Plaintiffs sought declaration of title and injunction over 4 acres in Sy. No.27 based on a 1947 saguvali chit lacking boundary details. Both courts below concurrently rejected their claim. The High Court held the additional evidence application was an attempt to fill lacunae and the belated amendment was barred by limitation; appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2447 OF 2011 (DEC/INJ)
BETWEEN :
1. SIDDAIAH
SINCE DEAD BY HIS LRS
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
ALL ARE R/AT TIGALARA PALYA, MANGALA HAMLET YEDIYUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT.
….APPELLANTS
(BY SRI. K N RAKSHIT, ADVOCATE)
AND:
4(B) SHIVARAJU S/O LATE NAGA AGED ABOUT 18 YEARS
4(C) DARSHAN S/O LATE NAGA AGED ABOUT 16 YEARS REP. BY NATURAL GUARDIAN MOTHER LAKSHMMA
ALL ARE R/AT THIGALARAPALYA, MANGALA HAMLET YEDIYUR HOBLI, KUNIGAL TALUK TUMAKURU DISTRICT.
RESPONDENTS No.1 TO 4 ARE SONS OF LATE SIDDAIAH @ SIDDA @ BUDLAIAH R/AT THIGALARAPALYA, MANGALA HAMLET HOBLI YEDIYUR, KUNIGAL TALUK TUMAKURU DISTRICT.
…RESPONDENTS
(BY SRI. M K BHASKARAIAH, ADVOCATE FOR R1, R3 & R4 R2 IS SERVED
V/O DATED 28.11.2022 NOTICE IS H/S IN R/O R5 R4(A) & R4(B) ARE SERVED R4(C) IS MINOR REP. BY R4(A) V/O DATED 09.07.2024, R6 CALLED OUT AND ABSENT)
THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 17.9.2011 PASSED IN R.A.NO.56/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., KUNIGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.8.2010 PASSED IN OS.NO.8/1986 ON THE FILE OF THE PRL. CIVIL KJUDGE & JMFC., KUNIGAL.
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
This regular second appeal is filed by the appellants challenging the judgment and decree dated 17.09.2011, passed in R.A.No.56/2010 by the learned Senior Civil Judge & JMFC, Kunigal, and the judgment and decree dated 28.08.2010, passed in O.S.No.8/1986 by the learned Principal Civil Judge & JMFC, Kunigal.
their ranking before the trial Court. The appellants are the plaintiffs and respondents are the defendants.
The plaintiffs filed a suit for declaration of title and permanent injunction against the defendants, restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiffs that, plaintiffs are the siblings and sons of late Thimmiah. The said Thimmaiah acquired the schedule property to the extent of 4 acres in Sy. No.27 of Mangala village and a grant certificate was issued on 05.08.1947. The saguvali chit was issued and he was put in possession of the same. From the date of the grant, Thimmaiah was in possession of the suit schedule property. After his demise, plaintiffs continued in possession and enjoyment of the suit schedule property as the absolute owners and they are paying the land revenue. It is contended that the defendant’s father was also granted 4 acres of land in Sy. No.27 which was acquired by the Government for construction of Mangala Dam under notification dated
19.05.1966 and their father received compensation amount. The defendants had lost all their rights, and interest in respect of 4 acres in Sy. No.27. The defendants have no right, title, or interest over the suit schedule property. The defendants denied the title of the plaintiffs over the suit schedule property and tried to interfere with the possession. Hence, a cause of action arose for the plaintiffs to file a suit for declaration of title and permanent injunction.
title, or possession over the suit schedule property. The plaintiffs have filed a suit against the defendants, just to grab the property which belongs to the defendants and the plaintiffs are not in possession and enjoyment of the suit schedule property. It is stated that the defendant was in possession of the suit schedule property till his death.
After his death, legal representatives of the deceased defendant continued in possession and enjoyment of the suit schedule property. Hence, prayed to dismiss the suit.
additional written statement praying to dismiss the suit.
examined himself as PW-1 and marked 28 documents as Exs.P1 to P28. In rebuttal, the defendant examined himself as DW-1 and examined one witness as DW-2, and marked 23 documents as Exs.D1 to D23. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1, 2, and 4 in the negative; issue No.3 in the affirmative; and issue No.5 as per the final order. Consequently, the trial Court dismissed the suit of the plaintiffs with cost vide judgment dated 28.08.2010.
parties, has framed the following points for consideration:
learned counsel for the parties and re-assessing the oral and documentary evidence, answered point Nos.1 to 4 in the negative; and point No.5 as per the final order.
NC: 2024:KHC:35856 RSA No. 2447 of 2011
Consequently dismissed the appeal with costs and also I.A.No.2 filed by the plaintiffs was dismissed and consequently confirmed the judgment and decree passed by the trial Court.
the suit schedule property was granted in favor of Thimmaiah in the year 1947 and grant certificate was issued in favor of Thimmaiah and a saguvali chit was issued and possession was delivered in favor of Thimmaiah. Since the date of the grant, Thimmaiah has been in possession of the suit schedule property. After his death, the plaintiffs succeeded in the suit schedule property and continued in possession of the suit schedule property. She submits that plaintiffs have produced Form No.1 and RTC extract which discloses that plaintiffs are the
owners and in possession of the suit schedule property. The courts below have committed an error in passing the impugned judgments and she also submits that plaintiffs have filed the application I.A.No.1/2024 for amendment to the plaint and claiming the relief of possession. Hence, she prays to allow I.A.No.1/2024 and consequently to allow the appeal by setting aside impugned judgments.
"Whether dismissal of the application filed under Order XLI Rule 27 CPC materially affected the principles of natural justice?"
On the perusal of the records, it discloses that the plaintiffs are claiming ownership over the suit schedule property based on revenue records. Ex.P1 is the saguvali
NC: 2024:KHC:35856 RSA No. 2447 of 2011
chit under which the plaintiff's father had acquired the title to the extent of 4 acres in Sy. No.27. Further from the perusal of Ex.P1, no boundaries are mentioned in Ex.P1 and the plaintiffs also placed reliance on Ex.P9 i.e., Tippani. Even in Ex.P9, boundaries of the suit properties are not mentioned. Though the plaintiffs have contended that saguvali chit was issued in favor of the father of the plaintiffs except producing Exs.P1 and P9, the plaintiffs have not produced any documents to show about the existence of property. The plaintiffs have produced Ex.P9 which came into existence during the pendency of the suit. The plaintiffs have not produced any records before filing the suit regarding the possession and boundaries of the suit schedule property. In a suit for declaration, where the subject matter of the suit is immovable property, the plaint shall contain a description of the property, sufficient to identify the same and in case such a property can be identified through the boundaries or the numbers in the record of statement or survey, the plaint shall specify such boundaries or numbers.
NC: 2024:KHC:35856 RSA No. 2447 of 2011
filing of an appeal. The first Appellate Court recorded the
finding in para Nos.13 and 14 which reads as under:
13. Further no such submission regarding the non-availability of the document appears to have been made before the trial Court. Nor any application has been filed before the trial Court seeking the production of the document from the revenue authorities. Such being the case the claim of the appellant that the revenue authorities had not issued this document to him appears to have been created solely to prolong the suit. The application filed by the appellant/plaintiff is not covered under the provisions of order 41 Rule 27 of CPC.
14. The documents produced by the appellant along with I.A.No.2 are neither discoveries nor documents that were not within the reach of the appellant. On the other hand, this appellant has filed I.A.No.2 to fill up the lacuna in his case. This court in the decision reported in ILR 2009 KAR 3897 between M.C.Suresh Vs. B.Srinivas Naik and others has held that:
19. "Thus an appellate Court would not generally travel outside the record of the lower Court, or allow additional evidence. No doubt, it has the discretion to allow the production of additional evidence, but that discretion is circumscribed by the
NC: 2024:KHC:35856 RSA No. 2447 of 2011
limitations specified under Order 41 Rule 27 of the CPC. Additional evidence cannot be allowed to be produced, either for shaking the credit of a witness or for allowing a litigant to patch up the weak parts of his case."
The principles laid down in the above ruling are aptly applicable to the facts and circumstances of the present case. As the application filed by the appellant does not fall within the scope of Order 41 Rule 27 of CPC, there are no grounds to permit the appellant to adduce further evidence by producing a series of old revenue records. Accordingly, point No.1 is answered in the negative.
N. KAMALAM (DEAD) & ANR. VS. AYYASWAMY & ANR., REPORTED IN (2001) 7 SCC 503 , wherein Hon'ble Apex Court held that "provision of Rule 27 of Order 41 of CPC, are not designed to help the parties to weaken the points and make up for omission earlier made, the jurisdiction of the appellate Court is restricted to permit such additional
evidence as it would enable it to pronounce judgment and further held that the Court must always be cautious in allowing application seeking to adduce evidence particularly in the form of oral evidence after long interval between the decree and application."
Karnataka allowed the appeal and remanded the matter to the trial Court for fresh consideration. It is contended that, during the pendency of the suit, the defendants had illegally and without any basis, trespassed into the suit schedule property and had put up the temporary hut, thereby dispossessed the plaintiffs to an extent of 16 guntas which is a portion of the suit schedule property during the pendency of the suit. The defendants have no right, title, or interest in the suit schedule property. The proposed amendment sought is necessary for adjudication of the rights of the parties and the proposed amendment
does not change the nature of the suit or the cause of action and prayed to allow the application.
NC: 2024:KHC:35856 RSA No. 2447 of 2011
dispossessed the plaintiffs during the pendency of the suit. The first Appellate Court dismissed the appeal vide judgment dated 17.09.2011. The plaintiffs preferred this regular second appeal on 16.11.2011, even in the appeal memo filed before this court, the plaintiffs had nowhere whispered about the alleged dispossession by the defendants. The plaintiffs filed an application for amendment of the plaint on 27.08.2024. The plaintiffs have not shown sufficient cause for the proposed relief during the pendency of the suit or appeal before the first Appellate Court. The proposed amendment sought by the plaintiffs is barred by limitation. Hence, any relief sought by way of the proposed amendment is barred by limitation. The said application is liable to be rejected. In view of the above discussion, I do not find any grounds to entertain I.A.No.1/2024. Accordingly, I.A.No.1/2024 is dismissed.
ORDER
The appeal is dismissed.
Consequently, the judgments and decrees passed by the courts below are hereby confirmed.
I.A.No.1/2024 is dismissed.
In view of the dismissal of the appeal, pending I.A.s,
if any, do not survive for consideration and are accordingly disposed of.
Sd/(ASHOK S. KINAGI) JUDGE
sks
2 issues framed by the court
Whether dismissal of the application under Order XLI Rule 27 CPC for additional evidence materially affected the principles of natural justice?
Whether the plaintiffs proved title and possession over the suit schedule property granted to their father in Sy. No.27?
Colour shows how this judgement treated each authority
M.C.Suresh Vs. B.Srinivas Naik and othersRelied on¶18
ILR 2009 KAR 3897 · Who else cites this
N. Kamalam (Dead) & Anr. Vs. Ayyaswamy & Anr.Relied on¶19
(2001) 7 SCC 503 · Who else cites this
2 provisions across 1 enactments
Siddaiah (since dead by his LRs)
Guruvaiah
M T Ramanna
P S Siddaiah
Gangaiah
Ramanna
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
