Karnataka High Court
Mohsin Shariff vs A J Jagadeeswaran on 17 September, 2025
-1-
NC: 2025:KHC:37301
RFA No. 62 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL NO.62 OF 2024 (DEC-INJ)
BETWEEN:
MOHSIN SHARIFF
S/O MOHAMMED SHARIFF,
AGED ABOUT 48 YEARS,
R/AT NO.24, 2ND CROSS,
ZAFRULLA LAYOUT,
IRYAN PALYA, A.C. POST,
BENGALURU-560 045.
...APPELLANT
(BY SRI B.N. ANANTHA NARAYANA, ADVOCATE)
AND:
1. A.J. JAGADEESWARAN
S/O A.K. JANARDHAN MUDALIAR
SINCE DECEASED BY HIS LR's.
Digitally signed by
MAHALAKSHMI B M 1(a) SMT. DHANALAKSHMI
Location: HIGH W/O A.J. JAGADEESWARAN,
COURT OF AGED ABOUT 65 YEARS,
KARNATAKA
1(b) SMT. SHAKUNTHALA
D/O A.J. JAGADEESWARAM,
AGED ABOUT 45 YEARS,
1(c) SMT. JAYANTHI
D/O A.J. JAGADEESWARAM,
AGED ABOUT 40 YEARS,
ALL ARE R/AT NO.21, CENTRAL
STREET, NEAR COMMERCIAL
POLICE STATION, SHIVAJINAGAR,
BENGALURU-560051.
-2-
NC: 2025:KHC:37301
RFA No. 62 of 2024
HC-KAR
2. ABDUL HAFEEZ
S/O LATE ABDUL KAREEM,
AGED ABOUT 52 YEARS,
R/AT NO.14, LIST NO.1323,
6TH CROSS, RASHAD NAGAR,
"B" BLOCK, NAGAWARA,
A.C. POST, BENGALURU-560 045.
...RESPONDENTS
(BY SRI K.M. JAGANATH, ADVOCATE FOR C/R-1(A & C))
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 30.09.2023 PASSED IN
O.S.NO.7828/2011 ON THE FILE OF THE XLIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT
FOR DECLARATION AND INJUNCTION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
The present Regular First Appeal is preferred by the plaintiff assailing the judgment and decree dated 30.09.2023 passed in O.S. No.7828/2011 on the file of the XLIII Additional City Civil and Sessions Judge, Bengaluru (hereinafter for short referred to as 'the trial Court') whereby the suit of the plaintiff for declaration and permanent injunction came to be dismissed. -3-
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR BRFIEF FACTS
2. The plaintiff claims to be a lawful tenant under defendant No.1 from 2009 on payment of Rs.1,000/- monthly rent and having paid Rs.1,00,000/- as advance. It is averred that the plaintiff is running a tailoring and cloth business in the premises and that in the year 2010 defendant No.1 demanded higher rent of Rs.4,000/- and extra advance of Rs.2,00,000/-, since the plaintiff refused, defendant No.1 allegedly colluded with defendant No.1 and filed HRC No.10035/2010 falsely showing defendant No.2 as tenant. It is averred that the eviction order dated 06.09.2011 in HRC No.10035/2010 was obtained behind the plaintiff's back and in collusion, and the decree is fraudulent. Hence, the suit for declaration that the judgment and decree in HRC No.10035/2010 dated 06.09.2011 is null and void and not binding on the plaintiff and further a permanent injunction restraining the defendants from executing the eviction order. -4-
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR
3. Defendant No.1 denied the plaint averments and specifically contended that plaintiff is a stranger. There is no relationship of landlord and tenant between the plaintiff and defendant No.1. The original tenant was one Abdul Kareem, father of defendant No.2. Later his wife Maqbool Jan and then defendant No.2 became the tenant on monthly rent of Rs.100/-. The plaintiff is only a sub tenant of defendant No.2. It is averred that the eviction decree in HRC No.10035/2010 is valid and binding on the plaintiff. Further that the plaintiff has colluded with defendant No.2 to deprive defendant No.1 the fruits of the decree.
4. The trial Court framed issues on 20.09.2014. While passing the impugned judgment, it re-casted the issues on 29.09.2023 and the re-casted issues are as under: -
"1. Whether plaintiff proves that the eviction order dated 6.9.2011 passed in HRC.No.10035/2010 by the learned Addl. Small Causes Judge, Mayohall, Bangalore (SCCH-21) is null and void and not -5- NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR binding on him since he is not a party to the said eviction order?
2. Whether plaintiff is entitled for the relief of permanent injunction?
3. Whether plaintiff proves the jural relationship of landlord and tenant between himself and 1st defendant?
4. Whether plaintiff is entitled for the relief sought for?
5. What order or decree?"
5. The trial Court upon consideration held that the plaintiff has failed to establish the jural relationship of landlord and tenant between him and defendant No.1 as he failed to produce any rent receipt or rent agreement or proof of payment of advance amount and only oral claim and self serving documents were produced. On the other hand, Exs.D1 to D13 produced by defendant No.1 show that defendant No.2 was a tenant and not the plaintiff. Answering issue No.1 held that the judgment and decree in HRC No. 10035/2010 binds and the plaintiff failed to prove -6- NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR the landlord-tenant relationship, by the judgment and decree the trial Court dismissed the suit with costs and further observed that plaintiff is at liberty to file an application in the execution proceedings as an objector. Aggrieved by the said judgment, the plaintiff is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondents.
7. Learned counsel for the appellant-plaintiff submits that the Trial Court by order dated 29.09.2023 recast issues and framed issue Nos.3 and 4 as under:
"3. Whether plaintiff proves the jural relationship of landlord and tenant between himself and 1st defendant?
4. Whether plaintiff is entitled for the relief sought for?"
and proceeded to pronounce the judgment dated 30.09.2023 without affording the appellant an opportunity either to adduce further evidence or to advance the -7- NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR arguments on the newly framed issues. It is contended that such a course is contrary to law and opposed to principles of natural justice, thereby rendering the impugned judgment unsustainable.
8. It is further argued that the respondent's own stand in the written statement and evidence is that the appellant is a sub-tenant under defendant No.2. Such admission, according to the appellant, establishes that he has been in possession of the suit schedule property since 2009 and he is in settled possession. Once such possession is established, it is trite law that even sub- tenant or trespasser cannot be dispossessed except in due process of law. The deceased-defendant No.1 therefore was required to institute the proper eviction proceedings against the appellant. The eviction decree obtained in HRC No.10035/2010 against defendant No.2 cannot be extended to bind the appellant, who was admittedly in possession.
-8-
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR
9. Per contra, learned counsel for the respondents submits that the contention of the appellant that the Trial Court framed 'additional issue' without affording an opportunity is wholly misconceived. It is pointed out that the Trial Court at the stage of settlement of issues originally framed four issues. Out of which, the first two issues, the burden was upon the plaintiff, while issue Nos.3 and 4 cast burden upon the defendant. Subsequently, by order dated 29.09.2023, the Court merely recasted issue Nos.3 and 4 in order to bring a greater clarity to the dispute and controversy. The issue relating to the plaintiff's plea of jural relationship of land lord and tenant as under:
"3. Whether plaintiff proves the jural relationship of landlord and tenant between himself and 1st defendant?"
10. Learned counsel submits that recasting of issue did not alter the nature or scope of the trial. The substance of issue remained the same, namely, whether -9- NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR the plaintiff was a lawful tenant under defendant No.1 or whether he was only a sub-tenant under defendant No.2. Hence, there was no element of surprise, nor was the appellant prejudiced in any manner. It is contended that the appellant throughout had adduced evidence on the very same questions, and the so-called reframing on 29.09.2023 did not amount to the introduction of a new or additional issue, but was merely a clearer restatement of an existing issue.
11. Learned counsel for the respondent further submits that the present appeal itself is not maintainable and misconceived. The plaintiff had already invoked the appropriate remedy available under law by filing an obstructor application under Order XXI Rules 97, 98, 99, 100, 101, 102 and 103 read with Section 151 CPC in Execution No.15156/2023 which was initiated by the respondent-defendant No.1 for execution of the eviction decree passed in HRC No.10035/2010. It is submitted that the obstruction application after due consideration
- 10 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR came to be dismissed with cost. The appellant has not chosen to challenge the order in any manner known to law, instead without assailing the rejection of the obstruction application, he has sought to file the present appeal indirectly challenging the decree passed in HRC No.10035/2010 and is trying to seek stay of the further proceedings in the execution petition. According to the learned counsel such course of action is impermissible in law and a clear attempt is made to bypass the binding order under Order XXI Rules 97 CPC and to delay the fruits of the decree to the landlord.
12. Having heard the learned counsel for the parties, the points that arise for consideration are:
i. Whether the impugned judgment and decree dismissing the suit for declaration and injunction suffers from illegality on account of recasting of issues on 29.09.2023, is it violating the principles of natural justice? ii. Whether the appellant, who had already filed obstruction application under Order XXI Rules 97 to 103 CPC in Execution Petition
- 11 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR No.15156/2023 which came to be dismissed with cost and has attained finality, is entitled to maintain the present appeal challenging the decree indirectly?
iii. Whether the appellant claiming to be a sub-
tenant can nullify the eviction decree passed against the original tenant in the absence of any independent jural relationship of landlord and tenant with respondent No.1-land lord?
13. All the points for consideration are taken up together to avoid repetition of facts.
14. The pleadings and evidence disclose two distinct positions. On the one hand, the plaintiff/appellant asserts that he is a direct tenant under defendant No.1-landlord having allegedly paid an advance of Rs.1,00,000/- and monthly rent of Rs.1,000/- since 2009. On the other hand, defendant No.1-landlord, in his written statement and evidence, has categorically pleaded that the appellant is not a tenant but only a sub-tenant under defendant No.2, who was the admitted tenant. In law, a sub-tenant cannot claim a higher right than that of a tenant. His possession is
- 12 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR only derivative and contingent upon the rights of the tenant. Once an eviction decree has been passed against the tenant in HRC No.10035/2010, the sub-tenant cannot resist delivery of possession unless he establishes an independent tenancy created directly by the landlord. The burden of proving such independent tenancy squarely lay upon the plaintiff/appellant under Sections 101 and 102 of the Evidence Act, 1882. In the present case, the appellant has not produced any rent receipts, lease agreements or contemporaneous documents to show a direct jural relationship of landlord and tenant with defendant No.1. On the contrary, the landlord's evidence Exs.D1 to D13 supports the existence of tenancy only with defendant No.2 and negatives the appellant's claim. Mere oral assertions and self-serving documents like cash bills and photographs are insufficient to discharge the burden. The appellant has failed to substantiate his claim of direct tenancy under the landlord, and therefore, cannot be treated as a lawful tenant entitled to protect against
- 13 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR eviction. He merely steps into the shoes of the tenant and is bound by the terms of the tenancy.
15. Learned counsel for the appellant submits that the Trial Court had committed a serious error in recasting the issue on 29.09.2023 one day prior to the judgment. Originally six issues have been framed on 20.09.2014, which reads as under:
"1. Whether plaintiff proves that the collusive eviction order dated 6/9/11 passed in HRC No.10035/2010 by the learned Additional Small Causes Judge Mayohall, Bangalore (SCCH-21) as null and void and not binding on him since he is not a party to the said eviction order?
2. Whether plaintiff is entitled for the relief of Permanent Injunction?
3. Whether 1st defendant proves that the plaintiff is a total stranger and there are no jural relationship of landlord and tenant between 1st defendant and the plaintiff as alleged in para-4 of the Written Statement?
4. Whether 1st defendant proves that plaintiff is only a sub-tenant under 2nd defendant
- 14 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR and the eviction order passed against 2nd defendant in HRC No.10035/2010 is fully binding upon the plaintiff as alleged in para-6 of the Written Statement?
5. Whether plaintiff is entitled for the relief sought for?
6. What order or decree?"
16. Out of this, issue Nos.1 and 2 cast the burden on the plaintiff, while issue Nos.3 and 4 cast the burden on defendant No.1 to prove that the plaintiff was a total stranger and only a sub-tenant under defendant No.2. However, by recasting, the Trial Court alters issue Nos.3 and 4 and placed the entire burden on the plaintiff by formulating issue No.3 as under:
"3. Whether plaintiff proves the jural relationship of landlord and tenant between himself and 1st defendant?"
and issue No.4 as under:
"4. Whether plaintiff is entitled for the relief sought for?"
- 15 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR
17. Thus what was earlier the burden on the defendant to dispute was now placed as an obligation upon the plaintiff to affirmatively establish, without giving an opportunity to lead evidence and advance arguments on the altered issues. According to the appellant, the recasting of issues immediately before pronouncement of judgment amounts to a denial of fair hearing.
18. Order XIV Rule 5 CPC reads as under:
"5. Power to amend and strike out issues.-(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced."
19. It is well settled that the Court has power to amend or recast the issue at any stage of the proceedings
- 16 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR so as to determine the real question in controversy. In the present case, what the Trial Court did on 29.09.2023 was not an introduction or new or an additional issue but merely a recasting of issue Nos.3 and 4 in clearer terms. The controversy through out was whether the appellant was in lawful tenant under defendant No.1 or merely a sub-tenant under defendant No.2. Both parties had already led evidence, including documentary evidence, on this very aspect. Therefore, the mere recasting of the issues did not prejudice the appellant in any manner, nor did it cast any new burden, as the burden was already inherent in the pleadings. Thus, the onus to prove the jural relationship of landlord and tenant always lay on the plaintiff and the appellant was aware of these facts throughout the trial. The reframing of issues thus was only a matter of form and clarity, not of substance. Hence, the arguments advanced by the learned counsel for the appellant that recasting of issue at the stage of judgment vitiated the trial - are without any merit and the appellant
- 17 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR had an ample opportunity to prove the jural relationship of landlord and tenant which he failed to establish.
20. Insofar as the appellant's obstruction application under Order XXI Rules 97 to 103 CPC in Ex. Petition No.15156/2023 has already been dismissed with cost. The order has not been challenged and has therefore attained finality. The present appeal, which seeks indirectly to stay the execution and reopen the same controversy, is not maintainable. The points framed for consideration are answered accordingly and this Court pass the following:
ORDER i. The regular first appeal is hereby dismissed.
ii. The judgment and decree dated 30.09.2023 passed in O.S. No. 7828/2011 on the file of the XLIII Additional City Civil and Sessions Judge, Bengaluru stands confirmed.
- 18 -
NC: 2025:KHC:37301 RFA No. 62 of 2024 HC-KAR Pending I.A.s if any does not survive for consideration.
Sd/-
______________________ JUSTICE K.S. HEMALEKHA CKL,MBM List No.: 1 Sl No.: 38