- 1 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1350 OF 2015 (INJ) BETWEEN: THAMMAIAH GOWDA DEAD BY LRS. 1. RATHNAAMMA W/O LATE THAMMAIAH GOWDA AGED ABOUT 62 YEARS, R/O HONNAGUNDI, NERATOOR VILLAGE, THIRATHAHALLI TALUK, SHIVAMOGGA DISTRICT - 577 432. 2. H.T. ANUSUYA W/O K.G. SATISH AGED ABOUT 42 YEARS, R/O KALLATHALLI, THEKKUR POST, SRINGERI TALUK, CHIKKAMAGALUR DISTRICT - 577 139. 3. H.T. RAVI S/O LATE THAMMAIAH GOWDA AGED ABOUT 38 YEARS, R/O HONNAGUNDI NERATOOR VILLAGE, THIRATHAHALLI TALUK, SHIVAMOGGA DISTRICT - 577 432. …APPELLANTS (BY SRI. P.N. HARISH, ADVOCATE) Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 AND: 1. ELIYA POOJARI DEAD BY LRS. 1(a). SEENAA POOJARI, S/O ELIYA POOJARI, AGED ABOUT 68 YEARS. 1(b). SOMA POOJARI S/O ELIYA POOJAARI, AGED ABOUT 42 YEARS. 1(c). ACHUTHA POOJARI S/O ELIYA POOJARI AGED ABOUT 40 YEARS. 1(d). KRISHNA POOJARI S/O ELIYA POOJARI AGED ABOUT 29 YEARS. 1(e). GIRIJAMMA DEAD BY LRS. RESPONDENTS 1(a) TO 1(d). 2. NAGAPPA A. S/O ELIYA POOJARI, AGED ABOUT 53 YEARS. ALL ARE RESIDING AT: BOBBI, NERTOOR VILLAGE, SANKADAHOLE POST, THIRTHAHAALLI TALUK, SHIVAAMOGGA DISTRICT - 577 432. …RESPONDENTS (BY SRI. SHIVARAM BHAT P.G., ADVOCATE FOR R2; R1(a) TO R1(d) - SERVED; V/O DATED 21.01.2025, R1(a)TO R1(d) ARE LEGAL REPRESENTATIVES OF R1(e)) - 3 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 THIS REGLAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 25TH JULY, 2015 PASSED IN REGULAR APPEAL NO.14 OF 2013 (RA 16/2012) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., THIRTHAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21ST JANUARY, 2012 PASSED IN ORIGINAL SUIT NO.67 OF 2000 ON THE FILE OF THE COURT OF CIVIL JUDGE AND JMFC., THIRTHAHALLI. THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL JUDGMENT This appeal is preferred by the legal representatives of the defendant No.1, challenging the judgment and decree dated 25th July, 2015 passed in Regular Appeal No.14 of 2013 (RA No.16/2012) on the file of Senior Civil Judge and JMFC., Thirthahalli (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 21st January, 2012 passed in Original Suit No.67 of 2000 on the file of Civil Judge and JMFC., Thirthahalli (for short, - 4 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 hereinafter referred to as 'Trial Court') wherein, the suit of the plaintiffs came to be decreed. 2. For the sake convenience, parties in this appeal are referred to as per their ranking before the Trial Court. 3. The relevant facts for adjudication of this appeal are that, the original plaintiff-Eliya Poojari and his son Sri. Nagappa have filed Original Suit No.67 of 2000, seeking relief of permanent injunction against the defendants. It is the case of the plaintiffs that the suit schedule property has been granted by the Government as per Hakku Patra dated 20th November, 1972 in favour of the original plaintiff-Eliya Poojari and the plaintiffs are in possession of the suit property as absolute owners. 4. It is also stated that the defendants without having any right and title over the suit property, interfered with the peaceful possession of the same and as such, the plaintiffs have filed suit seeking relief of permanent injunction. - 5 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 5. After service of notice, defendants entered appearance and filed written statement, denying the grant made in favour of the plaintiff No.1. It is further stated in the written statement that, the land bearing Survey No.48 of Neratoor Village, Thirthahalli Taluk is a Government land spread over 100 acres. It is also stated in the written statement that, defendant No.2 has got his own site in Jigalagodu, Neratoor Grama Panchayath. 6. It is further stated that the defendant No.2 has got license from Neratoor Grama Panchayath to put up construction in the site. The defendant No.2 is in possession of the site bearing demand register No.305/305 measuring 60 X 40 feet and the plaintiffs have no right over the property in question and therefore, sought for dismissal of the suit. 7. The Trial Court, based on the pleadings on record, formulated the issues for its consideration. - 6 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 8. In order to establish their rights, plaintiffs examined two witnesses as P.W.1 and P.W.2 and got marked five documents as Exs.P1 to P5. On the other hand, defendants examined two witnesses as D.W.1 and D.W.2 and got marked twenty one documents as Exs.D1 to D21. 9. The Trial Court, after considering the material on record, by judgment and decree dated 21st January, 2012, decreed the suit of the plaintiffs. Being aggrieved by the same, the legal representatives of the defendant No.1 preferred Regular Appeal No.14 of 2013 (RA.16/2012) before the First Appellate Court. The said appeal was resisted by the plaintiffs and the First Appellate Court, after considering the material on record, by judgment and decree dated 25th July, 2015, dismissed the appeal and confirmed the judgment and decree dated 21st January, 2012 passed in Original Suit No.67 of 2000. Being aggrieved by the same, defendants preferred this Regular Second Appeal. - 7 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 10. This Court, by order dated 16th December, 2016 formulated the following substantial question of law: "Whether the finding recorded by the Lower Appellate Court that an application under Order 41 Rule 27 CPC for production of additional evidence can be considered by the Lower Appellate Court "only if' such evidence is refused by the Trial Court?" 11. Heard Sri. P.N. Harish, learned counsel appearing for appellants and Sri. Shivaram Bhat P.G. learned counsel for Caveator/respondent No.2. 12. Sri. P.N. Harish, learned counsel appearing for appellants contended that, both the Courts below have committed an error and not properly appreciated the documents viz., Ex.D3 and Ex.D11. It is also contended by learned counsel appearing for the appellants that the appellant No.3 herein has filed Original Suit No.69 of 2014 against the respondent No.2 herein and the said suit came to be decreed in favour of appellant No.3 and feeling - 8 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 aggrieved by the same, the respondent No.2 herein filed Regular Appeal No.2 of 2025, which is pending consideration before the First Appellate Court. It is also argued that, the subject matter in the instant suit is also the subject matter in Original Suit No.69 of 2014 and accordingly, sought for interference of this Court. 13. Per contra, Sri. Shivaram Bhat P.G. learned counsel for the Caveator/respondent No.2 sought to justify the impugned judgment and decree passed by both the Courts below. 14. In the light of submission made by learned counsel appearing for the parties and on careful examination of relief sought for by the plaintiff in Original Suit No.69 of 2014 would indicate that the appellant No.3 herein is claiming right over the suit property based on the order of grant made by the Government dated 20th November, 1972 and the plaintiffs in Original Suit No.67 of - 9 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 2000 are seeking right over the property in question through a grant. 15. In that view of the matter, as plaintiffs and defendants are seeking similar relief of permanent injunction in the above suits and that apart, the defendants in Original Suit No.67 of 2000 have taken a plea disputing the title of plaintiff/respondents herein, I am of the view that, it is a fit case to remand the matter to the First Appellate Court to rehear the matter afresh, after providing opportunity of hearing to both the sides and to take decision in the matter in view of pendency of the appeal in Regular Appeal No.2 of 2025. 16. It is pertinent to mention herein that, it is open for the First Appellate Court to rehear Regular Appeal No.14 of 2013 afresh along with Regular Appeal No.2 of 2025, which is pending consideration and to take decision in the matter in accordance with law to avoid multiplicity of proceedings on the same subject matter of the suit - 10 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 property. In that view of the matter, the substantial question of law referred to above favors the defendant/appellants herein. 17. In the result, I pass the following; ORDER a) This Regular Second Appeal allowed; b) Judgment and Decree dated 25th July, 2015 passed in Regular Appeal No.14 of 2013 (RA.No.16/2012) on the file of Senior Civil Judge and JMFC, Thirthahalli is hereby set-aside and the matter is remanded to First Appellate Court to reconsider the appeal afresh after affording an opportunity to both the sides; c) It is needless to say that, the First Appellate Court shall rehear the Regular Appeal No.14 of 2013 along with Regular Appeal No.2 of 2025, which is already pending consideration before the First Appellate Court and to take decision in the matter in accordance with law; - 11 - HC-KAR NC: 2025:KHC:29723 RSA NO.1350 OF 2015 d) All contentions of the parties are kept open. e) In order to avoid further delay in the matter, as the parties are represented through their learned counsel, parties are directed to appear before the First Appellate Court on 29th September, 2025. SD/- (E.S. INDIRESH) JUDGE ARK List No.: 2 Sl No.: 20