LIYAKHAT ALIKHAN MAHAMMAD vs ABDUL KHADAR GOUSUSAB HAVANUR

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD


TH
DATED THIS THE 17 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

REGULAR SECOND APPEAL NO. 1431 OF 2010 (RES)


BETWEEN:

1. LIYAKHAT ALIKHAN MAHAMMAD
UMMARKHAN PATHAN
S/O MOHAMMAD UMMARKHAN PATHAN
AGED ABOUT 53 YEARS,
R/A: NAZIM MAZZIL, III FLOOR,
R.NO.33.32, MUMBAI-400003.

DEAD BY LRS

1A) ANISA LIYAKHAT ALI KHAN
AGE: 68 YEARS,

1B) MUBEENA UWAISUZZAMAN KHAN
D/O LIYAKHAT ALI KHAN,
AGE: 48 YEARS,

1C) MUNZIR AHMED S/O LIYAKHAT ALI KHAN
AGE: 46 YEARS,

1D) FARHANA JAMIL DURGAD
D/O LIYAKHAT ALI KHAN
AGE: 43 YEARS,

1E) RIZWANA MOHAMED ZAHIR KHOT
D/O LIYAKAT ALI KHAN
AGE: 40 YEARS,

ALL ARE R/O: 30/32 NASEEM BUILDING,
RD
ROOM NO.33, 3 FLOOR,











ROHAN
HADIMANI
T

Digitally signed by ROHAN
HADIMANI T
Location: HIGH COURT OF
KARNATAKA, DHARWAD
BENCH
Date: 2026.10.30 16:05:39
+0530

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MIYA AHMED CHOTANI MARG,
NEAR BISMILLAH HOTEL,
ATTAR GALLI, MOHAMMED ALI ROAD,
MANDVI, MUMBAI, MAHARASHTRA-400003.

2. SMT. RAJIYABI W/O MURTUJAN KHAN SAVANUR
AGE: 72 YEARS,
R/A: NALASAPUR, DISTRICT THANE,
MAHARASHTRA.

2A) ABDUL RASHEED S/O MURTUZA KHAN SAVANUR
AGE: 56 YEARS, OCC. BUSINESS,

2B) MUNEER AHAMED KHAN
S/O MURTUZA KHAN SAVANUR
AGE: 52 YEARS, OCC. BUSINESS

2C) NASEER KHAN S/O MURTUZA KHAN SAVANUR
AGE: 48 YEARS, OCC. BUSINESS

2D) ZALFRULLA KHAN S/O MURTUZA KHAN SAVANUR
AGE: 48 YEARS, OCC. BUSINESS

2E) MAKBUL AHAMED KHAN S/O. MURTUZ KHAN SAVANUR
AGE: 45 YEARS, OCC. BUSINESS

2F) SMT. SHAHINA W/O RAFIK AHAMED HARIHAR
AGE: 41 YEARS, OCC. HOUSEHOLD,

2G) JABEEN D/O MURTUZA KHAN SAVANUR
AGE: 35 YEARS, OCC. BUSINESS
ALL ARE R/O. VASAI DIST. THANE,
STATE: MAHARASHTRA

BOTH THE APPELLANTS ARE R/BY THEIR P.A. HOLDER
ABDULSAMAD AKHTAR MOHMMAD KHAN SOUDAGAR,
KAMCHGUR ONI, HANGAL, 581104, HAVERI DIST.
...APPELLANTS
(BY SRI. RAVI HEGDE, SRI. SANTHOSH MALLIGWAD AND
SRI. VINAYKUMAR BHAT, ADVOCATES)

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AND:

ABDUL KHADAR GOUSUSAB HAVANUR
S/O. GOUSUSAB HAVANURAGED
AGE: MAJOR,
R/AT. KURUBAGERI ONI, HANGAL 581104.
...RESPONDENT
(NOTICE IS SERVED AND UNREPEATED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
PRAYING TO PASS A JUDGMENT AND DECREE BY SETTING
ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.
NO.3/2009 DATED 11.02.2010 ON THE FILE OF THE COURT
OF CIVIL JUDGE (SR.DN) HANGAL, REVERSING THE
JUDGMENT AND DECREE PASSED IN O.S. NO.92/2006 DATED
02.12.2008 ON THE FILE OF THE COURT OF CIVIL JUDGE
(JR.DN) AND JMFC, HANGAL AND ALLOW THE ABOVE APPEAL
WITH COST THROUGHOUT, IN THE INTEREST OF JUSTICE
AND EQUITY.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.09.2026 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:

CORAM: HON'BLE MRS JUSTICE RAJESHWARI N.HEGDE

CAV JUDGMENT
Plaintiffs being aggrieved by the impugned judgment
passed by the Civil Judge Senior Division, Hangal (for short,
First Appellate Court) dated 11.02.2010 passed in RA
No.3/2009, wherein, the judgment and decree passed in
OS.No.92/2006 dated 02.12.2008, on the file of Civil Judge
Junior Division, Hangal (for short, trial Court) is set aside and

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consequently, the suit of the plaintiff is dismissed, filed this
second appeal.

2. For the convenience reference parties are referred
as ‘plaintiffs’ and ‘defendants’ as they referred before the trial
Court.

3. Facts in brief are that; the plaintiffs No.1 and 2 filed
suit against sole defendant in OS No.92/2006 before the Trial
Court, seeking the relief of possession and recovery of rent.
The plaintiff's contention is that the suit schedule properties i.e.
bearing TMC No. 2720 red tiled roof house and TMC No.2721
that is open space situated within the jurisdiction of Hangal
Town Municipality, originally belongs to Noorahamedkhan
Kamal Khan Savanoor. He was unmarried. He is nearest
relative of these two plaintiffs. He was having love and affection
towards plaintiffs.
3.1 He transferred the suit schedule property along with
the other properties, which are bearing No. TMC 2717, 2719,
2720, 2721, 2722 and 2723 executed the Will in the name of
the first plaintiff's mother namely Smt. Ameerabi wife of
Mohamed Ummarkhan Patan and in favour of second plaintiff

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under the registered Will dated 21.07.1984 registered before
the Sub-Registrar, Hangal.
3.2 It is further contended that, said Noorahamedkhan
Kamal Khan died on 01.08.1984. The first plaintiff's mother
Smt. Ameerabi also died in the year 2003. The first plaintiff is
only the sole legal heirs of the deceased Smt. Ameerabi.
3.3 It is further contended that, the plaintiffs are the
owners of the suit schedule properties, on the basis of the Will
executed by the said Mohamed Ummarkhan and the Khata has
been changed in the name of the plaintiffs in TMC records.
3.4 The suit schedule property was given on rent to the
defendant herein by the said Mohamed Ummarkhan. The
defendant residing in the suit property for the last 28 years, on
the basis of the rent. Prior to filing of the present suit, these
plaintiffs had filed HRC proceedings in HRC No. 6/1998. After
the amendment Act to HRC proceedings, the plaintiffs
withdrawn the said petition.
3.5 It is further contended that, the suit property is red
tiled house along with backyard. The defendant was in
possession of the property on monthly rent of ₹50/-. In the

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year 1990, the rent is enhanced to ₹150/- and the defendant
accepting that, he will pay the said rent residing in the schedule
property. He has not paid the rent of ₹150/- since December
2005. Total arrears of rent of ₹27,000/-. Defendant is defaulter
of rent.
3.6 The plaintiffs have sent notice to the defendant
terminating the tenancy and also called upon him to hand over
the possession. Notice served on the defendant on 01.02.2006,
he has not replied to the said notice nor handed over the
property and has also not paid arrears of rent.
3.7 It is further contended that, second plaintiff is a
widow. She got 5 sons. They completed their education. They
are residing at Bombay by doing small business. They have
intend to reside at Hangal. But, houses are not vacant. The first
plaintiff is also unemployed. He was living at Bombay for doing
a coolie work. The suit property is 50-60 years old building. The
walls are all collapsed, that property was required for the
plaintiffs for repair of the said house and to reside.
3.8 It is further contended that, plaintiffs on several
times orally asked the defendant to pay the arrears of rent and

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hand over the possession. The defendant has postponed for
hand over the possession. He has not paid the arrears of rent.
Hence the plaintiffs constrained to file the suit.

4. The defendant on service of summons appeared
through counsel and filed the written statement. He has denied
the plaint averments except the fact that, the suit properties
are originally belongs to Noorahmedkhan Kmal Khan Savanoor.
4.1 It is further contended that, the plaintiffs are never
the owners of the suit property on the basis of the Will. Even
the Will is legally proved, the plaintiffs is not absolute owners.
The suit of the plaintiffs not maintainable. Filing of HRC petition
against this defendants is true. However, the said HRC petition
in HRC No.6/1998 withdrawn by the plaintiffs.
4.2 It is further contended that, there was no any rent
agreement with the plaintiffs and he is not at all paying rent to
the plaintiffs. The issuance of notice dated 31.01.2006 by the
plaintiffs is denied.
4.3 The plaintiffs have not properly valued the suit and
not paid the court fee. The plaintiffs are never residing in the
Hangal Town. The first plaintiff was residing at Mumbai doing

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business. The second plaintiff is also residing along with first
plaintiff at Mumbai. The urgent necessity of repair of the suit
property is false. The plaintiffs are not the owner and the
defendant is not a tenant. Therefore, the question of handing
over the possession does not arise. There was no cause of
action to file the present suit. Hence the defendant prayed for
dismissal of the suit.

5. From the above pleadings, the trial court framed
the following issues;
1. ªÁ¢AiÀÄgÀÄ zÁªÁ D¹ÛUÉ ªÀiÁ°ÃPÀgÉA§ÄzÀ£ÀÄß gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2. ªÁ¢AiÀÄgÀÄ zÁªÁ D¹ÛAiÀÄ°è ¥ÀæwªÁ¢AiÀÄÄ ¨ÁrUÉzÁgÀ£ÉA§ÄzÀ£ÀÄß
gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3. ªÁ¢AiÀÄgÀÄ ¨ÁrUÉzÁjPÉ ¸ÀA§zsÀªÀ£ÀÄß gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
(Adverse
4. ¥ÀæwªÁ¢AiÀÄÄ zÁªÁ D¹ÛUÉ G¯ÁÖ PÀ¨ÁÓ
Possession)
£ÁvɬÄAzÀ ªÀiÁ°ÃPÀgÉA§ÄzÀ£ÀÄß gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
5. ªÁ¢AiÀÄgÀ ªÁzÀ ¥ÀvÀæzÀ°è «£ÀAw¹zÀ DzÉñÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
6. CAwªÀÄ DzÉñÀªÉãÀÄ?


6. The plaintiffs in order to substantiate their case, the
General Power of Attorney holder of the plaintiff, namely Abdul
Sammadkhan Soudagar examined as PW1 and got marked the
documents Ex.P1 to P5.

7. On behalf of the defendant, she herself examined
as DW1 and one witness examined as DW2 and no documents
were marked.

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8. The Trial Court after appreciation of evidence and
hearing the learned counsels for the respective parties
proceeded to pass the judgment, whereby the suit of the
plaintiffs decreed with costs directing the defendant to
handover the suit property to the plaintiffs within 3 months
from the date of order vide judgment dated 02.12.2008.

9. The defendant being aggrieved by the impugned
judgment passed by the trial Court filed the appeal in RA
No.3/2009 before the first appellate court. The first appellate
court after going through the evidence, framed the following
points for consideration;

1. Whether the plaintiffs prove that, they are the
owners of the suit schedule property?

2. Whether the plaintiffs prove that, the defendant is a
tenant under them in the suit property?

3. Whether the defendant proves that she has
perfected his title to the suit property by way of
adverse possession as alleged?

4. Whether the judgment and decree passed by the
lower court is not in accordance with law and facts
and needs to be interfered by this court?

5. What order?

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10. The first appellate court after re-appreciation of the
evident on record, proceeded to pass the impugned judgment,
whereby the appeal filed by the defendant was allowed and by
setting aside the judgment and decree passed by the trial Court
in OS No.92/2006 and thereby the suit of the plaintiffs was
dismissed by the impugned judgment dated 11.02.2010.

11. Being aggrieved by the impugned judgment passed
by the first appellate court, the plaintiffs preferred the present
second appeal.

12. During the pendency of the appeal, the first plaintiff
died and his LRs are brought on record as appellant No. 1(a) to
1(e).

13. Further, the second appellant also died and her LRs
are also brought on record as appellant No.2(a) to 2(g).

14. The grounds urged by the appellants in this appeal
is as under;
a. The first appellate court erred in holding that the
plaintiffs are not the owners of the suit property and that
despite that the original owner has bequeathed the suit
property in favour of the plaintiffs under the Will dated
21.07.1984.

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b. The first appellate Court has failed to consider that
the plaintiffs have proved the said Will as contemplated
under the law. The first appellate court failed to consider
the case of the plaintiffs and also consider the issues
framed by the trial court.

c. The first appellate court committed an error in
holding that the Will Exhibit P5 came into existence under
the suspicious circumstances in as much as there is neither
pleading in the written statement nor there was any issue.
The first appellate court went beyond the pleadings and
evidence on record.

d. The first appellate court erred in relying upon the
ruling reported in ILR 2005 SC 729 disbelieving the
evidence of PW1 stating that, there was no materials on
records. The first appellate court failed to consider the fact
that the beneficiary under the Will namely Ameerabi died
in 2003 and thereby non-examination of original legatee
under the said Will is not fatal to the case of the plaintiffs,
which is not properly appreciated by the first appellate
Court.

e. The First Appellate Court framed in all 6 points for
consideration. Points 5 and 6 are general in nature. Points
1 to 4 are specific placing and all these points answered in
the negative and points 5 and 6 answered in the
affirmative.

On these grounds, the appellants herein prayed for
allowing this appeal, setting aside the impugned judgment
passed by the appellate court and to restore the decree passed
by the trial court.

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15. In response to the notice issued in this appeal, the
respondent-defendant though served with the notice remained
un represented.

16. While admitting the appeal, this Court has raised
the following substantial question of law to consider this appeal.
“Whether the first appellate court has committed a
serious error in up turning the judgment of the trial
court by ignoring the material evidence placed on
record, more particularly, when Ameerabi has
become natural heir after the death of Kamal Khan
and thus, judgment of the First Appellate Court is
perverse and illegal”.


17. Heard learned counsel for the appellants/plaintiffs.
Since t he respondent/defendant remained un represented
arguments not addressed.

18. Learned Counsel for the appellants has relied upon
the following judgments in support of his arguments:

1. Ghanshyam Dass Versus Shakuntla Bakshi
& Ors reported in 2013 SCC OnLine Del
4310

2. Pandi Bandu Vs Sapadu Krishna reported in
2002(5) Mh.L.J .

3. Kamaljit Singh Vs. Sarabjit Singh reported
in LAWS(SC)-2014-9-2

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4. Smt. Asharfi Devi Vs. Shankar (Died) Son
of Maik Ram and others reported in 2000
SCC OnLine P&H 322:PLR(2000) 126 P&H

36:AIR 2000 P&H 253 2000) 1 RCR (Rent)
548

5. Metapalli Lasum Bai (Since dead) and
others Vs. Metapalli Muthaiah(D) by Lrs
reported in 2025 SCC OnLine SC 1488


19. Perused the records.

20. Argument of the Learned Counsel for the appellants
that;
The original owner of the suit property namely
Noorahamed Khan, who was a nearest relative of the plaintiffs
and who was unmarried, executed the Will infavor of first
plaintiff’s mother Smt. Ameerabi and the Second plaintiff herein
on 21.07.1984. The defendant herein, who was taken the suit
property, which is a house property on rent by the original
owner and he was in possession of the suit property as a tenant
and he has been residing in the suit property since 28 years.
20.1 It is further argued that, after the death of the said
original owner Noorahamed Khan, as this plaintiffs required the
suit property, demanded the defendant to vacate the suit

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property and notice sent to him to handover the possession of
the property and further, the defendant was due in payment of
rent, he was calling upon to pay the arrears of rent also. The
trial court on appreciation of the evidence on record decreed
the suit of the plaintiff directing the defendant to hand over the
suit schedule property to the plaintiffs within 3 months from the
date of order ie., passed on 02.12.2008.
20.2 It is argued that, the defendant being aggrieved by
the order of the trial court directing him to handover the
possession of the plaintiffs, preferred the appeal in RA
No.3/2009 and the appeal was allowed by setting the judgment
of the trial court whereby the suit was dismissed.
20.3 It is further argued that, the appellate court
dismissed the suit on the ground that, the plaintiffs have failed
to prove the alleged execution of the Will said to have been
executed by the Noorahamed Khan and further, the original Will
dated 21.07.1984 not produced and the plaintiffs have not
adduced secondary evidence pertaining to the said document
by placing the certified copies of the same before the trial court
and the appellate court on the ground of suspicious

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circumstances surrounding the execution of the said alleged Will
and thereby will not proved by the plaintiffs by placing cogent
and relevant evidence, dismissed the suit of the plaintiff.
20.4 It is further argued that, the appellate court has
also observed that, the plaintiffs have admitted that the
defendant is in possession and enjoyment of the suit property,
since 28 years. The defendant took the defence of plea of
adverse possession, it is the contention of the defendant that,
he was in possession of the suit property which is in permissive
possession with the consent of the original owner namely
Noorahamed Khan and after his death, the defendant has been
continued in possession and enjoyment of the property.
Therefore, the defendant contended that, he is in permissive
possession and enjoyment of the property. However, the
contention of the defendant is negatived by the first appellate
court.
20.5 It is further argued that, despite the defence of the
defendant that, he has perfected his title by way of adverse
possession, the appellate court dismissed the suit of the
plaintiff. The appellate court come to the conclusion that, the

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plaintiffs have failed to prove the registered Will dated
21.07.1984, in their favor, therefore, they failed to prove that,
they are the owner of the suit property and accordingly, the suit
was dismissed.

21. In this case, the substantial question of law framed
is, whether the first appellate court has committed an error
ignoring the material evidence placed on record, more
particularly when Ameerabi had become natural heir after the
death of Kamal Khan and thus, the judgment of the first
appellate court is perverse and illegal.

22. It is the argument of the learned counsel for the
plaintiffs that, though the plaintiff not able to prove the
registered will dated 21.07.1984, when the defendants have
failed to prove adverse possession over the suit schedule
property, then the plaintiffs contended that, the first plaintiff's
mother Ameerabi has become the owner of the property, who
was the natural heir of Kamal Khan. It is argued that, the
plaintiffs have produced the evidence to show that, the said
Ameerabi is the natural heir of the owner of the suit property.

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23. In order to appreciate the contention of the plaintiff
that, the said Ameerabi has become natural heir, the evidence
placed by the plaintiff to be looked into.

24. One Abdul Sammadkhan Saudagar being the Power
of Attorney holder of the plaintiffs examined as PW.1, he
deposed in consonance with the plaint averments. Further the
plaintiffs have also produced the documents ie., certified copies
of two General Power of Attornies are produced at Exhibit P1
and P2. Further the assessment extract marked as Ex.P3,
wherein the name of the owner in respect of property No.2720
ie., red tiled house is mentioned as Liyakhat Ali Khan
Mohammad Ummarkhan Pathan the plaintiff No.1 herein and
Smt Rajiyabi W/o Murtujan Khan Savanur the plaintiff No.2
herein. However, in the name of the occupier, one Abdul
Khadar Goususab Havanur shown who is the defendant herein.

25. Further, the plaintiffs have also produced another
assessment extract marked as Ex.P4, wherein the name of the
owner in respect of property No.2721 ie., open space is
mentioned as Liyakhat Ali Khan Mohammad Ummarkhan Pathan
the plaintiff No.1 herein and Smt Rajiyabi W/o Murtujan Khan

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Savanur the plaintiff No.2 herein. In the name of the occupier
column it is mentioned as self ( .
¸ÀéAvÀ)

26. Further the plaintiffs have produced notice issued to
the defendant dated 20.03.2006 marked as Ex.P5 calling upon
the defendant to pay the arrears of rent from January 1990 till
December 2005 in total Rs.27,000/- and in the said notice it is
also stated that, the tenancy has been attorned. Further the
postal receipt and postal acknowledgment also produced at
Ex.P5(a) and 5(b) respectively.

27. It is the contention of the plaintiffs that, as per the
will dated 21.07.1984 ( in this case the will not produced) the
first plaintiff’s mother namely Ameerabi and the second plaintiff
Rajiyabi were become the owner of the property after the death
of the original owner Noorahamedkhan Savanur.

28. It is further contention of the plaintiff that, the
defendant herein was the tenant under the said original owner
Noorahamedkhan Savanur and the plaintiffs have issued notice
of attornment of tenancy as per Ex.P5 and therefore, the
plaintiffs contended that, the defendant is in unauthorized
occupation of the suit property and therefore, the plaintiffs have

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filed the suit seeking possession of the suit property from the
defendant.

29. The defendants contention is that, the plaintiffs are
not the owners of the suit property, they are strangers. The
original owner Noorahamedkhan Savanur has not at all
executed any will infavor of the plaintiffs. Further, the
defendant contended that, she is not the tenant in the suit
property and she is in permissive possession of the suit
property under the said original owner Noorahamedkhan
Savanur.

30. In the light of the said defense taken by the
defendant, the PW1 was cross examined. In the cross
examination, it is suggested to PW1 that, since 50 years, the
defendant herein has been residing in the suit house after
construction of the said house during the lifetime of
Noorahamedkhan and he has not objected to the defendant to
construct the suit schedule house property which is denied by
PW.1.

31. It is further suggested to PW1 that, there was no
rent agreement between the owner of the property i.e.

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Noorahamed Khan and the defendant, which is denied by the
PW1. The PW1 also denied that the plaintiffs have no right over
the scheduled property.

32. The defendant in order to establish his case, himself
examined as DW1. He has stated that, since 1950, his father
namely Goususab Havanur was in possession of the suit
property and after his death, he continued with the possession
of the suit property.

33. Further, defendant contended that about 40 years
back itself, the house situated in the suit property was in
dilapidated condition, and collapsed and now there is only
vacant property.

34. Further, the defendant contended that, d uring the
lifetime of Noorahamed Khan, the defendant's father
constructed house in the said property and Noorahamed Khan
not objected and therefore, it is contended that, the defendant's
father was in possession of the property, since long back and
after his death he continued with the property and it is denied
that the plaintiffs have become the owner of the suit property
as per the execution of the Will dated 21.07.1984.

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35. Further, on behalf of defendant one witness
examined as DW2 namely Ramachandar Fakkirappa
Kopprasikoppa, who deposed similarly to the evidence of DW1
stating that, the defendant’s father was in possession of the suit
property since 1950 and after his death, the defendant
continued with the possession of suit property.

36. DW1 was cross examined by the plaintiffs counsel
and in the cross examination it is suggested that, this
defendant is in possession of the suit property on the basis of
the rent agreement and the defendant earlier was paying
Rs.30/- per month and defendant’s father paid rent upto 1984.
Thereafter, the defendant continued in possession of the
property. DW1 has further deposed that, the Noorahmedkhan
told him that, as he (Noorahmedkhan) has no legal heirs,
therefore told the defendant to continue with the possession of
the property after paying the tax to the municipal corporation.

37. Further, DW1 has admitted that, issuance of notice
to him by the plaintiffs and he has also admitted that, he has
not reply to the said notice.

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38. It is the argument of the learned counsel for the
appellants that, these appellants contended that, they have
become the owners of the suit property on the basis of
execution of the will dated 21.07.1984 executed by the said
Noorahamad Khan.

39. The first appellate court dismissed the suit of the
plaintiffs for the reason that, the plaintiffs have not produced
the original will to prove their title.

40. Learned counsel for the appellants argued that, the
first plaintiff’s mother being the nearest heir of the said
Noorahamad Khan, she has become the owner of the property.
Therefore, it is argued that the trial Court rightly appreciated
the evidence on record and decreed the suit. However, the first
appellate court dismissed the suit by allowing the appeal which
is erroneous.

41. The Learned counsel further argued that, here the
question is, whether Ameerabi has become natural heir after
the death of Noorahamed Khan. The plaintiffs contended that,
first plaintiff's mother being the relative of Noorahamed Khan
and she is the natural heir and even in the document produced

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by them at Ex.P3 and Ex.P4, which is in respect of the year
1997-1998, the name of the first plaintiff's mother shown as
owner and name of the second plaintiff also shown as owner.

42. In this case, the defendant never denied the said
Noorahamedkhan was the owner of the property and it is the
case of the defendant that, they are in permissive possession
and thereby they have perfected their title by way of adverse
possession of the said property.

43. However, the first appellate court in RA No.3/2009
after framing the points for consideration ie., whether the
defendant proves that, she has perfected her title to the suit
property by way of adverse possession as alleged, has been
answered in the negative. That means, the defendant has failed
to prove that, she is in possession of the suit property as owner
on adverse possession. The defendant herein has not
challenged the said finding of the first appellate court with
regard to her plea of adverse possession. Therefore, it has to be
considered that, the possession of the defendant in the
schedule property is illegal possession. It is argued that, the
plaintiffs throughout took the contention that, the defendant

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was in possession as a tenant. The plaintiffs by issuing notice to
the defendant terminated the tenancy. Therefore, learned
counsel for the plaintiffs argued that, the defendant being the
tenant cannot questioned the alleged will executed by the said
Noorahamed Khan in favor of the plaintiffs.

44. In that regard, learned counsel for the plaintiffs
relied upon the judgment, in the case of Ghanashyama Das,
wherein it is observed that,
When the defendant contended that, he is a
tenant in the suit property, then he cannot question
as to whether the Will is valid or not. Tenant is the
stranger to the Will and as such he has no locus-
standi to challenge.


45. Further, the learned counsel relied upon another
decision, in the case of Pandi Bandhu Vani case, wherein it is
similarly observed that,
The tenant cannot question genuineness and
validity of the Will, as he is a stranger, he cannot
be permitted to challenge the Will.


46. Further, in another decision in Kamaljeet Singh
case, it is similarly held that,
When the tenant claims that, the property
vested in anyone else, who could be described as

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the paramount title holder or there was any
extinction of the title of the appellant or any count
whatsoever, since the induction of the respondent
as a tenant into the premises.


47. Further, in the case of Asharafi Devi, it is similarly
held that,
Even if there was a will or not, it cannot be
disputed by the tenant that she was one of the
heirs of the landlord. More over the Will is not
shown to have been challenged by the other heirs
and, therefore, the tenant cannot challenged the
Will.


48. In the case of Metapalli Lasumbai also it is observed
that,
In a suit for declaration of title over the
schedule property and that when the plaintiffs
claimed that, there is a registered Will, then the
true owner and had exclusive title over the
property and when the Will is a registered
document and thus there is a presumption
regarding genuineness there of.


49. In this case, on perusal of the evidence of the
plaintiffs that, they have become the owner of the property
under the Will. It is the contention of the plaintiffs that, the
defendant is the tenant in the said property. Though the
defendant contended that, she is in permissive possession of

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the property and she has become the owner of the property by
way of adverse possession, the defendant failed to prove the
adverse possession.

50. The first Appellate Court has answered the point for
consideration i.e. whether the defendant has proved the title by
way of adverse possession is concerned, in the negative. The
defendant has not filed any appeal as against the said points for
consideration

51. When the said point has been answered in the
negative, then it has to be considered that, the plaintiff is in
unauthorized possession of the suit property. On going through
the revenue documents which stands in the name of the
plaintiffs as the owner of the property, this court is of the
opinion that the plaintiffs have proved their title over the suit
property.

52. For the aforesaid discussion and reasons, this court
opined that, the first appellate court committed an error in
dismissing the suit of the plaintiffs.

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53. Accordingly, the substantial question of law
answered in favour of the plaintiffs and this Court has
proceeded to pass the following;
ORDER
Appeal is allowed.
Impugned judgment passed by the Civil Judge
Senior Division, Hangal dated 11.02.2010 passed in
RA No.3/2009 is set aside.
Consequently, the judgment and decree
passed in OS.No.92/2006 dated 02.12.2008, on the
file of Civil Judge Junior Division, Hangal is
confirmed.
Send back the trial court records along with a
copy of judgment.

Sd/-
(RAJESHWARI N.HEGDE)
JUDGE



SCA
CT-CMU