Shri. Prasad Vasant Kalal Vs Shri. Basappa Mahadevappa Betadur

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1 - NC: 2025:KHC-D:7318 RFA No. 100433 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF JUNE, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR FIRST APPEAL NO. 100433 OF 2018 (DEC/POS)

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BETWEEN:

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PRASAD S/O VASANT KALAL, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: KUNDGOL-581 113, DIST: DHARWAD.

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… APPELLANT

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(BY SRI. G.N. RASALKAR, ADVOCATE)

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AND:

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BASAPPA MAHADEVAPPA BETADUR, SINCE DECEASED BY HIS LR’S.,

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1A. SMT. SAROJA W/O BASAPPA BETADUR, AGE ABOUT 55 YEARS, OCC: HOUSEHOLD, R/O: THANEGERI ONI, KUNDGOL, DIST: DHARWAD.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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1B. SMT. JAYALAXMI W/O PRAKASH AJJAMMANAVAR, AGE ABOUT 37 YEARS, OCC: HOUSEHOLD, R/O: KATUR, TQ: MUNDAGOD, DIST: KARWAR.

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1C. CHANDRASHEKHAR S/O BASAPPA BETADUR, AGE ABOUT 29 YEARS, OCC: AGRICULTURE, R/O: THANEGERI ONI, KUNDGOL, DIST: DHARWAD.

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1D. SMT. KEERTANA W/O PRAVEEN NAGANAGOUDRA, AGE ABOUT 28 YEARS, OCC: HOUSEHOLD, R/O: KOGILE, TQ: HADAGALI, DIS: BALLARI.

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1E. KIRAN S/O BASAPPA BETADUR, AGE ABOUT 25 YEARS, OCC: AGRICULTURE, R/O: THANEGERI ONI, KUNDGOL, DIST: DHARWAD.

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SMT. ANASUYA W/O. SHANKARAGOUDA KALINGANAVAR, AGE: 54 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: SHIRUR-581 113, TQ: KUNDGOL, DIST: DHARWAD.

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SMT. KASHAVVA W/O. SHIVANAGOUDA SHISHUNAL, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: SAIKERUR-581 118, TALUKA: SAVANUR, DIST: HAVERI.

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SMT. SAVITRI W/O. RAVINDRA HEGGERI, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: NEAR WELL SAPTAPUR (BHAVI), DHARWAD-580 001.

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BHARAMAPPA MAHADEVAPPA BETADUR, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: NEHRU NAGAR, KUNDGOL-581 113, DIST: DHARWAD.

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SHRI SUBHAS S/O. SIDDAPPA SADAR, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: NEHRU NAGAR, KUNDGOL-581 113, DIST: DHARWAD.

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… RESPONDENTS

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(BY SRI. VISHWANATH S. BICHAGATTI, ADVOCATE FOR R1(A-E) AND R5;

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R2, R3, R4 AND R6-SERVED AND UNREPRESENTED)

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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.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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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.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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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

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1 ‘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.

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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

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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.

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On the basis of the pleadings of the parties, the trial Court framed following issues:

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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?

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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?

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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?

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v) What order or decree?

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The plaintiff examined himself as PW1 and

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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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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 grandfather 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.

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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.

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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.

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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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