Failure to prove specific encroached area boundaries precludes injunctive relief regardless of established title over the larger survey number.

The plaintiff (since deceased, represented by legal representatives) instituted O.S. No. 47/2009 seeking declaration of absolute ownership and delivery of possession over land bearing Sy. No. 38/1, Kutavadi village, Hunsur Taluk, extent 4 acres 17 guntas, alleging that defendants 1 to 7 had encroached 1 acre 24 guntas thereof, demarcated in a survey sketch as portions 'A, B, F, G, H, I and J'.

The plaintiff claimed title under a registered sale deed dated 27.01.1967.

The plaintiff and his family migrated to Kollegala Taluk between 1990 and 1996, returning to Kutavadi in 1997–98.

In 2000, suspecting encroachment, he obtained a private survey, which formed the basis of the suit.

The defendants denied encroachment and specifically pleaded that two Government roads (Kutawadi to H.D. Kote; Kutawadi to Tank) traversed the suit property, suppressing which the plaintiff procured a collusive survey.

The First Appellate Court in R.A. No. 63/2016 confirmed dismissal (11.03.2020), inter alia noting the plaintiff's admission of having sold 4.12 acres to Shivabeeregowda in 1980, the surveyor's admission of omitting the roads, and that the sketch was prepared behind the bajudars.

In cross-examination, the plaintiff had admitted the existence of roads passing through the property, omission of the same in the plaint, and failure to instruct his Advocate about the two roads.

1. Whether the appellants made out a case for admission of additional evidence under Order XLI Rule 27 CPC read with Section 107 CPC, and for appointment of a Court Commissioner under Order XXVI Rule 9 CPC, at the second appeal stage.

2. Whether the courts below committed an error of law by not properly considering the documents produced by the parties, including Ex. P-1 and Ex. D-1.

3. Whether the courts below committed an error of law in wrongly applying the principle that the plaintiff must establish his case on his own evidence and cannot rely on the weakness of the defence, without requiring the defendants to prove the specific pleas raised by them.

4. Whether the courts below committed an error of law in not relying upon the legal presumption attaching to entries in the revenue records in favour of the plaintiff.

5. Whether, notwithstanding failure to prove encroachment, the plaintiff was entitled to a decree of declaration in respect of the remaining portion of the suit property.

Section 100 CPC, which confines second appeals to substantial questions of law.

Order XLI Rule 27(1)(aa) CPC, requiring the party to establish that notwithstanding due diligence, the evidence was not within his knowledge or could not be produced earlier.

The governing test for additional evidence as expounded in Munivenkatappa v. Chikkapapamma, ILR 1991 KAR 3014 (following Balaichandra v. Shwedari, AIR 1978 SC 1062), recognising the exceptional power of the Second Appellate Court to admit additional evidence where due diligence is demonstrated.

Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, holding that inadvertence, negligence of a pleader, or failure to realise a document's importance does not constitute "substantial cause," and mere importance of evidence is not a sufficient ground for admission in appeal.

In a suit for declaration, the plaintiff must establish his legal right on the strength of his own evidence, and the weakness of the defence is of no avail.

Applying Order XLI Rule 27(1)(aa) and Ibrahim Uddin, the Court found the affidavits bereft of any averment satisfying the due diligence test: the survey sketch existed at the institution of the suit and was itself the foundation of the plaint.

The plaintiff admittedly knew of the two Government roads, yet neither disclosed them in the plaint nor amended the plaint after the written statement specifically raised the plea; no explanation was offered for not producing the documents before the First Appellate Court, demonstrating total negligence.

Ex. P-1, though the very basis of the suit, omitted the two roads and the southern road and was a private survey conducted behind the bajudars, rendering it self-serving.

The Court deduced that some residual portion as per the 1967 sale deed must subsist, as the defendants' plea was that roads divided the land into two portions and not that the entire land was acquired.

The plaintiff failed to prove encroachment of portions 'A, B, F, G, H, I and J' and the concurrent findings warranted no interference.

The appeal was allowed in part; the dismissal of the suit for injunction against the defendants in respect of the encroached portions was maintained; and the suit was decreed for declaration that the plaintiff is the owner of the remaining portion of Sy. No. 38 as per the sale deed dated 27.01.1967, after formation of the roads.