Karnataka High Court

Mahaboobsab Imamsab Ganjigatti vs Sri Shankaragouda on 17 March, 2025

                                                   -1-
                                                            NC: 2025:KHC-D:4830
                                                            RSA No. 836 of 2007




                                   IN THE HIGH COURT OF KARNATAKA,
                                            DHARWAD BENCH
                                DATED THIS THE 17TH DAY OF MARCH, 2025
                                                BEFORE
                                 THE HON'BLE MR. JUSTICE E.S.INDIRESH
                              REGULAR SECOND APPEAL NO. 836 OF 2007 (-)
                      BETWEEN:
                      1.   MAHABOOBSAB IMAMSAB GANJIGATTI
                           S/O. IMAMSAB GANJIGATTI,
                           AGED ABOUT 51 YEARS,
                           R/O. MISHRIKOTI,
                           TALUK: KALAGHATGI-581204,
                           DHARWAD DISTRICT.

                      2.   MAKABULSAB IMAMSAB GANJIGATTI,
                           S/O. IMAMSAB GANJIGATTI,
                           AGED ABOUT 49 YEARS,
                           R/O. MISHRIKOTI,
                           TALUK: KALAGHATGI-581204,
                           DHARWAD DISTRICT.

                      3.   SMT. MABOOBI
                           W/O. IMAMSAB GANJIGATTI,
Digitally signed by
ASHPAK                     AGED ABOUT 66 YEARS,
KASHIMSA
MALAGALADINNI
Location: HIGH
                           R/O. MISHRIKOTI,
COURT OF
KARNATAKA                  TALUK: KALAGHATGI-581204,
DHARWAD BENCH
Date: 2025.03.18           DHARWAD DISTRICT.
10:57:32 +0530
                                                                   ...APPELLANTS
                      (BY SRI. RAVI S. HEGDE, ADVOCATE)
                      AND:
                             [SRI. SHANKARAGOUDA
                             BHOJANAGOUDA PATIL,
                             S/O. BOJANAGOUDA PATIL,
                             AGED ABOUT 67 YEARS,
                             R/O. MISHRIKOTI,
                             TALUK: KALAGHATGI-581204,
                             DHARWAD DISTRICT.]
                                   -2-
                                              NC: 2025:KHC-D:4830
                                             RSA No. 836 of 2007




       DEAD BY LR'S

1(A)   SMT. PUSHPAVATI,
       W/O. LATE SHANKARA GOUDA PATIL,
       AGED ABOUT 69 YEARS,

1(B)   MALLIKARJUNA GOUDA,
       W/O. LATE SHANKARA GOUDA,
       AGED ABOUT 37 YEARS,

1(C)   LINGARAJ GOUDA,
       W/O. LATE SHANKARA GOUDA,
       AGED ABOUT 29 YEARS,
       ALL ARE RESIDENTS OF
       MISHRIKOTI, TQ: KALGATAGI,
       DIST: DHARWAD.

1(D) MALLAMMA (A) SHAILA,
     W/O. ESHWARA GOUDA D/O. SHANKARA GOUDA,
     R/O. YAMMIGANOOR, DIST: KARNOL,
     ANDHRA PRADESH.
                                         ...RESPONDENTS
(BY SRI. SADIQ N. GOODWALA, ADVOCATE FOR R1(A-D))
       THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC TO PASS A JUDGMENT AND DECREE BY SETTING ASIDE
THE JUDGMENT AND DECREE PASSED IN RA.NO.162/2003 DATED
31.10.2006, ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.)
DHARWAD, INSOFAR AS IT RELATES TO DECREEING THE SUIT OF
THE RESPONDENT IN O.S.NO.94/2001 DATED 24/06/2003 COURT OF
THE    CIVIL   JUDGE   (JR.DN.)    AND   JMFC.,   KALAGHATGI   FOR
POSSESSION AND DIRECTING THE APPELLANTS TO HAND OVER THE
VACANT POSSESSION OF THE SCHEDULE PROPERTY WITH COSTS,
IN THE INTEREST OF JUSTICE AND EQUITY.


       THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                          -3-
                                                         NC: 2025:KHC-D:4830
                                                         RSA No. 836 of 2007




CORAM:         THE HON'BLE MR. JUSTICE E.S.INDIRESH

                               ORAL JUDGMENT

1. This appeal is preferred by the defendants

challenging the judgment and decree dated 31.10.2006 in

R.A.No.162/2003 on the file of the II Additional Civil Judge

(Sr.Dn.), Dharwad1 allowing the appeal in part and

modifying the judgment and decree dated 24.06.2003 in

O.S.No.94/2001 on the file of the Civil Judge (Jr.Dn.) and

JMFC, Kalaghatgi2, dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court.

3. It is the case of the plaintiff that the plaintiff is

owner of the suit schedule property having acquired the

same in a partition between himself and his elder brother.

It is further stated that the father of defendant No.1 had

acquired the possession of the suit schedule property as a

tenant by executing a rental document. It is stated that on

01.04.1975 father of defendant No.1 - Imamsab

hereinafter referred to as 'First Appellate Court'

hereinafter referred to as 'Trial Court'

NC: 2025:KHC-D:4830

Rustumsab Ganjigatti had executed rent document

agreeing to pay Rs.4/- per month towards the rent of the

suit schedule property and agreed to handover the same

as and when the suit property is demanded by the

plaintiff. It is also stated that the father of defendant No.1

agreed to pay the tax to the competent authorities. After

the death of the father of defendant No.1, the defendants

are residing in the suit schedule property as tenants. The

plaintiff further stated that the defendants have not paid

the rent and have become defaulters to pay Rs.40/-.

Hence, the plaintiff by notice dated 03.09.2001 terminated

the tenancy right of the defendants and as such called

upon the defendants to handover the suit schedule

property.

4. It is the case of the plaintiff that the defendants

have got constructed a house at Mishrikoti village and

therefore there is no impediment for the defendants to

handover the suit property to the plaintiff. Hence, the

NC: 2025:KHC-D:4830

plaintiff has preferred O.S.No.94/2001 seeking relief of

possession, recovery of rent and mesne profits.

5. After service of notice, the defendants entered

appearance and filed detailed written statement denying

the averments made in the plaint. It is the case of the

defendants that there is no rental document dated

01.04.1975 executed by Imamsab Ganjigatti in favour of

the plaintiff. It is also stated that the defendants are

residing in the suit schedule property since 1952 and

therefore, urged that the defendants have no arrears of

rent. Further, the defendants have taken up a specific plea

that when the father of defendant No.1 has insisted the

plaintiff to execute a registered document with respect to

the suit schedule property, the plaintiff has insisted

Imamsab Ganjigatti to return the document already

executed and therefore the said Imamsab Ganjigatti has

handed over the documents which were already executed

by the family members of the plaintiff to the plaintiff.

Therefore, it is the case of the defendants that the plaintiff

NC: 2025:KHC-D:4830

by misusing the innocence of the Imamsab Ganjigatti, has

not executed the registered document with respect to the

suit property. It is also contended by the defendants that

the plaintiff has filed suit in O.S.No.9/1993 in respect of

the very same suit property which came to be dismissed

on 06.08.1998 and therefore the present suit is not

maintainable and therefore sought for dismissal of the

suit.

6. The Trial Court based on the pleadings on

record, has framed issues for its consideration. In order to

establish their case, the plaintiff has examined four

witnesses as PW.1 to PW.4 and produced 6 documents and

same were marked as Exs.P.1 to P.6. The defendants have

examined two witnesses as DW.1 and DW.2 and got

marked 31 documents as Exs.D.1 to D.31.

7. The Trial Court after considering the material on

record, by its judgment and decree dated 24.06.2003,

dismissed the suit and feeling aggrieved by the same, the

plaintiff has preferred R.A.No.162/2003 on the file of the

NC: 2025:KHC-D:4830

First Appellate Court and same was resisted by the

defendants. The First Appellate Court after re-appreciating

the material on record, by its judgment and decree dated

31.10.2006, partly allowed the appeal and modified the

judgment and decree in O.S.No.94/2001. Feeling

aggrieved by the same, the defendants have preferred this

Regular Second Appeal.

8. This Court by order dated 04.04.2007,

formulated the following substantial question of law:

"Whether the lower appellate court was justified in passing a decree for possession on the ground that the defendant is in permissive possession though not as a tenant?"

9. I have heard Sri.Ravi S Hegde, learned counsel

appearing for the appellants and Sri.Sadiq N Goodwala,

learned counsel appearing for the respondents.

10. Sri.Ravi S Hegde, learned counsel appearing for

the appellants, contended that the First Appellate Court

has committed an error in directing the defendants to

NC: 2025:KHC-D:4830

handover the vacant possession of the suit property

without considering the fact that the plaintiff has filed

O.S.No.9/1993 before the Trial Court on similar relief

which came to be dismissed by the Trial Court on

06.08.1998 and the said aspect of the matter was not

properly assessed by the First Appellate Court.

11. It is further contended by the learned counsel

appearing for the appellants that the lower Appellate Court

has committed an error in holding that the possession of

the defendants is only a permissive possession even

though there were no pleadings on record and no evidence

has been adduced by the plaintiff and therefore sought for

interference of this Court.

12. Per contra, learned counsel appearing for the

respondents sought to justify impugned judgment and

decree passed by the First Appellate Court.

13. In the light of the submissions made by the

learned counsel appearing for the parties, I have carefully

NC: 2025:KHC-D:4830

examined the findings recorded by both the Courts below

and perused the original records.

14. It is not in dispute that the plaintiff is owner of

the suit schedule property having rented the suit premises

in favour of the father of defendant No.1 as per rent

document dated 01.04.1975. In the backdrop of these

aspects, I have carefully examined the findings recorded

by the Trial Court on issue No.3, wherein the Trial Court

has taken note of the factual aspects on record particularly

referring to earlier suit in O.S.No.9/1993 in which it is

stated that there is no arrears of rent. It is also

forthcoming from the findings recorded by the Trial Court

that the plaintiff has not produced any evidence to show

that subsequent to 18.05.1986 either Imamsab Ganjigatti

or the defendants have paid any amount towards rent of

suit property either to the plaintiff or any other person.

Therefore, the Trial Court has rightly come to the

conclusion that the defendants are not the defaulters in

payment of rent to the plaintiff towards the suit property.

- 10 -

NC: 2025:KHC-D:4830

15. In that view of the matter, I am of the view

that the Trial Court has rightly dismissed the suit taking

into consideration the plea made by the plaintiff with

regard to two rental agreements, however, the said finding

recorded by the Trial Court was interfered with by the First

Appellate Court in part by partly confirming the judgment

and decree however directed the defendants to vacate the

suit premises. The said finding recorded by the First

Appellate Court requires to be interfered with in this

appeal as the defendants have proved that there is no

arrears of rent and on the other hand, the plaintiff has not

proved with regard to the permissive possession or

otherwise of the defendants in the suit.

16. The entire finding recorded by the Trial Court

particularly at para No.11, wherein the First Appellate

Court has arrived at a conclusion that the plaintiff has

failed to prove that the father of the defendant No.1 has

occupied the suit schedule property as a tenant as per

rental agreement dated 01.04.1975. In the result, the

- 11 -

NC: 2025:KHC-D:4830

First Appellate Court has committed an error in interfering

with the finding recorded by the Trial Court so also the

finding recorded with regard to earlier suit in

O.S.No.9/1993. Therefore, the appeal deserves to be

allowed and accordingly the substantial question of law

framed above favours the defendants.

17. In the result I pass the following:

ORDER

i) The appeal is allowed.

ii) Judgment and decree dated 31.10.2006 in

R.A.No.162/2003 on the file of the II Additional

Civil Judge (Sr.Dn.), Dharwad is hereby set

aside to the extent of directing the defendants

to vacate the suit premises.