Karnataka High Court
Mavalakhan Husenkhan Mulla vs Superintendent Engineer on 8 September, 2025
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NC: 2025:KHC-D:11434
RSA No. 100299 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 8TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO. 100299 OF 2023
(DEC/INJ)
BETWEEN:
1. MAVALAKHAN HUSENKHAN MULLA,
AGE. 72 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
2. ISMAYILKHAN HUSENKHAN MULLA,
AGE. 63 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
3. MAHABOOBALIKHAN S/O. HUSENKHAN MULLA,
AGE. 62 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
Digitally signed by
CHANABASAPPA K
4. ADAMKHAN S/O. HUSENKHAN MULLA,
KALLUR
Location: HIGH COURT AGE. 57 YEARS, OCC. AGRICULTURE,
OF KARNATAKA
DHARWAD BENCH
Date: 2025.09.11
R/O. KADASHETTIHALLI,
16:12:32 +0530
HANGAL TQ. AND DIST. HAVERI 581199.
5. SMT. FATIMABI W/O. MAVALA ALI HUDED
AGED. 65 YEARS, OCC. HOUSEHOLD WORK,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
6. MAVALALI S/O. BABUKHAN MULLA,
AGE. 69 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
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NC: 2025:KHC-D:11434
RSA No. 100299 of 2023
HC-KAR
7. SADHIQ S/O. BABUKHAN MULLA,
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
8. AVALEKHAN S/O. UMMARKHAN MULLA,
AGE. 54 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
9. MAQBUL S/O. UMMARKHAN MULLA,
AGE. 48 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
10. MAVALALI S/O. UMMARKHAN MULLA,
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
...APPELLANTS
(BY SRI. J.S. SHETTY, ADVOCATE)
AND:
1. SUPERINTENDENT ENGINEER
PUBLIC WORKS,
HARBOR AND INLAND TRANSPORTATION
DEPARTMENT,
DHARWAD CIRCLE, VISHVESHWARAYYA LANE,
DHARWAD 580001.
2. EXECUTIVE ENGINEER
PUBLIC WORK,
HARBOR AND INLAND TRANSPORTATION
DEPARTMENT,
HAVERI DIVISION, HAVERI 581110.
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NC: 2025:KHC-D:11434
RSA No. 100299 of 2023
HC-KAR
3. ASSISTANT EXECUTIVE ENGINEER PUBLIC WORK
HARBOR AND INLAND TRANSPORTATION
DEPARTMENT,
HANGAL SUB DIVISION, HANAGAL,
HAVERI DISTRICT 581104.
4. THE SECTION OFFICER JUNIOR ENGINEER
PUBLIC WORK DEPARTMENT,
HANGAL 581104.
5. GOVERNMENT OF KARNATAKA
BY DEPUTY COMMISSIONER,
HAVERI 581110.
...RESPONDENTS
(BY SRI. M. KESHAVAREDDY, AAG AND SRI. PRAVEENA
DEVAREDDIYAVARA, HCGP FOR R1 TO R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.12.2022
PASSED IN R.A.NO.45/2022 ON THE FILE OF THE FAMILY
COURT, HAVERI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 10.04.2019, PASSED IN
O.S. NO.56/2018 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND J.M.F.C, HANGAL, DISMISSING THE SUIT
FILED FOR DECELERATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER :
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NC: 2025:KHC-D:11434
RSA No. 100299 of 2023
HC-KAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Appellants have preferred this appeal against the Judgment and Decree dated 10.04.2019 passed by the Additional Senior Civil Judge and JMFC, Hangal (for short, 'the trial Court') in O.S.No.56/2018 (Old No.363/2014), which was confirmed by the Judgment and Decree dated 07.12.2022 passed in R.A.No.45/2022 by the Family Court, Haveri (for short, 'the first appellate Court').
2. Parties are referred to as per their rank before the trial Court.
3. The brief facts leading to filing of this appeal are that appellants have filed the suit for declaration in respect of suit properties and consequential injunction restraining defendants from forming any road or widening of the road and not to interfere in their peaceful possession and enjoyment of the suit properties i.e., land bearing Sy.No.8/2 measuring 6 acre 22 gunta and Sy.No.6/1 measuring 3 acre 12 gunta, Sy.No.6/2, measuring 4 acre 30 gunta belong to the appellants herein, who are enjoying the said properties as the tenants in common. They -5- NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR have also got surveyed the said properties by filing the necessary application before the survey authorities and survey authorities by identifying the properties of the appellants, fixed the boundaries and prepared the sketch. The said properties are the absolute properties of the appellants and the same have not at all been acquired by the Government at any point of time. However, respondent authorities/defendants without any manner of right and without initiating any acquisition proceedings have tried to form new road in the guise of the straightening of the road, even though there is no such road and the lands belonging to the appellants having not acquired in accordance with the provisions of the Land Acquisition Act, have tried to form the road in the said properties that too in the middle of the lands and thereby they have caused loss to the appellants. The said action of the respondent/defendants authorities are wholly illegal and without any manner of right and as such, the appellants having no other alternative and efficacious remedy, have filed the suit in O.S.No.363/2014 before the Additional Senior Civil Judge at Hanagal which was later renumbered as O.S.No.56/2018. -6-
NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR
4. In the said suit, on the notice being served to the defendants, they have tendered their appearance and the 3rd defendant filed his written statement which was adopted by other defendants. In the written statement filed by the 3rd defendant, he has denied all the plaint averments and contended that the road situated on the southern side of the appellant/plaintiffs' properties is in existence from several years which was formed about 40 years back and is being used by the public. It is further contended that the suit filed by the plaintiffs for declaration and injunction without seeking for consequential relief of possession, is not maintainable in law. As per the Government, project No.5054-03-337-0-18, the Hosa Aladakatti
-Honkana Road, in the Hanagal Taluk, the road in question was in a damaged condition and they are intending to develop the road and they have contended that the survey sketch prepared by the survey authorities are not binding on them and the plaintiffs have managed to get the survey report only to suit their convenience and on these grounds they sought for dismissal of the suit.
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5. Based on the pleadings, the trial Court has framed eight issues. To substantiate the case of plaintiffs, the 2nd plaintiff examined himself as P.W.1, 16 documents were marked as Ex.P.1 to P.16. On closure of plaintiffs' side evidence, defendant No.3 examined himself as D.W.1 and seven documents were marked as Ex.D.1 to Ex.D.7.
6. Having heard the arguments on both sides, the trial Court has dismissed the suit with costs. Being aggrieved by the Judgment and Decree passed by the trial Court, plaintiffs have preferred the appeal in R.A.No.45/2022, which came to be dismissed by the first appellate Court. Being aggrieved by the Judgment and Decree passed by both Courts, the plaintiffs have preferred this regular second appeal.
7. This Court has formulated the following substantial questions of law vide order dated 21.01.2025;
"1. Whether the first appellate Court has committed an error in passing the impugned judgment and decree in the light of the judgment of the Hon'ble Supreme Court in the case of Santosh Hazari Court vs. Purushottam Tiwari (Deceased) By LRs. reported in (2001) 3 SCC 179?-8-
NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR ii. What order?"
8. Learned counsel for appellants would submit that the Judgment and Decree passed by Courts below are wholly illegal, arbitrary, capricious and not sustainable in the facts and circumstances of the case.
9. Learned counsel for appellants would submit that the first appellate Court has committed a serious error in rejecting the application filed by appellants herein under Order XLI Rule 27 read with Section 151 of the CPC for production of additional documents. Notwithstanding the fact that said documents sought to be produced by appellants is very much necessary for complete and effective disposal of the suit and also throws light on the real point of controversy between the parties. Apart from production of documents, appellants have contended that the formation of the road by the respondents was after filing and during pendency of the suit, as such alleged formation of the road by respondents in no way affects the rights of the appellants seeking for declaration of their right, title and possession of the suit properties as on the date of filing of the suit and as such, the dismissal of the suit by the trial Court on -9- NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR the ground that plaintiffs have not sought for necessary consequential relief of possession of the properties and as such the suit for declaration and injunction on the face of the record, is not sustainable. The documents sought to be produced by appellants disclosed the fact of the subsequent development of filing of the suit and as such has got the material bearing on the point of controversy between the parties and these documents are germane and ought to have been allowed by the first appellate court.
10. Learned counsel for appellants further submits that the first appellate Court has also failed to take note of the fact that it is for the defendants to prove as to existence of the road in the properties belonging to the appellants and as such the burden is on them to prove said aspect of the case. When the documents already produced by the plaintiffs sufficiently disclose the fact that, no portion of the land has been used as a road and there was no acquisition of the land belonging to the appellants, the burden is on the defendants to prove said aspect is wholly illegal. The village map sought to be produced before the first appellate Court by way of additional evidence, clearly shows that the road
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NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR which was in existence is not passing through the lands of the plaintiffs and the said material document has been willfully suppressed by the defendants and the said document falsifies the case putforth by the defendants and as such ought to have been allowed to be produced by the plaintiffs before the first appellate Court. In dismissing the said application on the ground that the plaintiffs have not shown due diligence before the trial Court to produce the document and as such plaintiffs should not be allowed to be produced before the first appellate Court, on the face of record, is illegal. The said order passed by the first appellate Court without considering the provisions of Order XLI Rule 27 read with Section 151 of the CPC in its proper perspective, is wholly illegal and not sustainable. The appellants have placed sufficient cause to allow the application filed under Order- XLI Rule 27 read with Section 151 of the CPC. Further, it is submitted that both Courts have failed to take note of the fact that the suit properties in question are in the absolute ownership of the plaintiffs and the plaintiffs are entitled to use the same in the manner known to law and they cannot be deprived of their rights of the properties, unless in accordance with law. Though the property rights has no longer been considered as
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NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR fundamental right under Article 19 of the Constitution of India, the same is continued to be a constitutional right under Article 300A of the Constitution of India, which provides that 'no person shall be deprived of his property save by authority of law'. Further he would submit that there is presumptive value under Section 133 of the Karnataka Land Revenue Act regarding entries of land revenue records.
11. Learned counsel for appellants would further submit that respondents have also filed memo before this Court to produce additional documents and respondents themselves have stated that respondents are desirous of producing of additional documents, which are very essential for just disposal of the suit. On all these grounds sought for setting aside the Judgment and Decree passed by both Courts and remand the matter to the trial Court by providing opportunity to appellants to produce the documents along with application under Order XLI Rule 27 read with Section 151 of the CPC.
12. To substantiate his arguments, learned counsel for appellants has relied on decisions of the Hon'ble Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari
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NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR (deceased) by LRS, reported in (2001) 3 SCC 179 and in the case of Bernard Francis Joseph Vaz and Others vs. Government of Karnataka and Others, reported in 2025 SCC OnLine SC 20.
13. As against this, learned AAG Sri M.Keshavareddy would submit that respondents have produced documents which are required for adjudicate the matter in dispute. If this Court remands the case, then opportunity has to be provided to the respondents to adduce their additional evidence.
14. I have perused the materials placed before this Court. Upon perusal of the impugned Judgment passed by the first appellate Court, at paragraph No.6 of the Judgment, it is observed as under :
"6. Point No.1:
a. This court being the First appellate court is required to re appreciate facts and evidence on record and if it is done, it will necessarily help this court in coming to the conclusion as to whether the Trial Court has committed any error in passing the impugned Judgment and decree and it requires this court to interfere with the impugned judgment and decree.
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NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR b. On perusal of the prayer in the appeal the appellants have sought for remand of the matter. They have sought for setting aside of the impugned judgment and decree only for the purpose of remand of the matter.
c. in the case on hand, whether the matter is to be remanded or not is to be decided.
d. The plaintiffs have sought for remand for the purpose of examining more witnesses, for producing documents and for appointment of Commission.
e. On perusal of the materials on record, the appellants have filed an application under Order XLI Rule 27 R/w. Sec. 151 of C. P. C., for production of additional documents. On perusal of the said provision, it gets clear that production of additional evidence is permissible if the Trial Court had refused to admit the evidence sought to be produced or the party seeking the production of additional evidence could not with due diligence produce the evidence at the time when the decree appealed against was passed. On perusal of the affidavit, it gets clear that the documents sought to be produced came into existence subsequent to the passing of the impugned Judgment and decree. The said provision does not provide for production of documents which come into
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NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR existence subsequent to passing of the impugned judgment and decree. The court has to see the condition of the property as on the date of suit and not subsequent to the suit. The parties have to the condition of the properties as on the date of suit by producing necessary oral or documentary evidence. This implies that the evidence should be prior to the suit. Hence, the documents sought to be produced, cannot be permitted to be produced. Hence, I. A. No. III filed under Order XLI Rule 27 R/w. Sec. 151 of C. P. C. requires to be dismissed.
f. Order XLI Rule 23 deals with the
circumstances under which matter can
remanded. On perusal of the said provision it gets clear that the appellate court can remand the suit if the suit is disposed on a preliminary point and decree is reversed in appeal. In the case on hand, the suit was not disposed on a preliminary point. Hence, Order XLI Rule 23 of C. P. C., does not provide for remand of this suit.
g. For the purpose of appointing the Commission or for the purpose of leading further evidence of witnesses, the suit cannot be remanded.
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NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR h. Hence, the prayer sought for remand of the suit, cannot be granted.
i. The plaintiffs have not sought for setting aside of the impugned Judgment and decree and to decree the suit by allowing the appeal. Hence, this court can not find out whether the Trial Court has committed error of fact or law in dismissing the suit when the main prayer of the plaintiffs for remand of the matter, cannot be granted.
j. Hence, I am of the opinion that the plaintiffs have failed to make out ground for remand of the matter to the Trial Court for fresh trial.
k. Hence, I answer the above point accordingly."
15. A perusal of the observations made by first appellate Court, makes it crystal clear that the first appellate Court has not re-appreciated the evidence on record in accordance with law. The first appellate Court has dismissed the regular appeal only on the ground that there are no grounds to allow the application filed under Order XLI Rule 27 read with Section 151 of the CPC, which is not correct.
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16. A careful examination of the entire materials on record and also the averments made in the affidavit which is annexed to the application filed under Order- XLI Rule 27 read with Section 151 of the CPC, I am of the considered opinion that the proposed additional evidence are very much required for adjudication of the matter in dispute. Additionally, the respondents themselves have filed a memo along with additional documents contending that the proposed documents are also required for adjudication of the matter in dispute. Accordingly, it is held that the first appellate Court has committed error in passing the impugned Judgment and Decree in the light of the decision of the Hon'ble Supreme Court in Santosh Hazari supra. Accordingly, first substantial question of law is answered in the 'affirmative'.
17. Since both parties have produced additional documents, opportunity has to be provided to both parties to adduce their evidence. Accordingly, I proceed to pass the following :
ORDER
(i) Appeal is allowed.
(ii) The Judgment and Decree passed on 10.04.2019 by the Additional Senior Civil Judge and JMFC, Hangal in O.S.No.56/2018 (Old No.363/2014), which is
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NC: 2025:KHC-D:11434 RSA No. 100299 of 2023 HC-KAR confirmed by the Family Court, Haveri vide its Judgment and Decree dated 07.12.2022 passed in R.A.no.45/2022 is set aside.
(iii) The application under Order XLI Rule 27 read with Section 151 of the CPC filed before the Family Court, Haveri in R.A.no.45/2022 is allowed. The memo for production of additional documents filed on behalf of respondents is accepted.
(iv) The case is remanded to the trial Court with a direction to provide opportunity to both parties to adduce their additional evidence and dispose of the matter in accordance with law.
(v) The registry is directed to send copies of documents annexed with application and also documents produced by the respondents along with copy of this order for taking necessary action.
(vi) It is made clear that both parties are at liberty to produce additional documents/additional evidence, if any, before the trial Court.
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(vii) Considering the facts and circumstances of the case, the status quo order passed by this Court dated 21.01.2025 shall be continued, till the disposal of the case.
(viii) Both parties are directed to appear before the trial Court without seeking any further notice from the trial Court on 09.10.2025.
(ix) The trial Court is requested to dispose of the matter expeditiously.
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(G BASAVARAJA) JUDGE CKK CT-CMU LIST NO.: 1 SL NO.: 9