- 1 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 836 OF 2007 (-) BETWEEN: 1. MAHABOOBSAB IMAMSAB GANJIGATTI S/O. IMAMSAB GANJIGATTI, AGED ABOUT 51 YEARS, R/O. MISHRIKOTI, TALUK: KALAGHATGI-581204, DHARWAD DISTRICT. 2. MAKABULSAB IMAMSAB GANJIGATTI, S/O. IMAMSAB GANJIGATTI, AGED ABOUT 49 YEARS, R/O. MISHRIKOTI, TALUK: KALAGHATGI-581204, DHARWAD DISTRICT. 3. SMT. MABOOBI W/O. IMAMSAB GANJIGATTI, AGED ABOUT 66 YEARS, R/O. MISHRIKOTI, TALUK: KALAGHATGI-581204, DHARWAD DISTRICT. …APPELLANTS (BY SRI. RAVI S. HEGDE, ADVOCATE) AND: [SRI. SHANKARAGOUDA BHOJANAGOUDA PATIL, S/O. BOJANAGOUDA PATIL, AGED ABOUT 67 YEARS, R/O. MISHRIKOTI, TALUK: KALAGHATGI-581204, DHARWAD DISTRICT.] Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.18 10:57:32 +0530 - 2 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 DEAD BY LR’S 1(A) SMT. PUSHPAVATI, W/O. LATE SHANKARA GOUDA PATIL, AGED ABOUT 69 YEARS, 1(B) MALLIKARJUNA GOUDA, W/O. LATE SHANKARA GOUDA, AGED ABOUT 37 YEARS, 1(C) LINGARAJ GOUDA, W/O. LATE SHANKARA GOUDA, AGED ABOUT 29 YEARS, ALL ARE RESIDENTS OF MISHRIKOTI, TQ: KALGATAGI, DIST: DHARWAD. 1(D) MALLAMMA (A) SHAILA, W/O. ESHWARA GOUDA D/O. SHANKARA GOUDA, R/O. YAMMIGANOOR, DIST: KARNOL, ANDHRA PRADESH. …RESPONDENTS (BY SRI. SADIQ N. GOODWALA, ADVOCATE FOR R1(A-D)) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC TO PASS A JUDGMENT AND DECREE BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED IN RA.NO.162/2003 DATED 31.10.2006, ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.) DHARWAD, INSOFAR AS IT RELATES TO DECREEING THE SUIT OF THE RESPONDENT IN O.S.NO.94/2001 DATED 24/06/2003 COURT OF THE CIVIL JUDGE (JR.DN.) AND JMFC., KALAGHATGI FOR POSSESSION AND DIRECTING THE APPELLANTS TO HAND OVER THE VACANT POSSESSION OF THE SCHEDULE PROPERTY WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendants challenging the judgment and decree dated 31.10.2006 in R.A.No.162/2003 on the file of the II Additional Civil Judge (Sr.Dn.), Dharwad1 allowing the appeal in part and modifying the judgment and decree dated 24.06.2003 in O.S.No.94/2001 on the file of the Civil Judge (Jr.Dn.) and JMFC, Kalaghatgi2, dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the plaintiff is owner of the suit schedule property having acquired the same in a partition between himself and his elder brother. It is further stated that the father of defendant No.1 had acquired the possession of the suit schedule property as a tenant by executing a rental document. It is stated that on 01.04.1975 father of defendant No.1 – Imamsab 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 Rustumsab Ganjigatti had executed rent document agreeing to pay Rs.4/- per month towards the rent of the suit schedule property and agreed to handover the same as and when the suit property is demanded by the plaintiff. It is also stated that the father of defendant No.1 agreed to pay the tax to the competent authorities. After the death of the father of defendant No.1, the defendants are residing in the suit schedule property as tenants. The plaintiff further stated that the defendants have not paid the rent and have become defaulters to pay Rs.40/-. Hence, the plaintiff by notice dated 03.09.2001 terminated the tenancy right of the defendants and as such called upon the defendants to handover the suit schedule property. 4. It is the case of the plaintiff that the defendants have got constructed a house at Mishrikoti village and therefore there is no impediment for the defendants to handover the suit property to the plaintiff. Hence, the - 5 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 plaintiff has preferred O.S.No.94/2001 seeking relief of possession, recovery of rent and mesne profits. 5. After service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that there is no rental document dated 01.04.1975 executed by Imamsab Ganjigatti in favour of the plaintiff. It is also stated that the defendants are residing in the suit schedule property since 1952 and therefore, urged that the defendants have no arrears of rent. Further, the defendants have taken up a specific plea that when the father of defendant No.1 has insisted the plaintiff to execute a registered document with respect to the suit schedule property, the plaintiff has insisted Imamsab Ganjigatti to return the document already executed and therefore the said Imamsab Ganjigatti has handed over the documents which were already executed by the family members of the plaintiff to the plaintiff. Therefore, it is the case of the defendants that the plaintiff - 6 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 by misusing the innocence of the Imamsab Ganjigatti, has not executed the registered document with respect to the suit property. It is also contended by the defendants that the plaintiff has filed suit in O.S.No.9/1993 in respect of the very same suit property which came to be dismissed on 06.08.1998 and therefore the present suit is not maintainable and therefore sought for dismissal of the suit. 6. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined four witnesses as PW.1 to PW.4 and produced 6 documents and same were marked as Exs.P.1 to P.6. The defendants have examined two witnesses as DW.1 and DW.2 and got marked 31 documents as Exs.D.1 to D.31. 7. The Trial Court after considering the material on record, by its judgment and decree dated 24.06.2003, dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.162/2003 on the file of the - 7 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 First Appellate Court and same was resisted by the defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 31.10.2006, partly allowed the appeal and modified the judgment and decree in O.S.No.94/2001. Feeling aggrieved by the same, the defendants have preferred this Regular Second Appeal. 8. This Court by order dated 04.04.2007, formulated the following substantial question of law: “Whether the lower appellate court was justified in passing a decree for possession on the ground that the defendant is in permissive possession though not as a tenant?” 9. I have heard Sri.Ravi S Hegde, learned counsel appearing for the appellants and Sri.Sadiq N Goodwala, learned counsel appearing for the respondents. 10. Sri.Ravi S Hegde, learned counsel appearing for the appellants, contended that the First Appellate Court has committed an error in directing the defendants to - 8 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 handover the vacant possession of the suit property without considering the fact that the plaintiff has filed O.S.No.9/1993 before the Trial Court on similar relief which came to be dismissed by the Trial Court on 06.08.1998 and the said aspect of the matter was not properly assessed by the First Appellate Court. 11. It is further contended by the learned counsel appearing for the appellants that the lower Appellate Court has committed an error in holding that the possession of the defendants is only a permissive possession even though there were no pleadings on record and no evidence has been adduced by the plaintiff and therefore sought for interference of this Court. 12. Per contra, learned counsel appearing for the respondents sought to justify impugned judgment and decree passed by the First Appellate Court. 13. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully - 9 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 examined the findings recorded by both the Courts below and perused the original records. 14. It is not in dispute that the plaintiff is owner of the suit schedule property having rented the suit premises in favour of the father of defendant No.1 as per rent document dated 01.04.1975. In the backdrop of these aspects, I have carefully examined the findings recorded by the Trial Court on issue No.3, wherein the Trial Court has taken note of the factual aspects on record particularly referring to earlier suit in O.S.No.9/1993 in which it is stated that there is no arrears of rent. It is also forthcoming from the findings recorded by the Trial Court that the plaintiff has not produced any evidence to show that subsequent to 18.05.1986 either Imamsab Ganjigatti or the defendants have paid any amount towards rent of suit property either to the plaintiff or any other person. Therefore, the Trial Court has rightly come to the conclusion that the defendants are not the defaulters in payment of rent to the plaintiff towards the suit property. - 10 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 15. In that view of the matter, I am of the view that the Trial Court has rightly dismissed the suit taking into consideration the plea made by the plaintiff with regard to two rental agreements, however, the said finding recorded by the Trial Court was interfered with by the First Appellate Court in part by partly confirming the judgment and decree however directed the defendants to vacate the suit premises. The said finding recorded by the First Appellate Court requires to be interfered with in this appeal as the defendants have proved that there is no arrears of rent and on the other hand, the plaintiff has not proved with regard to the permissive possession or otherwise of the defendants in the suit. 16. The entire finding recorded by the Trial Court particularly at para No.11, wherein the First Appellate Court has arrived at a conclusion that the plaintiff has failed to prove that the father of the defendant No.1 has occupied the suit schedule property as a tenant as per rental agreement dated 01.04.1975. In the result, the - 11 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 First Appellate Court has committed an error in interfering with the finding recorded by the Trial Court so also the finding recorded with regard to earlier suit in O.S.No.9/1993. Therefore, the appeal deserves to be allowed and accordingly the substantial question of law framed above favours the defendants. 17. In the result I pass the following: ORDER i) The appeal is allowed. ii) Judgment and decree dated 31.10.2006 in R.A.No.162/2003 on the file of the II Additional Civil Judge (Sr.Dn.), Dharwad is hereby set aside to the extent of directing the defendants to vacate the suit premises. iii) Judgment and decree dated 24.06.2003 in O.S.No.94/2001 on the file of the Civil Judge (Jr.Dn.) and JMFC, Kalaghatgi is hereby confirmed. - 12 - NC: 2025:KHC-D:4830 RSA No. 836 of 2007 iv) The suit of the plaintiff is dismissed. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 32