- 1 - NC: 2025:KHC:10755 RSA No. 256 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 256 OF 2022 (DEC/INJ) BETWEEN: MURTHOJAKHAN @ MUSTAK S/O KAREEMKHAN AGED ABOUT 78 YEARS R/AT UDUGANI VILLAGE SHIKARIPURA TQ SHIVAMOGGA DISTRICT - 577428 …APPELLANT (BY SMT. N.S. JAYASHREE, ADVOCATE) AND: 1. DILSHAD BEGUM W/O SHAFFIULLAKHAN AGED ABOUT 32 YEARS 2. ADILKHAN S/O SHAFFIULLKHAN AGED ABOUT 32 YEARS 3. THOFFIKKHAN S/O SHAFFIULLLAKHAN AGED ABOUT 22 YEARS 4. FERMANKHAN S/O SHAFFIULLAKHAN AGED ABOUT 23 YEARS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10755 RSA No. 256 of 2022 5. MUSTHARI BEGUM S/O AJEDKHAN AGED ABOUT 63 YEARS 6. KURSHIDA BEGUM D/O AJEEJKHAN AGED ABOUT 61 YEARS 7. DILSHAD BEGUM D/O AJEEDKHAN AGED ABOUT 54 YEARS 8. SHAMIULLAKHAN S/O AJEEJKHAN AGED 52 YEARS 9. HABIBULLA S/O AJEEJKHAN AGE ABOUT 50 YEARS ALL ARE R/AT K R PURAM EXTENSION NEAR M G GARAGE SHIVAMOGGA 577201 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.12.2021 PASSED IN RA.No.25/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.08.2019 PASSED IN OS.No.107/2008 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, SHIKARIPURA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI - 3 - NC: 2025:KHC:10755 RSA No. 256 of 2022 ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 15.12.2021, passed in R.A.No.25/2019 by the learned Senior Civil Judge & JMFC, Shikaripura, and the judgment and decree dated 20.8.2019 passed in O.S.No.107/2008 by the learned I Additional Civil Judge and JMFC, Shikaripura. 2. For convenience, the parties are referred to, based on their ranking before the trial Court. The appellant was defendant No.1, and the respondents were the plaintiffs. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for a declaration, to declare that they are the rightful owners of the suit schedule property, and sought the relief of permanent injunction restraining the defendants not to - 4 - NC: 2025:KHC:10755 RSA No. 256 of 2022 interfere, obstruct the plaintiffs to do agricultural works, and with the peaceful possession and enjoyment of the suit schedule property. The plaintiffs, are the absolute owners in possession of the suit schedule property. The suit schedule property was granted to one Abdul Basheer Sab. The said landed property was purchased by one Azeez khan S/o Haji Khan from Abdul Basheer Sab on 1.6.1951, for a valuable consideration and all the revenue records stands in the name of Azeez Khan and he was in peaceful possession, and enjoyment of the schedule property. It is contended that, the propositus of the plaintiffs, by name Azeez khan s/o. Haji Khan, died on 20.3.1972, leaving behind the plaintiffs as Class I legal heirs, and after his demise, the plaintiffs, being the Class I heirs, have succeeded to the estate of their father. Defendant No.1 and 2 raised the objections claiming their rights over the suit schedule property . 3.1. Azeez khan was the permanent resident of Hudugene Village, Shikaripura Taluk. It is contended that - 5 - NC: 2025:KHC:10755 RSA No. 256 of 2022 defendants No.1 and 2 are the relatives of the plaintiffs, and are living separately. During the life time of Haji Khan, he begotten two sons, by name Khadar Khan and Murthuja Khan, and he had a second wife by the name, of Rakeja Bi, and they begotten three sons, by the name of Azeez khan (propositus of the plaintiffs ), Karim Khan and Hameed Khan. It is contended that defendants No.1 and 2 are the children of Azeez khan’s brothers. During the lifetime of the propositus-Azeez Khan, he was living separately with his family, and he was in possession and enjoyment of the suit schedule property, which was purchased by the late Azeez Khan in his individual capacity out of his hard earnings and individual income. Defendant No.1 is the son of Karim Khan, Defendant No.2 is the son of Hameed Khan (brothers of Azeez Khan) and defendants No.3 to 5 are the strangers. Defendants No.1 and 2, taking undue advantage that, they are the children of the brothers of the late Azeez khan, demanded a right over the suit schedule property. It is contended that the plaintiffs are the absolute owners of the suit schedule - 6 - NC: 2025:KHC:10755 RSA No. 256 of 2022 property, and the defendants have no right to claim any share in the suit schedule property. It is contended that the defendants with other defendants instigation and on the strength of relationship, tried to interfere with the suit schedule property and obstructed the plaintiffs from cultivating the suit schedule property. The plaintiffs requested the defendants not to interfere but, the defendants did not give any heed to the request made by the plaintiffs. Hence, a cause of action arose for the plaintiffs to file a suit for declaration of title and permanent injunction. Accordingly, he prays to decree the suit. 3.3. Defendant No.1 and 3 appeared through counsel and filed a written statement. Despite service of summons, defendant No.4 and 5 remained unrepresented and were placed exparte. 3.4. Defendants No.1 and 3 filed a written statement denying the averments made in the plaint, except admitting the relationship between plaintiffs and - 7 - NC: 2025:KHC:10755 RSA No. 256 of 2022 defendants No.1 and 2, and it is contended that they are the tenants in common and are entitled to a share in the suit schedule property, and the suit schedule property is in joint possession of the plaintiffs and defendants No.1 and 2. It is also contended that, the suit schedule property was purchased from the income derived from the other properties belonging to plaintiff and defendants and the said property was purchased for the benefit of the family, to grab the suit property from the hands of the defendants, the plaintiffs filed a false suit against the defendants. Hence, prays to dismiss the suit. 3.5. The trial Court, based on the pleadings of the parties, framed the relevant issues. 3.6. The plaintiffs, to substantiate their case, examined plaintiff No.6 as PW.1, and marked 30 documents as exhibits P.1 to P.30. On the other hand, defendant No.1 was examined as DW.1, examined two witnesses as DWs. 2 and 3, and marked 26 documents as exhibits D.1 to D.26. - 8 - NC: 2025:KHC:10755 RSA No. 256 of 2022 3.7. The trial Court, after recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence, decreed the suit of the plaintiffs with cost vide judgment dated 20.08.2019. It is ordered and declared that the plaintiffs are the absolute and rightful owners of the suit schedule property, and further decreed that, the defendants, their men, servants, agents, followers and other supporters are hereby permanently restrained from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property. 3.8. Defendants No.1 and 2, aggrieved by the judgment and decree passed in O.S.No.107/2008, filed an appeal in R.A.No.25/2019 on the file of the Senior Civil Judge and JMFC, Shikaripura. The Appellate Court, on re- assessment of verbal and documentary evidence, dismissed the appeal vide judgment dated 15.12.2021. 3.9. Defendants No.1 and 2, aggrieved by the impugned judgments, filed this Regular Second Appeal. - 9 - NC: 2025:KHC:10755 RSA No. 256 of 2022 4. Heard the arguments of the learned counsel for defendants No.1 and 2. 5. Learned counsel for defendants No.1 and 2 submits that the courts below have committed an error in concluding that the right to property has been acquired by devolution, and not as tenants in common, and he submits that the defendants have produced records to the effect that the suit property was indeed standing in the name of three sons of the propositus, Azeez Khan and the revenue records demonstrate that, Azeez Khan has owned the properties in Sy.No.48 and 51. Azeez Khan, the elder male member in the family, was acting as a Manager, and was holding the properties as per the sale deed of 1951. He submits that Azeez Khan died in 1972 and the plaintiffs never tried to enter their names in the revenue records after the demise of Azeez Khan. Hence, the courts below did not consider all there aspects, and have committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal. - 10 - NC: 2025:KHC:10755 RSA No. 256 of 2022 6. Perused the records, and considered the submissions of the learned counsel for defendants No.1 and 2. 7. It is not disputed that the property was purchased by Azeez Khan under a registered sale deed dated 1.6.1951. After the demise of Azeez Khan, the properties were transferred in the plaintiff’s name. Though, the defendants claim to be co-tenants, they have specifically denied the relationship of plaintiffs and defendants. 8. To prove the relationship of defendants No.1 and 2 with Azeez khan, the defendants have not produced any records. The suit was filed in O.S.No.310/91 by defendant No1 against the Panchayat for a permanent injunction restraining the formation of road on suit property. The defendants have produced the certified copy of the order sheet in O.S.No.310/91. As observed above, the said property was purchased by Azeez khan in 1951. The status of joint family is not applicable to the suit schedule property as there is no concept of joint family under the - 11 - NC: 2025:KHC:10755 RSA No. 256 of 2022 Mohammedan law. The Courts below have rightly passed the impugned judgments. I do not find any error in the impugned judgments or any substantial question of law that arises for consideration. Accordingly I proceed to pass the following. ORDER The appeal is dismissed. The impugned judgments and decree passed by the courts below are hereby confirmed. In view of the dismissal of the appeal, IAs.1 and 2 of 2022, do not survive for consideration, and are accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE rs