Karnataka High Court
Imthiyazunnisa vs G. Mohammed Afzal on 10 October, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:36756
RSA No. 2198 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2198 OF 2017 (POS)
BETWEEN:
1. IMTHIYAZUNNISA
AGED ABOUT 48 YEARS,
R/AT 8-8-661,
LOWER CAR STREET CROSS ROAD,
MANGALORE-575001.
1(a) SMT. FATHIMA YUSRA
D/O MOHAMMED JAFFER JUBAPU
AGED ABOUT 42 YEARS
1(b) SMT. SAMEERA
D/O MOHAMMED JAFFER JUBAPU
AGED ABOUT 41 YEARS
1(c) SRI SAAD JUBAPU
Digitally signed
by SHARANYA T S/O MOHAMMED JAFFER JUBAPU
Location: HIGH AGED ABOUT 39 YEARS
COURT OF
KARNATAKA ALL ARE R/AT NO.8-8-661
"SAAD MANZIL"
LOWER CAR STREET ROAD
CSR STREET,
MANGALORE-575007
DAKSHINA KANNADA DISTRICT.
...APPELLANTS
(BY SRI ISMAIL M. MUSBA, ADVOCATE)
-2-
NC: 2023:KHC:36756
RSA No. 2198 of 2017
AND:
G. MOHAMMED AFZAL
SINCE DEAD BY LRS
1. FATIMA ZOHARA,
W/O LATE G.MOHAMMED AFZAL,
AGED ABOUT 60 YEARS,
2. FAROZA
D/O LATE G. MOHAMMED AFZAL,
AGED ABOUT 43 YEARS,
3. FARZANA
D/O LATE G. MOHAMMED AFZAL,
AGED ABOUT 40 YEARS,
4. SHABANA
D/O LATE G. MOHAMMED AFZAL,
AGED ABOUT 37 YEARS,
ALL ARE RESIDING AT
D.NO.9-21-758,
AZIZUDDIN ROAD, CITY PRESS,
MANGALORE-575001.0
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 13.07.2017,
PASSED IN R.A.NO.37/2009 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU.D.K,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.01.2009 PASSED IN O.S.NO.127/2006
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN)
MANGALORE D.K.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC:36756
RSA No. 2198 of 2017
JUDGMENT
This matter is listed for admission.
I have heard the learned counsel for the appellants.
2. This second appeal is filed against the concurrent
finding of the Trial Court and also the First Appellate Court. The
claim of the plaintiff before the Trial Court that plaintiff is the
owner of the 'A' schedule property and also the contention that
defendant is the tenant and there was a oral tenancy and there
exists jural relationship of landlord and tenant between himself
and defendant and also it is the contention of the plaintiff that
defendant has constructed the pillar in 'A' schedule property
illegally touching the northern wall of building bearing Door
No.8-8-661 as alleged. On the other hand, defendant contend
that he is the absolute owner of the premises bearing Door
No.8-8-660 and hence, the Trial Court taking note of the
pleading of the parties framed the appropriate issues and
allowed the parties to lead evidence.
3. The plaintiff in order to prove his case examined
one witness as PW1 and also got marked documents Exs.P1 to
P10. On the other hand defendant also examined one witness
NC: 2023:KHC:36756
RSA No. 2198 of 2017
as DW1 and got marked the documents Exs.D1 to D10. The
Trial Court having considered the oral and documentary
evidence answered issue Nos.1 to 3 as negative in coming to
the conclusion that plaintiff has not proved that he is the
owner of 'A' schedule property and also not proved the
existence of jural relationship between the plaintiff and
defendant and also not proved with regard to the construction
as alleged in the plaint.
4. On the other hand, Trial Court comes to the
conclusion that defendant has proved that he is the owner of
the property in lawful possession i.e. Door No.8-8-660 and
comes to the conclusion that plaintiff is not entitled for any
relief and dismissed the suit.
5. Being aggrieved of the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.37/2009. The First
Appellate Court considering the grounds urged in the appeal
formulated the points, whether the plaintiff has proved that he
being the owner of 'A' schedule property had let the same on
oral lease to the defendant and whether proved that defendant
had constructed the pillar illegally in the 'A' schedule property
NC: 2023:KHC:36756
RSA No. 2198 of 2017
and whether the defendant proves that he is the owner in
possession property bearing Door No.8-8-660 and whether the
judgment of the Trial Court is perverse and it requires
interference?
6. The First Appellate Court also on reconsideration of
both oral and documentary evidence affirmed the judgment and
decree of the Trial Court and comes to the conclusion that the
Trial Court fails to prove the very relationship of landlord and
tenant as claimed by the plaintiff that defendant is the oral
tenant and dismissed the appeal. Being aggrieved by the said
concurrent finding, the present second appeal is filed.
7. The counsel would vehemently contend that, both
the Courts have committed an error in not pursuing the matter
in a proper perspective and First Appellate Court also
committed serious error of law in dismissing the appeal without
assigning the valid reasons and both the Courts failed to
consider the material on record with regard to the flow of title
deeds and other necessary documents. The counsel in support
of his argument contend that this Court has to frame
substantial question of law that the judgment and decree of
NC: 2023:KHC:36756
RSA No. 2198 of 2017
both the Courts are vitiated in not considering the plaintiff as
the owner of schedule property and also this Court has to frame
substantial question of law that despite of production of flow of
title deeds and defendant admitting the plaintiff acquiring title
under Ex.P3 and that writings on page No.4 have been inserted
subsequent to execution of registration of Ex.D3, the Trial
Court and First Appellate Court committed an error that the
judgment and decree passed by the First Appellate Court has
erred in considering the Commissioner's Report. It says that
schedule property has covered by sale deed of the plaintiff.
Hence, admit and frame substantial question of law.
8. Having heard the appellants' counsel and also the
material on record and Trial Court has framed the issues with
regard to ownership in respect of 'A' schedule property and also
the very contention of the plaintiff that defendant is a tenant
under him and there was a oral tenancy and in order to
substantiate this contention, no material is placed before the
Court and Trial Court considered the material on record
particularly the contention of the plaintiff that he is owner of
the property and counsel appearing for the appellant also
brought to notice of this Court that Ex.P3 is the sale deed under
NC: 2023:KHC:36756
RSA No. 2198 of 2017
which he had purchased 'A' schedule property and Trial Court
taking into note of issue No.1 regarding ownership is
concerned, having perused both oral and documentary
evidence comes to the conclusion that on perusal of the 'A'
schedule to the plaint it is evident that the plaintiff has not
mentioned the boundaries of the disputed property and further
the plaintiff also has not mentioned the door number of the
structure of the disputed property and according to the plaintiff
dispute is in respect of portion of building shown as Ex.P1(a).
On perusal of Ex.D1 - photo it appears that the said portion
seems to be the part and parcel of the main portion of the
building and also taken note of Ex.D1, it appears that plaintiff
has not used the said disputed portion towards the enjoyment
of his main building. When the plaintiff has filed the suit for the
relief of possession of 'A' schedule property and initial burden is
on the plaintiff to prove that he is the owner of the disputed
portion of the property and plaintiff utterly failed to prove that
he is the lawful owner in respect of the schedule property and
also not adduced any independent oral evidence to substantiate
that he is the lawful owner in respect of the 'A' schedule
property and also considered issue No.2 with regard to the
NC: 2023:KHC:36756
RSA No. 2198 of 2017
contention of the plaintiff that the defendant approached him to
grant 'A' schedule property on lease for the purpose of storing
timber logs and accordingly plaintiff granted 'A' schedule
property on oral lease to the defendant for commercial purpose
on a monthly rent of Rs.500/- and plaintiff admits that he was
not issuing any receipts and also it is his case that after some
time defendant sought permission from the plaintiff to utilize
the portion on leasehold vacant space for the purpose of
running office and accordingly plaintiff agreed and granted
permission and defendant erected walls and completed a
portion of leasehold vacant land as an office. Subsequently,
defendant sought permission of the plaintiff to demolish the
bifurcating wall that existed between 'A' schedule property and
defendant's building bearing door No.8-8-660 and plaintiff gave
the consent for the same. The plaintiff was constrained to
issue a registered legal notice to the defendant terminating the
tenancy and in order to prove the factum of tenancy also no
material is placed before the Court and also defendant has
denied the very contention that he was a tenant and also
seeking permission to construct the building and for demolition
of compound wall severing both the properties and the Trial
NC: 2023:KHC:36756
RSA No. 2198 of 2017
Court also taken note of admission given by PW1 and though
he claims that immediately after purchasing of the property he
gave the property for rental purpose, but he is not having any
personal information and it is suggested that defendant is in
possession from 1962 and the same was denied that he was
not aware of the same and these are the materials were taken
note of by the Trial Court while answering issue Nos.1 and 2
and First Appellate Court also on reappraisal of both oral and
documentary evidence in detail discussed the evidence of PW1
in paragraph No.17 and also in paragraph No.19 considering
the documents of Exs.P2 to 4 and P10 and also the evidence of
PW1 in paragraph No.17 and also taken note of the contention
of defendant in paragraph No.19 and also extracted the answer
elicited from D.W.1 and having re-assessed the evidence
available on record comes to the conclusion that the plaintiff
has not proved the ownership of 'A' schedule property as well
as letting out the premises in favour of the respondent and on
reconsidering found that material is placed with regard to the
tenancy existence between the plaintiff and defendant and also
considered the evidence with regard to the claim made by the
- 10 -
NC: 2023:KHC:36756
RSA No. 2198 of 2017
respondent that he is the owner in respect of door No.8-8-660
and not found any error committed by the Trial Court.
9. Having perused both the Trial Court and First
Appellate Court judgments, both the Courts have given anxious
consideration to the oral and documentary evidence available
on record and no doubt appellant/plaintiff has produced the
document of Ex.P3 as sale deed, but finding of the Trial Court is
very clear that with regard to the boundaries which he claims
has not placed any material to substantiate that he being the
owner in respect of the said boundaries and the same is also
considered by the First Appellate Court and when the very
identity of the property is not proved and also with regard to
the tenancy as alleged in the plaint also has not been proved
by placing any material or any admission on the part of D.W.1
in the cross examination, I do not find any error committed by
both the Trial Court as well as the First Appellate Court in
dismissing the suit of the plaintiff and concurring the same by
the First Appellate Court. Only this Court can exercise power
under Section100 of CPC if any perversity is found in the
judgment of the Trial Court and also the First Appellate Court
- 11 -
NC: 2023:KHC:36756
RSA No. 2198 of 2017
in not considering the material on record and the same is not
warranted in the case on hand.
10. In view of the discussions made above, I pass the
following:
ORDER
Second appeal is dismissed.
Sd/-
JUDGE
AP
