- 1 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 25TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 101477 OF 2022 (PAR/POS) BETWEEN: 1. SOMASHEKHAR S/O. VEERAPPA PATTANSHETTY, AGE: 58 YEARS, OCC. BUSINESS, R/O. PATTANSHETTY BANANA WHOLE SALE SHOP, BESIDES THE SHOP OF MISHRA PEDHA, JAKANI BHAVI ROAD, DHARWAD. 2. VISHWANATH S/O. VEERAPPA PATTANSHETTY, AGE: 56 YEARS, OCC. BUSINESS, R/O. PATTANSHETTY BANANA WHOLE SALE SHOP, BESIDES THE SHOP OF MISHRA PEDHA, JAKANI BHAVI ROAD, DHARWAD. …APPELLANTS (BY SMT. VIDYAVATHI M. KOTTURSHETTAR, ADVOCATE) AND: 1. ABDULRAZAK S/O. MOHAMMAD YAKUB VELLUR, AGE: 50 YEARS, OCC. BUSINESS R/O. JAKANI BHAVI ROAD, YARAGATTI BUILDING, MEHABOOB SUBHANI DARGA, DHARWAD. 2. ABDULGAFAR S/O. MOHAMMAD YAKUB VELLUR, AGE: 50 YEARS, OCC. BUSINESS, R/O. JAKANI BHAVI ROAD, YARAGATTI BUILDING, MEHABOOB SUBHANI DARGA, DHARWAD-580001. 3. MAIMUNISA W/O. MOHAMMED YAKUB VELLUR, AGE: 70 YEARS, OCC. HOUSEHOLD WORK R/O. BARA IMAM GALLI, NEAR MASJID, TQ. AND DIST. DHARWAD 580001. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.28 11:25:47 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 4. ABDULHUSAIN S/O. MOHAMMED YAKUB VELLUR, AGE: 43 YEARS, OCC. BUSINESS, R/O. BARA IMAM GALLI, NEAR MASJID, TQ. AND DIST. DHARWAD 580001. 5. BIBIJAN W/O. MEHABOOBALI RITTI AGE: 41 YEARS, OCC. HOUSEHOLD WORK, R/O. JANATA PLOT, 3RD CROSS, KUNDAGOL, DIST. DHARWAD-581113. 6. FATIMA W/O. RIYAZAHMED HUBBALLI, AGE: 39 YEARS, OCC. HOUSEHOLD WORK R/O. GOUTHANA MUNAVALLI, TQ. SAUNDATTI, DIST. BELAGAVI-591117. 7. KHURSHIDABEGUM W/O. MAKTUMHUSAINI KOTWAL, AGE: 47 YEARS, OCC. HOUSEHOLD WORK, R/O. KANTI ONI, M NAGAR, TQ. AND DIST. DHARWAD-580001. …RESPONDENTS (R1 TO R5 AND R7-NOTICE SERVED; R6-HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 28.03.2022 IN R.A.NO.85/2017 PASSED BY THE LEARNED IV ADDL. SENIOR CIVIL JUDGE AND JMFC, DHARWAD AND CONFIRM THE JUDGMENT AND DECREE DATED 07.08.2017 IN O.S.NO.701/2012 PASSED BY THE LEARNED I ADDL. CIVIL JUDGE AND JMFC., DHARWAD, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE C M JOSHI - 3 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 ORAL JUDGMENT Heard the learned counsel appearing for the appellants. 2. The factual matrix of the case is that, the plaintiff Nos.1 and 2 purchased the suit schedule property from the erstwhile owners under two sale deeds dated 27.01.2011 and 28.01.2011. Thereafter, they filed a suit for eviction of the defendant, who was a tenant in a portion of the suit schedule property. At the time of the purchase, the plaintiff No.1 had purchased the northern portion and the plaintiff No.2 had purchased the southern portion. It is pertinent to note that the defendant, who was a tenant in a small portion on the first floor, claimed that he has not been informed of such purchase by the plaintiff Nos.1 and 2 and had filed a suit in O.S.No.504/2011, which came to be decreed. By virtue of the said judgment dated 30.09.2011, the defendant was protected from any eviction without due process of law. Subsequently, the plaintiffs filed present suit seeking eviction of the defendant from the suit schedule property. The suit was resisted by the defendant on the ground that he was not informed of the purchase of the entire property by the plaintiffs and that the suit is vexatious etc. No - 4 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 discernible defence was made out in the written statement. The Trial Court framed the issues, which read as below. ISSUES 1. Whether the plaintiffs prove that, there is tenancy between themselves and the defendant? 2. Whether the plaintiffs further prove that the tenancy is validly terminated? 3. Whether the plaintiffs prove that the possession of the defendant over the suit property is illegal since 1.6.2012? 4. Whether the plaintiffs prove that the defendant has refused to handover the vacant possession of the suit property? 5. Whether the plaintiffs are entitled for the reliefs? 6. What decree or order? 3. The GPA holder of the plaintiff Nos.1 and 2 viz., Mahantesh was examined as PW1 and Ex.P1 to P12 were marked in evidence. The defendant was examined as DW1 and Ex.D1 and D2 were marked. After hearing the learned counsels appearing for both the sides, the Trial Court decreed the suit directing the defendant to hand over the possession of the suit - 5 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 schedule property within 30 days from the date of the judgment. Being aggrieved, the defendant filed R.A.No.85/2017 before the First Appellate Court. The defendant contented that the plaintiff No.2 had executed a gift deed in favour of Mahantesh on 09.04.2014 and therefore the plaintiffs have no right in the suit property and as such the suit is not maintainable. The said contention of the defendant was upheld by the first Appellate Court and the judgment of the Trial Court came to be reversed by allowing the appeal. Being aggrieved, the plaintiffs are before this Court in appeal. 4. The learned counsel appearing for the appellants would submit that the gift by the plaintiff No.2 in favour of Mahantesh was during the pendency of the suit, however the plaintiff No.1 continued to be the landlord of the suit schedule property and therefore, the First Appellate Court erred in holding that the suit is not maintainable. It is contented that there is no finding by the First Appellate Court that the suit schedule property occupied by the defendant falls within the property owned by the plaintiff No.2 and therefore the impugned judgment is not sustainable. Thirdly, it is contented that the - 6 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 provisions of Order XXII Rule 10 of CPC come into play only if there is an assignment etc., and the PW1 being the donee had stepped into the shoes of the plaintiff No.2 as well as the plaintiff No.1 by virtue of a GPA and therefore, no fault could have been found by the First Appellate Court in this regard. 5. During pendency of this appeal, the defendant/respondent died and notice on the main appeal as well as the interlocutory application to bring his legal representatives on record were served on the legal representatives, but they have not appeared before this Court. Consequently the legal representatives of the respondent were brought on record. 6. What is to be noted from the records of the Trial Court is that, the PW1 is none else than the brother of the plaintiff Nos.1 and 2. They had executed a power of attorney in favour of PW1, who deposed before the Trial Court. Subsequently, the plaintiff No.2 executed gift deed in favour of PW1 on 09.04.2014 and thereafter, there was a rectification deed on 22.08.2014. - 7 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 7. A perusal of the gift deed would show that only a portion, which was purchased by the plaintiff No.2 was gifted to the PW1. The plaintiff No.1-Somashekar continued to hold the remaining half of the property, which was purchased by plaintiff No.1 and 2 in the year 2011. Therefore, it is evident that PW1 had stepped into the shoes of the plaintiff No.1 also while he deposed before the Trial Court. The observations of the First appellate Court do not show any reason as to why the testimony of PW1 could not have been accepted so far as it relates to the plaintiff No.1. Even if we hold that PW1 did not bring to the notice of the court that he had acquired rights by way of assignment or purchase or gift, such conclusion would not be applicable so far as the property held by the plaintiff No.1 is concerned. The First Appellate Court does not make an effort to find out whether the tenanted property falls within the property purchased by the plaintiff No.1 or the plaintiff No.2. The the sale deeds pertaining to the purchase of the entire property by plaintiff Nos.1 and 2 show that northern half was purchased by one of the plaintiffs and the southern half was purchased by the other plaintiff. Therefore, unless it was possible to determine that the tenanted premises fell in the share of the property - 8 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 belonging to the plaintiff No.2 it was not permissible for the First Appellate Court to invoke the violation of the provisions of Order XXII Rule 10 of CPC. 8. It is relevant to note that the provisions of Order XXII Rule 10 of CPC read as below: “ORDER XXII RULE 10 : Procedure in case of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)” 9. It is pertinent to note that a plain reading of Order XXII Rule 10 of CPC would not bar a person, who receives the property under assignment from prosecuting the case. Therefore, PW1 not bringing to the notice of the Court that there was a gift deed, would not in any way disentitle him from seeking the - 9 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 relief. Though there is a duty cast upon the PW1 to state about it, it is evident that the GPA executed by the plaintiff No.1 was still in force and would be applicable. Under these circumstances, the judgment of the First Appellate Court in reversing the judgment of the Trial Court is erroneous. The provisions of Order XXII Rule 10 of CPC cannot in any way disentitle the plaintiffs from seeking a decree by the Trial Court. In that view of the matter, the questions framed by this Court are answered in favour of the appellants and the impugned judgment would not be sustainable in law. Hence, the following: ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 28.03.2022 in R.A.No.85/2017 passed by the IV Additional Senior Civil Judge and JMFC, Dharwad is hereby set aside. (iii) The judgment and decree dated 07.08.2017 in O.S.No.701/2012 passed by the I-Additional Civil Judge and JMFC, Dharwad is hereby confirmed. - 10 - HC-KAR NC: 2025:KHC-D:14257 RSA No. 101477 of 2022 (iv) The defendant/respondent is directed to hand over the possession of the suit schedule property to the plaintiffs within a period of 60 days from the date of this judgment. (v) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. SD/- (C M JOSHI) JUDGE YAN CT:PA LIST NO.: 1 SL NO.: 29