IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10^TH DAY OF DECEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

REGULAR SECOND APPEAL NO.1038 OF 2025 (POS)

BETWEEN: 1. ANISHA

D/O. LATE MOHAMMAD SADU

AGED ABOUT 54 YEARS

R/AT DOOR NO.4-119 ALIYABBA COMPOUND

UCHILA POST

BADA VILLAGE

UDUPI DISTRICT-574 117

…APPELLANT

(BY SRI. PRASANNA V.R., ADVOCATE)

AND:

1. AHAMED ALI BUNAYYA

Digitally signed

S/O. LATE ALIYABBA

by DEVIKA M

AGED ABOUT 73 YEARS

Location: HIGH

R/AT ALIMAN RESIDENCY

COURT OF

KARNATAKA FLAT NO.101, I FLOOR

NEW ROAD, ATTAVAR MANGALURU-575 002. 2. AISHA SHEKABBA

D/O. LATE ALIYABBA

AGED ABOUT 71 YEARS R/AT NEW KOTE HOUSE

HEJAMADI POST

UDUPI TALUK

UDUPI DISTRICT-574 103.

3. USMAN ALIABBA S/O. LATE ALIYABBA AGED ABOUT 69 YEARS R/AT ALIMAN RESIDENCY FLAT NO.101, I FLOOR NEW ROAD, ATTAVAR MANGALURU-575002.

4. ATHIKA ANWAR D/O. LATE ALIYABBA AGED ABOUT 65 YEARS R/AT MAYUR RESIDENCE FLAT NO.202, PARKALA ROAD PANDESHWARA, MANGALURU D.K.DISTRICT- 575 002.

5. SALEEKA AHAMED D/O. LATE ALIYABBA AGED ABOUT 63 YEARS R/AT SANA COTTAGE ASAIGOLI POST, NATEKAL MANGALURU TALUK D.K. DISTRICT-574 199.

6. ZOHARA MOHAMMED D/O. LATE ALIYABBA AGED ABOUT 61 YEARS R/AT RAXIDI MANSION MANGALANTHI POST NATEKAL MANGALURU TALUK D.K. DISTRICT-574 199.

7. TAHIRA SHAMSUDDIN D/O. LATE ALIYABBA AGED ABOUT 59 YEARS R/AT VISHWAS ROYAL

3RD FLOOR, FLAT NO.302 MISSION COMPOUND BALMATA MANGALURU-575 002.

8. RAZIYA NAZEER D/O. LATE ALIYABBA AGED ABOUT 57 YEARS R/AT PRESIDENCY VINTAGE FLAT NO.501, OPP. CORPORATION BANK KANKANADY BYPASS MANGALURU-575 002.

9. KHALID ALIABBA S/O. LATE ALIYABBA AGED ABOUT 55 YEARS R/AT SONY PARADISE FLAT NO.104, OLD KENT ROAD PANDESHWARA MANGALURU-575 002.

…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.03.2025 PASSED IN R.A.NO.35/2023 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND ACJM, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.06.2023 PASSED IN O.S.NO.82/2015 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission. I have heard learned counsel for the appellant.

2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of case of the plaintiffs before the Trial Court in O.S.No.82/2015 while seeking the relief of possession before the Trial Court is that plaintiffs are the owners of plaint ‘A’ and ‘B’ schedule property and further contend that plaintiffs have terminated the permission of defendant by issuing a legal notice dated 18.07.2014 in which they have withdrawn the license/permission granted to the defendant to reside in the plaint ‘B’ schedule property. The defendant, instead of vacating the same, sent false reply to the said notice and denied her liability to vacate the plaint ‘B’ schedule property. Since, the defendant failed to vacate the plaint ‘B’ schedule property, the present suit is filed for grant of vacant possession in respect of ‘B’ schedule property.

4. After service of summons, the defendant appeared and filed the written statement. In the written statement, the defendant denied all the averments in the plaint. It is the contention of the defendant that father of the defendant Sri Mohammed Saadu was in actual possession and enjoyment of plaint ‘B’ schedule house and 11 cents of the land thereto. After the death of Aliabba, one of his son Khalid Aliabba i.e., the plaintiff No.9 executed an agreement of sale dated 12.08.1992 acting on behalf of all the heirs of his father agreeing to convey the said 11 cents and plaint ‘B’ schedule house to the father of the defendant for consideration of Rs.40,000/- and out of the said sale consideration, received Rs.23,000/- in cash on the same day.

5. The Trial Court having considered the pleadings of the parties, framed issues and even additional issues were