- 1 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 813 OF 2023 (MON) BETWEEN: SRI. MEHABOOB SAB S/O LATE ABDUL RAZAK SAB AGED ABOUT 92 YEARS R/O 31, BEHIND IKHLAS SCHOOL 2ND STAGE, DR. R M L NAGAR SHIVAMOGGA - 577 205. …APPELLANT (BY SRI. H.S. PRASHANTH, ADVOCATE) AND: SRI. HAJI ATHAULLA KHAN SINCE DEAD BY HIS LRS (A). SRI. ISRARULLA KHAN S/O LATE HAJI ATHAULLA KHAN AGED ABOUT 58 YEARS R/AT NO.107, 4TH CROSS ANWAR CLONY, BHADRAVATHI SHIVAMOGA - 577 301. (B). SMT. MUJEEBUNISSA S/O LATE HAJI ATHAULLA KHAN W/O MOHAMMAD IQBAL AGED ABOUT 53 YEARS R/AT NEW AMDI Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 JAYADEVA RICE MILL SHIVAMOGA - 577 201. (C). SMT. MOBINUNISSA D/O LATE HAJI ATHAULLA KHAN W/O SRI. MOHAMMAD AYUB KHAN AGED ABOUT 48 YEARS R/AT ANANDA RAO LAYOUT 2ND CROSS, BEHIND KSRTC DEPOT GOPALA EXTENSION SHIVAMOGA - 577 201. (D). SRI. MOHAMMED ALI KHAN S/O LATE HAJI ATHAULLA KHAN AGED ABOUT 47 YEARS R/AT KGN STORE, 2ND CROSS MAIN ROAD, J.P. NAGAR SHIVAMOGA - 577 205 (E). SMT. JABIN S/O LATE HAJI ATHAULLA KHAN W/O SRI. SHANSHURA REHAMAN AGED ABOUT 44 YEARS R/AT MANJUNATHA BADAVANE TIPPU NAGAR, GOPALA EXTENSON SHIVAMOGA - 577 205. (F). SRI. SARDARULLA KHAN S/O LATE HAJI ATHAULLA KHAN AGED ABOUT 41 YEARS R/AT 8TH CROSS, 100FT. ROAD, ELIYAS NAGAR, SHIVAMOGA - 577 201. - 3 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 (G). SRI. SARWARULA KHAN SO LATE HAJI ATHAULLA KHAN AGED ABOUT 40 YEARS R/AT NO.107, 4TH CROSS ANWAR COLONY, BHADRAVATHI SHIVAMOGA - 577 301. …RESPONDENTS (BY SRI. LOKESH R, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.01.2023 PASSED IN RA NO.67/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.04.2021 PASSED IN OS NO.608/2018 ON THE FILE OF THE C/c. I ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.H.S.Prashanth, learned counsel for the appellant and Sri.Lokesh R., learned counsel for the respondents. 2. Defendant in O.S.No.608/2018 who has suffered a judgment of decree of ejectment which was confirmed in RA No.67/2021, is the appellant. - 4 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 3. Facts in brief which are utmost necessary for disposal of the appeal are as under: 3.1. A suit for ejectment came to be filed in respect of the following immovable property (hereinafter referred to as suit property): RCC house in site No.31 (in survey No.233/1) Mandli village, Kasaba Hobli, Shivamogga Taluk measuring (25 + 32)/2 X (60 + 70)/2 situated at RML Nagar, Shivamogga city, bounded by: East – Site No.30 West – Road North – Site No.31B South – Site No.227 3.2. Plaintiff contended that plaintiff is the landlord of the premises and defendant is the tenant thereunder. The tenancy was terminated by issuing legal notice and thereafter, when there was no compliance to the callings of the notice, suit came to be filed. 4. Suit on due contest, came to be decreed by considered judgment dated 07.04.2021. - 5 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 5. Being aggrieved by the same, defendant filed an appeal before the First Appellate Court in RA No.67/2021. 6. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and by considered judgment dated 12.01.2023, dismissed the appeal filed by the defendant. 7. Being further aggrieved by the same, defendant is before this Court, in this appeal, on following grounds and substantial questions of law: GROUNDS  It is submitted that, the trial Court and the first appellate Courts have failed to appreciate the pleadings and the evidence available on record and have passed the impugned judgment and Decree It is against law evidence and probabilities of the case.  It is submitted that, the relationship and land lord and tenant is not accepted by the Appellant and the Appellant has taken a specific stand that the - 6 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 Appellant intended to purchase the suit property and as such based on the agreement he is put in possession of the suit property. But to prove the same he could not lead his evidence owing to outbreak of Covid 19 Pandemic but the trial Court and the first appellate Courts have failed to appreciate the same. The observations and findings of the trial Court in partly allowing the Suit are flimsy grounds only.  It is submitted that, the appellant/defendant has not lead his evidence in O. S No. 608/2018 as at that time, due to outbreak of Covid 19 pandemic and during that period of time, the Judgment was passed against the appellant/defendant. If an opportunity is not granted to the appellant to lead evidence from his side in O. S No. 608/2018 before the Hon'ble Trial Court, the appellant will be put to great hardship and it is even against the principal of natural justice.  It is submitted that, the trial Court and the first appellate Courts have failed to appreciate that the Respondent / Plaintiff has not produced any documents before the trial Court to prove that he is the absolute owner of the suit property and that the Defendant is the tenant under him. Except producing some old case related documents and - 7 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 one legal notice the Plaintiff has not produced any document. When the Defendant has specifically denied his absolute ownership over the suit property it is the duty of the Plaintiff to prove the same. As such very foundation to maintain a suit for eviction was not made out to maintain the suit under appeal. SUBSTANTIAL QUESTIONS OF LAW 1. Whether the trial Court and the First appellate Courts have properly appreciated the pleadings and the evidence available on record...? 2. Whether the Trial Court and the First appellate Courts are justified in decreeing a suit for eviction in the absence of any evidence to prove the ownership and tenancy that too when the ownership is specifically disputed by the Defendant...? 3. Whether the Trial Court is justified in not granting proper opportunity to the Defendant who is aged more than 90 years to lead his evidence which he could not lead due to outbreak of Covid 19 Pandemic...? 8. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently - 8 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 contended that defendant has disputed the landlord and tenant relationship which has not been taken into consideration by both the Courts while passing the impugned judgments which has resulted in miscarriage of justice and thus, sought for admitting the appeal on the aforesaid substantial questions of law. 9. He would also contend that in fact the stand taken by the defendant is now fortified by the third party by filing the suit against both the present appellant as well as the plaintiff and said suit is now numbered as O.S.No.53/2025. Therefore, there is a serious doubt as to the very ownership of the plaintiff and thus, sought for admitting the appeal on the aforesaid substantial questions of law. 10. Certified copy of the summons as well as the plaint in new suit in O.S.No.53/2025 is filed along with the memo by learned counsel for the appellant. - 9 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 11. Per contra, learned counsel for the respondent submits that it is settled principles of law that if the defendant is questioning the ownership of the landlord, he must first vacate the premises and thereafter, file a competent suit and then get back into the suit property which has not been done by the defendant all these years and thus, sought for dismissing the appeal. 12. Having heard the parties in detail, this Court perused the material on record meticulously. 13. On such perusal of the material on record, it is crystal clear that the plaintiff has issued the legal notice and when there was no compliance, the suit came to be filed. 14. It is not the case of the defendant that he is having the title over the suit property. 15. Under such circumstances, at the most, defendant can be taken into consideration as permissive possession and therefore, decreeing of the suit by the Trial - 10 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 Court confirmed by the First Appellate Court needs no interference. 16. Likewise, it is settled principles of law that whenever a tenant disputes the title in the landlord, he must vacate the premises and thereafter, file a separate suit and establish his independent title over the suit property and get back into the suit property. Admittedly, such a course is not adopted by the defendant in the case on hand. 17. Further, some third party filing a suit against the plaintiff and defendant in O.S.No.53/2025 has no bearing insofar as the present lis is concerned and if the third party succeeds in establishing his title over the suit property, he will get the possession of the property in accordance with law. 18. Defendant can also contest the suit either by siding the stranger or taking an independent stand in respect of the suit property. - 11 - HC-KAR NC: 2025:KHC:36454 RSA No. 813 of 2023 19. With that observation, this Court is of the considered opinion that appeal grounds have no merits. 20. Accordingly, following: ORDER Appeal stands dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 56 CT: BHK