- 1 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100034 OF 2018 (PAR/POS) C/W REGULAR FIRST APPEAL NO. 100031 OF 2018 IN RFA NO.100034/2018 BETWEEN: SMT. FARIDABANU W/O BABAJAAN BUDDANAVAR AGE: 54 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. ...APPELLANT (BY SRI. B.S. KUKANAGOUDAR, ADVOCATE) AND: 1 . KHADARSAB S/O MAHAMMADASAB NARAYANAPUR AGE: 70 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 2 . MAINUDDINSAB S/O MAHAMMADASAB NARAYANPUR, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.03.15 11:30:53 +0530 - 2 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 AGE: 67 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 3 . BANUBI @ BANUBEGAM W/O ABDULKHADAR ATTIGERI, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: KARADAGI, TQ: SAVANUR, DIST: HAVERI, PIN CODE: 581118. 4 . KHWAJAMODDIN S/O ABDULKHADAR ATTIGERI, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: KARADAGI, TQ: SAVANUR, DIST: HAVERI, PIN CODE: 581118. 5 . JEELANI, S/O MAHAMMADASAB NARAYANPUR, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 6 . CHAMANASAB, S/O MAHAMMADASAB NARAYANPUR, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. SINCE DECEASED BY HIS LR’S 6A) SMT. KOUSARBANU, W/O CHAMANSAB NARAYANPUR AGE: 42 YEARS, OCC: HOUSEHOLD, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. - 3 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 6B) KUM. SANIYA D/O CHAMANSAB NARAYANPUR AGE: 13 YEARS, OCC: STUDENT, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. MINOR REPRESENTED BY HER MOTHER 6(A) 7 . MOULALI S/O ISUFASAB KITTUR AGE: 39 YEARS, OCC: BUSINESS, R/O: HANGAL, KANCHAGAR ONI, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 8 . MUNAFASAB, S/O GOUSUSAB BUDDANAVAR, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 9 . MAKABULASAB, S/O GOUSUSAB BUDDANAVAR, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 10 . BHASHASAB, S/O GOUSUSAB BUDDANAVAR, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 11 . CHAMANABI, W/O MAHABOOBSAB NEGALUR, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. - 4 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 12 . PUTTAPPA S/O SHIVAPPA TEGGIHALLI AGE: 70 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 13 . SHANKRAPPA S/O SHIVALINGAPPA KARADI AGE: 36 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 14 . SOMALINGAPPA S/O NAGAPPA SULLALLI AGE: 49 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 15 . SHAMBULINGAPPA S/O NAGAPPA SULLALLI AGE: 52 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 16 . MALLIKARJUN S/O NAGAPPA SULLALLI AGE: 54 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. 17 . MAHAMMADAGOUSE, S/O KAREEMSAB AADUR AGE: 54 YEARS, OCC: AGRICULTURE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. - 5 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 18 . NINGAPPA S/O BHARAMAPPA MAILAR AGE: 69 YEARS, OCC: AGRICULTURE, R/O: MOTEBENNUR, TQ: BYADAGI, DIST: HAVERI, PIN CODE: 19 . MAHANTESH, S/O DODDABASAPPA BENDIGERI AGE: 28 YEARS, OCC: COOLIE, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI, PIN CODE: 581104. …RESPONDENTS (BY SRI. S.N. BANAKAR FOR C/R2, R3, AND R5 AND ALSO R6(A); R6(B) IS MINOR REPRESENTED BY R6(A); V/O. DATED 10.09.2020, STEPS TO BRINGING OF LRS OF DECEASED R1 IS DISPENSED WITH; SRI. VIJAYENDRA BHIMAKKANAVAR, ADVOCATE FOR R12 TO R19; NOTICE TO R4, R7, R8, R9, R10, R11 SERVED) THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO, THE JUDGMENT AND DECREE DATED:02.11.2017 PASSED IN O.S.NO.2/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HANGAL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION, CONSEQUENTIAL PERMANENT INJUNCTION. IN RFA NO.100031/2018 BETWEEN - 6 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 1 . MAINUDDINSAB, S/O MOHAMMEDSAB NARAYANPUR AGE: 68 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 2. BANUBI @ BANUBEGAM, W/O ABDULKHADAR ATTIGERI, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: KARADAGI-581118, TQ: SAVANUR, DIST: HAVERI. 3. JEELANI, S/O MAHAMMADSAB NARAYANPUR, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 4. CHAMANSAB S/O MAHAMMADSAB NARAYANPUR, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 4A) SMT. KOUSARBANU W/O. LATE CHAMANSAB NARAYANPUR AGE: 35 YEARS, OCC: HOUSE HOLD WORK, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI -581104, DHARWAD-580001. 4B) KUMARI. SANIYABANU, D/O CHAMANSAB NARAYANPUR AGE: 14 YEARS, OCC: STUDENT, SINCE MINOR R/BY HER NEXT FRIEND AND NATURAL GUARDIAN MOTHER I.E., - 7 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 SMT. KOUSARBANU, W/O LATE CHAMANSAB NARAYANPUR AGE: 35 YEARS, OCC: HOUSE HOLD WORK, R/O: NAREGAL, TQ: HANGAL, DIST: HAVERI -581104, DHARWAD-580001. NOTE: THE DEFENDANT NO.1 BY NAME KHADARSAB S/O MAHAMMEDSAB NARAYANPUR DURING THE PENDENCY OF O.S.NO.2/2013 DIED. HIS LEGAL HERS ARE ALREADY ON RECORD, AS SUCH, HE HAS NOT BEEN IMPLEADED EITHER AS APPELLANT OR RESPONDENT TO THIS APPEAL. ...APPELLANTS (BY SRI. S.N. BANAKAR, ADVOCATE) AND 1 . SMT. FARIDABANU W/O BABAJAAN BUDDANAVAR AGE: 55 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 2 . KHWAJAMODDIN S/O ABDULKHADAR ATTIGERI, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: KARADAGI-581118, TQ: SAVANUR, DIST: HAVERI. 3 . MOULALI S/O YUSUFSAB KITTUR AGE: 40 YEARS, OCC: BUSINESS, R/O: HANGAL-581104, TQ: HANGAL, DIST: HAVERI. 4 . MUNAFSAB, S/O GOUSUSAB BUDDANAVAR, AGE: 53 YEARS, OCC: AGRICULTURE, - 8 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 5 . MAKABULASAB, S/O GOUSUSAB BUDDANAVAR, AGE: 58 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 6 . BASHASAB, S/O GOUSUSAB BUDDANAVAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 7 . CHAMANABI, W/O MAHABOOBSAB NEGALUR, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 8 . PUTTAPPA S/O SHIVAPPA TEGGIHALLI AGE: 71 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 9 . SHANKREPPA S/O SHIVALINGAPPA KARADI AGE: 37 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 10 . SOMALINGAPPA S/O NAGAPPA SULLALLI, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. - 9 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 11 . SHAMBULINGAPPA S/O NAGAPPA SULLALLI, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 12 . MALLIKARJUN S/O NAGAPPA SULLALLI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 13 . MAHAMMADGOUSE S/O KAREEMSAB AADUR, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. 14 . NINGAPPA S/O BHARAMAPPA MAILAR AGE: 70 YEARS, OCC: AGRICULTURE, R/O: MOTEBENNUR-581106, TQ: BYADGI, DIST: HAVERI. 15 . MAHANTESH S/O DODDABASAPPA BENDIGERI, AGE: 29 YEARS, OCC: COOLIE, R/O: NAREGAL-581104, TQ: HANGAL, DIST: HAVERI. ….RESPONDENTS (BY SRI. B.S. KUKANAGOUDAR, ADVOCATE FOR R1; NOTICE IN RESPECT OF R2 TO R15 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 R/W. UNDER ORDER 41 RULE 1 AND 2 OF THE CPC., PRAYING TO, THE JUDGMENT AND DECREE DATED 02.11.2017 PASSED IN O.S.NO.02/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION AND INJUCTION. - 10 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT ON 03.02.2019, THIS DAY, UMESH M ADIGA, J., PRONOUNCED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) These appeals arise out of the judgment and decree dated 02.11.2017 passed in OS No.2/2013 on the file of Senior Civil Judge and JMFC Hangal. 2. Defendants No.2, 3, 5, 6 and two others filed RFA No.100031 of 2018, praying to set aside the judgment and decree passed by the trial court. Plaintiff in the said suit filed RFA No.100034/2018, praying to decree the suit in its entirety. 3. Both the appeals arise out of the common judgment and decree. Therefore, both the appeals are taken up together for disposal. - 11 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 4. Plaintiff in OS No.2/2013 filed the suit for partition, declaration and permanent injunction. The said suit was partly decreed by the trial court granting half share in suit ‘B’ schedule properties and rejecting the claim of plaintiff in respect of other suit schedule properties. The trial court dismissed the claim of the plaintiff for the relief of declaration and permanent injunction. The trial court kept open the claim of plaintiff in respect of survey.No.76 to an extent of 12 acres 36 guntas of Naregal village and it had observed that rights of the parties are subject to the decisions of this court in WP No.70449/2012, pending before this court. Aggrieved by the said judgment and decree, both the parties have preferred these appeals. 5. We refer to the parties as per their ranking before the trial court. 6. It is the case of the plaintiff that one Chamansab was grandfather of defendants No.2 to 6. He was unmarried and had no issues. He died intestate. His - 12 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 younger brother was one Moulasab. Moulasab was taking care of Chamansab. After the death of Chamansab, as a nearest relative, Moulasab succeeded to the properties held by Chamansab. All the suit schedule ’A’ and ‘B’ properties were acquired by the Chamansab; and out of them, the agriculture lands were tenanted lands and Chamansab was permanent tenant of the said properties. 7. Moulasab had two sons and one daughter i.e., Mohammadsab and Hajaratsab and Hashambi. All the sons and daughter of Moulasab are no more. The first son, Mohammadsab had six sons and a daughter. Ameersab and Goususab were the sons of Mohammadasab and they pre-diseased him. Khadarsab was defendant No.1 and he died during the pendency of the suit. The Mainuddinsab is the second defendant. Bhanubi alias Banubegum is the third defendant and Jeelani is the defendant No.5 and Chamanasab is the defendant No.6. The Hajarathsab, the second son of Moulasab, died intestate. The plaintiff claimed to be the daughter of the said Hajarathsab and - 13 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 daughter of Moulasab was by name Hashambi. She died leaving behind three sons and two daughters. Her eldest son Babajan pre-diseased her and her eldest daughter by name Jannatvi died leaving behind her son 7th defendant Moulali. Second son of Hasahmbi is Munaffsab is 8th defendant, 3rd son is Makbulsab 9th defendant. Another son of Hashambi is Bashasab 10th defendant and another daughter is by name Chamanbi 11th defendant. Defendant Nos.12 to 19 are purchasers of portion of the suit schedule properties. 8. It is a contention of the plaintiff that ‘A’ schedule landed properties were originally tenanted properties of Chamansab son of Kajarsab Narayanpur. Chamansab was unmarried and having no issues. He died intestate and his nearest relative and legal heir was Moulasab. Suit ‘A’ schedule properties are tenanted lands and after the death of Chamanasab, Moulasab succeeded to the said properties and he was in possession and enjoyment of the same. After the death of Moulasab, his - 14 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 two sons and daughter continued to be in possession and enjoyment of suit schedule properties as protected tenants. 9. It is further contention of the plaintiff that after coming into force of Karnataka Land Reforms Act, 1974, both Hajrathsab and Mohammadsab have filed applications before the Land Tribunal seeking grant of occupancy right in respect of tenanted lands. During the pendency of the said proceedings before the Land Tribunal, in the presence of elders of the village, an agreement was entered into between Mohammadsab and Hajrathsab. According to the said agreement, Hajarathsab got only one daughter and Mohammadsab had five sons and he had to maintain large family and hence Hajarath Sab shall file Form No.7 only in respect of the property bearing survey No.76 to an extent of 12 acres and 36 guntas; And Mohammadsab may file Form No.7 in respect of remaining tenanted lands. On the basis of the said understanding and compromise between Hajarathsab and Mohammadsab, they filed separate Form - 15 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 No.7 claiming occupancy rights. Land Tribunal had granted occupancy rights in respect of survey No.76 measuring 12 acres 36 guntas in favour of Hajarathsab and in respect of remaining properties, occupancy right was granted in favour of Mohammadsab. The said Mohammadsab at the instance of husband of defendant No.3 by name Abdul Qadar Atikeri and contrary to the under standing between them, challenged the order of Land Tribunal granting occupancy right in respect of survey No.76, in favour of Hajarathsab. Since Mohammadsab committed breach of settlement, after grant of occupancy right in respect of all the schedule properties, Hajarathsab and Mohammadsab jointly continued in possession and enjoyment of the suit properties granted by the Land Tribunal. 10. Mohammadasab challenged the order of Land Tribunal granting of occupancy right in respect of survey No.76 in favour of Hazarathsab, before this court, by filing a writ petition. This court after hearing the matter allowed - 16 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 the writ petition and set aside the order of the Land Tribunal and matter was remanded to the Land Tribunal for fresh consideration of the matter. And the said dispute is pending in the Land Tribunal. 11. It is further contended that the said Hajarathsab died on 20.09.2001. Defendants No.1 to 8 were sharing of income of the suit schedule ’A’ properties till 2012 and thereafter did not share the income derived from the suit schedule properties. Therefore, plaintiff has requested the defendant to effect the partition in the properties and give her legitimate share. Defendants No.1 to 11 refused to effect partition. They were also claiming absolute right over the suit properties on the basis of the Will executed by Chamanasab in favour of Mohammadsab. 12. The plaintiff further contended that defendants behind her back and without her consent sold some of the suit schedule properties in favour of defendants No.12 to 19. The said sale deeds are not binding on the rights of the plaintiff. With these reasons, she prayed for effecting - 17 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 partition and separate position of her half share in the suit schedule properties and also to declare that the sale deeds executed by the defendants No.1 to 8 in favour of defendants No.12 to 19 are not binding on the rights of the plaintiff. She also prayed to grant the relief of injunction restraining the defendants from interfering in her peaceful possession and enjoyment of the suit properties. 13. Defendants No.1 to 6 contended that the plaintiff has no locus standi to file the suit. They contended that plaintiff is not at all the daughter of deceased Hajarathsab. He was unmarried and hence in the genealogy, name of wife of Hajarathsab is not at all shown. Marriage of Hajarathsab was fixed with one Sharifabi, before the marriage she gave birth to the plaintiff. As such, marriage of Sharifabi with Hajarathsab was cancelled. Said Sharifabi had illicit relationship with one Mardansab Agassar. The said Sharifabi left the village with Mardansab and both of them settled in Goa. Mother - 18 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 of Plaintiff that is Sharifabi married to Mardansabh Agassar. Thereafter she gave birth to three male and two female children. Plaintiff is also daughter of the said Mardansab Agassar and not related to the family of defendants No.1 to 6. 14. It is further contended by the defendants No.1 to 6 that Sherifabi left Goa and settled in Dandeli along with her children. Plaintiff was married to one Moulasab of Naregal village and thereafter she started to reside in Naregal village. Plaintiff is no way concerned to the family of defendants No.1 to 6. She filed this suit at the instigation of some ill-wishers of defendants No.1 to 11, just to grab the properties belonging to defendants No.1 to 11. Hence suit is not maintainable. 15. Defendants number 1 to 6 further contended that genealogy of the family mentioned by the plaintiff to the extent of sons and grandsons of Mohammadsab was true. They also admit that Mohammadsab had a brother by name Hajarathsab and a sister by name Hashambi. - 19 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 They further contended that after the death of Chamansab Mohammadsab continued to be in occupation and enjoyment of the suit properties. In addition to that, Chamansab had executed a will in favour of Mohammadsab dated 09-01-1959, bequeathing certain properties in favour of Mohammad Sahib. After the death of Chamansab as per the facts known to both Hajarathsab and Hashambi, they never raised any objections to the said entry made in the name of Mohammadsab. 16. Dependents No.1 to 6 further contended that after coming into force of Karnataka Land Reforms Act, said Mohammed Sab had filed Form No.7 claiming occupancy rights in respect of suit schedule properties. In the meanwhile, the Hajarathsab has also filed Form no. 7 claiming occupancy right in respect of survey No.76 of Naregal village. The Land Tribunal considered both applications together and passed an order dated 27-11-1981. As per the said order, except survey No. 76, all other properties mentioned in the plaint ’A’ schedule - 20 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 were re-granted in the name of Mohammadsab. The survey No.76 was granted in the name of Hajarathsab. Mohammadsab challenged said order of the Land Tribunal granting occupancy right in respect of survey No.76 in favour of Hajarathsab, by filing a writ petition before the High Court of Karnataka. The High Court considered it and allowed the same. Order of Land Tribunal was set aside and matter was remanded to the Land Tribunal for reconsideration. The Land Tribunal once again considered the said matter and by order dated 04-12-2001 has granted occupancy right in respect of Re Sy. No.76 in favour of Mohammadsab. In view of these orders passed by the Land Tribunal, entire plaint ‘A’ schedule properties become absolute ownership of Mohammadsab. The claim made by Hajarathsab in respect of survey No.76 was also rejected by the Land Tribunal. Hence plaintiff cannot claim any right over the suit schedule properties. 17. Defendants No.1 to 6 further contended that after the demise of Mohammadsab dispute arose between - 21 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 defendants No.1 to 6 in respect of property belonging to him. Therefore, defendant No.2 had filed original suit No.127/2001 seeking the relief of partition. During the pendency of the said suit, the matter was settled between the parties and compromise petition was filed. Suit was decreed in terms of compromise petition. 18. Defendants No.1 to 6 further contended that plaintiff has also filed Writ Petition No.70449/2012 before High Court of Karnataka challenging the order passed by the Land Tribunal dated 04-12-2001 wherein survey No.76 was granted in the name of Mohammadsab. The said matter is pending consideration. Till it is decided the defendants has no right over the suit property and plaintiff cannot seek partition of the same. 19. Defendants No.1 to 6 further contended that the Land Tribunal, considering the contentions of both Mohammadsab and Hajarathsab, granted occupancy right. The civil court has no jurisdiction to decide whether the suit schedule properties are joint family properties or self - 22 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 acquired properties of Mohammadsab and Hajarathsab. Therefore, the suit is barred under Section 132 of Karnataka Land Reforms Act. With all these reasons, defendants No.1 to 6 prayed to dismiss the suit with costs. 20. Defendants No.12 to 19 are purchasers of the portions of the suit schedule properties. They have also challenged the locus standi of the plaintiff to file the suit and they also disputed her relationship with Hajarathsab. They further contended that all the plaint ‘A’ schedule properties were granted in favour of Mohammadsab and after the death of Mohammadsab, defendants No.1 to 6 filed a suit for partition and the said suit was compromised. The defendants No.12 to 19 have purchased a different portion of the suit schedule properties under registered sale deeds executed by the respective owners of the said property. They are bonafide purchasers of suit properties for valuable consideration. From the date of purchase of the properties, they have been in possession and enjoyment of respective portions of the properties. - 23 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 The suit is filed only to harass purchasers of the suit properties. It is a collusive suit between plaintiff and defendants No.1 to 11. With these reasons, defendants No.12 to 19 prayed to dismiss the suit with costs and to protect their rights in respect of the properties, purchased by them. 21. From the rival contentions of the parties. The trial court framed the following issues in both the cases: ISSUES 1. Whether plaintiffs proves that she has got her legitimate ½ share in all the suit properties? 2. Whether plaintiff further proves that the genealogical pedigree as pleaded in the plaint schedule is true and correct and complete one? 3. Whether plaintiff further proves that the sale transactions made by the defendants No.1 to 8 in favor of defendants No.12 to 19, in connection with some of the suit properties, are not binding on the plaintiffs right over the suit properties? 4. Whether the plaintiff further proves that she is in joint possession of the suit properties along with the defendant No.1 to 8? - 24 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 5. Whether the defendant No.2 proves that plaintiff is not belonging to his family? 6. Whether the defendant No.2 further proves that the defendants No.1 to 6 have sold some of the suit properties which were standing in their names as legal heirs, for their family necessities? 7. Whether the defendant No.2 further proves that all the suit schedule properties are not in exclusive possession and enjoyment of the defendants No.1 to 6? 8. Whether the defendant No.2 further proves that this court has no jurisdiction to try and entertain the instant suit in view of the bar U/s.132 of KLR Act? 9. Whether there is proper cause of action arisen to the plaintiff to file the instant suit? 10. Whether the suit of the plaintiff is valued properly and the court fee one paid is correct and sufficient? 11. Whether the defendant No.16 proves that the defendants No.12 to 19 are the bonafide purchasers of some of the suit properties for the valid sale consideration amount as pleaded in his W.S.? 12. Whether the defendant No.16 further proves that the suit of the plaintiff is barred by law of limitation? 13. Whether the defendant No.16 is entitle for the alternative relief as sought for in his W.S. para No.13? - 25 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 14. Whether the plaintiff is entitle for the relief of partition and separate possession in all the suit schedule properties as sought for in the plaint? 15. Whether the plaintiff is further entitle for the relief of declaration and perpetual injunction as sought for in the plaint? 16. What order or decree? 22. Plaintiff to prove her case examined her power of attorney as PW1 and one witness as PW2 and she got marked 33 documents as Ex.P1 to P33. Defendant No.2 was examined himself as DW1. Defendant No.2 examined DW2 and DW3 but they did not appear for cross examination. Defendant No.2 filed a memo that he will not examine the said witnesses. Therefore, the evidence of DW2 and DW3 are incomplete. Defendant No. 16 was examined as DW4. Defendant No. 12 was examined as DW5. Defendant No.13 was examined as DW6 and Defendant No. 17 was examined as DW7. On behalf of the defendants 70 documents were marked as Ex. D1 to D70. 23. The Trial Court Heard the arguments of both the parties. The trial court appreciating the pleadings and - 26 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 evidence on the record, answered issue numbers 1, 2, 8, 9, 12, 14 partly in the affirmative. Issue numbers 3, 4, 13, and 15 in the negative. Issue numbers 5, 6, 7, 10, 11 in the affirmative and partly decreed the suit. The trial court granted half share to the plaintiff in respect of ‘B’ schedule properties. It rejected claim of the plaintiff in respect of ‘A’ schedule properties. The trial court also kept open rights of the parties in respect of RS No.76 measuring 12 acres 36 guntas to be decided in the writ Petition No. 70449/2012. The finding of the trial court is challenged by both the parties in the present appeals. 24. We have heard the arguments of learned counsel appearing for both the sides. 25. Learned Counsel for Appellant in RFA No. 100034/2018(plaintiff) contends that the learned trial Judge rightly decreed the suit in respect of ‘B’ schedule properties. However, the learned trial Judge without proper appreciation of pleadings and evidence rejected the claim of the plaintiff in respect of ‘A’ schedule properties. - 27 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 It is further stated that the learned trial judge erroneously dismissed the claim of the plaintiff for the relief of declaration. The trial court erred in not holding that suit ‘A’ schedule properties are joint family properties and in joint possession and enjoyment of the plaintiff and defendants No.1 to 11. Therefore, the finding of the trial court rejecting the claim made by the plaintiff is erroneous. 26. The learned counsel for the plaintiff further submits that genealogy of the family is not at all disputed by the defendants No.1 to 6. In the cross-examination, it was suggested that after the birth of plaintiff, Sharifabi left Hajarathsab and married to one Mardhansab. Thereby they admit that plaintiff was born from the relationship between Sharifabi and Hajarathsab. PW1 in his evidence has stated about relationship of plaintiff with the said Hajarathsab. Nothing was brought out in the cross- examination of PW1 to discard the said evidence. Even the defendants have not led any rebuttal evidence to disprove the said contention. The learned trial judge rightly - 28 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 accepted that plaintiff is a daughter of Hajarathsab. Even in the Form No.7 filed by the Hajarathsab he has mentioned that he has a daughter. It is not the case of defendants that there is any daughter other than plaintiff to the said Hajarathsab. This fact was also considered by the trial court and the said finding of the trial court is proper. 27. The learned counsel for the plaintiff further submits that admittedly all the suit schedule properties were held by Chamansab. He was a permanent tenant of the said lands and after his death, Moulasab who was his younger brother and the nearest relative, succeeded to the suit properties. Moulasab and his two sons and daughters had been cultivating and enjoying the suit schedule properties as tenants or occupants. After coming into force of Land Reforms Act, Mohammadsab filed Form No.7 in respect of suit schedule properties. Similarly, Hajarathsab had also filed such an application before the land tribunal. During the pendancy of the said claim petitions, matter - 29 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 was settled between Mohammadsab and Hajarathsab, in the presence of the elders. Elders advised both of them that Hajarathsab has got only one daughter and Mohammadsab has got six children. Therefore, more amount of properties should be given to the share of Mohammadsab. The Hajarathsab generously accepted the said advice of the elders and he restricted his claim only in respect of survey No.76 measuring 12 acre 36 guntas. Accordingly, he claimed to that extent of land before the Land Tribunal. The Land Tribunal, considering the said claim of Mohamadsab as well as Hajarathsab, granted occupancy right in respect of survey no. 76 in favour of Hajarathsab and remaining properties in favour of Mohammadsab. After passing of the said orders, Mohammadsab at the instigation of his son-in-law challenged the said order of grant of occupancy right in favour of Hajarathsab, before this court in all writ petition and the said writ petition was allowed and matter was remanded to the Land Tribunal. Thereafter, the Land Tribunal granted occupancy right in respect of survey - 30 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 No.76 in favour of Mohammadsab and the same is challenged before this court and it is still pending before this court for disposal. 28. The learned counsel for the appellant further submits that since Mohammadsab withdrew the said settlement, both Mohammadsab and Hajarathsab have been enjoying the suit schedule properties as joint family properties. After the death of Hajarathsab, defendants No.1 to 6 were giving share in the income of the suit properties to the plaintiff. However, from the year 2012, they stopped paying the share of plaintiff in the income of the suit schedule properties. When plaintiff demanded the same, the defendants No.1 to 6 refused to give her share and also refused to effect a partition. Hence, she filed this suit. 29. The document produced by the plaintiff unequivocally proved her locus standi to file the suit and her right over the suit schedule properties. The tenancy was a joint family tenancy, therefore after death of - 31 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 Moulasab, Mohammadsab as well as Hajarathsab continued the occupancy rights. And both of them had been jointly enjoying the suit schedule properties. The trial court has not appreciated this fact properly and it has not applied proper laws on this point to the facts of the present case. Therefore, erroneously rejected the claim of the plaintiff in respect of ‘A’ schedule properties. With these reasons, the learned counsel appearing for the plaintiff prayed to allow the appeal by setting aside the judgment in respect of rejection of the claim of the plaintiff. 30. The learned council for the appellant in RFA 100031/2018(defendants No.2 to 11) contends that the first point to be proved by the plaintiff in this case is that she was the daughter of Hajarathsab. This fact was stoutly disputed by all the defendants. Defendants No.1 to 6 even gave the history of marital status of Hajarathsab and it is specifically stated that before marriage of Hajarathsab, Sharifabi delivered the plaintiff from her relationship with - 32 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 Mardansab. Due to the said reason their marriage was cancelled. There was no physical relationship between Sharifabi and Hajarathsab and hence she was not daughter of the Hajarathsab. The Sharifabi went with Mardansab, married him and resided in Goa. From the said relationship of Sharifabi and Mardansab, they had three daughters and two sons. All of them were residing at Goa till the death of Mardansab. After his death, they shifted to Dhandeli. These facts are very well known to the plaintiff. In the cross-examination, PW1 admits illicit relationship between Sharifabi and Mardansab; However, cleverly pleads ignorance about other suggestions of the defendants, which are pleaded by the defendants No. 1 to 6. 31. The learned counsel for defendants further vehemently contended that when the relationship was disputed, it was the duty of the plaintiff to examine herself to prove that she is daughter of Hajarathsab. For the best reasons known to her, she got examined her power of attorney as PW1. As per the judgment of Hon’ble Supreme - 33 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 Court, in the case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd reported in ILR 2005 KAR 729, the evidence of power of attorney is not acceptable. In this case, she was born to the Hajarathsab and Sharifabhi has to be proved by the plaintiff and to prove the same, plaintiff herself should have entered the witness box and gave an opportunity to defendants to cross-examine her in this regard. Deliberately to suppress the material facts, she did not attended before the court. 32. It is further contended that plaintiff has also not examined the witnesses who were present at the time of marriage of Hajarathsab with Sharifabi. She has not produced any documents such as birth extract, ration card etc., to show that she was daughter of Hajarathsab. In view of the said reasons, plaintiff miserably failed to prove that she is the daughter of Hajarathsab. When she has failed to prove the same, she is not entitled for any relief and she has no locus standi to file the suit. The learned trial judge on the basis of assumption, presumption and - 34 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 surmises held that plaintiff is the daughter of Hajarathsab. The learned trial judge considering the contents of Form No.7 wherein it is stated that he has a daughter held that plaintiff is a daughter of Hajarathsab, without any materials on record. Therefore, the said finding of the trial court is highly erroneous. 33. The learned counsel for the defendants No.1 to 6 further submits that during the lifetime of Hajarathsab and Mohammadsab, both of them have filed Form No.7 and Hajarathsab himself has claimed occupancy right in respect of survey No.76. He did not make any claim in respect of other properties. The story of settlement is fabricated by the plaintiff. There are no materials on record to corroborate it. The PW2 was examined in this regard and his evidence is not reliable. If that was the case, then they could have made such a statement before the Land Tribunal. There was no hurdle to Hajaratsab to make such statement before the Land Tribunal. Except the self-serving statement of PWs.1 and 2, there are no - 35 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 materials on record to corroborate the same. Therefore, the said fact is also not proved. 34. It is further contended that in a joint trial before the Land Tribunal, it was said that plaint ‘A’ schedule properties except survey No.76 were tenanted properties of Mohammadsab and they were granted in favour of Mohammadsab. When once the Land Tribunal decided this matter, again there is no question of re-deciding the said fact by the Civil Court. The learned trial judge ought to have rejected the plaint under Section 132 of Land Reforms Act, holding that the said court has no jurisdiction to reconsider the said fact. 35. The learned counsel for the defendants No.1, 2 and 6 further submits that even grant of occupancy right in respect of survey No.76 was challenged by Mohammadsab and the said writ petition was allowed and matter was remanded to the Land Tribunal and during the year 2001. The Land Tribunal allowed the contention of the Mohammadsab and even survey No.76 was re-granted - 36 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 in favour of Mohammadsab. Said order is challenged by the present plaintiff before the High Court and the matter is still pending before the High Court. 36. The learned counsel for the defendants further submits that the parties are governed by Mohammedan Law and there is no question of joint family property. During lifetime of Hajarathsab, he never claimed partition in respect of ‘A’ schedule properties from Mohammadsab. There was no such claim made by him either before the Land Tribunal or before the court and no properties were granted to him during his lifetime. Therefore, he had no property and he was not at all the owner of the suit properties as on the date of his death. Therefore, question of plaintiff entitled for the share over the properties held by him does not arise at all. She has not succeeded to any of the properties of the Hajarathsab. The Hajarathsab did not own any properties at the time of his death to succeed by his alleged daughter that is plaintiff. The trial court has not considered these facts and granted the relief in respect - 37 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 of ‘B’ schedule properties. Therefore, the finding of the learned trial judge is erroneous, illegal, arbitrary and perverse. Therefore, interference in the said finding is required. 37. The learned counsel for other defendants /respondents submit that they are the bonafide purchasers of the portion of the suit schedule properties for valuable consideration, without notice of any claim made by the Hajarathsab. During the lifetime of Hajarathsab, he never made any claim in respect of suit schedule properties except survey No.76. The defendants No.12 to 19 have purchased portion of the suit schedule properties for valuable consideration from the respective owners of the suit properties. Therefore, prayed to protect their interest and dismiss the suit against them. 38. From the above said contentions, following questions arise for our determination: - 38 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 1) Whether learned trial judge erred in holding that the plaintiff is the daughter of Hajarathsab and she is succeeded to the properties held by the Hajarathsab at the time of his death? 2) Whether the learned trial judge erred in holding that plaint ‘A’ schedule properties are ‘tenants in common’ properties and after the death of Hajarathsab, plaintiff is entitled to succeed to the said properties? 3) Whether learned trial Judge erred in granting half share in the ‘B’ schedule properties holding that they are joint family properties without any materials on record? 4) Whether the trial judge erred in not granting other reliefs prayed by the plaintiff in the present suit? - 39 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 5) Whether the findings of the trial judge are erroneous, arbitrary and perverse and interference by this court is required? 6) What order? POINT NO. 1 39. Plaintiff contends that she is daughter of Hajarathsab. Defendants No.1 to 6 denied the same and disputed the said fact. Hence, heavy burden lies on the plaintiff to prove that she is the legitimate daughter of Hajarathsab. In the pleadings, plaintiff has not stated the name of her mother. In the genealogy, as contended by the defendants name of wife of Hajarathsab is not stated. They have stated about character and conduct of mother of the plaintiff. It was also stated that Hajarathsab had not married Sharifabi. 15 days prior to date of marriage of Hajarathsab and Sharifabi, she delivered the plaintiff. Hence, said marriage was got cancelled. She had illicit relationship with one Mardanasab and after cancellation of - 40 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 marriage of Hajarathsab with Sharifabi, she eloped with the said Mardhansab to Goa and resided there. Out of the said relationship, Sharifabi had three daughters and two sons. Plaintiff did not dispute said allegations by filing rejoinder and explained about said contentions of defendants. Even in the cross examination of DW-1 nothing was elicited by the plaintiff to disprove said contentions. In view of contentions of defendants, plaintiff has to prove marriage of Sharifabi with Hajarathsab and birth of plaintiff from the said relationship. 40. Plaintiff did not enter the witness box and deposed about relationship of Sharifabi and Hajarathsab and her birth. Plaintiff has not examined relevant witness to prove marriage of Sharifabi and Hajarathsab. She has not produced any documents to prove marriage of Hajarathsab with Sharifabi. Plaintiff has not produced any documents to prove that both Sharifabi and Hajarathsab lived as wife and husband till birth of plaintiff. She has also not produced any documents showing the name of - 41 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 her father as Hajarathsab. There is no explanations for non-production of relevant evidence in this regard. 41. Plaintiff examined her son who is also her general power of attorney. He is not competent witness to prove marriage of Sharifabi and Hajarathsab as well as birth of plaintiff during substance of said relationship. On going through his cross examination, it shows that he knows nothing about said facts and other facts pleaded in the plaint. But he admits that Sharifabi had illicit relationship with Mardansab and elopement of Sharifabi with Mardansab to Goa and residing at Goa. He also admits that Sharifabi had two sons and three daughters from her relationship with Mardansab. The said admissions of PW1 probabalise defense of defendants No.1 to 6 and it is difficult to belief that plaintiff is a daughter of Hajarathsab. 42. The suggestions of defendants No.1 to 6 shows that Sharifabi is residing with her children at Dandeli after the death of Mardansab. She is best witness to prove the - 42 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 fact in dispute. Plaintiff has not examined her. Hence, plaintiff utterly failed to prove the marriage of Sharifabi with Hajarathsab and her birth from the said relationship. She failed to prove that she is daughter of Hajarathsab. Hence, she has no locus standi to file the suit claiming share in the suit properties. For above reasons, we hold point No.1 in negative. Point No.2 43. Plaintiff has contended about filing of Form No.7 before Land Tribunal by Hajarathsab and also circumstances under which he restricted his right in respect of Sy.No.76/2. From the materials produced before the court such agreement might have taken immediately after coming into force of Land Reforms Act, 1974. Considering the age of PW1, it appears he was not born as on that date and hence, he is not competent witness to prove said settlement. PW.2 is examined to prove the said settlement. From the answers given in the cross examination, it appears that he is a planted witness. - 43 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 His evidence is not corroborated by any documentary evidence. If that was the case of both the brothers they could have given statement before the Land Tribunal stating that as per their agreement, Mohammadsab applied for ‘A’ schedule property excluding Sy.No.76 and Hajarathsab applied only for Sy.No.76. 44. Admittedly, after passing of order by the Land Tribunal, granting occupancy rights in favour of Hajarathsab, Mohammedsab challenged the same before High Court by filing the writ petition. The said writ petition was allowed and order of Land Tribunal granting occupancy right in favour of Hajarathsab in respect of Sy.No.76 was set aside and matter was remanded to the Land Tribunal for fresh consideration. It is undisputed fact that after reconsidering the case, the Land Tribunal regranted occupancy rights in favour of Mohammedsab. The said order is challenged by the Hajarathsab before High Court by filing writ petition and it is pending consideration. - 44 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 Hence, rights of the parties cannot be considered in respect of Sy.No.76 in this suit. 45. Undisputedly, except Sy.No.76, other properties mentioned in the plaint ‘A; schedule granted in the name of Mohammedsab. It is not challenged by anybody till this day and it attained finality. If the contention of the plaintiff regarding settlement between both the brothers was true then Hajarathsab must have challenged said order of Land Tribunal. He accepted order of grant of occupancy rights in favour of Mohammedsab. Hence, plaintiff cannot challenge the same before Civil Court. It is barred under Section 132 of Karnataka Land Reforms Act. On this count also plaintiff is not entitled for the relief prayed in the suit. 46. Plaintiff and defendants No.1 to 6 are governed by Mohammedan law. After the death of a person his/her legal heirs succeeds to the property left by the deceased in accordance with Mohammedan law. As discussed above, at the time of death of Hajarathsab, he was not at all owner of any of the suit property. Hence, question of - 45 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 plaintiff succeeding to the same do not arise. Question of joint family or joint family property has no place in Mohammedan law. 47. The learned trial judge considering these facts and circumstances, though the reasons assigned are something different, has not granted any relief in respect of plant ‘A’ schedule properties, excluding survey number 76. The said findings are not erroneous. 48. Plaintiff was not able to prove that Hajarathsab succeeded to the house properties mentioned in the ’B’ schedule and as on the date of his death, he has a right title interest over the said properties. On that count, plaintiff cannot succeed to the said properties. Moreover, plaintiff has utterly failed to establish and prove that she is the legitimate daughter of Hajarathsab. When such is the case, she cannot maintain the suit for partition. Therefore, the grant of relief in respect of ‘B’ schedule properties in favour of the plaintiff is also not legally tenable order. The learned trial judge without considering the factual situation - 46 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 and law relating to the same, granted the relief in respect of ‘B’ schedule properties, the said findings are erroneous, which needs interference by this court. Accordingly, I answer point No.2. Points No. 3 to 5. 49. We found that the trial judge, on the basis of assumption, presumption and surmises, held that plaintiff is a legitimate daughter of Hajarathsab. The learned trial judge did not consider the pleadings of defendant and proof produced by them. The primary and heavy burden lies on the plaintiff to prove that marriage of Hajarathsab with Sharifabi had taken place and from the said relationship of Hajarathsab and Sharifabi, plaintiff was born. The plaintiff did not enter the witness box. She did not examine the competent person to prove marriage of Hajarahsab with Sharifabi and also prove that after marriage both of them were residing together and from the said relationship, plaintiff was born. She has also not produced any indirect evidence to prove the name of her - 47 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 father mentioned in the birth extracts, ration card, other public documents. The trial court erroneously on the basis of a vague and stray word mentioned in the Exhibit D1 held that she is a daughter of Hajarathsab. Plaintiff has not obtained and produced the document pertaining to the said litigation or contentions taken by Hajarathsab in the said suit. If all those properties were joint family properties and there was no partition, then why did Hajarathsab did not include these properties in the said suit is not explained. DW1 reiterated the contentions of defendants No.1 to 6. In his cross examination nothing was brought out to disbelieve his evidence. Plaintiff could not get an admission in his cross examination to prove her case. Evidence of DWs 2 and 3 are incomplete and hence no need to consider. DWs. 4 to 7 are purchasers of the property. Their evidence is not relevant to decide real dispute. Hence, much discussion is not required. 50. According to the contention of both the parties, Chamansab was a permanent tenant over the suit - 48 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 properties. Therefore, for the sake of discussion, even if it is presumed that Land Reforms Act was not enacted then they could continue the tenancy right for those properties since they were permanent tenants and tenancy right could be divided among them. This also indicates that suit properties were not joint family properties and it was not treated as joint family property by even Hajarathsab. 51. Both the parties have produced revenue records i.e., RTC, Land Tribunal Order etc. Those documents are not at all in dispute and all the RTCs are prior to division of the properties between the defendants, were standing in the name of Mohammadsab and it is also not in dispute that Land Tribunal has granted schedule properties excluding survey No.76 in favour of Mohammadsab and survey No. 76 in favour of Hajaratjsab. Therefore much discussion of the said documents is not required. The said documents proved that Mohammadasab was the owner of the suit ‘A’ schedule properties excluding survey no.76. Looking to all these facts and circumstances, the learned - 49 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 trial judge erroneously partly granted the relief that needs interference by this court. For aforesaid discussions, we answer point Nos. 4 and 5 accordingly. Point No.6 52. For the above said discussions, we are of the view that the learned trial judge erroneously held that plaintiff is a legitimate daughter of Hajarathsab. The learned trial judge erroneously held that plaint ‘B’ properties are the joint family properties and plaintiff has a share in the ‘B’ schedule properties. We also of the view that the learned trial judge has erroneously decreed the suit in part in respect of ‘B’ schedule properties, which call for interference by this court. For aforesaid discussions, we pass the following: ORDER Appeal in RFA No.100031/2018 is allowed and appeal in RFA No.100034/2018 is dismissed. - 50 - NC: 2025:KHC-D:3968-DB RFA No. 100034 of 2018 C/W RFA No. 100031 of 2018 The judgment and decree dated 02.11.2017 passed in OS No.2/2013 by the learned Senior Civil Judge and JMFC., Hangal is set aside. Suit in OS No.2/2013 is dismissed. Both the parties shall bear their own costs. Draw decree accordingly. In view of the disposal of the appeals, all the pending IAs stand disposed of. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB List No.: 1 Sl No.: 30