- 1 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 753 OF 2021 (DEC/INJ) C/W REGULAR SECOND APPEAL NO. 370 OF 2023 (DEC/INJ) IN RSA No. 753/2021 BETWEEN: 1. SMT.MUNIYAMMA SINCE DEAD BY HER LRS APPELLANTS NO.2 TO 8 WHO ARE ALREADY ON RECORD 2. SRI KRISHNAPPA S/O LATE VALAGAMADI NATAYANAPPA AGED ABOUT 54 YEARS 3. SRI VENKATESHAPPA S/O LATE VALAGAMADI NARAYANAPPA AGED ABOUT 44 YEARS, 4. MUNIRAJU S/O LATE VALAGAMADI NARAYANAPPA AGED ABOUT 39 YEARS, APPELLANTS 1 TO 4 ARE RESIDING AT AITHANDAHALLI VILLAGE KASABA HOBLI, BANGARPET TALUK - 563 114 Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 5. SMT. MUNIVENKATAMMA SINCE DEAD BY HER LRS 5(A). PRADEEP KUMAR M, S/O MANJU AGED ABOUT 19 YEARS 5(B). MANASA M D/O MUNIRAJU AGED ABOUT 20 YEARS 5(C). CHETHAN KUMAR M S/O MUNIRAJU AGED ABOUT 18 YEARS APPELLANTS NO. 5(A) TO 5(C) ARE RESIDENTS OF AITHANDAHALLI VILLAGE KASABA HOBLI, BANGARPET TALUK - 563 114. 6. SMT. SEERANJAMMA D/O LATE VALAGAMADI NARAYANAPPA, AGED ABOUT 44 YEARS, R/AT DODDA ANKANDAHALLI VILLAGE KASABA HOBLI BANGARPET TALUK - 563 122 7. SMT. MENASAMMA D/O LATE VALAGAMADI NARAYANAPPA, AGED ABOUT 39 YEARS, R/AT PARASHAGANAHALLI VILLAGE KOLAR TALUK - 563 114 8. KUM. CHOWDAMMA D/O LATE VALAGAMADI NARAYANAPPA, AGED ABOUT 31 YEARS, AITHANDAHALLI VILLAGE - 3 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 …APPELLANTS (BY SMT. RAKSHITHA V.N, ADVOCATE FOR SRI. RAGHAVENDRA RAO K, ADVOCATE; VIDE ORDER DATED 12.09.2022, A2 TO A8 ARE THE LRS OF DECEASED A1) AND: 1. SRI. B. M. MUNIVENKATAPPA SINCE DEAD BY HIS LRS 1(A). SMT. PILLAMMA W/O LATE SRI. B.M. MUNIVENKATAPPA AGED ABOUT 75 YEARS 1(B). B.M. AMBARISH S/O LATE SRI. B.M. MUNIVENKATAPPA AGED ABOUT 55 YEARS 1(C). SUREH B.M S/O LATE SRI. B.M. MUNIVENKATAPPA AGED ABOUT 50 YEARS 1(D). SMT. MEENA W/O CHANDRAPPA D/O LATE SRI. B.M. MUNIVENKATAPPA AGED ABOUT 48 YEARS R/AT 1ST CROSS, VIVEKANANDA NAGAR BANGARPET POST, BANGARPET TALUK KOLAR DISTRICT - 563 114. 1(E). MANJUNATH B.M S/O LATE SRI. B.M. MUNIVENKATAPPA AGED ABOUT 46 YEARS KASABA HOBLI, BANGARPET TALUK - 563 114. - 4 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 RESPONDENTS NO.1(A) TO 1(C) AND 1(E) ARE R/AT AITHANDAHALLI VILLAGE KASABA HOBLI, BANGARPET TALUK - 563 114. …RESPONDENTS (BY SMT. NEERAJA KARANTH, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.02.2020 PASSED IN RA.NO.171/2016 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, KOLAR (SITTING AT K.G.F) PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 23.02.2016 PASSED IN O.S.NO.23/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, BANGARPET. IN RSA NO. 370/2023 BETWEEN: B. M. MUNIVENKATAPPA SINCE DEAD BY LRS., 1. SMT. PILLAMMA D/O. LATE SRI. B. M. MUNIVENKATAPPA, AGED ABOUT 74 YEARS, 2. M. AMBARISH S/O. LATE SRI. B. M. MUNIVENKATAPPA, AGED ABOUT 54 YEARS, 3. SURESHA. M S/O. LATE SRI. B. M. MUNIVENKATAPPA, AGED ABOUT 52 YEARS, 1 TO 3 ARE RESIDING AT AITHANDAHALLI VILLAGE, KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT - 563 162. - 5 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 4. SMT. MEENA W/O. CHANDRAPPA, D/O. LATE SRI. B. M. MUNIVENKATAPPA, AGED ABOUT 48 YEARS, R/AT 1ST CROSS, VIVEKANANDA NAGAR, BANGARPET POST, BANGARPET TALUK, KOLAR DISTRICT - 563 114. 5. MANJUNATH. M S/O. LATE SRI. B. M. MUNIVENKATAPPA, AGED ABOUT 50 YEARS, RESIDING AT AITHANDAHALLI VILLAGE KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT - 563 162. ...APPELLANTS (BY SRI. NEERAJA KARANTH, ADVOCATE) AND: 1. SMT.MUNIYAMMA W/O LATE VAAGAMADI NARAYANAPPA AGED 79 YEARS SINCE DEAD BY HER LRS RESPONDENTS NO.2 TO 8 ALREADY ON RECORD 2. SRI KRISHNAPPA S/O LATE VALAGAMADI NATAYANAPPA AGED ABOUT 56 YEARS 3. SRI VENKATESHAPPA S/O LATE VALAGAMADI NARAYANAPPA AGED ABOUT 52 YEARS, - 6 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 4. SRI MUNIRAJU S/O LATE VALAGAMADI NARAYANAPPA AGED ABOUT 45 YEARS, RESPONDNETS NO. 1 TO 4 ARE RESIDING AT AITHANDAHALLI VILLAGE KASABA HOBLI, BANGARPET TALUK KOLAR DISTRICT - 563 114 5. SMT. MUNIVENKATAMMA D/O. LATE VALAGAMADI NARAYANAPPA, W/O. MUNIVENKATAPPA, SINCE DEAD BY LRS, 5(A). PRADEEP KUMAR M S/O MUNIRAJU AGED 19 YEARS 5(B). MANASA M D/O MUNIRAJU AGED 20 YEARS 5(C). CHETHAN KUMAR M S/O MUNIRAJU AGED ABOUT 18 YEARS ALL ARE RESIDING AT AITHANDAHALLI VILLAGE KASABA HOBLI BANGARPET TALUK - 563 114 KOLAR DISTRICT. 6. SMT. SEERANJAMMA D/O. LATE VALAGAMADI NARAYANAPPA, W/O. MURALI, AGED ABOUT 46 YEARS, - 7 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 RESIDING DODDA ANKADALLI VILLAGE, KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT - 563 164. 7. SMT. MENASAMMA D/O. LATE VALAGAMADI NARAYANAPPA, W/O. RAJAPPA, AGED ABOUT 41 YEARS, RESIDING AT PARASHAGANAHALLI VILLAGE, KOLAR TALUK, KOLAR DISTRICT - 563 130. 8. KUM. CHOWDAMMA D/O. LATE VALAGAMADI NARAYANAPPA, W/O. MUNIVENKATAPPA, AGED ABOUT 33 YEARS, RESIDING AT AITHANDAHALLI VILLAGE KASABA HOBLI, BANGARPET TALUK, KOLAR DISTRICT - 563 162. ...RESPONDENTS (BY SMT. RAKSHITHA V.N, ADVOCATE FOR SRI. RAGHAVENDRA RAO K, ADVOCATE FOR R2 TO R4; VIDE ORDER DATED 04.08.2025, R2 TO R8 ARE THE LRS OF DECEASED R1) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 06.02.2020 PASSED IN RA.No.154/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, KOLAR (SITTING AT KGF), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 23.02.2016 PASSED IN OS No.23/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, BANGARPET. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 8 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Smt.Rakshitha V. N., learned counsel appearing on behalf of Sri.K.Raghavendra Rao, learned counsel for the appellants and Smt.Neeraja Karanth, learned counsel for respondents. 2. RSA No.753/2021 is filed by the plaintiffs challenging the judgment of the Trial Court passed in O.S.No.23/2005 which was confirmed in RA No.171/2016 whereby the suit of the plaintiffs came to be decreed in part reversing the judgment of the Trial Court in dismissing the suit in entirety and granting declaration and consequential relief in respect of suit schedule ‘B’ property which is a portion of suit schedule ‘A’ property; whereas the appeal in RSA No.370/2023 is filed by the defendant challenging the dismissal of the counter claim in respect of suit schedule ‘C’ property. - 9 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 3. Facts in brief which are utmost necessary for disposal of the present appeals are as under: 3.1. A suit for permanent injunction came to be filed O.S.No.23/2005 at the inception which was later on converted into declaration and permanent injunction in respect of the following immovable properties (hereinafter referred to as suit properties): A schedule All the part and parcel of the landed property bearing Sy.No.206, measuring 4 acres 30 guntas including 20 guntas karab situated at Ithandahalli village, Kasaba Hobli, Bangarpet Taluk which is bounded on east Shoukath Khan, west – Valagamadi Muniyappa, north – Abbani Muniyappa, karab land and B. Munivenkatappa and south – Krishnappa’s land. B schedule Out of A schedule an extent of 2 acres 30 guntas including karab land of 10 guntas situated Ithandahalli village, bounded on east – Shoukath Khan, west – Valagamadi Muniyappa, in Sy.No.202, north –C-schedule property and south – Krishnappa’s land. C schedule Out of A schedule an extent of 2 acres situated at Ithandahalli village, bounded on east Bashu Sab and Shoukath Khan, west – Valagamadi Muniyappa - 10 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 in Sy.No.202, north – Abbani Muniyappa’s property and south – B schedule land. Counter claim schedule property All the piece and parcel of landed property measuring 2-00 acres comprised in Sy.No.173/P9 and 206 sitauted at Ithandahalli village, Kasaba hobli, Bangarpet Taluk and same is bounded on east – Valagamadi Narayanappa, north – Abbini Muniyappa, south – Valagamadhi Narayanappa and Halla.” 3.2. Plaintiff laid the claim against the defendant in respect of the suit schedule properties by contending that plaintiff is the absolute owner and is in peaceful possession of the property bearing Sy.No.206 measuring 4 acres 30 guntas including the 10 acres of kharab land of Ithandahalli village, Bangarpet Taluk. 3.3. According to the plaintiff, suit property earlier belonged to Sabu Sabi @ Sabjansab and his wife and their children and they were in possession and enjoyment of the suit property. Plaintiff having purchased the suit properties from Sabu Sabi @ Sabjansab, his wife and children under the registered sale deed dated 14.08.2002 for a valuable consideration was put into the possession of - 11 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 the suit property and thereafter, revenue entries were mutated in the name of the plaintiff and thereafter, plaintiff enjoyed the suit property as an absolute owner. 3.4. It is further contention of the plaintiff that defendant without having any right, title or interest much less possession over the suit property, in the last week of January, 2005, tried to interfere with the peaceful possession and enjoyment of the plaintiff and therefore, plaintiff had to file the suit. 3.5. During the pendency of the suit, plaint got amended and as per the amended pleadings, it is contended that in May, 2006 defendant illegally encroached into portion of the ‘A’ schedule property to the extent of two acres of the land claiming that land bearing Sy.No.173 is the defendant’s land and he is the owner of the said land and forcibly encroached two acres of the land in ‘A’ schedule property which is specifically mentioned in ‘C’ schedule property to the plaint. - 12 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 3.6. Plaintiff further contended that possession of the plaintiff is morefully described in ‘B’ schedule to the plaint and defendant has no right over the ‘C’ schedule property and therefore, sought for appropriate relief to be granted. 4. Pursuant to the suits summons, defendant appeared through the Advocate and filed detailed written statement denying the plaint averments in toto. 5. It is also contended that defendant is in possession of two acres of the land towards the northern side of three acres of the land in Sy.No.206 which belongs to the plaintiff. 6. The kharab land shown in the northern boundary of the suit schedule is measuring 30 guntas and it is a halla and it is not 10 guntas as is found in the RTC extract. 7. Defendant also contended that the said kharab land/halla lies to the northern side of the land of the - 13 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 defendant and total extent of the land mentioned in the schedule is incorrect as the vendor of the plaintiff and their predecessors were in possession and enjoyment of the land only to the extent of about three acres and not more than that. As such, there is no question of encroachment made by the defendant and sought for dismissal of the suit. 8. It is also contended that when the plaintiff got surveyed the land for the first time, it got revealed that the defendant is in possession of one acre of land in Sy.No.206 of Ittandahalli village is incorrect though in the sale deed of the defendant and his vendors, it is mentioned as their land lies in Sy.No.173 and they were in actual possession of the land both in Sy.Nos.173 and 206. Therefore, the contentions of the plaintiff that defendant has encroached the suit property in May, 2006 is incorrect. 9. Defendant also contended that Sabu Sabi @ Sabjansab who is the vendor of the plaintiff and their family members, had already sold 2 acres 10 guntas of the - 14 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 land towards the southern side in Sy.No.206 to Appaswamy @ Chikkamuniswamy on 06.05.1958 itself and plaintiff’s vendor had purchased the same from Appaswamy. The boundaries mentioned in those sale deeds have clearly tallied with the sale deed of the plaintiff dated 14.08.2002. 10. It is further contended that in the sale deed of the plaintiff, northern boundary is mentioned as Ameersabi that is the vendor of the defendant and it is also found from the material on record that the plaintiff’s vendor was in possession of half extent towards the southern side in Sy.No.206 measuring three acres and therefore, suit of the plaintiff needs to be dismissed. 11. Learned Trial Judge in the light of the rival contention of the parties, raised necessary issues and additional issues on two occasions and after recording the evidence of the parties, dismissed the suit of the plaintiff and allowed the counter claim granting permanent - 15 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 injunction in favour of the defendant as against the plaintiff. 12. Being aggrieved by the same, legal representatives of plaintiff filed two appeals before the First Appellate Court in RA No.171/2016 and 154/2019. 13. Learned Judge in the First Appellate Court after entertaining the appeals of the legal representatives of the plaintiff, issued notices of the appeal in both the appeals to the respondent. Respondent/defendant appeared before the First Appellate Court. 14. Thereafter, learned Judge in the First Appellate Court secured the records and heard the arguments of the parties in detail and reappreciated the oral and documentary evidence placed on record. After so considering the arguments of the parties, in the light of the oral and documentary evidence placed on record and also the legal principles laid down in the decision relied - 16 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 upon by the parties, framed five points for consideration as under: 1. Whether the plaintiff has proved that he is the absolute owner in possession of the suit ‘A’ schedule property? 2. Whether the plaintiff has proved that the defendant has encroached upon the suit ‘C’ schedule property and he is entitled to its possession? 3. Whether the counter claim filed by the defendant is maintainable and he is entitled to the relief claimed therein? 4. Whether the application (IA No.II) filed by the plaintiffs/appellants under Order XLI Rule 27 of CPC deserves to be allowed? 5. Whether the impugned judgment and decree passed by the Trial Court calls any interference by this Court in exercise of the appellate jurisdiction? 15. On reappreciation of the factual and legal aspects, learned Judge in the First Appellate Court recorded the findings on point Nos.1 to 5 as under: “Point No.1 – Partly in the affirmative. Point No.2 – In the negative Point No.3 – In the negative Point No.4 – In the negative Point No.5 – Partly in the affirmative” - 17 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 16. Thereafter, learned Judge in the First Appellate Court partly allowed the appeal of the plaintiffs in RA No.171/2016 and decreed the suit of the plaintiffs in respect of ‘B’ schedule property and allowed the appeal in RA No.154/2019 and dismissed the counterclaim of the defendant. 17. Dismissal of the suit in respect of ‘C’ schedule property which is a portion of ‘A’ schedule property is called in question in RSA No.753/2021 and dismissal of the counter claim in respect of ‘C’ schedule property is called in question by the legal representatives of defendant in RSA No.370/2023 on the following grounds and substantial questions of law: IN RSA No.753/2021  The Courts below have committed an illegality in passing the judgment and decree.  The Defendant specifically claims that he has purchased his property from Late Smt. Bi Bi Jan and her children pursuant to a registered sale deed - 18 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 dated 28.10.1998. In the said sale deed which is marked as Exhibit D 3. The survey Number is mentioned as Sy. No. 173 of Aithandahalli Village. However, in his written statement he pleads that his land is located both in Sy. No. 173 and 206. This pleading is contrary to the very document of title produced by the Defendant. The courts below have ignored the recitals in Exhibit D 3 and have relied upon the oral testimony given by the Defendant. This approach of the courts below is illegal and perverse.  It is submitted that, in Exhibit D 3 the document of title relied upon by the Defendant. The description of the land is given as 2 acres of land in Sy No. 173 of Aithandahalli Village bounded on East by Bashu Sharief land, West by Valagamadi Narayanappa's land, North by Ambini Muneppa's land, South by Sabu Sabi land and Halla. However, the property claimed by the Defendant in his counter claim is as hereunder: Schedule All the piece and parcel of landed property measuring 2-00 acres comprised in survey No. 173/P9 and 206, situated at Ithandahalli Village, Kasaba hobli, Bangarpet Taluk, and the same is bounded on the - 19 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 East by:Bashu Saherief's property, West by:Valagamadi Narayanappa, North by:Abbini Muniyappa, South by:Valagamadhi Narayanappa and Halla."  It is submitted that, the Survey Number and also the boundaries in Exhibit D 3, the title of the defendant and the written statement filed by him are not the same. Without considering this aspect of the matter the courts below have adjudicated the matter. Hence the judgment and the decree of the court below are liable to be set aside.  A perusal of the written statement filed by the Defendant would clearly disclose that, the Defendant specifically admits that the Plaintiff is in possession of 3 acres of land. Ignoring the very admission of the Defendant, the courts below have adjudicated the matter. This clearly reflects the total non application of the mind by the courts below in rendering the judgment and decree.  Paragraph 28 of the judgment rendered by the trial court has considered the report of the committee. It records a finding that commissioners' report reflects that the Plaintiff is in possession of 3 acres of land and the Defendant is in possession of 1 acre 30 guntas of land. - 20 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 Ignoring this material evidence on record the courts below have adjudicated the matter.  It is submitted that, Exhibit P1 to P21 produced by the appellants would clearly prove the case of the Plaintiff. Ignoring these documents, relying upon the plea of the defendant which is not in consonance with Exhibit D3, the document of title produced by the Defendant, the courts below have adjudicated the matter.  It is submitted that, the courts below have ignored the admitted facts of the parties. The plaintiffs claim is in respect of Sy. No. 206. The Defendant has not disputed this fact. The Defendant has his claim on in respect of Sy. No. 173. The sale deed produced by the Defendant is in respect of Sy. No. 173. Therefore, on these admitted facts, the courts below ought to have decreed the suit as prayed for by the Plaintiff.  The courts below have not considered the report of the court commissioner in proper perspective. In the report the commissioner has specifically found there is no Halla as boundary line as pleaded by the Defendant. Therefore, the adjudication is made without considering the material evidence on record. - 21 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 SUBSTANTIAL QUESTIONS OF LAW 1. Whether the courts below have committed an illegality in making out a new case to the Defendant than what has been pleaded by him? 2. Whether the courts below are right in law in ignoring Exhibit D3 which is the document of title produced by the Defendant in adjudicating the matter? 3. Whether the courts below have committed an illegality in ignoring the commissioner's report in adjudicating the matter? RSA No.370/2023  The First Appellate Court has erred in dismissing the Counterclaim on the ground of maintainability. The Court has held that the Defendant's counterclaim is not maintainable on the basis of the judgment of the Hon'ble Apex Court in the case of Ashok Kumar Kalra vs Wing Cdr. Surendra Agnihothribecause the same was sought belatedly when the case was posted for arguments. It however failed to note that the Defendant sought Counter claim for Permanent Injunction only after the Plaintiff alleged that the Defendant had - 22 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 encroached over the C schedule property and amended the prayer seeking Possession of C schedule property. The Plaintiff specifically states in the amended Plaint that during May 2006, the Defendant has encroached the portion of Plaintiff's property and taken possession of the same which is shown as C schedule and therefore, he is liable to pay mesne profits. This allegation has resulted in Defendant making a Counter claim on 7/6/2006 which was taken on record on 26/6/2006. The Court despite noting the date and circumstances on which the Counterclaim was raised, failed to appreciate the case in the right perspective.  The Court failed to note that the original prayer in the plaint was only for Permanent Injunction over B schedule property measuring 2 acre 30 guntas in Sy No. 206. However, the original plaintiff had admitted that he was in possession over the land within the boundaries mentioned in the sale deed only. He further had admitted that Defendant's property lies on the northern side of the same survey Number l.e., Sy No, 206 after the halla. The prior sale deed dated 30/6/1933 marked as ExD1executed by Krishnayya Shetty in favour of Mohd. Ibrahim Sab for 2-00 acres denotes that northern side of the land is in Hyder Khan's name although is in possession of Krishnayya Shetty. - 23 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 The southern boundary forms the land belonging to Hyder Khan which is actually the Plaintiff's property. The subsequent sale deed dated 6/4/1955 marked as Ex D2 executed by Mohd. Ibrahim Sab in favour of Ameer Sab also mentions the same. The original Plaintiff is a witness to this sale deed. Ex D3 is the sale deed dated 28/10/1998 executed by Bibi Jaan W/o of Ameer Sab in favour of Defendant notes the southern boundary as halla and land of Sabusab, Plaintiff's vendor. This clarifies that the northern portion of Sy No. 206 is the land of Defendant which is shown as C Schedule property by the Plaintiff. Nevertheless, after the death of Plaintiff, his legal heirs alleged encroachment over the said land by the Defendant and prayed for relief of Possession. As there is correlation between the Plaintiff's allegation and the title of Defendant over the said land, the Defendant has sought Counterclaim over the said land after the Plaint was amended with the prayer of Possession over the C schedule. In other words, had the Plaintiff not sought the prayer of Possession the Defendant would not have sought for Counter claim of Injunction. The First Appellate Court failed to appreciate this factor. - 24 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 SUBSTANTIAL QUESTION OF LAW Whether the First Appellate Court justified in rejecting the Counterclaim on the basis of the judgment of Hon'ble Supreme Court which could not have been applied to the Defendant's case for its peculiar facts and circumstances? 18. Learned counsel for the appellants in RSA No.753/2021 reiterating the grounds urged in the appeal memorandum contended that the learned Judge in the First Appellate Court after dismissing the counterclaim of the defendant in respect of ‘C’ schedule property erred in law in dismissing the suit of the plaintiff in respect of suit ‘C’ schedule property. 19. Therefore, there is a vacuum in the reasoning assigned by the learned Judge in the First Appellate Court and thus, sought for admitting the appeal on the aforesaid substantial questions of law. 20. She would further contend that dismissal of the counterclaim which is the subject matter of RSA - 25 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 No.370/2023 is just and proper and sought for dismissal of the said appeal. 21. Per contra, learned counsel for legal representatives of respondent/defendant in RSA No.753/2021 and legal representatives of appellant/defendant in RSA No.370/2023 reiterating the grounds in the appeal filed by the defendant contended that when once the learned Judge in the First Appellate Court upheld the dismissal of the suit in respect of ‘C’ schedule property, consequentially the decree of the counterclaim in respect of the suit property by the defendant ought to have been allowed. Thus, dismissing the counterclaim has resulted in miscarriage of justice and sought for admitting the appeal of the defendant for further consideration. 22. Having heard the arguments of both sides, this Court perused the material on record meticulously. - 26 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 23. On such perusal of the material on record, there is no dispute that the plaintiff is claiming the right, title and interest in respect of the suit property on the basis of sale deeds placed on record vide Exs.P.4 to 8. It is the specific case of the plaintiff that the property earlier belonged to one Sabu Sabi @ Sabjansab, his wife and children who have jointly executed the sale deeds at Exs.P.4 and P.8. 24. According to the said sale deeds, the extent that has been sold to them is 4 acres 30 guntas plus 10 guntas of the kharab land. In other words, they are the owners of five acres of the property in Sy.No.206 of Itthandahalli village. 25. How Sabu Sabi @ Sabjansab and his wife became the owners of the suit property is not spelt out in the plaint; pertinently even after amendment of the plaint. 26. It is also pertinent to note that initially suit was filed for bare injunction against the defendant. It is only - 27 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 after the amendment took place, there was an additional plea by the plaintiff that after the institution of the suit, in May, 2006, the defendant encroached the portion of ‘A’ schedule property to the extent of two acres which compelled the plaintiff to amend the plaint for declaration and permanent injunction. 27. Contra plea of the defendant is that, they have purchased the suit property by virtue of the sale deed marked at Ex.D.1 which is of the year 30.06.1933. 28. It is their specific case that even though in Ex.D.1, there is a recital that the suit property purchased by them in Sy.No.173 which is a gomal land of Ittandahalli village, they occupied the property to the extent of two acres which is forming portion of land in Sy.Nos.173 and 206 having regard to the fact that there lies a halla on the northern side of the land purchased by the defendant which is measuring about 30 guntas and not 10 guntas as is contended by the plaintiff in the plaint. Therefore, even though there was a mistake with regard to the survey - 28 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 number, it is the defendant who was in occupation of two acres of land forming portion of Sy.No.173 and portion of Sy.No.206. 29. It is the plaintiff who got surveyed the land and later on came to know that though the sale deed of Sabu Sabi @ Sabjansab in favour of the plaintiff describes the property as 4 acres 30 guntas, actually the land that was left behind for the Sabu Sabi @ Sabjansab to sell it, is only to the extent of three acres as Sabu Sabi @ Sabjansab had earlier sold the portion of the suit property in favour of one Appaswamy @ Chikkamuniswamy by virtue of the sale deed dated 06.05.1958. Therefore, there was no land possessed by Sabu Sabi @ Sabjansab to sell it in favour of the plaintiff to the extent of 4 acre 30 guntas which is depicted by Exs.D9 and D.10 and same has been taken note of by the both the Courts. 30. While the learned Trial Judge believed the case of the defendant in toto and dismissed the suit of the plaintiff and decreed the counterclaim of the defendant, - 29 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 learned Judge in the First Appellate Court reappreciated the very same evidence in paragraph Nos.38 to 64 as under: “38. As rightly contended by the learned counsel for the Defendant, the Plaintiffs cannot derive title in respect of the suit 'A' schedule property merely because Ex.P.8/Sale Deed refers to an extent of 4 acres 30 guntas. The Plaintiffs would get title only in respect of the property within the boundaries stated in Ex.P8/Sale Deed and not the entire extent as the boundaries would prevail over the extent of land stated in the Deed. All the decisions relied upon in this regard by the learned counsel for the Defendant are squarely applicable to the facts and circumstances of this case. 39) The learned counsel for the Plaintiff has relied upon the decision of the Division Bench of our Hon'ble High Court in the case of Puttanna Shetty (Deceased) by LR’s – V/s – Smt. Padma Shetty (Deceased) by LR’s and Others reported in 2007 (3) Kar.L.J. 28 (DB), wherein it is held that an admission accepted as proof of fact in issue must be clear and conclusive and any stray statement elicited from party in crossexamination cannot be construed as admission and held against a party so as to deprive him of his right. He has also relied upon the decision of the Division Bench of our Hon'ble High Court in the case of Smt. Parameshwari Bai – V/s – Muthojirao Scindia reported in AIR 1981 Karnataka 40, wherein the same principle is laid down. As discussed above, the Plaintiffs are not denied relief based upon the admissions made by PW's. 1 and 2 - 30 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 alone. The Plaintiffs have failed to prove the source of title in respect of the entire extent of the suit 'A' schedule property and there are no documents produced to show that the Vendors of the Plaintiffs i.e., Hyder Khan or his heirs had retained title over the suit 'C' schedule property, which was sold by one Krishnaiah Shetty under Ex.D1/Sale Deed dated 30.06.1933. Under these circumstances, I am of the humble opinion that the said decisions will not help the Plaintiffs in any manner. 40) The learned counsel for the Plaintiff has relied upon some admissions made by the witnesses examined on behalf of the Defendants and contended that the same are fatal to the case of the Defendants. It is noticed that DW1 has admitted that he does not know in respect of which Survey Number the Plaintiff has filed the Suit. He does not know if he has filed any written statement and did not instruct his Advocate to prepare and submit the written statement. He has produced the Sale Deed pertaining to Sy. No. 173 measuring 2 Acres. The Plaintiff has purchased land from Sab Jan Sabi, but he does not know its Survey Number or extent. Ex.P4 may be the Sale Deed executed by Sab Jan Sab and his family members, but he does not know the extent and boundaries mentioned in the said Sale Deed. The boundaries stated in the said Sale Deed are proper, including the northern boundary as kharab land and the land of the Defendant. He does not know if the Plaintiff is in possession of 4 Acres 30 guntas of land. DW4 , who is the GPA Holder and the son of the Defendant, admits that the property purchased by them is in Sy. No. 173 and the same has not changed. He further admits that their land is not phoded and they do not have any rights in Sy. - 31 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 No. 206. He admits that he does not know where the land in Sy. No. 173 purchased by them is situated. He also admits that he does not know if they are claiming the said 2 Acres of land in the suit 32 R.A. Nos. 171 of 2016 & 154 of 2019 schedule property. It is no doubt true that there are some admissions which are contrary to the plea taken by them in the written statement. However, the same are not sufficient to entitle the Plaintiffs to succeed in their case. It is settled law that the Plaintiffs will have to succeed on their own strength when they have approached the Court for relief and cannot take advantage of the weakness of the Defendants to succeed in their case. 41) Thus, the Plaintiffs have failed to prove that they are the absolute Owners of the entire extent of 4 Acres 30 guntas of land in Sy. No. 206. When the northern boundary mentioned in Ex.P8/Sale Deed is “kharab land and the land of the Defendant”, the Plaintiffs cannot claim any land beyond the said boundary mentioned in the Sale Deed. The boundaries would prevail over the inconsistent measurement stated in the said document. The recital contained in Ex.D1/Sale Deed is also clear that the property sold by Krishnaiah Shetty was the gomala land in Sy. No. 173 standing in the name of Hyder Khan and the southern boundary is also stated as land of Hyder Khan. It is admitted that the said Hyder Khan was not in possession of any other properties apart from the said land. The conduct of heirs of Hyder Khan in selling and respondent purchasing only the southern half portion of Sy. No. 206 measuring 2 Acres 10 guntas as per Ex.D9 and Ex.D10, would also prove that the said persons or Hyder Khan did not have any rights in the northern - 32 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 portion of Sy. No. 206, which is sold by Krishnaiah Shetty under Ex.D1/Sale Deed. Hence, the Plaintiffs have only been able to prove their case that they are the absolute Owners in respect of the property purchased by them within the boundaries stated in Ex.P8/Sale Deed, which is the same as the suit ‘B’ schedule property, excluding 10 guntas of kharab land and they are in possession of the suit ‘B’ schedule property. The identity of the suit ‘B’ schedule property and the property shown in Ex.P8/Sale Deed would clearly tally as the boundaries are one and the same and its identification cannot be disputed. The Plaintiffs have not pleaded the exact date of alleged encroachment and miserably failed to prove their case that the alleged encroachment of the suit ‘C’ schedule property by the Defendant was during the pendency of the Suit. Thus, the alleged date of encroachment of the suit ‘C’ schedule property by the Defendant is not established as per pleading put forth by the Plaintiff. On the contrary, the material on record shows that the said land is purchased by the Defendant under Ex.D3/Sale Deed, based upon the earlier title Deeds as per Ex.D1 and Ex.D2. Hence, I answer Point No. 1 as ‘Partly in the Affirmative’ and Point No. 2 in the ‘Negative’. 42) POINT No. 3: It is the contention of the learned counsel for the Plaintiffs that the original written statement was filed by the Defendant on 16.04.2005, which is amended on 18.01.2006 and thereafter I.A. No. IX is allowed on 27.06.2016 and the counter claim of the Defendant is taken on record independently. According to him, the said procedure followed by the Trial Court is illegal and the said counter claim itself is not maintainable. It is - 33 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 contended that the Defendant can only file the counter claim as part of the written statement and not separately. 43) On the other hand, it is the contention of the learned counsel for the Defendant that a counter claim can be filed at any stage, having regard to the cause of action and limitation period and there is no defect in the counter claim filed by the Defendant. According to him, the counter claim filed by the Defendant, though subsequent to the filing of the written statement, is maintainable. 44) At the outset, certain relevant dates with regard to the proceedings in the Suit before the Trial Court, as forthcoming from the records, are to be considered. The Defendant has entered appearance before the Trial Court on 05.03.2005. The original written statement is filed by the Defendant on 16.04.2005. After the issues are framed, the evidence of the Plaintiff is recorded on 08.07.2005 and he is examined as PW1 and Ex.P1 to Ex.P3 are marked PW1 is examined further and Ex.P4 to Ex.P7 are marked on 22.07.2005. PW1 is crossexamined in part on behalf of the Defendant on 24.08.2005 and he is fully cross examined on 09.09.2005. The case is posted for evidence of the Defendant on 20.10.2005. On 10.11.2005, the Defendant has field I.A. No. V under Order VI Rule 17 of CPC seeking to amend his written statement. By Order dated 21.12.2005, the said application (I.A. No. V) is allowed and the Defendant is permitted to carry out the proposed amendment of his written statement. On 01.03.2006, the Defendant has examined himself as DW1 and got marked Ex.D1 to Ex.D10. DW1 is crossexamined on behalf of the Plaintiff on 23.03.2006. The case is posted for arguments on - 34 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 05.04.2006. After recalling the stage of the case, the Defendant has got examined DW’s. 2 and 3 on 20.04.2006 and the case is again posted for arguments on 16.06.2006. It is only thereafter on 07.06.2006 that the Defendant has filed I.A. No. IX under Order VIII Rule 6A of CPC along with his counter claim and the said application is allowed, by Order dated 26.06.2006. Consequently, the counter claim filed by the Defendant is taken on record on 26.06.2006. 45) Thus, the above said proceedings make it evident that the Defendant has filed the counter claim along with I.A. No. IX only on 07.06.2006, when the Suit was posted for final arguments on merits, after both sides had concluded their evidence and the same is taken on record on 26.06.2006. 46) Recently, a 3Judge Bench of the Hon’ble Supreme Court in the case of Ashok Kumar Kalra – V/s Wing Cdr. Surendra Agnihotri and Others (S.L.P (C) No.23599 of 2018 dated 19112019) , has examined as to whether the language employed in Order VIII Rule 6A of the Civil Procedure Code, 1908, is mandatory in nature, after the said question is referred to a larger bench for consideration. It is specifically held as under: “18. The time limitation for filing of the counterclaim, is not explicitly provided by the Legislature, rather only limitation as to the accrual of the cause of action is provided. As noted in the above precedents, further complications stem from the fact that there is a possibility of amending the written statement. However, we can state that the right to file a counterclaim in a suit is explicitly limited by the - 35 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 embargo provided for the accrual of the cause of action under Order VIII Rule 6A. Having said so, this does not mean that counterclaim can be filed at any time after filing of the written statement. As counterclaim is treated to be plaint, generally it needs to first of all be compliant with the limitation provided under the Limitation Act, 1963 as the timebarred suits cannot be entertained under the guise of the counterclaim just because of the fact that the cause of action arose as per the parameters of Order VIII Rule 6A. 19. As discussed by us in the preceding paragraphs, the whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Particularly, the purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filling of the counterclaim, the provision itself becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hypertechnical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced approach keeping in mind the object behind the amendment and to subserve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be - 36 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 filed, by curtailing the discretion conferred on the Courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counter claim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to the CPC. Xxxxx 21. We may note that any contrary interpretation would lead to unnecessary curtailment of the right of a defendant to file counterclaim. This Court needs to recognize the practical difficulties faced by the litigants across the country. Attaining the laudable goal of speedy justice itself cannot be the only end, rather effective justice wherein adequate opportunity is provided to all the parties, need to be recognized as well [refer to Salem Advocate Bar Association Case (supra)]. 22. We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counter claim with - 37 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive: i. Period of delay. ii. Prescribed limitation period for the cause of action pleaded. iii. Reason for the delay. iv. Defendant's assertion of his right. v. Similarity of cause of action between the main suit and the counterclaim. vi. Cost of fresh litigation. vii. Injustice and abuse of process. viii. Prejudice to the opposite party. ix. and facts and circumstances of each case. x. In any case, not after framing of the issues. 23. We answer the reference accordingly………” (emphasized by me) 47) It is also noticed that one of the Hon’ble Judges of the said 3Judge Bench, while agreeing with the conclusion that a Court may exercise its discretion and permit the filing of a counterclaim after the - 38 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 written statement, till the stage of framing of the issues of the trial, has added that in exceptional circumstances, the subsequent filing of a counterclaim may be permitted till the stage of commencement of recording of the evidence on behalf of the Plaintiff. 48) Thus, though a counter claim can be filed subsequent to the filing of the written statement, it is required to be filed before framing of Issues. As noticed above, in this case, the counter claim is filed by the Defendant only on 07.06.2006, when the Suit was posted for final arguments on merits, after both sides had concluded their evidence and the same is taken on record on 26.06.2006. The Defendant has not filed the counter claim before the framing of issues or even before the commencement of evidence of the Plaintiff. In view of the categorical law declared by the Hon’ble Supreme Court, I am of the opinion that the counter claim filed by the Defendant is not maintainable. 49) The learned counsel for the Plaintiffs has relied upon the decision of the Hon'ble Supreme Court in the case of Ramesh Chand Ardawatiya – V/s Anil Panjwani reported in AIR 2003 SC 2508, wherein it is held that the right of a Defendant to file a counter claim runs with the right of filing the written statement and contended that the counter claim filed subsequent to filing of written statement is not maintainable. The learned counsel for the Defendant has also relied upon the decision of our Hon'ble High Court in the case of Smt. M.S. Gowri and others – V/s Smt. T.R. Vinitha reported in ILR 2002 KAR 265 , wherein it is held that the relief to be claimed by the Defendants is only by way of counter claim under Order VIII Rule 6A of CPC and not by way of - 39 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 amendment to the written statement. He has also relied upon the decision of our Hon'ble High Court in the case of Hanumanthagouda – V/s – Bandu @ Bandeppa Venkatesh Kulkarni and others reported in AIR 2001 KAR 10, wherein it is held that a counter claim can be filed by the Defendant till evidence is not completely closed by the parties and before the matter is reserved for judgment. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Mahendra Kumar and another – V/s – State of Madhya Pradesh and others reported in AIR 1987 SC 1395, wherein it is held that the provisions contained under Order VIII Rule 6A of CPC does not bar the filing of counter claim after filing of written statement, if it is otherwise within limitation. I have carefully gone through the principles laid down in the said decisions. However, I am of the humble opinion that in view of the law declared by the Hon'ble Supreme Court in the case of Ashok Kumar Kalra, supra, the said decisions will not help either of the parties to substantiate their contentions. 50) Though the Defendant may be in possession of the written statement schedule property, no relief of permanent injunction can be granted in favour of the Defendant, when the counter claim filed by him itself is not maintainable. Hence, I answer Point No. 3 in the ‘Negative’. 51) POINT No. 4: The Plaintiffs (Appellants) have filed an Application under Order XLI Rule 27 of C.P.C. (I.A. No. II), seeking to adduce additional evidence, by producing the certified copy of the RTC Extracts, Mutation Register Extracts, Encumbrance Certificates from 01.04.1950 onwards, Sale Deed dated 06.04.1955 and Village Map, to contend that the land in Sy. No. 173 and Sy. No. 206 are different - 40 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 lands and that the Defendant has encroached upon the land in Sy. No. 206 belonging to the Plaintiffs. 52) The general principle of law is that the Appellate Court may permit additional evidence only and only if the conditions laid down in Rule 27 of Order XLI are found to exist. The parties are not entitled, as of right, to the admission of such evidence. This provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly, by use of judicial discretion. The Hon’ble Supreme Court in the case of Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. – V/s Mohamed Iqbal and Mohamed Ali and Co., reported in AIR 1978 SC 798 has held that where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. Further, the Appellate Court cannot supplement the evidence adduced by one party or the other in the Trial Court. Hence, in the absence of satisfactory reasons for the nonproduction of the evidence in the Trial Court, additional evidence should not be admitted in Appeal. As held by the Hon’ble Supreme Court in the cases of State of U.P. – Vs Manbodhan Lal Srivastava reported in AIR 1957 SC 912 and S. Rajagopal V/s C.M. Armugam & Ors., reported in AIR 1969 SC 101, a party who had ample opportunity to produce certain evidence in the Trial Court but failed to do so or elected not to do so, cannot have it admitted in Appeal. Further, the inadvertence of the party or his - 41 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a "substantial cause" within the meaning of this rule. 53) Further, the Hon’ble Supreme Court in the case of Union of India – V/s – Ibrahim Uddin and Another reported in (2012) 8 SCC 148 has held as under: “48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.” 54) Further, the Hon’ble Supreme Court in the case of State of Karnataka and another – V/s – K.C. - 42 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 Subramanya and Others reported in (2014) 13 SCC 468 has held as under: “4.………On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the state of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum. 5. It thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will. 6. In the instant matter, the appellants are a public authority and has sought to produce a road map which, it is unbelievable, was not within the knowledge of the appellants indicating a road to the disputed land. Therefore, the rejection of the application of the appellants to rely on the said map has rightly not been entertained at the stage of first appeal. The impugned order thus do not suffer from legal infirmity so as to interfere with the same.” 55) Our Hon'ble High Court in the case of A.C. Francis (Since deceased) by his LR’s – V/s – B.K. Surendra Kumar and another reported in 2014(3) KCCR 2640 has held that when the Applicant has not produced material in support of the application - 43 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 seeking production of Medical Certificate for adducing additional evidence under Order XLI Rule 27 of CPC, the said application deserves to be rejected. Further, the Division Bench of our Hon'ble High Court in the case of Sri. Punny Akat Philip Raju, Since dead by his LR’s – V/s – Sri. Dinesh Reddy reported in ILR 2016 KAR 2252 has laid down the grounds on which the Appellate Court can permit production of additional evidence. 56) When this application is evaluated keeping in mind the aforesaid principles, it is to be noticed that the evidence on record is sufficient to adjudicate the lis between the parties. In view of my findings on Point Nos. 1 to 3, even by considering the certified copies of the documents sought to be produced by the Plaintiffs, no useful purpose will be served. The Plaintiffs have not produced any documents relating to the period when Ex.D.1/Sale Deed dated 30061933 was executed or earlier. Even otherwise, in view of the law declared by the Hon’ble Supreme Court, it cannot be said that the Plaintiffs have exercised due diligence and were prevented from adducing the said evidence sought to be produced as additional evidence, before the Trial Court as the Suit of the Plaintiff is pending since 2005. Hence, the said application filed under Order XLI Rule 27 of CPC by the Plaintiffs, is liable to be rejected. Hence, I answer Point No. 4 in the “Negative”. 57) POINT No. 5: The Trial Court has held that Ex.P1 to Ex.P21 reveal that the Plaintiff is the absolute Owner of the suit ‘A’ schedule property. However, the Vendor of the Plaintiff has only purchased 2 Acres 10 guntas of land in Sy. No. 206 on 06.05.1958 as per Ex.D 10/Sale Deed and he could not have sold any property beyond the said extent in - 44 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 favour of the Plaintiff. The Plaintiff has not produced any evidence to prove his source of title to entire suit ‘A’ schedule property i.e., 4 Acres 30 guntas and hence no declaratory relief can be granted to the entire extent. The Defendant has purchased the property which is situated towards the northern side of the Plaintiffs’ property, which is claimed by the Plaintiff as suit ‘C’ schedule property. The boundaries of the Sale Deeds of both parties would prove that the Plaintiff is the Owner in possession of 2 Acres 10 guntas including kharab land, as boundaries prevail over the extent shown in the conveyance deed. The admissions made by PW’s. 1 and 2 would show that they are the owners in possession of suit ‘B’ schedule property only and there is no evidence about the Defendant encroaching upon the suit ‘C’ schedule property. The land in Sy. No. 173 is gomala land and also included Sy. No. 206 and hence, mentioning of wrong Survey Number in the title deeds of the Defendant will not take away the actual rights of the Owner. The Report of the Court Commissioner is also in consonance with the evidence on record. 58) In view of my findings on Point Nos. 1 and 2 above, the said reasoning and conclusions of the Trial Court are based upon proper appreciation of evidence. The case put forth by the Defendant is more probable than that of the Plaintiffs, when the evidence on record is appreciated on the touchstone of intrinsic probabilities. It is however noticed that The Trial Court has dismissed the Suit of the Plaintiffs. When the Trial Court has given a categorical finding that the Plaintiffs are the owners in possession of suit ‘B’ schedule property, based upon Ex.P8/Sale Deed dated 14.08.2002, the Plaintiffs are certainly entitled for relief to that - 45 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 extent. The Plaintiffs have proved to the extent that they are the absolute Owners of the suit ‘B’ schedule property, which is a part of suit ‘A’ schedule property and by considering the nature of contest, the Defendants are attempting to interfere with their possession and enjoyment of the suit ‘B’ schedule property. 59) The Trial Court has decreed the counter claim filed by the Defendant by holding that the Plaintiffs are trying to interfere with the possession and enjoyment of the written statement schedule property by the Defendant. In view of my findings on Point No. 3 above, the counter claim filed by the Defendant at the fag end of the proceedings before the Trial Court when the case was posted for final arguments, is not maintainable. The Hon’ble Supreme Court in the case of Ashok Kumar Kalra, supra, has held that a counter claim should be filed before framing of issues. Hence, when the counter claim of the Defendant itself is not maintainable, the question of granting the relief of permanent injunction against the Plaintiffs does not arise. 60) The learned counsel for the Defendant has also relied upon some decisions to contend that revenue documents are not documents of title and no declaratory relief can be granted based on such revenue records. In this case, the Plaintiffs have only produced Ex.P8/Sale Deed which is not supported by any other title deed relating to the ownership of the Vendors of the Plaintiffs in respect of 4 Acres 30 guntas of land. Though the RTC Extracts shows that the said Hyder Khan was the Owner in possession of the suit 'A' schedule property, no relief of declaration of title can be granted based upon such revenue documents alone. There are however other title - 46 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 deeds produced to show the ownership of the Plaintiff and his Vendors in respect of the suit ‘B’ schedule property only. Hence, I am of the opinion that the said decisions are also squarely applicable to the facts and circumstances of this case and the Plaintiffs are not entitled for declaratory relief in respect of the entire extent of suit ‘A’ schedule property. 61) The learned counsel for the Defendant has also relied upon the decision of our Hon'ble High Court in the case of B.P. Sadashivaiah – V/s – Parvathamma reported in (1994)3 Kar.L.J. 529, wherein it is held that no person can give what he does not possesses (on the principle of “nemo dat quod non habet”). As discussed above the Plaintiffs have failed to prove that their Vendors possessed rights in respect of the entire suit 'A' schedule property and Ex.P 8/Sale Deed is only valid to the extent of the suit 'B' schedule property. Hence, I am of the opinion that the said decision is also applicable to the facts and circumstances of this case. 62) The learned counsel for the Defendant has also relied upon some decisions to contend that the declaratory relief sought for by the Plaintiffs is barred by limitation as such relief is claimed by way of amendment to the plaint beyond expiry of 3 years from the date on which the cause of action arose. There can be no dispute about the said principles laid down by the Hon'ble Supreme Court and our Hon'ble High Court in the said decisions. However, in this case the Defendant has not taken any specific plea in the additional written statement filed to the amended plaint. The Trial Court has not framed any issues with regard to the limitation. The question of limitation is a mixed question of fact and law which is - 47 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 required to be proved by adducing sufficient evidence. The Defendant has neither crossexamined PW1 in this regard nor adduced any evidence in support of such contention, when the Plaintiffs have specifically proved the cause of action pleaded in the plaint. Under these circumstances, I am of the humble opinion that the said decisions are not applicable to the facts and circumstances of this case. 63) The learned counsel for the Defendant has also relied upon the decision of the Hon'ble Supreme Court in the case of Sheodhyan Singh and others – V/s – MST. Sanichara Kuer and others reported in AIR 1963 SC 1879, wherein it is held that when the identity of the plot is duly established by reference to the boundaries, the mistake in mentioning the Plot Number cannot affect the identity of the plot sold in execution. In this case, the Sale Deed of the Vendors of the Plaintiff from Ex.D1 executed during 1933 till Ex.D3/Sale Deed executed in favour of the Defendant during 1998, refer to Sy. No. 173 measuring 2 Acres. However, the boundaries in all the conveyance Deeds available on record would prove that the Defendant is the owner in possession of the suit 'C' schedule property. There is no necessity for the Defendant to seek for rectification of Ex.D3/Sale Deed with regard to the survey number as the property is identified clearly with reference to the boundaries stated therein when compared with other conveyance deeds. Hence, the said decision is also applicable to the case on hand. 64) The learned counsel for the Plaintiff has relied upon the decision of the Hon'ble Supreme Court in the case of Indira – V/s – Arumugam and another reported in AIR 1999 SC 1549, wherein it is held that - 48 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 when the Suit for possession is based upon title and the Plaintiffs have established their title on the basis of relevant documents, they cannot be nonsuited unless the Defendant proves adverse possession by prescriptive period. He has also relied upon the decision of the Hon'ble Supreme Court in the case of C. Natarajan – V/s – Ashim Bai and another reported in AIR 2008 SC 363, wherein it is reiterated that when the Plaintiff has filed the Suit for possession claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, the burden would be on the Defendant to prove that he has acquired title by adverse possession. As discussed above, the Plaintiffs have failed to prove their title in respect of the entire suit 'A' schedule property and that the Defendants have encroached upon the suit 'C' schedule property. They have only been able to prove their case in respect of the suit 'B' schedule property. Though the Plaintiffs have purchased the suit 'A' schedule property under Ex.P8/Sale Deed, they derive title and are in possession only to an extent of suit 'B' schedule property, which is a part of suit 'A' schedule property, as the boundaries would prevail over the extent of land stated in Ex.P8. When the Plaintiffs have failed to prove their title over the suit 'C' schedule property, which is another portion of the suit 'A' schedule property, the necessity of the Defendant to plead and prove adverse possession does not arise. Hence, I am of the humble opinion that the said decisions relied upon by the learned counsel for the Plaintiffs are not applicable to the facts and circumstances of this case.” - 49 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 31. Later on, learned Judge in the First Appellate Court modified the judgment of the Trial Court and decreed the suit of the plaintiff to the extent of ‘B’ schedule property which is a portion of ‘A’ schedule property and dismissed the suit of the plaintiff with regard to ‘C’ schedule property. 32. Learned Judge in the First Appellate Court assigned cogent and convincing reasons including the principles of law enunciated in the decisions relied on by both the parties while dismissing the counterclaim of the defendant. 33. Though according to learned counsel for the respondents, the reasons are technical in nature, the reasoning is well oriented based on the factual aspects especially, having regard to the respective pleadings of the parties wherein the defendant is claiming the right only in respect of two acres of the land which is a portion of Sy.No.206 and portion of Sy.No.173. - 50 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 34. Further, the counterclaim was in the nature of only bare injunction. After having known the deficiency in the title by virtue of Ex.D.1 wherein the portion of the property had been occupied by the defendant in Sy.No.206 as is contended in the written statement, though the sale deed mentions that the property that has been conveyed to the defendant is under Sy.No.173, mere counterclaim for bare injunction ought not to have been entertained by the Trial Court. Therefore, the mistake committed by the Trial Court is set right by the learned Judge in the First Appellate Court with cogent and convincing reasons. Therefore, the arguments put forth on behalf of the defendant that the dismissal of the counterclaim is technical in nature cannot be countenanced in law. 35. As such, this Court does not find any good grounds to admit the appeals of the plaintiff or defendant for further consideration. - 51 - HC-KAR NC: 2025:KHC:37880 RSA No. 753 of 2021 C/W RSA No. 370 of 2023 36. In view of the foregoing discussions, following: ORDER Appeals are meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 44