Karnataka High Court
Sallappa Dead By Lrs vs Sri M Basavaraj on 27 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MSA No. 21 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.21 OF 2018
BETWEEN:
SALLAPPA
DEAD BY LRS.
1. SMT. SAROJAMMA
AGED ABOUT 72 YEARS
W/O LATE SALLAPPA
2. SMT. GOWRAMMA
AGED ABOUT 52 YEARS
D/O LATE SALLAPPA
3. SRI.NAGESH
Digitally signed AGED ABOUT 47 YEARS
by DEVIKA M S/O LATE SALLAPPA
Location: HIGH
COURT OF 4. SRI.MURTHY
KARNATAKA AGED ABOUT 42 YEARS
S/O LATE SALLAPPA
ALL ARE R/AT
KEMPALINGANAPAURA VILLAGE
KASABA HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 110.
...APPELLANTS
(BY SRI. ABHINAV R., ADVOCATE)
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MSA No. 21 of 2018
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AND:
1. SRI. M. BASAVARAJ
AGED ABOUT 62 YEARS
S/O LATE MUNIYAPPA
R/AT KEMPALINGANAPURA
KASABA HOBLI,
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 110.
SMT. PARVATHAMMA
DEAD BY LRS.
2. SRI. RAVI KUMAR
AGED ABOUT 30 YEARS
S/O LATE NARAYANAMMA
3. SMT. NALINI
AGED ABOUT 27 YEARS
D/O LATE NARAYANAMMA
4 SMT.VENKATALAKSHMAMMA
AGED ABOUT 57 YEARS
W/O PAPAIAH
RESPONDENT NOS.2 TO 4 ARE
ALL R/AT KEMPALINGANAPURA
KASABA HOBLI, DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT-562 110.
SRI.RAMAIAH
DEAD BY LRS.
5. SMT. JAYALAKSHMAMMA
AGED ABOUT 36 YEARS
W/O LATE RAMAIAH
R/AT BHUVANESHWARI NAGAR
THRINABEDHI CIRCLE,
MADURE ROAD
DODDABALLAPURA TALUK
BENGALURU RURAL DISTRICT-561203.
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MSA No. 21 of 2018
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6. SMT. JAYALAKSHMI
AGED ABOUT 47 YEARS
W/O RAMAIAH
7. SRI.CHOWDAPPA
AGED ABOUT 52 YEARS
S/O PAPAIAH
SRI.KURLAPPA
DEAD BY LRS.
8. SRI. NARAYANAPPA
AGED ABOUT 57 YEARS
S/O LATE KURLAPPA
9. PILLAPPA
AGED ABOUT 52 YEARS
S/O LATE KURLAPPA
10. SRI. DASAMUNIRAJA
AGED ABOUT 47 YEARS
S/O LATE KURLAPPA
11. SRI. MUNIYAPPA
AGED ABOUT 42 YEARS
S/O CHOWDAPPA
RESPONDENT NOS.6 TO 11 ARE
ALL R/AT KEMPALINGANAPURA
KASABA HOBLI, DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562 110.
...RESPONDENTS
(BY SRI. T.K. RAJAGOPALA, ADVOCATE FOR C/R1;
NOTICE TO R2, R3, R4, R10 - SERVED AND UNREPRESENTED;
NOTICE TO R5 TO R9 AND R11 IS HELD SUFFICIENT)
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MSA No. 21 of 2018
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THIS MSA IS FILED UNDER ORDER 43 TULE 1(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.12.2017
PASSED IN R.A.NO.15044/2015 ON THE FILE OF THE Vth
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 22.09.2015 PASSED IN O.S.NO.536/2006
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI, REMANDING BACK THE MATTER FOR FRESH
DISPOSAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellants and the learned counsel
for the respondents. This miscellaneous second appeal is
filed before this Court challenging the order of remand
made by the First Appellate Court.
2. The case of the plaintiff before the Trial Court
seeking the relief of declaration, possession, permanent
injunction and mesne profits. The Trial Court having
considered the pleadings of the parties and evidence of the
parties, dismissed the suit in coming to the conclusion that
in paragraph Nos.23 that Ex.D.28 is the certified copy
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issued by the competent Thasildar, Devanahalli Taluk.
Once the said registered extract is produced by the
defendants, the burden shifts on the plaintiff to show that
Ex.D.28 is not genuine and it has been created. In order to
falsify that the entries shown in Ex.D.28 are not correct,
he has not made any attempt to summon the original
register from the Thasildar, Devanahalli Taluk nor he has
not produced the certified copy showing that Ex.D.28 is
not taken from the original register. In the absence of
such materials, behalf of the plaintiff, Ex.D.28 cannot be
said to be an illegal and incorrect document and also made
an observation in paragraph No.24 that Ex.D.28 against
the name of the plaintiff father in two columns, it is
written in inverted commas meaning of 'ditto' in the
Oxford English Dictionary 'in list the same thing again'.
Having considered the document Ex.D.28 comes to the
conclusion that plaintiff has not made out the case and
there was already a cancellation of grant and dismissed
the suit, the same has been challenged in the First
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Appellate Court. The First Appellate Court having
considered the grounds urged in the appeal memo,
formulated the point whether more, effective and valid
evidence is required on Ex.P.1 to Ex.P.13 and Ex.D.28 and
also having considered the material available on record the
issue between the parties with regard to the Ex.P.4 which
plaintiffs relies upon and defendants relies upon the
document Ex.D.28. Hence, the Appellate Court having
considered the document of Ex.P.4 discussed in paragraph
No.15 that Ex.P.4 suit land was granted in favour of the
plaintiff's father Muniyappa and his name was entered and
continued in RTC right from the year 1993, 1994 till the
year 2004, 2005 as per Ex.P.1 to Ex.P.3 and Ex.P.6 to
Ex.P.13. No doubt the defendants have produced
Panchayat Parikath as per Ex.D.2 and also taken note of
Ex.D.3 to Ex.D.8 as well as Ex.D.19 to Ex.D.22, besides
that they have also produced certified copy of the order
passed by the Assistant Commissioner that is as per
Ex.D.23 to Ex.D.27 and apart from that document Ex.D.28
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also relied upon regarding cancellation of the grant and in
detail discussed the same in paragraph No.16 and comes
to the conclusion that the document of Ex.P.4 and Ex.D.28
nothing is found when the grant was cancelled and also
comes to the conclusion that competent person to speak
on Ex.P.4 which the plaintiff relies upon and Ex.D.28 also
which the defendants relies upon and revenue officials who
is well acquainted with those documents to be examined
before the Trial Court. Hence, comes to the conclusion that
only on the basis of ambiguous marks, rights of the parties
cannot be decided, unless competent witness is examined
to speak on those two documents and therefore comes to
the conclusion that those documents are relied upon
without proving of those documents it has resulted into
miscarriage of justice and hence directed the parties to
examine the competent persons to give evidence on
Ex.P.4 and Ex.D.28 and matter is remanded to the Trial
Court.
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3. The counsel appearing for the appellants would
vehemently contend that when the document that is public
document of Ex.D.28 is produced, the First Appellate Court
ought not have disbelieved the same. The counsel also
would vehemently contend that there is a presumption
under Section 79 of Evidence Act and hence the admission
itself is enough to accept the document and P.W.1
categorically admitted that not challenged the very
cancellation and it is only a Panchayat document.
4. The learned counsel appearing for the
respondents would vehemently contend that the First
Appellate Court has not committed any error when the
decision is to be taken with regard to the rights of the
parties is concerned, categorical observation is made that
in order to prove the document of Ex.P.4 and also
Ex.D.28, competent witnesses to be examined or
otherwise it amounts to a miscarriage of justice.
5. Having heard the appellant's counsel and also
the counsel appearing for the respondents and also the
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claim made by the plaintiff before the Trial Court that land
was granted in the year 1942 and also they relies upon
the register of Saguvali Chit which is marked as Ex.P.4. On
the other hand defendant also claims that there was a
cancellation of the grant and both the plaintiff as well as
the appellants have not placed on record any document for
having grant of land as well as cancellation of the grant
and no such orders are also placed before the Court. When
both of them relies upon the document Ex.P.4 and
Ex.D.28, the Appellate Court rightly comes to the
conclusion that unless those two documents are proved by
examining the witnesses, the Court cannot take any
decision or otherwise it amounts to a miscarriage of
justice. When both the parties have given opportunity to
lead evidence and to examine the competent person to
give evidence on Ex.P.4 and Ex.D.28, I do not find any
error. However, both the counsels submit that the same
task can be done in the Appellate Court itself instead of
remanding the matter to the Trial Court.
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6. It is important to note that when the document
is already available before the Court Ex.P.4 and Ex.D.28,
Appellate Court itself would have examined the witnesses
by giving an opportunity to both parties to prove Ex.P.4
and Ex.D.28, the witnesses must speak regarding the very
validity of the document of Ex.P.4 and Ex.D.28, instead of
reminding the same ought to have taken the decision to
examine the witnesses and would have given the definite
finding regarding real issue is on Ex.P4 and Ex.D.28. When
the Appellate Court comes to the conclusion that both the
documents Ex.P.4 and Ex.D.28 are not proved by
examining the competent witnesses and hence there is a
force in the contention of appellant's counsel and also the
counsel appearing for the respondents that matter could
be remanded to the First Appellate Court and Appellate
Court can examine the witnesses and allow both the
plaintiff and defendant to prove the document of Ex.P.4
and Ex.D.28, since crux of the issue involved between the
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parties is in respect of Ex.P.4 and Ex.D.28. Hence, the
impugned order requires to be set aside.
7. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is allowed. Instead of
directing the Trial Court to examine the
competent persons, the First Appellate Court
is directed to give an opportunity to both the
plaintiff as well as defendants to examine the
competent witnesses to prove the document
Ex.P.4 and Ex.D.28 and take a decision on the
documents since crux of the issue involved
between the parties is mainly on Ex.P.4 and
also Ex.D.28 and this could be done within 6
months.
ii) The parties are directed to appear before the
Appellate Court on 28.07.2025. Both the
counsel for appellants and respondents and
respective parties are directed to assist the
First Appellate Court in disposal of the matter
within a time bound period of 6 months. The
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First Appellate Court is directed to dispose of
the matter in a time bound period of 6 months
from 28.07.2025.
iii) The Registry is directed to send the records to
the First Appellate Court forthwith to enable
the First Appellate Court to take up the matter
on 28.07.2025 without fail.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
