- 1 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO.5017 OF 2012 (PAR) BETWEEN: MAHADEVI W/O. DUNDAYYA HIREMATH AGE: 46 YEARS, OCC HOUSEHOLD, R/O. YAMAKANMARDI, REHABILITATION CENTRE-591245 TQ: HUKKERI, DIST: BELGAUM. …APPELLANT (BY SMT. PADMAJA TADAPATRI, ADVOCATE FOR SRI. K.L. PATIL, ADVOCATE) AND: GURUSIDDAYYA HIREMATH @ MATHAD SINCE DECEASED BY HIS LRS ALREADY ON RECORD 1. MAHALINGAYYA GURUSIDDAYYA HIREMATH @ MATHAD, 1A) SMT. RATNAVVA HIREMATH W/O. MAHALINGAYYA 308 KADASIDDESHWAR GALLI, KONNUR, GOKAK, BELAGAVI-591231. 2. SHRI SHANKARAYYA GURUSIDDAYYA HIREMATH @ MATHAD, AGE: 49 YEARS, OCC: AGRICULTURE, R/O. KURNI-591286, TQ: HUKKERI, DIST: BELAGAVI. CHANABASAPPA K KALLUR Digitally signed by CHANABASAPPA K KALLUR Date: 2025.09.09 10:54:21 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 3. SHRI MALLIKARJUN GURUSIDDAYYA HIREMATH @ MATHAD, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. KURNI-591286, TQ: HUKKERI, DIST: BELAGAVI. 4. SHRI ANAND GURUSIDDAYYA HIREMATH @ MATHAD, AGE: 43 YEARS, OCC: AGRICULTURE, R/O. KURNI-591286, TQ: HUKKERI, DIST: BELAGAVI. 5. SHIVANAND GURUSIDDAYYA HIREMATH @ MATHAD, AGE: 39 YEARS, OCC: AGRICULTURE, R/O. KURNI-591286, TQ: HUKKERI, DIST: BELAGAVI. 6. SMT. CHANDRAWWA W/O. BASAYYA HIREMATH @ MATHAD, AGE: 63 YEARS, OCC: HOUSEHOLD R/O. KURNI-591286, TQ: HUKKERI, DIST: BELGAUM. …RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, ADVOCATE FOR R1(A); NOTICE SERVED TO R3 TO R6) THIS RSA IS FILED U/S. 100 OF C.P.C., AGAINST THE JUDGMENT & DECREE DATED:23.08.2010 PASSED IN R.A.NO.20/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED:17.04.2009 AND THE DECREE PASSED IN OS NO.110/2008 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) SANKESHWAR, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA ) This appeal by the appellant is against the judgment and decree dated 17th April, 2009 passed in OS No.110 of 2008 by the Civil Judge (Jr.Dn.), Sankeshwar (for short “the trial Court”), which is confirmed by the Senior Civil Judge, Hukkeri at Hukkeri (for short “the appellate Court”) in RA No.20 of 2009, 23rd August 2010. Both the courts have dismissed the suit of plaintiff filed for partition and separate possession. 2. For the sake of convenience, the parties here in or referred to as per the rank and status before the trial court. 3. Facts in nutshell leading to this appeal are that the appellant herein filed suit for partition and separate possession claiming 1/6th share in property bearing No.200/1 situate at Kurni village, totally measuring 10 acre 13 guntas, out of which, southern half side i.e. 5 acre 6 guntas 8 anas, is the suit property. 4. Despite service of notice, defendants remained absent and placed ex-parte. To prove the case of the plaintiff, one witness was examined as PW1, and one document was marked - 4 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 as Exhibit P1. The trial Court has dismissed the suit of the plaintiff on the ground that the plaintiff has failed to explain as to the extent of property sold by the defendants 5 and 6 to defendant No.7. Therefore, due to insufficient pleading of the plaintiff, the plaintiff is not entitled for the relief. Feeling aggrieved by the judgment and decree passed by the trial court, the plaintiff preferred regular appeal before the appellate court. The same came to be dismissed. Being aggrieved by the judgment and decree passed by courts below, that plaintiff is before this court in this second appeal. 5. On 22nd June 2023, the learned Counsel for the appellant filed IA.II of 2023 under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure, seeking permission to produce record of rights of property bearing RS No.200/1 measuring 10 acre 13 guntas of Kurni village, Hukkeri Taluk, contending that she is an illiterate lady and recently when the case was posted for Final Hearing at that time, the Advocate who is appearing on her behalf before the court, called her and asked details of all the parties and also regarding a flow of title of property and to bring the documents to show that the properties - 5 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 or ancestral properties. Thereafter, she approached the Office of Tahsildar, Hukkeri and requested applied for certified copies of record of rights for the years 1970 to 1980. At that time, the names of her father and grandfather was forthcoming in the documents. Immediately, she handed over the same to her Advocate to file before the Court. She has further stated that she is the only sister and respondents 1 to 5 are her brothers and respondent No.6 is the wife of her paternal uncle-Basayya. During the lifetime of her father, all the brothers have divided the property between themselves, even without intimation to her father as also excluding her. She has produced the extracts in which her brothers had mutated their names behind her back, and when she asked for her share, they had postponed the same on one or the other reasons. She has stated that she has not filed these documents before the trial Court, which can easily establish that the suit properties are ancestral properties. It is further stated that defendants 1 to 5, taking undue advantage of the age of her father-Gurusiddhaiah, got entered their names in the revenue records behind her back. The respondent No.4 sold his share of 34½ guntas out of land RS No.200/1 to Mallayya S Hiremath on 26th May, 1999. The said Mallaiya sold the same to - 6 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 the husband of respondent No.6-Basayya on 26th February, 2002. Similarly, respondent No.5-Shivanand sold 19 guntas to the husband of sixth respondent-Basayya and further Shivanand sold 13 guntas to Balappa Babu Teli. After coming to know all these transactions, she approached her brothers to allot, her share, but the same was not acceded to. Hence, she was constrained to file the suit for partition and possession of her share of property. She has also stated that she has not produced these documents before the trial Court because of lack of knowledge and she being an illiterate lady, was unable to understand the importance of these documents. On all these grounds, it is sought to allow the application. 6. Learned Counsel for respondent No.2 has filed the statement of objections contending that it is sought to produce their record of rights at this belated stage. Further it is stated that the contents in the affidavit are false. The ingredients of Order XLI Rule 27 of Code of Civil Procedure are not attracted in the present case. There was no circumstance for the court below in refusing to admit the document sought to be produced. The documents, all along, were within the knowledge of the appellant - 7 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 and, as such the application is filed to drag on the matter and to harass the respondent. The matter is at the stage of second appeal and the documents sought to be produced are in the nature of public documents, which, all along, were in possession of the appellant. It is stated that the documents produced by the appellant are concocted and created suit their case. On all these grounds sought to reject the application. 7. In view of filing IA.II of 2023 under Order XLI Rule 27 of Code of Civil Procedure, this Court has framed additional substantial question of law as under: “Whether the appellant has made out a ground to allow the application IA.II of 2023 filed under Order XLI Rule 27 of the Code of Civil Procedure?” 8. The learned Counsel for the complainant would reiterate the averments and grounds made in the memorandum of appeal and also sought to allow the application filed under order XLI Rule 27 of Code of Civil Procedure. Further, she would submit that evidence placed before the trial Court, so also the revenue documents, are sufficient hold that the plaintiff has got 1/6th share over the suit property. There is no need to remand the - 8 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 matter to the trial Court for fresh disposal as the defendants have failed to file their written statement. On all these grounds, she sought to allow the appeal. 9. As against this, the learned counsel for respondent No.1 would submit that both the Courts have properly appreciated the evidence and record in accordance with law and facts. He would submit that after lapse of eleven years from the date of disposal of appeal, now the appellant has filed this Application and Order XLI Rule 27 of Code of Civil Procedure seeking to produce documents, which is not maintainable in law and hence sought for dismissal of the appeal. Alternatively, he would submit that if the matter is remanded back to the trial court, opportunity be given to the defendants to file their written statement. 10. I have examined the materials placed before me. The trial Court has dismissed the case of the plaintiff, though the plaintiff has adduced the evidence of PW1 and produced RTC as Exhibit P1. The trial Court has observed that the plaintiff failed to prove as to extent of property sold by defendants 5 and 6 to defendant No.7 and due to insufficient pleading, the plaintiff is not entitled for the relief. The appellate Court has also observed - 9 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 the same in its judgment. Now, the appellant has produced the revenue documents i.e. certified copy of RTC extract pertaining to the suit property assigning the reasons in her affidavit that she is an illiterate lady and she do not know about the production of documents, and only when her Advocate advised to bring these documents, she has obtained the same and handed over to her advocate. The defendants have not filed their written statement despite service of summons and are accordingly placed ex-parte. Before the appellate court, respondents 1 and 2 have appeared and respondents 3, 5 and 6 have been placed ex-parte. Before this Court, respondent No.2 and respondent No.1(a) have appeared through their Counsel and the remaining respondents 3 to 6 have remained absent and unrepresented. 11. Considering the reasons assigned in the affidavit in support of application IA.II of 2023 filed under Order XLI Rule 27 of Code of Civil Procedure, I am of the opinion that it is just proper to allow the application. Accordingly, the additional substantial question of law is answered in the affirmative. 12. Further, respondents 3 to 6 remain absent and presented. Respondent No.2 has filed his objection statement - 10 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 stating that the proposed documents produced along with the Application IA.II of 2023 are concocted and created and under the circumstances this court cannot mark these documents as Exhibits without providing an opportunity to other side to cross- examine PW1. All revenue records have got presumptive value under Section 133 of Karnataka Land Revenue Act, 1964. An opportunity has to be given to the other side to rebut the presumption regarding the revenue entries. I cannot accept the document without evidence. Considering the facts and circumstances of the case, it is just proper to remand the case to the trial Court to provide an opportunity to both the parties to adduce their evidence and also provide opportunity to the defendant to file their written statements, if any. Resultantly, I proceed to pass the following: O R D E R i) Appeal is allowed in part; ii) Application IA.II of 2023 filed by the appellant under Order XLI Rule 27 of Code of Civil Procedure, is allowed. The appellant is permitted - 11 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 to produce documents annexed to the said application; iii) The judgment and decree dated 17th April, 2009 passed in OS No.110 of 2008 by the Civil Judge (Jr.Dn.), Sankeshwar, which is confirmed by the Senior Civil Judge, Hukkeri at Hukkeri, in RA No.20 of 2009 dated , 23rd August 2010, is set aside; iv) The case remanded back to the trial Court with a direction to provide an opportunity to the defendants to file their written statement within 30 days from the date of their appearance. Thereafter, the trial court shall provide an opportunity to both the parties to adduce their evidence and thereafter, to dispose of the case in accordance law; v) Registry is directed to send the trial Court records along with the copy of this order along with the documents annexed with IA.II of 2023 filed under Order XLI Rule 27 of Code of Civil Procedure, to the concerned Court; - 12 - HC-KAR NC: 2025:KHC-D:11334 RSA No. 5017 of 2012 vi) The trial Court shall dispose of the case as expeditiously as possible and in any event, not later than six months from the date of appearance of the parties, as the matter is of the year 2008. Sd/- (G BASAVARAJA) JUDGE lnn Ct-cmu LIST NO.: 1 SL NO.: 66