Karnataka High Court
Mavalakhan Husenkhan Mulla vs Superintendent Engineer on 8 September, 2025
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RSA No. 100299 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 8TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO. 100299 OF 2023
(DEC/INJ)
BETWEEN:
1. MAVALAKHAN HUSENKHAN MULLA,
AGE. 72 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
2. ISMAYILKHAN HUSENKHAN MULLA,
AGE. 63 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
3. MAHABOOBALIKHAN S/O. HUSENKHAN MULLA,
AGE. 62 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
Digitally signed by
CHANABASAPPA K
4. ADAMKHAN S/O. HUSENKHAN MULLA,
KALLUR
Location: HIGH COURT AGE. 57 YEARS, OCC. AGRICULTURE,
OF KARNATAKA
DHARWAD BENCH
Date: 2025.09.11
R/O. KADASHETTIHALLI,
16:12:32 +0530
HANGAL TQ. AND DIST. HAVERI 581199.
5. SMT. FATIMABI W/O. MAVALA ALI HUDED
AGED. 65 YEARS, OCC. HOUSEHOLD WORK,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
6. MAVALALI S/O. BABUKHAN MULLA,
AGE. 69 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
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RSA No. 100299 of 2023
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7. SADHIQ S/O. BABUKHAN MULLA,
AGE. 58 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
8. AVALEKHAN S/O. UMMARKHAN MULLA,
AGE. 54 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
9. MAQBUL S/O. UMMARKHAN MULLA,
AGE. 48 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
10. MAVALALI S/O. UMMARKHAN MULLA,
AGE. 40 YEARS, OCC. AGRICULTURE,
R/O. KADASHETTIHALLI,
HANGAL TQ. AND DIST. HAVERI 581199.
...APPELLANTS
(BY SRI. J.S. SHETTY, ADVOCATE)
AND:
1. SUPERINTENDENT ENGINEER
PUBLIC WORKS,
HARBOR AND INLAND TRANSPORTATION
DEPARTMENT,
DHARWAD CIRCLE, VISHVESHWARAYYA LANE,
DHARWAD 580001.
2. EXECUTIVE ENGINEER
PUBLIC WORK,
HARBOR AND INLAND TRANSPORTATION
DEPARTMENT,
HAVERI DIVISION, HAVERI 581110.
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3. ASSISTANT EXECUTIVE ENGINEER PUBLIC WORK
HARBOR AND INLAND TRANSPORTATION
DEPARTMENT,
HANGAL SUB DIVISION, HANAGAL,
HAVERI DISTRICT 581104.
4. THE SECTION OFFICER JUNIOR ENGINEER
PUBLIC WORK DEPARTMENT,
HANGAL 581104.
5. GOVERNMENT OF KARNATAKA
BY DEPUTY COMMISSIONER,
HAVERI 581110.
...RESPONDENTS
(BY SRI. M. KESHAVAREDDY, AAG AND SRI. PRAVEENA
DEVAREDDIYAVARA, HCGP FOR R1 TO R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.12.2022
PASSED IN R.A.NO.45/2022 ON THE FILE OF THE FAMILY
COURT, HAVERI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 10.04.2019, PASSED IN
O.S. NO.56/2018 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND J.M.F.C, HANGAL, DISMISSING THE SUIT
FILED FOR DECELERATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER :
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
Appellants have preferred this appeal against the Judgment
and Decree dated 10.04.2019 passed by the Additional Senior
Civil Judge and JMFC, Hangal (for short, 'the trial Court') in
O.S.No.56/2018 (Old No.363/2014), which was confirmed by the
Judgment and Decree dated 07.12.2022 passed in
R.A.No.45/2022 by the Family Court, Haveri (for short, 'the first
appellate Court').
2. Parties are referred to as per their rank before the trial
Court.
3. The brief facts leading to filing of this appeal are that
appellants have filed the suit for declaration in respect of suit
properties and consequential injunction restraining defendants
from forming any road or widening of the road and not to
interfere in their peaceful possession and enjoyment of the suit
properties i.e., land bearing Sy.No.8/2 measuring 6 acre 22
gunta and Sy.No.6/1 measuring 3 acre 12 gunta, Sy.No.6/2,
measuring 4 acre 30 gunta belong to the appellants herein, who
are enjoying the said properties as the tenants in common. They
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have also got surveyed the said properties by filing the
necessary application before the survey authorities and survey
authorities by identifying the properties of the appellants, fixed
the boundaries and prepared the sketch. The said properties are
the absolute properties of the appellants and the same have not
at all been acquired by the Government at any point of time.
However, respondent authorities/defendants without any manner
of right and without initiating any acquisition proceedings have
tried to form new road in the guise of the straightening of the
road, even though there is no such road and the lands belonging
to the appellants having not acquired in accordance with the
provisions of the Land Acquisition Act, have tried to form the
road in the said properties that too in the middle of the lands and
thereby they have caused loss to the appellants. The said action
of the respondent/defendants authorities are wholly illegal and
without any manner of right and as such, the appellants having
no other alternative and efficacious remedy, have filed the suit in
O.S.No.363/2014 before the Additional Senior Civil Judge at
Hanagal which was later renumbered as O.S.No.56/2018.
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4. In the said suit, on the notice being served to the
defendants, they have tendered their appearance and the 3rd
defendant filed his written statement which was adopted by
other defendants. In the written statement filed by the 3rd
defendant, he has denied all the plaint averments and contended
that the road situated on the southern side of the
appellant/plaintiffs' properties is in existence from several years
which was formed about 40 years back and is being used by the
public. It is further contended that the suit filed by the plaintiffs
for declaration and injunction without seeking for consequential
relief of possession, is not maintainable in law. As per the
Government, project No.5054-03-337-0-18, the Hosa Aladakatti
-Honkana Road, in the Hanagal Taluk, the road in question was
in a damaged condition and they are intending to develop the
road and they have contended that the survey sketch prepared
by the survey authorities are not binding on them and the
plaintiffs have managed to get the survey report only to suit
their convenience and on these grounds they sought for
dismissal of the suit.
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5. Based on the pleadings, the trial Court has framed eight
issues. To substantiate the case of plaintiffs, the 2nd plaintiff
examined himself as P.W.1, 16 documents were marked as
Ex.P.1 to P.16. On closure of plaintiffs' side evidence, defendant
No.3 examined himself as D.W.1 and seven documents were
marked as Ex.D.1 to Ex.D.7.
6. Having heard the arguments on both sides, the trial
Court has dismissed the suit with costs. Being aggrieved by the
Judgment and Decree passed by the trial Court, plaintiffs have
preferred the appeal in R.A.No.45/2022, which came to be
dismissed by the first appellate Court. Being aggrieved by the
Judgment and Decree passed by both Courts, the plaintiffs have
preferred this regular second appeal.
7. This Court has formulated the following substantial
questions of law vide order dated 21.01.2025;
"1. Whether the first appellate Court has committed
an error in passing the impugned judgment and
decree in the light of the judgment of the Hon'ble
Supreme Court in the case of Santosh Hazari
Court vs. Purushottam Tiwari (Deceased) By LRs.
reported in (2001) 3 SCC 179?
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ii. What order?"
8. Learned counsel for appellants would submit that the
Judgment and Decree passed by Courts below are wholly illegal,
arbitrary, capricious and not sustainable in the facts and
circumstances of the case.
9. Learned counsel for appellants would submit that the
first appellate Court has committed a serious error in rejecting
the application filed by appellants herein under Order XLI Rule 27
read with Section 151 of the CPC for production of additional
documents. Notwithstanding the fact that said documents sought
to be produced by appellants is very much necessary for
complete and effective disposal of the suit and also throws light
on the real point of controversy between the parties. Apart from
production of documents, appellants have contended that the
formation of the road by the respondents was after filing and
during pendency of the suit, as such alleged formation of the
road by respondents in no way affects the rights of the
appellants seeking for declaration of their right, title and
possession of the suit properties as on the date of filing of the
suit and as such, the dismissal of the suit by the trial Court on
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the ground that plaintiffs have not sought for necessary
consequential relief of possession of the properties and as such
the suit for declaration and injunction on the face of the record,
is not sustainable. The documents sought to be produced by
appellants disclosed the fact of the subsequent development of
filing of the suit and as such has got the material bearing on the
point of controversy between the parties and these documents
are germane and ought to have been allowed by the first
appellate court.
10. Learned counsel for appellants further submits that the
first appellate Court has also failed to take note of the fact that it
is for the defendants to prove as to existence of the road in the
properties belonging to the appellants and as such the burden is
on them to prove said aspect of the case. When the documents
already produced by the plaintiffs sufficiently disclose the fact
that, no portion of the land has been used as a road and there
was no acquisition of the land belonging to the appellants, the
burden is on the defendants to prove said aspect is wholly illegal.
The village map sought to be produced before the first appellate
Court by way of additional evidence, clearly shows that the road
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which was in existence is not passing through the lands of the
plaintiffs and the said material document has been willfully
suppressed by the defendants and the said document falsifies
the case putforth by the defendants and as such ought to have
been allowed to be produced by the plaintiffs before the first
appellate Court. In dismissing the said application on the ground
that the plaintiffs have not shown due diligence before the trial
Court to produce the document and as such plaintiffs should not
be allowed to be produced before the first appellate Court, on
the face of record, is illegal. The said order passed by the first
appellate Court without considering the provisions of Order XLI
Rule 27 read with Section 151 of the CPC in its proper
perspective, is wholly illegal and not sustainable. The appellants
have placed sufficient cause to allow the application filed under
Order- XLI Rule 27 read with Section 151 of the CPC. Further, it
is submitted that both Courts have failed to take note of the fact
that the suit properties in question are in the absolute ownership
of the plaintiffs and the plaintiffs are entitled to use the same in
the manner known to law and they cannot be deprived of their
rights of the properties, unless in accordance with law. Though
the property rights has no longer been considered as
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fundamental right under Article 19 of the Constitution of India,
the same is continued to be a constitutional right under Article
300A of the Constitution of India, which provides that 'no person
shall be deprived of his property save by authority of law'.
Further he would submit that there is presumptive value under
Section 133 of the Karnataka Land Revenue Act regarding
entries of land revenue records.
11. Learned counsel for appellants would further submit
that respondents have also filed memo before this Court to
produce additional documents and respondents themselves have
stated that respondents are desirous of producing of additional
documents, which are very essential for just disposal of the suit.
On all these grounds sought for setting aside the Judgment and
Decree passed by both Courts and remand the matter to the trial
Court by providing opportunity to appellants to produce the
documents along with application under Order XLI Rule 27 read
with Section 151 of the CPC.
12. To substantiate his arguments, learned counsel for
appellants has relied on decisions of the Hon'ble Supreme Court
in the case of Santosh Hazari vs. Purushottam Tiwari
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(deceased) by LRS, reported in (2001) 3 SCC 179 and in the
case of Bernard Francis Joseph Vaz and Others vs.
Government of Karnataka and Others, reported in 2025 SCC
OnLine SC 20.
13. As against this, learned AAG Sri M.Keshavareddy would
submit that respondents have produced documents which are
required for adjudicate the matter in dispute. If this Court
remands the case, then opportunity has to be provided to the
respondents to adduce their additional evidence.
14. I have perused the materials placed before this Court.
Upon perusal of the impugned Judgment passed by the first
appellate Court, at paragraph No.6 of the Judgment, it is
observed as under :
"6. Point No.1:
a. This court being the First appellate court
is required to re appreciate facts and evidence
on record and if it is done, it will necessarily
help this court in coming to the conclusion as to
whether the Trial Court has committed any error
in passing the impugned Judgment and decree
and it requires this court to interfere with the
impugned judgment and decree.
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b. On perusal of the prayer in the appeal the
appellants have sought for remand of the
matter. They have sought for setting aside of
the impugned judgment and decree only for the
purpose of remand of the matter.
c. in the case on hand, whether the matter is
to be remanded or not is to be decided.
d. The plaintiffs have sought for remand for
the purpose of examining more witnesses, for
producing documents and for appointment of
Commission.
e. On perusal of the materials on record, the
appellants have filed an application under Order
XLI Rule 27 R/w. Sec. 151 of C. P. C., for
production of additional documents. On perusal
of the said provision, it gets clear that
production of additional evidence is permissible
if the Trial Court had refused to admit the
evidence sought to be produced or the party
seeking the production of additional evidence
could not with due diligence produce the
evidence at the time when the decree appealed
against was passed. On perusal of the affidavit,
it gets clear that the documents sought to be
produced came into existence subsequent to the
passing of the impugned Judgment and decree.
The said provision does not provide for
production of documents which come into
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existence subsequent to passing of the
impugned judgment and decree. The court has
to see the condition of the property as on the
date of suit and not subsequent to the suit. The
parties have to the condition of the properties as
on the date of suit by producing necessary oral
or documentary evidence. This implies that the
evidence should be prior to the suit. Hence, the
documents sought to be produced, cannot be
permitted to be produced. Hence, I. A. No. III
filed under Order XLI Rule 27 R/w. Sec. 151 of
C. P. C. requires to be dismissed.
f. Order XLI Rule 23 deals with the
circumstances under which matter can
remanded. On perusal of the said provision it
gets clear that the appellate court can
remand the suit if the suit is disposed on a
preliminary point and decree is reversed in
appeal. In the case on hand, the suit was not
disposed on a preliminary point. Hence, Order
XLI Rule 23 of C. P. C., does not provide for
remand of this suit.
g. For the purpose of appointing the
Commission or for the purpose of leading further
evidence of witnesses, the suit cannot be
remanded.
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h. Hence, the prayer sought for remand of
the suit, cannot be granted.
i. The plaintiffs have not sought for setting
aside of the impugned Judgment and decree and
to decree the suit by allowing the appeal.
Hence, this court can not find out whether the
Trial Court has committed error of fact or law in
dismissing the suit when the main prayer of the
plaintiffs for remand of the matter, cannot be
granted.
j. Hence, I am of the opinion that the
plaintiffs have failed to make out ground for
remand of the matter to the Trial Court for fresh
trial.
k. Hence, I answer the above point accordingly."
15. A perusal of the observations made by first appellate
Court, makes it crystal clear that the first appellate Court has not
re-appreciated the evidence on record in accordance with law. The
first appellate Court has dismissed the regular appeal only on the
ground that there are no grounds to allow the application filed
under Order XLI Rule 27 read with Section 151 of the CPC, which
is not correct.
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16. A careful examination of the entire materials on record
and also the averments made in the affidavit which is annexed to
the application filed under Order- XLI Rule 27 read with Section
151 of the CPC, I am of the considered opinion that the proposed
additional evidence are very much required for adjudication of the
matter in dispute. Additionally, the respondents themselves have
filed a memo along with additional documents contending that the
proposed documents are also required for adjudication of the
matter in dispute. Accordingly, it is held that the first appellate
Court has committed error in passing the impugned Judgment and
Decree in the light of the decision of the Hon'ble Supreme Court in
Santosh Hazari supra. Accordingly, first substantial question of
law is answered in the 'affirmative'.
17. Since both parties have produced additional documents,
opportunity has to be provided to both parties to adduce their
evidence. Accordingly, I proceed to pass the following :
ORDER
(i) Appeal is allowed.
(ii) The Judgment and Decree passed on 10.04.2019 by
the Additional Senior Civil Judge and JMFC, Hangal
in O.S.No.56/2018 (Old No.363/2014), which is
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confirmed by the Family Court, Haveri vide its
Judgment and Decree dated 07.12.2022 passed in
R.A.no.45/2022 is set aside.
(iii) The application under Order XLI Rule 27 read with
Section 151 of the CPC filed before the Family
Court, Haveri in R.A.no.45/2022 is allowed. The
memo for production of additional documents filed
on behalf of respondents is accepted.
(iv) The case is remanded to the trial Court with a
direction to provide opportunity to both parties to
adduce their additional evidence and dispose of the
matter in accordance with law.
(v) The registry is directed to send copies of documents
annexed with application and also documents
produced by the respondents along with copy of this
order for taking necessary action.
(vi) It is made clear that both parties are at liberty to
produce additional documents/additional evidence,
if any, before the trial Court.
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(vii) Considering the facts and circumstances of the
case, the status quo order passed by this Court
dated 21.01.2025 shall be continued, till the
disposal of the case.
(viii) Both parties are directed to appear before the trial
Court without seeking any further notice from the
trial Court on 09.10.2025.
(ix) The trial Court is requested to dispose of the matter
expeditiously.
Sd/-
(G BASAVARAJA)
JUDGE
CKK
