- 1 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1458 OF 2013 (DEC/INJ) BETWEEN: 1. NANJAPPA SINCE DEAD REP. BY HIS LEGAL REPRESENTATIVES 1(A) SHYALA H.N. AGED ABOUT 54 YEARS D/O NANJAPPA W/O MRUTHYUNJAYAPPA A.B ANAGONDANAHALLI KERGODI POST TIPTUR TALUK – 572 226 1(B) MANJULA H.N. AGED ABOUT 52 YEARS D/O NANJAPPA W/O KUMAR SWAMY EDAKANAHALLI SOMALAPURA POST GUBBI TALUK 1(C) SUMAH N AGED ABOUT 50 YEARS D/O NANJAPPA W/O JAYDEV KALLEGOWDANA PALYA HUCCHAGONDANAHALLI POST TIPTUR TALUK Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 2. VISHWESHWARAIAH SINCE DEAD BY HIS LEGAL REPRESENTATIVES 2(A) V.S. NIRMA;A AGED ABOUT 54 YEARS W/O VISWESHWARAIAH HOSUR VILLAGE SHIVARA MAJARE KASABA HOBLI TIPTUR TALUK TUMAKURU DISTRICT. 2(B) DEEPIKA H.V. AGED ABOUT 30 YEARS D/O VISHWERAIAH NEAR SBI BANK CHIKKANAYAKANAHALLI TOWN. …APPELLANTS (BY SMT. VINAYAKEERTHY M., ADVOCATE SHRUTHI S P, ADVOCATAE FOR LEGAL REPRESENTATIVES OF DECEASED A1 & A2) AND: BASAVALINGAPPA AGED ABOUT 73 YEARS S/O LATE BASAPPA HOSUR VILLAGE SHIVARA MAJARE KASABA HOBLI TIPTUR TALUK TUMAKURU DISTRICT. …RESPONDENT (BY SRI. S N BHAT, ADVOCATE FOR C/R & SRI. M.S. DEVARAJU, ADVOCATE (CPNO.423/13)) - 3 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 THIS RSA IS FILED UNDER SEC.100 R/W ORDER XLII OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 10.7.2013 PASSED IN R.A.NO.41/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., TIPTUR, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 31.1.2007 PASSED IN O.S.NO.81/2005 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., TIPTUR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 10.07.2020 passed in Regular Appeal No.41 of 2007 by the learned Senior Civil Judge and JMFC, Tiptur and the judgment and decree dated 31.01.2007 passed in O.S. No.81 of 2005 by the learned Prl. Civil Judge and JMFC, Tiptur. 2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the defendants, and the respondent was the plaintiff. - 4 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit for a declaration and permanent injunction, contending that he had purchased the suit schedule property from Kariyappa and H.S.Lingappa under two different sale deeds dated 03.11.1997 and 09.01.2001 respectively, and he is in possession and enjoyment of the suit schedule property and the defendants have no right, title or interest over the suit schedule property and are trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 5. The defendants appeared and filed a written statement denying the averments made in the plaint, and denied the possession and ownership of the - 5 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 plaintiff over the suit schedule property. Hence, on these grounds, they pray for dismissal of the suit. 6. Based on the rival pleadings of the parties, the Trial Court framed the following issues: (i) Whether plaintiff proves that he is absolute owner of the suit schedule property? (ii) Whether plaintiff proves that he is in lawful possession over the suit schedule property as on the date of suit? (iii) Whether plaintiff proves the interference of the defendants over the suit schedule property? (iv) Whether plaintiff is entitled for declaration? (v) Whether plaintiff is entitled for relief of perpetual injunction? (vi) What order or decree? 7. The plaintiff, to prove his case, examined himself witnesses as PW1 and 2 witnesses as PW2 and PW3 and marked 16 documents. - 6 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 8. In rebuttal, the defendants examined four witnesses as DW1 to DW4, and marked 17 documents as Exhibits D1 to D17. 9. The Trial Court, after recording the evidence, hearing the learned counsel for the parties, and appreciating the verbal and documentary evidence on record, decreed the suit with cost, vide judgment dated 31.01.2007 and it is declared that the plaintiff is the absolute owner of the suit schedule property and a decree for permanent injunction was granted restraining the defendants from interfering with the plaintiff's peaceful possession, and enjoyment of the suit schedule property. 10. The defendants, aggrieved by the judgment and decree passed in O.S. No.81 of 2005 preferred an appeal in R.A. No.41 of 2007 on the file of the learned Senior Civil Judge and JMFC, Tipatur. - 7 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 11. The First Appellate Court, after hearing the learned Counsel for the parties, framed the following points for its consideration: (i) Whether the appellant proves the judgment and decree of the trial Court is perverse, capricious and opposed to law and existing factual circumstance of this case, does it need interference by this Court? (ii) What Order? 12. During the pendency of the appeal, the defendants filed an application under Order XXVI Rule 9 read with Order XLI Rule 27 of the Code of Civil Procedure, 1908. The First Appellate Court, without passing any order on the said application, dismissed the appeal on merits with costs, vide judgment dated 10.07.2013. 13. Hence, the defendants, aggrieved by the impugned judgment, have filed this Regular Second Appeal. 14. Heard the arguments of the learned counsel for the defendants and learned counsel for the plaintiff. - 8 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 15. Learned counsel for the defendants submits that the defendants filed an application under Order XXVI Rule 9 read with Order XLI Rule 27 of the Code of Civil Procedure. The First Appellate Court, without passing any order on the said application, proceeded to pass the impugned judgment. He submits that the judgment and decree passed by the First Appellate Court, without considering and passing an order on the said application, is contrary to the proposition laid down by the Hon'ble Apex Court in the case of ‘Jatinder Singh and Another vs. Mehar Singh and Others, reported in 2019(7) SCC 645. Hence, on there grounds he prays to set aside the judgment and decree passed by the First Appellate Court, and remand the matter to the First Appellate Court to consider the application filed by the defendants and to pass an appropriate order. 16. Per contra, the learned counsel for the plaintiff supported the impugned judgment and submits that - 9 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 the First Appellate Court has rightly dismissed the appeal. Hence, on these grounds, he prays to dismiss the appeal. 17. This Court, admitted the appeal on 31.01.2026, to consider the following substantial question of law: (i) Whether the First Appellate Court was justified in passing the impugned judgment without considering the application filed by the appellants for appointment of a Commissioner under Order XXVI Rule 9 read with Order XLI Rule 27 of the Civil Procedure Code, 1908? Reg. Substantial Question of Law: 18. It is an undisputed fact that the defendants, aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal in Regular Appeal No.41 of 2007. During the pendency of the said appeal, the defendants filed an application under - 10 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 Order XXVI Rule 9, read with Order XLI Rule 27 of CPC on 16.01.2013. 19. The First Appellate Court, without passing any order and without considering the application filed by the defendants, has proceeded to pass the impugned judgment. 20. It is pertinent to state here that when an application is filed before the Court, it is the bounden duty of the Court to consider and pass an appropriate order on the said application. The First Appellate Court, without considering the application or passing an order on the said application, proceeded to pass the impugned judgment. 21. From the perusal of the judgment passed by the First Appellate Court, it is evident that the First Appellate Court has not passed any order on the application for the production of additional evidence, and without passing any order on the said application, the First - 11 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 Appellate Court has proceeded to pass the judgment on merits. The First Appellate Court has committed an error in passing the impugned judgment on merits without considering the application for the production of additional evidence, filed under Order XXVI Rule 9 read with Order XLI Rule 27 of the Code of Civil Procedure while deciding the appeal. 22. The Hon'ble Apex Court in the case of Jatinder Singh and another vs. Mehar Singh and others1, held as follows: " ..... While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of Code of Civil Procedure and decide whether the additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on 1 2019(7) SCC 465 - 12 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law." 23. Admittedly, in the instant case, the First Appellate Court, without passing any order on the application for the production of additional evidence, dealt the matter on merits. Hence, the impugned judgment passed by the First Appellate Court is contrary to the exposition of law laid down by the Hon'ble Apex Court in the case of Jatinder Singh (referred to supra). Hence, on this ground alone, the impugned judgment passed by the First Appellate Court is liable to be set aside. Accordingly, the substantial question of law is answered in the negative. 24. In the result, I proceed to pass the following order: ORDER (i) The regular second appeal is allowed. - 13 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 (ii) The impugned judgment and decree dated 10.07.2013 passed in Regular Appeal No. 41 of 2007 by the learned Senior Civil Judge and JMFC, Tiptur is hereby set aside. (iii) Regular Appeal No. 41, 2007 is restored to its original file. (iv) The First Appellate Court is directed to consider the application filed by the defendants, and to pass an appropriate judgment, in accordance with the law. (v) The parties are directed to appear before the First Appellate Court on 06.04.2026 without awaiting any further notice from the court. (vi) The Registry is directed to transmit the records forthwith to the First Appellate Court. (vii) All the contentions of the parties are kept open. (viii) Learned counsel for the appellants seeks leave of the Court to withdraw - 14 - HC-KAR NC: 2026:KHC:11220 RSA No. 1458 of 2013 IA No.1 of 2020, with a liberty to produce the said documents before the First Appellate Court. (ix) IA No.1 of 2020 is dismissed as not pressed, with the aforesaid liberty to the appellants. (x) In view of the disposal of the appeal, other pending applications, if any, do not survive for consideration and are accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE RK CT:KHV List No.: 1 Sl No.: 13