EKNATH S/O YELLAPPA DHANAGAR DIED BY LRS vs SHIVARAJ S/O BEERANNA KALLYANI AND ANR
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 9 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
REGULAR SECOND APPEAL NO. 200184 OF 2015 (DEC)
BETWEEN:
1.
1(A)
EKNATH S/O YELLAPPA DHANAGAR
DIED BY LRS,
SMT. TULJA BAI WO LATE EKNATH,
SINCE DECEASED BY LRS,
VITHAL S/O BASAWARAJ,
AGED ABOUT 52 YEARS, OCC: AGRICULTURE.
1(B) KALYANI S/O BASAWARAJ,
AGED ABOUT 48 YEARS, OCC: AGRICULTURE.
1(C) SOMANNA S/O BASAWARAJ,
AGED ABOUT 45 YEARS, OCC: AGRICULTURE.
1(D) SHIVSHARAN S/O BASAWARAJ,
AGED ABOUT 38 YEARS, OCC: AGRICULTURE,
ALL R/O. ALGOOD, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
…APPELLANTS
(BY SRI. SHRAVAN KUMAR MATH, ADVOCATE)
Digitally signed by
B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA
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AND:
1. SHIVARAJ S/O BEERANNA KALLYANI,
AGE ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/O. VILLAGE GUNDUR,
TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
2. BEERANNA S/O MAHALAPPA KALLYANI,
AGE ABOUT 65 YEARS,
OCC: AGRICULTURE,
R/O. VILLAGE GUNDUR,
TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
…RESPONDENTS
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND TO SET ASIDE THE
JUDGMENT AND DECREE DATED 24.02.2015 IN
R.A.NO.24/2010 ON THE FILE OF THE FAST TRACK COURT
BASAVAKALYAN SETTING ASIDE THE JUDGMENT AND DECREE
DATED 13.01.2010 PASSED IN O.S.NO.24/1999 ON THE FILE
OF THE CIVIL JUDGE SENIOR DIVISION AT BASAVAKALYAN.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
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ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 24.02.2015
passed in RA No.24/2010 by the Fast Track Court,
Basavakalyan (‘ First Appellate Court ’ for short).
2. For the sake of convenience, the parties are
1
referred to based on their rankings before the Trial Court .
Appellants are the legal representatives ( LRs ) of the
plaintiff and respondents were the defendants.
3. Brief facts leading rise to the filing of this
appeal are as follows:
3.1. The plaintiff filed a suit in OS No.24/1999
before the Trial Court against the defendants for
declaration that the sale deed dated 21.07.1998 in the
name of defendant No.1 is forged, null and void, for
declaration of title and possession, and also for perpetual
injunction. It is the case of the plaintiff that, he is the
1
OS No.24/1999 on the file of the Court of learned Civil Judge
(Sr.Dn.), Basavakalyan
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exclusive owner and in possession of the suit land.
Defendant Nos.1 and 2 are distant relatives. The plaintiff
had never sold the suit land to defendant No.1 nor had he
received any consideration amount from defendant No.1,
and defendant No.1 never parted with the possession of
the suit land. It was contended that, the plaintiff had
never visited the Office of the Sub-Registrar nor had put
his thumb mark on any document in the Office of the Sub-
Registrar. The plaintiff came to know that defendant No.1,
by impersonation, got the registered sale deed executed in
his favour by forging the signature of the plaintiff.
Thereafter, a Police complaint was filed. After filing of the
complaint, the defendants started illegally interfering with
the possession and enjoyment of the plaintiff over the suit
land. The plaintiff requested the defendants not to
interfere with the peaceful possession and enjoyment over
the suit land, however, the defendants did not give any
heed to the request made by the plaintiff. Hence, a cause
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of action arose for the plaintiff to file a suit for declaration
and perpetual injunction.
3.2. The defendants filed a written statement
denying the averments made in the plaint and contended
that, the plaintiff was neither the absolute owner nor in
possession of the suit land. The plaintiff was in need of
money and sold the suit land for consideration of
Rs.56,000/- and executed the registered sale deed in the
name of defendant No.1 on 16.04.1998 and also delivered
the possession of the suit land on the date of execution of
the sale deed. Ever since the date of purchase, the
defendants are in peaceful possession and enjoyment of
the suit land. The suit filed by the plaintiff is not
maintainable and pray to dismiss the suit.
3.3. The Trial Court, based on the rival pleadings of
the parties, framed the following issues:
“ISSUES
1. Whether the plaintiff proves that he is in exclusive
owner in possessor of the suit schedule property?
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2. Whether the plaintiff further proves that, sale deed
dated 21-07-1998 is a forged document it is not
binding to the plaintiffs?
3. Whether the plaintiff proves that the illegal
interference by the defendant over the suit
schedule property?
4. Whether the defendant proves that the plaintiff has
sold the suit schedule property for his legally
necessities?
5. What order? What decree?”
3.4. The plaintiff, to substantiate his case, examined
himself as PW1, examined one witness as PW2 and
marked twelve documents as Exs.P1 to P12. In rebuttal,
defendant No.2 examined himself as DW1 and marked
four documents as Exs.D1 to D4.
3.5. The Trial Court, after recording the evidence,
hearing both sides and after assessing the verbal and
documentary evidence, answered issue Nos.1 to 3 in the
affirmative, issue No.4 in the negative and issue No.5 as
per the final order. The Trial Court held that the plaintiff
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has proved that he is the exclusive owner in possession of
the suit schedule property; and further held that, the sale
deed dated 21.07.1998 is a forged document, it is not
binding on the plaintiff; the plaintiff has proved the illegal
interference by the defendants over the suit schedule
property; the defendant has failed to prove that the
plaintiff has sold the suit schedule property for his legal
necessities, and consequently, decreed the suit and
declared that, the suit sale deed document No.2023/98-
99, dated 21.07.1998 regarding the suit land is forged,
null and void. It was further declared that, the plaintiff is
the owner and possessor of suit land Sy.No.82/5
measuring 4 acres 24 guntas, R.A. of Rs.8.66 Ps., situated
at Gundur Village, Basavakalyan Taluk, Bidar District; the
defendants or any persons claiming through them were
permanently restrained from obstructing into the
possession and enjoyment of the plaintiff over the suit
land by judgment dated 13.01.2010.
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3.6. The defendants, aggrieved by the judgment and
decree and decree dated 13.01.2010 passed in
OS No.24/1999 by the Trial Court, preferred a regular
appeal in RA No.24/2010 on the file of the First Appellate
Court.
3.7. The First Appellate Court, after hearing the
learned counsel for the parties, framed the following points
for determination:
“1. Does appellants prove that, the finding of trial court
that, the sale deed is forged one is capricious,
erroneous, as it is not in accordance with evidence
on record?
2. Does trial court judgment under challenge need to
be interfered with?
3. What Order?”
3.8. The First Appellate Court, after re-appreciating
the entire evidence on record, answered Point Nos.1 and 2
in the affirmative and point No.3 as per the final order.
The regular appeal was allowed; the judgment and decree
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dated 13.01.2010 passed in OS No.24/1999 by the Trial
Court was set aside; consequently, the suit of the plaintiff
was dismissed by judgment dated 24.02.2015.
4. The plaintiff, aggrieved by the judgment and
decree dated 24.02.2015 passed in RA No.24/2010 by the
First Appellate Court, filed this regular second appeal.
5. Heard the arguments of learned counsel for the
LRs of the deceased plaintiff and learned counsel for the
defendants.
6. Learned counsel for the LRs of the deceased
plaintiff submits that, the First Appellate Court, only on
discussing the evidence of PW2, has reversed the
judgment and decree passed by the Trial Court. He
submits that, the First Appellate Court has not considered
the evidence of PW1 and also the documents produced by
the plaintiff as per Exs.P1 to P12. The plaintiff examined a
Thumb Impression Expert who had come to the conclusion
that the thumb impressions of the vendor appearing on
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the sale deed are not matching with the specimen thumb
impressions collected by the Investigating Officer in the
criminal case. He submits that, the impugned judgment
passed by First Appellate Court is not in compliance with
Order XLI Rule 31 of the Code of Civil Procedure, 1908
(‘ CPC ’ for short). Hence, on these grounds, he prays to
allow the appeal by setting aside the judgment and decree
passed by the First Appellate Court in RA No.24/2010, and
remit the matter to the First Appellate Court with a
direction to dispose of the appeal afresh in compliance
with Order XLI Rule 31 of CPC.
7. Per contra, learned counsel for the defendants
submits that, the deceased plaintiff was the absolute
owner of the suit schedule property and he sold the said
suit land in favour of defendant No.1 under the registered
sale deed dated 21.07.1998, and delivered the possession
of the suit land. The defendants are in possession of the
suit land. The First Appellate Court has rightly reversed
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the judgment and decree passed by the Trial Court.
Hence, on these grounds, he prays to dismiss the appeal.
8. Perused the records and considered the
submissions of the learned counsel for the parties.
9. This Court, vide order dated 14.09.2015,
admitted the appeal to consider the following substantial
question of law:
Whether the Lower Appellate Court has committed
serious illegality and perversity in disbelieving the opinion
of PW-2 Finger Print Expert and thus the judgment
passed by the First Appellate Court is perverse and
illegal ?
Reg. Substantial Question of Law:
10. The plaintiff, to substantiate his case before the
Trial Court, examined himself as PW1. He reiterated the
plaint averments in the examination-in-chief. To prove
that the defendant had impersonated, forged his signature
and got executed the registered sale deed, the plaintiff
had lodged the complaint against the defendant and the
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Police had registered a criminal case against the
defendant. The plaintiff had produced the copy of the FIR
marked as Ex.P1. The Investigating Officer, after
investigating the case, had filed a charge sheet and the
charge sheet was marked as Ex.P2. The Investigating
Officer has sent the admitted and disputed signature to
the Finger Print Expert. The Finger Print Expert has given
opinion as per Ex.P3. Ex.P4 is the certified copy of the
sale deed alleged to have been executed by the plaintiff in
favour of defendant No.1, Exs.P5 and P6 are two copies of
the record of rights, Exs.P7 to P10 are four lawani
patrikas , Ex.P11 is the copy of the complaint given before
PSI, Manthala Police Station, Ex.P12 is the copy of the
application addressed to the Village Accountant of
Gundoor. During the course of cross-examination of PW1,
it was suggested that, the plaintiff himself had sold the
suit land in favour of defendant No.2 for valuable
consideration of Rs.56,000/- and delivered the possession
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of the suit land in favour of defendant No.2. The said
suggestion was denied by PW1.
10.1. The plaintiff also examined one witness as PW2-
the Finger Print Expert who had deposed that, PW2 had
examined the admitted and disputed thumb impression of
the plaintiff and submitted a report opining that the
admitted thumb impression and disputed thumb
impression of the plaintiff did not tally.
11. In rebuttal, defendant No.2 examined himself
as DW1 and he had reiterated the written statement
averments in the examination-in-chief and produced the
certified copy of the record of right marked as Ex.D1, a
revenue receipt marked as Ex.D2, copy of the mutation
marked as Ex.D3, and the certified copy of the sale deed
marked as Ex.P4.
11.1. The defendants also examined one witness as
DW2 to prove their possession over the suit schedule
property.
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12. From the perusal of the records, the plaintiff
had lodged the complaint against the defendants
and the Police had registered the criminal case in
Crime No.47/1999 for the offence punishable under
Sections 463, 464, 465, 351 and 352 of the Indian Penal
Code and also produced the copy of the charge sheet
marked as Ex.P2. The Trial Court, considering the entire
evidence on record decreed the suit.
13. The First Appellate Court framed the following
point for determination:
“1. Does appellants prove that, the finding of trial court
that, the sale deed is forged one is capricious,
erroneous, as it is not in accordance with evidence
on record?
2. Does trial court judgment under challenge need to
be interfered with?
3. What Order?”
The First Appellate Court, being the final fact-finding
Court, is required to frame the proper points for
consideration as per Order XLI Rule 31 of CPC.
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14. In an identical case, the Co-ordinate Bench of
this Court had an occasion to consider the similarly framed
issues for determination in the case of Bangarappa Vs.
2
Rudrappa and Another , wherein in the said case, the
First Appellate Court therein has framed the points for
consideration in paragraph No.12, which reads as follows:
“12. The lower appellate Court,
however, framed the following point for
determination:
‘ Whether judgment of the trial Court
requires interference? ’ ”
Admittedly, in the instant case, the First Appellate Court
has framed identical points for adjudication. The Co-
ordinate Bench of this Court in the aforesaid case, has
held that, the First Appellate Court is required to frame the
relevant points for consideration and answer each issue
framed by the Trial Court.
15. Order XLI Rule 31 of CPC reads as follows:
2
2012 SCC OnLine Kar 1185
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“ 31. Contents, date and signature of
judgment.- The judgment of the Appellate
Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled;
and shall at the time that it is pronounced be
signed and dated by the judge or by the judges
concurring therein.”
Order XLI Rule 31 of CPC provides guidelines for the
Appellate Court as to how the Court has to proceed and
decide the appeal. It is further observed that, the
provision should be read in such a way as to require that
the various particulars mentioned therein should be taken
into consideration. Thus, it must be evident from the
judgment of the Appellate Court that Court has properly
appreciated the facts/evidence, applied its mind and
decide the case considering the material on record. This
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would amount to substantial compliance with the
provisions of Order XLI Rule 31 of CPC.
15.1. The Appellate Court has to independently
assess the entire evidence and all aspects of the matter to
ensure findings of the First Appellate Court are well
founded and quite convincing. It is mandatory for the
First Appellate Court to independently assess the evidence
of the parties and consider the relevant points that arise
for adjudication, along with the bearing of the evidence on
those points. In the instant case, the First Appellate Court
has not properly framed the points for adjudication. The
judgment and decree passed by the First Appellate Court
is not in compliance with Order XLI Rule 31 of CPC.
16. The Hon’ble Apex Court in the case of
3
H. Siddiqui (Dead) by LRs Vs. A. Ramalingam has, in
paragraph No.21, held as follows:
“21. … … It is mandatory for the appellate court to
independently assess the evidence of the parties and
3
2011 (4) SCC 240
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consider the relevant points which arise for adjudication
and the bearing of the evidence on those points. Being
the final court of fact, the first appellate court must not
record mere general expression of concurrence with the
trial court judgment rather it must give reasons for its
decision on each point independently to that of the trial
court. Thus, the entire evidence must be considered and
discussed in detail. Such exercise should be done after
formulating the points for consideration in terms of the
said provisions and the court must proceed in adherence
to the requirements of the said statutory provisions.”
17. The Hon'ble Apex Court in a recent judgment in
4
the case of Lakshmi Vs. Gopi and Others , has held in
paragraph No.5 that, Section 96 of CPC permits the
Appellate Court to deal with both questions of law and
fact, which reads as follows:
“5. Section 96 of the Civil Procedure Code, 1908,
permits the Court to deal with both questions of law and
fact which is reproduced below:
“96. Appeal from original decree.—(1) Save
where otherwise expressly provided in the body of
this Code or by any other law for the time being in
force, an appeal shall lie from every decree passed
by any Court exercising original jurisdiction the
4
2026 SCC OnLine SC 1338
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Court authorized to hear appeals from the decisions
of such Court.
(2) An appeal may lie from an original
decree passed ex parte.
(3) No appeal shall lie from a decree passed
by the Court with the consent of parties.
(4) No appeal shall lie, except on a question
of law, from a decree in any suit of the
nature cognisable by Courts of Small
Causes, when the amount or value of
the subject-matter of the original suit
does not exceed ten thousand rupees.”
The Court in first appeal is the final court of fact.
The facts once determined by the Appellate Court are not
open to challenge before the High Court, and even this
Court does not undertake re-appreciation of evidence
under Article 136 until and unless some glaring error such
as complete misdirection is pointed out.”
18. The First Appellate Court has not properly re-
appreciated the entire evidence led by the parties except
discussing about the evidence of PW2. The First Appellate
Court has reversed the judgment passed by the Trial Court
without properly assigning reasons in the impugned
judgment. The impugned judgment passed by the First
Appellate Court is contrary to the judgments rendered by
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the Hon'ble Apex Court in the in the cases of H. Siddiqui
(supra), Bangarappa (supra) and Lakshmi (supra).
Hence, on this ground alone, the impugned judgment and
decree passed by the First Appellate Court is liable to be
set aside, and the same requires to be re-considered by
the First Appellate Court.
19. In view of the above discussion, I answer the
substantial question of law the affirmative . Accordingly,
I proceed to pass the following:
ORDER
i. The regular second appeal is allowed ;
ii. The impugned judgment and decree dated
24.02.2015 passed in RA No.24/2010 by the
First Appellate Court is hereby set aside ;
iii. RA No.24/2010 is restored to its original file;
iv. The First Appellate Court is directed to re-
consider the appeal afresh and pass an
appropriate judgment in compliance with Order
XLI Rule 31 of CPC;
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v. It is made clear that, this Court has not made
any adjudication on the merits of the issue;
vi. All the contentions of the parties are kept open;
vii. The parties are directed to appear before the
First Appellate Court on 30.11.2026 without
awaiting any further notice;
viii. Registry is directed to transmit the records to
the First Appellate Court;
ix. Pending IA(s) in this appeal, if any, shall stand
disposed of accordingly.
Sd/-
(ASHOK S. KINAGI)
JUDGE
PA
List No.: 2 Sl No.: 7
Ct:pk