- 1 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100134 OF 2019 (-) BETWEEN: 1. SHRI. BHAGAVANT M/O DROUPADI KURADE AGE: 60 YEARS, OCC: AGRICULTURE R/O. MUGALKHOD, TAL: RAIBAG DIST: BELAGAVI-591317 …APPELLANT (BY SRI. SANGAMESH S. GHULAPPANAVAR, ADV) AND: 1. SMT. AMMAWWA W/O DADU KURADE SINCE DECEASED BY HER LRS SMT. HOLEVVA W/O PANDU NIDAGUNDI AGE: 53 YEARS, OCC: AGRICULTURE, R/O. KUDACHI, TQ: RAIBAG, DIST: BELAGAVI-591311. 2. SMT. KARUNA W/O SHANMUKH KAMBLE AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O. BILLUR, TQ: ATHANI, DIST: BELAGAVI-591304. 3. SMT. REKHA W/O PRAKASH KAMBLE AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O. NARAWAD, TQ: MIRAJ, TQ: SANGLI, MAHARASHTRA STATE-416409. 4. SMT. MADUMATI W/O PURANDHAR KURADE AGE: 50 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, R/O. KAGAWAD TQ: ATHANI, DIST: BELAGAVI-591223. 5. SHRI. SACHIN PURANDHAR KURADE AGE: 40 YEARS, OCC: AGRICULTURE, R/O. KAGAWAD, TQ: ATHANI, DIST: BELAGAVI-591223. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.10 12:26:58 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 6. SMT. SANGEETA W/O. VINAYAK MALAGE AGE: 35 YEARS, OCC: H.H.WORK, R/O. HARIJAN GALLI, SADALAGA TQ: CHIKODI, DIST: BELAGAVI-591201. 7. SMT. SARITA W/O VASUDEV KAMBLE AGE: 33 YEARS, OCC: AGRICULTURE, R/O. KAGAWAD TQ: ATHANI, DIST: BELAGAVI-591223. 8. SMT. SHRIDEVI W/O DEEPAK NIDAGUNDI AGE: 30 YEARS, OCC: AGRICULTURE, R/O. SHAM-NAGAR KUDACHI TQ: RAIBAG, DIST: BELAGAVI-591311. …RESPONDENTS (BY SRI. RAGHAVENDRA A. PUROHIT, ADV FOR R1 TO R8, SRI. RAHUL R., ADV FOR R1 TO R4 & R6 TO R8) THIS RFA IS FILED UNDER SEC. 96(1) READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.10.2017 PASSED IN O.S.NO.162/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI - 3 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Appeal is filed by defendant No.1/ Appellant challenging the judgment and decree dated 23.10.2017 passed in O.S.No.162/2013 by the learned Senior Civil Judge and JMFC, Raibag. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was defendant No.1, respondents No.1 to 3 were the plaintiff NO. 2 to 4 and the other respondents were the other defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: 4. The plaintiffs filed a suit against the defendants for a declaration and a permanent injunction. It is the case of the plaintiffs that the suit schedule property was originally owned by one Dadu Laxman Kurade. Plaintiff No.1 to 4 are the wife and daughters of Dadu Laxman - 4 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 Kurade. Purandhar is the son of Dadu who is no more. Defendant No.2 is the wife and defendants No.3 to 6 are the children of Purandhar Kurade. Defendant No.1 is no way concerned to the suit schedule property and to the family of the plaintiffs and defendants No.2 to 6. Dadu Laxman Kurade died in 1984. The plaintiffs and defendants No.2 to 6 are unable to mutate the property in their names, defendant No.1 taking undue advantage, created a bogus varadi and affidavit and got his name entered in the record of rights to the extent of 1 acre under M.E.No.576/2010 dated 25.04.2011. Plaintiff No.1, aggrieved by M.E.No.576/2010, preferred an appeal before the Assistant Commissioner, Chikkodi, which is pending for consideration. It is contended that the defendant No.1 denied the title of the plaintiffs over the suit schedule property. Thus, a cloud has been casted on the plaintiffs title. Defendant No. 1 tried to alienate the suit schedule property and to obstruct the enjoyment over the suit property. Hence, a cause of action arose for the - 5 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 plaintiffs to file a suit for a declaration and a permanent injunction. Accordingly, prays to decree the suit. 5. The Summons were issued to the defendants. Though, defendants No.2 to 6 appeared through counsel, they did not file a written statement. 6. Defendant No.1 filed a written statement denying the averments made in the plaint. It is contended that the plaintiffs are not the wife and daughters of Dadu Laxman Kurade, and the defendants No.2 to 6 are not the wife and children of Purandhar. It is contended that the suit- scheduled property is the property of Laxman and his brothers. Laxman is the grandfather of defendant No.1 and father-in-law of plaintiff No.1. It is contended that the plaintiffs and defendants No.2 to 6 have relinquished their rights in favour of defendant No.1 by receiving a part consideration amount of Rs.2,00,000/- and executed an unregistered relinquishment deed. Based on the relinquishment deed, the name of defendant No.1 was - 6 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 entered in the revenue records. Hence, defendant No.1 is in peaceful possession and enjoyment of the suit schedule property. Accordingly, prays to dismiss the suit. 7. The trial Court, based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiffs prove that, the plaintiffs are owners and possession of land bearing Sy.No.659/2 measuring 4 acres out of which 1 acre as on the date of the suit? 2. Whether the 1st defendant proves that, the plaintiffs and the defendant Nos.2 to 6 had relinquished their rights by receiving Rs.2.00 lakhs in the year 2011? 3. Whether the plaintiffs are entitled for the relief of declaration and injunction? 4. What order and decree? 8. The plaintiffs, to substantiate their case, a GPA holder was examined as PW-1, and marked 12 documents as Exs.P-1 to P-12. In rebuttal, defendant No.1 was examined as DW-1, one witness was examined as DW-2, and 6 documents were marked as Exs.D-1 to D-6. - 7 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 9. The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 and 3 in the affirmative, issue No.2 in the negative and issue No.4 as per the final order. The suit of the plaintiffs was decreed vide judgment dated 23.10.2017 and it is declared that the plaintiffs and defendants No.2 to 6 are the owners and possessors of the suit schedule property and a consequential relief of an injunction restraining the defendant No.1 from obstructing the peaceful possession and enjoyment of the plaintiffs and defendants No.2 to 6, was granted. 10. Defendant No.1, aggrieved by the judgment and decree passed in O.S.No.162/2013, filed this appeal. 11. Heard the learned counsel for defendant No.1, learned counsel for the plaintiffs, and learned counsel for defendants No.2 to 6. - 8 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 12. Learned counsel for defendant No.1 submits that the plaintiffs and defendants No.2 to 6 have relinquished their rights in favour of the defendant No.1 by executing an unregistered release deed. He submits that the defendant No.1 became the absolute owner of the suit schedule property by an unregistered relinquishment deed. He also submits that based on the unregistered relinquishment deed, the name of defendant No.1 was mutated. He further submits that defendant No.1 is in possession and enjoyment of the suit schedule property. Thus, he submits that the suit filed by the plaintiffs without seeking a consequential relief of possession is not maintainable. The said aspect was not adequately considered by the trial Court, and committed an error in decreeing the suit of the plaintiffs. He submits that the judgment passed by the trial Court is perverse and arbitrary. Accordingly, he prays to allow the appeal, by set aside the judgment and decree passed by the trial - 9 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 Court, and consequently to dismiss the suit of the plaintiffs. 13. Per contra, learned counsel for plaintiffs submits that defendant No.1 admitted the ownership of the plaintiffs and defendants No.2 to 6. Defendant No.1 has taken a defense that the plaintiff and defendants No.2 to 6 have relinquished their rights in favour of the defendant No.1 by executing an unregistered relinquishment deed, but the plaintiffs and defendants No.2 to 6 have denied the execution of the unregistered relinquishment deed. An unregistered document is not admissible in evidence, and defendant No.1 has not paid the stamp duty and penalty. Thus, the trial Court was justified in discarding the relinquishment deed marked as Ex.D-4, and has rightly decreed the suit of the plaintiffs. He also submits that the judgment and decree passed by the trial Court is just and proper and do not call for any interference. Hence, on these grounds, he prays to dismiss the appeal. - 10 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 14. Learned counsel for defendant No. 2 to 6 supports the impugned judgment. 15. Perused the records, and considered the submissions of the learned counsel for the parties. 16. The points that would arise for consideration are: a. Whether the plaintiffs prove that the plaintiffs and defendants No.2 to 6 are the absolute owners in possession of the suit schedule property? b. Whether the defendant No.1 proves that the plaintiffs and defendants No.2 to 6 have relinquished their rights by executing an unregistered relinquishment deeds in the year 1982 and 2001 for a part payment of Rs.2,00,000/-? c. Whether defendant No.1 proves that the judgment and decree passed by the trial Court is perverse and arbitrary? d. Whether the defendant No.1 has made out a ground to allow I.A.No.1/2024 for the production of additional documents? - 11 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 e. What order or decree? Reg. Point No.1: 17. The plaintiffs executed a GPA in favour of one Smt. Shobha W/o. Shripati Kurade, and authorized her to depose on their behalf. To substantiate the case of the plaintiffs, GPA holder was examined as PW-1. The GPA holder deposed that the suit schedule property was owned and possessed by the husband of plaintiff No.1 and father of Plaintiffs No.2 to 4. Purandhar is the son of Dadu Laxman Kurade who is no more. Defendant No.2 is the wife of Purandhar and defendants No.3 to 6 are his children. Dadu Laxman Kurade died in 1984 leaving behind the plaintiffsand defendants No.2 to 6 as his legal representatives. After his demise, they could not transfer/ mutate the suit property in their names. Defendant No.1 is no way concerned to the family of Dadu Laxman Kurade and to the suit property. Taking undue advantage, defendant No.1 got transferred the suit schedule property in his name and tried to alienate the suit schedule - 12 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 property denying the title of the plaintiffs and defendants No.2 to 6 over the suit property. To substantiate their case, the plaintiffs marked the GPA as Ex.P-1 appointing PW1 to Look after the suit property and the instant suit. Exs.P-2 to P-5 are the record of rights pertaining to the suit property which disclose the name of Dadu Laxman Kurade and his brothers. Ex.P-6 is the M.E.No.5896 wherein defendant No.1 based on the unregistered relinquishment deed alleged to have executed by the plaintiffs and defendants No.2 to 6, got mutated his name in the revenue records. Ex.P-7 is the Mutation Register Extract. Exs.P-8 to P-12 are the record of rights standing in the name of Dadu Laxman Kurade and others. During the course of cross-examination of PW1, it was suggested that the plaintiffs and defendants No.2 to 6 have relinquished their rights by executing the unregistered relinquishment deeds in favour of defendant No. 1. PW1 denied the said suggestion. Nothing has been elicited from the mouth of this witness to disbelieve the evidence. - 13 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 In rebuttal, defendant No.1 was examined as DW-1 who deposed that earlier the suit schedule property was owned and possessed by Laxman. Laxman is the grandfather of defendant No.1 and father-in-law of plaintiff No.1. It is deposed that the plaintiffs and defendants No.2 to 6 have relinquished their rights in favour of defendant No.1 by receiving a part consideration amount of Rs.2,00,000/- and executed an unregistered relinquishment deed. Defendant No.1 produced the unregistered relinquishment deeds marked as Exs.D-4 and D-5 and also produced the record of rights marked as Exs.D-1, Ex.D-2 is the certificate issued by the village accountant, Ex.D-3 is the hand sketch map, Ex.D-6 is the tax paid receipt. Defendant No 1 also examined one Mahaveer as DW-2 who also deposed on the same lines of DW-1 in the examination in chief. 18. From the perusal of the evidence of DW-1, he has clearly admitted that the property was owned and possessed by Dadu Laxman Kurade and after his demise, - 14 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 plaintiffs and defendants No.2 to 6 have succeeded to the suit schedule property. Defendant No.1 pleaded that the plaintiffs and defendants No.2 to 6 have executed the unregistered relinquishment deeds. The said deeds are unregistered. As per Section 17 of the Registration Act, if a right is to be transferred, it has to be transferred by way of a registered instrument. Admittedly, under Exs.D-4 and D-5, defendant No.1 is claiming that the plaintiffs and defendants No.2 to 6 have relinquished their rights regarding the suit property. The said documents require compulsory registration, and the said documents are inadmissible in evidence. Further, defendant No.1 has not paid the duty and penalty on Exs.D-4 and D-5. Thus, in view of the defense taken by defendant No.1 regarding the alleged relinquishment deed alleged to be executed by the plaintiffs and defendants No.2 to 6, defendant No.1 has clearly admitted the title of the plaintiffs and defendants No.2 to 6. Thus, in view of the admission of DW-1, it is sufficient to hold that the plaintiffs and - 15 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 defendants No.2 to 6 are the absolute owners of the suit schedule property. 19. In view of the above, discussion, I answer the point No.1 in the affirmative. Reg. Point No.2: 20. Defendant No.1 has taken a defense in the written statement that plaintiffs and defendants No.2 to 6 have relinquished their rights in favour of the defendant No.1 regarding the suit schedule property. The plaintiffs have denied the execution of the relinquishment deeds, marked as Exs.D-4 and D-5. Defendant No.1, based on the unregistered relinquishment deeds, property was transferred the said property in his name. As observed in point No.1, the unregistered relinquishment deeds at Exs.D-4 and D-4 are inadmissible in evidence. Further, the plaintiffs have challenged the mutation order passed in favour of the defendant No.1 by preferring an appeal before the Assistant Commissioner. Learned counsel - 16 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 submitted that the Assistant Commissioner has stayed the mutation extract. Mutation entry has not attained the finality. The order passed by the revenue officer in the mutation proceedings has no evidentiary value in the civil suit. The same is supported by the judgment of the Hon’ble Apex Court in the case of Dayaram and others vs. Dawalatshah and another1. The Hon’ble Apex Court has held as under: (E) Evidence Act (1872). Sec 35- Order of revenue Officer in mutation proceeding based on untrue piece of evidence has no evidentiary value in civil suit. 21. The order of the revenue officer in the mutation proceedings based on untrue piece of evidence has no evidentiary value in the civil suit. The Mutation order produced by defendant No.1 has no evidentiary value in the civil suit. Further, defendant No.1 has not produced any records to establish that defendant No.1 had 1 AIR 1971 SC 681 - 17 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 paid the part of the consideration amount of Rs.2,00,000/- to the plaintiffs and defendant 2 to 6. In the absence of any document, defendant No.1 has failed to establish that the plaintiffs and defendants No.2 to 6 have relinquished their rights in his favour by receiving Rs.2,00,000/- in 1982 and 2011, regarding the suit schedule property. Thus, defendant No.1 has failed to prove the execution of Exs.D-4 and D-5 by the plaintiffs and defendants No2 to 6 in his favour. 22. In view of the above discussion, I answer the point No.2 in the negative. Reg. Point No.3: 23. The trial Court, considering the entire evidence on record and the admission of the defendant No.1 that plaintiffs and defendants No.2 to 6 are the owners and allotted to have relinquished their rights in his favour, the trial Court is justified in recording a finding that the plaintiffs and defendants No.2 to 6 are the absolute - 18 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 owners in possession of the suit schedule property and defendant No.1 has failed to establish that the plaintiffs and defendants No.2 to 6 have relinquished their rights in favour of defendant No. 1. I do not find any error in the impugned judgment and I concur with the findings recorded by the trial Court. 24. In view of the above discussion, I answer the point No.3 in the negative. Reg. Point No.4: 25. Defendant No.1 filed an application in I.A.No.1/2024 for the production of an additional documents. In support of an application, defendant No.1 filed an affidavit, stating that the suit schedule property was originally belonged to Dadu Laxman Kurade and the plaintiffs and defendants are the legal representatives of Dadu Laxman Kurade and upon going through the evidence on record, it clearly discloses that the suit schedule property originally belonged to Dadu Laxman - 19 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 Kurade and others as per M.E.No.7452 dated 02.10.1979 and recently after making efforts, he got the said documents, which are required to be reproduced before the Court to substantiate his contention. It is stated that the suit property is very valuable and belongs to him and hence, prays to allow the application by permitting him to produce an additional evidence. 26. The plaintiffs filed objections to the said application stating that the mutation extract and RTC pursuant to Diary No.7452 dated 02.10.1979 clearly shows that neither the name of defendant No.1 nor his mother’s name viz., Droupadi Kurade is forthcoming in the records and the mutation entry do not confer any right, title or interest in favour of a person. It is also stated that there is no reference about the proposed documents in the written statement. Hence, it is stated that the defendant No.1 has not made out grounds to allow the application for the production of additional documents. - 20 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 27. Perused the affidavit of defendant No.1 annexed to I.A.No.1/2024. Admittedly, the said documents were not in existence during the pendency of the suit, and further, there is no reference about the proposed documents in the written statement. Further, the appeal is filed in 2019 and the application is filed in 2024. The object of Order 41 Rule 27 of the Code of Civil Procedure is not to fill up the lacuna. The Hon’ble Apex Court in the case of N. Kamalam (Dead) and another vs. Ayyasamy and another2 held that 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 omissions earlier made. The authority and jurisdiction of the Appellate Court is restricted to grant permission to lead additional evidence and 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. 2 (2001) 7 SCC 503 - 21 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 28. Admittedly, in the instant case, the entire defense of the defendant No.1 is based on an unregistered relinquishment deed and not on the ground that the suit schedule property was granted in favour of Dadu Laxman Kurade. Defendant No.1 has not explained as to why the said documents were not produced before the trial Court. Thus, defendant No.1 has failed to comply the requirement of Order 41 Rule 27 of the CPC. Thus, the application filed by defendant No.1 in I.A.No.1/2024 deserves to be rejected. Accordingly, I answer Point No. 4 in the negative. 29. In view of the above discussion, I proceed to pass the following: ORDER (i) The Appeal is dismissed. (ii) The judgment and decree dated 23.10.2017 passed in O.S.No.162/2013 by the learned Senior Civil Judge and JMFC, Raibag is hereby confirmed. (iii) I.A.No.1/2024 is rejected. - 22 - HC-KAR NC: 2025:KHC-D:10559 RFA No. 100134 of 2019 (iv) No order as to the costs. (v) In view of the dismissal of the appeal, pending interlocutory applications, if any, stand disposed of. Sd/- (ASHOK S. KINAGI) JUDGE NAA CT: BSB List No.: 1 Sl No.: 26