- 1 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1031 OF 2021 (DEC/POS) BETWEEN: GURUSWAMY SINCE DECEASED BY LRS 1. SMT. NAGAMMA W/O. LATE. GURUSWAMY, AGED ABOUT 74 YEARS 2. SRI. KENDAGANNA SWAMY S/O. LATE. GURUSWAMY, AGED ABOUT 58 YEARS 3. SMT. LEELAVATHI AGED ABOUT 56 YEARS D/O. LATE. GURUSWAMY, W/O. KUMARASWAMY, 4. SRI. G LINGAPPA S/O. LATE. GURUSWAMY, AGED ABOUT 51 YEARS 5. SMT. MANGALAGOWRI AGED ABOUT 47 YEARS D/O. LATE. GURUSWAMY, W/O. SRI. SHEKARA , RESIDING AT BEEJAGANAHALLI VILLAGE KASABA HOBLI, HUNSUR TALUK - 571 189. 6. SMT. SUSHEELA AGED ABOUT 44 YEARS D/O. LATE. GURUSWAMY, W/O. SRI. RAJENDRASWAMY , R Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 APPELLANTS NO.1 TO 4 AND 6 ARE RESIDING KUTTAVADI VILLAGE BILIKERE HOBLI, HUNSUR TALUK - 571 189. …APPELLANTS (BY SRI. Y K NARAYANA SHARMA, ADVOCATE) AND: 1. SHIVANNEGOWDA @ SHIVANNA AGED ABOUT 61 YEARS S/O. LATE. BASAVEGOWDA, 2. SRI. K.P. SOMESHA AGED ABOUT 51 YEARS S/O. LATE. DODDAPAPGOWDA SINCE DEAD, REP. BY LEGAL REPRESENTATIVES, 2(A). SMT. NAGAMMA AGED ABOUT 58 YEARS W/O LATE K.P. SOMESHA 2(B). SMT. NANDINI AGED ABOUT 33 YEARS D/O LATE K.P. SOMESHA 2(C). SMT. JAYALAKSHMI AGED ABOUT 29 YEARS D/O LATE K.P. SOMESHA RESP. NO. 2(A) TO 2 (C) R/AT KUTTAVADI VILLAGE BILIKERE HOBLI HUNSUR TALUK - 571 189. 3. SRI. K P MARIGOWDA AGED ABOUT 39 YEARS S/O. LATE. DODDAPAPEGOWDA, - 3 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 4. SRI. K.P. MARIGOWDA AGED ABOUT 39 YEARS S/O. LATE. DODDAPAPEGOWDA, 5. SRI. SIDDARAMEGOWDA AGED ABOUT 49 YEARS S/O. LATE. YAJAMAN THIMMEGOWDA, 6. SRI. RAJEGOWDA AGED ABOUT 49 YEARS S/O. LATE. YAJAMAN THIMMEGOWDA, 7. SMT. K.T. BHAGYAMMA AGED ABOUT 71 YEARS W/O. LATE. JAVAREGOWDA SINE DEAD BY LEGAL REPRESENTATIVES 7(A). SRI. SOMASHEKAR L.G AGED ABOUT 54 YEARS S/O LATE JAVAREGOWDA 7(B). SRI. GOPALKRISHNA AGED ABOUT 52 YEARS S/O LATE JAVAREGOWDA 7(C). SRI. SURESH GOWDA L.G AGED ABOUT 50 YEARS S/O LATE JAVAREGOWDA L.G 7(D). HARISH L.G AGED ABOUT 48 YEARS S/O LATE JAVAREGOWDA L.G R. 7(A) TO 7(D) ARE R/AT KUTTAVADI VILLAGE BILIKERE HOBLI, HUNSUR TALUK - 571 189. ALL ARE RESIDING AT KUTTAVADI VILLAGE - 4 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 BILIKERE HOBLI HUNSUR TALUK 571 189 …RESPONDENTS (BY SRI. B.S. NAGARAJ, ADVOCATE FOR R1, R2(A TO C); R3 TO R6 AND R7 (A TO D)) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMETN AND DECREE DATED 11.03.2020 PASSED IN RA.NO.63/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC., HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.04.2016 PASSED IN OS.NO.47/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC., HUNSUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT 1. Though the matter is listed for admission, by consent of the parties, it is taken up for final disposal. 2. Heard Sri.Y.K.Narayana Sharma, learned counsel for the appellants and Sri.B.S.Nagaraj, learned counsel for the respondents. 3. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Trial Court. - 5 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 4. Unsuccessful plaintiff is the appellant challenging the dismissal of the suit in O.S.No.47/2009 dated 20.04.2016 which was confirmed by the First Appellate Court in RA No.63/2016 dated 11.03.2020. 5. Facts of the case which are utmost necessary for disposal of the appeal are as under: 5.1. Plaintiff filed a suit for declaration and injunction in respect of the following property in O.S.No.47/2009 (hereinafter referred to as suit property): “Land situated at Kutavadi village, Karimuddanahally post, Bilikere Hobli, Hunsur Taluk bearing Sy.No.38/1, extent 4 acres 17 guntas and bounded as follows: East: Lands of Parvathamma West: Sarakary Beelu South: Lands of Papaiah @ Doddapapegowda North: Lands of Thimmegowda. Within these boundaries 1 acre 24 guntas encroached by defendants No.1 to 7 which is more clearly denoted in the survey sketch and more clearly shown in various colours and with abbreviations as ‘ABFGHI and J’ respectively.” - 6 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 5.2. Prayer of the suit reads as under: “WHEREFORE, the humbly prayed that the Hon'ble court be pleased to pass a judgement and decree in favour of the plaintiff and against the defendants 1 to 7 ; a) To declare that the plaintiff is the absolute owner of the plaint schedule lands and b) Further declare that the defendants 1 to 7 have wrongfully and illegally encroached portions of lands, which are more clearly denoted below in the plaint schedule and c) Direct defendants 1 to 7 to deliver possession of the encroached portion more clearly described in the plaint schedule below and also in the survey sketch shown as 'ABFGHIJ’ to the plaintiff and D) Direct defendants to pay the sum of Rs.15000/- towards past mesne profits to the plaintiff and e) Order for an enquiry U/0 20 Rule 12 CPC for future mesne profits from the date of suit, till delivery of possession of the encroached areas by the defendants to the plaintiffs or by court agency and f) Award cost of the suit from the defendants to the plaintiff and grant such other reliefs as the Hon'ble court deems fit to grant in the circumstances of the case, in the interest of justice and equity.” - 7 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 5.3. Plaintiff claims that suit property was purchased by the plaintiff under the registered sale deed dated 27.01.1967 and thereafter, he was in peaceful possession and enjoyment of the suit property. 5.4. He was initially cultivating the suit property and later on permitted the same to be cultivated by the tenant on ‘vara or guttige’ basis. Plaintiff being the archaka of the temple, could not personally cultivate the land and therefore, he had to depend on the tenants on ‘vara or guttige’ basis. 5.5. It is further case that between the year 1990 and 1996, plaintiff and his family members had to migrate to Kollegala taluk and started residing in B.G.Doddi to eke out livelihood by doing archakship and also dasoha in a mutt of Gurumalleshwara. 5.6. In the year 1997 and 1998, plaintiff and his family members returned to Kutawadi village and started residing in the house situated in land in Sy.No.38. When plaintiff and his family members were away from Kutavadi village, plaintiff had - 8 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 permitted the suit lands to be cultivated on the basis of ‘vara or guttige’ basis. 5.7. In the year 2000, he noticed that plaintiff’s tenant was not in possession of 4 acre 17 guntas of the land which was belonging to him and suspected that tenants are in possession of only about 3 acres of land. 5.8. He also suspected that during his absence, neighbors must have encroached upon the land belonging to the plaintiff. Therefore, filed an application to Survey Department for surveying the land in the last week of March, 2000. 5.9. Survey was conducted and after the report came from the surveyor, he noticed that defendant Nos.1 to 7 have encroached portion of the suit property which are noted in the survey sketch prepared by the surveyor. 5.10. It is only after such disclosure by the surveyor; plaintiff came to know about the encroachment made by defendant Nos.1 to 7 with ulterior motive. Plaintiff pleaded that - 9 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 encroachment was made by each of the defendants and the extent thereof. 5.11. It is his case that since the plaintiff is the owner-in- possession of the property, encroachment made by the defendants in all to the extent of 1 acre 24 guntas is to be removed by declaring the plaintiff as the lawful owner of the suit property. 5.12. It is further contended that defendant Nos.1 to 7 without there being any right, title or interest, encroached upon the suit property to the extent of 1 acre 24 guntas and thus sought for decreeing the suit as aforesaid. 6. Pursuant to the suit summons, defendants entered appearance and defendant Nos.1 to 4 and defendant Nos.6 and 7 filed common written statement denying the plaint averments in toto. 7. They specifically denied that there is no encroachment as contended by the plaintiff. It is their specific case as well that Government has formed a road in the plaint - 10 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 property running from Kutawadi to H.D.Kote and another road from Kutawadi to Tank. 8. It is also contended by the defendants that there was a road on the southern side of the suit property. However that road is now not being used and plaintiff is silent about the formation of the road and also existence of the earlier road. 9. It is further contended that without disclosing these aspects of the matter, he got a survey done suppressing the existence of the Government road and with the active collusion with the surveyor, alleged encroachment is shown which is far from truth and on the factual aspects and sought for dismissal of the suit. 10. Based on the rival contentions of the parties, learned Trial Judge raised necessary issues and recorded the evidence of the parties and dismissed the suit of the plaintiff by holding that plaintiff failed to prove that he is the owner-in- possession of the suit land and the encroachment as is alleged by him which is denoted by letters ‘A, B, F, G, H, I and J’. - 11 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 11. Being aggrieved by the same, legal representatives of the original plaintiff filed an appeal before the First Appellate Court in RA No.63/2016. 12. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and formulated necessary points and by considered judgment dated 11.03.2020, dismissed the appeal of the plaintiff inter alia holding in paragraph Nos.16 to 21 as under: “16. That further, though the plaintiff pleads about the alleged encroachment by the defendants to an extent of 1.24 acres, with different extents, failed to describe the alleged encroached portions with schedule. That further, his admission in the cross examination that he has sold 4.12 acres to one Shivabeeregowda through a registered sale deed dated 17.09.1980 and his failure to substantiate the fact that he has sold the alleged extent of property in Sy. No. 45 and not in Sy. No. 38 further falsify the claim of the plaintiff that he is the absolute owner of property to an extent of 4.17 acres in Sy. No. 38 as on the date of institution of the suit. 17. Further in order to substantiate his contention that he has sold property in Sy. No. 45 to one Shivabeeregowda, he ought to have at least produced a document, substantiating his ownership in Sy. No. 45 of Kuttawadi village. That further the plaintiff has comeup with the suit - 12 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 with the schedule as mentioned in the sale deed of the year 1967. But, not produced any document substantiate his contention that as on the date of institution of the suit also, the schedule of the year 1967 holds good. 18. That apart, the alleged surveyor, upon whose sketch the plaintiff has filed the instant suit has clearly admitted the fact of his failure to mention the roads existed in the suit schedule property for want of jurisdiction to him and that apart, as per his evidence, there was a requisition for survey for fixing the boundary only. When it is so, one can safely infer that the survey sketch is not in accordance with the material available at the spot and it is based on the say of the plaintiff. It appears that the surveyor even not ventured to visit the spot for preparation of the sketch. But, his evidence reveals above the existence of two road in the Sy. No. 38 and the approximate extent of the land acquired for formation of road is 1 acre 30 guntas. When such is the case, it appears that the plaintiff has got prepared the survey sketch to suit his convenience. 19. As mentioned supra, the basis for institution of the suit is survey sketch, alleging that he came to know about the alleged encroachment by the defendants only when he got surveyed the land. Whereas, the evidence of PW.4/the surveyor reveals that he has only mentioned about the boundaries, which, falsify the claim of the plaintiff. Further, the point to be noted at this juncture is none of the defendants are bajudars. The said fact leads - 13 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 to infer that the pleadings and schedule are contrary to each other. 20. Whereas, while canvasing arguments, the advocate for appellant has drawn the attention of the court that though the defendants have denied the Ex.P.1, not ventured to take steps to survey the land. But, said contention of the appellant holds no water as it is the plaintiff who has approached the court and he has to establish his case with cogent and convincing evidence. Further it is a settled law that the weakness of defendants cannot be used as a trump card. Hence, failure of the defendants to take steps to get survey the land is not a fatal to the defence of the defendants and it will neither prove the case of the plaintiff nor it will weaken the defence of the defendants. 21. Further, though the plaintiff’s advocate do admit the fact that the boundaries will change over a period of time, not ventured to plead and prove the boundaries prevailing as on the date of institution of the suit and the description of the properties of the alleged encroached portions. Mere non-denial of the suit schedule property would not in any way lead to draw an inference about the fortifying of the claim of the plaintiff. Hence, this court is of the considered opinion that the plaintiff has failed in his attempts to prove his title over the suit schedule property as on the date of suit with alleged encroachment by the defendants. The trial court has considered all the points and has rightly dismissed the suit of the plaintiff. Hence, - 14 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 this court is of the considered view that the findings given by the trial court is in proper perspective and it calls for no interference by this court. In the circumstances and in the light of the above discussion, I answer the Point No. 1 and 2 in the Negative.” 13. Being further aggrieved by the same, plaintiff has preferred the present second appeal on following grounds:  The trial court on earlier part of the judgment has given finding that the plaintiffs are the owners of the suit properties. However, on the later part of the judgment the trial court has the plaintiffs have not established encroachment of different portions given finding that by the defendants and that the Ex.P1 sketch, does not reflect correct position. However, the trial Court dismissed the entire case of the plaintiffs. The said approach of the trial court is opposed to law. The suit is one for declaration of title and also removal of encroachment and for possession of encroached land. The trial court has not considered the scope of the case and dismissed the suit in entirety and the same is opposed to law. The Courts below ought to have given declaration of title of the plaintiffs even if they come to the conclusion that the plaintiffs have not proved encroachment by the defendants. Hence the judgment and decree of the courts opposed to law.  The courts below failed to note that the scope the case and the reliefs sought for by the plaintiffs. The first appellate court has not appreciated the arguments of the - 15 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 appellants' Counsel in respect of the said aspect of the matter and the approach of the first appellate court is opposed to law.  The courts below committed error of law in not properly interpreting the documents produced in the case including sale deed, several R.T.Cs, Sketch and thereby the Courts below committed error of law.  The courts below failed to note that the road passing through Sy.No.38 was already in existence and even in the R.T.Cs, 24 Guntas has been shown in Sy. No.38/1, as Kharab land which pertains to the road, and as such not showing the location for the road in the Ex.Pl is of no consequence to determine the extent of land owned by the plaintiff by taking into account the Kahrab land shown in the R.T.C. which is in respect of the Roads. Hence, the courts below committed error of law in not relying up on the Ex.P1 and the several R.T.C. extracts produced in the case and also the order of the Tahsildar in RRT 250/1984- 85 and also the order of the ADLR ΜΤΡ. 120/198-99 marked as 3, 5 to 8.  The courts below committed error of law in not relying up on the presumption available in law in respect of entries made in the Revenue Records.  The Courts below failed to note that Ex. P1- the boundaries of Sy. No.38, the different portions encroached by the different defendants have been clearly - 16 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 described though the locality of the Road has not been shown. The Surveyor has given evidence to the effect that he was assigned the work of fixing the boundaries of the land and the portions encroached and as such he has not shown the location of the roads. He has taken the extent of the land in Sy. No.38, and has fixed the boundaries of Sy. No.38. The Sketch Ex. P1 and the evidence of Surveyor (PW 4) has not been properly considered.  The courts below failed to note that the total extent of land in Sy.No.38 is 9 Acres 10 Guntas and there is Kharab of 33 Guntas relating to roads already in existence. The Sy.No.38 has been phoded and sub numbered subsequently in accordance with law by the Revenue Authorities and Sy.No.38/1 measuring 4 Acres 16 Guntas has been given to the land owned by the plaintiffs and that land has been shown in Ex.P3. The Courts below have not considered these facts and committed error of law in not relying on Ex. P3.  The courts below failed to note that the boundaries are material for identification of the properties and in the present case the properties of the plaintiffs could be identified by the boundaries and also the Revenue sketches produced both by the plaintiffs as well as by the defendants The courts below failed to consider the relevant documents to decide the extent and boundaries of the plaintiffs' property. - 17 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021  The courts below failed to note that the Plaintiff is claiming title and possession in respect of portion of earlier Sy. No.38 and present Sy.No.38/1(part of Sy.No.38) and the plaintiff is in possession of the extent claimed by the plaintiff. The evidence on record regarding the title and possession of the land have not been properly considered by the courts below.  The courts below failed to note that the encroachment of the land of the plaintiffs is by Bajudars who are the defendants and the observation of the appellate court that the defendants are not Bajudars is opposed to the admitted facts and materials on record.  The courts below failed to note that the Plaintiff has burden to prove the extent of the land claimed by him and the encroachment made by the defendants and there is also burden on the defendants to establish the extent of the lands owned by them to determine the encroachment and this aspect has not been properly considered by the courts below. The principle that the plaintiff has to be established his case by leading his own evidence and shall not rely upon the weakness of the defendants case has been wrongly applied in the present case. The Courts below failed to note that once the plaintiff has established his title in respect the suit claim, it is for the defendants to lead evidence to disprove of the case of the plaintiff by proving the claims made by the defendants themselves. The defendants have not let in - 18 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 evidence to prove their claims. The courts below have not properly considered this aspect of the matter.  Some of the defendants have not even entered the Witness box to deny the statement made by Plaintiff on oath. Adverse inference ought to have been drawn against the defendants for not entering the Witness box.  The courts below have not framed proper issues, particularly, the courts below have not framed any issues regarding the existence of the roads or the location of the roads in Sy.No.38 as only a portion of the land in Sy.No.38, subsequently numbered as 38/1, only has been claimed by the plaintiffs and as shown in the R.T.C. the karab land to an extent of 24 guntas (portion occupied by the Road) has been deducted from the total extent and 4- 16 being balance only on Sy. No.38/1, claimed by the Plaintiff is shown in the R.T.C. The courts below have misinterpreted the evidence on record regard in existence of road in Sy. No.38. The findings of the courts below is without any evidence on record and the same is opposed to law. The evidence of PW-1 has been wrongly misinterpreted by the Courts below.  The courts below failed to note that sale of lands in favour of one Sri Shivabeeregowda S/o Sri Beere Gowda is the land situate in a different survey number Sy. No.45/135 and the same is nothing to do with the Sy.No.38/1 belonging to the plaintiff. This aspect of the matter is outside the scope of the suit and as such there was no - 19 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 need for the plaintiffs to produce copies of the Sale deed and Correction deed pertaining to the land sold to Sri Shivabeeregowda in this case. On the other hand, the defendants have produced copy of the sale deed which shows that the boundaries in the said Sale Deed show that the property sold is not any portion of the land in Sy.No.38/1. The burden to show that the land sold is part of Sy. No.38/1 is on the defendants who have taken up the said contention. Hence the findings of the courts below that the plaintiffs have not produced the sale deed in respect of the land sold which is on the other survey number is opposed to law.” 14. Before this Court, two applications are filed under Order XLI Rule 27 of Code of Civil Procedure and Order XXVI Rule 9 of Code of Civil Procedure supported by the affidavits of the parties. 15. In the affidavit of I.A.No.1/2020 filed under Order XLI Rule 27 of Code of Civil Procedure, it has been stated by the one of the legal representatives of the plaintiff namely G.Lingappa as under: “Now I have also obtained the copy of Survey Sketch relating to Sy. No.38 with Sub-numbers. I was not aware of the said sketch earlier and recently I came to know about the same and I obtained the same recently. The - 20 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 Survey Sketch clearly shows the land in Sy.No.38/1 which is in my possession. These documents are certified copies from the public records and issued by the Public Authorities. These documents are material and necessary to decide the real controversy between the parties in the above case and for disposal of the case. The enclosed documents would be of assistance to this Hon'ble Court to decide the dispute conclusively and satisfactorily and also to effectively adjudicate the dispute. I am a Villager not well versed with legal matters. When I discussed the matter with my Advocate I learnt about these facts and I was advised to get these certified copies and I have obtained these certified copies. On account of bonafide reasons beyond my control I could not produce the said documents earlier.” 16. In the affidavit in support of I.A.No.1/2026 filed Order XXVI Rule 9 of Code of Civil Procedure for seeking appointment of the Court Commissioner, it has been stated as under: “4. We have already produced several additional documents including Survey Sketch to show that the location of the suit property. In view of the dispute regarding the identity of the property and the encroachment of the property by the Respondents, the surveyor /ADLR has to be appointed for local inspection and to report regarding the facts regarding - 21 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 measurements and in respect of location of the encroachments. I respectfully submit that the above facts could be ascertained by inspection of the spot by a Commissioner and getting a report regarding the same by this Hon'ble Court. There is ambiguity in the evidence and materials on record regarding the above facts and the same could be clarified and the existing facts may be ascertained only by appointment of a Commissioner to make local investigation. It is just and essential to appoint a Commissioner to make local investigation to elucidate the aforesaid facts in dispute and to enable this Hon'ble Court to decide the dispute comprehensively and satisfactorily and to enable the Court to give proper findings regarding the disputed facts. On account of bonafide reasons beyond our control we could not file the Application seeking appointment of Commissioner earlier. We bonafide believed that the Court would be able to decide the disputes based on Ex.P1 Sketch and other documents already produced. However, the Courts below have not properly considered the matter in dispute and the documents produced. Hence, now we are filing the application for appointment of the Court Commissioner.” 17. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum would contend that both the Courts have not properly considered the case of the plaintiff and wrongly dismissed the suit of the plaintiff resulting in miscarriage of justice. - 22 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 18. He would further contend that the admissions elicited in the cross-examination of the defendants is totally ignored by the learned Trial Judge while dismissing the suit of the plaintiff and thus sought for admitting the appeal on following substantial questions of law: “a) Whether the Courts below have committed error of law by not properly considering the documents produced by the parties including Ex. P 1 and Ex. D 1? b) Whether the Courts below have committed error of law by wrongly applying in the present case the principle of plaintiff has to establish his case by leading his own evidence and shall not rely upon the weakness of the defendants case, without requiring the defendants to prove the specific cases pleaded by the defendants? c) Whether the Courts below have committed error of law in not relying upon the presumption under law in respect of the entries in the Revenue Records in favour of the Plaintiff?” 19. He would emphasize that the additional documents now placed before the Court have got a bearing on the material facts and therefore, same needs to be allowed by this Court and matter is to be remitted to the Trial Court for fresh enquiry in accordance with law. - 23 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 20. He would also contend that the Court Commissioner needs to be appointed to find out the factual aspects on the spot as the defendants have specifically pleaded that there existed a Government road in the property of the plaintiff and same is incorrect. Therefore, local inspection is necessary by a Court Commissioner and therefore, application needs to be allowed. 21. He would lastly contend that this Court as a Rule, though cannot allow the additional evidence, in exceptional circumstances, this Court is not powerless in exercising its power under Section 107 of Code of Civil Procedure to permit a party to allow the additional evidence if it is very much necessary for resolution of the dispute among the parties and justice demands for allowing such additional evidence and thus sought allowing the applications and so also to allow the appeal. 22. In support of his arguments, learned counsel for the appellants has relied on following decisions: a. Munivenkatappa v. Chikkapapamma reported in ILR 1991 KAR 3014. - 24 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 b. Sanjar Kumar Singh v. State of Jharkhand reported in AIR 2022 SC 1372 c. Wadi v. Amilal reported in AIR Online 2002 SC 51 d. Union of India v. Ibrahim Uddin reported in 2012 (8) SCC 148 23. Per contra, learned counsel for the respondents would support the impugned judgments. 24. He would further emphasize that a specific contention was taken in the written statement about the formation of the road by the Government which separates the property of the plaintiff into two bits and based on the sale deed, if the survey has been conducted without showing the road, the very survey itself is incorrect. Report of the surveyor without issuing notice to the bajudars and preparing the survey sketch could not have been relied upon by the learned Trial Judge as the fact of encroachment and therefore, rightly rejected the same and dismissed the suit and thus sought dismissal of the appeal. - 25 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 25. Having heard the arguments of both sides, this Court perused the material on record meticulously. 26. On such perusal of the material on record, this Court is required to consider whether any additional evidence needs to be allowed in this second appeal and whether the appellant has made out a case for appointment of the Court Commissioner at the first instance. 27. As referred to supra, the appellants are seeking production of additional evidence and appointment of the Court Commissioner to ascertain the factual aspects. 28. Having regard to the scope of Section 100 of Code of Civil Procedure and the enabling provisions namely Sections 103 and 107 of Code of Civil Procedure, as a general Rule, no additional evidence is permissible to be entertained in the second appeal. 29. However, the Court is not powerless in a given case where the additional evidence, if taken on record, would serve the ends of justice in a better manner. This is found from the - 26 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 powers of the Second Appellate Court as is contemplated under Section 107 of Code of Civil Procedure. 30. For ready reference, this Court culls out Sections 100, 103 and 107 of Code of Civil Procedure which reads as under: “100. Second appeal.— (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: - 27 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 103. Power of High Court to determine issues of fact.— In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,— (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100. 107. Powers of Appellate Court.— (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. - 28 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.” 31. On bare reading of the above provisions, general Rule is to be accepted and as a Rule, no additional evidence is to be permitted to be placed by the parties. 32. In the case on hand, legal representatives of the original plaintiff wants to place additional evidence on record and in that regard, contents of the affidavit as referred to supra is placed before the Court. 33. The decisions that are relied on by the learned counsel for the appellants especially the decision in the case of Munivenkatappa v. Chikkapappanna reported in ILR 1991 KAR 3014, Hon’ble Division Bench of this Court after referring to the judgment of the Hon’ble Apex Court in the case of Balaichandra v. Shwedari reported in AIR 1978 SC 1062, held that if a party places on record the additional evidence and makes out a case that in a second appeal, if the Court is satisfied that a party was precluded from placing additional - 29 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 evidence despite his due diligence, Court is not powerless under Section 107 of Code of Civil Procedure to permit a party to place additional evidence on record. 34. The Division Bench also ruled that while allowing such additional evidence on record, necessarily Court must be satisfied about the condition as is contemplated under Order XLI Rule 27 (aa) of Code of Civil Procedure. 35. It is at this juncture, Order XLI Rule 27 of Code of Civil Procedure needs to be culled out by this Court for ready reference which reads as under: “27. Production of additional evidence in Appellate Court.— (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced - 30 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 36. On careful reading of Order XLI Rule 27(aa) of Code of Civil Procedure, a party who wants to place additional evidence on record must satisfy that despite due diligence, he could not place the material on record or the additional evidence which is now sought to be placed on record, was not in the knowledge of that party. 37. In another decision that is relied on by learned counsel for the appellants in the case of Union of India v. Ibrahim Uddin reported in (2012) 8 SCC 148 in paragraph Nos.40 and 41, their Lordships have held as under: - 31 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 “40. The inadvertence of the party or his 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 realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.” 38. The decisions relied on by the learned counsel for the appellants as referred to supra is of no avail to the appellants inasmuch as those decisions are dealing with the case, where if the additional evidence is to be allowed, what is the parameters to be followed by the First Appellate Court. 39. With the above test, kept in the background, when the material on record is analyzed, the affidavit contents as referred to supra does not spell out any one of the reasons - 32 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 muchless exercising due diligence by the appellant and still not able to place additional evidence which are now sought to be placed on record. 40. The survey sketch was very much available at the time of institution of the suit itself. In fact the basis for the plaint averments itself is the survey conducted by the surveyor at the request of the plaintiff. But the survey sketch does not mention about the existence of the Government road dividing the plaintiff’s property into two portions. 41. In fact the defendants have specifically stated that there existed a another road on the southern side of the suit property but that was not put to use. Therefore, two roads have been laid one from Kutawadi to H.D.Kote and another from Kutawadi to Tank. 42. These roads could not have been laid unless the Government had surveyed the land and notified the concerned. 43. Admittedly, the plaintiff was away from Kutawadi village as could be seen from the plaint averments for more than five to six years to eke out his livelihood in Kollegala - 33 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 conducting dasoha in a Gurumalleshwara Mutt. Plaint averments also reveal that he returned to Kutawadi village in the year 2000. 44. When the defendants have taken a specific contention about the existence of the road, it was incumbent on the part of the plaintiff to amend the plaint about the existence of the road and file a fresh sketch as to which are the portions which are in encroachment. 45. Moreover, the sketch that has been relied upon by the plaintiff showing encroachment ‘A, B, F, G, H, I and J’, is prepared without notice to the bajudars. Moreover, it is a private survey. As such, same is to be termed as self serving document. 46. What is the value that is to be attached to a private survey is a question that has not been properly explained by the plaintiff before the Trial Court. 47. Pertinently, the author of the survey sketch is examined as a witness by the plaintiff. But no useful material is elicited in his evidence. Likewise, the plaintiff failed to - 34 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 examine his tenants who were cultivating the land in his absence on ‘vara or guttige basis’. 48. Under such circumstances, the survey sketch and other documents that are now sought to be relied upon by the plaintiff as additional evidence cannot be allowed to be placed on record to improve upon the case which was not even propounded by the plaintiff at the first instance. 49. In other words, even after having knowledge of the contents of the written statement, if the plaintiff failed to amend the plaint and place necessary documents about the existence of the road, it should not now lie in the mouth of the legal representatives of the plaintiff, that too in the second appeal that the additional documents have got a bearing on the appeal and therefore, applications needs to be allowed. 50. Learned counsel for the respondents also pointed out about the admissions made by the plaintiff in the cross- examination which has been culled out by the learned Trial Judge in paragraph No.13 of the judgment wherein the plaintiff specifically stated that Basavaraju is his younger brother who - 35 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 has got a land of 4 acre 2 guntas in Sy.No.38 and he has sold the same in favour of Gowramma @ Shivabiregowda. 51. P.W.1 has pleaded ignorance about the said aspect of the matter. 52. Likewise, he has stated that balance of the land in Sy.No.38 was in the name of Shambhulingadevaru. 53. He admits that there existed a road which passes through the property but same is not mentioned in the plaint. He also admits that he has not instructed his Advocate the existence of two roads that passes through the suit property at the time of preparing the plaint. 54. In other words, at the time of institution of the suit itself, the plaintiff was aware of two roads being passing through the property of the plaintiff. 55. If it is so, what prevented the plaintiff to show the same in the survey sketch is a question that remains unanswered. - 36 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 56. Taking note of these aspects of the matter, additional evidence cannot be permitted to be placed on record for the first time, in this second appeal. 57. Moreover, the documents which are now sought to be placed on record were in existence at the time of filing the first appeal itself. 58. No reason whatsoever is forthcoming for non- placing those documents by the plaintiff before the First Appellate Court. Therefore, there is no due diligence on the part of the plaintiff. 59. On the contrary, there is a total negligence and the party cannot be permitted to plug the loop holes in the Appellate Court in the form of filing an application under Order XLI Rule 27 of Code of Civil Procedure. 60. The reasons assigned above, would be equally applicable for rejecting the application seeking appointment of the Court Commissioner. 61. Thus, the application filed for placing additional evidence under Order XLI Rule 27 of Code of Civil Procedure - 37 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 and seeking appointment of the Court Commissioner under Order XXVI Rule 9 of Code of Civil Procedure is hereby rejected. 62. Having held thus, this would take this Court to the merits of the second appeal with regard to the substantial question of law. 63. Plaintiff being the purchaser of the suit property, by virtue of a registered sale deed dated 27.01.1967, was in possession of the property up to the year 1990. Between the year 1990 to 1996, he took the archakship of ‘Kendagannaswamy Gaddige Temple’. As he became the archak of Kendagannaswamy Gaddige Temple, he could not cultivate the land and therefore, he had to depend upon the tenants to cultivate the land on ‘vara or guttige basis’. 64. After sometime, he had to move out of Kutawadi village and started residing in B.G.Doddi village of Kollegala Taluk doing dasoha in Gurumalleshwara Mutt. 65. In other words, his possession over the suit land was allegedly through the tenants. - 38 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 66. To establish that he continued to be in possession of the property and got cultivated the land through his tenants, there is no material evidence on record. Atleast, names of tenants are not mentioned in the plaint or in examination-in- chief. 67. P.W.2 to 4 namely Nagaraju, Siddaramegowda and Puttaswamy N., did not speak about the continued possession of the plaintiff over the suit property through the tenants. They also did not speak about who are tenants. 68. Existence of the road and the property of the plaintiff, being divided into two portions, is not depicted in Ex.P.1. Admittedly, Ex.P.1 was prepared by the plaintiff when he returned to the Kutawadi village in the year 2000 and came to know that the land possessed by him is reduced in its area and he was suspecting that it is the neighbors who have encroached upon the suit property and thus, got a private survey done. 69. Nothing prevented for the plaintiff to get the regular survey done through Government surveyor filing an application and notifying the bajudars. Further, in the entire sketch - 39 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 marked at Ex.P.1, the surveyor has not shown the existence of the two Government roads which passes through the property of the plaintiff from Kutawadi to H.D.Kote and Kutawadui to Tank. 70. Likewise, existence of the road in the southern side is not shown in Ex.P.1. In other words, Ex.P.1 thus can be termed as a self serving document without there being factual aspects being depicted properly. 71. If Ex.P.1 is the basis for the plaintiff to file a suit seeking removal of the encroachment and granting injunction and declaring that he is the owner of the property and if the same is not established by placing material evidence on record, the learned Trial Judge was justified in dismissing the suit of the plaintiff. 72. Learned Judge in the First Appellate Court rightly reappreciated the material evidence on record and therefore, rejected the appeal. 73. It is to be noted that any amount of admission elicited in the case of the defendants would not be of any avail - 40 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 to the plaintiff in getting his suit decreed inasmuch as it is the plaintiff who was required to establish his legal right, especially while seeking a relief of declaration in respect of the suit property. It is settled principles of law and requires no emphasis that weakness of the case of the defendants would not be of any avail to the plaintiff in getting his suit decreed. 74. Having said thus, if there is no proper proof of the plaint averments that there is an encroachment of the property mentioned as ‘A, B, F, G, H, I and J’, non-granting the injunction in respect of that property is just and proper. 75. Consequently, even after the two roads have been formed in the property of the plaintiff, dividing the property of the plaintiff into two portions and encroached portion being not established, there must be some property remaining as per the sale deed. 76. It is for the plaintiff to protect that property by filing necessary application before the survey authorities. 77. Needless to emphasize that in the absence of any claim by the bajudars about the ownership of the remaining - 41 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 portion of the property, it is the plaintiff who is to be declared as the owner of the remaining property, if any. 78. Further, it is not clear from the averments made in the written statement that entire land of the plaintiff is taken away for the formation of two roads. 79. Furthermore, suggestions made and the material evidence placed on record by the defendants to the plaintiff’s witnesses and the examination-in-chief of the defendants’ witnesses would go to show that plaintiff’s property is divided into two portions after formation of the road, though denied by the plaintiff; there remains some portion of the property of the plaintiff. 80. It is for the plaintiff to work out necessary remedy and in the absence of any contra claim, the suit of the plaintiff is to be decreed in part holding that plaintiff is the owner of the remaining portion of the property in Sy.No.38 as per the sale deed dated 27.01.1967. - 42 - HC-KAR NC: 2026:KHC:34269 RSA No. 1031 of 2021 81. Accordingly, following: ORDER i. Appeal is allowed in part. ii. While maintaining the dismissal of the suit for injunction against the defendants in respect of ‘A, B, F, G, H, I and J’, the suit of the plaintiff is decreed for the remaining portion after the roads have been formed which the plaintiff has to work out by filing necessary application before the survey authorities in accordance with law. iii. No order as to costs. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 51