Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC-D:6997-DB RFA No. 100306 of 2017 C/W RFA No. 100305 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 100306 OF 2017 (DEC/INJ) C/W REGULAR FIRST APPEAL NO. 100305 OF 2017
IN RFA NO.100306 OF 2017: BETWEEN:
1. D. MUNNER AHMED S/O. D. ABDUL GAFOORSAB, SINCE DECEASED BY HIS LR’s.
1(A). SMT. D. AFROOZA BEGUM W/O. D.MUNEER AHAMED, AGE: 45 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. 1(B). D. SADAFF D/O. D. MUNEER AHAMED AGE: 21 YEARS, OCC: STUDENT, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. 1(C). D. SANIYA D/O. D. MUNEER AHAMED AGE: 19 YEARS, OCC: STUDENT, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. 1(D). D. SAMREEN D/O. D. MUNEER AHAMED AGE: 16 YEARS, OCC: STUDENT, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. (MINOR R/BY HER MOTHER I.E. APPLICANT NO.1(A)). MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.05.02 15:00:40 +0530
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2. D. ZAHEER S/O. ABDUL GAFOORSAB AGE: 31 YEARS, OCC: AGRICULTURIST, R/O. MUNDRIGI VILLAGE, BALLARI TQ AND DISTRICT-583275. …APPELLANTS (BY SRI. A.A.PATHAN, ADVOCATE)
AND:
K. MOHAMMED ABBAS S/O. LATE HAYATH SAB SINCE DECEASED BY HIS LR’s.
1. SMT. K. ZAIBUNNISA BEGUM W/O. LATE K.MOHAMMED ABBAS, AGE: 74 YEARS, OCC: AGRICULTURE. 2. K. MOHAMMED DADAHAYATH S/O. LATE K. MOHAMMED ABBAS, AGE: 55 YEARS, OCC: AGRICULTURE. 3. SMT. M. SALEEMA BEGUM D/O. LATE K. MOHAMMED ABBASS, W/O. HABEEB SAB, AGE: 51 YEARS, OCC: HOUSE WIFE. 4. K. MOHAMMED NAYEEM S/O. LATE K. MOHAMMED ABBAS, AGE: 48 YEARS, OCC: AGRICULTURE. 5. KUM. SHABEERA BEGUM D/O. K. MOHAMMED ABBAS, AGE: 37 YEARS, OCC: HOUSE WORK. 6. K. MOHAMMED KHALEEM S/O. LATE K. MOHAMMED ABBAS, AGE: 35 YEARS, OCC: AGRICULTURE. 7. K. MOHAMMED ASLAM BASHA S/O. LATE K. MOHAMMED ABBAS, AGE: 33 YEARS, OCC: AGRICULTURE. 8. K. MOHAMMED ASIF BASHA S/O. LATE K. MOHAMMED ABBAS, AGE: 31 YEARS, OCC: AGRICUTLURE. 9.
K. MOHAMMED WASIM BASHA S/O. LATE K. MOHAMMED ABBAS, AGE: 29 YEARS, OCC: AGRICULTURE,
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ABOVE RESPONDENTS ARE ALL R/O. DOOR NO.51(1), WARD NO.14, ROOPANAGUDI, NARAPPA STREET, MILLERPETH, BALLARI-583101. MEHBOOBSAB S/O. SHAIK SADRUDDINSAB SINCE DECEASED BY HIS LR’s.,
10. S. MOHAMMED JAFARSAB, S/O. LATE SHAIK SADRUDDIN SAB, AGE: 69 YEARS, OCC: LETHE MACHINE WORK, R/O: NEAR RAHAVENDRA TALKIES, BELLARI. 11. SHOUKAT S/O. ABDUL S. ABDUL RAZAQSAB AGE: 53 YEARS, OCC: BUSINESS, R/O: ANDHRAL VILLAGE, BALLARI-583101. 12. FAROOQ S/O. LATE S. ABDUL RAZAQSAB AGE: 49 YEARS, OCC: PUMP SET MECHANIC, R/O: ANDHRAL VILLAGE, BALLARI-583101. 13. SMT. KHATIJA BEGUM D/O. LATE K. MOHAMMED ZAKRIYA, W/O. T.L. SHAIKSHIVALI, AGE: 41 YEARS, OCC: HOUSEHOLD, R/O: DOOR NO.XI, MULLANGI, SANJEEVAPPA STREET, MILLERPETH, BALLARI-583101. 14. SMT. MAIMUMMISSA BEGUM D/O. LATE K. MOHAMMED ZAKRIYA, W/O. ANWAR, AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: DOOR NO.51/2, OLD WARD NO.XIV, RUPUNAGUDI NARAPPA STREET, MILLERPETH, BALLARI-583101. 15. SMT. ZAIBUN BEE D/O. LATE K. MOHAMMED ZAKRIYA W/O. SAYED ZAMEER CHOUDARY, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: DOOR NO.412/12, ASHOKA STREET, RAICHUR-584101. 16. SMT. REHAMUNISSA BEGUM D/O. LATE K. NIGANNED ZAKRIYA, W/O. IQBALSAB, AGE: 44 YEARS, OCC: HOUSEHOLD, R/O: DOOR NO.51/12,
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WARD NO.14, RUPUNAGUDI, MILLERPETH, BALLARI-583101. 17. SMT. GHOUSIA BEGUM D/O. LATE K. MOHAMMED ZAKRIYA, W/O. ARIF AHAMED, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O: DOOR NO.39, WARD NO.II, KHADRIYA MOSQUE STREET, BALLARI-583101. 18. D. ABDUL BASHEER S/O. D. ABDUL GAFOORSAB AGE: 39 YEARS, OCC: AGRICULTURE, R/O. MUNDARGI VILLAGE, BALLARI-583275. …RESPONDENTS (BY SRI. DINESH M.KULKARNI, ADVOCATE FOR R1 TO R9;
SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE FOR R10; SRI.
PRAVEEN P.TARIKAR, ADVOCATE FOR R13 TO R18;
VIDE ORDER DATED 07.04.2025 NOTICE TO R11 AND R12 ARE HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC 1908 PRAYING TO CALL FOR RECORDS IN O.S.NO.73/2010 ON THE FILE OF 1ST ADDL. SENIOR CIVIL JUDGE BALLARI AND TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED 1ST ADDL. SENIOR CIVIL JUDGE BALLARI IN O.S.NO.73/2010 DATED 08.10.2015 BY ALLOWING THE PRESENT APPEAL IN THE ENDS OF PROMOTING JUSTICE AND ETC. IN RFA NO.100305 OF 2017:
BETWEEN:
1. D. MUNNER AHMED S/O. D. ABDUL GAFOORSAB, SINCE DECEASED BY HIS LR’s.
1(A). SMT. D. AFROOZA BEGUM W/O. D.MUNEER AHAMED, AGE: 45 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. 1(B). D. SADAFF D/O. D. MUNEER AHAMED AGE: 21 YEARS, OCC: STUDENT, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. - 5 -
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1(C). D. SANIYA D/O. D. MUNEER AHAMED AGE: 19 YEARS, OCC: STUDENT, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. 1(D). D. SAMREEN D/O. D. MUNEER AHAMED AGE: 16 YEARS, OCC: STUDENT, R/O. 5TH WARD, BISMILLAH, BHAGICHA, BENGALURU ROAD, MUNDARGI CROSS, BALLARI-583102. (MINOR R/BY HER MOTHER I.E. APPLICANT NO.1(A)). …APPELLANTS (BY SRI. A.A.PATHAN, ADVOCATE)
AND:
K. MOHAMMED ABBAS S/O. LATE HAYATH SAB SINCE DECEASED BY HIS LR’s.
1. SMT. K. ZAIBUNNISA BEGUM W/O. LATE K. MOHAMMED ABBAS, AGE: 74 YEARS, OCC: AGRICULTURE. 2. K. MOHAMMED DADAHAYATH S/O. LATE K. MOHAMMED ABBAS, AGE: 55 YEARS, OCC: AGRICULTURE. 3. SMT. M. SALEEMA BEGUM D/O. LATE K. MOHAMMED ABBASS, W/O. HABEEB SAB, AGE: 51 YEARS, OCC: HOUSE WIFE. 4. K. MOHAMMED NAYEEM S/O. LATE K. MOHAMMED ABBAS, AGE: 48 YEARS, OCC: AGRICULTURE. 5. KUM. SHABEERA BEGUM D/O. K. MOHAMMED ABBAS, AGE: 37 YEARS, OCC: HOUSE WORK. 6. K. MOHAMMED KHALEEM S/O. LATE K. MOHAMMED ABBAS, AGE: 35 YEARS, OCC: AGRICULTURE. 7.
K. MOHAMMED ASLAM BASHA S/O. LATE K. MOHAMMED ABBAS, AGE: 33 YEARS, OCC: AGRICULTURE. - 6 -
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8. K. MOHAMMED ASIF BASHA S/O. LATE K. MOHAMMED ABBAS, AGE: 31 YEARS, OCC: AGRICUTLURE. 9. K. MOHAMMED WASIM BASHA S/O. LATE K. MOHAMMED ABBAS, AGE: 29 YEARS, OCC: AGRICULTURE,
ABOVE RESPONDENTS ARE ALL R/O. DOOR NO.51(1), WARD NO.14, ROOPANAGUDI, NARAPPA STREET, MILLERPETH, BALLARI-583101. MEHBOOBSAB S/O. SHAIK SADRUDDINSAB SINCE DECEASED BY HIS LR’s.,
10. S. MOHAMMED JAFARSAB, S/O. LATE SHAIK SADRUDDIN SAB, AGE: 69 YEARS, OCC: LETHE MACHINE WORK, R/O: NEAR RAHAVENDRA TALKIES, BELLARI. 11. THE DEPUTY COMMISSIONER BALLARI, DIST: BALLARI. 12. THE TAHSILDAR BALLARI, DIST: BALLARI. …RESPONDENTS (BY SRI. DINESH M.KULKARNI, ADVOCATE FOR R1 TO R9;
SRI. MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE FOR R10;
SRI. ASHOK T.KATTIMANI, AGA FOR R11 AND R12)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC 1908 PRAYING TO CALL FOR RECORDS IN O.S.NO.49/2008 ON THE FILE OF 1ST ADDL. SENIOR CIVIL JUDGE BALLARI AND TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED 1ST ADDL. SENIOR CIVIL JUDGE BALLARI IN O.S.NO.49/2008 DATED 08.10.2015 BY ALLOWING THE PRESENT APPEAL IN THE ENDS OF PROMOTING JUSTICE AND PASS THE
ORDER DECREEING THE SUIT OF THE PLAINTIFF IN O.S.NO.49/2008 ON THE FILE OF 1ST ADDL. SENIOR CIVIL JUDGE BALLARI AND ETC.
THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA
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ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
These two appeals are filed by the plaintiff in O.S.No.49/2008 and legal heirs of original defendant No.1 K.Mohammed Abbas. RFA No.100305/2017 is filed by the plaintiff questioning the judgment and decree rendered in O.S.No.49/2008. The connected RFA No.100306/2017 is filed by the plaintiff questioning the judgment and decree rendered in O.S.No.73/2010.
2. For the sake of convenience, the parties are referred to as per their rank in O.S.No.49/2008.
3.
Brief facts of the case are that, plaintiff- D.Muneer who is tracing title through one S.Mehboob Sab has filed the suit seeking the relief of declaration and injunction asserting title in the suit schedule property bearing Sy.No.15/2 to an extent of 4 acres 60 cents. The plaintiff is asserting that he is acquired title to an extent of 4 acres 60 cents vide registered sale deed dated
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17.01.2015 executed by his vendor namely, S.Mehboob Sab.
4. On receipt of summons, original defendant K.Mohammed Abbas not only contested the suit filed by the plaintiff in O.S.No.49/2008, but filed counter suit in O.S.No.73/2010 claiming half share by way of partition and separate possession. K.Mohammed Abbas claimed that he along with S.Mehboob Sab jointly purchased 7 acres 20 cents from one Mohammed Yusuf, and therefore, defendant contended that S.Mehboob Sab who had only half share out of 7 acres 20 cents could not have sold in excess of 3 acres 60 cents. Therefore, defendants contended that in view of hostile and adverse claim, sought partition by metes and bounds asserting that out of 7 acres 20 cents jointly purchased by S.Mehboob Sab and K.Mohammed Abbas, he is entitled for 3 acres 60 cents in Sy.No.15/2.
5. Though other two suits were also filed, which are related to 2 acres of land purchased by K.Mohammed
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Zakirya, The present two appeals are only in respect of 7 acres 20 cents, which was jointly purchased by the plaintiffs vendor S.Mehboob Sab and the original defendant K.Mohammed Abbas.
6. Plaintiffs and the original defendant K.Mohammed Abbas led oral and documentary evidence. The trial court taking cognizance of Ex.D2 partly decree the suit filed by the plaintiff (D.Muneer) thereby declared that he is owner to an extent of 3 acres 60 cents. The trial court also decreed the suit filed by the original defendant K.Mohammed Abbas thereby granted half share out of total extent of 7 acres 20 cents. The defendants suit for partition is decreed granting 3 acres 60 cents. The plaintiff in O.S.No.49/2008 has challenged the decree passed in O.S.No.49/2008 and also decree granted in partition suit in O.S.No.73/2010.
7. RFA No.100305/2017 is filed assailing the
judgment and decree rendered in O.S.No.49/2008, wherein the trial court has held that the plaintiff’s sale
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deed dated 17.01.2005 is valid only to the extent of half share of his vendor S.Mehboob Sab, i.e., 3 acres 60 cents as against 4 acres 60 cents reflected in the sale deed obtained by the plaintiff vide Ex.P1, which is dated
17.01.2005. The connected appeal in RFA No.100306/2017 is filed by the plaintiff assailing the decree granted in partition suit in O.S.No.73/2010 wherein the defendant K.Mohammed Abbas is awarded half share (3 acres 60 cents) in Sy.No.15/2. These two appeals are preferred by the plaintiff. 8. Heard the learned counsel for the plaintiff (D.Muneer) and learned counsel appearing for the legal heirs of the original defendant K.Mohammed Abbas. We have carefully examined the pleadings and the title documents, more particularly, Ex.D2 and the sale deed obtained by the plaintiff (D.Muneer) Ex.P1 from S.Mehboob Sab. We have given anxious consideration to the extent reflected in the joint sale deed obtained by the plaintiff’s vendor S.Mehboob Sab and the original
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defendant K.Mohammed Abbas. The following points out arise for our consideration: 1) Whether the trial court was justified in declaring the plaintiff as the absolute owner only to the extent of 3 acres 60 cents as against 4 acres 60 cents reflected in Ex.P1 and the sale deed dated 17.01.2005 executed by S.Mehboob Sab in favour of the plaintiff (D.Muneer)? (Affirmative) 2) Whether the preliminary decree passed in O.S.NO.73/2010 thereby granting half share to the original defendant K.Mohammed Abbas based on the joint sale deed obtained by S.Mehboob Sab and K.Mohammed Abbas vide Ex.D2 dated 22.08.1974 is perverse and warrants interference? (Negative) Finding on point Nos.1 and 2. 9. Before we delve into the rival claim of the plaintiff and the original defendant in Sy.No.15/2 totally measuring 7 acres 20 cents, we deem it fit to cull out
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chart of flow of title. It is not in dispute that one Abdul Rahim was the absolute owner of the suit schedule property originally bearing Sy.No.15 measuring 9 acres 20 cents.
After his demise, his son Mohammed Yusuf initially sold 2 acres to K.Mohammed Zakriya under registered sale deed dated 22.08.1974. On the same day, Mohammed Yusuf sold remaining 7 acres 20 cents jointly to S.Mehboob Sab and K.Mohammed Abbas (original defendant). Referring to these admitted set of facts, we deem it fit to cull out flow of title, which is as under: Abdul Rahim (original owner) owner of R.S.No.15 -9.20 cents
Mohammad Yusuf (son)
Sold 2 acres jointly sold 22.874 On 22.08.74 measuring 7.20 cents
K.Mohammad Zakariya S. Mehaboobsab K.Mohammad Abbas (original Defendant) sold 4.60 cents
D.Muneer Plaintiff S.Mehaboob ½ share works out to
3.60 cents
Excess extent sold based on Mutation. - 13 -
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10. Upon a detailed examination of the flow chart depicting the chain of title, it becomes evident that the same is fully consistent with the title documents produced before the trial court. The title chart clearly establishes that Mohammed Yusuf, who had inherited an extent of 9 acres and 20 cents from his father, Abdul Rahim, had sold the entire extent. Specifically, Mohammed Yusuf executed a registered sale deed dated 22.08.1974, whereby he alienated an extent of 2 acres in favour of K. Mohammed Zakriya. The remaining extent of 7 acres and 20 cents was jointly conveyed on the same date 22.08.1974 in favour of S. Mehboob Sab (vendor of the plaintiff) and K. Mohammed Abbas (the original defendant), through a registered sale deed marked as Ex.D2. Thus, Ex.D2 forms the basis of title for both S. Mehboob Sab and K. Mohammed Abbas in respect of the jointly acquired 7 acres and 20 cents. 11. Once Ex.D2 is accepted as a valid and binding title document, the next question that arises for
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consideration is whether S. Mehboob Sab, who thereby acquired only a half share in the 7 acres and 20 cents (equivalent to 3 acres and 60 cents), had the legal capacity to convey an extent of 4 acres and 60 cents to the present plaintiff, D. Muneer, under the registered sale deed dated 17.01.2005 (Ex.P1). The answer to this query is categorically in the negative. It is well settled that no person can convey a better title than what he himself possesses. In the present case, as per Ex.D2, the plaintiff’s vendor S. Mehboob Sab held only an undivided half share amounting to 3 acres and 60 cents in the jointly acquired property. Therefore, he had no lawful authority or title to alienate land beyond this extent. Consequently, the present plaintiff, having purchased 4 acres and 60 cents under Ex.P1, cannot claim or derive any title over and above the extent of 3 acres and 60 cents. Any excess conveyed under Ex.P1 is legally untenable and void to the extent of the excess. - 15 -
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12. In light of the above, the trial court, after a meticulous evaluation of the title documents, including Ex.D2, has rightly concluded that the plaintiff has successfully established his title only to the extent of 3 acres and 60 cents. The trial court has correctly held that the registered sale deed executed in favour of the plaintiff is valid only to the said extent and is void and unenforceable insofar as it purports to convey an area beyond 3 acres and 60 cents. Accordingly, the plaintiff’s title stands confined and restricted to 3 acres and 60 cents alone, and he cannot lay any claim to the remaining 1 acre conveyed under Ex.P1, which exceeds the vendor's lawful entitlement. 13. In the connected partition suit, the trial court, again referring to Ex.D2,the joint sale deed executed in favour of both S. Mehboob Sab and K. Mohammed Abbas, has rightly decreed the suit by granting a preliminary decree and allocating 3 acres and 60 cents to the share of the original defendant, K. Mohammed Abbas.
The trial
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court's findings are consistent with the legal principle that co-purchasers acquire equal and undivided shares in the absence of any express stipulation to the contrary. Hence, each party is entitled to half of the 7 acres and 20 cents, i.e., 3 acres and 60 cents. 14. The plaintiff’s reliance on the revenue records, particularly Ex.P35, which indicates that the name of S. Mehboob Sab was mutated to reflect an ownership extent of 4 acres and 60 cents, is legally unsustainable. Such mutation proceedings, which are administrative in nature, cannot override or contradict the registered title documents. The mutation entry under Ex.P35 is clearly at variance with the title deed Ex.D2 and does not reflect the true legal position. Furthermore, such a mutation entry is in contravention of Sections 128 and 129 of the Karnataka Land Revenue Act, which stipulate that revenue records must reflect lawful title and possession. It is a settled position of law that mutation entries do not confer title. Hence, merely because the name of S. Mehboob Sab was
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mutated in revenue records to an extent of 4 acres and 60 cents, he did not acquire legal ownership of that extent. As his lawful share was only 3 acres and 60 cents under Ex.D2, he had no right, title, or interest to convey any excess land under Ex.P1. Therefore, under Section 44 of the Transfer of Property Act, S. Mehboob Sab could not legally alienate 4 acres and 60 cents to the plaintiff, and such excess conveyance is void. Accordingly, we answer Point No.1 in the affirmative and Point No.2 in the negative. 15. For the forgoing reasons, we proceed to pass the following:
ORDER
Both the appeals are dismissed.
Sd/- (SACHIN SHANKAR MAGADUM) JUDGE
Sd/- (G BASAVARAJA) JUDGE MBS CT:VH List No.: 1 Sl No.: 25