- 1 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE MISCELLANEOUS SECOND APPEAL NO. 53 OF 2021 (RO) BETWEEN: MR. GREGORY WILSON BRAGGS, S/O LATE JOHN SYLVESTER BRAGGS, AGED ABOUT 60 YEARS, RESIDING AT KELRAI CHURCH ROAD, KELARAI, MANGALORE, D.K.DISTRICT. PIN-575029. &APPELLANT (BY SRI RAVISHANKAR SHASTRY G,ADVOCATE) AND: 1. MRS. EUGINE MENEZES, W/O.SANTAN MENEZES, AGED ABOUT 75 YEARS, SINCE DECEASED BY LEGAL REPRESENTATIVES 1(a) HILDA MENEZES, D/O MRS. EUGINE MENEZES, MAJOR, 1(b) VICTOR MENEZES, S/O MRS.EUGINE MENEZES, MAJOR, BOTH ARE RESIDING AT KELEYE HOUSE, NEAR KELARAI CHURCH ROAD, MANGALURU TALUK, D.K.DISTRICT, PIN - 575029. Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 2. MRS NATHALIA CYNTHIS MENZES, D/O.LATE SANTHAN MENEZES, AGED ABOUT 49 YEARS, RESIDING AT KELEYE HOUSE, NEARY KELARAI CHURCH ROAD, MANGALURU TALUK, D.K.DISTRICT PIN - 575029. (AMENDED VIDE COURT ORDER DATED 14.11.2024) &RESPONDENTS (BY SRI S S PARIKSHIT, ADVOCATE FOR R1 (A & B), SRI B R RAGHAVENDRA, ADVOCATE FOR R2) THIS MSA IS FILED UNDER ORDER 43 RULE 1 (U) OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.01.2021 PASSED IN RA.NO.235/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU.D.K, ALLOWING APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.10.2019 PASSED IN O.S.NO.583/2014 ON THE FILE OF THE V ADDITIONAL CIVIL JUDGE AND JMFC, C/C OF III ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, DECREEING THE SUIT FOR INJUNCTION REMAND THE MATTER BACK TO THE TRIAL COURT FOR FRESH DISPOSAL AS PER LAW. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 3 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 ORAL JUDGMENT Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 2. This appeal is filed against the judgment and decree passed in RA No.235/2019 on the file of II Additional Senior Civil Judge, Mangaluru. In terms of the aforementioned judgment dated 25.01.2021, the aforementioned Regular Appeal No.235/2019 is allowed in- part and the matter is remitted to the Trial Court for fresh consideration. In the process, the First Appellate Court has set aside the judgment and decree passed by the Trial Court. 3. The matter is remitted to the Trial Court by allowing the application filed by the defendants under Order XLI Rule 27 of the Code of Civil Procedure (for short 'Code') and also by allowing the application under Order XXVI Rule 9 of the Code. The defendants are permitted to produce additional documents filed along with I.A.No.3 before the First Appellate Court. - 4 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 4. Learned counsel appearing for the plaintiff/ appellant referring to the facts of the case would urge that the First Appellate Court could not have set aside the judgment and decree passed by the Trial Court and could not have remanded the matter to permit the defendants to produce the documents marked at Exhibit-D8 which is now again sought to be produced along with I.A.No.3 under Order XLI Rule 27 of the Code before the First Appellate Court. 5. Learned counsel for the appellant would further submit that another document sought to be produced is the Order of the Assistant Commissioner relating to the conversion of land which was passed in the year 2014-15 and would submit that said document has no relevance for the adjudication of the case on hand. 6. In the alternative, learned counsel would also submit that assuming that the documents produced by the Assistant Commissioner are also relevant for adjudication of the case on hand, the Court could not have given a finding that the document in case admitted in evidence would - 5 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 demolish the case of the plaintiff and such a positive direction would influence the mind of the Trial Court while deciding the matter after the remand. 7. Learned counsel would also further submit that the direction to frame an issue relating to easement of necessity is wholly uncalled for as there is no claim by the plaintiff that he has an easement of necessity over the suit road. 8. Learned counsel appearing for the respondents would urge that the documents produced along with application under Order XLI Rule 27 of the Code before the First Appellate Court at I.A.No.3 are necessary for adjudication of the case on hand. The conversion order passed by the Assistant Commissioner would reveal that the suit road on the Northern side is not in existence as claimed by the plaintiff, as such, the First Appellate Court is justified in allowing the application and the matter is remanded to afford an opportunity to the both parties to lead evidence and no prejudice is caused. - 6 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 9. It is also submitted that application under order XXVI Rule 9 of the Code is very much necessary given the fact that the defendants have taken a contention that the suit road is not in existence and the plaintiff is asserting the existence of the suit road. 10. The Court has considered the contentions raised at the Bar and perused the records. 11. The following questions of law arise for consideration: (a) Whether the First Appellate Court is justified in allowing the application under Article XLI Rule 27 of the Code of Civil Procedure? (b) Whether the First Appellate Court is justified in allowing the application under Order XXVI Rule 9 of the Code of Civil Procedure? (c) Whether the First Appellate Court is justified in framing an issue relating to easement of necessity? (d) Whether defendants proves existence of existence of converted property of 0.03 cents in - 7 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 Survey No. 179/1A1B in her possession and ownership? 12. As far as production of additional document is concerned, it is to be noticed that one of the documents ought to be produced is already marked with at Ex.D8. Thus, the First Appellate Court could not have not have allowed the said application for production of the said document which is already marked. 13. As far as other two documents are concerned, said documents are said to be the conversion orders passed by the Assistant Commissioner relating to the change in the land use. The defendants have raised a contention that because of the conversion order, the plaintiff9s right to use the alleged suit road is lost. 14. It is to be noticed that the plaintiff is claiming right of way based on the registered sale deed said to have been executed by the defendant to the plaintiff9s vendor. Assuming that the conversion order does not disclose the existence of the road that order does not take away the right - 8 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 of the plaintiff over the suit road if it is in existence in terms of the sale deed. The reason is the plaintiff is not a party to the conversion order. Thus, the First Appellate Court could not have allowed the said application with an observation that the document would demolish the case of the plaintiff. 15. As far as the application under Order XXVI Rule 9 of the Code is concerned, the Court is of the view that the First Appellate Court is justified in allowing the said application as the defendant is raising a contention that the suit road is not in existence. This contention is raised despite the averment made in the sale deed which reveals that the plaintiff9s vendor when purchased the property from the defendants was assured of existence of a road on the Northern side of the suit property. The plaintiff9s vendor purchased the property from defendants in the year 1991. The suit is filed in the year 2014. Given the fact that lot of time has elapsed between the first sale deed and the filing of the suit, it is quite possible that the topography of the property might have changed. - 9 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 16. Under these circumstances, the defendants have filed an application for appointment of a Court Commissioner to establish his contention, that the suit road is not in existence. Thus, the Court does not find any reason to interfere with the said order of the First Appellate Court appointing the Court Commissioner to inspect the spot and to submit the report. 17. First Appellate Court has also framed two issues as noticed above. One issue is relating to the easement of necessity. The plaintiff does not claim easement of necessity. The plaintiff is claiming right to use the property by virtue of grant made in the sale deed. Thus, the issue relating to easement of necessity is uncalled for. Even the issue relating to the conversion of the property is also not relevant for the adjudication of the case on hand. 18. It is also noticed that the First Appellate Court has set aside the entire judgment and decree and remitted the matter to the Trial Court. This exercise was not called for. The First Appellate Court could have retained the appeal - 10 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 before itself and could have sought finding and have secured additional evidence in terms of the Commissioner report. Thereafter, could have decided the matter. 19. Under the circumstances, the appeal has to succeed in-part. 20. Hence, the following: ORDER (a) Appeal is allowed in part. (b) The judgment and decree dated 25.01.2021 in on the file of II Additional Senior Civil Judge, Mangaluru in R.A.No.235/2019 are set aside in part. (c) The matter is remitted to the First Appellate Court for fresh consideration. (d) Before deciding the appeal, the First Appellate Court shall secure the finding from the Trial Court on the following issue:- (i) Whether the plaintiff proves the existence of the suit road and same is granted to the plaintiff9s vendor and thereafter to the plaintiff under the - 11 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 registered sale deed dated 11.11.1991 and 11.02.1994? (e) The First Appellate Court shall also appoint the Court Commissioner for spot inspection and secure the report of the Court Commissioner. (f) While appointing the Court Commissioner to the extent possible, the guidelines laid down in Sri Shadaksharappa vs. Kumari Vijayalaxmi and Others1 shall be followed. The Court Commissioner shall inspect the spot and answer the queries to be filed by both the parties to the proceeding. (g) After considering the report and the findings on the issue framed above to be recorded by the Trial Court and other evidence on record, the First Appellate Court shall pass judgment and decree on merits. (h) It is made clear that this Court has not expressed any opinion on the merits of the matter. (i) All contentions kept open. 1 ILR 2023 KAR 3983 - 12 - HC-KAR NC: 2026:KHC:2064 MSA No. 53 of 2021 (j) Instead of Issue No.1 framed by the First Appellate Court, the following issue is required to be framed and the same is to be answered. (k) The Trial Court shall record the evidence on the said issue and shall submit the finding to the First Appellate Court. (l) Parties shall appear before the First Appellate Court on 09.02.2026. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 2 Sl No.: 20