Karnataka High Court
Shivanna vs Smt. Gowramma on 3 July, 2025
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RSA No. 1638 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1638 OF 2014 (PAR)
BETWEEN:
1. SHIVANNA
S/O LATE NANJAPPA,
DEAD BY HIS LEGAL REPRESENTATIVES
1(A) SHIVAMMA
W/O LATE SHIVANNA
AGED ABOUT 64 YEARS
1(B) MALLESH
S/O LATE SHIVANNA
AGED ABOUT 38 YEARS
Digitally signed
by KIRAN 1(C) RAMESH
KUMAR R S/O LATE SHIVANNA
Location: AGED ABOUT 36 YEARS
HIGH COURT
OF ALL ARE R/AT HEGGANAHALLI VILLAGE
KARNATAKA HOBLI
MYSURU TALUK - 570 008
2. SMT. KEMPADEVAMMA,
AGED ABOUT 68 YEARS,
S/O LATE MALLIKARJUNA,
R/AT KOODANAHALLI VILLAGE,
VARUNA HOBLI,
MYSORE TALUK AND DISTRICT-570 010.
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3. SMT. THAYAMMA,
AGED ABOUT 50YEARS,
S/O LATE MALLIKARJUNA,
R/AT KOODANAHALLI VILLAGE,
VARUNA HOBLI,
MYSORE TALUK AND DISTRICT-570 010.
4. SMT. KANTHAMMA,
AGED ABOUT 39 YEARS,
S/O LATE MALLIKARJUNA,
R/AT KOODANAHALLI VILLAGE,
VARUNA HOBLI,
MYSORE TALUK AND DISTRICT-570 010.
5. SURESHA,
AGED ABOUT 45 YEARS,
S/O LATE MALLIKARJUNA,
R/AT KOODANAHALLI VILLAGE,
VARUNA HOBLI,
MYSORE TALUK AND DISTRICT-570 010.
6. SMT. RAJESHWARI
AGED ABOUT 43 YEARS,
W/O RAJANNA,
D/O LATE MALLIKARJUNA,
R/AT KADASOOR VILLAGE,
HAMPAPURA HOBLI,
H.D. KOTE TALUK,
MYSORE DISTRICT-570 014.
7. BASAVANNA,
AGED ABOUT 63 YEARS,
S/O LATE NANJAPPA,
R/AT YADAHALLI VILLAGE,
JAYAPURA HOBLI,
MYSORE TALUK AND DISTRICT-570 008.
...APPELLANTS
[BY SRI. B.K. RAMAIAH, ADVOCATE FOR
SRI. KUMAR K.G., ADVOCATE FOR A1(A-C) & A2 TO A7)]
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RSA No. 1638 of 2014
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AND:
1. SMT. GOWRAMMA
AGED ABOUT 75 YEARS,
W/O LATE MALLAPPA,
R/AT YADAHALLI VILLAGE,
JAYAPURA HOBLI,
MYSORE TALUK AND DISTRICT-570 008.
2. MAHADEVU,
AGED ABOUT 58 YEARS,
S/O LATE MALLAPPA,
R/AT YADAHALLI VILLAGE,
JAYAPURA HOBLI,
MYSORE TALUK AND DISTRICT-570 008.
...RESPONDENTS
(R1 & R2 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 31.10.2014 PASSED IN
R.A.NO.63/2012 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGEMENT AND DECREE DTD 9.3.2012 PASSED IN
OS.NO.513/2006 ON THE FILE OF THE II CIVIL JUDGE & JMFC.,
MYSORE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
1. This Regular Second Appeal is filed by the appellants
challenging the judgment and decree dated
31.10.2014 passed in Regular Appeal No.63 of 2012
by the learned Second Additional Senior Civil Judge,
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Mysuru, and praying to confirm the judgment and
decree dated 09.03.2012 passed in Original Suit
No.513 of 2006 by the learned II Civil Judge and
JMFC, Mysuru.
2. Brief facts leading rise to the filing of this appeal are
as follows:
3. For convenience, the parties are referred to based on
their rankings before the Trial Court, i.e., the
appellants were the plaintiffs and the respondents
were the defendants.
4. The plaintiffs filed a suit against the defendants for
partition and separate possession contending that the
suit schedule property is the joint family property of
the plaintiffs and the defendants and no partition has
been effected. The plaintiffs demanded partition and
separate possession of the suit property. However,
the defendants refused to effect partition and hence,
a cause of action arose for the plaintiffs to file a suit
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for partition and separate possession. Accordingly,
they pray to decree the suit.
5. The defendants filed a written statement admitting
the relationship between the parties. It is contended
that there was a partition between the plaintiffs and
the defendants, and prior to partition, the husband of
defendant No.1 was selected as a priest to the
Marigudi temple and the suit property was handed
over to him. It is admitted that the husband of
defendant No.1 got changed the records to his name
and he was cultivating and enjoying the suit schedule
property as the absolute owner. It is contended that
the suit schedule property is not the joint family
property of the plaintiffs and the defendants and the
suit filed by the plaintiffs is not maintainable. Hence,
they pray for dismissal of the suit.
6. The Trial Court, based on the pleadings of the
parties, framed the following issues:
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(i) "Whether the plaintiffs prove that the suit
schedule property is a joint family
property and they are in joint possession
thereof?
(ii) Whether the defendants prove that the
properties belonging to the joint family
were partitioned in the year 1964?
(iii) Whether the plaintiffs are entitled for
partition and separate possession of their
share as prayed in the suit?
(iv) What order or decree?"
7. The plaintiffs, to substantiate their case, examined
plaintiff No.3 as PW-1 and marked three documents
as Exhibits P-1 to P-3. On the other hand, defendant
Nos.1 and 2 were examined as DW-1 and DW-2
respectively and marked thirty-two documents as
Exhibits D-1 to D-32.
8. The Trial Court, after recording the evidence, hearing
both sides and assessing verbal and documentary
evidence, answered issue Nos.1 and 3 partly in the
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affirmative, issue No.2 in the negative and issue No.4
as per the final order.
9. The suit of the plaintiffs was partly decreed with
costs. It is declared that the plaintiffs are entitled to
a one-fifth share each with their separate possession
of the suit schedule property by metes and bounds.
10. The defendants, aggrieved by the judgment and
preliminary decree passed in Original Suit No.513 of
2006, preferred an appeal in Regular Appeal No.63 of
2012 on the file of the II Additional Senior Civil
Judge, Mysuru.
11. During the pendency of the regular appeal, the
defendants filed an application for production of
additional evidence.
12. The First Appellate Court, after hearing the learned
counsel for the parties, framed the following points
for its consideration:
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(i) Whether the respondents /plaintiffs
prove that the suit property is joint
family property of the plaintiffs and
defendants and they are in joint
possession of the same?
(ii) Whether the appellants /defendants
prove that there was a partition in the
family in the year 1964 and joint family
property were partitioned?
(iii) Whether the plaintiffs/respondents are
entitled for relief of partition and
separate possession in the suit
schedule property as prayed for?
(iv) Whether the judgment and decree
passed by the trial Court is proper?
(v) Whether the appellants/defendants
have made out ground to allow the
application filed by them under order
41 Rule 27(b) of C.P.C for production
of original document before the Court?
(vi) What order or decree?
13. The First Appellate Court, after re-assessing the
verbal and documentary evidence answered point
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Nos.1, 3 and 4 in the negative, point Nos.2 and 5 in
the affirmative and point No.6 as per the final order.
Ultimately, the First Appellate Court allowed the
appeal and set aside the judgment and decree
passed in Original Suit No.513 of 2006 and
consequently, dismissed the suit of the plaintiffs.
14. Being aggrieved by the judgment and decree passed
in Regular Appeal No.63 of 2012, the plaintiffs
preferred this Regular Second Appeal.
15. The notice of this appeal was issued to the
respondents. Despite service of notice, the
respondents remained unrepresented.
16. Heard the learned counsel for the plaintiffs.
17. The learned counsel for the plaintiffs submits that the
defendants filed an application for the production of
additional evidence before the First Appellate Court.
The First Appellate Court allowed the said application
and thereafter did not provide an opportunity to the
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plaintiffs to adduce their evidence on the additional
evidence. He submits that the First Appellate Court
has not complied with the provisions of Order XLI
Rule 28 of the Civil Procedure Code, 1908.
18. He also submits that the First Appellate Court has
placed reliance on those documents produced by the
defendants passed the impugned judgment and has
not complied with the provisions of Order XLI Rule 31
of the Civil Procedure Code and hence, on these
grounds, he has prayed to set aside the judgment
passed in Regular Appeal No.63 of 2012.
19. Perused the records and considered the submissions
of the learned counsel for the plaintiffs.
20. This Court admitted the appeal on 09.06.2025 to
consider the following substantial questions of law:
"(I) Whether the appellants prove that the
first appellate Court has committed an
error in recording a finding that the suit
schedule property were granted in favour
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of defendants in their individual capacity
in the absence of grant order?
(II) Whether the appellants prove that the
First Appellate Court committed an error
in reversing judgment and decree passed
by the trial Court?"
REG. SUBSTANTIAL QUESTION OF LAW No.2:
21. The plaintiffs filed a suit for partition and separate
possession of the suit schedule property contending
that the said property is the joint family property of
the plaintiffs and the defendants. The plaintiffs and
the defendants are members of a Hindu Undivided
Family and no partition has been effected between
them. To establish that the suit schedule property is
joint family property of the plaintiffs and defendants,
and they are in joint possession of the same, they
have produced the documents at Exhibits P-1 and P-
2--RTC extracts, and Ex.P3--the land grant order
bearing No.INA.KLRM.525/79-80, dated 15.12.1981.
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22. The Trial Court considering Exhibits P-1 and P-2 has
held that the suit schedule property is the joint family
property of the plaintiffs and the defendants, and
they are in joint possession of the same and
ultimately, decreed the suit of the plaintiffs and
declared that the plaintiffs are entitled to a one-fifth
share each with separate possession of the suit
schedule property.
23. Defendant No.1, aggrieved by the judgment and
preliminary decree passed in Original Suit No.513 of
2006 preferred an appeal in Regular Appeal No.63 of
2012.
24. During the pendency of the appeal before the First
Appellate Court, the defendants filed an application
for the production of additional evidence. The First
Appellate Court framed a point for consideration
(point No.5) and allowed the application for the
production of additional evidence. The First Appellate
Court, without recording any evidence on the
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additional evidence, has placed reliance on those
additional documents and passed the impugned
judgment.
25. When the Appellate Court allows an application for
the production of additional evidence, the next stage
is to record the evidence as per the provisions of
Order XLI Rule 28 of the Civil Procedure Code.
According to the said provision, whenever an
additional evidence is allowed to be produced, the
First appellate court may either take such evidence,
or direct the Court from whose decree the appeal is
preferred, or any other subordinate Court, to take
such evidence and to send it when taken to the
Appellate Court.
26. Admittedly, in the instant case, the First Appellate
Court has allowed the application for production of
additional evidence but failed to record evidence on
the additional evidence and placed reliance on those
documents. The First Appellate Court has thus
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committed an error in not complying with the
provisions of Order XLI Rule 28 of the Civil Procedure
Code and in reversing the judgment passed by the
Trial Court.
27. Thus, the judgment and decree passed by the First
Appellate Court in reversing the judgment of the Trial
Court is perverse and arbitrary. Hence, on this
ground alone the impugned judgment is liable to be
set aside and the matter requires to be reconsidered
by the First Appellate Court.
28. In view of the above discussion, the substantial
questions of law framed on 09.06.2025 for
consideration, do not arise for consideration, as this
Court is of the opinion that the matter requires
reconsideration by the First Appellate Court. I answer
the substantial question of law No.2 in the
Affirmative.
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REG. SUBSTANTIAL QUESTION OF LAW No.1:
29. In view of the above discussion the matter requires
reconsideration by the First Appellate Court,
substantial question of law No.1 does not arise for
consideration. Accordingly, I proceed to pass the
following order :
ORDER
(I) This Regular Second Appeal is
allowed.
(II) The Judgment and decree passed by
the First Appellate Court in Regular
Appeal No.63 of 2012 dated
31.10.2014 on the file of the II
Additional Senior Civil Judge, Mysuru
is set aside.
(III) The matter is remanded to the First
Appellate Court. The appeal is
restored to its original file.
(IV) The First Appellate Court is directed
to record the evidence on the
additional evidence and thereafter
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pass an appropriate judgment in
accordance with law.
(V) The office is directed to transmit the
records to the First Appellate Court
forthwith.
(VI) The First Appellate Court is directed
to issue notice to the respondents.
(VII) All the contentions of the parties are
kept open.
(VIII) No order as to costs.
(IX) In view of the disposal of the appeal,
the pending interlocutory
applications, if any, stand disposed
of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
RK
CT: KVH
