- 1 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 2007 OF 2021 (INJ) BETWEEN: SRI VENKATACHALA S/O MARIYAPPA AGED ABOUT 61 YEARS R/AT NO.1300 B N AGRAHARA DEWANS ROAD DEVARAJA MOHALLA MYSORE - 573 101. …APPELLANT (BY SRI C R SUBRAMANYA, ADVOCATE) AND: 1. SRI M R SRINIVAS S/O M RAMU AGED ABOUT 57 YEARS, R/AT HOUSING BOARD COLONY 2ND CROSS, NANJANGUD MYSORE DISTRICT - 573 101. 2. SRI M R RAGHAVENDRA S/O M RAMU AGED ABOUT 45 YEARS R/AT NO.456, VOKKALAGERI, NANJANGUD MYSORE DISTRICT - 573 101. Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 3. SMT M R SUDHA D/O M RAMU AGED ABOUT 54 YEARS 4. SMT M R PARIMALA D/O M RAMU W/O A S JAYACHANDRA AGED ABOUT 48 YEARS RESPONDENTS 3 AND 4 ARE RESIDING AT HOUSING BOARD COLONY 2ND CROSS, NANJANGUD MYSORE DISTRICT - 573 101. …RESPONDENTS (BY SRI SUNIL.M.V., ADVOCATE FOR SRI M R VIJAYA KUMAR, ADVOCATE FOR CAVEATOR/RESPONDENT NOS.1 TO 4) THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.03.2020 PASSED IN R.A.No.01/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, NANJANGUD, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.11.2018 PASSED IN O.S.No.32/2012 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Shri.C.R.Subramanya, learned counsel appearing for the appellant; Shri.Sunil.M.V., learned counsel appearing on behalf of Shri.M.R.Vijaya Kumar, learned counsel for the respondents. 2. The present appeal is by the un-successful plaintiff challenging the judgment passed in R.A.No.1/ 2019 by the Senior Civil Judge & JMFC, Nanjangud, dated 09.03.2020 whereby, the suit of the appellant/plaintiff in O.S.No.32/2012 came to be dismissed vide order dated 30.11.2018, which was decreed by the I Additional Civil Judge and JMFC, Nanjangud. 3. The facts in the nut-shell for the disposal of the present appeal are as under: i) Plaintiff filed a suit for bare injunction contending that he is the owner in possession of the property, which is a weigh bridge installed in Plot - 4 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 No.1, Junger No.329:60 situated at Kathavadipura Village, Kasaba Hobli, Nanjungud Taluk, measuring East to West 80 feet and North to South 100 feet, bounded on East by Standard Oil Mill; West by Plot No.2; North and South by road. ii) Plaintiff claims that he is the owner of the said property and he has installed a weigh bridge in the name and style of "Shri Kannikamba Weigh Bridge". iii) It is his case that he purchased the suit property from Srimathi Iyengar through a registered Sale Deed dated 02.06.2003. Srimathi Iyengar had purchased the schedule property from Shri.R.P.Gurushantappa through a registered Sale Deed dated 28.05.1982. iv) It is his further case that after sale deed got executed, revenue entries got mutated and he was in possession and enjoyment of the suit property. - 5 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 v) Defendant resisted the said suit by contending that their sisters purchased land in Sy.No.97/2A measuring 1 acre 1 gunta and land in Sy.No.97/3 measuring 0.22 guntas of Kathavadipura Village, vide registered Sale Deed dated 02.02.2002 from Shri.B.M.Rajashekara Murthy and they are in possession of the property. They also contended that the plaintiff did not claim the possession over the suit property and survey has been conducted and as per the survey, they are in possession of the property. vi) The learned Trial Judge, after recording the evidence, decreed the suit of the plaintiff. vii) Defendants challenged the validity of the judgment and decree passed by the Trial Court in O.S.No.32 of 2012 in R.A.No.1 of 2019. viii) The learned Judge in the First Appellate Court allowed the application filed under Order 41 Rule 27 of the Code of Civil Procedure (for short, - 6 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 hereinafter referred to as 'CPC') and took additional evidence and permitted DW-1 to further examine himself and allowed the documentary evidence to be placed on record and thereafter, granting sufficient opportunity to the plaintiff to lead further evidence and when they failed to do so, allowed the appeal and dismissed the suit of the plaintiff. 4. Being aggrieved by the same, the plaintiff has filed the present appeal on following grounds and substantial questions of law: "a) The judgment and decree passed by the First Appellate Court is highly illegal, unjust and the same is contrary to the well-established principles of al law. b) The Trial Court after considering the entire materials on record has given a categorical finding that the Appellant is in lawful possession and enjoyment of the Suit Schedule Property. In this background, in the absence of any other material to indicate that the Appellant is not in possession of the property and that the Respondents are in possession of the Suit Schedule Property, the First Appellate Court could not have reversed the judgement and decree passed by the Trial Court. c) The approach of the First Appellate Court in appreciating the materials on record is patently erroneous. It is submitted that for the first time in the - 7 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 course of the appeal, additional evidence has been allowed independently and without deciding appeal on merits and on the basis of a document which is said to have been executed by the Appellant in favour of one Sri.Shivakumar which is a Release Deed in respect of the half portion of the property, the First Appellate Court has come to the conclusion that the Appellant is not in possession of the Suit Schedule Property. It is submitted that the First Appellate Court could not have allowed the application for additional evidence independently and without considering the same along with the main appeal. In this view of the matter the First Appellate Court has seriously erred in law in allowing the appeal filed by the Respondents. d) It is submitted that after allowing the additional evidence, the First Appellate Court, ought to have remanded the matter to the Trial Court or even otherwise, after permitting the Respondents to lead additional evidence, ought to have given an opportunity to the Appellant to lead rebuttal evidence. In the present case, after allowing the application and after permitting the Respondents to lead additional evidence, the court below has not given any opportunity to the Appellant to lead any rebuttal evidence. In this view of the matter, the approach of the First Appellate Court is extremely erroneous and the same is in contrary to the well-established principles of law relating to considering the additional evidence of the state of appeal. e) It is submitted that the materials on record clearly indicate that the Appellant has been in possession of the Suit Schedule Property. The documents produced by the Respondents did not indicate he has any rights over Suit Schedule Property and on the other hand, the materials on record, indicated that the vendor of the Respondents had absolutely no rights whatsoever over the Property claimed by him, as on the date of the alleged Sale Deed in favour of the Respondents as he had already sold the Suit Schedule Property in favour of one Sri. Gurusiddappa in 1981. The First Appellate Court has failed to consider this material aspect while allowing the appeal filed by the Respondents. - 8 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 f) It is submitted that there was sufficient materials on record, which indicate that the Respondents have not been in possession of the property as claimed by them in their Written Statement. In fact, they have filed a separate suit for injunction, in respect of the properties claimed by the Respondents in O.S.No.631/2013 and in the said suit, an application for Temporary Injunction was filed by the Respondents against the Appellant and the said application was dismissed by the Trial Court and even the appeal filed by the Respondents in M.A.No.9/2015 came to be dismissed by the First Appellate Court. Thereafter, O.S.No.631/2013 has been dismissed on the ground of non-prosecution. These material facts, clearly indicate that the Respondents did not have any possession in respect of the Suit Schedule Property or in respect of the property claimed by them and they were trying to make an illegal claim in respect of the Suit Schedule Property in the present case. Under these circumstances, had an opportunity been given to the Appellant to lead rebuttal evidence, the Appellant would have established the circumstances in which the Release Deed was executed by the Appellant in favour of one Sri.Shivakumar and also to indicate that even after the execution of such document, the Appellant has been in possession of the entire Suit Schedule Property. In view of the fact that the First Appellate Court did not give any opportunity to the Appellant to lead further evidence in the matter, the Appellant has been put to great injustice and prejudice. In this view of the matter, judgement and decree passed by the First Appellate Court is illegal and the same is liable to be set aside. SUBSTANTIAL QUESTIONS OF LAW THAT ARISE FOR CONSIDERATION IN THIS REGULAR SECOND APPEAL:- 1) Whether the First Appellate Court is right in law in considering the application for additional evidence filed under order 41 rule 27 Code of Civil Procedure, independently and without considering the same along with the main appeal? - 9 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 2) Whether, the First Appellate Court is right in law, in not giving an opportunity to the Appellant to lead rebuttal evidence, having allowed the application for additional evidence prior to the consideration of the main appeal itself? 3) Whether, the First Appellate Court is right in law, in allowing the appeal on the basis of the additional evidence led at the time of appeal without considering the documents which were confronted to the DW-1 in the course of the cross-examination by the Appellant? 4) Whether the First Appellate Court is right in law in holding that the Appellant is not in lawful possession of the Suit Schedule Property when the Trial Court, after considering the entire materials on record has given a categorical finding that the Appellant is in lawful possession of the Suit Schedule Property?" 5. Reiterating the grounds urged in the appeal memorandum, Shri.C.R.Subramanya, learned counsel appearing for the appellant would submit that the learned Judge of the First Appellate Court grossly erred in considering the application filed for placing additional evidence on record and thereafter, considered the judgment resulting in miscarriage of justice. 6. He would further contend that the approach of the First Appellate Court in not affording proper - 10 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 opportunity to lead rebuttal evidence has resulted in miscarriage of justice. 7. He would also contend that without considering the documents, which were confronted to DW-1 during the course of cross-examination and probative value thereof, allowing the appeal has resulted in miscarriage of justice. 8. Lastly, he would contend that though the First Appellate Court has recorded a categorical finding that appellant is not in lawful possession of the suit property, ignoring the findings recorded by the learned Trial Judge has resulted in miscarriage of justice and sought for admitting the appeal for further consideration. 9. Per contra, learned counsel for the respondents supports the impugned judgment passed by the First Appellate Court by contending that the original sale deed has been marked in additional evidence and the probative value thereof has been properly appreciated by the - 11 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 learned Judge in the First Appellate Court and sought for dismissal of the appeal. 10. Having heard the arguments of both side, this Court perused the material on record meticulously. 11. On such perusal, it is crystal clear that the plaintiff is claiming the right through a registered a Sale Deed dated 02.06.2003 for having purchased the suit property from Srimathi Iyengar. Whereas, the Sale Deed of the defendants in respect of the land in Sy.No.97/2A and Sy.No.97/3 to the extent of 1 acre 1 gunta and 0.22 guntas respectively is of the year 2002. 12. Admittedly, when Srimathi Iyengar did not possess any title inasmuch as the vendor of the defendant has already parted away the entire property in both the survey numbers, the plaintiff could not have derived any better title by virtue of the sale deed executed by Srimathi Iyengar. - 12 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 13. Be it what it may. The lawful possession based on the title deed, which is the registered Sale Deed executed by Srimathi Iyengar in favour of the plaintiff, having not been properly established to show that plaintiff has installed the weigh bridge measuring 80 feet X 100 feet, the learned Judge in the First Appellate Court, taking note of the earlier Sale Deed placed on record by the defendants dismissing the suit of the plaintiff is just and proper. 14. It is also pertinent to note that the First Appellate Court has recorded a categorical finding in paragraph Nos.17 and 18 as under: "17. The plaintiff has produced Ex.P2 which is also a certified copy of registered release deed dated 22.12.2004 executed by H.M.Shivakumar in favour of the plaintiff herein, in respect of the site measuring 80 x 50 ft bearing Janger No.329 and Assessment No.60/1A, the northern boundary mentioned as site retained by the executant. The document number of the said Ex. P2 is 2850/2004-05. 18. Thus, Ex.D4 and Ex, P2 contemporaneous documents, the Ex.P2 being the first in point of time and the Ex.D4 being the later in point of time, having regard to the registration number issued in respect of the said documents, by the Sub-Registrar concerned. Thus, under the said two contemporaneous documents, out of - 13 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 total site measuring 80 x 100 ft., out of Janger N0.329, the 1 retained 80 x 50 ft on the southern side and the co-purchaser Shivakumar retained 80 x 50 ft on the northern side half. Thus, in this backdrop it is proper to The refer to the plaint schedule description which is site bearing Janger No.329, measuring 80 x 100 ft. comparison of the boundaries clearly discloses that the plaintiff is claiming property from the northern road till southern road, which is inclusive of the land released by him in favour of the plaintiff Shivakumar under Éx.D4. Therefore, having regard to Ex.D4, the plaintiff cannot be held to be in possession of the northern half measuring 80 x 50 ft out of the suit schedule property". 15. Taking note of these aspects of the matter, merely on the ground that additional evidence has been taken on record and before the judgment came to be passed and allowing the parties to lead evidence would not be sufficient enough to set aside the judgment of the First Appellate Court. 16. More so, when the plaintiff did not challenge the allowing of the additional evidence, in accordance with law, nor reserved right to be urged in the appeal. 17. Taking note of these aspects of the matter, none of the substantial questions of law raised in the - 14 - HC-KAR NC: 2025:KHC:28846 RSA No. 2007 of 2021 appeal memorandum would merit for further consideration. Accordingly, the following: ORDER i) Admission declined. ii) Appeal dismissed. Sd/- (V SRISHANANDA) JUDGE DH List No.: 1 Sl No.: 47