Basavegowda vs Basavaraju
2021 Latest Caselaw 7116 Kant

                               1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF DECEMBER, 2021

                          BEFORE

       THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                    R.S.A.No.2781/2007
                            C/W
                   R.S.A.CROB No.9/2014

IN RSA.2781/2007

BETWEEN:

1.      BASAVEGOWDA
        DEAD BY LRS

1(A)    SAKAMMA
        W/O LATE BASAVEGOWDA,
        AGED ABOUT 65 YEARS,

1(B)    MALLARAJAMMA
        D/O LATE BASAVEGOWDA,
        AGED ABOUT 45 YEARS,

1(C)    MAHESHA
        S/O LATE BASAVEGOWDA,
        AGED ABOUT 41 YEARS,

1(D)    PRAKASHA
        S/O LATE BASAVEGOWDA,
        AGED ABOUT 39 YEARS,

2.      PUTTEGOWDA
        S/O LATE MALEGOWDA,
        AGED ABOUT 61 YEARS,

3.      MADAPPA
        S/O LATE MALEGOWDA,
        AGED ABOUT 57 YEARS,

4.      SMT. MADAMMA
        W/O LATE MALEGOWDA,
        AGED ABOUT 82 YEARS,
                               2


       ALL ARE R/O HALLIDIDDI VILLAGE,
       CHIKKAIAHNA CHATRA HOBLI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.           ... APPELLANTS

(BY SRI P.MAHESHA, ADV.)

AND:

1.     BASAVARAJU
       S/O THAMMIAH @ THAMMANNA,
       AGED ABOUT 57 YEARS,
       R/O HALLIDIDDI VILLAGE,
       CHIKKAIAHNA CHATRA HOBLI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.

2.     SMT. MALLAMMA
       W/O MADEGOWDA,
       AGED ABOUT MAJOR,
       R/O KABBLAGERE HUNDI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.

3.     SMT. KAMALAMMA
       W/O KALEGOWDA,
       AGED ABOUT MAJOR,
       R/O KEMPSIDDANAHUNDI VILLAGE,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.

4.     BEERAIAH
       S/O LATE JAYARAJEGOWDA,
       SINCE DEAD BY LRS

4(A)   MAHADEVI
       W/O LATE BASAVARAJU,
       AGED ABOUT MAJOR,

4(B)   YASHODA
       D/O LATE BASAVARAJU,
       AGED ABOUT 37 YEARS,

4(C)   NAVEEN KUMAR
       S/O LATE BASAVARAJU,
       AGED ABOUT 31 YEARS,
                               3


       R4(A) TO (C) ARE
       R/O HALLIDIDDI VILLAGE,
       CHIKKAIAHNACHATRA HOBLI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.         ... RESPONDENTS

(BY SRI MANJUNATHA.N.D., ADV. FOR R1 TO R3;
    SRI P.NATARAJU, ADV. FOR R4 (A-C))

IN RSA.CROB.9/2014

BETWEEN:

BEERAIAH
SINCE DEAD BY LRS

1.     SMT.MAHADEVI
       W/O LATE BEERAIAH,
       MAJOR,

2.     YASHODA
       D/O LATE BEERAIAH,
       AGED ABOUT 32 YEARS,

3.     NAVEEN KUMAR
       S/O LATE BEERAIAH,
       AGED ABOUT 26 YEARS,

       CROSS OBJECTORS NO.1 TO 3 ARE
       R/O HALLIDIDDI VILLAGE,
       CHIKKAIAHNACHATRA HOBLI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.         ... CROSS-
                                       OBJECTORS
(BY SRI P.NATARAJU, ADV.)

AND:

1.     BASAVARAJU
       S/O THAMMIAH @ THAMMANNA,
       AGED ABOUT 57 YEARS,
       R/O HALLIDIDDI VILLAGE,
       CHIKKAIAHNA CHATRA HOBLI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.
                               4


2.     SMT. MALLAMMA
       W/O MADEGOWDA,
       MAJOR,
       R/O KABBLAGERE HUNDI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.

3.     SMT. KAMALAMMA
       W/O KALEGOWDA,
       MAJOR,
       R/O KEMPSIDDANAHUNDI VILLAGE,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.

4.     BASAVEGOWDA
       DEAD BY LRS

4(A)   SAKAMMA
       W/O LATE BASAVEGOWDA,
       AGED ABOUT 63 YEARS,

4(B)   MALLARAJAMMA
       D/O LATE BASAVEGOWDA,
       AGED ABOUT 43 YEARS,

4(C)   MAHESHA
       S/O LATE BASAVEGOWDA,
       AGED ABOUT 39 YEARS,

4(D)   PRAKASHA
       S/O LATE BASAVEGOWDA,
       AGED ABOUT 37 YEARS,

       ALL ARE R/O HALLIDIDDI VILLAGE,
       CHIKKAIAHNA CHATRA HOBLI,
       NANJANGUD TALUK,
       MYSORE DISTRICT-571325.

5.     PUTTEGOWDA
       S/O LATE MALEGOWDA,
       AGED ABOUT 56 YEARS,

6.     MADAPPA
       S/O LATE MALEGOWDA,
       AGED ABOUT 52 YEARS,
                               5


7.   SMT. MADAMMA
     W/O LATE MALEGOWDA,
     AGED ABOUT 77 YEARS,

     RESPONDENTS NO.4 TO 7 ARE
     R/O HALLIDIDDI VILLAGE,
     CHIKKAIAHNA CHATRA HOBLI,
     NANJANGUD TALUK,
     MYSORE DISTRICT-571325.               ... RESPONDENTS

(BY SRI MANJUNATHA.N.D., ADV. FOR R1 TO R3;
    SRI MAHESHA, ADV. FOR R4 (A-D) AND R5 TO R7)


      Regular Second Appeal No.2781/2007 is filed under
section 100 of CPC., against the judgment and decree dated
01.08.2007 passed in RA.No.18/2001 on the file of the Civil
Judge (Sr.Dn.) and JMFC., Nanjangud, dismissing the appeal
and confirming the judgment and decree dated 02.01.2001
passed in OS.No.72/1994 on the file of the Addl. Civil Judge
(Jr.Dn.) and JMFC., Nanjangud.

      Regular Second Appeal Crob. No.9/2014 is filed under
Order 41 Rule 22 of CPC., against the judgment and decree
dated 01.08.2007 passed in RA.No.27/2001 on the file of the
Civil Judge (Sr.Dn.) and JMFC at Nanjangud, dismissing the
appeal and confirming the judgment and decree dated
02.01.2001 passed in os.no.72/1994 on the file of the Addl. CJ
(Jr.Dn.) and JMFC., Nanjangud.

      This Regular Second Appeal and Cross-Objection
having been heard and reserved for judgment on 06.12.2021
and coming on for 'Pronouncement of Judgment' this day,
the court delivered the following:

                        JUDGMENT

1. This regular second appeal is preferred by

defendants 2 to 5 challenging the judgment and decree

dated 02.01.2001 passed by the Addl. Civil Judge (Jr.Dn.)

& JMFC, Nanjangud, in O.S.No.72/1994, which has been

confirmed in R.A.Nos.18/2001 & 27/2001 by the Civil

Judge (Sr.Dn.) & JMFC, Nanjangud, vide judgment and

decree dated 01.08.2007, while the cross-objection is filed

by defendant no.1.

2. For the sake of convenience, the parties are referred

to by the rank assigned to them in the court at first

instance.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are, the plaintiffs had

filed O.S.No.72/1994 before the Trial Court against the

defendants for declaration of ownership in respect of the

suit schedule property and for permanent injunction

restraining the defendants from interfering with their

possession of the suit schedule property.

4. It is the case of the plaintiffs that the suit schedule

property is their ancestral property and the khatha of the

suit schedule property originally stood in the name of

Karagaiah who is the paternal grandfather of the plaintiffs.

According to the plaintiffs, Karagaiah had only one son by

name Thammaiah @ Thammanna and after the death of

Karagaiah, he inherited the suit schedule property.

Thammaiah @ Thamanna expired on 20.02.1994, and

thereafter, plaintiffs claim to be the owners in possession

of the suit schedule property. It is the further case of the

plaintiffs that defendant no.1 had no right whatsoever over

the suit schedule property and inspite of the same, he

tried to interfere with the plaintiffs' possession over the

suit schedule property. They further contended that

defendant no.1 claimed right and interest in respect of 18

guntas of land which is situated in the centre of the suit

schedule property and he got entered his name in the

revenue records of the said land during the year 1993-94.

5. After service of suit summons, defendant no.1

entered appearance and filed his written statement

denying the plaint averments. He contended that 18

guntas of land in the suit property is his ancestral

property and he is in possession and enjoyment of the

same. He also contended that the revenue records of the

said land stood in his name and originally the entire suit

schedule property belonged to the family of Mallegowda

who had two sons by name Pachegowda and Beeri

Mallegowda. Mallegowda being the eldest member of the

family was managing the affairs of the suit schedule

properties as kartha and after his death, Kargaiah was

managing the affairs of the joint family and he managed to

get the khatha changed in his name in respect of the suit

schedule property. It was further contended by defendant

no.1 that during the lifetime of Karagaiah, 18 gunats of

land had fallen to the share of Mallegowda, Pachegowda

and Beeri Mallegowda and after their death, it had fallen to

the share of his father Javarajegowda who was the son of

Beeri Mallegowda. He also contended that he had grown

sugarcane crop in the said property measuring 18 guntas

of land and for the purpose of irrigation he was utilizing

the water of the well situated in the said land.

6. Defendants 2 to 5 subsequently got impleaded and

filed a separate written statement denying the plaint

averments. They had contended that they are the owners

of 1 acre 30½ guntas of land in Sy. No.226 and it was their

ancestral property which had fallen to the share of their

father Mallegowda. They also contended that the plaintiffs

are not the absolute owners of the suit schedule property

and the suit is based on RTC extracts which was the

subject matter of dispute before the revenue authorities,

and therefore, they have no evidentiary value.

7. Defendant no.1 had filed additional written

statement denying that the plaintiffs are the owners of the

suit schedule property.

8. The plaintiffs, thereafter had filed an application to

amend the plaint contending that if the plaintiffs are not

found in possession of the alleged 18 guntas and 1 acre

30½ guntas, which are said to be in possession of

defendant no.1 and defendants 2 to 5, respectively, the

defendants may be directed to hand over possession of the

said lands in favour of the plaintiffs.

9. On the basis of the rival pleadings, the Trial Court

initially had framed four issues and subsequently two

additional issues were framed, which read as under:

Issues

1. Whether the plaintiff proves that they are the owner of the suit schedule property?

2. Whether the plaintiffs prove that they in lawful possession of the suit schedule property on the date of suit?

3. Whether the plaintiffs prove the alleged interference by the defendant?

4. What decree or order?

Additional Issues

1. Whether the plaintiff is entitled for possession of 18 guntas from the 1st defendant out of the schedule land?

2. Whether the plaintiffs are entitled for the possession of 1 acre 30½ guntas of the land of the suit schedule property from defendants No.2 to 5?"

10. To substantiate their case, the plaintiffs got

examined plaintiff no.1 as PW-1 and seven documents

were produced and marked as Exs.P-1 to P-7. On behalf of

the defendants, they got examined two witnesses as DWs-1

& 2 and 25 documents were produced and marked as

Exs.D-1 to D-25. The Trial Court after completion of

recording the evidence, heard the arguments on both

sides, and thereafter by its judgment and decree dated

02.01.2001 decreed the suit of the plaintiffs declaring

them that they are the owners of the suit schedule

property and also granted a decree of permanent

injunction restraining the defendants from interfering with

the plaintiffs' possession and enjoyment of the suit

schedule property. Being aggrieved by the same,

defendants 2 to 5 filed R.A.No.18/2001 and defendant

no.1 filed R.A.No.27/2001 before the First Appellate Court

and the First Appellate Court upon re-appreciation of the

oral and documentary evidence on record, dismissed both

the appeals and consequently, confirmed the judgment

and decree passed by the Trial Court in O.S.No.72/1994.

It is under these circumstances, defendants 2 to 5 have

filed the regular second appeal and the legal

representatives of defendant no.1 have preferred the cross-

objections.

11. This Court, on 27.09.2012 has admitted this second

appeal to consider the following substantial questions of

law.

1. Whether the Courts below justified in decreeing the suit of the plaintiff on the basis of the revenue entries?

2. Whether the Courts below justified in decreeing the suit on the basis of revenue records?

3. Whether the Courts below justified in granting the decree in favour of the plaintiff on the weakness of the defendants?

4. Whether the lower appellate Court justified in dismissing the application filed by the defendants for additional evidence and production of additional documents?"

12. Learned Counsel for defendants 2 to 5 submits that

the plaintiffs and defendants are the members of the joint

family, and therefore, the courts below were not justified in

decreeing the suit in favour of the plaintiffs, when

admittedly they had not proved their title over the suit

schedule property by producing relevant documents in

support of their case. He submits that on the basis of the

revenue records, the courts below could not have decreed

the suit of the plaintiffs as against the members of their

family. He submitted that before the First Appellate Court,

an application was filed under Order XLI Rule 27 CPC

producing the genealogy tree of the family and also other

relevant documents to show that the defendants were the

members of the joint family along with the plaintiffs and

they were in possession and enjoyment of a portion of the

suit schedule property. He submits that the very fact that

the plaintiffs had alternatively sought for the relief of

possession of the suit schedule property which the

defendants claim to be in their possession, would go to

show that they were not in possession of the property, and

therefore, the courts below were not justified in decreeing

the suit. He submits that the genealogy tree produced

along the application filed under Order XLI Rule 27 CPC

was produced by the plaintiffs in O.S.No.174/1998 and

according to the said genealogy tree, Mallegowda was the

propositus of the joint family and he had two sons by

name Karagaiah and Kariputtegowda. Mallegowda had a

brother by name Yellegowda. Plaintiffs are the grand

children of Karagaiah and defendant no.1 was the

grandson of Yellegowda. Defendants 2 to 4 are the grand

children of Kariputtegowda while defendant no.5 is the son

of Kariputtegowda. He submits that except the revenue

records, there are no other documents produced by the

plaintiffs in support of their case. Even the mutation

records were not produced by the plaintiffs, whereas the

mutation records produced by the defendants were not

relied upon by the courts below. He also submits that

Ex.D-20 is an important document which has not been

properly appreciated by the courts below. He submits that

Ex.D-20 is a preliminary record and the same shows that

the entries in respect of the suit schedule property are

made in the name of Karagaiah as he was the eldest

member of the family. He further submits that the

documents produced along with the application under

Order XLI Rule 27 CPC have a direct bearing on the facts

of the case, but the same was not properly appreciated by

the First Appellate Court. In support of his arguments, he

has relied upon the judgment of the Apex Court in the case

of UNION OF INDIA & OTHERS VS VASAVI COOPERATIVE

HOUSING SOCIETY LIMITED & OTHERS - (2014)2 SCC 269 and

in the case of SAWARNI (SMT.) VS INDER KAUR (SMT.) &

OTHERS - (1996)6 SCC 223.

13. Learned Counsel appearing for the cross-

objector/defendant no.1 has adopted the arguments

addressed on behalf of defendants 2 to 5.

14. Per contra, learned Counsel for the

plaintiffs/respondents submits that the courts below have

recorded a concurrent finding of fact as against the

defendants and they have declared the title of the plaintiffs

and also granted the decree of permanent injunction

restraining the defendants from interfering with the

peaceful possession and enjoyment of the suit schedule

property by the plaintiffs. He submits that the oral and

documentary evidence available on record would go to

show that the plaintiffs are in undisturbed possession of

the suit schedule property for a very long period, and

therefore, their title has been perfected. He has placed

reliance on Section 110 of the Indian Evidence Act to

contend that the burden of proving that he is not the

owner is on the person who affirms that he is not the

owner. He also submits that the documents produced

along with the application under Order XLI Rule 27 CPC

are all subsequent to the suit, and therefore, the same

have been rightly rejected by the First Appellate Court. He

submits that Exs.P-1 to P-7 supports the case of the

plaintiffs and establish that they are in possession of the

suit schedule property, and accordingly, the courts below

have rightly decreed the suit of the plaintiffs. He submits

that the defendants without any basis got the revenue

records changed in their name in respect of a portion of

the suit schedule property and only thereafter they started

disturbing the possession of the plaintiffs. He further

submits that the substantial questions of law framed by

this Court only relate to the decree passed declaring the

ownership of the plaintiffs and not with regard to the

decree of injunction and the defendants have not

questioned the decree of the courts below in so far as it

relates to grant of injunction. He has relied upon the

judgment of this Court in the case of NAGANNA VS

SHIVANNA - AIR 2004 KAR 209, R.S.A.No.953/2010 disposed

of on 13.06.2012, POONA RAM VS MOTI RAM (DEAD)

THROUGH LEGAL REPRESENTATIVES & OTHERS - (2019)11 SCC

309.

15. To substantiate the case of the plaintiffs, plaintiff

no.1 was examined as PW-1 and the documents produced

in support of the plaintiffs case are, Ex.P-1 - index of

lands, Ex.P-2 - record of rights, Exs.P-3 to P-5 - RTC

extracts and Exs.P-6 & P-7 are the tax paid receipts.

Except these revenue documents, no other documents

have been produced by the plaintiffs in support of their

title over the suit schedule property or their possession

over the same. Whereas, defendants who contend to be the

members of the joint family, of which the plaintiffs are also

the members, have examined two witnesses in support of

their case and produced revenue records to show that the

entries in respect of the suit schedule property stood in the

name of Karagaiah and the defendants, and they also

produced Ex.D-20 which is a preliminary record of the suit

schedule property, wherein it is specifically stated that the

entries have been made in respect of the suit schedule

property in the name of Karagaiah having regard to the

fact that he was the eldest male member of the family. The

courts below without appreciating these aspects of the

matter, only on the basis of the revenue entries which

stood in the name of Karagaiah in respect of the suit

schedule property, have come to a conclusion that the

plaintiffs who claim under the said Karagaiah are the

absolute owners of the suit schedule property. In my

considered view, the said approach of the courts below is

illegal.

16. It is a settled principle of law that the Civil Courts

cannot declare title in respect of immovable property in

favour of any party solely based on the entries in the

revenue records of the said land. In the case on hand,

Ex.P-3 which is an RTC extract of the suit schedule

property would go to show that the name of defendant no.1

is found along with the name of Karagaiah in the suit

schedule property. Ex.D-20 is an important document

which has not been properly appreciated by the courts

below. The very mention in the said document that the

entry of Karagaiah's name in the revenue records of the

suit schedule property is on the ground that he was the

eldest male member of the family would go to show that

his name was not entered in the revenue records of the

suit schedule property as absolute owner. Therefore,

merely for the reason that Karagaiah's name was found in

the revenue records of the suit schedule property, the

courts below ought not have declared that the title of the

plaintiffs in respect of the suit schedule property.

17. The Hon'ble Supreme Court in Vasavi Cooperative

Housing Society's case (supra), has held that the entries in

the revenue records of the property do not confer any title

and the plaintiffs independent of the entries are required

to show that their predecessors had title over the property

in question. In Sawarni's case (supra), the Hon'ble

Supreme Court has held that mutation of name in the

revenue records does not create any title nor the same has

any presumptive value regarding title of the property, but

it only entails the person to pay the land revenue.

18. This Court in the case of ANNAPPA VS LAXMI DEVI

DEVAR TEMPLE AND NULICHANDAYYA DEVASTHAN

COMMITTEE & OTHERS - 2016(5) KCCR 1233, has held that

the Civil Courts have no jurisdiction to declare the title in

respect of the immovable property in favour of any party

solely on the basis of the revenue records, when the party

has failed to produce any valid documents in support of

his title.

19. The contention of the plaintiffs that their title is

required to be declared on the basis of possession is

basically required to be rejected for the reason that

admittedly the suit schedule property are the ancestral

joint family properties, and therefore, mere possession of

such a property would not be sufficient to declare the title

of the plaintiffs as against the defendants who claim to be

the members of the joint family. In the judgment in Poona

Ram's case (supra) relied upon by the plaintiffs, it has

been clearly observed that settled possession means such

possession over the property which has existed for a

sufficient long period of time and has been acquiescence to

by the true owner and title based on possession can only

be declared in respect of a trespasser and not in favour of

a coparcener or a co-owner of the property.

20. In the case of Chikkabasavaiah Vs Smt.

Bhagylakshmi in R.S.A.No.953/2010 relied upon by the

plaintiffs, the continuous settled possession of the

plaintiffs was taken into consideration for granting relief of

decree of permanent injunction and in the said case, this

Court has confirmed the decree of the Trial Court refusing

to grant the decree of declaration and only granted the

decree of permanent injunction. Even in Naganna's case

(supra) relied upon by the plaintiffs, this Court has held

that the entries in the revenue records only carries a

presumptive value regarding possession which is

rebuttable and such entries can be relied upon to establish

the possession and this Court has specifically observed

that declaration of title based on revenue entries is

untenable. Therefore, the aforesaid judgments relied upon

by the plaintiffs would not aid the plaintiffs case.

21. Under the circumstances, I am of the considered

view that the courts below were not justified in decreeing

the suit of the plaintiffs on the basis of the revenue entries

and accordingly substantial questions of law nos.1 & 2 are

answered against the plaintiffs and in favour of the

defendants.

22. In so far as substantial question of law no.3 is

concerned, the party who approached the court is required

to establish his case independently and cannot depend on

the weaknesses of the defendants. In Vasavi Cooperative

Housing Society's case (supra), the Hon'ble Supreme Court

has reiterated the position of law that the plaintiffs have to

establish their case independently irrespective of whether

the defendants prove their case or not. In paragraphs 15 &

19 of the said judgment, the Hon'ble Supreme Court has

held as under:

"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.

16. xxx xxx

17. xxx xxx

18. xxx xxx

19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of plaintiff's own title, plaintiff must be non-suited."

23. In Annappa's case (supra), the coordinate bench of

this Court has held that in view of Sections 34 & 38 of the

Specific Relief Act, in a suit for declaration of title and

permanent injunction, burden always lies on the plaintiff

to independently prove his case and the weaknesses of the

defendants case cannot be a ground to grant the relief.

Having regard to the said position of law, even substantial

question of law no.3 is required to be answered against the

plaintiffs and in favour of the defendants.

24. So far as substantial question of law no.4 is

concerned, admittedly, the plaintiffs who claim that the

suit schedule property is their ancestral joint family

property, ought to have produced the genealogy tree of the

family in order to establish their relationship with

Karagaiah in whose name the revenue records of the suit

schedule property stands. The defendants have filed an

application under Order XLI Rule 27 CPC before the First

Appellate Court producing the copy of the genealogy tree

which was produced by the plaintiffs in O.S.No.72/1994.

Therefore, the said genealogy tree has got a direct bearing

to the facts of the present case and it would be a very

relevant document to prove the relationship between the

parties to the suit as the said document cannot be

disputed by the plaintiffs who themselves have produced

the same in O.S.No.72/1994.

25. In addition to the said document, the defendants

have also produced several other documents such as

electricity bills, certificate issued by the bank regarding

defendants having availed loan and the letter issued by the

sugar factory for having supplied sugarcane and all these

documents relate to the suit schedule property. The

defendants have specifically contended that they are in

occupation and enjoyment of the portion of the suit

schedule property and the very fact that after the

defendants had filed their written statement, the plaintiffs

have amended the plaint and sought for the relief of

possession, would prima facie indicate that the plaintiffs

were not in possession of the suit schedule property, and

therefore, the documents which are produced by the

defendants along with the application filed under Order

XLI Rule 27 CPC gains relevance and though the First

Appellate Court had framed point no.3 for consideration

which relates to the application filed by the defendants

under Order XLI Rule 27 CPC, the reasons assigned by the

First Appellate Court to reject the said application filed by

the defendants is not cogent and acceptable. The approach

of the First Appellate Court, while considering the

application filed under Order XLI Rule 27 CPC, having

regard to the facts and circumstances of the present case

is totally erroneous. Admittedly, several of the documents

produced along with the application were not in existence

while filing the suit and the material document which is a

genealogy tree is a document which has been produced by

the plaintiff in another suit, and therefore, the First

Appellate Court was not justified in dismissing the

application filed by the defendants for additional evidence

and production of additional documents. Under the

circumstances, even the substantial question of law no.4 is

required to be answered against the plaintiffs and in

favour of the defendants.

26. It is not in dispute that the suit schedule properties

are claimed to be the ancestral property of the plaintiffs.

The material evidence available on record would go to

show that the revenue records of the suit schedule

property at certain point of time jointly stood in the name

of the Karagaiah under whom the plaintiffs claim and also

in the name of defendant no.1. Further, Ex.D-20 would go

to show that the name of Karagaiah was entered in the

revenue records of the land in question only in his capacity

as the eldest male member of the family. The genealogy

tree which is said to have been produced by the plaintiff in

O.S.No.174/1998 filed by them against some other party

would go to show that the plaintiffs and defendants are the

members of the joint family. The oral and documentary

evidence made available to the Trial Court was prima facie

not sufficient to adjudicate the dispute between the

parties, more so having regard to the relief sought for by

the plaintiffs. Therefore, the additional evidence produced

by the defendants before the First Appellate Court along

with their application filed under Order XLI Rule 27 CPC

would have direct bearing on the outcome of the suit and

the said documents would be very material in adjudicating

the dispute between the parties considering the nature of

relief sought for in the suit. The additional evidence could

be very material to consider the question whether the suit

schedule properties are the ancestral joint family

properties of the parties and whether the parties to the

suit are the members of the joint family, and in the said

event, whether the relief sought for in the suit could be

granted.

27. The First Appellate Court without properly

appreciating the aforesaid aspect of the matter has erred

in rejecting the application filed by the defendants under

Order XLI Rule 27 CPC and in my considered view, the

First Appellate Court ought to have allowed the said

application and granted the parties an opportunity to put

forward their case with regard to the additional evidence

made available before the First Appellate Court.

28. Under the circumstances, I am of the considered

view that it is appropriate to allow the application filed by

the defendants under Order XLI Rule 27 CPC before the

First Appellate Court and remit the matter to the First

Appellate Court with a direction to dispose of the regular

appeal afresh after granting an opportunity to both the

parties to put forward their case with regard to the

additional evidence produced by the defendants along with

their application under Order XLI Rule 27 CPC and if need

be by recording the evidence of both the parties in relation

to the additional documents/evidence. Accordingly, I

proceed to pass the following order.

29. The regular second appeal and the cross-objections

are allowed in part. The judgment and decree dated

01.08.2007 passed by the Civil Judge (Sr.Dn.) & JMFC,

Nanjangud, in R.A.Nos.18/2001 & 27/2001 is set aside.

The application filed by the defendants under Order XLI

Rule 27 CPC before the First Appellate Court is allowed.

The matter is remitted to the First Appellate Court with a

direction to dispose of the regular appeal afresh after

granting an opportunity to both the parties to put forward

their case with regard to the additional evidence produced

by the defendants along with their application under Order

XLI Rule 27 CPC and if need be by recording the evidence

of both the parties in relation to the additional

documents/evidence. Since all the parties are represented

before this Court, without awaiting further notice from the

First Appellate Court, the parties are directed to appear

before the First Appellate Court on 27.01.2022. The

Registry is directed to return the records to the First

Appellate Court, forthwith.

Sd/-

JUDGE

KK