Karnataka High Court
Galeppa S/O Dodda Erappa vs Smt Guduma Bi W/O Rahamath Sab on 20 July, 2023
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RSA No. 5281 of 2008
Connected Cases: RSA No. 5282 of 2008
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5281 OF 2008
C/W
REGULAR SECOND APPEAL NO. 5282 OF 2008
IN REGULAR SECOND APPEAL NO. 5281/2008
BETWEEN:
1. GALEPPA S/O LATE DODDA ERAPPA,
AGED 60 YEARS, OCC. AGRICULTURIST,
R/O BEHIND GALEMMA TEMPLE, OLD 15TH WARD,
DAM ROAD HOSPET.
2. SMT. SARAN BI W/O LATE K. SANAULLAH,
AGED 58 YEARS, OCC. HOUSEWIFE,
R/O NEAR MADINA MASJID,
Digitally
signed by
ANNAPURNA
27TH WARD HOSPET.
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL
DANDAGAL Date:
2023.07.21
12:47:28 -
3. K. FAZLULLAH S/O LATE H. K. ABDUL KHADER SAB,
0700 AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
4. K. ATHAULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 54 YEARS, OCC. SCRAP MERCHANT,
R/O. NEAR THREE SHOPS CIRCLE, HOSPET.
5. K. JAKAULLAH S/O LATE H. K. ABDUL KHADER, SAB,
AGED 52 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
6. K. NOORULLAH S/O LATE H. K. ABDUL KHADER SAB,
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RSA No. 5281 of 2008
Connected Cases: RSA No. 5282 of 2008
AGED 50 YEARS, OCC. SCRAP MERCHANT,
R/O J. P. NAGAR, BELLARY ROAD, HOSPET.
7. K. KHALEELULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 47 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
8. K. KHALEEMULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
...APPELLANTS
(BY SRI. RAVI S. HEGDE, ADV. AND
SRI. M. GURURAJ, ADV. FOR APPELLANT)
AND:
SMT. GUDUMA BI W/O RAHAMATH SAB,
AGED 43 YEARS,
R/O DOOR NO. 897-1, 18TH WARD,
S. R. NAGAR, HOSPET,
BELLARI DISTRICT. ...RESPONDENT
(BY SRI. MOHAMED BASHU. ADV. FOR C/R)
***
THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED:26/08/2008 PASSED IN
R.A.No.33/2007 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN),
HOSPET, PARTLY ALLOWING THE APPEAL AND FILED AGAINST THE
JUDGMENT AND DECREE DATED 19.02.2007 PASSED BY THE
ADDITIONAL CIVIL JUDGE (JR.DN.), HOSPET IN O.S.NO. 105/2005,
DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION.
IN REGULAR SECOND APPEAL NO. 5282/2008
BETWEEN:
1. GALEPPA S/O LATE DODDA ERAPPA,
AGED 60 YEARS, OCC. AGRICULTURIST,
R/O BEHIND GALEMMA TEMPLE, OLD 15TH WARD,
DAM ROAD HOSPET.
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RSA No. 5281 of 2008
Connected Cases: RSA No. 5282 of 2008
2. SMT. SARAN BI W/O LATE K. SANAULLAH,
AGED 58 YEARS, OCC. HOUSEWIFE,
R/O NEAR MADINA MASJID,
27TH WARD HOSPET.
3. K. FAZLULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
4. K. ATHAULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 54 YEARS, OCC. SCRAP MERCHANT,
R/O. NEAR THREE SHOPS CIRCLE, HOSPET.
5. K. JAKAULLAH S/O LATE H. K. ABDUL KHADER, SAB,
AGED 52 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
6. K. NOORULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 50 YEARS, OCC. SCRAP MERCHANT,
R/O J. P. NAGAR, BELLARY ROAD, HOSPET.
7. K. KHALEELULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 47 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
8. K. KHALEEMULLAH S/O LATE H. K. ABDUL KHADER SAB,
AGED 56 YEARS, OCC. SCRAP MERCHANT,
R/O 27TH WARD, CHAPPARADAHALLI, HOSPET.
...APPELLANTS
(BY SRI. RAVI S. HEGDE, ADV. AND
SRI. M. GURURAJ, ADV. FOR APPELLANT)
AND:
1. SMT. GUDUMA BI W/O RAHAMATH SAB,
AGED 43 YEARS,
R/O DOOR NO. 8971, 18TH WARD,
S. R. NAGAR, HOSPET,
BELLARI DISTRICT.
2. SMT. AKHTAR BANU W/O RAHAMATH SAB,
AGED 40 YEARS, R/O DOOR NO. 897-1A,
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RSA No. 5281 of 2008
Connected Cases: RSA No. 5282 of 2008
18TH WARD, S. R. NAGAR, HOSPET,
BELLARI DISTRICT.
3. CITY MUNICIPAL COUNCIL, HOSPET,
BY ITS COMMISSIONER, HOSPET.
4. PEERAN SAB S/O MEHABOOB SAB,
AGED 64 YEARS, BELDAR,
R/O D. NO. 897, 18TH WARD S. R. NAGAR,
HOSPET, BELLARI DISTRICT.
...RESPONDENTS
(BY SRI. MOHAMED BASHU. ADV. FOR C/R)
***
THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DATED:26/08/2008 PASSED IN
R.A.No.34/2007 BY THE LEARNED ADDITIONAL CIVIL JUDGE
(SR.DN), HOSPET, PARTLY ALLOWING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 19.02.2007 PASSED IN
O.S.NO.129/2005 BY THE LEARNED ADDITIONAL CIVIL JUDGE
(JR.DN.), HOSPET, DISMISSING THE SUIT FOR DECLARATION,
POSSESSION AND MANDATORY INJUNCTION.
THESE REGULAR SECOND APPEALS COMING ON FOR FURTHER
ARGUMENTS AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.03.2023, THIS DAY, THE COURT, DELIVERED
THE FOLLOWING:
JUDGMENT
Appellants/defendants in R.S.A.No.5281/2008 and appellants/plaintiffs in R.S.A.No.5282/2008 feeling aggrieved by judgment and decree of the first Appellate Court on the file -5- RSA No. 5281 of 2008 Connected Cases: RSA No. 5282 of 2008 of Addl. Civil Judge (Sr.Dn.), Hospete, in R.A.No.33/2007 and R.A.No.34/2007 dated 26.08.2008 preferred these appeals.
2. The suit under O.S.No.105/2005 is filed by Smt.Gudumabi against defendants for the relief of permanent injunction. Whereas defendant Nos.1 and 2 in the said suit filed comprehensive suit in O.S.No.129/2005 for the relief of declaration of title, possession and mandatory injunction. The evidence in both suits are recorded separately. In view of the order of trial Court dated 30.06.2008, both the suits were clubbed and common judgment came to be passed by the trial Court. Similarly, the first Appellate Court in R.A.No.33/2007 arising out of O.S.No.105/2005 and R.A.No.34/2007 arising out of O.S.No.129/2005 also passed common judgment. Therefore, parties to both the appeals are referred with their ranks as assigned in the trial Court in O.S.No.129/2005, since the said suit being comprehensive suit, for the sake of convenience.
3. The factual matrix leading to the case of defendant Nos.1 and 2 who are plaintiffs in O.S.No.129/2005 can be stated in nutshell to the effect that defendant No.1 - Habibulla and father of defendant No.2 Dodda Irappa jointly purchased -6- RSA No. 5281 of 2008 Connected Cases: RSA No. 5282 of 2008 an extent of 4 acres 67 cents in Sy.No.182 of Hospet, under registered sale deed dated 27.06.1988 from Smt. Mahalakshmi. Thereafter, they effected division in the said property and Sy.No.182/1 has fallen to the share of Dodda Irappa and Sy.No.182/2 fallen to the share of Habibulla. There is a Municipal road to the south of the suit property measuring 75 links (49.06 ft.) which belongs to defendant No.3-CMC, Hospet. The sketch map is produced and schedule 'A' property bearing Sy.No.182/2 has fallen to the share of Habibulla, schedule 'B' property bearing Sy.No.182/1 fallen to the share of Dodda Irappa and schedule 'C' property bearing Sy.No.181 road belongs to CMC, Hospet. If the measurement of all these schedule properties are put together then it measures North South - 23 ft. and East-West 42.06 ft. In this area, Smt.Gudumabi, Aktar Banu and Peeran Sab have encroached and constructed semi permanent house structure. The major portion of encroachment is in 'C' schedule property belongs to CMC, Hospet, and portion of encroachment is covered in 'A' and 'B' schedule properties. The notice dated 27.04.2005 was issued to remove the encroachment and deliver the vacant possession of encroached area. However, no any action was -7- RSA No. 5281 of 2008 Connected Cases: RSA No. 5282 of 2008 taken to remove the encroachment. Therefore, suit came to be filed for seeking the relief claimed in the said suit.
4. The defence of defendant Nos.1, 2 and 4, defendant No.1 being plaintiff in O.S.No.105/2005 is that they have constructed their houses on road and further alleged encroachment in schedule 'A', 'B' and 'C' properties has been specifically denied. It is their contention that they have constructed the houses outside the boundaries of the suit properties. They are claiming right over their houses on the basis of registered gift deeds dated 08.06.2001 and 11.06.2001 from Rehamatsab. The defendant Nos.1 and 2 are the wives of Rehamatsab. Therefore, prayed for dismissal of the suit.
5. On the other hand, Smt.Gudumabi sole plaintiff in O.S.No.105/2005 filed suit against defendant Nos.1 and 2 who are plaintiffs in O.S.No.129/2005 and another Syedsab for the relief of permanent injunction. It is claimed that herself and Aktar Banu acquired title over the property covered under registered gift deeds dated 08.06.2001 and 11.06.2001 respectively executed by Rehamatsab. On obtaining necessary permission from CMC, Hospet, constructed the house. The defendant Nos.1 and 2 filed complaint against husband of -8- RSA No. 5281 of 2008 Connected Cases: RSA No. 5282 of 2008 plaintiff and her son in Town police station, Hospet, on 27.04.2005 and forced to sell her property. On concocted documents they attempted to dispossess plaintiff and Aktar Banu. Therefore, suit came to be filed seeking for the relief of permanent injunction.
6. The defendant Nos.1 and 2 who are plaintiffs in O.S.No.129/2005 in the written statement reiterated the same contention as raised in the plaint in O.S.No.129/2005 and sought for dismissal of the suit.
7. The trial Court framed necessary issues in both the suits. Plaintiffs to prove their case in O.S.No.129/2005 relied on the evidence of PW-1 and the documents at Ex.P.1 to Ex.P.9. The defendants relied on the evidence of DWs-1 to 4 and the documents at Ex.D.1 to Ex.D.10. The plaintiff to prove her case in O.S.No.105/2005 relied on the evidence of PWs-1 to 4 and the documents as per Ex.P.1 to Ex.P.22. Defendants relied on the evidence of DW-1 and the documents at Ex.D.1 to Ex.D.8. The trial Court after appreciation of evidence in both the suits, dismissed O.S.No.129/2005 of defendant Nos.1 and 2 who are plaintiffs in the said suit and decreed the suit of the defendant No.1 who is sole plaintiff in O.S.No.105/2005. -9- RSA No. 5281 of 2008
Connected Cases: RSA No. 5282 of 2008
8. Appellants/defendant Nos.1 and 2 in O.S.No.105/2005 filed R.A.No.33/2007 and appellants/plaintiffs in O.S.No.129/2005 filed R.A.No.34/2007 on the file of Addl. Civil Judge (Sr.Dn.), Hospet. The first Appellate Court after re- appreciation of evidence partly allowed the appeal in R.A.No.33/2007 and modified the operative portion of permanent injunction granted by trial Court in O.S.No.105/2005 and ordered that the defendants are restrained by way of injunction till the plaintiff is evicted from the suit property under due process of law. The first Appellate Court dismissed R.A.No.34/2007 and confirmed the judgment and decree of trial Court in dismissing O.S.No.129/2005.
9. Appellants/defendants in R.S.A.No.5281/2008 and appellants/plaintiffs in R.S.A.No.5282/2008 challenged the judgment and decree of the first Appellate Court in modifying the judgment and decree in O.S.No.105/2005 and dismissal of O.S.No.129/2005 contending that the Courts below have not properly appreciated the evidence on record and as a result, recorded erroneous findings which cannot be legally sustained. It appears that both the Courts below got confused about identity and location of encroached portion and misread the
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 evidence on record. Therefore, the findings recorded on the issue of title, possession and encroachment by both Courts below cannot be legally sustained. The application was filed to furnish the updated documents of sketch and revenue records, but endorsement was given that no documents were available. Now, the appellants obtained documents like Akarband, Form No.10, mutation and FMB sketch and the same are produced as additional evidence with necessary application. The said documents will clearly establish the location and identity of schedule 'A, 'B' and 'C' properties shown in the sketch map. The Courts below have concurrently held encroachment made by defendants 1, 2 and 4 with regard to schedule 'A', 'B' and 'C' properties in affirmative and therefore, there was no justification for dismissal of O.S.No.129/2005. Therefore, prayed for allowing both the appeals and to set aside the judgment and decree of both the Courts below. Consequently, to dismiss O.S.No.105/2005 and to decree O.S.No.129/2005.
10. In response to the notice of appeal, the respondents in respective appeals appeared through counsel.
11. This Court by order dated 13.09.2012 admitted the appeal to consider the following substantial question of law:
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Connected Cases: RSA No. 5282 of 2008 "Whether the Courts below, having recorded a positive finding that the plaint 'C' schedule property in O.S.No.129/2005 is a public road and the defendants have put up illegal structure encroaching upon the said public road are justified in not ordering for removal of the said encroachment?"
12. Heard the arguments of both sides.
13. On careful perusal of oral and documentary evidence placed on record by parties to both the suits, it would go to show that Habibulla and Dodda Irappa have jointly purchased an extent of 4 acres 67 cents in Sy.No.182 of Hospet, under registered sale deed dated 27.06.1988, as per Ex.P.1, from its' erstwhile owner Smt.Mahalakshmi. Thereafter, they got effected division in the extent of land purchased by them Sy.No.182/1 measuring 2.57 cents has fallen to the share of Dodda Irappa and Sy.No.182/2 measuring 2.10 cents fallen to the share of Habibulla. There is municipal main road to the southern side of the suit property of 75 links (49.6). The schedule 'A' property fallen to the share of Habibulla, schedule 'B' property fallen to the share of Dodda Irappa and schedule 'C' property belonging to CMC. The extent of land covered under scheduled 'A' to 'C' put together would
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 come to North-South 23 ft. East-West 42.6 ft. It is in this area defendant Nos.1 and 2 who are plaintiffs in O.S.No.129/2005 claim that defendant Nos.1, 2 and 4 in the said suit have encroached and constructed semi permanent house structure. The defendant Nos.1, 2 and 4 though denied that they have encroached any area of the plaintiffs, but do not dispute the title of Habibulla and Dodda Irappa acquired under registered sale deed dated 27.06.1988.
14. The Courts below have concurrently held that defendant Nos.1, 2 and 4 in O.S.No.129/2005 have encroached portion of schedule 'A' to 'C' properties. The said finding has not been challenged by defendant Nos.1, 2 and 4. It appears that they are satisfied of even granting modified relief of permanent injunction till they are evicted under due process of law. The evidence on record would also demonstrate that defendant Nos.1 and 2 are claiming their right over the house in which they are residing is on the basis of registered gift deed dated 08.06.2001 and 11.06.2001, Ex.D.1 and Ex.D.2 respectively said to have been executed by their husband Rehamatsab. They have not produced any documents to show that the donor who has gifted the property under Ex.D.1 and
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 Ex.D.2 was having any valid title to convey the same in favour of defendant Nos.1 and 2. Therefore, it is evident that defendant Nos.1 and 2 are in possession of the house in which they are residing without there being any title. Hence, only the relief of injunction is granted in O.S.No.105/2005 filed by Smt.Gudumabi.
15. The Courts below have recorded finding that identity and location of the encroached area in the extent of land purchased by Habibulla and Dodda Irappa has not been established by plaintiffs in O.S.No.129/2005, therefore the relief of declaration, mandatory injunction and possession has been declined. Indisputably, Dodda Irappa and Habibulla are not in possession of the extent of land fallen to their share after division i.e., 2.57 cents and 2.10 cents respectively, since there were alienations in the extent of land possessed by them. There is no evidence on record to show the remaining extent of land in possession of Dodda Irappa and Habibulla after alienations. Similarly, there is also no any record to show the division effected after alienation by Dodda Irappa and Habibulla and extent of property remained with them after such alienation. On these findings recorded by both the Courts
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 below relief sought in O.S.No.129/2005 came to be rejected though they have proved the encroachment in scheduled 'A' to 'C' property by defendant Nos.1, 2 and 4 of the said suit.
16. In order to ascertain the exact location and identification of property, Taluka Surveyor was appointed as Court Commissioner. The Court Commissioner has submitted the report with sketch showing the encroachment which almost tallies with the rough sketch produced by plaintiffs in O.S.No.129/2005 as per Ex.P.7. The Courts below have also accepted the sketch map produced by the Court Commissioner and the sketch map produced by plaintiffs Ex.P.1 and held that encroachment is proved.
17. Learned counsel for appellants has submitted that an application was filed to furnish the records regarding mutation entry pertaining to Sy.No.182/4 and the endorsement was given that there are no such mutation entries by Tahsildar Office, Hospet, dated 28.09.2006. It is because of this precise reason application was filed for appointment of Court Commissioner to ascertain the land. The Court Commissioner with due notice to parties conducted the survey and submitted
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 report along with sketch showing the encroachment of defendants.
18. In order to further clarify the position with regard to identity and location of the property filed an application in IA No.4 in R.A.No.34/2007 seeking permission to produce documents as additional evidence. The respondents have filed objections to the said application. The said application was heard along with the main appeal and IA No.4 came to be dismissed without appreciating the factual aspect of the matter. The documents sought to be produced would certainly throw light with regard to identity and location of the property and they were secured by appellants after disposal of the suits. The documents should have been taken on record and opportunity should have been given to lead required evidence for proving the said documents. In the present appeal also in R.S.No.5282/2008, application under Order XLI Rule 27 read with Section 151 of CPC was filed seeking production of documents as additional evidence. The respondents have also filed objections to the said application. The question is as to whether the above referred documents are the material documents which would be required to be taken on record to
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 effectively adjudicate the rights of parties involved in the suits or not is to be decided. The documents that are sought to be produced along with IA No.4 are Sl.Nos.1, 4 and 5 are the certified copy of the sale deeds with respect to Sy.No.182/2 to the extent of 17.5 cents, Sy.No.181/1 to the extent of 50 cents and Sy.No.182/1 to the extent of 22 cents. The document at Sl.No.6 is the certified copy of relinquishment deed. The document at Sl.No.7 is certified copy of mutation pertaining to Sy.No.182/1 and 182/3 and 182/4 reflecting the alienations in Form No.10. These documents are the material documents which would be sufficient to determine the remaining area in possession of plaintiffs in O.S.No.129/2005. The said documents sought to be produced are all public documents without which the extent of encroachment in Schedule 'A' and 'B' properties cannot be decided.
19. Indisputably, Dodda Irappa and Habibulla are not in possession of the extent of land fallen to their share after division, since there are various alienations. The extent of land that remains after alienation and the accepted fact that defendant Nos.1, 2 and 4 have encroached on suit schedule 'A' to 'C' properties, the extent of encroachment atleast in the
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 portion belonging to Dodda Irappa and Habibulla is required to be ascertained. When the title of defendant Nos.1 and 2 who are plaintiffs in O.S.No.129/2005 is accepted and there is admitted encroachment, it is open for them to enforce their right to seek possession of encroached portion atleast in schedule 'A' and 'B' properties, even if the 3rd defendant - CMC, Hospet, is not interested for removing the encroachment in schedule 'C' property.
20. Learned counsel for appellants relied on the judgment of Hon'ble Apex Court in WADI VS. AMILAL AND OTHERS reported in (ILR 2003 KAR 4637) wherein it has been observed and held that:
"Additional evidence in appeal - In admitting additional evidence in appeal under clause (b), vigilance or negligence of party irrelevant. Document in question throwing light on germane issue. Appellate Court must have allowed such document as additional evidence because judgment without admitting such document would be defective and not effective."
In view of the principles enunciated in this decision by Hon'ble Apex Court when the documents are found to be essential for proper adjudication of the lis between the parties,
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 then such documents will have to be allowed in terms of Order XLI Rule 27(b) of CPC, vigilance or negligence of party becomes irrelevant. In view of the reasons recorded above, it has been observed and held that the documents sought to be produced are just and necessary to determine the remaining extent of land after alienation by Dodda Irappa and Habibulla and the encroachment in schedule 'A' and 'B' properties. Therefore, the first Appellate Court was not justified in rejecting IA No.4.
21. The appellants in R.S.A.No.5282/2008 filed application under Order XLI Rule 27 read with Section 151 of CPC seeking production of documents as additional evidence. The copy of the application was given to respondents and they filed objections. The documents sought to be produced at Sl.Nos.1 and 2 may not be very relevant, since the same pertains to the registered partition between appellant Nos.2 to 8 and deceased Habibulla. The case of partition and the sharers being in possession was not pleaded by plaintiffs in O.S.No.129/2005. The remaining documents at Sl.Nos.3 to 13 are again public documents evidencing the alienations effected in Sy.Nos.182/1 and 182/2 after division between Dodda Irappa and Habibulla. If they are allowed to be produced then
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 the exact location and identity of remaining area in possession of Dodda Irappa and Habibulla can be determined with reference to the sketch map Ex.P.7 and the sketch of Court Commissioner. The question now is as to whether the documents can be allowed to be produced in the second appeal. In this context, it is useful to refer to the judgment of Hon'ble Apex Court in UNION OF INDIA VS.K.V.LAKSHMAN AND OTHERS reported in [(2016) 13 SCC 124] wherein it has been observed and held that:
"Order XLI Rule 27 CPC is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in its favour and accepted such evidence. Indeed, once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give
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Connected Cases: RSA No. 5282 of 2008 opportunity to the other side to file additional evidence by way of rebuttal."
In view of the principles enunciated in this decision, if the additional evidence sought to be produced is found relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence.
22. In the present case, the title of plaintiffs in O.S.No.129/2005 by virtue of registered sale deed dated 27.06.1988 purchased from Smt.Mahalakshmi. Subsequently, the said property was divided between Dodda Irappa and Habibulla and Sy.No.182/1 measuring 2.57 cents fallen to the share of Dodda Irappa and Sy.No.182/2 to the extent of 2.10 cents has fallen to the share of Habibulla is not in dispute. The evidence on record would also demonstrate that defendant Nos.1, 2 and 4 in O.S.No.129/2005 have encroached portion of schedule 'A' to 'C' properties is held to be proved by both the Courts below. Indisputably, Dodda Irappa and Habibulla are not in possession of the extent after division and there are various alienations. Therefore, the remaining portion of Dodda Irappa and Habibulla after such alienation, further the extent of
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RSA No. 5281 of 2008Connected Cases: RSA No. 5282 of 2008 encroachment in schedule 'A' and 'B' properties is required to be determined, so as to consider the relief sought by the plaintiffs in the said suit. It is open for the defendants in the said suits to place rebuttal evidence. Therefore, the order of the first Appellate Court in rejecting IA No.4 filed in R.A.No.34/2007 cannot be legally sustained and the same needs to be interfered with. The documents sought to be produced by the appellants in R.S.A.No.5282/2008 are relevant and material documents to decide the lis between the parties. Therefore, the matter is required to be remanded to the first Appellate Court for recording necessary evidence on the documents which are allowed to be produced and to decide the appeal on merits. Consequently, proceed to pass the following:
ORDER The appeal filed by appellants/defendants in R.S.A.No.5281/2008 and the appeal filed by appellants/plaintiffs in R.S.A.No.5282/2008 are hereby allowed.
The judgment and decree of the first Appellate Court on the file of Addl. Civil Judge (Sr.Dn.), Hospete, in R.A.No.33/2007 and R.A.No.34/2007 dated 26.08.2008 is set aside.
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Connected Cases: RSA No. 5282 of 2008 The matter is remanded to the first Appellate Court for recording necessary evidence on the documents now allowed to be produced and decide both appeals on merits, as expeditiously as possible, since the suits are of the year 2005.
The parties to the suits who are represented through their learned counsel are directed to appear before the first Appellate Court on 17.08.2023.
The registry is directed to transmit the records with the copy of this judgment to trial Court.
(Sd/-) JUDGE Jm/-