- 1 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 722 OF 2013 (DEC) BETWEEN: 1. SMT G NALINI W/O K. LAKSHMANA MAJOR NO.2985, NEHRUNAGAR, MANDYA CITY - 571 401 2. SRI. CHIKKANAGEGOWDA S/O NAGEGOWDA SINCE DEAD BY LEGAL REPRESENTATIVES 2(A) SMT. SIDDAMMA W/O LATE CHIKKANAGEGOWDA AGED ABOUT 68 YEARS 2(B) SMT. H.C. MANJULA D/O LATE CHIKKANAGEGOWDA AGED ABOUT 48 YEARS W/O A.M. CHANDRASHEKAR R/AT AMBRAHALLI VILLAGE MADDUR TALUK MANDYA DISTRICT. 2(C) SRI. SURESH H.C. S/O LATE CHIKKANAGEGOWDA AGED 45 YEARS 2(D) SRI. MAHESHA H.C. S/O LATE CHIKKANAGEGOWDA Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 AGED 42 YEARS 2(E) SMT. D. GAYATHRI DEVI W/O LATE H.C. NAGESH AGED ABOUT 50 YEARS 2(A), (C) TO (E) ARE R/AT HALUVADI VILLAGE KOTHATHI HOBLI MANDYA TALUK MANDYA DISTRICT - 571 401 …APPELLANTS (BY SRI. K.N. NITISH, ADVOCATE FOR SRI. K V NARASIMHAN, ADVOCATE) AND: 1. SHARATH CHANDRA S/O J. HONNEGOWDA MAJOR R/AT NEHRUNAGAR MANDYA - 571 401 2. J. HONNEGOWDA S/O JAVAREGOWDA MAJOR R/AT NEHRUNAGAR, MANDYA - 571 401 …RESPONDENTS (BY SRI. RAJENDRA C DESAI, ADVOCATE FOR C/R1 V/O DATED 24.02.2020 NOTICE TO R2 H/S) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 17.1.2013 PASSED IN R.A.NO.59/2008 ON THE FILE OF THE ADDL. DISTRICT JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 19.4.2008 PASSED IN - 3 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 OS.NO.126/1993 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN) & CJM, MANDYA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 17.01.2013 passed in R.A.No.59 of 2008 by the learned Additional District Judge, Mandya. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendant Nos.2 and 3, respondent No.1 was the plaintiff, and respondent No.2 was defendant No.1. 3. Brief facts leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit against the defendants for declaration of title and he is in possession and enjoyment of the suit schedule properties and - 4 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 consequently for cancellation of the registered sale deeds dated 14.07.1983 and 28.03.1989 executed by defendant No.1 in favour of defendant No.2. It is the case of the plaintiff that the suit schedule properties are the self-acquired properties of his father i.e., defendant No.1. Defendant No.1 executed a settlement deed in favour of the plaintiff on 28.03.1977. The plaintiff was a minor as of the date of execution of a settlement deed, by virtue of a settlement deed, the plaintiff became the absolute owner in possession of the suit properties. Defendant No.1 executed a registered sale deed in favour of defendant No.2 dated 14.07.1983 in respect of item No.2 of the suit schedule properties. Another registered sale deed dated 28.03.1989 was executed by defendant No.1 in favour of defendant No.3, in respect of suit item No. 1 of the suit schedule property. Defendant No.1 has unilaterally cancelled the settlement deed by executing the cancellation deed dated 07.03.1983, and the same is - 5 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 illegal. The sale deeds executed by defendant No.1 in favour of defendant Nos.2 and 3 are void. Hence, on these grounds, prays to decree the suit. 5. Defendant Nos.2 and 3 filed a written statement contending that defendant No.1 was the absolute owner of the suit schedule properties. He sold item Nos.2 and 3 of the suit schedule property in favour of defendant Nos.2 and 3 under the different registered sale deeds. Defendant Nos.2 and 3 became the absolute owners of the said suit schedule properties by virtue of the registered sale deeds and they were put in possession of the suit schedule properties i.e., item Nos. 1 and 2. The plaintiff has no right, title or interest over the suit schedule properties. It is contended that the suit is hopelessly barred by limitation. There is no cause of action to file a suit for declaration of title and for cancellation of the registered sale deeds. Hence, on these grounds, prays to dismiss the suit against defendant Nos.2 and 3. - 6 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 6. The summons was served on defendant No.1. Despite service of summons, defendant No.1 remained unrepresented and was placed ex parte. 7. The trial Court, based on the pleadings of the parties, framed the following issues. 1) Whether the plaintiff proves that due execution of settlement deed dated 28.03.1977 by the first defendant? 2) Whether the plaintiff proves that cancellation of the settlement deed is invalid? 3) Whether the sale deeds in favour of defendant Nos.2 and 3 are liable to be cancelled? 4) Do the defendants prove that they have spent Rs.25,000/- and Rs.10,000/- to improve the schedule properties? 5) Whether the suit is barred by time? 6) Whether the plaintiff is entitled for the relief of declaration and possession? 7) What decree or order? 8. The plaintiff, to substantiate his case, examined himself as PW.1 and marked 2 documents as Ex.P1 and Ex.P2. - 7 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 In rebuttal, defendant Nos.3 and defendant No. 2 were examined as DW1 and DW2 respectively, and marked 10 documents as Ex.D1 to D10. The trial court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue Nos. 3 to 5 in the negative issue No.6 partly affirmative and issue No.7 as per the final order. The suit of the plaintiff was partly decreed with costs and it is declared that the plaintiff is the owner of the suit schedule properties and the sale deeds of contesting defendant Nos.2 and 3 are not binding on the plaintiff and dismissed the suit for declaration regarding the cancellation of the registered sale deeds dated 14.07.1983 executed in favour of defendant No.2 and the registered sale deed dated 28.03.1989 executed in favour of defendant No.3. It is also declared that the plaintiff is the owner of the suit schedule properties by virtue of the settlement deed dated 28.03.1977. It is - 8 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 also declared that the sale deeds dated 28.03.1989 and 14.07.1983 executed by defendant No.1 in favour of defendant Nos.3 and defendant No.2 are not binding on the plaintiff and suit of the plaintiff for settlement of account was dismissed. 9. Defendant Nos.2 and 3 and the plaintiff, aggrieved by the judgment and decree dated 19.04.2008, passed in O.S.No.126/1993, preferred an appeal in R.A.No.59 of 2008 and a cross objection/appeal on the file of the learned Additional District Judge, Mandya. 10. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration and additional issues: 1) Whether the plaintiffs are entitled to produce additional documentary evidence as prayed in I.A.? 2) Whether the defendants prove that the finding of the trial Court on issue No.1 and 2 with regard to the settlement deed dated 28.03.1977 and cancellation of settlement - 9 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 deed are perverse, capricious and against to the evidence on record and therefore, judgment and decree of the trial Court is liable to be set aside? 3) Whether the plaintiffs prove that the finding of the trial Court so far as it relates to refusing the decree for possession is perverse, capricious, illegal and against to the evidence on record? 4) What order? Additional issue Nos.1 and 2: 1) Whether the plaintiff is entitled for possession of the schedule property? 2) Whether the defendants prove that suit is barred by limitation? 11. The First Appellate Court, after re-appreciating the entire evidence on record, answered point No.1, additional issue No.1 and point No.3 in the affirmative, point No.2 and additional issue No.2 in the negative and point No.4 as per the final order. The appeal of defendant Nos.2 and 3 was dismissed and the cross- objection/appeal filed by the plaintiff was allowed, and - 10 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 held that defendant No.2 and defendant No.3 shall hand over the possession of the schedule property to the plaintiff within 3 months from the date of the judgment. There shall be a separate enquiry with regard to the mesne profits payable to the plaintiff from the date of suit till the date of possession and rest of the judgment passed by the trial Court was confirmed. 12. Defendant Nos.2 and 3, aggrieved by the impugned judgments, filed this Regular Second Appeal. 13. Heard the arguments of the learned counsel for defendant No.2 and defendant No.3, and the learned counsel for the plaintiff. 14. Learned counsel for defendant No.2 and defendant No.3 submits that the plaintiff has filed an application under Order VI Rule 17 for amendment to the plaint and also an application for production of additional evidence. The First Appellate Court after hearing the - 11 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 learned counsel for the parties allowed the application for amendment to the plaint and the plaintiff was permitted to carry out the amendments to the plaint. The first appellate court has not given opportunity to defendant No.2 and defendant No.3 to file an additional written statement. He also submits that the plaintiff has filed an application for production of additional evidence. The trial Court, while passing the judgment on merits, allowed the said application and without complying Order XLI Rule 28 of the CPC, placed a reliance on the said documents, and passed the impugned judgment. He submits that the impugned judgment passed by the first appellate court is not in compliance with Order XLI Rule 28 of the CPC, and further no opportunity was provided to defendant No.2 and defendant No.3 to file an additional written statement. Hence, on these grounds, he prays to remit the matter to the first appellate court with a liberty to defendant No.2 and defendant No.3 to file an additional - 12 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 written statement and permit the plaintiff to lead further evidence on the documents produced along with an application for production of additional evidence and in rebuttal, the defendants may be permitted to lead the evidence. 15. Per contra, learned counsel for the plaintiff supported the impugned judgments and contended that the first appellate court has provided sufficient opportunity to defendant No.2 and defendant No.3 to file an additional written statement. Despite granting sufficient opportunity, defendant No.2 and defendant No.3 did not file an additional written statement. The first appellate court has rightly framed the additional issues and passed the impugned judgment. He also submits that the first appellate court has allowed the application for production of additional documents and rightly relied on the said documents. The judgment and decree passed by the first appellate court is just and - 13 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 proper and do not call for any interference at the hands of this court. Hence, prays to dismiss the appeal. 16. This Court vide order dated 18.06.2014, admitted the appeal to consider the following substantial questions of law: 1) Whether the first appellate court was justified in allowing IA filed under Order 6 Rule 17 of the CPC by the first respondent and decreeing his suit without appreciating the fact that the same was barred by time and that too without affording an opportunity to the appellants to lead further evidence on the amended pleadings? 2) Whether the courts below were justified in looking into the certified copy of the settlement deed at Ex.D1 when no foundation was laid by the plaintiff to lead secondary evidence that too in the light of the fact that the plaintiff has failed to prove its execution as required under law? 17. Perused the records and considered the submissions of the learned counsel for the parties. - 14 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 Reg. Substantial question of law No.1: 18. The plaintiff filed a suit against the defendants for declaration of title and permanent injunction on the ground that the plaintiff had acquired a title by virtue of a settlement deed as per Ex.P1. Defendant No.1 had no right, title or interest over item Nos.1 and 2 of the suit schedule properties to execute a registered sale deed in favour of defendant No.2 and defendant No.3. As per the settlement deed, the plaintiff is the absolute owner of the suit schedule properties. The sale deeds executed by defendant No.1 in favour of defendant No.2 and defendant No.3 are not binding on the plaintiff. The plaintiff to substantiate his case, produced the documents Ex.P1 is the copy of the settlement deed. Ex.P2 is the cancellation of settlement deed which discloses that defendant No.1 unilaterally cancelled the settlement deed. 19. In rebuttal, defendant No.3 was examined as DW.1. She reiterated the written statement averments in the - 15 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 examination-in-chief and defendant No.2 was examined as DW.2 and got marked 10 documents as Ex.D1 to D10. The trial Court, after recording the evidence, decreed the suit of the plaintiff with costs, and declared that the plaintiff is the owner of the suit schedule properties by a settlement deed dated 28.03.1977 and declared that the sale deeds dated 14.07.1983 and 28.03.1989 executed by defendant No.1 in favour of defendant No. 2 and defendant No.3 respectively are not binding on the plaintiff. 20. Defendant No.2 and defendant No.3 aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.59 of 2008 and the plaintiff has also filed a cross objection under Order XLI Rule 22 of the Code of Civil Procedure. During the pendency of the appeal before the first appellate court, the plaintiff filed an application for amendment to the plaint. The said application came to be allowed. The - 16 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 plaintiff carried out the necessary amendment in the plaint. 21. I have perused the order sheet of the first appellate court. The first appellate court without providing an opportunity to defendant No.2 and defendant No.3 to file an additional written statement, has framed additional issues on 17.01.2012 and posted the matter for recording additional evidence on 31.01.2012. 22. From the perusal of the records, it does not disclose that after framing an additional issue, the plaintiff examined himself as PW.1 before the first appellate court and he was cross examined and thereafter the plaintiff filed an application for production of additional evidence. The first appellate court while passing a judgment has considered the application for production of additional evidence and allowed the application and taken the said additional documents on record. When an application for production of additional evidence is allowed, the first appellate court could have recorded - 17 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 the evidence under Order XLI Rule 28 of the CPC. The first appellate court, without recording the evidence on the additional documents, has placed a reliance on the said documents and further, no opportunity was provided to defendant Nos.2 and 3 to lead a rebuttal evidence on the amended pleadings. The procedure adopted by the first appellate Court in disposing of the appeal is irregular and illegal. Hence, on these grounds, alone itself the impugned judgment passed by the first appellate court is liable to be set aside. 23. In view of the above discussion, I answer substantial question No.1 in the negative. Reg. Substantial question of law No.2: 24. The substantial question goes to the merits of the case. This Court has not decided the appeal on merits. This Court has decided this appeal on technical grounds. As the matter requires reconsideration by the first appellate court, the substantial question No.2 does not - 18 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 arise for consideration at this point of time. The said issue shall be decided by the first appellate court. The judgment and decree passed by the First appellate court is in violation of the principles of natural justice. Thus, substantial question of law No.2 does not arise for consideration. 25. In view of the above discussion, I proceed to pass the following order: ORDER i. The Regular Second Appeal is allowed. ii. The judgment and decree dated 17.01.2013 passed in R.A.No.59 of 2008 by the learned Additional District Judge, Mandya, is hereby set aside. iii. R.A.No.59 of 2008 is restored to its original file. iv. The first appellate court is directed to permit the defendants to lead rebuttal evidence on the additional pleadings and additional - 19 - HC-KAR NC: 2025:KHC:43617 RSA No. 722 of 2013 evidence and thereafter pass an appropriate judgment in accordance with law. v. The parties are directed to appear before the first appellate court on 18.12.2025, without awaiting any notice. vi. It is made clear that this court has not made any adjudication on merits in issue. vii. All the contentions of the parties are kept open. viii. Office is directed to transmit the records to the first appellate court forthwith. In view of the disposal of the appeal, pending IAs, if any, would not survive for consideration and they are disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SKS