The failure to consider the application for additional evidence and to give the opposite party an opportunity to meet such evidence vitiated the judgment of the first appellate court.

JUDGMENT :

K.S. Mudagal, J.

1. This second appeal of the defendants arises out of the judgment and decree dated 20.09.2018 in Regular Appeal No.58/2017 passed by the I Additional District & Sessions Judge, Chitradurga.

2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the plaintiff and set aside the judgment and decree dated 16.09.2017 in O.S.No.12/2015 passed by the I Addl. Senior Civil Judge at Chitradurga.

3. By the said judgment and decree, the Trial Court dismissed the suit of the plaintiff for declaration and permanent injunction.

4. Appellants were the defendants and respondent was the plaintiff before the trial court. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.

5. Subject matter of the suit was the vacant site bearing PID No.7818-5565-A, KTR No.619, measuring East-West: 43-0 feet and North-South: 36-0 feet situated at Channakeshavapura Extension, 5th Block, Chitradurga.

6. Plaintiff filed O.S.No.12/2015 before the I Addl. Senior Civil Judge & JMFC., Chitradurga, seeking declaration of his title and for permanent injunction against the defendants in respect of the suit schedule property.

7. Case of the plaintiff in brief is as follows:

The suit schedule property originally belonged to one Yellamma and Ningappa. Ramachandrappa, the husband of defendant No.1 and father of defendant Nos.2 and 3 was the son of Ningappa. On 10.07.1961 Yellamma and Ningappa representing Ramachandrappa also who was then aged 3 years, as his minor guardian executed the registered sale deed as per Ex.P7. That his father Krishnappa died on 22.4.1998 and he has bequeathed the suit schedule property in plaintiff's favour under the registered Will dated 09.02.1998. That the defendants without any manner of right are trying to obstruct his possession and thus sought declaration of title and permanent injunction.

8. Defendants contested the suit contending that Yellamma and Ningappa could not have alienated the interest of Ramachandrappa, who was minor and therefore, the sale was invalid. They further disputed the Will set up by the plaintiff and claimed that they were in possession of the property. They also claimed that they have perfected their title by adverse possession.

9. On the basis of such pleadings, the trial court framed the following issues:

1. Whether plaintiff proves that, his father has purchased suit property as pleaded in para-3 of plaint and was absolute owner in possession of the same till his last breath?

2. Whether he further proves that, he acquired title over suit property as per registered WILL dated 09.02.1998 and is in possession and enjoyment of suit property?

3. Whether the plaintiff proves alleged interference by the defendants?

4. Whether the defendants prove that, they are in possession of suit property more than statutory period adverse to the interest of plaintiff?

5. Whether the plaintiff is entitled to the reliefs as sought?

6. What order or decree?

10. The parties adduced evidence. On behalf of plaintiff, PWs-1 to 3 were examined and Exs.P1 to P11 were marked. On behalf of the defendants, third defendant was examined as DW-1 and one Pakirappa was examined as DW-2 and Exs.D1 to D4 were marked.

11. The trial court after hearing the parties dismissed the suit on the following grounds:

(i) The sale deed Ex.P7 executed by Yellamma and Ningappa representing minor Ramachandrappa was valid;

(ii) Defendants have failed to prove that they have perfected their title by adverse possession;

(iii) The plaintiff has failed to produce the original Will and prove the same as required under Section 68 of the Indian Evidence Act.

12. Aggrieved defendants challenged the said judgment and decree before the first appellate court in R.A.No.58/2017. Perusal of the judgment and decree of the first appellate court indicates that before the first appellate court, plaintiff filed an application under Order XLI Rule 27 CPC for production of the origina