LIYAKHAT ALIKHAN MAHAMMAD UMMARKHAN PATHAN vs RAJESAB MAHABOOBSAB SHAIK @ AREGOPPA

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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. 1429 OF 2010 (RES)

IN RSA NO. 1429/2010
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,

ROHAN
HADIMANI
T

Digitally signed by ROHAN
HADIMANI T
Location: HIGH COURT OF
KARNATAKA, DHARWAD
BENCH
Date: 2026.10.30 16:05:38
+0530

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RD
ROOM NO.33, 3 FLOOR,
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

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SRI. VINAYKUMAR BHAT, ADVOCATES)

AND:

RAJESAB MAHABOOBSAB SHAIK @ AREGOPPA
S/O MEHABOOBSAB SHAIK,
AGED ABOUT 68 YEARS,
R/A: KURUBAGERI ONI, HANGAL-581104.
...RESPONDENT
(BY SRI. DINESH M. KULKARNI, ADVOCATE)

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.7/2009 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.90/2006 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

1. 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.7/2009, wherein, the judgment and decree passed in

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OS.No.90/2006 dated 02.12.2008, on the file of Civil Judge
Junior Division, Hangal (for short, trial Court) is set aside and
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. 90/2006 before the Trial
Court, seeking the relief of possession and recovery of rent.
The plaintiff's contention is that the suit schedule property i.e.
bearing TMC No. 2717 that is vacant site 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

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Mohamed Ummarkhan Patan and in favour of second plaintiff
under the registered Will dated 21.07.1984 registered before
the Sub-Registrar, Hangal.
3.2 It is further contended that, said Noorahamad Khan
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

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possession of the property on monthly rent of ₹50/-. In the
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.

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3.8 It is further contended that, plaintiffs on several
times orally asked the defendant to pay the arrears of rent and
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. His contention
is that; he has denied the plaint averments except the fact
that, the suit properties are originally belongs to
Noorahamedkhan 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.
4.2 It is further contended that, there was 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 true. The defendant has replied to the said notice.

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The said reply notice is considered as part of the present
written statement.
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
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 ¢£ÁAPÀ 21.07.1984 gÀAzÀÄ £ÉÆÃAzÁzÀ ªÀÄÈvÀÄå¥ÀvÀæzÀ ªÀÄÆ®PÀ
zÁªÁ D¹ÛAiÀÄ C£À£Àå ªÀiÁ°ÃPÀgÀÄ DVgÀÄvÁÛgÉAzÀÄ ¹zÀÝ¥Àr¸ÀÄªÀgÉ?
2. ªÁ¢AiÀÄgÀÄ zÁªÁ D¹ÛAiÀÄ°è ¥ÀæwªÁ¢UÉ ¨ÁrUÉ vÀjÃPÀ ªÁ¸ÀªÁVgÀ®Ä
PÉÆnÖgÀÄvÁÛgÉAzÀÄ ¹zÀÝ¥ÀrªÀgÉ?
3. ªÁ¢AiÀÄgÀÄ zÁªÁ¹ÛUÉ ¥ÀæwªÁ¢AiÀÄÄ ªÉÆzÀ®Ä 50/- gÀÆ¥Á¬Ä ¨ÁrUÉAiÀÄ£ÀÄß
£ÀAvÀgÀ ¸À£ï 1990 jAzÁ 150/- gÀÆ¥Á¬Ä ¨ÁrUÉ PÉÆqÀ®Ä
M¦àPÉÆArzÁÝgÉAzÀÄ ¹zÀÝ¥Àr¸ÀÄªÀgÉ?

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4. ªÁ¢AiÀÄgÀÄ ¸À£ï 1990 d£ÉÃªÀj 1 jAzÀ ¸À£ï 2005 r¸ÉA§gÀ ªÀgÉUÉ ¨ÁrUÉ
¨ÁQ ºÀt 27,000/- gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ¥ÀæwªÁ¢AiÀÄÄ ¨ÁT
G½¹PÉÆArzÁÝ£ÉAzÀÄ ¹zÀÝ¥Àr¸ÀÄªÀgÉ?
5. ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢AiÀÄÄ ¸ÀjAiÀiÁzÀ £ÁåAiÀiÁ®AiÀÄzÀ ±ÀÄ®ÌªÀ£ÀÄß
¨sÀgÁ¬Ä¹gÀÄªÀÅ¢®èªÉAzÀÄ ¹zÀÝ¥Àr¸ÀÄªÀgÉ?
6. ªÁ¢AiÀÄgÀÄ, ªÁzÀ ¥ÀvÀæzÀ°è «£ÀAw¹zÀAvÉ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
7. CAwªÀÄ DzÉÃ±ÀªÉÃ£ÀÄ?

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, he himself examined as
DW1 and one witness examined as DW2 and got marked the
document at EX.D1 to 10.

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

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No.7/2009 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 on the
strength of the alleged Will dated 21.07.1984?

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

3. Whether the plaintiffs prove that, defendant is
due in arrears of rent amount of Rs.27,000/- as
alleged?

4. Whether the defendant proves that the court
fee paid is insufficient?

5. 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?

6. What order?

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

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in OS No.90/2006 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.

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

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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 burden of proof on the
appellants. Points 1 to 3 on the appellants and burden of
proving points 5 and 6 are on the respondents. However,
the first appellate court answered all the points in the
negative except the original point No.6 has been held in
the affirmative and thereby it is contended that the first
appellate court committed an error in dismissing the suit of
the plaintiffs by setting aside impugned judgment passed
.
by the trial court

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 appeared through counsel and resisted
the appeal.

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 Sri. Santosh Malligwad for
the appellants/plaintiffs and Sri. Dinesh M Kulkarni for
respondent/defendant served.

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

19. Learned counsel for the respondent relied upon the
following judgments, in support of his arguments.

1. Bharpur Singh and Others Vs. Shamsher Singh
reported in (2009) 3 Supreme Court Cases 687

2. Tavanappa Malasarja Patil and others Vs.
Vanamala (since dead) by LRs and another
reported in 2017(5) KCCR 634 (DB)

3. Jamnabai and others Vs. Vasudev and others
reported in SLP© No.39 of 2026)

4. Bismillah Be (Dead) by Legal Representatives
Vs. Majeed Shah reported in (2017) 2 Supreme
Court Cases 274

5. Janki Vashdeo Bhojwani and Another Vs.
Indusind Bank Ltd., and Others reported in
(2005) 2 Supreme Court Cases 217

6. The Church of Our Lady of Immaculate
Conception, A Roman Catholic Religious
Institution in Urva, Bangalore Town Vs. The

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State of Mysore and Another reported in 1975
SCC OnLine Kar 111: AIR 1976 Kar 75:(1975) 2
Kant LJ 468

20. Perused the records.

21. Argument of the Learned Counsel for the appellants
that;
The original owner of the suit property namely
Noorahmedkhan, 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.
21.1 It is further argued that, after the death of the said
original owner Noorahmedkhan, as this plaintiffs required the
suit property, demanded the defendant to vacate the suit
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

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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.
21.2 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.7/2009 and the appeal was allowed by setting the judgment
of the trial court whereby the suit was dismissed.
21.3 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
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.

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21.4 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
Noorahmedkhan 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.
21.5 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
plaintiffs have failed to prove the registered Will dated
21.07.1984, in their favor, therefore, they failed to prove that,

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they are the owner of the suit property and accordingly, the suit
was dismissed.

22. 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.

23. 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.

24. 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.

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25. 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., 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.2717 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
Smt. Ambakka W/o Narasimhappa Mahendrakar shown who is
the defendant herein.

26. Further, the plaintiffs have also produced the notice
issued to the defendant dated 31.01.2006 marked as Ex.P4
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.P4(a) and 4(b) respectively.

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27. Further, the plaintiffs have produced the certified
copy of the will dated 21.07.1984 is produced and marked as
Ex.P5. Further the death certificate of Noorahamedkhan
Savanur marked as Ex.P6.

28. It is the contention of the plaintiffs that, as
petitioner the said will Ex.P6, 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.

29. 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.P4 and therefore, the
plaintiffs contended that, the defendant is in unauthorized
occupation of the suit property and therefore, the plaintiffs
have filed the suit seeking possession of the suit property from
the defendant .

30. The defendants contention is that, the plaintiffs are
not the owners of the suit property, they are strangers. The
original owner Noorahmedkhan Savanur has not at all executed

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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 Noorahmedkhan Savanur.

31. 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
Noorahamdkhan and he has not objected to the defendant to
construct the suit schedule house property which is denied by
PW.1.

32. It is further suggested to PW1 that there was no
rent agreement between the owner of the property i.e.
Noorahmedkhan and the defendant, which is also denied by the
PW1. The PW1 also denied that the plaintiffs have no right over
the scheduled property.

33. The defendant in order to establish his case, himself
examined as DW1. He deposed that, there was no agreement
between him and the plaintiffs. He does not know who are the

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plaintiffs. He ahs admitted that, the suit schedule house
bearing TMS No.2717 originally belonged to one
Noorahamedkhan.

34. He further deposed that, about 60 years back, his
father namely Mahaboobsab Shaikh was in possession of the
suit property which was only vacant site and thereafter the
defendant’s father with the permission of the original owner put
up construction of the house in the said site and after the death
of defendant’s father, defendant continued with possession of
the said property.

35. Further, defendant contended that d uring the
lifetime of Noorahamed Khan, he has not objected for
construction of the house. It is contended that, the defendant
was in possession of the property since long back. 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.

36. Further, on behalf of defendant one witness namely
Mustaq Ahmed Abdulgani Davanageri, examined as DW2. He
deposed similarly as deposed by DW1.

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37. DW1 was cross examined by the plaintiffs counsel.
In the cross examination of DW1, it is suggested to him that,
there was rent agreement long back and the father of the
defendant has agreed to pay the rent of ₹30/- per month,
which is denied by him. He has also denied that, they paid the
rent @ Rs.30/- till 1984 and thereafter they have paid Rs.50/-
per month and later Rs.150/- per month and accordingly, they
paid the rent till 1990 and thereafter they were in due of
payment of rent.

38. DW1 has admitted that, he has received the notice
dated 31.01.2006 issued by the plaintiff calling upon him to pay
the arrears of rent and also to vacate the schedule property. He
has denied the suggestion that, on the basis of the will
executed by the original owner the plaintiffs have become the
owner of the suit schedule property.

39. DW2 was also subjected to cross examination. He
has admitted that, there was rent agreement between the
defendant’s father and the Noorahmedkhan. He has also
admitted that, defendant’s father was had been paying Rs.30/-

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per month towards rent. He has pleaded ignorance that, said
Noorahamedkhan executed will in favor of the plaintiffs.

40. 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
Noorahamadkhan.

41. 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.

42. Learned counsel for the appellants argued that, the
first plaintiff’s mother being the nearest heir of the said
Noorahamedkhan, 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.

43. Per contra, the learned counsel for the
defendant/respondent argued that, when the plaintiff
contended that, the defendant is the tenant in the suit

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property, then the plaintiff ought to have issued notice to the
defendant attornment of tenancy. If the tenancy has not
attorned, then the plaintiffs cannot seek any eviction.

44. It is the argument of the learned counsel for the
defendant that, when the plaintiffs claiming their right over the
schedule property, they have to prove the will. In that regard,
he has relied upon the judgment in the case, he has relied upon
the judgment in the case of Bharpur Singh case (cited supra),
wherein it is observed that,
The will being a registered one, its genius
should be presumed. Its execution must be held to
have been proved. It may be true that, the will was
a registered one, but the same by itself would not
mean that the statutory requirements of proving
the will need not be complied with.

45. Further, in the case of Jamana Bai, the statutory
presumption of correctness attaching to a revenue entry is a
rebuttable evidentiary presumption and not a presumption of
title, and it must be weighed along with rest of the evidence.

46. The learned counsel for the defendant/respondent
argued that, in this case the plaintiffs have not proved the will
and therefore, they cannot be declared as owners of the
property. Further learned counsel for the respondent also

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argued that, even if it is considered that, they have become the
owners of the property then they have not terminated the
tenancy of the defendant and they must attorned the tenancy
and therefore learned counsel for the respondent argued that
the first appellate has rightly dismissed the suit of the plaintiff
and no interference is required in this matter by this court and
hence prayed for dismissal of the appeal.

47. However, as against this argument of the learned
counsel for the respondent, learned counsel for the appellants
argued that, here the substantial question of law is, whether
Ameerabi has become natural heir after the death of
Noorahmedkhan. The plaintiffs contended that, first plaintiff's
mother being the relative of Noorahmedkhan, she is the natural
heir and even in the document produced by him at Ex.P3,
which is in respect of the year 2005-2006, the name of the first
plaintiff's mother shown as owner and name of the second
plaintiff also shown as owner.

48. In this case, the defendant never denied the said
Noorahamed Khan was the owner of the property and it is the
case of the defendant that, they are in permissive possession

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and thereby they have perfected their title by way of adverse
possession of the said property.

49. However, the first appellate court in RA No.7/2009
after framing the points for consideration ie., Whether the
defendant proves that, he has perfected his 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, he 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 his plea of adverse possession. Therefore, it has to be
considered that, the possession of the defendant in the
schedule property is illegal possession.

50. It is argued that, the plaintiffs throughout took the
contention that, the defendant 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 question the
alleged will executed by the said Noorahamed Khan in favor of
the plaintiffs.

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51. 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.

52. 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.

53. 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
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.

54. 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

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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.

55. 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.

56. 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 , he is in permissive possession of the
property and he has become the owner of the property by way
of adverse possession, the defendant failed to prove the
adverse possession.

57. 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

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defendant has not filed any appeal as against the said points
for consideration

58. 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.

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

60. 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.7/2009 is set aside.

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Consequently, the judgment and decree passed in
OS.No.90/2006 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