Karnataka High Court
Krishnamurthy S/O Shamanna vs Smt Amshamma W/O Munivenkatappa on 13 May, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 1173 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.1173 OF 2009 (INJ)
BETWEEN:
KRISHNAMURTHY,
S/O SHAMANNA,
C/O C. ANJINAPPA,
AGED ABOUT 40 YEARS,
R/A KUMBALAHALLI VILLAGE,
KASABA HOBLI,
HOSAKOTE TALUK.
...APPELLANT
[BY SRI G.M. NANDEESH GOWDA, ADVOCATE FOR
SRI R.B. SADASHIVAPPA, ADVOCATE (PH)]
AND:
SMT. AMSHAMMA,
W/O MUNIVENKATAPPA,
SINCE DECEASED BY HER LRs
Digitally signed
by
GEETHAKUMARI
1. SRI MUNIVENKATAPPA,
PARLATTAYA S S/O SRI VENKATAPPA,
Location: High
Court of SINCE DECEASED
Karnataka
R1(2) TO R1(6) ARE THE LRs
OF THE DECEASED R1
(AMENDEMENT CARRIED V/O DTD 23.11.2023)
2. SMT. NETHRAVATHI,
D/O SRI MUNIVENKATAPPA,
AGED ABOUT 37 YEARS,
3. SMT. MANJULA,
D/O SRI MUNIVENKATAPPA,
AGED ABOUT 35 YEARS,
4. SMT. SAKAMMA,
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RSA No. 1173 of 2009
D/O SRI MUNIVENKATAPPA,
AGED ABOUT 32 YEARS,
5. SRI VENKATESH,
S/O SRI MUNIVENKATAPPA,
AGED ABOUT 30 YEARS,
6. SRI MUNIRAJU,
S/O SRI MUNIVENKATAPPA,
AGED ABOUT 27 YEARS.
ALL ARE R/O KAMBALAHALLI,
HOSKOTE, BENGALURU.
...RESPONDENTS
[BY SRI C. SHANKAR REDDY, ADVOCATE;
V/O DATED 23.11.2023 R1(2-6) ARE TREATED AS LRs OF R1(1)]
THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGMENT &
DECREE DATED 14.07.2009, PASSED IN R.A.NO.254/2005, ON THE
FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, BANGALORE
RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.06.2005,
PASSED IN O.S.NO.147/1998, ON THE FILE OF THE CIVIL JUDGE,
(JR. DN.) AND JMFC., HOSKOTE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.03.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 14.07.2009,
passed by Prl. District & Sessions Judge, Bengaluru Rural
District, Bengaluru, in R.A.no.254/2005, this appeal is filed.
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2. Brief facts as stated are, appellant was plaintiff in
OS no.147/1998 filed seeking permanent injunction restraining
defendants, their agents etc. from interfering with property
bearing site no.234 (VP Khata no.369) measuring East-West -
40 ft. and North-South - 30 ft. situated at Kumbalahalli village,
Kasaba Hobli, Hoskote Taluk ("suit property" for short).
3. In plaint, it was stated plaintiff was absolute owner
of suit property, based on grant and issue of hakkupatra. Since
then plaintiff was in peaceful possession and enjoyment of suit
property and paying property tax regularly. It was stated that
plaintiff had stored building material for construction of house.
But, on 25.05.1998, without any manner of right, title or
interest over suit property, defendants attempted to interfere
with possession. And when plaintiff resisted, they threatened
to come again and dispossess plaintiff. Though, plaintiff filed
complaint with jurisdictional police, he was directed to
approach Civil Court, hence, suit was filed.
4. On appearance, defendant filed written statement
denying plaint averments. It was stated plaintiff was educated
and gainfully employed in a private firm and permanently
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resident of Neelasandra in Bengaluru City. It was stated
plaintiff got married to daughter of Anjanappa resident of
Kumbalahalli. It was stated, plaintiff's father-in-law was
Chairman of Kumbalahalli Grama Panchayat and Group
Panchayat. Taking undue advantage of same, plaintiff
manipulated panchayat records and based on same claiming
right over suit property. It was stated plaintiff was not granted
any land/site and plaintiff was not in possession. It was stated
defendant hailed from poor agricultural labour family and was
permanent resident of Kumbalahalli village. It was stated
under Government scheme house sites were formed in
Sy.no.112 of Kumbalahalli village. On 11.06.1989, defendant
was allotted site no.234 measuring East-West - 40 ft., North-
South - 30 ft., bounded on East by Gramathana, West by site
no.179, North by site no.233 and South by road. Hakkupatra
was also issued and since then, defendant was in possession
and enjoyment of said site. His name was also shown as
khatedar in Forms no.9 and 10 and paying property tax
regularly. As absolute owner, defendant had stacked firewood
in suit property and contending plaintiff was never in
possession, prayed for dismissal of suit.
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5. Based on pleadings, trial Court framed following
issues:
1. Whether the plaintiff proved that he is in lawful
possession of the plaint schedule property as on
the date of the suit?
2. Whether the plaintiff further proved that the
alleged interference of the defendant as stated in
the plaint?
3. Whether the plaintiff is entitle for the relief as
sought for?
4. What decree or order?
6. In trial, plaintiff examined himself and an
independent witness as PWs.1 and 2 and got marked Exs.P1 to
Ex.P18. In rebuttal, PoA of defendant and another were
examined as DWs.1 and 2 and got marked Exs.D1 to Ex.D26.
7. Thereafter, trial Court answered issues nos.1 to 3
in affirmative and issue no.4 by decreeing suit restraining
defendants, etc. from interfering with possession/enjoyment of
suit property.
8. Aggrieved, defendant filed RA no.254/2005 on
several grounds. Based on same, following points were framed:
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1. Whether the plaintiff proves lawful possession
over the suit schedule property?
2. Whether the plaintiff proves interference in the
enjoyment of the property?
3. What order?
9. On consideration, first appellate Court answered
point no.1 was held in negative, point no.2 as not arising and
point no.3 by allowing appeal and dismissing suit. Aggrieved
thereby, plaintiff is in appeal.
10. Sri GB Nandish Gowda, learned counsel appearing
for RB Sadashivappa, advocate for plaintiff submitted plaintiff's
appeal was against divergent findings in a suit for bare
injunction. It was submitted, plaintiff got suit property under
Ex.P.1 - hakkupatra, thus, plaintiff was in possession. On other
hand, without any manner of right, defendant claimed to be
grantee of suit property on 11.06.1989, but, when plaintiff
verified said claim, it was found out, such date fell on Sunday,
casting serious doubt about genuineness of grant.
11. Further, apart from Ex.P.1, plaintiff relied on
Demand Register Extract, Tax Assessment Extract, Tax Paid
Receipts, Licences and Confirmation Certificate as Exs.P2 to
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P.16. It was submitted, to establish possession, plaintiff
examined a resident of village as PW.2, who supported
plaintiff's case. On other hand, defendant did not lead
evidence. Therefore, plaintiff's possession was proved. It was
submitted, defendant claimed boundaries of suit property was
same as plaintiff's property. It was submitted, defendant was
granted site no.335, whereas plaintiff's was laying claim over
suit property. It was submitted, plaintiff proved boundaries of
his property would tally with serial number of adjacent
property. But, same would not tally with boundaries of
defendant's site. It was submitted, defendant did not examine
witness or produce document to establish his title and
possession over site no.335.
12. It was submitted, on detailed appreciation of above
material, and taking note of defendant's contention based on
Ex.D2 and rejecting it, trial Court rightly decreed suit holding
plaintiff proved title and possession over suit property. It
noted, defendant had not entered witness box and examined
his PoA as DW.1 without explanation. It noted measurement of
defendant's site would not tally with suit property.
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13. But in appeal, without proper re-appreciation, first
appellate Court erroneously overturned findings of trial Court
and dismissed suit. It was submitted in suit for bare injunction,
Courts were prohibited from deciding title by relying upon
Hon'ble Supreme Court in case of Ramji Rai v. Jagdish
Mallah, reported in (2007) 14 SCC 200, holding:
"11. In ALVR Ct.Veerappa Chettiar v. Arunachalam
Chetti [AIR 1936 Mad 200], it has been held that
mere fact that the question of title may have to
be gone into in deciding whether an injunction
can be given or not is not any justification for
holding that the suit is for a declaration of title
and for injunction. There can be a suit only for
an injunction. The present suit is only for
permanent injunction and, therefore, the lower
appellate court should have, on the facts and
circumstances of this case, confined itself to its
dismissal only on the ground that the appellants
have failed to show that they were in possession.
This has been done but the declaration that the
appellants are not the owners, was not
necessary."
14. While passing impugned judgment, first appellate
Court erroneously examined title, which was beyond its scope.
It was contended entire judgment of first appellate Court was
on appreciation of defendant's evidence only. Therefore,
impugned judgment would call for interference.
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15. It was submitted, during pendency of this appeal,
plaintiff had filed application under RTI Act, 2005 and obtained
documents of his grant, including certificate issued by
Panchayat confirming said grant. Plaintiff also obtained list of
allottees, which revealed there was no allotment to defendant.
Hence, application for additional evidence was sought to be
led. It was submitted, additional evidence was relevant and
necessary for passing proper judgment and prayed for allowing
application and remanding matter by relying on decision of
Hon'ble Supreme Court in case of Shalimar Chemical Works
Ltd., v. Surendra Oil and Dal Mills reported in (2010) 8
SCC 423, and Wadi v. Amilal, reported in (2015) 1 SCC
677, held:
"4. It cannot be disputed that the correct date of
death of Rupa Ram would clinch the issue and
enable the Court to pronounce a satisfactory
judgment in the suit. A perusal of Mutation No.
49, if proved, would throw considerable light on
the issue. On the question of admission of that
document by the appellate court, it would be
necessary to notice the relevant provision of
Order 41 Rule 27 of the Code of Civil Procedure:
"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)-(aa) ***
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(b) 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."
5. Now it is clear that Rule 27 deals with production
of additional evidence in the appellate court. The
general principle incorporated in sub-rule (1) is
that the parties to an appeal are not entitled to
produce additional evidence (oral or
documentary) in the appellate court to cure a
lacuna or fill up a gap in a case. The exceptions
to that principle are enumerated thereunder in
clauses (a), (aa) and (b). We are concerned here
with clause (b) which is an enabling provision. It
says that if the appellate court requires any
document to be produced or any witness to be
examined to enable it to pronounce judgment, it
may allow such document to be produced or
witness to be examined. The requirement or
need is that of the appellate court bearing in
mind that the interest of justice is paramount. If
it feels that pronouncing a judgment in the
absence of such evidence would result in a
defective decision and to pronounce an effective
judgment admission of such evidence is
necessary, clause (b) enables it to adopt that
course. Invocation of clause (b) does not depend
upon the vigilance or negligence of the parties
for it is not meant for them. It is for the
appellant to resort to it when on a consideration
of the material or record it feels that admission
of additional evidence is necessary to pronounce
a satisfactory judgment in the case.
6. In this case, on the question whether Rupa Ram
died in 1951 or in 1960/1961, the Revenue
Appellate Authority referred to a copy of
Mutation No. 49 and remanded the case to the
original authority. The document in question
would throw light on the germane issue and is,
therefore, necessary for pronouncing judgment
in the case on the question whether remand of
the case was justified. In our view, the Board of
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Revenue ought to have admitted the additional
evidence under clause (b) aforementioned. It
erred in declining to admit that document as
additional evidence."
16. He also relied on decision of Hon'ble Supreme
Court in case of Bhimeshwara Swami Varu Temple v.
Pedapudi Krishna Murthi, reported in (1973) 2 SCC 261,
holding:
"8. No useful purpose will be served by discussing
the oral evidence led by the parties. That
evidence is of an uncertain character and is
inadequate to displace the presumption arising
out of the several entries spread over a large
number of years showing that RS no.1057
belonged to the Archakas and was in their
possession in their own right."
17. Pointing to admission elicited from DW.1 in cross-
examination that site number mentioned in Ex.D2 was 335,
whereas, suit property was site no.234. It was further
submitted, boundary description of property in Ex.D9 - Form
no.9 differed from suit property. Same was not appreciated by
first appellate Court. Hence, sought for allowing appeal on
ground of improper appreciation of material by first appellate
Court relying on decision of this Court in case of
Puttaramaiah v. Thimmaiah, reported in 2007 SCC OnLine
Kar 790.
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18. On above grounds, learned counsel sought for
allowing appeal by answering substantial question of law.
19. On other hand, Sri C. Shankar Reddy, learned
counsel for defendants [respondent no.1 (2-6)] opposed
appeal, submitting that plaint was bereft of particulars of
grant, such as date and basis of plaintiff's claim for allotment.
Besides, pleadings about interference by defendant were
absent. As per law, no amount of evidence without pleading
could be appreciated. It was submitted, in written statement,
defendant denied plaintiff's possession and claimed defendant
to be grantee. Plaintiff had not filed rejoinder denying
allotment to defendant. Thus, allotment was not disputed. It
was submitted, plaintiff's father-in-law namely, Anjinappa was
Chairman of Panchayat. Taking advantage of same and
colluding with officials, plaintiff had got Ex.P1. It was
submitted, in cross-examination, both PWs.1 and 2 admitted
relationship of plaintiff with Anjinappa. PW.1 also admitted he
was unaware in which survey number he was granted site. It
was submitted, Ex.P1, casts serious doubt about grant as it
had overwriting without counter signatures. When allotment
was doubtful, suit was liable for dismissal.
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20. It was submitted, plaintiff had not produced
records to establish entitlement for grant/allotment, which was
usually for welfare of EWC, or stated how plaintiff qualified for
grant. He had also not made efforts to examine any officer to
corroborate grant/allotment. And it was further submitted,
plaintiff cannot succeed merely on weakness of defendant, but
has to establish title and possession over suit property as on
date of suit. It was submitted, in cross-examination DW.2 had
categorically admitted allotment of site in favour of defendant.
Thus, judgment and decree of trial Court was without contrary
to settled principles of law and first appellate Court on re-
appreciation record rightly exercised jurisdiction under Section
96 of CPC, set-aside trial Court decree and dismissed suit.
Same was not liable for interference under Section 100 of CPC.
21. It was submitted, though plaintiff had sufficient
opportunity to file applications under RTI Act, secure and
produce evidence before filing of suit, no explanation was
offered for said lapse. It was pointed out that all documents
sought to be produced were post-suit, which could not be
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relied and sought for dismissal of application filed for additional
evidence and consequently appeal itself.
22. Heard learned counsel, perused impugned
judgment decree and records.
23. This appeal is by plaintiff against divergent finding
in a suit for permanent injunction. Suit claim was based on
assertion that plaintiff was allottee of suit property under
Ex.P.1 - Hakku patra dated 15.06.1990 and claiming to be in
possession from said date corroborated by entry of name in
revenue records by producing demand register/assessment
register extracts as well as tax paid receipts, building licence
and confirmation certificate as Exs.P.2 to 16 and alleged
defendant had sought to interfere with plaintiff's possession
over suit property. It is seen, plaintiff deposed as PW.1 and
reiterated plaint averments. He also examined PW.2, a
resident of Kumbalahalli, who deposed about plaintiff being in
possession of suit property.
24. Suit was opposed denying plaintiff's title as well as
possession over suit property, alleging plaintiff was not
resident of Kumbalahalli and claiming defendant to be allottee
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of site under Ex.D2 - Hakkupatra and claiming to be in
possession of suit property by producing demand
register/assessment register extracts as well as tax paid
receipts. It is seen, husband of defendant was examined as
DW.1 and owner of site no.4 as DW.2.
25. While passing judgment and decree, trial Court
noted rival pleadings and evidence and observed plaintiff and
defendant were rival claimants over suit property on basis of
respective hakkupatras at Ex.P.1 and Ex.D.2. At that stage, it
noted that defendant had not stepped into witness box.
Relying on decision of Apex Court in case of Janaki Vasudev
Bhojwani & Anr. v. IndusInd Bank Ltd & Ors. reported in
2005 (2) SCC 217, to draw adverse inference against
defendant and discarding oral evidence of DW1. On scrutiny of
documentary evidence, it observed that Exs.D3 to 24 were in
respect of site no.335 and concluding that Ex.D2 was not acted
upon, to decree suit.
26. In appeal, first appellate Court also traversed rival
pleadings and evidence led as well as findings of trial Court
especially about discrepancy about site number in Ex.D2 to
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other exhibits. It however, proceeds to compare Ex.P1 and
Ex.D2 to note that both were in respect of site no.234. It also
noted some corrections on Ex.P1 with counter-signatures. It
however noted date of grant in Ex.D2 was 11.06.1989,
whereas, it was 15.06.1990 in Ex.P1. It concluded, after grant
of site no.234 under Ex.D2, issuance of Ex.P1 would be
unsustainable. Holding even in suit for bare injunction, Courts
could go into issue of title to extent of giving finding on lawful
possession and concluding that defendant had better title
under Ex.D2 over suit property than plaintiff under Ex.P1, it
reversed trial Court decree, allowed appeal and dismissed
plaintiff's suit.
27. Appeal was admitted on 11.09.2009, to consider
following substantial questions of law:
1. Whether the judgment of the lower appellate
court reversing the judgment of the trial Court
decreeing the suit filed by the appellant/plaintiff
is perverse being contrary to the admissions
made by DW.1 during the cross examination?
2. In view of the admission made by DW.1 that the
defendant is in possession of site no.335 as
mentioned in Ex.D.2 to D.26, whether the Lower
Appellate Court is justified in holding that the
plaintiff not in possession of the site no.234 only
based on the contents of Ex.D.1?
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28. Main grounds urged as about perversity of findings
of first appellate Court, firstly for ignoring Exs.D3 to 26 were
not in respect of suit property and admission by DW.1 that he
was in possession of site no.335 and secondly, failing to
appreciate plaintiff's claim insofar as suit property was lawful
under Ex.P1 and possession established by consistent revenue
records (Exs.P2 to 15) and deposition of PW.2 (resident of
same village).
29. In view of observation about failure of plaintiff to
produce any corroborative records about grant in favour of
plaintiff, an application [Misc.no.15416/2009] was filed under
Order XLI Rule 27 of CPC for additional evidence. Documents
sought to be produced are Endorsement dated 20.07.2009 and
Confirmation Certificate dated 13.08.2009 issued by Executive
Officer, Taluk Panchayat Hoskote and application filed under
RTI Act with certified copy, relevant portion of list of allottees
of sites formed in Sy.no.112.
30. Hon'ble Supreme Court in Union of India v.
Ibrahim Uddin, reported (2012) 8 SCC 148, while
considering application under Order XLI Rule 27 CPC, has held
as under:
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"36. The general principle is that the appellate court
should not travel outside the record of the lower
court and cannot take any evidence in appeal.
However, as an exception, Order 41 Rule 27 CPC
enables the appellate court to take additional
evidence in exceptional circumstances. The
appellate court may permit additional evidence
only and only if the conditions laid down in this
Rule are found to exist. The parties are not
entitled, as of right, to the admission of such
evidence. Thus, the provision does not apply,
when on the basis of the evidence on record, the
appellate court can pronounce a satisfactory
judgment. The matter is entirely within the
discretion of the court and is to be used
sparingly. Such a discretion is only a judicial
discretion circumscribed by the limitation
specified in the Rule itself. (Vide K.
Venkataramiah v. A. Seetharama Reddy [AIR
1963 SC 1526] , Municipal Corpn. of Greater
Bombay v. Lala Pancham [AIR 1965 SC
1008], Soonda Ram v. Rameshwarlal [(1975) 3
SCC 698 : AIR 1975 SC 479] and Syed Abdul
Khader v. Rami Reddy [(1979) 2 SCC 601 : AIR
1979 SC 553].
37. The appellate court should not ordinarily allow
new evidence to be adduced in order to enable a
party to raise a new point in appeal. Similarly,
where a party on whom the onus of proving
a certain point lies fails to discharge the
onus, he is not entitled to a fresh
opportunity to produce evidence, as the
court can, in such a case, pronounce
judgment against him and does not require
any additional evidence to enable it to
pronounce judgment. (Vide Haji Mohammed
Ishaq v. Mohd. Iqbal and Mohd. Ali and
Co. [(1978) 2 SCC 493 : AIR 1978 SC 798] )
38. Under Order 41 Rule 27 CPC, the appellate
court has the power to allow a document to be
produced and a witness to be examined. But the
requirement of the said court must be limited to
those cases where it found it necessary to obtain
such evidence for enabling it to pronounce
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judgment. This provision does not entitle the
appellate court to let in fresh evidence at the
appellate stage where even without such
evidence it can pronounce judgment in a case. It
does not entitle the appellate court to let in fresh
evidence only for the purpose of pronouncing
judgment in a particular way. In other words,
it is only for removing a lacuna in the
evidence that the appellate court is
empowered to admit additional evidence.
(Vide Lala Pancham [AIR 1965 SC 1008].
39. It is not the business of the appellate court to
supplement the evidence adduced by one party
or the other in the lower court. Hence, in
the absence of satisfactory reasons for the
non-production of the evidence in the trial
court, additional evidence should not be
admitted in appeal as a party guilty of
remissness in the lower court is not entitled
to the indulgence of being allowed to give
further evidence under this Rule. So a party
who had ample opportunity to produce
certain evidence in the lower court but
failed to do so or elected not to do so,
cannot have it admitted in appeal.
(Vide State of U.P. v. Manbodhan Lal
Srivastava [AIR 1957 SC 912] and S.
Rajagopal v. C.M. Armugam [AIR 1969 SC 101])
40. The inadvertence of the party or his inability to
understand the legal issues involved or the
wrong advice of a pleader or the negligence of a
pleader or that the party did not realise the
importance of a document does not constitute a
"substantial cause" within the meaning of this
Rule. The mere fact that certain evidence is
important, is not in itself a sufficient ground for
admitting that evidence in appeal.
41. The words "for any other substantial cause"
must be read with the word "requires" in the
beginning of the sentence, so that it is only
where, for any other substantial cause, the
appellate court requires additional evidence, that
this Rule will apply e.g. when evidence has been
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taken by the lower court so imperfectly that the
appellate court cannot pass a satisfactory
judgment.
42. Whenever the appellate court admits additional
evidence it should record its reasons for doing so
(sub-rule (2)). It is a salutary provision which
operates as a check against a too easy reception
of evidence at a late stage of litigation and the
statement of reasons may inspire confidence and
disarm objection. Another reason of this
requirement is that, where a further appeal lies
from the decision, the record of reasons will be
useful and necessary for the court of further
appeal to see, if the discretion under this Rule
has been properly exercised by the court
below. The omission to record the reasons must,
therefore, be treated as a serious defect. But
this provision is only directory and not
mandatory, if the reception of such evidence can
be justified under the Rule.
43. The reasons need not be recorded in a separate
order provided they are embodied in the
judgment of the appellate court. A mere
reference to the peculiar circumstances of the
case, or mere statement that the evidence is
necessary to pronounce judgment, or that the
additional evidence is required to be admitted in
the interests of justice, or that there is no reason
to reject the prayer for the admission of the
additional evidence, is not enough compliance
with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only
administrative order, but also judicial order must
be supported by reasons, recorded in it. Thus,
while deciding an issue, the court is bound to
give reasons for its conclusion. It is the duty and
obligation on the part of the court to record
reasons while disposing of the case. The
hallmark of order and exercise of judicial power
by a judicial forum is for the forum to disclose its
reasons by itself and giving of reasons has
always been insisted upon as one of the
fundamentals of sound administration of the
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justice delivery system, to make it known that
there had been proper and due application of
mind to the issue before the court and also as an
essential requisite of the principles of natural
justice. The reason is the heartbeat of every
conclusion. It introduces clarity in an order and
without the same, the order becomes lifeless.
Reasons substitute subjectivity with objectivity.
The absence of reasons renders an order
indefensible/unsustainable, particularly when the
order is subject to further challenge before a
higher forum. Recording of reasons is the
principle of natural justice and every judicial
order must be supported by reasons recorded in
writing. It ensures transparency and fairness in
decision-making. The person who is adversely
affected must know why his application has been
rejected. (Vide State of Orissa v. Dhaniram
Luhar [(2004) 5 SCC 568 : (2008) 2 SCC (Cri)
49 : AIR 2004 SC 1794] , State of
Uttaranchal v. Sunil Kumar Singh Negi [(2008)
11 SCC 205 : (2008) 2 SCC (L&S) 1093]
, Victoria Memorial Hall v. Howrah Ganatantrik
Nagrik Samity [(2010) 3 SCC 732 : AIR 2010 SC
1285] and Sant Lal Gupta v. Modern Coop.
Group Housing Society Ltd. [(2010) 13 SCC 336
: (2010) 4 SCC (Civ) 904] )
45. In City Improvement Trust Board v. H.
Narayanaiah [(1976) 4 SCC 9 : AIR 1976 SC
2403] , while dealing with the issue, a three-
Judge Bench of this Court held as under : (SCC
p. 20, para 28)
"28. ... We are of the opinion that the High Court
should have recorded its reasons to show why it
found the admission of such evidence to be
necessary for some substantial reason. And if it
found it necessary to admit it, an opportunity
should have been given to the appellant to rebut
any inference arising from its existence by
leading other evidence."
(emphasis added)
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A similar view has been reiterated by this Court
in Basayya I. Mathad v. Rudrayya S.
Mathad [(2008) 3 SCC 120] .
46. A Constitution Bench of this Court in K.
Venkataramiah [AIR 1963 SC 1526] , while
dealing with the same issue held : (AIR p. 1529,
para 13)
"13. It is very much to be desired that the courts
of appeal should not overlook the provisions of
clause (2) of the Rule and should record their
reasons for admitting additional evidence. ... The
omission to record the reason must therefore be
treated as a serious defect. Even so, we are
unable to persuade ourselves that this provision
is mandatory."
(emphasis added)
In the said case, the Court after examining the
record of the case came to the conclusion that
the appeal was heard for a long time and the
application for taking additional evidence on
record was filed during the final hearing of the
appeal. In such a fact situation, the order
allowing such application did not vitiate for want
of reasons.
47. Where the additional evidence sought to be
adduced removes the cloud of doubt over the
case and the evidence has a direct and
important bearing on the main issue in the suit
and interest of justice clearly renders it
imperative that it may be allowed to be
permitted on record, such application may be
allowed.
48. To sum up on the issue, it may be held that an
application for taking additional evidence on
record at a belated stage cannot be filed as a
matter of right. The court can consider such an
application with circumspection, provided it is
covered under either of the prerequisite
conditions incorporated in the statutory
provisions itself. The discretion is to be exercised
by the court judicially taking into consideration
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the relevance of the document in respect of the
issues involved in the case and the
circumstances under which such an evidence
could not be led in the court below and as to
whether the applicant had prosecuted his case
before the court below diligently and as to
whether such evidence is required to pronounce
the judgment by the appellate court. In case the
court comes to the conclusion that the
application filed comes within the four corners of
the statutory provisions itself, the evidence may
be taken on record, however, the court must
record reasons as on what basis such an
application has been allowed. However, the
application should not be moved at a belated
stage."
31. First document produced namely, certificate dated
13.08.2009 issued by Executive Officer, Taluk Panchayat,
Hoskote, is to effect that allotment records indicate that
allottee of site no.234 of Kumbalahalli was Krishnamurthi s/o
Shamanna and that it was not allotted to anyone else.
Confirmation Certificate dated 20.07.2009 issued by same
authority is to effect that after striking out site no.168 against
allottee - Krishnamurthi, site no.234 was mentioned, signature
of allottee was taken and site was allotted. While, RTI
application and relevant portion of list of allottees appears to
be in tune with above certificates. Though, their relevancy
insofar as subject matter of suit cannot be ruled out in
entirety, as noted by both Courts, both plaintiff and defendant
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are staking claim over suit property under respective
hakkupatras namely, Ex.P1 and Ex.D.2, which were issued by
same authority to two different parties in respect of same site.
32. Additional evidence sought to be led does not
further plaintiff's cause in this regard. Moreover, documents
are post-lite. It is also seen defendant has elaborately cross-
examined PW.1 on 13.08.2003, with reference to records that
would corroborate his claim. Suit was disposed of on
14.06.2005 i.e. nearly one and half years later. Despite same,
plaintiff did not make any efforts for securing records even
during pendency of first appeal. In application filed, it is merely
stated that there was no occasion for plaintiff to enquire about
same during pendency of proceedings and only after disposal
of appeal, he filed application. It is settled principle of law that
application for additional evidence filed by party who was
negligent cannot be considered. Since, negligence is apparent
in instant case, application for additional evidence is rejected.
33. Though, it is contended that first appellate Court
erred in deciding legality of rival claims under respective
hakkupatras, de horse other material available on record
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namely, contents of Exs.D3 to D26 which were in respect of
site no.335, it is seen that umpteen suggestions were made to
DW.1 that he was in possession of site no.335, which were all
consistently denied.
34. Admittedly, neither plaintiff challenged or sought
declaration against Ex.D2 nor defendant about Ex.P1 and
plaintiff pursued his suit for bare injunction. Though, as per
ratio laid down in Anathula Sudhakar v. P. Buchi Reddy,
reported in (2008) 4 SCC 594, there would be prohibition
against Courts, deciding title in suit for bare injunction, first
appellate Court herein proceeded to evaluate probabilities of
claims based on rival documents. Since, Ex.D2 issued by same
authority as that of Ex.P1, but was prior in time than Ex.P1,
proceeded to apply principle of law that vendor, who had
divested right in respect of particular property, cannot convey
lawful title subsequently, denied plaintiff's claim under Ex.P1.
35. If there was any dispute about identity of site
allotted to plaintiff and defendant, proper course for plaintiff
would be to have filed suit for declaration of title and suit for
bare injunction would not be tenable.
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36. In view of above discussion, impugned judgment
and decree passed by first appellate Court would not suffer
from perversity. Substantial questions of law framed are
answered accordingly.
37. Consequently, Appeal is dismissed.
Sd/-
(RAVI V. HOSMANI)
JUDGE
psg/AV/GRD
