- 1 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100611 OF 2024 (-) BETWEEN: SHRI. JAYAKAR RAMRAO MUSALE, AGE. 75 YEARS, OCCU. BUSINESS R/O H. NO. 14, UDAYANAGAR, BENGERI EXTENSION, HUBBALLI, DIST. DHARWAD -23. …APPELLANT (BY SRI. C. N. HARLAPUR, ADVOCATE) AND: 1. SMT. LATA W/O. MADHUKAR MUSALE, AGE. 77 YEARS, OCC. HOUSEHOLD, R/O. T-2 GOLDEN MENSION, 1195, III MAIN, 4TH CROSS , CHANDRA LAYOUT, BENGALURU – 560040. 2. RAJESH S/O. PRABHAKAR MUSALE, AGE. 56 YEARS, OCC. BUSINESS, R/O. H NO 14, UDAYANAGAR, BENGERI EXTENSION, HUBBALLI, DIST DHARWAD -23. 3. SANJEEV S/O. PRABHAKAR MUSALE, AGE. 53 YEARS, OCC. BUSINESS, R/O. H. NO. 14, UDAYANAGAR, BENGERI EXTENSION, HUBBALLI, DIST: DHARWAD -23. …RESPONDENTS (BY SRI. C.S. SHETTAR, ADVOCATE FOR C/R1) V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.11 16:19:32 +0530 - 2 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.5054/2022 BY THE HON’BLE FIRST ADDITIONAL DISTRICT & SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI DATED 20.04.2024 AND TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.2/2017 BY THE HON’BLE FIRST ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., HUBBALLI AT HUBBALI DATED 08.09.2022, IN THE END’S OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant No.1 assailing the judgment and decree dated 20.04.2024 in R.A.No.5054/2022 on the file of I Additional District and Sessions Judge, Dharwad, sitting at Hubballi dismissing the appeal and confirming the judgment and decree dated 08.09.2022 in O.S.No.2/2017 on the fie of I Additional Senior Civil Judge and JMFC Hubballi decreeing 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. The facts in nutshell for the purpose of adjudication of this appeal are that the plaintiff has filed - 3 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 suit in O.S.No.2/2017 seeking eviction of the defendants from the suit premises with mesne profits. It is stated by the plaintiff that the husband of the plaintiff – Madhukar Musale had purchased the suit premises as per the registered sale deed dated 23.10.1980 and has put up construction in the schedule property. The husband of the plaintiff had executed registered gift deed dated 06.06.2002 in favour of the plaintiff. It is also stated that, the defendants are the brother and son of the husband of the plaintiff and the plaintiff had permitted the defendants to occupy the suit premises, with an assurance that they would return the premises to the plaintiff. It is also stated that the defendants herein have filed O.S.No.53/2008 seeking relief of partition and separate possession in respect of the joint family property and the said suit came to be dismissed. The defendants have preferred R.A.No.8/2016 which came to be dismissed. Hence, the plaintiff has filed O.S.No.2/2017 seeking recovery of possession of the premises in question. - 4 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 4. On service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that the husband of the plaintiff was a police officer and therefore the schedule property was purchased in the name of the husband of the plaintiff and the defendants have also contributed for purchasing the suit schedule property as well as putting up construction in the schedule property and therefore the defendants sought for dismissal of the suit. 5. The Trial Court based on pleadings on record formulated issues and additional issue for its consideration. In order to establish their case, son of the plaintiff as attorney of the plaintiff examined as PW.1 and produced 13 documents and same were marked as Exs.P.1 to P.13. On the other hand, defendant No.1 was examined as DW.1 and produced 55 documents and same were marked as Exs.D.1 to D.55. - 5 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 6. The Trial Court after considering the material on record, by its judgment and decree dated 08.09.2022 decreed the suit and directed the defendants to vacate the suit schedule property within three months and also directed to pay damages of Rs.10,000/- per month for wrongful occupation of the suit premises. Feeling aggrieved by the same, the defendants preferred R.A.No.5054/2022 before the First Appellate Court and the appeal was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 20.04.2024, dismissed the appeal consequently confirmed judgment and decree in O.S.No.2/2017. Feeling aggrieved by the same, the defendants have preferred this Regular Second Appeal. 7. I have heard Sri.C.N.Harlapur, learned counsel appearing for the appellant and Sri.C.S.Shettar, learned counsel appearing for the respondent No.1. 8. Sri.C.N.Harlapur, learned counsel appearing for the appellant contended that the plaintiff has not stepped - 6 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 into the witness box and has examined her son as power of attorney (Ex.P.13) holder as PW.1 and there is no reference regarding the suit in question in the Power of Attorney and the said aspect of the matter was not considered by both the Courts below and accordingly sought for interference of this Court. 9. Per contra, Sri.C.S.Shettar, learned counsel appearing for the respondent No.1 invited attention of the Court to the finding recorded by both the Courts below and argued that the said aspect of the matter has been considered and rightly answered by the Courts below and as such argued that, no interference is called for in this appeal. 10. In the light of the submission made by the learned counsel for the parties, it is not in dispute that the suit premises has been gifted by husband of the plaintiff as per registered gift deed dated 06.06.2002. It is also not in dispute that the husband of the plaintiff had purchased the suit premises as per the registered sale deed dated - 7 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 23.10.1980. The finding recorded by both the Courts below makes it clear that the defendants have filed O.S.No.53/2008 before the Competent Court seeking relief of partition and separate possession against the plaintiff and the suit premises is also one of the subject matters in the said suit. It is also not in dispute that the said suit came to be dismissed and the defendants herein have preferred appeal in R.A.No.8/2016 which came to be dismissed by the First Appellate Court. It is argued by the learned counsel appearing for the appellant that the defendants have preferred Regular Second Appeal before this Court and the same is pending consideration. 11. Taking into account the fact that the suit premises is belonged to the plaintiff as per gift deed dated 06.06.2002 and therefore the finding recorded by both the Courts below holding that the plaintiff is entitled for recovery of suit premises is just and proper and therefore, I do not find any merit in the appeal. - 8 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 12. Though the learned counsel for the appellant contended by referring to the evidence of PW.1 that PW.1 was incompetent to depose on behalf of the plaintiff, I have carefully examined Ex.P.13 – General Power of Attorney issued by the plaintiff to her son – Vikas Madhukar Musale to depose in O.S.No.2/2017, also as to subject matter in O.SNo.53/2008 and O.S.No.52/2011 (suit filed seeking relief of specific performance in respect of the suit schedule property) are disposed of and further the First Appellate Court in detail has re-appreciated the veracity of evidence of PW.1 as per para Nos.31 to 33 and rightly come to the conclusion that PW.1 being son of the plaintiff as well as the attorney of the plaintiff as per Ex.P.13, concluded the Appeal and therefore, I am of the opinion that the arguments advanced by the learned counsel appearing for the appellant cannot be accepted as both the Courts below have concurrently held against the defendants on facts and therefore there is no perversity in the judgment and decree passed by the Courts below. - 9 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 13. It is also to be noted that the plaintiff now aged about 78 years and therefore the plaintiff is having fond hope of enjoying the suit premises and therefore as the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of CPC, appeal is dismissed at the stage of admission itself. 14. At this stage, learned counsel appearing for the appellant seeks three months time to remain in the suit schedule premises and therefore the appellant is hereby directed to file an affidavit within one week from the receipt of this order, undertakes to vacate the premises within three months from today. 15. Though the learned counsel appearing for the respondent No.1 refutes the said plea made by the learned counsel appearing for the appellant on the ground that the Trial Court by its judgment and decree dated 08.09.2022 itself has granted three months time to vacate the premises in question and also the defendants have not - 10 - NC: 2025:KHC-D:2374 RSA No. 100611 of 2024 paid the mesne profits and the damages of Rs.10,000/- per month for wrongful occupation, however, the same cannot be considered at this stage as the appellant himself had come forward to vacate the premises within three months from today. It is made clear that, if there is any arrears of rent or due from the appellant, it is open for the plaintiff/respondent to approach the same, in a manner known to law. 16. In the result the appeal fails. Sd/- (E.S.INDIRESH) JUDGE SH CT:ANB List No.: 2 Sl No.: 1