- 1 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1324 OF 2022 (DEC/POS) BETWEEN: 1. MOHAMMED ISMAIL, S/O LATE IBRAHIM SAB, AGED ABOUT 77 YEARS, AGRICULTURIST AND RTD. POLICE CONSTABLE, R/A KEREBILACHI VILLAGE, CHANNNAGIRI TALUK, DAVANAGERE DISTRICT-577218. …APPELLANT (BY SRI. MD. AKRAM UPPIN, ADVOCATE FOR SRI. RAHAMATHULLA KOTHWAL, ADVOCATE) AND: 1. MOHAMMED AKBAR, S/O LATE MOHAMMED GHOUSE PEER, AGED ABOUT 69 YEARS, AGRICULTURIST. 2. S. IQBAL AHMED, S/O LATE MOHAMMED GHOUSE PEER, AGED ABOUT 68 YEARS. 3. AMEER AZAM, S/O LATE MOHAMMED GHOUSE PEER, AGED ABOUT 66 YEARS, AGRICULTURIST. 4. LIYAKATH ALI, S/O LATE MOHAMMED GHOUSE PEER, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 AGED ABOUT 63 YEARS, AGRICULTURIST. 5. S. MOHAMMED SHAFIULLA, S/O LATE MOHAMMED GHOUSE PEER, AGED ABOUT 56 YEARS, AGRICULTURIST. 6. ZAKEER HUSSAIN, S/O LATE MOHAMMED GHOUSE PEER, AGED ABOUT 56 YEARS. 7. MYNUL HAQ, S/O LATE MOHAMMED GHOUSE PEER, AGED ABOUT 52 YEARS, AGRICULTURIST. 8. HYDER ALI, S/O LATE MOHAMMED GHOUSE PEER, AGED ABOUT 50 YEARS, AGRICULTURIST. RESPONDENTS NO.1 TO 8 ARE R/AT SAGARAPETE VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577551. 9. ASLAM PASHA, S/O LATE TAJ PEER, AGED ABOUT 69 YEARS, AGRICULTURIST. 10. AMEER AHMED, S/O LATE TAJ PEER, AGED ABOUT 56 YEARS, AGRICULTURIST. 11. PEER AHMED, S/O LATE TAJ PEER, AGED ABOUT 55 YEARS, AGRICULTURIST. - 3 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 12. ALI JAN, S/O LATE TAJ PEER, AGED ABOUT 53 YEARS, AGRICULTURIST. RESPONDENTS NO.9 TO 12 ARE R/AT SAGARAPETE VILLAGE, BASAVAPATNA HOBLI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT. 13. ABDUL MAJEED SAB, S/O LATE CHAMAN SAB @ LATE SHEIK CHAMAN HANEEF, AGRICULTURIST, SINCE DEAD BY HIS LRS. SHABBIR SAB, S/O LATE MAJEED SAB, AGED ABOUT 61 YEARS AGRICULTURIST, R/AT SAGARAPETE VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577551. 14. BIBI JAN, W/O LATE MOHAMMED HANEEF, AGED ABOUT 76 YEARS, AGRICULTURIST. 15. MOHAMMED DASTAGIR, S/O ABDUL GAFAR SAB, AGED ABOUT 69 YEARS. 16. BUDEN SAB, S/O ABDUL GAAFAR SAB @ ABDUL GAAR SAB, AGED ABOUT 63 YEARS, SINCE DEAD BY HIS LRS. BADRUNNISA, W/O LATE BUDEN SAB, AGED ABOUT 60 YEARS, R/AT BASAVAPATTANA, - 4 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577551. 17. MOHAMMED ZABIULLA, S/O LATE BUDEN SAB, AGED ABOUT 43 YEARS, R/AT BASAVAPATTANA, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577551. 18. MOHAMMED ANSAR, S/O LATE BUDEN SAB, AGED ABOUT 41 YEARS, R/AT BASAVAPATTANA, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577551. 19. NAHIDA BANU, W/O NAUSHAD, D/O BUDEN SAB, AGED ABOUT 37 YEARS, LINE MAN KPTCL, R/AT BASAVAPATTANA, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577551. 20. SANJEEDA BANU, W/O BARKUATHULLA, D/O BUDEN SAB, AGED ABOUT 35 YEARS, NEAR USMANIA GIRLS SCHOOL, KEREBILACHI, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577551. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.06.2022 PASSED IN R.A.NO.41/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.07.2021 PASSED IN O.S.NO.69/2016 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, CHANNAGIRI. - 5 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellant. 2. The suit is filed for the relief of declaration to declare that the sale deed dated 04.06.1938 is null and void and the partition among the members of the family of the defendants vide partition deed dated 06.07.2015 is not binding on the plaintiff and also claimed the relief that the plaintiff is the absolute owner of the property. The defendants appeared and filed the written statement contending that the very suit itself is barred by limitation and already there was a sale deed and among the family members of the defendants there was a partition and hence the suit itself is not maintainable and the plaintiff is not entitled for the relief of declaration and possession. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that there was a sale deed of the year 1938. - 6 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 3. The learned counsel for the appellant would vehemently contend that there was no any sale consideration. The Trial Court having considered the oral evidence of P.W.1 to P.W.3 and D.W.1 and the documentary evidence of Exs.P.1 to 15 and Exs.D.1 to 27, answered issue Nos.1 to 3 and 5 in the negative and answered issue No.4 in the affirmative in coming to the conclusion that the suit is barred by limitation and the plaintiff is not entitled for any relief of declaration and possession. 4. Being aggrieved by the dismissal of the suit, R.A.No.41/2021 is filed and the Appellate Court on re- appreciation of both oral and documentary evidence placed on record, dismissed the appeal. 5. Being aggrieved by the concurrent finding, the present regular second appeal is filed before this Court. 6. The main contention of the learned counsel for the appellant is that both the Courts committed an error in not framing the proper points for consideration. The learned counsel would contend that the sale deed executed by the father of the plaintiff vide sale deed dated 04.06.1938 in favour of Mohammed Ghouse Peer Sab, who is the father of - 7 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 defendant Nos.1 to 8, is obtained by playing fraud and foul play and as such the said sale deed is nothing but fraudulent sale transaction and fake one. The said contention of the appellant was not properly considered by the Trial Court and hence this Court has to frame the substantial question of law that the First Appellate Court was not right in dismissing the regular appeal without considering the fact that the alleged sale transaction dated 04.06.1938 is without consideration and the same is obtained by playing fraud. The learned counsel would contend that the First Appellate Court has erred in misinterpreting the provisions of Mohammedan Law and thereby committed an error in dismissing the appeal. Hence, it requires interference of this Court by framing the substantial question of law. 7. Having heard the learned counsel for the appellant and also having considered the factual aspects of the case, the suit was filed in 2016 after 58 years challenging the sale deed dated 04.06.1938 contending that the sale deed was obtained by fraud and there was no any sale consideration. Even the partition which was taken place between the members of the family of defendant Nos.1 to 8 in 2015 was - 8 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 also challenged. The main contention is that the sale deed was obtained in the year 1938 by playing fraud on the father of the plaintiff. The Trial Court having taken note of the sale deed was taken place in 1938 and the challenge was made after a long time, answered issue No.4 in the affirmative in coming to the conclusion that the suit is barred by limitation. The fact is that the sale was taken place in 1938 and possession was also delivered long back in 1938 and possession is sought after 58 years and hence I do not find any error committed by the Trial Court in answering issue No.4 in the affirmative. The Appellate Court affirmed the said order since there was a sale deed executed long back in the year 1938. When such being the case, the very contention of the learned counsel for the appellant that both the Courts have committed an error cannot be accepted. This is nothing but a suit for luxury after 58 years of the sale made by the father of the plaintiff, the same was questioned by the plaintiff. Even after concurrent finding was given by the Appellate Court, this second appeal is filed and hence the second appeal is dismissed with exemplary cost of Rs.25,000/- payable at the Registry within two weeks from - 9 - HC-KAR NC: 2025:KHC:19466 RSA No. 1324 of 2022 today. If the cost is not paid within two weeks, the Registry is directed to recover the same in accordance with law. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 48