- 1 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL RSA NO.100351 OF 2022 (PAR/POS) BETWEEN: 1. MEHARUNNISA W/O. KASIMSAB SHEKASANADI, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O: NEAR RAILWAY STATION, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD – 582 201. SAIYADKHAN S/O. HASANSAB HASIAMANAVAR, SINCE DEAD BY HIS L.Rs. 2. SMT. MEHABOOBI W/O. SAIYADKHAN HASIAMANAVAR, AGE: 74 YEARS, OCC: HOUSEHOLD, R/O: LODI GALLI, NARGUND, TQ: NARGUND, DIST: GADAG – 582 207. 3. SMT. FATIMA W/O. MAKTUMKHAN HASIAMANAVAR, AGE: 44 YEARS, OCC: HOUSEHOLD, R/O: MARUTI NAGAR, NARGUND, TQ: NARGUND, DIST: GADAG – 582 207. 4. KUMAR AMANAKHAN S/O. MAKTUMKHAN HASIAMANAVAR, AGE: 11 YEARS, OCC: STUDENT, REPRESENTED BY NATURAL GUARDIAN MOTHER RESPONDENT NO.3, R/O: MARUTINAGAR, NARGUND, TQ: NARGUND, DIST: GADAG – 582 207. 5. KUMAR ISAKHAN S/O. MAKTUMKHAN HASIAMANAVAR, AGE: 9 YEARS, OCC: STUDENT, REPRESENTEDF BY NATURAL GUARDIAN MOTHER RESPONDENT NO.3 R/O: MARUTINAGAR, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 NARGUND, TQ: NARGUND, DIST: GADAG – 582 207. 6. KUMAR FAIROJIKHAN S/O. MAKTUMAKHAN HASIAMANAVAR, AGE: 8 YEARS, OCC: STUDENT, R/BY NATURAL GUARDIAN MOTHER RESPONDENT NO.3, R/O: MARUTINAGAR, NARGUND, TQ: NARGUND, DIST: GADAG – 582 207. 7. NASIRKHAN S/O. SAYEDKHAN HASIAMANAVAR, AGE: 47 YEARS, OCC: COOLIE, R/O: MARUTINAGAR, NARGUND, TQ: NARGUND, DIST: GADAG 582 207. 8. GUDUKHAN S/O. SAIYADKHAN HASIAMANAVAR, AGE: 44 YEARS, OCC: PRIVATE WORK, R/O: LODI GALLI, NARGUND, TQ: NARGUND, DIST: GADAG – 582 207. …APPELLANTS (BY SRI. V. G. BHAT, ADVOCATE) AND: 1. ALLASAB @ ALLABAKSHA S/O. PAPASAHEB HANASI, AGE: 57 YEARS, OCC: BUSINESS, R/O: NEAR RAILWAYS STATION, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD – 582 201. 2. ISMAIL S/O. DASTAGIRISAB HANASI, AGE: 39 YEARS, OCC: COOLIE, R/O: S.S. PATIL ROAD, NEAR WATER TANK, DOOR NO.7/616, GUTTY RAILWAY STATION, 515402, TQ: DIST: ANANTPUR, STATE: ANDRA PRADESH. 3. SHAHID S/O. DASTAGIRISAB HANASI, AGE: 34 YEARS, OCC: COOLIE, R/O: S.S. PATIL ROAD, NEAR WATER TANK, DOOR NO.7/616, GUTTY RAILWAY STATION, 515402, TQ & DIST. ANANTPUR, STATE: ANDRA PRADESH. - 3 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 4. SMT. FATIMA W/O. RAJAKSAB @ RAJABENASAB HANASI, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: RAILWAY STATION, ANNIGERI, TQ: ANNIGERI, DIST: DHARWAD – 582 201. 5. HASINABANU D/O. RAJAKSAB @ RAJABENASAB HANASI, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O: RAILWAY STATION, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD – 582 201. 6. RIYAZAHMED S/O. RAJAKSAB @ RAJABENASAB HANASI, AGE: 40 YEARS, OCC: COOLIE, R/O: NEAR RAILWAY STATION, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD – 582 201. 7. HATELSAB S/O. PAPASAHEB HANASI, AGE: 62 YEARS, OCC: COOLIE, R/O: NEAR RAILWAY STATION, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD – 582 201. 8. SMT. MAMATAZ D/O. PAPASAHEB HANASI, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O: NEAR RAILWAY STATION, ANNIGERI, TQ: NAVALGUND, DIST: DHARWAD – 582 201.. …RESPONDENTS (BY SRI. CHETAN T. LIMBIKAI, ADVOCATE FOR R1 TO R8) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC NAVALAGUND NO.21/2019 DATED 28.01.2021 AND BE PLEASED TO DISMISS THE SUIT BEARING O.S.NO.27/2015 BY CONFIRMING THE DECREE PASSED ON 23.02.2019 BY THE COURT OF CIVIL JUDGE AND JMFC NAVALGUND IN THE ENDS OF JUSTICE. THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This Regular Second Appeal is by the defendant No.8 and defendant No.9 since deceased represented by his legal representatives aggrieved by the judgement and order dated 28.01.2021, passed in R.A.No.21/2019 on the file of Senior Civil Judge and JMFC, Navalagund (First Appellate Court), by which the First Appellate Court while allowing the appeal filed by the plaintiff/respondent set aside the judgement and decree dated 23.02.2019, passed by the Civil Judge & JMFC, Navalagund (Trial Court) in O.S.No.27/2015. 2. The above suit in O.S.No.27/2015 is filed by the plaintiff for relief of partition and separate possession of his 1/5th share in the suit schedule property. The subject matter of the present suit is plot No.16 measuring 4 guntas 05.50 annas of R.S.No.1342 A situated at Annigeri village, Navalaugnd district bounded east by: 30 feet road, west by: - 5 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 10 feet Bhangi road, north by: plot No.15, south by: plot No.17. 3. The case of the plaintiff is that the suit property was purchased by one Papasehab S/o. Hatelsab Hanasi in terms of a deed of sale dated 1.6.1963 from its erstwhile owners Kallayanayya Channayya Kambimath and Sri. Jayadevswami Kallayanayya Kambimath for valuable consideration Rs.1000/-. Papasehab passed away on 09/12/1975 leaving behind his wife Vajeerabi and 4 sons and a daughter, namely, Dastagirsab, Razaksab @ Rajabensab, Hatesab (defendant No.6), Allasab (plaintiff), and Mamtaz (defendant No.7). The first son Dastagirsab passed away on 19/04/2013 and his wife Munavar passed away on 09/03/2015 leaving behind their children Isamil (defendant No.1), Shahid (defendant No.2). The second son Razaksab also passed away leaving behind his wife Fatima (defendant No.3) and their children Hasinabanu (defendant No.4) and Riyazahmed (defendant No.5). Thus, After the demise of Papasehab and his wife Vajeerabai, plaintiff and - 6 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 the defendants being their legal representatives became entitled for specific shares in the suit property in terms of personal law under which the parties are being governed. 4. It is contended that defendant No.8 created a false varadi purported to have been given by the mother of the plaintiff, namely Vajeerabi, and used it to have her name entered into in the revenue records concerning half of the suit schedule property under Dairy No.1086/A. Subsequently, defendant No.8 said to have relinquished her rights in favour of defendant No.9 by executing a Tondi Baksisa Patra and mutation entry to this effect was certified under M.R. No.3872/A. 5. It is alleged that the mutation entries under Dairy No.1086/A and M.R. No.3872/A are illegal, having been obtained by fraud and misrepresentation, and are thus not binding on the plaintiff and defendant Nos.1 to 7. The plaintiff and defendant Nos.1 to 7 have been in possession of the suit property since the date of purchase. They have not executed any deed or document relinquishing their - 7 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 rights in favour of defendant No.8 and defendant No.9. Therefore, defendant Nos.8 and 9 have no right, title or interest in the suit property. 6. It is further averred that the plaintiff and defendant Nos.1 to 7 are not in position to jointly enjoy the suit property, as such the plaintiff requested defendant Nos.1 to 7 for partition of the suit property; and upon their refusal, the plaintiff filed the suit for partition and consequential relief. 7. Defendant No.6 appeared through his counsel, filed the written statement admitting the plaint averments, and concurred with the same. He also sought for allotment of his legitimate share in the suit property. 8. Defendant No.8 filed his written statement denying the plaint averments. It is contended that the father of the plaintiff and defendant Nos.1 to 7, and the father of defendant Nos.8 and 9, namely Hassan Khan being relatives and working in Railways, had jointly purchased the suit property under a deed of sale on - 8 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 01.06.1963, each contributing Rs.500/- towards the sale consideration. 9. Since Papasehab was the elder in the family, the property was registered in his name. However, there was an understanding between Hassan Khan and Papasehab that the property would be divided between them later. Though the sale deed was solely in the name of Papasehab, even the father of defendant No.8 and defendant No.9 was also in Joint possession of the suit property. 10. Both Papasehab and Hassan Khan passed away without dividing the suit property amongst themselves. Vajeerabi, who was aware of this understanding, submitted a varadhi on 10.08.1988 to the Village Accountant, stating that half of the property belonged to defendant Nos.8 and 9. Based on the same, the Village Accountant made entries in Dairy No.1086/A entering the name of defendant No.8 in the revenue records. 11. Defendant No.9 has since taken possession of her half share in the suit property and has been paying - 9 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 taxes to the authorities. As such, she has become the owner of half of the suit property. The plaintiff or defendant Nos.1 to 7 have no share, right, title or interest in the said half share belonging to defendant No.9. 12. On 06.12.1996, defendant No.8 relinquished 1/4th share in favour of defendant No.9 in terms of Tondi Baksisa Patra. Based on which, mutation entries were duly effected in favour of defendant No.9 in the revenue records. 13. That the suit is barred by limitation, as the name of defendant No.8 has been appearing in the revenue records for over 27 years, and name of defendant No.9 has been appearing in the revenue records for over 19 years. Therefore, the defendants have sought dismissal of the suit. 14. Based on the pleadings, the trial Court framed the following issues for its consideration: “1. Whether the plaintiff proves that the suit schedule property was purchased by Sri. Papasaheb S/o. Hatelsab hanasi on 01.06.1963? - 10 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 2. Whether the defendant No.8 proves that the suit schedule property was purchased jointly by one Papasaheb and the father of defendant Nos.8 and 9 Sri. Hasankhan? 3. Whether the defendant No.8 further proves that the 1/4th portion of the suit schedule property to which had gifted the property on 06.12.1996 by way of a gift deed? 4. Whether the plaintiff is entitled to the relief as claimed? 5. What Order or Decree?” 15. The plaintiff examined himself as PW1 and produced 19 documents, which were marked as Exs.P1 to P19. He also examined three witnesses as PW2 to PW4. Defendant No.6 examined himself as DW1, defendant No.8 examined herself as DW2, and exhibited 12 documents, marked as Exs.D1 to D12. Defendant No.9(a) examined himself as DW3 and also examined two more witnesses as DW4 and DW5. 16. The trial Court upon appreciation of the evidence, answered issue Nos.1 and 3 in the affirmative, - 11 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 and issue Nos.2 and 4 in the negative, and consequently dismissed the suit. 17. Being aggrieved by the judgment and decree of the trial Court, the plaintiff preferred an appeal in R.A. No.21/2019 before the First Appellate Court. 18. Considering the grounds urged in the appeal, the First Appellate Court framed the following points for its consideration: “1) Whether the appellant/plaintiff establishes that, the learned trial court wrongly held that the name of defendant No.8 entered in the revenue records on the basis of Wardi creates title? 2) Whether the appellant/plaintiff establishes that, the learned trial court has wrongly came to the conclusion that gift made by defendant No.8 in favour of defendant No.9 is in accordance with law? 3) Whether the appellant/plaintiff establishes that, the learned trial court wrongly held that ME No.1086A and 3872A are certified long back therefore, declaration of nullify is not sustainable in accordance law in not correct? 4) Whether the appellant/plaintiff establishes that, the trial court has not properly - 12 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 appreciated the oral and documentary evidence on record ? 5) Whether the appellant/plaintiff establishes that, interference is needed in the judgment and decree passed by learned Civil Judge and JMFC court, Navalgund? 6) What Order or Decree 19. On re-appreciation of the matter, the First Appellate Court answered point Nos.1 to 3 and 5 in the affirmative and point No.4 partly in the affirmative, and consequently decreed the suit, as noted hereinabove. 20. Being aggrieved by the judgment and decree of the First Appellate Court, defendant No.8 and defendant No.9, represented through his legal representatives, are before this Court in this Regular Second Appeal. 21. This Court, by order dated 01.10.2024, admitted the appeal to consider the following substantial question of law, which reads as under: “i. Whether, under the facts and circumstances involved in the case, the first appellate Court is correct in holding that CTS No.1086A and D and CTS no.3872A mutated in the year 1988 - 13 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 and 1989 respectively by the revenue authorities as null and void in a suit filed after lapse of 26 years? ii. Whether, under the facts and circumstances involved in the case, the suit of the plaintiff for declaration is maintainable without seeking the relief of possession from the defendant Nos.8 and 9 who are not the members of the family of the plaintiff and defendant Nos.1 to 7? iii. Whether, under the facts and circumstances involved in the case, the suit filed is barred by limitation? 22. Shri V.G. Bhat, learned counsel appearing for the appellants/ defendant Nos.8 and 9, at the outset submits that the plaintiff, while seeking a declaration to set aside the revenue entries found at Dairy No.1086/A and M.R. No.3872/A as per Exs.P3 and P4, has failed to plead the date on which he learnt about these mutation entries. He points out that the entries were made in the years 1988 and 1989 respectively, and since the suit was filed more than 25 years later, it is clearly barred by limitation. 23. Learned counsel further submits that though the plaintiffs have alleged that defendants Nos.8 and 9 as strangers to their family, they have nonetheless sought - 14 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 relief of partition and separate possession, which is inconsistent with the pleadings. He submits that a device of filing a partition suit cannot be made use to circumvent the requirement of filing a substantive suit for declaration and possession. He submits that the suit as filed, is a clever ruse adopted by the plaintiffs to overcome the rigors of provisions of law. 24. He further submits that in the absence of a prayer for declaration and possession, the suit as filed against defendant Nos.8 and 9 is not maintainable, which aspect of the matter has not been appreciated by the First Appellate Court. 25. Referring to Exs.D10 to D12, learned counsel submits that the photographs prima facie establish the possession of the suit property being with the appellants/defendants No.8 and 9. He further submits that following the mutation entries made in Dairy No.1086/A and M.R. No.3872/A, the appellants/defendants Nos.8 and 9 have been paying the property tax and electricity - 15 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 consumption charges to the concerned authorities, and in this regard they have produced Documents at Exs.D1 to D3. 26. That to prove their possession, the appellants have also produced the revenue records in the nature of notices, produced at Exs.D4 and D5, and RTC extracts at Exs.D6, D8 and D9. Based on the evidence, learned counsel submits that defendant Nos.8 and 9 have not only established their title, but also their possession over half of suit property. 27. Therefore, learned counsel submits that the First Appellate Court committed a serious error and illegality in decreeing the suit as sought for. He accordingly prays that the substantial questions of law be answered in the negative and the suit be dismissed. 28. Per contra, Shri Chetan T.Limbikai, learned counsel appearing for the respondent/plaintiff taking this Court through the reasoning assigned by the trial Court, while answering issue Nos.1 and 2 and issue Nos. 3, submits that the trial Court had categorically held that the - 16 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 suit property was exclusively purchased by Papasehab, in terms of the deed of sale dated 01.06.1963, as per Ex.P7. Further, the trial Court had negated the case of defendant Nos.8 and 9, wherein it was alleged that the deceased Hassan Sahib contributed Rs.500 towards the purchase of the property. Despite this, the trial Court erroneously proceeded to hold that defendant Nos.8 and 9 had a right, title or interest to an extent of half of the suit property, in the absence of any deed of conveyance in their favour, either from Papasehab or his legal representatives, in the manner known to law. 29. As regards the contention of possession urged by the appellants/defendant Nos.8 and 9, learned counsel submits that even in their written statement, defendant Nos.8 and 9 have claimed to be in joint possession of the alleged half share in the suit property. Therefore, their own pleadings negate the assertion that the plaintiff was out of possession, and as such the plaintiff was not required to seek a relief of declaration. - 17 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 30. He submits that though defendant Nos.8 and 9 are claiming half of the suit property, perusal of Ex.P16 under which Vajeerabi allegedly gave the varadhi of she conveying half of the property, the said document does not bear any signature of Vajeerabi, and the said document also does not give the description of half of the suit property allegedly given by her in favour of defendant No.8. He further submits that Vajeerabi being the wife of Papasehab, could not have given half of the suit property, inasmuch as she herself would have been entitled for only 1/8th share in the suit property, in terms of the personal law governing the parties. As such, even if such varadhi is to be accepted, the same would be without any legal sanctity. 31. He further submitted that the claim of defendant No.9, of he having acquired a further half share from defendant No.,8 is also baseless, as defendant No.8 herself did not get the share, right, title or interest in the property, there is no question of she further transferring the property in favour of defendant No.9. - 18 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 32. He submits that the documents sought to be relied upon by the learned counsel for the appellant / defendant Nos.8 and 9 on the revenue entries, the electricity bills, and tax paid receipts are of no consequences inasmuch as the same do not pertain to the suit property. He submits that the photographs do not depict the clear picture, as the property shown in the photographs is unidentifiable by its number or measurement or boundaries. 33. Thus, learned counsel submits that while the trial Court rightly found that the property in question was exclusively purchased by Papasehab, it erred in passing the judgment in favour of defendant Nos.8 and 9 and dismissing the suit without any basis which illegality had been set at right by the First Appellate Court, which cannot be found fault with. 34. He submits that the question of limitation would not arise in this case inasmuch as the claim being made by the defendant Nos.8 and 9 is merely on the basis of - 19 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 revenue entries, the presumption of which is rebuttable, which has been successfully rebutted in the instant case by production of valid and legally acceptable evidence in the nature of deed of sale dated 16.09.1963, which the trial Court also has accepted, as such, the presumption stands rebutted, no question of limitation would arise in that matter. 35. He further submits that the suit being one for partition and possession, the possession is in the light of the share to be allotted in favour of the plaintiff and not because they have been ousted from the possession. Hence he submits that the suit is very much maintainable, and the appeal is liable to be dismissed. 36. Heard perused the records. 37. The fact that the plaintiff and the defendant Nos.1 to 7 are the legal heirs of Papasehab is not in dispute. Since both the trial Court and the First Appellate Court have concurrently held that the suit property was purchased by Papasehab under the deed of sale dated - 20 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 16.09.1963 as per Ex.P7, this finding has attained finality and requires no further discussion. 38. Under normal circumstances, upon the demise of Papasehab, his legal representative namely the plaintiff and defendant Nos.1 to 7 would have been entitled their respective defined and specific shares in the suit property, in accordance with the personal law, to which they are subjected to. 39. The dispute in the present case arises primarily due to the claim made by defendant Nos.8 and 9, asserting that Vajeerabi, the wife of Papasehab had submitted a report / varadhi as per Ex.P.16, purportedly conveying half of the suit property in favour of defendant No.8. 40. At this juncture, it is appropriate to extract the contents of Ex.P16, which is the alleged varadhi purportedly given by Vajeerabi: “£Á£ÀÄ §gÉPÉÆqÀĪÀ ªÀgÀ¢ K£ÉAzÀgÉ- CtÂÚUÉÃj UÁæªÀÄzÀ j.¸À.£ÀA.1342A/1+2 £ÉzÀÝgÀ°èAiÀÄ ©£À±ÉÃwÌ j.¸À£ÀA.16 £ÉzÀÄÝ ¤£ÀߪÀ £À£Àß JgÀqÀÄ ªÀÄPÀ̼À ¸ÀªÉÆûPÀzÀ°èzÉ ¸ÀzÀgÀ - 21 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 ¥Áèl£À°è 1/2 »¸Éì £À£Àß CtÚ£À ªÀÄUÀ¼ÁzÀ ªÉĺÀgÀĤ߸Á PÉÆÃA PÁ²ÃªÀĸÁ§ ±ÉÃPÀ¸À£À¢ AiÀĪÀgÀzÀÄ EgÀÄvÀÛzÉ CªÀgÉà ªÀ»ªÁl G¥À¨sÉÆÃUÀ ªÀiÁqÀÄvÁÛ EgÀÄvÁÛgÉ PÁgÀt ¸ÀzÀgÀ ¥Áèl£À°è 1/2 »¸ÉìPÉÌ ªÀĺÀgÀĤ߸Á PÉÆÃA PÁ²ÃªÀĸÁ§ ±ÉÃPÀ¸À£À¢ CAvÁ zÁR®ªÀiÁqÀ¨ÉÃPÀÄ CAvÁ §gÉ¢PÉÆlÖ ªÀgÀ¢ ¢. 01.10.88 PÀ§Æ®ªÀgÀ¢ £À£Àß vÁ¬ÄAiÀÄ ªÀgÀ¢ PÀ§Ó ¥ÀæPÁgÀ ¥Áèl £ÀA.16 £ÉzÀÝgÀ°è 1/2 »¸ÉìUÉ ªÀĺÀgÀĤ߸Á PÉÆà PÁ²ÃªÀĸÁ§ ±ÉÃPÀ¸À£À¢AiÀĪÀgÀ ºÉ¸ÀgÀ£ÀÄß zÁR® ªÀiÁqÀ°PÉÌ £ÀªÀÄä £Á®ÄÌ d£À CtÚ vÀªÀÄäA¢ÃgÀ PÀ§Æ® EgÀÄvÀÛzÉ ¢. 01.10.88” 41. Perusal of the above document at Ex.P16 would indicate that, the same does not contain any specific description, dimensions or boundaries of the portion of the suit property, which is purported to have been conveyed. Further, as rightly pointed out by the learned counsel for the respondent, the said document does not bear the signature of Vajeerabi, the person alleged to have executed the same. 42. Be that as it is. It is well settled principle of law that no right, title or interest in an immovable property, the value of which more than Rs.100/- can be created by - 22 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 merely submitting the varadhi or by the effect of revenue entries. 43. At this juncture, it is appropriate to refer the judgment of the Division Bench of this Court in the case of MADIVALAPPA S/O. KARIYAPPA MUGABASAVA, SINCE DECEASED BY HIS L.RS. Vs. MOHAMMAD JAFAR S/O. HUSSAINSAB KALLIMANI1, wherein at paragraph 22 the Division Bench of this Court has observed as follows: “22. Before discussing factual aspects, one legal aspect has to be clarified. Not only in this case, but in many other cases, it has been observed by us that a mere report or varadi was treated as relinquishment of right for entering the name of a person in whose favour relinquishment was made. This kind of practice is more prevalent in northern Karnataka. In many a judgment, this Court has made the legal aspect very clear that a mere varadi cannot be considered as a document evidencing relinquishment or release of right, title and interest by one person in favour of another. Any release in respect of a immovable property worth more than Rs.100/- must be made through registered instrument only. Or if oral partition is pleaded for effecting change in revenue records, there must be proof for oral partition and it having been acted upon. In the absence of registered instruments, relinquishment or release deed cannot 1 RFA No.100029/2015 C/w. RFA No.100028/2015, DD: 12.11.2024 - 23 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 be accepted by the revenue officers for effecting mutation in the revenue records.” 44. There cannot be any dispute with regard to the aforesaid position of law. That apart, there cannot also be any alternate for creating the right, title or interest in respect of the immovable property other than what is contemplated in Section 17 of the Registration Act. Equally pertinent to note that Vajeerabi, being the wife of Papasehab and mother / grandmother of the plaintiff and defendant Nos.1 to 7, was entitled to a specific share in the property left behind by Papasehab, namely 1/8th share and therefore, she could not have even conveyed anything more than what she was lawfully entitled to. 45. Considering these facts and legal aspects of the matter, the claim made by defendant No.8 that she acquired right, title or interest in half share of the suit property in terms of Exs.P16 and P3 cannot be accepted. 46. In the light of this conclusion, the further claim made by defendant No.9 that defendant No.8 relinquishing / executing a gift in his favour by conveying half of her - 24 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 entitlement (i.e., 1/4th share of the suit property) also cannot be accepted inasmuch as defendant No.8 had no valid right title and interest to convey in favour of defendant No.9. 47. Section 133 of the Land Revenue Act, reads as under: “133. Presumption regarding entries in the records.—An entry in the Record of Rights and a certified entry in the Register of Mutations [or in the patta book] shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore.” 48. The presumption attached to the revenue entries would subsist until rebutted. In the considered view of this Court, such presumption has been effectively rebutted by the plaintiff, as narrated hereinabove. 49. While the trial Court accepted the case of the plaintiff that Papasehab was the exclusive owner of the suit property having purchased in terms of the Deed of Sale dated 01.06.1963, it erred in not examining the legality or otherwise of the claims made by defendant Nos.8 and 9, - 25 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 which are only based on the Varadhi, marked as Exs.P3 and P4. 50. The other ground of the plaintiff not seeking the relief of possession being urged vehemently by the learned counsel for the appellants, also would not sustain. A careful perusal of the contents of paragraph No.8 onwards in the written statement filed by the defendants Nos.8 and 9 would indicate that they claim to be in joint possession of the suit property along with the plaintiffs. Thus asserting the joint possession in the capacity of the co-owners in the suit property. 51. Learned counsel for the respondent / plaintiff also points out to the deposition of DW.1 recorded on 14.09.2018 wherein she has admitted as under: “£Á£ÀÄ SÁAiÀÄA vÀjSÁ UÀzÀUÀ£À°è ªÁ¸Á EgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj.” 52. Necessary also to note that the extent of property as shown in the schedule to the plaint is 4 Guntas 5 Annas, which roughly measures about 4,400 square feet. - 26 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 The photographs at Ex.D.10 to Ex.D.12 do not give the actual picture of the purported house constructed and existing on the suit property. Based on the said photographs, one cannot come to the conclusion as to which portion is in exact possession of defendants No.8 and 9. 53. Ex.D.4 refers to certain property bearing No.1342/1+2B/16A, while Ex.D.5 refers to property bearing No.1342/1+2/16A measuring 5 guntas (6260 square feet). Ex.D.4 is issued in the name of Smt.Merunnisa, while Ex.D.5 is issued in the name of Hasankhan. The aforesaid documents Ex.D.4 and Ex.D.5 read in the light of the facts narrated above would indicate Merunnisa to be the owner of property bearing No.1342/1+2B/16A, while Hasankhan Sahib father of defendant No.8 is shown to be the owner of property bearing No.1342/1+2/16A measuring 5 guntas. The said documents indeed run contrary to the very case of the defendants, as there was no possibility of Hasankhan Sahib’s name being entered in the revenue records nor was - 27 - HC-KAR NC: 2025:KHC-D:8769 RSA No. 100351 of 2022 there any possibility of Merunnisa name being entered in entire extent of the suit property. Said documents are no avail to the case of defendant Nos.8 and 9. 54. In view of the aforesaid discussions and analysis, the substantial questions of law are answered accordingly. In that, the First Appellate Court has committed no error in decreeing the suit as sought for by setting aside the judgment and decree passed by the Trial Court. 55. Consequently, the following: ORDER (i) Appeal is dismissed. (ii) Judgment and decree dated 28.01.2021, passed in R.A.No.21/2019 on the file of Senior Civil Judge and JMFC, Navalagund is hereby confirmed. Sd/- (M.G.S. KAMAL) JUDGE VB / VNP / SH / CT-ASC List No.: 1 Sl No.: 3