Karnataka High Court
Shri. Prasad Vasant Kalal vs Shri. Basappa Mahadevappa Betadur on 4 June, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RFA No. 100433 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 100433 OF 2018 (DEC/POS)
BETWEEN:
PRASAD S/O VASANT KALAL,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: KUNDGOL-581 113, DIST: DHARWAD.
... APPELLANT
(BY SRI. G.N. RASALKAR, ADVOCATE)
AND:
1. BASAPPA MAHADEVAPPA BETADUR,
SINCE DECEASED BY HIS LR'S.,
1A. SMT. SAROJA W/O BASAPPA BETADUR,
AGE ABOUT 55 YEARS, OCC: HOUSEHOLD,
R/O: THANEGERI ONI, KUNDGOL,
DIST: DHARWAD.
1B. SMT. JAYALAXMI W/O PRAKASH AJJAMMANAVAR,
Digitally signed by
MALLIKARJUN RUDRAYYA
AGE ABOUT 37 YEARS, OCC: HOUSEHOLD,
KALMATH R/O: KATUR, TQ: MUNDAGOD, DIST: KARWAR.
Location: HIGH COURT OF
KARNATAKA DHARWAD
BENCH
1C. CHANDRASHEKHAR S/O BASAPPA BETADUR,
AGE ABOUT 29 YEARS, OCC: AGRICULTURE,
R/O: THANEGERI ONI, KUNDGOL,
DIST: DHARWAD.
1D. SMT. KEERTANA W/O PRAVEEN NAGANAGOUDRA,
AGE ABOUT 28 YEARS, OCC: HOUSEHOLD,
R/O: KOGILE, TQ: HADAGALI, DIS: BALLARI.
1E. KIRAN S/O BASAPPA BETADUR,
AGE ABOUT 25 YEARS, OCC: AGRICULTURE,
R/O: THANEGERI ONI, KUNDGOL,
DIST: DHARWAD.
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RFA No. 100433 of 2018
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2. SMT. ANASUYA
W/O. SHANKARAGOUDA KALINGANAVAR,
AGE: 54 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD WORK,
R/O: SHIRUR-581 113, TQ: KUNDGOL,
DIST: DHARWAD.
3. SMT. KASHAVVA
W/O. SHIVANAGOUDA SHISHUNAL,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: SAIKERUR-581 118, TALUKA: SAVANUR,
DIST: HAVERI.
4. SMT. SAVITRI W/O. RAVINDRA HEGGERI,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: NEAR WELL SAPTAPUR (BHAVI),
DHARWAD-580 001.
5. BHARAMAPPA MAHADEVAPPA BETADUR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: NEHRU NAGAR, KUNDGOL-581 113,
DIST: DHARWAD.
6. SHRI SUBHAS S/O. SIDDAPPA SADAR,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: NEHRU NAGAR, KUNDGOL-581 113,
DIST: DHARWAD.
... RESPONDENTS
(BY SRI. VISHWANATH S. BICHAGATTI, ADVOCATE FOR R1(A-E)
AND R5;
R2, R3, R4 AND R6-SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC. 96 (1)
READ WITH ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED: 06.09.2018 PASSED IN
O.S.NO.24/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, KUNDGOL.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No. 100433 of 2018
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)
This appeal is filed by the plaintiff challenging the
judgment & decree dated 6.9.2018 passed in OS No.24/2017
by the Senior Civil Judge and JMFC, Kundgol1, thereby, suit
filed for declaration and possession is dismissed.
2. For the sake of convenience and easy reference,
the parties are referred to as per their rankings before the
Trial Court.
3. The plaintiff has filed suit for declaration and
possession by claiming that the suit schedule property is the
ancestral property of the plaintiff and he is in possession of
the same. The land of the defendants is situated towards
northern side of the suit property and the defendants are in
possession of land in Sy.No.437/2. The defendants started
destruction of the boundary marks between the suit schedule
property and bunds of property. Therefore, the plaintiff had
given an application to Taluk Surveyor to survey the suit
'Hereinafter referred to as 'trial Court'
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property. Accordingly, the Taluk Surveyor conducted survey
and prepared Plain Table Sheet (PT Sheet) stating that the
defendants have encroached property of the plaintiff. But
the defendants refused to hand over the encroached
property. Therefore, the plaintiff was constrained to file suit
for declaration and for possession.
4. In pursuance to the summons issued to the
defendants, they have appeared through their counsel and
filed written statement contending that the defendants are
the owners in possession of land in Sy.No.437/2 measuring 7
acres 26 guntas. The defendants' land is situated abutting to
the suit property. There were Neem trees grown between
the land of the plaintiff and the defendants and a pond is
existing towards north direction of land of the plaintiff. A
pipe line has been installed in the said pond and in case of
excess water collected in the said pond, water will overflow
to the land of the defendants. The said pipe line is installed
in the land of the plaintiff. Further, there is a small bridge
on the eastern side of the land of the defendants near
government road for the purpose of flow of water. Boundary
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stones have been laid in the respective lands of the plaintiff
and defendants; when such being the case, there is no
chance of entering the land of the plaintiff and encroaching
his land. Therefore, contended that the plaintiff has filed
false and frivolous suit. Thus, prayed for dismissal of the
suit.
5. On the basis of the pleadings of the parties, the
trial Court framed following issues:
i) Whether the plaintiff proves that the
plaintiff is the owner in possession of
Sy.No.436 measuring 14 acre 18
guntas of land situated in Kundgol
village, Kundgol Taluk?
ii) Whether the plaintiff proves the
defendant has encroached 1 acre of
land as shown in hand sketch map as
ABEF at the northern portion of the
property of plaintiff?
iii) Whether the plaintiff proves that the
plaintiff is entitled for possession of 1
acre of land as shown in hand sketch
as ABEF of the northern portion of the
suit property of the plaintiff?
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iv) Whether the plaintiff is entitled for
relief as prayed in the plaint?
v) What order or decree?
6. The plaintiff examined himself as PW1 and
examined five other witnesses as PW2 to PW6 and got
marked two documentary evidence as per Exs.P1 and P2,
whereas, the defendants examined one witness as DW1, but
no documents were marked on their behalf. The trial Court
on appreciation of oral and documentary evidence on record,
dismissed the suit on the reason that when the plaintiff has
filed suit for declaration and possession, then the plaintiff
ought to have produced documentary evidence to show that
who is the owner of the suit land. However, the plaintiff has
produced only RTC extract for the year 2015-16, therefore,
mere RTC extract did not prove the title over the suit
property. It was further observed that when the plaintiff
failed to prove the title over the suit property by producing
relevant documentary evidence, Ex.P2-PT sheet cannot be
accepted. On these reasons, the trial Court dismissed the
suit.
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7. During the pendency of the appeal, the appellant
has filed an application under Order XLI Rule 27 of CPC for
production of additional evidence. The additional evidence
sought to be produced along with the application are the
documents showing that the plaintiff's/appellant's grand-
father purchased the suit schedule land through registered
sale deed dated 24.01.1956 and other documents are
mutation entries and RTC extracts. Therefore, learned
counsel for the appellant prays for remand of the matter to
the trial Court for fresh consideration by giving an
opportunity to the plaintiff to produce title document to
prove the case for declaration. For this, learned counsel for
the respondents/defendants submitted that he has no
objection for remand of the matter to the trial Court.
8. The plaintiff has filed suit for declaration and
possession to declare that the plaintiff is the owner of the
suit land and the defendants have encroached 1 acre of land
in the suit land. When this being the fact, the plaintiff has
produced only single RTC extract of the year 2015-16. The
trial Court is right in observing that only on the basis of
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single RTC extract, it does not prove the title over the suit
property. When the plaintiff has failed to prove the title,
there is no question of observing that the defendants have
encroached the suit property. On these reasons, the trial
Court proceeded to dismiss the suit.
9. Now, in the appeal, learned counsel for the
appellant has filed an application under Order XLI Rule 27 of
CPC for producing some documents, which are Sale Deed
dated 24.01.1956 to show that the grand father of the
plaintiff purchased the suit schedule property in the year
1956. Further, other documents are, RTC extracts of the
previous years and mutation entries. But these documents
were not produced before the trial Court nor marked as
exhibits. Therefore, when the plaintiff/appellant is trying to
prove the title over the suit property, the documentary
evidence ought to be considered. Though the trial Court
could not have found fault with in dismissing the suit, but
considering the fact that the suit is filed for declaration, then
an opportunity ought to be granted to the plaintiff to prove
his title by producing the relevant documents. Otherwise,
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the plaintiff would lose the entire land. Therefore, without
expressing any opinion on the merits of the case, the matter
requires to be remanded to the trial Court for fresh
consideration. Therefore, the application filed for additional
evidence is allowed and the documentary evidence sought to
be considered by the trial Court to ascertain the genuineness
and its veracity. Therefore, by allowing the application for
additional evidence, the case is remanded to the trial Court
for fresh consideration. The documents produced along with
application for additional evidence shall be forwarded to the
trial Court.
10. In the index column of the application for
additional evidence, it is stated that the Sale Deed dated
24.1.1956 is original sale deed, but on perusal of the same,
it is seen that it is a notarized copy of the sale deed.
Therefore, during the course of trial, the plaintiff shall
produce the original registered sale deed to the Court.
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11. For the reasons recorded above, the impugned
judgment and decree passed by the trial Court requires to be
set-aside. Accordingly, I proceed to pass the following:
ORDER
a) The appeal is allowed.
b) The judgment and decree dated 6.9.2018
passed in OS No.24/2017 on the file of
learned Senior Civil Judge & JMFC,
Kundgol is hereby set-aside.
c) The matter is remanded to the trial Court
for fresh consideration.
d) Both parties are given liberty to adduce
either oral or documentary evidence or
both, as they so wish.
e) The trial Court shall dispose off the suit
as expeditiously as possible adhering to
the Order XV-AA of CPC.
f) Both parties are directed to appear before
the trial Court on 30.6.2025 without
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expecting further notice from the trial
Court.
g) All contentions of the parties are left
open.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
JTR
CT:BCK
