- 1 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1549 OF 2005 (DEC/INJ-) BETWEEN: SRI. J BASHU, SINCE DEAD BY HIS LRS. 1. SMT. RIHANA BEGUM W/O. LATE SRI. J. BASHU AGED ABOUT 58 YEARS, 2. J. KHAJA MAINUDDIN S/O. LATE SRI. J.BASHU, AGED ABOUT 40 YEARS, 3. J. MD. RIYAZUDDIN S/O. LATE SRI. J. BASHU, AGED ABOUT 34 YEARS, APPELLANT NO.1 TO 3 RESIDING AT NO.8, 24TH WAD, GADANG STREET, COWL BAZAAR, BALLARI. 4. SMT. AKHILA BANU W/O. BAHAUDDIN AGED ABOUT 45 YEARS, R/AT BADI BASE, SINDANUR. 5. SMT. RASHIDA BANU W/O. ABDUL MAJEED AGED ABOUT 43 YEARS, R/AT KESAR SINGH STREET, MILLAR PET, BALLARI. 6. KOUSER BANU W/O. SHAMEER BASHA, AGED ABOUT 30 YEARS, R/AT NEAR IIAHI MASJID V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.15 12:20:57 +0530 - 2 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 MARI SWAMY MUTT, BALLARI. 7. SALMA BANU W/O. MEHABBOB BASHA AGED ABOUT 28 YEARS, R/AT KADRI MANZIL, BENGALURU ROAD, GUGGARAHATTI, BALLARI. …APPELLANTS (BY SRI. K. RAGHAVENDRA RAO AND SMT.V. VIDYA IYER, ADV.S) AND: T S FAROOK AHAMED SINCE DECEASED BY HIS LRSSAFOORA BEE, 1. SMT. SAROORA BEE, W/O. LATE T.S. FAROOK AHAMED, AGED ABOUT 55 YEARS, 2. SRI. ARIF S/O. LATE T.S.FAROOK AHAMED, AGED ABOUT 28 YEARS, 3. JABEEN, D/O. LATE T.S.FAROOK AHAMED, AGED ABOUT 25 YEARS 4. MUBEENA D/O LATE T.S.FAROOK AHAMED AGED ABOUT 20 YEARS, RESPONDENT 1 TO 4 ARE R/AT WATER RANGAPPA STREET WARD NO.14, DOOR NO.136, MILLER STREET, BELLARY – 583101. ABDUL SATTAR SAB SINCE DECEASED BY HIS LRS - 3 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 SRI. ABDUL GAFFAR SAHEB SINCE DECEASEDBY HIS LRS 5. SMT. RAZIA BEE W/O LATE ABDUL GAFFAR SAB R/AT D.NO.7, W.NO.15, ABDUL AZEEZ STREET, MILLERPET, BELLARY – 583101. 6. RABIA BEE D/O LATE ABDUL GAFFAR SAB AGED ABOUT 25 YEARS, R/AT D.NO.7, W.NO.15, ABDUL AZEEZ STREET, MILLERPET, BELLARY – 583101. 7. ZAHEERA BEE D/O. LATE ABDUL GAFFAR SAB AGED ABOUT 28 YEARS, R/AT D.NO.7, W.NO.15, ABDUL AZEEZ STREET, MILLERPET, BELLARY – 583101. 8. MAINMUM BEE D/O. LATE ABDUL GAFFAR SAB AGED ABOUT 19 YEARS, R/AT D.NO.7, W.NO.15, ABDUL AZEEZ STREET, MILLERPET, BELLARY – 583101. 9. PARVEEN BEE D/O. LATE ABDUL GAFFAR SAB AGED ABOUT 16 YEARS, MINOR REP. BY ITS MOTHER AND NATURAL GUARDIAN SMT. RAZIA BEE, R/AT D.NO.7, W.NO.15, ABDUL AZEER STREET, MILLERPET, BELLARY – 583101. 10. ABDUL RAWOOF D/O. LATE ABDUL GAFFAR SAB, AGED ABOUT 22 YEARS, R/AT D.NO.7, W.NO.15, ABDUL AZEEZ STREET, MILLERPET, BELLARY – 583101. - 4 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 11. B. ABDUL KAREEM S/O. ABDUL SATTAR, AGED ABOUT 62 YEARS, R/AT MECHANIC, BULLOCK BAZAAR, BELLARY – 583101. 12. B. ABDUL AMEER, S/O. ABDUL SATTAR, AGED ABOUT 60 YEARS, R/AT BULLOCK BAZAAR, BELLARY - 583101. 13. B. HUSSAIN BI, W/O. B.ABDUL SATTAR, MAJOR, RAT BULLOCK BAZAAR, BALLARI. …RESPONDENTS (R1 – R13 ARE SERVED UNREPRESENTED) ------ THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED PRINCIPAL DISTRICT JUDGE, BELLARY, IN R.A.NO.212/2004 DATED 08.03.2005, AND ALSO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED CIVIL JUDGE (JUNIOR DIVISION), BELLARY IN O.S.NO.158/1976, DATED 19.11.1992, ALLOW THIS REGULAR SECOND APPEAL WITH COSTS. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 5 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by defendant No.1 challenging the judgment and decree dated 28.03.2005 in R.A.No.212/2004 on the file of the Principal District and Sessions Judge, Bellary (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 19.11.1992 in O.S.No.158/1976 on the file of the Principal Munsiff Court, Bellary decreeing the suit of the plaintiff (for short “the Trial Court”). 2. The parties are referred to as per their rank before the Trial Court. 3. The relevant facts for adjudication of this appeal are that the plaintiffs have filed suit against the defendants seeking recovery of rent in respect of the suit schedule property in the portion of 1st plaintiff’s 1/4th share and 2nd plaintiff’s half share, inter alia sought for the relief of mandatory injunction directing the defendant No.1 to let out the premises in question with the consent of the plaintiffs. It is also stated in the plaint that the suit schedule property has been identified as “Angli Tuti Fatima - 6 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 Panja Building” situate at Ballari, which is a private Wakf building and same is vested with the plaintiffs and defendant No.1. It is also stated that the building in question is not alienable and not liable for partition between the parties. The plaintiffs and defendant No.1 are entitled to collect the rents from tenants of the building in question and to use portion of the same for religious function during Muharram by installing ‘Panja’ as per the usage and customs of Muslims. It is further stated in the plaint that the suit schedule property is a private Wakf property and source of the said Wakf is lost insofar as the property in question is concerned and the suit schedule property was managed by four persons during 1938 and also it is stated that the suit schedule property was leased out to one V.K.Vasudev Rao on 22.08.1938 on rent of ₹6/- for a period of 5 years up to 21.08.1943. 3.1. It is also stated in the plaint that the said lessee has undertaken to vacate the suit schedule property during the month of Muharram to enable the parties to conduct rituals. It is also stated in the plaint that the plaintiffs are having legal right insofar as usufructs of the property in question and also it is stated that the property has been leased out to defendant - 7 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 No.2 on monthly rent of ₹40/-, to defendant No.3 on monthly rent of ₹30/- and to defendant No.4 on monthly rent of ₹50/- and therefore, the plaintiffs have filed suit in O.S.No.158/1976 seeking usufructs of rent accrued insofar as suit schedule property is concerned. 3.2. The defendants entered appearance and filed detailed written statement stating that the suit itself is not maintainable on the ground that the suit schedule property is a private Wakf property and further defendant No.1 has denied the share of the usufructs of the suit schedule property and accordingly sought for dismissal of the suit. Defendant No.1 has filed additional written statement denying that the Wakf property has lost its identity and also stated that the suit property is concerned, neither be having right to sale nor can be alienated by the defendants and accordingly, it is submitted that after the death of his father, defendant No.1 is managing the affairs of the suit property. Accordingly, sought for dismissal of the petition. 3.3. The Trial Court based on the pleadings of the parties framed issues for consideration. In order to establish - 8 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 their case, the plaintiffs have examined three witnesses as PW1 to PW3 and produced 14 documents and same were marked as Ex.P1 to Ex.P14. The defendants have examined one witness as DW1 and produced 8 documents and same were marked as Ex.D1 to Ex.D8. 3.4. The Trial Court, after considering the material on record, by its judgment and decree dated 19.11.1992 decreed the suit in part holding that the plaintiff No.1 and 2 are entitled for 1/3rd share each in the usufructs of the suit schedule property after deducting the expenses incurred in installation of ‘Aalams’ during the month of Muharram. Defendant No.1 was restrained from leasing out the suit schedule property and also directed defendant No.1 to permit the plaintiff No.1 and 2 to participate in the management of the suit schedule property. Feeling aggrieved by the same, defendant No.1 has preferred R.A.No.212/2004 before the First Appellate Court and same was resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 28.03.2005 dismissed the appeal and confirmed the judgment and decree in O.S.No.158/1976 by the Trial Court. - 9 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 Feeling aggrieved by the same, defendant No.1 has preferred this appeal. 4. I have heard Smt. V. Vidya Iyer, learned counsel appearing for the appellant. 5. It is submitted by the learned counsel appearing for the appellants that the finding recorded by the First Appellate Court that Wakf is created is incorrect, and as such, requires to be interfered with in respect of share of usufructs in this appeal. It is also submitted by the learned counsel that the issue involved in this appeal is only with regard to share of usufructs of the property in question, which is a private property and also it is argued that both the Courts below have misconstrued Ex.P1 to Ex.P3/three sale deeds in which the plaintiffs have contended that alienation has been made and therefore, it is the argument advanced by the learned counsel appearing for the appellants that the impugned judgment and decree passed by the Trial Court is misconceived by misrepresenting Ex.P1 to Ex.P3 and also further contended that these documents would not help the plaintiffs to claim usufructs - 10 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 of the property in question and accordingly, sought for interference of this Court. 6. In the light of the submission made by the learned counsel appearing for the appellants and on careful examination of the finding recorded by the Courts below makes it clear that the property in question is a Wakf property and the suit schedule property has been leased out to the defendants 2 to 4 by the ancestors of the plaintiffs and defendant No.1, and the usufructs/lease amount has been utilized by the parties. It is also made clear that the suit schedule property has been earmarked for the purpose of religious function like installing ‘Panjas’ as per the usage and customs of Muslims. In that view of the matter, taking into consideration the finding recorded by the Trial Court that the property in question cannot be alienated, nor the parties can devolve properties since the suit property has been identified as Wakf property for religious purpose and also taking into account the fact that both the plaintiffs as well as defendant No.1 is entitled for share in the usufructs/rents accrued insofar as the suit schedule property is concerned, I am of the view that no interference is called for in this appeal. Accordingly, the appeal is dismissed at the stage of - 11 - NC: 2025:KHC-D:2667 RSA No. 1549 of 2005 admission itself since the appellants herein have not made out a case for formulation of substantial question of law as required under section 100 of CPC, since the Trial Court has taken into consideration that the ancestors of the plaintiffs as well as the defendant No.1 had leased out the property in question during 1938 itself and thereafter the lease has been continued with the other tenants and therefore, both the plaintiffs as well as defendant No.1 are entitled for share in usufructs/rents and therefore, there is no perversity in the impugned judgment and decree. In the result, the appeal fails. 7. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT:ANB List No.: 1 Sl No.: 16