- 1 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 29TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 1398 OF 2008 BETWEEN: SRI. DATTUSA S/O. KHANDUSA CHAVAN, AGED ABOUT 59 YEARS, OCC. BUSINESS, R/O. SIDDAVEERAPPAN PETH, HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580020. …APPELLANT (BY SRI. ASHOK HARANAHALLI, SR. COUNSEL FOR SRI. G. I. GACHCHINAMATH, ADVOCATE) AND: 1. SRI. SIDDANAGOUDA SHIVANAGOUDA PATIL SINCE DECEASED BY HIS LRS. 1A. SMT. GOOLAMMA W/O. SHIDDANAGOUDA PATIL, AGED ABOUT 56 YEARS, OCC. HOUSEHOLD WORK, 1B. SMT. SHOBA W/O. SHANKARAGOUDA PATIL, D/O. SHIDDANAGOUDA PATIL, AGED ABOUT 36 YEARS, OCC. HOUSEHOLD WORK, 1C. BASANAGOUDA S/O. SHIDDANAGOUDA PATIL, AGED ABOUT 28 YEARS, OCC. SERVICE, ALL ARE RESIDENTS OF BHAIRIDEVARAKOPPA, TQ. HUBBALLI, DIST. DHARWAD. 2. THE SUB-REGISTRAR YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.04 10:19:30 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 HUBBALLI. 3. NARAYAN PURUSHOTTAM THAKKAR SINCE DECEASED BY HIS LRS, SMT. DAMYANTI W/O. NARAYAN THAKKAR, AGED ABOUT 65 YEARS, OCC. HOUSEHOLD WORK, 4. SRI. JAYESH NARAYAN THAKKAR AGED ABOUT 45 YEARS, OCC. BUSINESS, 5. SRI. JATIN S/O. NARAYAN THAKKAR, AGED ABOUT 40 YEARS, OCC. BUSINESS, 6. KALPESH S/O. NARAYAN THAKKAR, AGED ABOUT 35 YEARS, OCC. BUSINESS, 7. MITESH S/O. NARAYAN THAKKAR, AGED ABOUT 32 YEARS, OCC. BUSINESS, ALL ARE R/AT. D.NO. 2000-1, DR. M.C.MODI ROAD, 1ST MAIN, MCC 'A' BLOCK, DAVANAGERE-577001. …RESPONDENTS (BY SRI. MAHESH WODEYAR, ADVOCATE FOR C/R4; SRI. DAYANAND SANGRESHI, HCGP FOR R2; R1(A), R1(B), R1(C)-NOTICE SERVED; R3, R6 AND R7-NOTICE SERVED; R5-HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT & DECREE DATED 17.3.2008 MADE IN R.A.NO.125/2001 PASSED BY THE I ADDL. CIVIL JUDGE (SR.DN), HUBBALLI AND ALSO IMPUGNED JUDGMENT AND DECREE DATED 13.7.2001 PASSED IN O.S.NO.26/1993 PASSED BY THE PRL. CIVIL JUDGE (JR.DN), HUBBALLI IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard Sri.Ashok Harnahalli, learned Senior Counsel, appearing for the appellant and Sri.Mahesh Wodeyar, learned counsel appearing for the respondent No.4. The other respondents despite service of notice have not appeared before this Court. 2. Being aggrieved by the judgment and decree in R.A.No.125/2001 passed by the learned First Additional Civil Judge (Sr.Dn), Hubballi dated 17.03.2008, the appellant therein, who was defendant No.2 in O.S.No.26/1993 is before this Court in this second appeal. 3. The parties would be referred to as per their rank before the Trial Court for the sake of convenience. 4. The plaintiff (now represented by defendant No.3 to 7) filed a suit for declaration that the alienation in respect of the suit schedule property, which is site No.6 in Block No.284 of the Bhairidevarakoppa, in favour of defendant No.2 is null and void, ab-initio and not binding on the plaintiff; and consequential relief - 4 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 of permanent injunction. During the pendency of the suit, by way of amendment to the plaint, he also prayed for an alternative relief of possession in case the Court comes to a conclusion that the plaintiff is not in possession of the suit schedule property. 5. It was contended that the suit schedule property was owned by the father of defendant No.1 and in the year 1961, the father of the defendant No.1 executed registered permanent lease deed in favour of one Vasant Belamkar and thereafter, the said Vasant Belamkar had sold the permanent lease-hold rights in favour of the plaintiff through registered deed dated 11.12.1970. In pursuance to the said deeds, the plaintiff was in possession and enjoyment of the suit schedule property. It was contended that the defendant No.2, claiming to be the purchaser of the suit schedule property, tried to interfere in the possession of the plaintiff and later he came to know that the defendant No.1 had executed a registered sale deed in favour of the defendant No.2, which cannot bind the plaintiff in any way since he is in possession of the property on the basis of permanent lease deed. - 5 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 6. The said suit was resisted by the defendant No.2. The defendant No.1 and 2 appeared before the Trial Court and filed their written statements. The defendant No.1 and 2 denied the contentions of the plaintiff but on the other hand, they contended that the defendant No.1 had sold the title in respect of the suit schedule property to the defendant No.2 under a sale deed dated 01.10.1991 and as such, the defendant No.2 is in possession and enjoyment of the property. It is also contended that the defendant No.1 had sold plot No.4 and 5, which were adjacent to the suit schedule property to one Rasheed Ballari and Veeresh, who are in possession of the same. 7. On the basis of the said contentions, the following issues were framed: “ISSUES 1. Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit property since 12.12.1970? 2. Whether the plaintiff proves that the alienation of the suit property at para 2(b) by defendant No.1 in favour of defendant No.2 is null, void, ab-initio, not binding on the plaintiff? - 6 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 3. Whether the plaintiff proves that defendant No.2 is causing obstruction to his peaceful possession and enjoyment of the suit property at para 2(b) of the plaint? 4. Whether the defendant No.2 has proved that he is in peaceful possession and enjoyment of the suit property at para 2(b) as a owner? 5. Whether the plaintiff proves that defendant No.1 is trying to alienate the suit property at a para 2(a) causing disturbances to the peaceful possession and enjoyment of the suit property by the plaintiff? 6. Whether the plaintiff proves that he is entitled for the reliefs prayed for? 7. Whether the court fee paid is not proper? 8. Whether the suit is hit by section 80 of C.P.C. against defendant No.3? 9. Whether the suit is bad for non-joinder of necessary parties? 10. Is there any causes of action? 11. What order?” 8. The Power of Attorney holder of the plaintiff was examined as PW1 and Ex.P1 to Ex.P9 were marked and during the cross-examination, certain documents were marked by way - 7 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 of confrontation. The defendant No.2 was examined as DW1 and defendant No.1 was examined as DW2. Ex.D1 and Ex.D2 were marked. 9. After hearing the arguments, the Trial Court answered issue Nos. 1 to 3, 5 and 6 in the affirmative and the remaining issues in the negative and proceeded to decree the suit. By virtue of the said decree, the alienation made by defendant No.1 in favour of defendant No.2 was declared null and void and consequently, defendant Nos.1 and 2 were restrained from interfering in the possession of the plaintiff. 10. Being aggrieved, defendant No.2 approached the First Appellate Court in R.A.No.125/2001. During pendency of the said appeal, the appellant also filed an application in I.A. No.IV, whereby he sought production of certain additional documents. The First Appellate Court heard the arguments and framed the following point for its consideration. “Whether the impugned judgment and decree requires interference of this court and that the appeal is fit to be allowed?” - 8 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 11. Thereafter, without dealing with I.A.No.IV filed under Order XLI Rule 27 of CPC, it proceeded to dismiss the suit, but however, granted the alternative prayer of the plaintiff that defendant No.2 should hand over the possession of the Plot No.6 to the plaintiff. 12. Being aggrieved defendant No.2 is before this Court in second appeal. At the time of admission, the following substantial questions of law were framed by this Court: “1. Whether the Court below could have directed the appellant to hand over possession of the suit property despite holding that the appellant herein is the owner in possession of the suit property? 2. Whether the lower appellate Court could have directed the appellant to hand over the suit property to the legal heirs of the first defendant in the absence of any specific prayer in the suit itself by the plaintiff?” 13. The learned Senior Counsel appearing for the appellant would submit that the First Appellate Court could not have directed the appellant to hand over the possession of the suit schedule property to the plaintiff. It is submitted that when the appeal is dismissed, granting of the alternative prayer do not arise. Secondly, he submitted that plaintiff was not aggrieved by - 9 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 the order passed by the Trial Court and therefore, he had not filed any cross-objection seeking possession of the property. It is also submitted that the date on which the plaintiff was dispossessed from the suit schedule property, has not been averred in the plaint and therefore, the First Appellate Court could not have granted the relief of possession. Further, it is submitted that the impugned judgment of the First Appellate Court does not deal with the additional evidence sought to be produced by the appellant and it does not consider the evidence on record. Therefore, he submits that the impugned judgment as well as the judgment of the Trial Court are not sustainable in law. 14. The learned counsel appearing for respondent No.4 Sri.Mahesh Wodeyar, would submit that the contention of the plaintiff was that he was in possession of the suit schedule property on the basis of a permanent lease deed executed by father of defendant No.1 and therefore, defendant No.1 could not have executed any sale deed in favour of defendant No.2. 15. It is pertinent to note that, when the father of defendant No.1 had executed a permanent lease deed, only the - 10 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 leasehold rights and the possession thereof was transferred in the name of the plaintiff. Such registered lease deed cannot in any way affect the title over the suit schedule property which was held by the father of defendant No.1. Now the question would be whether the permanent lease deed would create any interest which would be in conflict with the title to the property. The said question is no more res-integra. It is settled position of law that the lease and title operate in distinct realms. A lease would be a transfer of possession coupled with rent but title creates substantive rights of ownership. The Hon’ble Supreme Court reiterated this aspect in the case of Mohd. Noor v. Mohd. Ibrahim1, as follows: “In Butterworth's Words and Phrases Legally Defined, 2nd Edn., Vol. 4, page 61, ‘ownership’ has been defined as under: “Ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration, and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership.” 1 (1994) 5 SCC 562 - 11 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 Salmond summed up the concept of ownership as under: “Summing up the conclusion to which we have attained, we may define the rights of ownership in a material thing as the general, permanent and inheritable right to the uses of that thing.” 5. Austin in his book Jurisprudence, 3rd Edn., page 817, defines the “right of ownership” as— “a right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration over a determinate thing.” The theoretical concept of ‘ownership’, therefore, appears to be that a person can be considered to be owner if he has absolute dominion over it in all respects and is capable of transferring such ownership. Heritability and transferability are no doubt some of the many and may be most important ingredients of ownership. But they by themselves cannot be considered as sufficient for clothing a person with absolute ownership. Their absence may establish lack of ownership but their presence by itself is not sufficient to establish it. The ownership concept does not accord with the status of a person who is paying the rent. A tenant under various legislations either urban or rural property, agricultural or otherwise, enjoys right of heritability and transferability. At the same time, he does not become owner of the property. Transfer of ownership is distinct and different from transfer of interest in the property. A licensee or even a tenant - 12 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 may be entitled by law to transfer his interest in the property but that is not a transfer of ownership.” 16. The division Bench of Bombay High Court has also dealt the subject in the case of Collector of Bombay v. Khatizabai Dharsi Somji Dossa2, as follows: “27. A man who being owner of land grants a lease in perpetuity carves a subordinate interest out of his own and does not annihilate his own interest. This result is to be inferred by the use of the word ‘lease,’ which implies an interest still remaining in the lessor. Before the lease the owner had the right to enjoy the possession of the land, and by the lease he excludes himself during its currency from that right, but the determination of the lease is a removal of that barrier, and there is nothing to prevent the enjoyment from which he had been excluded by the lease.” 17. The Delhi High Court in the case of Hotel Queen Road P. Ltd. v. UOI3, reiterated the same as under: “13. A lease in ordinary legal sense contemplates demise or a transfer of a right to enjoy land for a term or in perpetuity for a consideration of a price paid or promised or services or other things of value to be 2 1961 SCC OnLine Bom 32 : (1962) 64 Bom LR 311 3 2015 SCC OnLine Del 9807 - 13 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 rendered periodically or on specified occasions to the transferor. There is a marked difference between lease and ownership. While the former is only a transfer of a right to enjoyment to a property, latter denotes a complete and total control over the property and not merely a right to enjoyment. The lessee of a property is a tenant. He may be entitled to transfer his interest in the land, but right to transfer ownership vests with the owner of the said land. Tenancy cannot be considered to be a permanent ownership, even when the tenant has made permanent structures at his own cost on the land. Though heritability and transfer may be incidents common to both ownership and lease, however, that by in itself are not sufficient to cloth a person with absolute ownership.” 18. Therefore, a title holder would definitely have substantive rights in respect of the property, even though the leasehold rights are transferred to some other third person. The distinction between the leasehold rights and the title are obvious and is a subject matter of catena of decisions by the High Courts and the Hon’ble Supreme Court. 19. This aspect was not at all considered by the First Appellate Court in extenso. It jumps to the conclusion that defendant No.2 is in possession of the property and directs - 14 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 defendant No.2 to hand over the possession of the suit schedule property to the plaintiff. This Court is left to speculate that the First Appellate Court had considered I.A.No.IV. The question whether the documents produced under I.A.No.IV sufficiently established the possession or not, or in what manner defendant No.2 is in possession of the property has not been dealt by the First Appellate Court. 20. It is pertinent to note that by virtue of the interlocutory application before this Court under Order XLI Rule 27 of CPC dated 11.12.2009, certain documents are sought to be produced in this appeal also. In view of the fact that the First Appellate Court had not framed any point for consideration which reflects the grounds taken by the appellant, there is no other option for this Court to hold that the First appellate Court did not consider the matter in appropriate manner. The impugned judgment of the First Appellate Court which does not reflect as to when the appellant had come in possession, and when the plaintiff was dispossessed and why the finding of the Trial Court that the plaintiff is in possession deserves to be reversed is not forthcoming from the judgment. - 15 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 21. There is no other way than to remand the matter to the First Appellate Court to consider all these aspects. Therefore, the impugned judgment deserves to be set aside and the matter is to be remanded to the First Appellate Court to consider the application on I.A.No.IV filed before it and the one filed before this Court under Order XLI Rule 27 of CPC and then to deal with the points that are/maybe raised before it in the appeal. Hence, the following: ORDER i) The appeal is allowed. ii) The impugned judgment of the First Appellate Court in R.A.No.125/2001 is set aside. iii) The matter is remanded to the First Appellate Court i.e. the learned I Additional, Senior Civil Judge, Hubballi with a direction to consider the I.A.No.IV filed before it and the one filed before this Court in the light of the judgment of the Hon’ble Apex Court in the case of Union of India vs. Ibrahim and another4 and to dispose off the appeal in accordance with law. 4 (2012) 8 SCC 148 - 16 - HC-KAR NC: 2025:KHC-D:14641 RSA No. 1398 of 2008 iv) It is made clear that nothing stated in this judgment shall be construed to be an expression of the opinion on the merits. v) Both the parties are directed to appear before the First Appellate Court on 02.12.2025. vi) Send back the records of the Trial Court as well as the First Appellate Court to the learned I Additional, Senior Civil Judge, Hubballi along with the interim application filed before this Court under Order XLI Rule 27 of CPC. SD/- (C M JOSHI) JUDGE YAN: Para 1 to 8 SSP: Para 9 to end CT:PA LIST NO.: 1 SL NO.: 40