed registered gift deed in favour of plaintiff No.1. It is contended by the plaintiffs that the defendant No.2 has sold the suit property in favour of one Indirabai as per registered sale deed dated 03.08.1988 and thereafter Indirabai had sold the suit schedule property in favour of defendant No.1 as per registered sale deed dated 11.12.2006. It is further averred in the plaint that as the suit property was mortgaged in favour of KSFC and the plaintiff No.1 had repaid the entire loan amount in favour of KSFC, the mortgage deed was redeemed. Therefore, it is contended by the plaintiff No.1 that as the plaintiff No.1 had cleared the loan due to KSFC and had taken possession of the suit property and therefore, the - 5 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 defendant No.1 has no right in respect of the suit schedule property and accordingly, filed O.S.No.37/2013 seeking relief of permanent injunction. 5. After service of notice, defendant No.2 did not contest the matter and suit came to be dismissed as against the defendant No.2. Defendant No.1 has filed detailed written statement contending that defendant No.2, for his family necessity, sold the suit property in favour of Indirabai and in turn defendant No.1 has purchased the same from said Indirabai for valuable consideration and accordingly, defendant No.1 sought for dismissal of the suit. 6. The Trial Court based on the pleadings on record, has framed issues and additional issues for its consideration. In order to establish their case, the plaintiffs have examined two witnesses as PW1 and PW2 and produced 17 documents and same were marked as Exs.P.1 to P.17. The defendant No.1 was examined as DW1 and got marked one document as Ex.D.1. - 6 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 7. The Trial Court after considering the material on record, by its judgment and decree dated 09.08.2021 dismissed the suit and feeling aggrieved by the same, the plaintiffs have preferred R.A.No.80/2021 on the file of the First Appellate Court and same was resisted by the defendant No.1. The First Appellate Court after re- appreciating the material on record, by its judgment and decree dated 06.04.2023, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.37/2013. Feeling aggrieved by the same, the plaintiffs have preferred this Regular Second Appeal. 8. This Court vide order dated 28.02.2025 has formulated the following substantial questions of law: i) Whether the finding recorded by the Courts below is contrary to Section 29 of the KSFC Act? ii) Whether the finding recorded on Issue No.1 and 2 in O.S.No.37/2013 requires interference under Section 100 of CPC? - 7 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 iii) Whether the First Appellate Court has committed an error in rejecting the application filed under Order XLI Rule 27 of CPC? 9. I have heard Sri.Shankar S Bhat, learned counsel appearing for the appellants and Sri.Anil Kale, learned counsel appearing for the respondent No.1. 10. Learned counsel appearing for the appellant contended that the plaintiff No.1 got the suit schedule property as per the gift deed dated 21.04.2012 executed by defendant No.2 in favour of plaintiff No.1 and therefore, as the plaintiff No.1 is owner of the suit schedule property, the defendant No.1 has no right or title in respect of the suit schedule property. It is also contended by the learned counsel appearing for the appellants that the defendant No.1 got the suit schedule property through partition and thereafter as the property was gifted by defendant No.2 in favour of plaintiff No.1 on 21.04.2012 and therefore, the finding recorded by both the Courts below requires interference in this appeal. - 8 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 11. It is also contended by the learned counsel appearing for the appellants that the Appellant No.1 filed I.A.No.4 under Order XLI Rule 27 read with Section 151 of CPC and sought to produce certain documents before the First Appellate Court to establish his case and same was not considered by the First Appellate Court in a manner known to law. Therefore, it is contended by the learned counsel appearing for the appellants that the First Appellate Court has committed an error in re-appreciating the material on record and therefore, sought for interference of this Court. 12. Per contra, Sri. Anil Kale, learned counsel appearing for respondent No.1 submitted that defendant No.1 had purchased the suit property from his vendor- Indirabai as per the Registered sale deed dated 11.12.2006 and defendant No.1 was put in possession of the suit schedule property. The defendant No.1 had executed gift deed in favour of his children in respect of the suit schedule property and by taking note of the said - 9 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 aspect of the matter, he contended that, no interference is called for in this appeal. It is also contended by the learned counsel appearing for the respondents that as both the Courts below have concurrently held against the plaintiff No.1, same requires to be confirmed by this Court in this appeal. Hence, sought for dismissal of the appeal. 13. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below and perused the original records. 14. It is the contention of the learned counsel appearing for the appellants that the plaintiff No.1 has filed I.A.No.4 under Order XLI Rule 27 read with Section 151 of CPC and same was rejected by the First Appellate Court without considering the nature of the suit filed by the plaintiffs. Perusal of the records would indicate that plaintiff No.1 has repaid the loan availed from KSFC and KSFC in turn by Ex.P17, released the charge over the suit property in favour of plaintiff No.1. Taking into - 10 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 consideration the aforementioned aspect, though both the Courts below have referred to the gift deed dated 21.04.2012, however the said document was not available before the Trial Court and same was produced before the First Appellate Court by way of application under Order XLI Rule 27 of CPC and without accepting the above said document by allowing I.A.No.4, the First Appellate Court has arrived at a conclusion that the said gift deed cannot be a basis for deciding the dispute between the parties. 15. I have also noticed from the finding recorded by the Trial Court that the Trial Court has misplaced its finding with regard to the fact that the plaintiff has averred in the plaint to substantiate his case based on the gift deed dated 21.04.2012. Though the said document was produced before the First Appellate Court, the First Appellate Court has not considered by looking into the scope and ambit of Order XLI Rule 27 of CPC. As the gift deed dated 21.04.2012 has not come to the light of both the Courts below despite both the plaintiffs and defendants - 11 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 have made submissions based upon the said document and same was not considered by both the Courts below and therefore, I am of the view that, without considering the said document on record, both the Courts below have committed an error in dismissing the suit of the plaintiffs. It is argued by the learned counsel for the respondent that defendant No.1 had executed gift deed in favour of his children in respect of the schedule properties. The respondent has filed a memo and sought to produce gift deed dated 24.05.2023 said to have been executed by defendant No.1 in favour of his children. Taking into consideration the entire aspect of the matter, I am of the view that this is a fit case to remand the matter to the Trial Court to re-consider the entire case on merit and pass judgment in accordance with law. The substantial question of law at No.(iii) favours the plaintiffs and no further discussion is required with regard to remaining substantial question of law, as the matter is being remitted to Trial Court. In view of the above, I pass the following: - 12 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 ORDER i) The appeal is allowed. ii) Judgment and decree dated 06.04.2023 in R.A.No.80/2021 passed by the Additional Senior Civil Judge, Gadag and judgment and decree dated 09.08.2021 in O.S.No.37/2013 passed by the Principal Civil Judge, Gadag are hereby set aside. iii) The matter is remitted to the Trial Court for fresh consideration in the light of the observation made above. It is open for both the sides to adduce oral and documentary evidence before the Trial Court to establish their case based on pleadings. iv) In order to avoid further delay in the matter, the parties are directed to appear before the Trial Court on 09.06.2025 at 11.00 a.m. without waiting for further notice from the Trial Court and on their appearance, the Trial Court is requested to dispose of the suit expeditiously. v) It is made clear that the finding recorded by this Court shall not influence the Trial Court - 13 - NC: 2025:KHC-D:6814 RSA No. 100571 of 2023 while considering the matter on merits and all the contentions of the parties are kept open. Sd/- ( E.S.INDIRESH) JUDGE YAN CT:MCK List No.: 1 Sl No.: 32