1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO R.S.A. NO.196 OF 2019 BETWEEN: ISHWARA SAPALYA SINCE DEAD 1. BABU SAPALYA AGED ABOUT 67 YEARS, S/O ISHWARA SAPALYA 2. KRISHNA SAPALYA AGED ABOUT 59 YEARS S/O ISHWARA SAPALYA 3. CHANDRA SAPALYA AGED ABOUT 48 YEARS S/O ISHWARA SAPALYA 4. KUSUMA AGED ABOUT 56 YEARS D/O ISHWARA SAPALYA 5. GANESH SAPALYA AGED ABOUT 44 YEARS S/O ISHWARA SAPALYA APPELLANTS 1 TO 5 ARE R/AT KASHI KATTE SUBRAMANYA POST SULLIA TALUK, 2 D.K. 574238 ...APPELLANTS (BY SRI. KRISHNAMOORTHY D., ADVOCATE) AND: KUKKE SRI SUBRAMANYA SWAMY TEMPLE SUBRAMANYA, SULLIA TALUK, A RELIGIOUS TEMPLE, REP/BY ITS EXECUTIVE OFFICER/ADMINISTRATOR, SUBRAMANYA, SULLIA TALUK, D.K . DIST RICT 574238. …RESPONDENT (BY SMT. VAISHALI HEGDE, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.12.2018 PASSED IN RA.NO.04/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SULLIA D.K.,ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 05.10.2002 PASSED IN OS.NO.42/83 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC SULLIA.,D.K. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.08.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV JUDGMENT 1. The present Regular Second Appeal is filed against the judgment and decree dated 19.12.2018 passed in 3 R.A.No.04/2012 on the file of the Senior Civil Judge & JMFC, Sullia D.K (hereinafter referred to as ‘the first appellate Court’) and allow the judgement and decree dated 05.10.2002 passed in O.S.42/1983, on the file of the Civil Judge (Jr.Dn) & JMFC at Sullia D.K (hereinafter referred to as ‘the Trial Court’). 2. The appellants herein are the respondents before the first appellate Court and the respondent herein is the plaintiff/appellant before the Courts below. 3. For convenience of reference, the parties herein are referred to as arrayed before the Trial Court. 4. The plaintiff filed O.S.42/1983, against the defendant on the file of the Civil Judge (Jr.Dn) & JMFC at Sullia D.K for the relief of recovery of vacant possession of suit schedule premises, recovery of arrears of rent from 01.07.1982 upto 30.06.1983 at the rate of Rs.10/- per month and also for recovery of mesne profits at the rate of Rs.25/- per month from 01.07.1983 till the date of delivery. 5. It is the case of the plaintiff that, plaintiff- Kukke Shri Subramanya Swami Temple claims to be the absolute owner of 4 the thatched building bearing Panchayath Door No.11-96, situated in Subramanya Village, Sullia Taluk, which is the suit schedule premises. The defendant obtained the said premises on an oral lease from the plaintiff at a monthly rent of Rs.10/-, calculated according to the English calendar month commencing on the first and ending on the last day thereof, and the premises is now capable of fetching a monthly rent of Rs.25/-. The defendant has been in default of rent payment since 01.07.1982, resulting in arrears of Rs.120/-. The plaintiff caused a lawyer’s notice dated 26.05.1983 to be issued, terminating the tenancy and demanding delivery of possession of the premises on or before 30.06.1983; however, the defendant failed to vacate and, instead, replied denying the plaintiff’s title. Hence, the present suit is instituted for recovery of possession of the suit premises, arrears of rent, and mesne profits. 6. Per contra, the defendant has entered appearance and filed the written statement asserting that the suit is false, frivolous, and not maintainable, denying the plaintiff’s ownership of the suit premises, though admitting that he had taken the suit schedule property on oral lease from the plaintiff at a monthly rent of Rs.10/-, payable according to the English calendar month 5 commencing on the first and ending on the last day thereof. He has denied all other averments relating to arrears of rent, mesne profits, and other claims. The defendant further contends that he is an agricultural labourer regularly working as a coolie under the plaintiff and presently continues in such employment; accordingly, he has filed an application under Section 38 of the Karnataka Land Reforms Act, 1961, which is pending enquiry before the Land Tribunal, Sullia, in D.W.H.8/82-83. He therefore, submits that Trial Court has no jurisdiction to entertain the present suit until disposal of the said application in D.W.H.8/82-83 and prays that the plaintiff’s suit be dismissed with costs. 7. Based on the pleadings, the Trial Court has framed following issues for consideration:- “1. Whether the plaintiff proves that the defendant is in arrears of rent since 01.07.1982? 2. Whether this court has got jurisdiction to try this suit? 3. Whether the plaintiff is entitled to get the reliefs claimed in the suit? If so, what reliefs the plaintiff is entitled to get? 4. Whether the plaintiff is entitled for the mesne profits at the rate of Rs.25/- per month from 01.07.1983 till the date of delivery? 6 5. What order or decree?” 8. In order to substantiate his claim, the plaintiff examined himself as PW-1 and got marked the documents as per Exs.P1 to P3. On the other hand, the defendant to defend his defense, got himself examined as DW1 and got document marked as per Ex.D1. 9. The Trial Court based on the pleadings, oral and documentary evidence held as under:- “………. Therefore, on going through the entire evidence of PW.1. as well as documentary evidence placed on behalf of defendant at Ex.D.1. it is crystal clear that the defendant and his wife are residing in the same premises which is none other than the suit premises and as per the above order of the Hon’ble High court of Karnataka the occupancy right was granted in favour of the wife of the defendant relating to the suit premises and though the said order was passed in the year 1997 itself by the Hon’ble High court of Karnataka, the plaintiff has not produced any single material before the court to show that either the said order of the Hon’ble High court of Karnataka is stayed by any other higher authority or is set aside. Therefore it appears that the order of the Hon’ble High court passed in CRP.596/90 dated 25-6-1997 has become final. By virtue of the same the plaintiff has lost its right, title, and interest over the suit premises. When there is no right, title or interest to the plaintiff over the plaint A schedule premises, he is not entitled to either to recover the vacant possession of the suit premises or to recover any alleged arrears of rent or any mesne profits from the defendant. In 7 view of the finalise of the tenancy dispute between the parties by virtue of the order of the Hon’ble High court of Karnataka as per Ex.D.1. now there is no bar to this court to try this suit . Therefore this court has got jurisdiction to try this suit. For the aforesaid reasons, Issues 1,3 and 4 are answered in the negative and Issue No.2 is answered in the affirmative.” 10. Assailing the said Judgement and decree of the Trial Court, the plaintiff has preferred an appeal in R.A.No.04/2012. The First Appellate Court has framed following issues for consideration:- “1. Whether the appellant has made out a ground for allowing the application filed under Order 41, Rule 27 of CPC? 2. Whether the respondent has made out a ground for allowing the application filed under Order 41, Rule 27 of CPC? 3. Whether the appellant established the relationship of landlord and tenant? 4. Whether the plaintiff/appellant established that, the defendant is liable to pay arrears of rent from of Rs.120/- from 01-07-1982 to 30.06.1983? 5. Whether the plaintiff/appellant is entitled for mesne profit at the rate of Rs.25/- per month from 01-07-1983 till the date of delivery? 6. Whether the plaintiff/appellant is entitled for possession of the suit schedule premises? 7. Whether the impugned judgement passed by the Trial Court suffers from illegality and requires interference of this Court? 8 8. What order or decree?” 11. The First Appellate Court after considering the facts and circumstances, observed as under:- The defendant has admitted in his written statement that he was a tenant under the plaintiff, paying a monthly rent of Rs.10/-, though the tenancy was oral. As per Section 116 of the Indian Evidence Act, 1872, a tenant is estopped from disputing the title of the landlord at the commencement of tenancy. Further, Section 58 of the Act stipulates that admitted facts need not be proved. The Apex Court in case of Kanakalatha Das & Ors. v. Neba Kumar Das & Ors., reported in AIR 2018 SC 682, held that in a suit for eviction, the landlord is required only to establish the existence of a landlord-tenant relationship, and title disputes are irrelevant if the tenancy is admitted. Therefore, the plaintiff was not required to prove title over the suit property afresh. 12. Further, the defendant, during evidence, introduced the plea that his wife, Smt.Devi had been granted the suit property by the Land Tribunal in proceedings No.DWH15/1982-83 and DW8/1982- 83, and that this Court in CRP No.596/1990, by its Order dated 25.06.1997, had affirmed the decision of the Tribunal. However, 9 this Court in LRRP No.596/1990 by Order dated 23.07.2009, set aside the Tribunal’s grant, holding that her husband being a Government employee, Smt.Devi was not entitled to claim ownership as an agricultural labourer. There was no appeal preferred against this decision. Hence, the plaintiff’s title stands unaffected. Consequently, the defendant and his legal heirs are estopped from asserting ownership through the wife’s claim, which has attained finality. 13. During the appellate proceedings, both parties filed applications under Order 41, Rule 27 of the CPC seeking to produce additional evidence. However, the documents sought to be adduced, including mutation proceedings, house tax receipts, and resolutions, were either available earlier or irrelevant, as payment of tax does not confer title. In the case of Union of India v. Ibrahim Uddin reported in (2012) 8 SCC 148, the Apex Court reiterated that additional evidence at the appellate stage is permissible only in exceptional circumstances. As the Appellate Court could pronounce the judgment based on the existing record, both applications were rightly rejected. 10 14. The plaintiff had issued notice dated 26.05.1983 (Ex.P1) demanding arrears of rent from 01.07.1982, to which the defendant replied on 31.08.1983 after filing of the suit. No proof of rent payment from July 1982 was produced by the defendant. The suit for possession was instituted on 06.07.1983, and mesne profits were claimed at Rs.25/- per month from 01.07.1983. Given the defendant’s failure to pay rent during the pendency of the litigation and his unlawful possession, the claim for mesne profits was reasonable. 15. The Trial Court, in O.S.No.42/1983, erred in dismissing the suit by relying on CRP No.596/1990 while disregarding the defendant’s admission of tenancy and the subsequent setting aside of the tribunal’s order in LRRP No.596/1990. The First Appellate Court, exercising power under Section 96 read with Order 41 Rule 1 of the CPC, has set aside the decree of the trial Court and decreed the suit with costs. The defendants, now represented by legal heirs, are directed to deliver vacant possession within one month, pay arrears of Rs.120, and mesne profits at Rs.25/- per month from 01.07.1983 until delivery of possession. 11 16. The learned counsel appearing for the appellants would contend that the First Appellate Court failed afford and meaningfully decide the valuable right to re-appreciate the entire oral and documentary evidence and address all issues in proper perspective resulting in miscarriage of justice to the appellants. Reversing the judgment and decree in O.S.No.42/1983 dated 05.10.2002 are not based on evidence and disclose erroneous appreciation of the materials on record. 17. It is further contended that, as per Ex.D1, occupancy right was granted in favour of the appellant (wife of the defendant) by the Tribunal and the same was confirmed by this Court in CRP No.596/1990 dated 25.06.1997, which has not been reversed. Consequently, the respondent/plaintiff lost right, title, and interest over the suit schedule premises and was not entitled to the relief of eviction. The first appellate Court nevertheless reversed the trial Court’s finding without any supporting material, and, despite the appeal having been filed on 23.08.2006 against the judgment and decree dated 05.10.2002, without application for condonation of delay and the appeal numbered in the year 2011. It condoned an exorbitant delay; this, coupled with the plaint’s failure to properly describe the suit schedule premises, 12 that shows want of vigilance and warrants interference. Moreover, Ex.D1 pertains to the wife of the defendant, whose title stands admitted; hence the plaintiff cannot assert that the defendant is his tenant and seek eviction. The impugned judgment and decree, including the findings on Issues No.1 to 7, being in violation of the Tribunal’s grant as affirmed by this Court on 25.06.1997, are unsustainable in law and liable to be set aside. On hearing the submissions without admitting the second appeal issued emergent notice and also a direction was given that respondent is directed not to precipitate the matter in furtherance of filing execution petition No.18/2020 on the file of Civil Judge (Jr.Dn) and JMFC, Sullia, Dakshina Kannada, till the next date of hearing. 18. The learned counsel for appellants raised the following substantial questions of law at the time of hearing for admission; (a) Whether the Judgement and Decree passed by the Lower Appellate Court is vitiated for non-consideration of documents on record produced especially at Ex.D1 by the appellant in its true sense? (b) Whether the Lower Appellate Court is justified in allowing the Regular Appeal filed by the Plaintiff/Respondent in the absence of proper schedule of the property with Survey Number without considering the appeal on merits? 13 (c) Whether the Lower Appellate Court is justified in allowing the Regular Appeal filed by the Plaintiff/Respondent in the absence of Proper Right Title and Interest over the Schedule Property of Plaintiff/Respondent in view of the Order of this Hon'ble Court in CRP No 596/1990 dated 25-06-1997 (Ex.D1)? 19. Heard learned counsel appearing for the appellants as well as respondent’s counsel. 20. On hearing the submissions of the counsel for the appellants, it appears that at the outset, it has to be noticed that this being a second appeal, it is only substantial questions of law which gives raise for this Court to clutch the jurisdiction and answer the said questions of law as otherwise, this Court would lack jurisdiction to entertain the second appeal. 21. The respondent’s counsel filed a memo on behalf of the respondent on 14.11.2025 and also filed a judgment dated 29.07.2009 passed by this Court in LRRP No.596/1990 and the judgment dated 22.03.2010 passed by the Hon’ble Supreme Court of India in SLP (Civil) CC No.3956/2010 along with this memo. 22. As could be seen from the impugned judgment in RA No.4/2012 and judgment and decree in suit OS No.42/1983 it is 14 observed that the Trial Court has miserably failed to appreciate the evidence on record and dismissed the suit filed by the plaintiff. However, the First Appellate Court has appreciated the evidence and material on record and declared that the defendant and his legal heirs are in possession of the suit property without paying anything to the plaintiff’s Institution. Hence, the plaintiff is not only entitled for possession of the suit property but also entitled for mesne profits since the plaintiff established that the defendant is the tenant. 23. As could be seen from the order in LRRP No.596/2019 dated 23.07.2009, it is observed that the appellants herein filed the above LRRP filed under Section 121-A of the Karnataka Land Reforms Act against the order dated 31.08.1989 passed in LRAA No.392/1986 on the file of Additional Land Reforms Appellate Authority with regard to the subject land in this second appeal and the above appeal is dismissed and observed that it cannot be said that the second petitioner ie., mother of the appellants herein was entitled to claim as an agricultural labourer and seek ownership of the dwelling unit when her husband was so employed. 15 24. Further, it is observed that the mother of the first petitioner preferred and SLP against LRRP No.596/1990 dated 23.07.2009 with delay condonation application and the delay was condoned, the SLP was dismissed. In view of the above order and judgment the petitioners are not entitled for any relief from this Court and the order in LRRP No.596/1990 became final. 25. In view of the above discussions, the substantial questions of law raised by the appellants is not at all acceptable under law after appreciating the evidence on record and judgments with regard to the suit schedule property considered by the Appellate Authorities and the Appellate Courts, it appears that there is no merit to interfere or to consider the substantial questions of law raised by the appellants and no need to re-appreciate the evidence on record. Accordingly, the second appeal is dismissed. Sd/- (DR. K.MANMADHA RAO) JUDGE GH