Shri.Mohammad Mazahar Khan Vs Abdulmunaf Khatalsab Kakar — Karnataka HC (2025) — LawSathi Research

Shri.Mohammad Mazahar Khan Vs Abdulmunaf Khatalsab Kakar — Karnataka HC (2025) — LawSathi Research

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NC: 2025:KHC-D:13706 RSA No. 100366 of 2016

HC-KAR

IN THE HIGH COURT OF KARNATAKA,AT DHARWAD

DATED THIS THE 10^TH DAY OF OCTOBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE C M JOSHI

REGULAR SECOND APPEAL NO. 100366 OF 2016 (INJ-)

BETWEEN:

SHRI MOHAMMAD MAZAHAR KHAN S/O. MOHAMMEDGOUS SHAHAPURKAR, AGE: 47 YEARS, OCC. BUSINESS, R/O. CTS 1449, GANESHPUR GALLI, SHAHAPUR, BELAGAVI-590003.

…APPELLANT

(BY SRI. DEEPAK C. MAGANUR, ADVOCATE)

AND:

ABDULMUNAF KHATALSAB KAKAR AGE: 57 YEARS, OCC. SERVICE, R/O. H.NO:992A, II CROSS, SHIVAJI NAGAR, BELAGAVI-590003.

Digitally
signed by
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2025.10.15
11:28:04
+0530

MOHAMMADGOUS BABUSAB KANCHI AGE: 38 YEARS, OCC. SERVICE, R/O. SHIVA SHAKTI NAGAR, ANGOL, BELAGAVI-590007.

…RESPONDENTS (BY SRI. SURABHI KULKARNI, ADVOCATE FOR R1; R2-NOTICE SERVED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.224/2015 PASSED BY THE X ADDL. DISTRICT JUDGE AND SESSIONS JUDGE, BELAGAVI DATED 10.12.2015 REVERSING THE JUDGMENT AND DECREE PASSED IN O.S.NO.682/2002 PASSED BY THE III ADDL. CIVIL JUDGE AND JMFC BELAGAVI DATED 30.10.2010, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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NC: 2025:KHC-D:13706 RSA No. 100366 of 2016

HC-KAR

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

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel appearing for the appellant.

The grievance of the appellant is that though the Trial Court had granted a decree of injunction against the respondents, the First Appellate Court reversed the said judgment of the Trial Court and dismissed the suit.

The factual matrix that is relevant for deciding this appeal is that the appellant/plaintiff was the tenant under the respondent/defendant. He filed a suit for injunction against the landlord contending that the landlord is trying to evict him unauthorisedly and interfering in his enjoyment of the tenanted premises. After the trial, the Trial Court by placing reliance on Exs.P-107, 108 and 133, which were the statements of wife of defendant No.1 before the police officers, decreed the suit restraining the defendants from interfering with the peaceful use and enjoyment of the portion

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of the suit property by the plaintiff and not to evict him without due recourse to law.

The said judgment was challenged by the defendants in R.A.No.224/2015. The First Appellate Court, after appreciation of the evidence, came to the conclusion that the plaintiff is not in occupation of the tenanted premises and therefore, the impugned judgment of the Trial Court is not sustainable and as such it allowed the appeal and dismissed the suit.

Being aggrieved, the plaintiff is before this Court in this second appeal.

The learned counsel appearing for the appellant submitted that there are divergent opinions between the Trial Court and the First Appellate Courts and therefore, the appreciation of the evidence by the First Appellate Court being incorrect is a matter which needs to be considered by this Court. He submits that the divergent findings itself is a matter which needs to be seen as a substantial question of law.

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It is pertinent to note that the First Appellate Court has appreciated the evidence in detail in paragraph 15 of its judgment. The cross-examination of PW1 has been elaborately considered by the First Appellate Court and it is evident that the appellant had admitted that the premise, which was under tenency to him, was kept under lock and in another portion, the defendants were residing. The residence of the defendants in a portion of the premise has been admitted categorically, which has been reproduced by the First Appellate Court. On perusal of the judgment of the Trial Court, it is noticed that apart from oral testimony, it places reliance on the statement made under Section 161 of Cr.P.C., by the wife of the respondent. Obviously, the reliance placed by the First Appellate Court is more reliable than the statement recorded by the police officer under Section 161 of the Cr.P.C. In that view of the matter, this Court does not find any reason to entertain this appeal, which is basically on the question of fact. The reliance placed by the First Appellate Court on the testimony of PW1, cannot be faulted with as a statement made under Section 161 of Cr.P.C., cannot be material

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evidence, which overweighs the testimony recorded by a Court in the proceedings. In that view of the matter, this Court does not find any merit in the appeal and as such, appeal stands dismissed at the stage of admission itself.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

SD/(C M JOSHI) JUDGE

YAN CT:PA LIST NO.: 1 SL NO.: 25