Karnataka High Court

Nandanna S/O Veerupakshappa ... vs Muddappa S/O Shankreppa ... on 28 February, 2022

Bench: Ashok S. Kinagi

                           1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

   DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                       BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                MSA No.200040/2014

BETWEEN:

NANDANNA S/O VEERUPAKSHAPPA PADSHETY
AGE: 70 YEARS, OCC : AGRICULTURE
R/O : SHETTY MOHALLA SHORAPUR,
TQ : SHORAPUR, DIST : YADGIR.
                                            ...APPELLANT
(BY SRI.SHIVANAND PATIL, ADVOCATE)

AND

MUDDAPPA S/O SHANKERAPPA PADSHETTY
AGE: 75 YEARS, OCC : AGRICULTURE,
R/O : SHETTY MOHALLA SHORAPUR,
NOW RESIDING AT BALSHATTIHAL VILLAGE,
TQ : SHORAPUR, DIST : YADGIR-585223.
                                         .....RESPONDENT
(BY SRI.R S.SIDHAPURKAR, ADVOCATE)

     THIS MSA FILED U/O 43 RULE 1 (u) OF CPC, PRAYING TO
CALL FOR THE RECORDS, HEAR THE PARTIES AND ALLOW THE
APPEAL AND IN THE RESULT SET ASIDE THE JUDGMENT AND
DECREE DATED 02.07.2014 PASSED IN R.A. NO. 22/2010 ON
THE FILE OF THE SENIOR CIVIL JUDGE AT SHORAPUR.


      THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
                              2




                      JUDGMENT

This appeal is filed by the appellant aggrieved by

the judgment and decree dated 02.07.2014 passed in

R.A.No.22/2010 by the Senior Civil Judge, Shorapur.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

3. Facts giving rise to filing of this appeal are

as under:

The appellant is the defendant and respondent is

the plaintiff before the trial Court. The plaintiff filed a

suit for perpetual injunction. It is the case of plaintiff

that the plaintiff is the owner and possessor of the suit

property. The defendant has no concern either

ownership or possession of the suit property. The

defendant is the owner of house No.9-2-58(new), 9-2-

32(old) situated towards the northern side of the

plaintiff's house. The said suit house is in dilapidated

condition having 4 walls and a door existing towards

south. The plaintiff at present residing at Bashetiihal

village and use to come to Shorapur oftenly to

supervise the suit house. He is paying the house tax in

respect of suit house. Taking undue advantage of the

absence of plaintiff, the defendant with a malafide

intention to usurp the suit house is trying to make

construction on the suit property by encroaching upon

it in collusion with the Municipality. The plaintiff filed

objections before the Chief Officer, TMC Shorapur. The

plaintiff requested the defendant not to construct over

the suit property but the defendant refused to it.

Thus, cause of action arose for the plaintiff to file a

suit for perpetual injunction restraining the defendant

from putting up any construction over the suit

schedule property. Hence, the suit.

3.1 The defendant filed written statement

admitting the ownership of plaintiff over the house

No.9-2-72 (new) 9-2-15 (old), but denying the

boundaries shown in the plaint and also location. It is

contended that the defendant is the owner and

possessor of house Nos.9-2-58(new) 9-2-32(old) but

the situation of house of defendant towards north of

the plaintiff's house is denied. It is contended that the

suit house bearing No.9-2-72(new) 9-2-45(old)

sitauted at Shetti Mohalla bounded by:

East: Open space and lane West: The property bearing No.9-2-46 & 9-2-47 North: Lane South: House of Mareppa.

3.2 It is contended that the plaintiff without

having any right over the suit house is falsely claiming

the suit house with an intention taking advantage of

identical house No.9-2-45. It is contended that the

defendant applied for construction permission to TMC

Shorapur. The TMC Shorapur, after completing all the

legal formalities prescribed under the law granted

permission. On the strength of construction

permission, the defendant is undertaking construction.

The suit filed by the plaintiff is not maintainable.

Hence, prayed for dismissal of the suit.

4. On the basis of the pleadings, the trial

Court framed the following issue and additional

issues;

(a) Whether the plaintiff prove that the plaintiff is absolute owner and possessor of the suit property?

Addl. Issues:

        (a)   Whether      the    plaintiff   proves   the
              alleged       interference       by      the
              defendant?

(b) Whether the plaintiff is entitled for the relief as sought in the plaintiff?

5. In order to prove his case, the plaintiff

examined himself as PW.1 and one witness and got

marked documents Exs.P1 to P19. Defendant

examined himself as DW.1 and got marked documents

Exs.D1 to D8. The trial Court after recording the

evidence of the parties held that the plaintiff has failed

to prove that he is the absolute owner and possessor

of the suit property and held that the plaintiff is not

entitle for the relief as sought for and consequently

dismissed the suit of the plaintiff.

6. Aggrieved by the judgment and decree

passed in O.S.No.99/2004, the plaintiff preferred an

appeal in R.A.No22/2010 before the Senior Civil

Judge, Shorapur. During the pendency of appeal, the

plaintiff has filed an application for production of

additional evidence in IA.Nos.2 and 3. The appellate

Court allowed the applications filed by the plaintiff and

consequently allowed the appeal and remitted the

matter to the trial Court reserving liberty to the

plaintiff to lead additional evidence regarding location

of the suit schedule property and also liberty was

reserved to the defendant to lead additional evidence.

Aggrieved by the judgment and decree passed in

R.A.No.22/2010 by the Senior Civil Judge, Shorapur,

the defendant has filed this appeal.

7. Heard the learned counsel for the plaintiff

and counsel for the defendant.

8. Learned counsel for the defendant submits

that the First Appellate Court has committed an error

in entertaining the application for production of

additional evidence i.e. IA.Nos.2 and 3. He further

submits that the plaintiff himself has produced Ex.P17,

which discloses that the property is situated at Bhovi

Mohalla but not in Shetti Mohalla. When there is

sufficient material was available before the First

Appellate Court, there was no justification for the

appellate Court to allow the applications. The plaintiff

has filed an application for additional evidence in order

to fill up lacuna. He further submits that it is not

permissible in the eye of law. Hence, he submits that

the judgment and decree passed by the First Appellate

Court is arbitrary. On these grounds, he prays to allow

the appeal.

9. Per contra, learned counsel appearing for

the respondent supports the impugned judgment and

decree passed by the First Appellate Court. He further

submits that the appellate Court is justified in

considering IA.Nos.2 and 3, in order to adjudicate the

matter in dispute. He further submits that the

appellate Court reserved the liberty to both the parties

to adduce additional evidence regarding location of

the suit schedule property. He further submits that

the judgment and decree passed by the Appellate

Court is just and proper and does not call for any

interference. Hence, on these grounds, he prays to

dismissed the appeal.

10. Perused the records and considered the

submission made by the learned counsel for the

parties. It is not in dispute that the plaintiff has filed a

suit for perpetual injunction in respect of property

No.9-2-72(new) 9-2-15(old). The defendant is also

claiming to be the owner of house No.9-2-58(new) 9-

2-32(old), the situation of the house of property is in

dispute. The crux of the case in the suit is about the

location of the house of parties. In order to ascertain

the location of the house of parties, the plaintiff has

produced Ex.P17. An application for mutation. The

defendant has also produced Exs.D6 and D8 i.e.

copies of application for mutation and copy of

registered sale deed.

11. From the perusal of the aforesaid records,

it is clear that the property of the plaintiff is situated

at Bhovi Mohalla but not at Shetti Mohalla as alleged

in the plaint. The plaintiff filed an application for

production of additional evidence i.e. IA.Nos.2 and 3.

The defendant has already produced the document i.e.

registered sale deed, which is marked as Ex.D8. The

plaintiff has produced the copy of registered sale deed

by way of additional evidence, which is already

marked as Ex.D8 and the said document is already on

record. When the said record is already on record,

there was no necessity for the appellate Court to remit

the matter to the trial Court for adjudicating the

location of house. The appellate Court without

considering the said aspect has permitted the plaintiff

to produce additional evidence. Further the appellate

Court has come to the conclusion that the defendant

has not produced any documents in order to

substantiate the location of the suit schedule

properties, as if it is existing in the Eastern property

bearing No.9-2-46 and 9-2-47, as contended in the

written statement. The Lower Appellate Court has

failed to consider well established principles of law

that plaintiff must establish his case independently but

he cannot take advantage of the weakness of the

defendant. The said view is reiterated by the Hon'ble

Apex Court in the case of Union of India v. Vasavi

Co-Op Housing Society Ltd., and others reported

in AIR 2014 SC 937. The conclusion recorded by the

appellate Court is contrary to the law laid down by the

Hon'ble Apex Court.

12. In order to consider Order 41 Rule 27

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 by him at the time when the decree appealed against was passed, or]

(c) 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.

13. Sub Rule 27(1) of Order XLI states that

the parties to an appeal shall not be entitled to

produce additional evidence, whether oral or

documentary, in the Appellate Court. While if the

parties 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 by him at the time when the decree

appealed against was passed, or if 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.

14. It is well established that Order XLI Rule 27

of CPC, additional evidence cannot be permitted to fill

up lacunae or gaps in the evidence or to patch up the

omission in the Court of appeal, but restricted to the

purpose of pronouncement of judgment in a particular

way, as held by the Hon'ble Apex Court in the case of

N.Kamalam (Dead) and Another Vs. Ayyasamy

and Another, reported in (2001) 7 SCC 503 and

this Court in the case of Sri.Thimma Naika Vs. Sri

Papanna @ Kempegowda and others, reported in

ILR 2012 KAR 2643.

15. The Hon'ble Apex Court in the case of

N.Kamalam's case (supra) has held at paragraph

No.19, as under;

"Incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal - It does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the Appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.

16. The Courts observed that the evidence

relating to subsequent evidence or happenings which

are relevant for the disposal of second appeal may be

permitted. In the instant case, the averments do not

discloses satisfactory reasons for the inability of the

plaintiff to secure at the earliest point of time the

registered sale deed and other documents and further

not stated that the plaintiff was not in a position to

produce the same before the trial Court.

17. As observed above, the defendant has

already produced copy of registered sale deed, which

is marked as Ex.D8. The plaintiff has not assigned any