1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR SECOND APPEAL NO.246/2022 BETWEEN: 1 . SMT. MUNIYAMMA SINCE DECEASED BY HER LR 1(a) SMT. MARIYAMMA W/O MUNIYAPPA AGED ABOUT 53 YEARS, R/AT ATTUR VILLAGE, JADIGENAHALLI HOBLI HOSKOTE TALUK BENGALURU RURAL DISTRICT-562114. 1(b) SMT. AKKAYAMMA W/O SHEEGALLAPPA AGED ABOUT 50 YEARS, R/AT HASIGALA VILLAGE SULIBELE HOBLI, HOSKOTE TALUK BENGALURU RURAL DISTRICT-562114. 1(c) SMT. KRISHNAMMA W/O NANJUNDASWAMY AGED ABOUT 48 YEARS, R/AT DODDAKADATHUR VILLAGE JADIGENAHALLI HOBLI KASABA HOBLI, MALURU TALUK KOLAR DISTRICT-563130. … APPELLANTS (BY SRI. SHIVASHANKAR K., ADVOCATE) 2 AND: SRI. MALLIKARJUNA S/O CHIKKA ANKANAPPA AGED ABOUT 48 YEARS R/AT DODDAKADATHUR VILLAGE KASABA HOBLI MALUR TALUK KOLAR DISTRICT-563130. … RESPONDENT (BY SRI. AMAR GOWDA K.S., ADVOCATE) THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.12.2021 PASSED IN R.A.NO.28/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.02.2014 PASSED IN O.S.NO.270/2007 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MALUR AND ETC. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.10.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE H.P.SANDESH 3 CAV JUDGMENT This second appeal is filed challenging the concurrent finding of the Trial Court passed in O.S.No.270/2007 dated 17.02.2014 granting the relief of declaration and injunction and confirming the judgment and decree of the Trial Court by the First Appellate Court in R.A.No.28/2014 dated 23.12.2021. 2. Heard the learned counsel appearing for the appellants. The counsel for the respondent did not choose to address the arguments inspite of opportunity is given. 3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and permanent detention is that suit schedule land bearing Sy.No.1 measuring 20 guntas which is morefully described in the schedule is granted to plaintiff on 06.03.2004. It is contented that plaintiff had changed the katha in his name and the survey authority also prepared the survey sketch. From the date of grant, the plaintiff is in possession and enjoyment of the suit property. The defendant has no manner of title, right and possession over the suit schedule property. When the plaintiff 4 was installing the pump set, the defendant obstructed with an intention to cause trouble to the plaintiff by denying the plaintiff’s title and possession over the suit schedule property. Hence, the plaintiff has filed suit for the relief of declaration and permanent injunction. 4. In response to the suit summons, the defendant entered appearance and filed the written statement denying the plaintiff’s claim. It is contended that the plaintiff is not in possession of the suit schedule property. The land in old Sy.No.75 and new Sy.No.1 measuring two acres was granted in the year 1959-60 in favour of K.G. Munivenkatappa who is the husband of the defendant. In this regard, survey sketch, Mahazar and Phodi were prepared. After the death of said Munivenkatgappa, the defendant got mutated the said land in her name as per M.R.No.11/2000-2001. Out of two acres of land, two guntas were taken to form the road and remaining extent of 1 acre 38 guntas of land was entered in the name of defendant through M.R.No.57/2005-06 in new Sy.No.1. As such, the defendant is in exclusive possession of the said extent but, 5 the plaintiff got created a new sketch with respect to the suit property which comes within the defendant's land. Hence the claim of the plaintiff is untenable and prayed the Trial Court to dismiss the suit. 5. The Trial Court having considered the pleadings of the parties, framed the Issues and Additional Issue, which read as follows: 1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of the suit? 2. Whether the plaintiff proves the alleged interference by the defendant? 3. Whether the plaintiff is entitled to the plaint reliefs? 4. What order or decree? Additional Issue: Whether the plaintiff proves that he is the owner of the suit schedule property? 6 6. The Trial Court having considered the pleadings of the parties, allowed the parties to lead their evidence. In order to prove the case of the plaintiff, he got examined himself as PW1 and also examined two witnesses as PW2 and PW3 and got marked the documents at Ex.P1 to P15. On the other hand, GPA holder of the defendant got examined as DW1 and also examined one witness as DW2 and got marked the documents at Ex.D1 to D17. The Trial Court having considered both oral and documentary evidence answered all the Issues as affirmative and granted the relief as sought in coming to the conclusion that the plaintiff has proved his possession and enjoyment over the suit schedule property as on the date of the suit and also proves the alleged interference by the defendant. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed in R.A.No.28/2014 by the defendant. 7. The First Appellate Court having reassessed both oral and documentary evidence confirmed the judgment of the Trial Court holding that the plaintiff has proved his possession over the suit schedule property and he is the owner of the suit 7 schedule property and the judgment and decree of the Trial Court does not require any interference. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. 8. The grounds urged by the learned counsel for the appellants in this second appeal is that judgments of both the Court are perverse and capricious and not appreciated the fact that land in question bearing old Sy.No.75, new Sy.No.1 measuring to an extent of two acres was granted in favour of the defendant’s husband in the year 1959-60. Pursuant to the grant, survey sketch was prepared, phodi was done and mahazar has been drawn and all the revenue records stand in the name of the appellant/defendant. Earlier, it was standing in the name of original grantee. It is contented that plaintiff has created the document to the extent of 20 guntas of land which is not in existence and plaintiff is claiming the portion of the property of the defendant. The boundaries mentioned by the plaintiff are overlaps the defendant's property. The plaintiff’s property comes within the property of the defendant by virtue of illegal and 8 bogus grant. The Trial Court has recorded the finding that property of the plaintiff comes within the portion of the defendant’s property and in order to identify the same, the defendant could have opted for appointment of commissioner to find out the location of her land, but the defendant did not sought for appointment of commissioner. On the other hand, by virtue of the documents produced by the plaintiff it is found that before granting the said property in favour of the plaintiff, the location of the property is specifically identified from the revenue authorities and therefore the land was granted. The contention of the defendant has not been appreciated by the Trial Court that though the plaintiff has approached the survey authorities and prepared the sketch and the same has been produced, but in order to identify the property of the defendant, the surveyor/ADLR has to be appointed for demarcation of these two properties, then only the Court can identify these two properties. In view of the said finding recorded by the Trial Court, the appellants have filed an application under Order XXVI Rule 9 read with Section 151 of CPC for appointment of Taluk Surveyor to identify and location of the suit schedule property and 9 property of the appellants. The said application has not at all considered by the First Appellate Court. The appointment of commissioner is necessary to identify the properties, then only the Court can comes to the conclusion that both the properties are different properties and the location is also totally different. The First Appellate Court without considering the same, dismissed the appeal confirming the judgment of the decree of the Trial Court. Hence, the finding given by the Trial Court as well as the First Appellate Court is erroneous and thus, indicated the substantial questions of law. 9. This Court having heard the counsel appearing for the appellant and also considering the grounds which have been urged in the appeal, admitted the second appeal and framed the following substantive questions of law which read as follows: 1. Whether the findings by Court of facts is vitiated by non-consideration of relevant evidence on record or by essentially wrong approach? 2. Whether the First Appellate Court justified in not considering the application filed by 10 appellant for appointment of Commissioner, when there is a dispute with regard to identity of property? 10. The learned counsel appearing for the appellants in his arguments would vehemently contend that the land was granted in the year 1959-60 in favour of the husband of the appellant/defendant and the respondent/plaintiff claims that 20 guntas was granted in the year 2003-2004. The counsel appearing for the appellant would vehemently contend that when an application was filed under Order XXVI Rule 9 of CPC for appointment of Commissioner before the First Appellate Court, First Appellate Court ought to have considered the same. But the First Appellate Court even not framed the point for consideration on this aspect while disposing of the appeal and the same is kept pending and without disposal of the said application, point for consideration is framed that whether the conclusion of the Trial Court in decreeing the suit of the plaintiff is proper and the finding of the Trial Court calls for interference. The very approach of the First Appellate Court is erroneous. 11 11. The learned counsel appearing for the appellants also would vehemently contend that an application is filed before this Court under Order 41 Rule 27 read with Section 151 of CPC seeking permission of this Court to produce the additional document i.e., the certified copy of the Order passed by the Assistant Commissioner in Appeal No. LND(RUO)(Ha)9/2008-09 dated 21.08.2024. The counsel referring this application would vehemently contend that they have filed this appeal challenging the judgment and decree of both the Courts. The suit is filed for the relief of declaration and injunction in respect of 20 guntas of land and also it is also contented that after filing of the suit by the respondent/plaintiff, the mother of the appellants i.e., the original defendant has filed an appeal before the Assistant Commissioner challenging the grant made in favour of the plaintiff. The said appeal was allowed by the Assistant Commissioner and cancelled the grant made in favour of the respondent/plaintiff and this happens subsequent to the judgment and decree of both the Courts and during pendency of this appeal. Hence, the same requires to be considered by this Court. 12 12. The counsel appearing for the appellants also furnished the copy of this application on the counsel who appears on behalf of the respondent. The respondent has not filed any objections to this application. Apart from that, when the matter was heard before this Court on 15.10.2025, the counsel was absent. However, granted an opportunity to the counsel and also made clear that if the counsel for the respondent does not appear on the next date of hearing, the matter will be disposed of in his absence. In spite of the said order, counsel for the respondent did not choose to appear before the Court on 17.10.2025, hence, having heard the learned counsel for the appellants, reserve the matter for judgment. 13. Having considered The material on record, it discloses that the plaintiff claims title and possession of the suit schedule property based on the grant made in favour of the plaintiff on 06.03.2004 and also it is the claim that based on the said grant, all the revenue records are stand in the name of the plaintiff and hence, sought for the relief of declaration and injunction. 13 14. Now, in view of the application filed under Order 41 Rule 27 read with Section 151 of CPC and produced the copy of the document of cancellation of grant, the additional substantive question of law arises for the consideration of this Court as follows: Whether the appellants have made out the grounds to allow the application filed under Order 41 Rule 27 read with Section 151 CPC? 15. I have already extracted the substantive questions of law framed by this Court at the time of admission and before considering those two substantive questions of law, it is appropriate to consider the application filed under Order 41 Rule 27 read with Section 151 of CPC. Hence Additional Substantive Question of law framed by this Court to be taken up at the first instance. 16. The claim of the appellants that land was granted in favour of their father i.e., the husband of the defendant – Muniyamma in the year 1959-60. All the revenue documents were transferred in the name of original grantee subsequent to 14 the grant. On account of the death of the original grantee, the property stands in the name of the original defendant i.e., mother of the present appellants and the appellants also relied upon the documents having granted the land and property stands in their name. It has to be noted that the issue between the parties is with regard to the earlier grant of the year 1959- 60 to the extent of two acres. Out of that, two guntas were required for formation of road and the remaining land stands in the name of the original grantee. It is also important to note that the plaintiff has filed suit in the year 2007 seeking the relief of declaration and injunction and defendant appeared and filed written statement contenting that the grant was not created and the land which the plaintiff claims is overlaps in the property which was already granted in favour of the husband of the defendant. It is also important to note that when the suit was filed for declaration and injunction, immediately an appeal was filed before the Assistant Commissioner and now an application is filed under Order 41 Rule 27 of CPC along with the order of cancellation passed by the Assistant Commissioner vide order dated 21.08.2024. It has been noted that the copy of the 15 application is also served on the advocate who appears on behalf of the respondent. Inspite of it, objection was not filed when copy was received on 06.02.2025. When the matter was posted for final hearing also, counsel did not choose to appear and file any objections. 17. It has to be noted that this order is passed during the pendency of this second appeal. When such being the case, this Court can invoke Order 41 Rule 27 of CPC since this document is subsequent to the disposal of the suit, appeal as well as during pendency of this second appeal. Having considered this document, it discloses that the grant made in favour of the plaintiff/responded to the extent of 20 guntas is cancelled vide order No.LND RUO 64/2003-04 dated 03.03.2003. It is also important to note that the grant made in favour of the plaintiff is cancelled and based on the said grant only, the plaintiff sought the relief of declaration and injunction. But when additional evidence placed before this Court, the same requires to be considered by the Court. Hence, the matter requires to be reconsidered afresh. Thus, the appellants made out the ground 16 to allow the application filed under Order 41 Rule 27 read with Section 151 of CPC. Accordingly, I answer the additional substantive question of law as affirmative. 18. The counsel appearing for the appellants brought to notice of this Court that an application was filed under Order 26 Rule 9 of CPC with regard to the identification of the property since it is the claim of the defendant that 20 guntas of land claimed by the plaintiff is within the boundary of the property which was granted in favour of the original grantee in the year 1959-60 and with regard to the identity of the property is also there is a dispute. The Trial Court also made an observation that defendant has not filed any application for appointment of commissioner. When such finding is given, during the pendency of the appeal, an application was filed under Order 26 Rule 9 of CPC but, the same was not considered and passed any order by the First Appellate Court, instead of that dismissed of the appeal. Hence, there is a force in the contention of the counsel appearing to the appellants with regard to the identification of the property is concerned. 17 19. The specific case of the defendant that the grant made in favour of the respondent/plaintiff comes within the property of the defendant and no property is in existence to grant 20 guntas of land in the said survey number. When such plea was taken before the Trial Court in the written statement, the Trial Court ought to have identified the property holding that whether it overlaps the same or not but the same was not done. The material on record particularly, in respect of the grant, there is a dispute on the fact that appeal was also filed before the Assistant Commissioner during the pendency of the very suit and suit was filed in 2007 and the same was disposed of in 2014. When dispute is there between the parties with regard to the grant is concerned and consequent upon the very cancellation of grant, the respondent/plaintiff not made any submission before this Court that the said cancellation of grant was also challenged and even did not assist the Court for disposal of IA filed under Order 41 Rule 27 of CPC by filing the objections. When such being the case, the matter requires to be reconsidered afresh. Hence, the judgment and decree passed in O.S.No.270/2007 is requires to be set aside consequent upon very cancellation of 18 grant since the plaintiff claims his title and possession over the property based on the said grant. It also requires to be set aside the judgment and decree of the First Appellate Court in confirming the judgment and decree of the Trial Court. In view of this observation, question of consideration of substantive questions of law Nos.1 and 2 framed by this Court earlier do not arise for consideration in view of subsequent development of cancellation of the grant. 20. In view of discussions made above, I pass the following: ORDER a) The second appeal is allowed. The impugned judgment and decree dated 17.02.2014 passed in O.S.No.270/2007 by the Trial Court and confirmation made by the First Appellate Court in R.A.No.28/2014 dated 23.12.2021 are set aside. b) The application filed by the appellants under Order 41 Rule 27 of CPC is allowed and permitted to produce additional evidence before the Trial Court. 19 c) The Trial Court is directed to give an opportunity to both the parties to adduce their evidence. d) The parties shall appear before the Trial Court on 28.11.2025 without expecting any notice from the Trial Court. e) This suit is of the year 2007, hence, it is directed the Trial Court to dispose of the suit within 9 months from 28.11.2025. f) Registry is directed to send the records of the Trial Court as well as First Appellate Court along with the additional documents produced before this Court forthwith to enable the Trial Court to take up the matter on 28.11.2025. Sd/- (H.P. SANDESH) JUDGE SN