- 1 - RSA No. 381 of 2010 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL , 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 381 OF 2010 (PAR) BETWEEN: 1. RAHAMAN KHAN SINCE DEAD BY HIS LRS 1(a) GULZAR BANU W/O LATE SRI RAHAMAN KHAN AGED ABOUT 65 YEARS R/AT #1, GOVINDAPPA LAYOUT BEHIND GOVT. SCHOOL CHOLANAYAKANAHALLI R.T.NAGAR POST BENGALURU-560 032 1(b) AMJAD KHAN S/O LATE SRI RAHAMAN KHAN AGED ABOUT 41 YEARS R/AT #1, GOVINDAPPA LAYOUT BEHIND GOVT. SCHOOL CHOLANAYAKANAHALLI R.T.NAGAR POST BENGALURU-560 032 1(c) FAROOQ PASHA S/O LATE SRI RAHAMAN KHAN AGED ABOUT 35 YEARS R/AT #4 TAJ MANZIL, 3RD CROSS GANGAPPA BLOCK GANGA NAGAR, R.T.NAGAR (POST) BENGALURU – 560 032 1(d) ZABIULLA KHAN S/O LATE SRI RAHAMAN KHAN Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - RSA No. 381 of 2010 AGED ABOUT 31 YEARS R/AT # 100, DODDABYAGATHAVALLI DODDABYAGATHAVALLI POST HOLENARASIPURA TALUK HASSAN – 573 211 1(e) ASGAR KHAN S/O LATE SRI RAHAMAN KHAN AGED ABOUT 29 YEARS R/AT #1, GOVINDAPPA LAYOUT BEHIND GOVT. SCHOOL CHOLANAYAKANAHALLI R.T.NAGAR POST BENGALURU – 560 032 …APPELLANTS (BY SRI. K RAGHAVENDRA RAO FOR SRI V.VIDYA IYER, ADVOCATES) AND: MAHAMMAD KHAN URF DADA DEAD BY LRS 1. AKRAM KHAN S/O LATE MAHAMOOD KHAN MAJOR R/A DODDABYGATHAVALLI, KASABA HOBLI, HOELNARASIPURA TALUK – 573 211 2. ASLAM KHAN S/O LATE MAHAMOOD KHAN R/A DODDABYAGATHAVALLI KASABA HOBLI, HOLENARASIPUR TALUK – 573 211 3. B S SUBRAYA S/O LATE SRINIVASAIAH GUNDAPPA R/A HETTUR VILLAGE SAKALESHPUR TALUK HASSAN DISTRICT- 573 134 - 3 - RSA No. 381 of 2010 4. SUVARNAMMA W/O K P KALEGOWDA R/A KALLIKOPPAL, KASABA HOBLI HOLENARASIPURA TALUK- 573 211 5. HUSAIN BI W/O LATE MAHAMOD KHAN R/A LAKSHAR MOHALLA HOLENARASIPUR – 573 211 6. JAYALAKSHMI W/O APPANNA, FOREST GUARD MAJOR R/A GORUR, HASSAN TALUK-573 120 7. LALITHAMMA W/O DEVARAJEGOWDA RANGE FOREST OFFICER R/A GANGUR VILLAGE, KASABA HOBLI HOLENARASIPURA TALUK-573 211 8. KHURSHID BI W/O MAHAMOOD KHAN MAJOR R/A VODDARAHALLI VILLAGE KASABA HOBLI, ARKALGUD TALUK – 573 102 9. RAMIZA BI D/O LATE MAHAMOOD KHAN MAJOR R/A LAKKUR, KASABA HOBLI HOLENARASIPURA TALUK – 573 211 …RESPONDENTS (BY SRI. PRADEEP NAIK.K FOR R6 AND R7- ABSENT; R1, R2 AND R9- SERVED; VIDE ORDER DATED 10.08.18, NOTICE TO R3 TO R5 AND R8 ARE DISPENSED WITH) - 4 - RSA No. 381 of 2010 THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 12.10.2009 PASSED IN R.A.NO.14/1997 ON THE FILE OF THE PRESIDING OFFICER & ADDL. DISTRICT JUDGE, FAST TRACK COURT, HOLENARASIPURA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 25.1.1997 PASSED IN O.S.155/1990 ON THE FILE OF THE MUNSIFF COURT, HOLENARASIPURA. THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:- CORAM: HON'BLE MR. JUSTICE V SRISHANANDA CAV JUDGMENT Legal representatives of deceased plaintiff No.1 have filed the present Regular Second Appeal challenging the validity of the judgment passed in O.S.No.155/1990 wherein the suit of the plaintiffs came to be dismissed, which was confirmed in R.A.No.14/1994. 2. The appeal before this Court came to be admitted to consider the following substantial questions of law. “(i) Whether the concept of adverse possession available as a defence for one legal heir of the deceased against other? (ii) Whether the Courts below are right in law in recording findings ignoring the material fact that the parties are governed by Mohamadan law? - 5 - RSA No. 381 of 2010 (iii) Whether the Courts below are right in law in recording a finding that the suit is barred by limitation in view of settled principles of law governing law of limitation?” 3. Facts of the case which are utmost necessary for disposal of the present appeal are as under: A suit came to be filed in O.S.No.155/1990 for the relief of partition and separate possession of the immovable properties. Plaintiffs also sought for the relief that the alienation made by first defendant in favour of defendant Nos.2 and 3 does not bind them and to set-aside sale deeds and also for the possession of legitimate shares and for award of mesne profit in respect of the following immovable properties, (hereinafter referred to as ‘suit properties’.) “The extent and boundaries of 2 acres 11 guntas of land situated in village Holenarasipur Taluk, Kasaba Hobli, Doddabyagathavalli village is bounded on: East by: Kodihalli, West by: Lands of Kenga Hanumaiah, South by: Lands of Rabiya Bi, North by: government oni, - 6 - RSA No. 381 of 2010 The survey numbers and the extent of the land situated at Holenarasipur Taluk, Kasaba Hobli, Doddabyagathavalli villege, is as follows: APPENDIX-A Survey No. 1) 99/1B Bagayath 0-16 guntas 2) 100/8A Khushki 0-02 guntas 3) 101/1 Bagayath 0-15 guntas 4) 100/9B Khushki 0-06 guntas APPENDIX-B 5) 99/1A2 ---- 0-20 guntas 6) 99/1A ---- 0-13 guntas 7) 99/1B ---- 0-19 guntas 4. Plaint averments would reveal that plaintiffs and first defendant are children of late Mahamedkhan Sahib and 4th defendant is the wife of said Mahamedkhan Sahib. Suit properties are the properties which were owned and possessed by said Mahamedkhan Sahib. Defendant No.1 refused to part away with the legitimate share of the plaintiffs. 5. Out of the lands possessed, Appendix ‘A’ schedule properties came to be alienated in favour of defendant No.2 - 7 - RSA No. 381 of 2010 and Appendix ‘B’ schedule properties came to be alienated in favour of defendant No.3. 6. According to the plaintiffs, those alienations were illegal and they would not bind the plaintiffs as there was a partition. It was also alleged in the plaint that defendant No.1 had no right to alienate the properties in favour of defendant Nos.2 and 3 and therefore, sought for decreeing of the suit. 7. Pursuant to the suit summons, defendant Nos.3 and 6 appeared through their advocate and filed a common written statement. 8. Defendant No.1 appeared before the Court personally, did not chose to file written statement and during the trial, he died. 9. Defendant No.4 did not chose to contest the suit and therefore she was placed ex-parte. 10. In such written statement, there is an admission that the properties belonged to Mahamedkhan Sahib. However they denied the rights of plaintiffs in respect of suit properties by contending that plaintiffs have no manner of right and it is defendant Nos.1 and 4 who are the exclusive owners of the suit properties and the alleged partition in the plaint is incorrect. - 8 - RSA No. 381 of 2010 11. They also denied that first defendant had given the agricultural produce and share of the plaintiff. However, alienations alleged in the plaint were admitted and they maintained that the first defendant had every right to alienate the suit properties and thus sought for dismissal of the suit. 12. In the written statement, it was also contended that the plaintiffs had earlier filed a suit in O.S.No.323/1981 which came to be dismissed and as such, present suit is barred by res judicata. 13. Defendant No.2 adopted the written statement of defendant Nos.3 and 6. Based on the rival contentions, following issues were raised: “(i) Whether the plaintiffs prove the partition alleged in para 4 of the plaint? (ii) Whether they further prove that the sale deed in favour of the defendants 2 and 3 by the defendant No.1 does not bind their share in the suit schedule properties? (iii) Whether the defendants 2, 3, 5 and 6 prove that the plaintiffs’ suit is barred by limitation? (iv) Whether they further prove that the plaintiffs’ suit is barred by principles of res judicata? - 9 - RSA No. 381 of 2010 (v) Whether they further prove that the value of the suit property is more than Rs.50,000/- and this Court has no pecuniary jurisdiction to try the suit? (vi) Whether the plaintiffs are entitled for their share in the suit schedule property as prayed? (vii) To what order or decree parties are entitled?” 14. After considering the oral and documentary evidence on record, learned Trial Judge dismissed suit of the plaintiffs holding issue No.1 and 4 to 6 in the negative and Issue Nos.2 and 3 in the affirmative. 15. Being aggrieved by the same, plaintiff filed an appeal before the District Court in Regular Appeal No.14/1997. 16. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties in detail and on re-appreciation of the material evidence on the record, dismissed the appeal and confirmed the dismissal of the suit. 17. Being further aggrieved by the same, plaintiffs are before this Court in this Second Appeal. - 10 - RSA No. 381 of 2010 18. As already noted, appeal came to be admitted on the aforesaid substantial questions of law. 19. Sri K.Raghavendra Rao, learned counsel for the appellants with vehemence contented that both the Courts have not properly appreciated the material evidence on record and therefore, sought for allowing the Second Appeal. 20. Learned counsel for the respondents remained absent. 21. In the light of the arguments put forth on behalf of the appellants, this Court perused the material on record meticulously. 22. On such perusal of the material on record, it is crystal clear that the properties earlier belonged to defendant No.1. He alienated Appendix-A and B properties in favour of defendant Nos.2 and 3. 23. Prayer as referred to supra is for declaration that said defendant No.1 had no power to alienate the property in favour of defendant Nos.2 and 3. 24. Plaintiffs specifically pleaded that after the death of Mahamedkhan Sahib, there was a partition in the family - 11 - RSA No. 381 of 2010 properties and plaintiffs used to receive their share from the defendants. 25. Pertinently, no details of partition are forthcoming and what was the share allotted to plaintiffs is also not found. 26. PWs-2 and 3 are the sisters of the first plaintiff and according to them, first defendant was the eldest brother in the family and after the death of their father, first defendant was looking after the family and performed their marriages. 27. Admittedly, parties are mohammadans. Therefore, plea of oral partition as is enunciated by the plaintiffs is impermissible. 28. As such, the very foundation for the plaint relief itself is not proved by the plaintiffs. 29. As against the material evidence placed on record on behalf of plaintiffs, index of lands and record of rights are placed on record as Exhibits D-10 and D-11. Exhibits P-3 and P4, Exhibits D-10 and 11, discloses that the suit properties were mortgaged to various persons. - 12 - RSA No. 381 of 2010 30. In Exhibit D-1/mortgage deed there is a recital that property mortgaged to Suvarnamma had fallen to the share of first defendant. But there is no supporting material in that regard. No independent witnesses are examined to prove that till the year 1977 plaintiffs received income from the suit properties as their share in the alleged partition. 31. Material evidence in the form of oral testimony of PW-2 and PW-3 would establish that first defendant was in exclusive possession of the properties and he was enjoying the properties even after the death of their father and performed their marriages. 32. As such, the Trial Judge held that, there was no partition of the properties and accordingly answered issue No.1 in the negative. 33. Accordingly, issue No.2 should also be answered in the negative as after death of defendant No.1, sons and daughters of defendant No.1 would get the share in the properties as per the mohammadan law and they were in possession of the properties as tenants in common. - 13 - RSA No. 381 of 2010 34. Plaintiffs 1 to 3 and defendant Nos.1 and 4 were thus in possession of the properties as tenants in common. 35. Defendant No.1 selling the properties to defendant Nos.2 and 3 is not in dispute. Plaintiff Nos.1 to 3 are admittedly not parties to the sale deeds and therefore, sale deed in respect of Appendix A and B would not bind the plaintiffs. 36. Therefore, learned Trial Judge holding Issue No.2 in the affirmative cannot be faulted with. 37. With regard to the limitation pleaded by the defendants, detailed discussion has been carried out in paragraph-14 wherein PW-1 has admitted that suit was filed as a proper Miscellaneous Petition seeking partition and possession. 38. Prior to 1978, properties were mortgaged to Suvarnamma is an admitted fact. Taking note of the earlier proceedings, learned Trial Judge held that suit is barred by limitation. So also, answers to issue Nos.4 and 5 by the Trial Court in the negative is supported by valid reasons. Though issue No.2 is held in favour of the plaintiffs, since suit is barred by limitation, suit of the plaintiffs came to be dismissed. - 14 - RSA No. 381 of 2010 39. In the light of the discussions carried out by the learned Trial Judge, which was affirmed by the First Appellate Court, substantial questions of law which were raised at the time of admission that concept of adverse possession would be available as a defence will have to be answered against the plaintiffs as there is no cross appeal or cross objection with regard to the finding on issue No.2, and remedy for the plaintiffs to obtain share in the properties has been lost by way of limitation. 40. As such, the findings recorded by the Courts below is proper and not against the principles of law governed by mohammadan law. 41. For holding that the suit is barred by limitation, there is a detailed discussion taking note of the earlier proceedings as well, by the Trial Judge. 42. In view of foregoing discussion, all the substantial questions of law referred to supra are invariably answered against the appellants. - 15 - RSA No. 381 of 2010 43. Accordingly, the following: ORDER Appeal is dismissed. Sd/- (V SRISHANANDA) JUDGE kcm