- 1 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.645 OF 2022 (DEC/INJ) BETWEEN: 1. SMT. KURSHID UNNISA @ KHRUSHID BEGUM D/O. ABDUL AZEEZ AGED ABOUT 60 YEARS 2. SMT. SHAHAZAD UNNISA @ SHAHAZAD BEE D/O. ABDUL AZEEZ AGED ABOUT 54 YEARS BOTH ARE RESIDING AT SULIBELE VILLAGE AND POST MUSLIM MOHALL, HOSAKOTE TALUK BANGALORE RURAL DISTRICT-562129. …APPELLANTS (BY SRI. CHANDRANATH ARIGA K., ADVOCATE) AND: 1. SRI. MOHAMMED FAZIL @ FARUSABI S/O. SHEIK FAKRUDDIN SAB SINCE DIED REP. BY HIS LR'S RES.1 TO 6. SMT. JAIBU UNNISSA W/O. MAHAMMED FAZIL @ FARUSABI AGED ABOUT 64 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 2. SRI. MAHAMMED ISSAQ S/O. MAHAMMED FAZIL @ FARUSABI AGED ABOUT 47 YEARS 3. SRI. MAHAMMED MOULA S/O. MAHAMMED FAZIL @ FARUSABI AGED ABOUT 45 YEARS 4. SRI. MUNNAVAR PASHA S/O. MAHAMMED FAZIL @ FARUSABI AGED ABOUT 42 YEARS 5. SRI. RAHAMMETH PASHA S/O. MAHAMMED FAZIL @ FARUSABI AGED ABOUT 37 YEARS RESPONDENTS NO.1 TO 5 ARE RESIDING AT SULIBELE VILLAGE AND POST MUSLIM MOHALL, HOSAKOTE TALUK BANGALORE RURAL DISTRICT-562129. 6. SRI. MAHAMAD HUSSAIN S/O. LATE. ABDUL RAHEEM AGED ABOUT 77 YEARS RESIDING AT NO.1/2, 5TH MAIN 10TH CROSS, GIDDAPPA BLOCK, GANGANAGAR, R.T.NAGAR BANGALORE-560032. 7. SRI. ABDUL BASHEER KHAN S/O. SATTAR KHAN AGED ABOUT 82 YEARS NO.3366, DARGA MOHALLA, VIJAYAPURA TOWN, DEVANAHALLI TALUK BANGALORE RURAL DISTRICT-562110. 8. SRI. RIYAJ PASHA S/O. ABDUL AZEEZ AGED AGOUT 57 YEARS - 3 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 9. SMT. MUMTHAZ UNNISA D/O. ABDUL AZEEZ AGED ABOUT 53 YEARS 10. SRI. NAJEER AHAMED S/O. ABDUL AZEEZ AGED ABOUT 49 YEARS 11. SRI. MOHABOOB D/O. ABDUL AZEEZ AGED ABOUT 49 YEARS 12. SMT. AFROZ UNNISA D/O. ABDUL AZEEZ AGED ABOUT 47 YEARS 13. SRI. MOHAMMED PASHA S/O ABDUL AZEEZ AGED ABOUT 44 YEARS RESPONDENTS NO.8 TO 13 ARE RESIDING AT SULIBELE VILLAGE AND POST MUSLIM MOHALLA, HOSAKOTE TALUK BANGALORE RURAL DISTRICT-562129. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.12.2021 PASSED IN R.A.NO.275/2020 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT BENGALURU. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.09.2020 PASSED IN O.S.NO.1562/2012 ON THE FILE OF THE CIVIL JUDGE AND JMFC, ARAKALGUD. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellants. 2. The appellants’ counsel submits that the suit is filed for the relief of declaration to declare that the plaintiffs are the absolute owners of the ‘A’ schedule property and also to declare that sale deed dated 02.06.2005 executed by defendant Nos.1 to 6 in favour of defendant No.7 is illegal, void and not binding upon the plaintiffs and also to declare that registered gift deed dated 09.12.2011 executed by defendant No.1 in favour of defendant No.2 is not binding upon the plaintiffs and also sought for the decree of possession of ‘B’ schedule property and claimed the permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule ‘B’ and ‘C’ properties. 3. The case of the plaintiffs in brief that father of plaintiffs, namely Abdul Azeez, was the youngest son of - 5 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 Tavakal Sabi had 3 sons namely Jahangeer Sab, Sheikh Fakruddin and Abdul Azeez. It is averred that Tavakal Sabi died leaving behind certain immovable properties and his three sons entered into partition dividing the properties by virtue of registered partition deed dated 20.02.1983. It is also the contention that ‘C’ schedule property of the partition deed was allotted to the share of father of plaintiffs Abdul Azeez which comprises of 3 items. In pursuance of the partition, mutation was accepted in the name of Abdul Azeez and he was in peaceful possession and enjoyment of the properties allotted to his share in the said partition. It is also the contention that suit schedule survey number is also one of the item of ‘C’ schedule property of the partition deed, the same is described as ‘A’ schedule in the plaint schedule. The father of plaintiffs and plaintiffs jointly cultivated the said land. That on 27.04.2008 Abdul Azeez died and thereafter on 04.01.2012 Smt.Kamrunnisa died who are the parents of the plaintiffs. It is also contended that defendant No.1 - 6 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 alleging that suit ‘A’ property had fallen to his share in the partition and khata changed to his name, even though there was no such partition. That the defendant No.1 on the basis of the said illegal katha, sold an extent of 1 acre 3 guntas in Sy.No.14/1 in favour of defendant No.7 vide sale deed 02.06.2005, the said property is described as ‘B’ scheduled property in the plaint schedule. 4. It is also contended that 1st defendant has also executed a gift deed in favour his wife defendant No.2 in respect of 1 acre 3 guntas in Sy.No.14/1 and the same is described as ‘C’ scheduled property in the plaint schedule. It is contended that 1st defendant is the close relative of the plaintiffs and is the son of Sheikh Fakruddin Sab, the elder brother of the Abdul Azeez, who is the father of plaintiffs. That the defendant No.1 playing fraud has created documents in collusion with defendant No.2 who is the wife of defendant No.1 in collusion with defendant No.7. That the defendant Nos.2 to 6 are the wife and children of defendant No1. It is contended that though - 7 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 they are not the owners of the property, they have jointly executed alleged sale deed. The defendant No.8 had filed suit in O.S.No.36/2006 claiming 29 guntas of land in Sy.No.14 alleging that parents of the plaintiffs had agreed to sell the said land in his favour by an agreement of sale dated 13.10.1989 and that he has perfected the title by a way of adverse possession. 5. It is contented that in the said suit defendant No.1 forged the signature of the parents of the plaintiff and filed the written statement to his convenience, the said suit came to be dismissed on 22.11.2007 and against the judgment, an appeal was filed in R.A.No.10/2008 by the defendant No.8 and the same was allowed and remanded to the Trial Court for fresh disposal. The plaintiff herein are the defendants in the said suit. The defendant No.1 has played fraud on the parents of the plaintiffs and the plaintiffs herein and also forged the signature of the parents of the plaintiff and filed written statement in O.S.No.36/2006 and also created revenue documents in - 8 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 his name and fraudulently sold ‘B’ schedule property and also executed gift deed in respect of ‘C’ schedule property. Based on the sale deed and the gift deed, got changed the khata and hence, filed the suit seeking the relief of declaration and other consequential relief. In pursuance of the suit summons, defendant Nos.1 to 8 have appeared and filed their written statement and defendant Nos.7 to 8 have also filed separate written statement. The defendants have filed written statement denying the very contention of the plaintiff, however, they admits the relationship between the parties and also the partition deed, but contended that such document is executed with some reservation, which is described in detail in the later part of the written statement. It is contented that ‘A’ schedule property measuring 2 acres 6 guntas was held by Tavakal Sabi and late Khartoonbi. They are none other than the grand parents of plaintiffs and defendant No.1 and great grand parents of defendant Nos.3 to 6. That after the death of Tavakal Sabi and Khartoonbi, their 3 sons divided - 9 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 all the properties including Sy.No.14, that stood in the name of Tavkal Sabi and Khartoonbi and entered into registered partition dated 20.02.1983. 6. It is contended that as on the date of partition, there was prohibition of fragmentation of land by virtue of prohibition of fragmentation Act, for the said reason, it was mutually agreed by their 3 sons to hold some of the items of the schedule of said partition deed in one of the brother’s name. Accordingly, ‘A’ schedule property measuring 2 acres 6 guntas was divided among 3 brothers, that is 29 guntas each and another 18 guntas in favour of Abdul Azeez, father of the plaintiffs. The said persons were put in physical possession of their respective shares but however, for convenience and to overcome the fragmentation act in the registered partition deed, ‘A’ schedule measuring 2 acres 6 guntas was shown to be held in the name of father of plaintiffs Abdul Azeez. Subsequently, the revenue records was mutated in the name of Abdul Azeez and his wife. But, respective persons - 10 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 shown in partition deed were enjoying their respective shares without any interference. For the said reason, these defendants deny the averments made in paragraph No.4 of the plaint and also contend that neither the plaintiffs nor the father of the plaintiffs cultivated entire extent of a ‘A’ scheduled property. But, they were in actual possession only to the extent of 28 guntas of land that was allotted to their share by virtue of partition. It is also the contention that Abdul Azeez and Kamrunnisa along with their sons that is plaintiff Nos.2, 5, 6 and 8 have executed agreement of sale on 18.05.1994 in favour of Anwarsab in respect of 28 guntas of land and 29 guntas of land that is the share of Jahangeer Sab. Further, the share of Sheikh Fakruddin sab, who is the father of defendant No.1 was retained. It is contented that when defendant No.1 came to know about the execution of agreement of sale dated 18.05.1994, he approached the said Anwarsab and expressed his desire to retain entire property by himself as he got sentimental values towards the property of elders. - 11 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 Saying so, he settled the agreement amount paid by Anwar Pasha in favour of his uncles namely Jahangerr sab and Abdul Azeez. Having settled the agreement amount, 1st defendant executed agreement of sale dated 19.04.1999 in favour of his wife Jaibunnisa, who is the 2nd defendant and to the said agreement plaintiff Nos.2, 5, 6 and 8 have signed as witnesses. It is contended that after execution of agreement of sale dated 19.04.1999, Abdul Azeez retained share of 1st defendant's father namely Sheik Fakrudin Sab. That the 1st defendant to secure his right over the entire ‘A’ scheduled property felt it necessary to get a fresh agreement of sale in his favour and accordingly, a fresh agreement of sale dated 04.06.2001 that was executed by Abdul Azeez and Kamarunnisa, the parents of the plaintiff, at enhanced sale consideration in favour of the wife of 1st defendant namely Jaibunnisa, who is the 2nd defendant. That the 2nd defendant and plaintiff Nos.2, 5, 6 and 8 have signed as witness to the said agreement. The 1st defendant has paid - 12 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 the entire sale consideration as agreed in terms of agreement dated 04.06.2001 by virtue of sale agreement 19.04.1999 and 04.06.2001, the second defendant namely Jaibunnisa, wife of 1st defendant as acquired right over 2 acres 6 guntas of land in Sy.No.14. That the 1st defendant being in possession of entire ‘A’ schedule property alienated the portion of the property to the defendant No.7. For the said reasons, these defendants deny the allegation that plaintiffs are in possession of the suit schedule property ever since from 13.10.1989. That the revenue records continued in the name of Abdul Azeez but Abdul Azeez and Kamarunnisa, these defendants wanted to transfer entire ‘A’ schedule in his favour, but thinking that execution of sale deed in pursuance of agreement of sale would cost him more resorted to another alternative method of getting execution of partition deed. It is contended that according to the partition deed dated 14.05.2003 executed among parents of plaintiffs, namely Abdul Azeez, Kamarunissa, Jahageer sab and brother of 1st - 13 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 defendant, ‘A’ scheduled property that is Sy.No.14 measuring 2 acres, 6 guntas was allotted in favour of the 1st defendant. On the strength of the same, he got mutated the property MR.No.25/2003-04 and contend that there is no illegality as alleged in the plant and claimed the dismissal of the suit. 7. The Trial Court having considered the grounds urged in the plaint as well as in the written statement, framed the issues and allowed the parties to lead their evidence. Having considered the evidence of the plaintiff and defendant, the very claim of the plaintiffs are answered as negative in answering all the issues and dismissed the suit. Being aggrieved by the said judgment and dismissal of suit, an appeal is filed in R.A.No.275/2020. The First Appellate Court also on re-appropriation of both oral and documentary evidence available on record, formulated the point as whether the Trial Court committed an error in dismissing the suit and whether it requires interference of this Court. That - 14 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 whether the plaintiff Nos.1 and 3 have made out sufficient grounds to show that Trial Court has committed an error. The First Appellate Court also, on re-appropriation of both oral and documentary evidence placed on record, answered the point as negative and comes to the conclusion that plaintiff No.1 and 3 have failed to make out any ground to show that Trial Court has committed an error to appreciate both oral and documentary evidence and also made an observation that sons of the Abdul Azeez, who are some of the plaintiffs before Trial Court in the suit have not chosen to challenge the impugned judgment and decree by filing any appeal and only 2 daughters of Abdul Azeez, who are the plaintiffs Nos.1 and 3 have filed the present appeal and also take a note of in the cross examination of P.W.1 admitted that the 29 guntas each had fallen to the share of brothers of her father and 28 guntas had fallen to the share of her father Abdul Azeez in the partition between Abdul Azeez and his brothers. This admission prove the contention of the - 15 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 written statement filed by the defendant Nos.1 to 6. Having taken note of the admission, both the Trial Court as well as the First Appellate Court dismissed the suit and appeal respectively. Being aggrieved by the finding of Trial Court, the present second appeal is filed before this Court. 8. The counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in coming to the conclusion that appellants are not the owners of the suit schedule property since they had not joined hands in selling their share in the suit schedule property and finding of the First Appellate Court parties to the suit being governed by Mohammedan Law are not entitled for declaration of ownership over the scheduled property and the very finding of the Trial Court and also the First Appellate Court is erroneous. Hence, it requires interference of this Court. 9. Having heard the appellants’ counsel and also the Counsel appearing for the respondents and no doubt the Trial Court in detail considered the both oral and - 16 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 documentary evidence placed on record and also the counsel for appellants mainly relies upon the document of Ex.P1 that is C.C of the partition deed. It is very important to note that when one of the plaintiff was examined before the Trial Court given an admission that 28 guntas of property was allotted in favour of their father Abdul Azeez and said admission was also taken note of by the Trial Court since suit is filed to the extent of 2 acre 6 guntas and also taken note of earlier there was a partition and also the pleadings which was made by the defendant was accepted by the P.W.1. When such being the case, rightly comes to the conclusion that plaintiffs have not made out any case in proving their ownership. The First Appellate Court also taken note of that other sons of the Abdul Azeez have not filed any appeal as against the judgment and decree passed in O.S.No.1562/2012. The First Appellate Court having re-appropriated both oral and documentary evidence placed on record, particularly in paragraph No.39 of the judgment taken note of admission - 17 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 and also comes to the conclusion that this admission would prove the averments of the written statement filed by defendant Nos.1 to 6 and they took specific contention that even though there was a partition earlier and subsequently there was agreement of sale and rights of the father of the Plaintiffs was also purchased by making payment and also taken note of sale deed executed by the defendant Nos.1 to 6 in favour of defendant No.7 and suit was also filed after 2012 after 7 years of date of execution of the sale deed and also possession was delivered in favour of the purchaser. Having taken note of relief sought for declaration and declaring the sale deed dated 20.06.2005 is null and void and also execution of gift deed by Defendant Nos.1 and 2 in the year 2012. Though it is contended as illegal and taken note of the admission on the part of P.W.1. When such admission was given, I do not find any error committed by the Trial Court in dismissing the suit of the plaintiff and confirmed the same by Appellate Court. Hence, question of framing any - 18 - HC-KAR NC: 2025:KHC:19517 RSA No. 645 of 2022 substantive question of law as contended by the appellants’ counsel doesn't arise. Hence, no merit to admit and frame substantive question of law. 10. In view of the discussions made above, I pass the following: ORDER The Second Appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 47