Karnataka High Court

Rajan S/O Purushottam Mapsekar vs Gurunath S/O Mahadev Pawaskar on 3 June, 2025

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                            RSA No. 100855 of 2022


                       HC-KAR




                                 IN THE HIGH COURT OF KARNATAKA,
                                         DHARWAD BENCH

                                DATED THIS THE 3RD DAY OF JUNE 2025

                                                 BEFORE

                                THE HON'BLE MR. JUSTICE M.G.S. KAMAL

                           REGULAR SECOND APPEAL NO.100855/2022 (INJ)

                      BETWEEN:

                      RAJAN S/O. PURUSHOTTAM MAPSEKAR,
                      AGE: 60 YEARS, OCC: BUSINESS,
                      R/O: MARUTI GALLI, KARWAR
                      TQ & DIST: UTTAR KANNADA - 581 301.
                                                                          ...APPELLANT
                      (BY SRI. GIRISH A. YADAWAD, ADVOCATE)

                      AND:

                      1.    GURUNATH S/O. MAHADEV PAWASKAR,
                            AGE: 61 YEARS, OCC: BUSINESS,
                            R/O: H.NO.1277, NEAR R.K.TEMPLE, MAIN ROAD,
                            KARWAR, TQ & DIST: UTTAR KANNADA - 581 301.
Digitally signed by
SAROJA
HANGARAKI
                      2.    P.P. VASUDEVAN,
Location: High
Court of
                            AGE: MAJOR, OCC: BUSINESS IN SHOP
Karnataka,
Dharwad Bench,              NO.10 AND 11 OF CMC, KARWAR,
Dharwad
                            R/O: BUILDING NO.1278 OF CMC,
                            AT CUTINHO ROAD, KARWAR,
                            TQ AND DIST: UTTARA KANNADA - 581 301.
                                                                      ...RESPONDENTS

                           THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO
                      ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
                      DATED 24.09.2021 PASSED BY THE ADDITIONAL SENIOR CIVIL
                      JUDGE, KARWAR IN RA NO.98/2019 CONFIRMING THE JUDGMENT
                      AND DECREE DATED 08.04.2019 PASSED BY THE ADDITIONAL CIVIL
                      JUDGE, KARWAR IN O.S.NO.242/2013, IN THE INTEREST OF JUSTICE
                      AND EQUITY. DECREE THE SUIT IN OS NO.242/2013 AS PRAYED FOR
                      BY THE APPELLANT/PLAINTIFF AND ETC.,
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                                        NC: 2025:KHC-D:7283
                                    RSA No. 100855 of 2022


HC-KAR



     THIS APPEAL, COMING ON FOR ADMISSION           THIS   DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                  ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

1. The unsuccessful plaintiff is before this Court,

being aggrieved by the judgment and decree, dated

08.04.2019, passed in O.S. No.242/2013 on the file of the

Addl. Civil Judge, Karwar (for short "the Trial Court"), by

which the trial Court dismissed the suit of the plaintiff,

which was confirmed by the judgment and decree dated

24.09.2021, passed in R.A. No.98/2019 on the file of the

Addl. Senior Civil Judge, Karwar (for short "the First

Appellate Court").

2. The above suit was filed by the plaintiff seeking

relief of permanent injunction restraining the defendants

from evicting him from the suit schedule property without

due process of law. The suit was subsequently amended to

seek restoration of possession, based on the allegation that

the defendants had illegally dispossessed the plaintiff during

the pendency of the suit.

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3. The case of the plaintiff is that, defendant No.1

was the owner of the schedule property and had inducted

the plaintiff as a tenant. When the defendant was in need of

financial assistance during the construction of the building,

he approached the plaintiff. The plaintiff paid a sum of

Rs.65,000/- to the defendant, based on the assurance that

a permanent lease of the shop premises to be constructed

would be granted in favour of the plaintiff. Accordingly, a

lease deed was executed between the plaintiff and the

defendant No.1 on 10.10.1990. Since then, the plaintiff had

been in peaceful possession and enjoyment of the premises.

4. On 16.10.2008, the defendant executed another

lease deed in favour of the plaintiff with a specific clause

providing for renewal of the lease every five years, with a

10% increment in rent. At the time of execution of this

second lease, the plaintiff paid a sum of Rs.25,000/- to the

defendant as a refundable deposit. The plaintiff also spent

about Rs.60,000/- on the renovation and repair of the shop

premises. Thus, though the plaintiff was occupying the

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premises as a permanent tenant, the defendant threatening

the plaintiff with forcible dispossession. As a result, the

plaintiff was constrained to file the suit seeking a

permanent injunction to restrain the defendant from

evicting him without due process of law.

5. The plaint was amended by inserting paragraph

No.10A, alleging that defendant No.1 had forcefully taken

possession of the shop premises from the Manager of the

plaintiff on 11.05.2014, while the plaintiff was away,

without following due process of law. Accordingly, the

plaintiff sought the relief of a mandatory injunction directing

the defendant to hand over actual possession and

occupation of the shop premises to the plaintiff.

6. The defendant filed written statement admitting

that he is the absolute owner of the suit premises and that

the plaintiff was tenant under him. However, it was

contended that the plaintiff had illegally sublet the suit

premises to one Shri Bheraram Nimbramji Prajapat on

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01.07.2011 and had collected additional rent of

Rs.2,82,750/- from the sub tenant. Upon learning of this

sublease, the defendant issued notice under Section 106 of

the Transfer of Property Act on 17.08.2013, terminating the

lease and calling upon the plaintiff to vacate the premises.

The plaintiff issued a reply on 02.09.2013. It is further

contended that since the plaintiff had illegally sublet the

premises, the lease was validly terminated, and a fresh

lease deed was subsequently executed in favour of

defendant No.2. The allegations of forcible dispossession is

denied as false. It is contended that the plaintiff was not at

all in possession of the suit premises. As such, the question

of restoration did not arise.

7. Based on the pleadings, the trial Court framed

the following issues and additional issues:

"ISSUES

1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the plaintiff?

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2. Whether the plaintiff further proves that the alleged interference by the defendant.

3. Whether the plaintiff entitled for the relief claimed?

4. What order or decree?

ADDL. ISSUES

1. Whether the plaintiff proves that the defendant dispossessed the plaintiff from the suit premises in illegal manner?

2. Whether the plaintiff proves that he is entitled to direct the defendant to hand over the actual possession and occupation of the shop premises by way of mandatory injunction?"

8. Upon appreciation of the evidence, the trial Court

answered all the issues and additional issues in the negative

and consequently dismissed the suit.

9. Being aggrieved, the plaintiff preferred an appeal

in R.A. No.98/2019.

10. The First Appellate Court framed the following

points for its consideration;

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"POINTS

1. Whether the plaintiff has effectively demonstrated that he was dispossessed by the defendant No.1 from the shop premises after filing of the suit?

2. Whether any interference is called for by this court? If so, to what extent?

3. What order?"

11. Upon re-appreciation of the evidence, held point

Nos.1 and 2 in the negative. Consequently, it dismissed the

appeal and confirmed the judgment and decree passed by

the trial Court.

12. The trial Court and the First Appellate Court,

upon perusal of the averments made in the plaint, the

documents produced by the plaintiff, and his deposition,

concluded that the plaintiff failed to prove that he was in

possession of the premises as on the date of the filing of

the suit. The allegation made by the plaintiff that the

defendant had taken illegal possession of the suit premises

on 10.11.2014, during the pendency of the suit, was also

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rejected by both Courts, as the plaintiff failed to

substantiate the said claim. Though the plaintiff alleged that

he had gone to Dubai and that defendant No.1 had

forcefully taken possession of the property during his

absence, he produced only two documents i.e., Exs.P9 and

P10, being a train ticket and an air ticket from Karwar to

Mumbai and from Mumbai to Goa. During the cross

examination, the plaintiff himself admitted that he had no

documents to prove his possession of the suit premises

prior to the filing of the suit. Taking these factual aspects

into consideration, the Trial Court dismissed the suit by the

impugned judgment, which was affirmed by the First

Appellate Court.

13. In view of the aforesaid concurrent findings of

fact, this Court does not see any substantial question of law

in the matter warranting interference.

14. Accordingly, the appeal is dismissed. The

judgment and decree passed by the trial Court, as

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confirmed by the First Appellate Court, shall stand

confirmed.