Shri. Balu S/O Appa Waghe Vs Shri. Madhukar S/O Vasant Mane

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NC: 2026:KHC-D:1487 RSA No. 100294 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 03^RD DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO.100294 OF 2023 (INJ)

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BETWEEN:

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SHRI BALU S/O. APPA WAGHE, AGE: 59 YEARS, OCC: AGRICULTURE, R/O. WAGHE GALLI, PATTANKUDI, TAL: CHIKODI, DIST. BELAGAVI-591238.

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SOU. INDUBAI W/O. BALU WAGHE, AGE: 51 YEARS, OCC: AGRICULTURE, R/O. WAGHE GALLI, PATTANKUDI, TAL: CHIKODI, DIST. BELAGAVI-591238.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench

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(BY SRI DINESH M. KULKARNI, ADVOCATE)

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AND:

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…APPELLANTS

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SHRI MADHUKAR S/O. VASANT MANE, AGE: 57 YEARS, OCC: AGRICULTURE, R/O. WAGHE GALLI, PATTANKUDI, TAL: CHIKODI, DIST. BELAGAVI-591238.

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SHRI RAJENDRA S/O. DINAKAR MANE,

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NC: 2026:KHC-D:1487 RSA No. 100294 of 2023

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HC-KAR

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AGE: 58 YEARS, OCC: AGRICULTURE, R/O. WAGHE GALLI, PATTANKUDI, TAL: CHIKODI, DIST. BELAGAVI-591238.

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SHRI KUMAR S/O. DINAKAR MANE, AGE: 56 YEARS, OCC: MESON, R/O. WAGHE GALLI, PATTANKUDI, TAL: CHIKODI, DIST. BELAGAVI-591238.

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SHRI BAHAUSAHEB S/O. DINAKAR MANE, AGE: 54 YEARS, OCC: SERVICE, R/O. WAGHE GALLI, PATTANKUDI, TAL: CHIKODI, DIST. BELAGAVI-591238.

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…RESPONDENTS

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(BY SRI SHIVARAJ P. MUDHOL, ADV. FOR R1 TO R4)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.27/2019 DATED 29.06.2022, PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, NIPPANI, AND THE JUDGMENT AND DECREE IN O.S.NO.294/2016 DATED 19.10.2019 PASSED BY THE CIVIL JUDGE AND JMFC, NIPPANI, AND TO DECREE THE SUIT AS PRAYED FOR AND ETC.

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

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NC: 2026:KHC-D:1487 RSA No. 100294 of 2023

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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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The regular second appeal is filed by the plaintiffs calling in question the judgment and decree dated 29.06.2022 passed by the Court of Senior Civil Judge and JMFC, Nippani, in R.A.No.27/2019, which confirmed the judgment and decree dated 19.10.2019 passed by the Court of Civil Judge and JMFC, Nippani, in O.S.No.294/2016, thereby, the suit filed by the plaintiffs for permanent injunction against defendants is dismissed.

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Rank of the parties is referred to as per their rankings before the trial court.

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The appellants/plaintiffs have filed the suit for permanent injunction contending that plaintiffs are in possession over the suit property, but the trial court has given finding that plaintiffs have failed to prove that they are in possession of the suit property. Thus, dismissed the suit for permanent injunction.

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NC: 2026:KHC-D:1487 RSA No. 100294 of 2023

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HC-KAR

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Being aggrieved by this, the plaintiffs have preferred regular appeal before the First Appellate Court and learned counsel for the appellants/plaintiffs submitted that before the First Appellate Court the appellants/plaintiffs have filed an application under Order XLI Rule 27 of CPC for production of additional evidence showing that plaintiffs are in possession of the suit property. It is submitted that First Appellate Court without considering the application for additional evidence has dismissed the appeal.

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Learned counsel for the appellants/plaintiffs submitted that First Appellate Court without considering the application for additional evidence filed in R.A.No.27/2019 has proceeded to dismiss the appeal. They submit that it is contrary to the principle of law laid down by the Hon’ble Supreme Court. Hence, prays to remand the case to the First Appellate Court.

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5 - NC: 2026:KHC-D:1487 RSA No. 100294 of 2023

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HC-KAR

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Learned counsel for the respondents/defendants

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justified the judgment and decree passed by the Courts below that the plaintiffs have failed to prove the possession over the suit property. Hence, prays to dismiss the appeal.

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Upon considering the submissions made by both the parties, the following Substantial Question of Law would arise for consideration:

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(i) Whether the First Appellate Court is justified and correct in dismissing the appeal without considering the application filed by the plaintiffs for production of additional evidence under XLI Rule 27 CPC on merits?

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The suit filed by the plaintiffs is dismissed by the trial court. Against which, the plaintiffs have preferred a regular appeal before the First Appellate Court and the plaintiffs have also filed an application under Order XLI Rule 27 of CPC. Upon considering the judgment and decree passed in R.A.No.27/2019 there is no whisper that application filed under Order XLI Rule 27 of CPC is

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HC-KAR

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considered and passed necessary orders on the said application. Upon considering the points for consideration in the order of the First Appellate Court, there is no point formulated regarding application for additional evidence is filed and also there is no whisper regarding additional evidence filed in the appeal.

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The Hon’ble Supreme Court in the case of

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JATINDER SINGH AND ANOTHER (MINOR THROUGH MOTHER) v. MEHAR SINGH AND OTHERS¹ in which case

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their Lordships at para 4 have held as follows:

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“4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.”

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1 AIR 2009 SC 354

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NC: 2026:KHC-D:1487 RSA No. 100294 of 2023

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HC-KAR

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When in a pending appeal, if an application for additional evidence is filed under Order XLI Rule 27 of CPC, it is duty cast on the Appellate Court to consider the said application filed for adducing additional evidence along with the main appeal on its merit. But in the present case, the Appellate Court has not considered the application filed for additional evidence in the appeal. Therefore, only on this ground the order passed by the First Appellate Court is required to be interfered with and remand the matter to the First Appellate Court for fresh disposal of the appeal along with application filed for additional evidence, in accordance with law on its merit. Therefore, the order passed by the First Appellate Court is liable to be interfered with. Accordingly, I answer the substantial question of law No.1 in the negative.

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Hence, I proceed to pass the following:

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ORDER

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i) The appeal is allowed.

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NC: 2026:KHC-D:1487 RSA No. 100294 of 2023

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HC-KAR

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ii) The judgement and decree dated 29.06.2022, passed in R.A.No.27/2019, by the Senior Civil Judge and JMFC, Nippani, is hereby set aside.

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iii) The matter is remanded to the Court of Senior Civil Judge and JMFC, Nippani, to consider the Regular Appeal No.27/2019, afresh along with the application filed for additional evidence, on its merit, in accordance with law.

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iv) Both the parties are directed to appear before the First Appellate Court, on 23.02.2026 without awaiting for any notice from the Court.

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v) The First Appellate Court shall conclude the matter within a period of four months from the date of appearance of the parties.

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vi) No order as to costs.

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Sd/(HANCHATE SANJEEVKUMAR)

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JUDGE

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DR, MRK /CT-AN List No.: 1 Sl No.: 8

Shri. Balu S/O Appa Waghe v. Shri. Madhukar S/O Vasant Mane

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Shri. Balu S/O Appa Waghe v. Shri. Madhukar S/O Vasant Mane

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