- 1 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1194 OF 2013 (PAR) BETWEEN: 1. M K IBRAHIM, AGED ABOUT 41 YEARS, S/O M.K. ABDUL RASHID, R/O MOODI VILLAGE, TALUK SORABA,DISTRICT, SHIMOGA - 577429. 2. M.K. ABDUL MUNAF, AGED ABOUT 38 YEARS, S/O M.K. ABDUL RASHID, R/O MOODI VILLAGE,TALUK SORABA, DISTRICT SHIMOGA - 577429. 3. HASHMATBI, AGED ABOUT 67 YEARS, W/O M.K. ABDUL RASHID, R/O MOODI VILLAGE, TALUK SORABA, DISTRICT SHIMOGA - 577429. …APPELLANTS (BY SRI BASAVARAJ R BANNUR, ADVOCATE) AND: 1. M K ABDUL AJEEZ, AGED ABOUT 61 YEARS, S/O LATE M.K. ABDUL RAZAQ SAB R/O AVINALLI, AVINALLI POST, TALUK SAGAR-577429. 2. M.K MOULALI, AGED ABOUT 70 YEARS, S/O LATE M.K ABDUL RAZAQ SAB, R/O MOODI VILLAGE, Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 TALUK SORABA, DISTRICT SHIMOGA - 577429. 3. JAYRABI, AGED ABOUT 66 YEARS, W/O NAJEER SAHEB BASUR, R/O ANJUMAN ROAD, TILUVALLI VILLAGE, TALUK, HANGAL - 577429. 4. HAJRAMBI, AGED ABOUT 58 YEARS, W/O JAFA SAHEB HATTAR, R/O BILIKI VILLAGE, TLAUK SHIKARIPURA, DISTRICT SHIMOGA - 577429. 5. YASHAMBI, AGED ABOUT 60 YEARS, W/O LATE MAJEED SAHEB, R/O ANAVATTI VILLAGE, NEAR DURGAMBA TEMPLE TALUK SORABA, DISTRICT SHIMOGA - 577429. 6. HEENA, AGED ABOUT 16 YEARS, D/O SHABBIR, MINOR GUARDIAN SHABBIR, R/O DOLESHWARA VILLAGE, TALUK HANGAL - 577429. 7. SHARUKH, AGED ABOUT 14 YEARS, S/O SHABBIR, MINOR GUARDIAN SHABBIR, R/O DOLESHWARA VILLAGE, TALUK HANGAL - 577429. 8. FARUKH, AGED ABOUT 14 YEARS, MINOR GUARDIAN SHABBIR, R/O DOLESHWARA VILLAGE, TALUK HANGAL - 577429. …RESPONDENTS - 3 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 (BY SRI MAHESH R UPPIN, ADVOCATE FOR R1 TO R5, R6 TO R8 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 27.4.13 PASSED IN R.A.NO.180/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 24.5.2010 PASSED IN OS.NO.301/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SORAB. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This second appeal is arising from the concurrent finding in a suit for partition. The suit filed by the plaintiffs is decreed and First Appeal is dismissed. Hence, second appeal by the defendants. 2. Second appeal is admitted on 24.09.2013 to consider the following substantial questions of law:- "1) Whether the judgment of the Trial Court is sustainable as it appears the Trial Court has applied the proposition of Hindu undivided joint family in terms of Mithakshara law to the appellant and the respondents who are Muslims and are not covered under it? - 4 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 2) Whether the judgments of the courts below are sustainable in holding that one M.K. Abdul Rashid was kartha of the family and his possession in respect of the properties?" 3. Learned counsel appearing for the defendants/appellants raised the following contentions referring to the pleadings:- (a) The suit is filed by some of the children of Abdul Razak from his first wife, second wife, and also by second wife. Abdul Razak had two wives by name Feeranbi and Hazratbi. The grand children of M.K. Abdul Razak (from M.K. Abdul Rashid, the son from his first wife) are the defendants. The suit is filed against the wife and two children of Abdul Rashid and also grand children of Abdul Rashid. (b) The plaintiffs claim that Abdul Razak was the propositus and on 15.05.1975, there was a registered partition in the family of Abdul Razak and his brother and in the said partition, Survey No.114 i.e. Item No.2 - 5 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 property was allotted to share of Abdul Razak and that was a tenanted land and Abdul Razak filed form No.7 claiming occupancy in respect of 1 acre 30 guntas in Survey No.114 and he also filed form No.7 in respect of Survey No.26/2 measuring 2 acres i.e. item No.1 property on the premise that he is the tenant in respect of the said property in his individual capacity and the Tribunal allowed form No.7 and granted occupancy right vide order dated 29.09.1981. In respect of 26/2 measuring 2 acres as well as survey No.114 is concerned, the occupancy right is granted in the proceeding No.TNCVK 46/74-75. The plaint averment would also indicate that the order of 1974-75 is not available in the file of the Land Tribunal. (c) It is also stated that in proceeding No.TNCVR 111/74-75, 1 acre 35 guntas in survey No.26/2 is allotted to Abdul Rashid son of Abdul Razak. The plaintiffs claimed that survey No.114 was ancestral tenanted land and the Tribunal on 19.11.1981 granted occupancy in favour of Abdul Rashid as the head of the family representing the - 6 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 branch of the plaintiffs’ family. In this background, the plaintiffs claimed 1/2 share in the Items No.1 and 2 properties. (d) It is also stated that in the previous suit in O.S. No.85/1997, the defendants in the said suit who are also the defendants in the present suit have admitted that survey No.26/2 was possessed by Abdul Razak as a tenant. (e) It is also stated that on 22.10.1982, there was a partition between the branch of the plaintiffs and defendants and the records were not changed pursuant to the said partition and the plaintiffs filed a suit in O.S. No.85/1997 seeking declaration of title based on the partition dated 22.10.1982. The said suit is dismissed holding that there is no such partition. And the present suit is filed seeking partition of 1/2 share in the properties on the premise that dismissal of earlier suit does not come in the way of seeking merely for partition as the plea of - 7 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 previous partition is held to be not proved in the earlier suit. 4. Defendants No.1 to 3 contested the suit, disputed the claim of the plaintiffs. However, admitted the genealogy. Defendants No.4 to 6 supported the case of the plaintiffs. 5. The Trial Court on appreciation of evidence has concluded that the plaintiffs are entitled to half share on the premise that the suit properties are granted to Abdul Rashid as a family member. 6. First Appellate Court concurrent with the finding of the Trial Court, dismissed the appeal. Hence, second appeal by the defendants. 7. Learned counsel appearing for the defendants/appellants would also contend that the concept of joint family is not there among the Mohammedans. Occupancy rights granted in favour of Abdul Rashid in the - 8 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 year 1981 is not questioned by the plaintiffs and said order has attained finality and the grant should be construed as an individual grant in the name of Abdul Rashid and without there being any evidence, the Courts below could not have held that the properties granted for and on behalf of joint family properties of plaintiffs and defendants. He would submit that the concept of joint family is alien to the Mohammadans and the order granting occupancy right having not been questioned and has attained finality, it is not open for the Courts below to say that the grant is in favour of the joint family members. 8. It is also urged that the plaintiffs did not produce any order granting occupancy right in favour of Abdul Razak and though only produced the copy of the application seeking occupancy rights and in the absence of any such order, they are not entitled to any relief in respect of the properties. 9. It is further submission that the plaintiffs have raised a contention that form No.7 was filed by Abdul - 9 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 Rashid on behalf of Abdul Razak on the premise that Abdul Razak was not keeping well and this aspect is not established by adducing any evidence. On the other hand, copy of form No.7 was application filed by Abdul Razak and no order is produced to show that occupancy is granted pursuant to that application as such, the burden cast on the plaintiffs is not discharged and the Trial Court could not have granted the relief of partition and First Appellate Court could not have agreed with the said order. 10. Learned counsel for the appellants would also contend that earlier suit filed by the plaintiffs seeking declaration of title over the same property is rejected and once the Court has come to conclusion that the plaintiffs have no right over the property could not have granted the relief of partition in respect of same properties which are subject matter of earlier suit. 11. Learned counsel appearing for the respondents/plaintiffs raised the following contentions:- - 10 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 (a) The Item No.114, measuring 1 acre 30 guntas was in the name of Abdul Razak as a tenant and he filed form No.7 and occupancy is granted to Abdul Razak as can be noticed from Ex.P2 the order dated 29.09.1981 and this order is not questioned by the defendants/appellants and this order has attained finality. Said order would indicate that both Survey No.26/2, measuring 2 acres and 114 measuring 1 acre 30 guntas are granted to Abdul Razak and the plaintiffs being the heirs of Abdul Razak are entitled to share. (b) The earlier suit was one for declaration of title and injunction on the premise that on 22.10.1982, there was a partition in the family and in the said partition, the suit properties are allotted to the share of the plaintiffs and the Court held that the previous partition is not established as such, the suit for partition is maintainable. It is also urged that the liberty is granted to the plaintiffs to file a suit for partition if advised. Said finding is not - 11 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 questioned by the plaintiffs and accordingly, suit for partition is filed. (c) It is also further urged that in the partition deed dated 15.05.1975, the property bearing Survey No.114 is allotted to the share of Abdul Razak and Item No.3 properties are also allotted to the share of Abdul Razak and this would again establish the fact that Abdul Razak was possessing the property and there is no record to show that he has surrendered the tenancy in respect of Item No.2 property and there is no record to show that Abdul Rashid has independently acquired tenancy in respect of items No.1 and 2 properties and the Trial Court and First Appellate Court have considered these aspects and have concluded that the grant though in the name of Abdul Rashid would enure to the benefit of the remaining family members. 12. Learned counsel for the defendants/appellants by way of reply would contend that the partition deed dated 15.05.1975 is void ab-initio. Elaborating on the said - 12 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 submission, he would urge that Survey No.114 which is the subject matter of the partition deed, was admittedly a tenanted land and with effect from 01.03.1974, all the tenanted lands stood vested in the Government under Section 44 of the Karnataka Land Reforms Act and that being the position, that would not have been a partition dead in respect of the property bearing Survey No.114 on 15.05.1975 as the property did not belong to either the plaintiffs or the defendants or any of the parties to the partition deed dated 15.05.1975. 13. This Court has considered the contentions raised at the bar and perused the records. 14. As far as Survey No.26/2 is concerned, the partition deed dated 15.05.1975 is concerned, the record of rights are produced at Exs.P-7 to P-11 for the year 1970 to 1978. These records would indicate that extent of the land is around 10 acres and different extents of the land bearing Survey No.26/2 are in the names of different tenants. One of the tenants is Abdul Razak. - 13 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 15. Admittedly, the defendants/appellants have not produced any records prior to 01.03.1974 to show that Abdul Rashid was the tenant in respect of the said property. It is noticed that the Tribunal has passed an order at Ex.P2 in favour of Abdul Razak in respect of Survey No.26/2 granting occupancy to the extent of 2 acres. It is also noticed that occupancy rights is also granted in favour of Abdul Rashid in respect of very same property and that order is passed on 25.04.1979. Admittedly, the said order is earlier to the order passed by the Tribunal in favour of Abdul Razak. 16. The provisions of the Land Reforms Act have been interpreted by this Court on few occasions to say that whenever there are two or more applications seeking occupancy in respect of the same property, all the applications are to be clubbed together and thereafter, there has to be an order as to who is eligible or not eligible for grant of occupancy. It is apparent that said procedure is not complied with. At the same time, this Court has to - 14 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 notice that the orders passed in favour of Abdul Razak or Abdul Rashid have not been questioned pointing out the procedural illegality in passing the order. 17. Learned counsel for the defendants/appellants would contend that since the order in favour of Abdul Rashid, the ancestor of the defendants is prior to the order passed in favour of Abdul Razak, it is to be held that the Tribunal did not have the jurisdiction to pass the order in favour of Abdul Razak, as the order is already passed in favour of Abdul Rashid. Though the argument appears to be logical from one perspective, it is required to be noticed that it is well settled position of law that the grant of occupancy in favour of an individual can be a subject matter of suit for partition, provided, the party is able to establish that the property is granted for the benefit of the other members of the family. 18. It is also relevant to notice that the parties are Mohammadans and there is no concept of a joint family as - 15 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 such among the Mohammadans. There may be custom where the parties live like the joint family members. 19. As far as Survey No.26/2 is concerned, this Court has also noticed that no records are produced by Abdul Rashid to conclude conclusively that he possessed the aforementioned land as a tenant in his individual capacity. 20. The initial presumption which is available in his favour in respect of grant of occupancy to hold that the property is the self acquired property of grantee stands rebutted in view of the record of rights produced by the plaintiffs pertaining to Survey No.26/2 right from 1970 to 1978-79. And it is also relevant to notice that occupancy rights is also granted in favour of Abdul Razak in respect of the very same property pursuant to his application seeking grant of occupancy right. Though this order appears to be an order subsequent to the order passed in favour of Abdul Rashid, this Court has to hold that the order in favour of Abdul Rashid cannot be construed as an - 16 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 order exclusively granting the property in favour of Abdul Rashid, for want of records to indicate that Abdul Rashid independently acquired the tenancy in respect of Survey No.26/2. 21. This being the position, the contention that the order in favour of Abdul Razak, in respect of Survey No.26/2 granting occupancy is one without jurisdiction is of little consequence, given the fact that Abdul Rashid is also one of the sons of Abdul Razak and this Court from the records has to hold that Abdul Razak possessed the tenancy right. And there is nothing on record to show that he surrendered tenancy in favour of the landlord and landlord later created tenancy in favour of Abdul Rashid. 22. As far as Survey No.114 is concerned, the said property measures 1 acre 36 guntas. Again it is stated that the occupancy right is granted in favour of Abdul Razak in respect of said property vide order bearing No.TNCVR 46/74-75. The order in favour of Abdul Rashid would indicate that the property is granted in favour of - 17 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 Abdul Rashid vide order in proceeding No.TNCVR 111/74- 75. 23. Though it is true that exclusive order pertaining to Survey No.114 is not produced, at Ex.P2, a reference is already made to the order in favour of Abdul Razak granting occupancy right in favour of Abdul Razak in respect of Survey No.114. 24. It is noticed from the record of right produced at Ex.P13 to P16 that Abdul Razak was the tenant in respect of Survey No.104 to the extent of 1 acre 36 guntas from 1970 to 1989. What is relevant is the possession immediately before 01.03.1974 and if the partition deed of 1975 which is registered and not disputed, Survey No. 114 is said to have been allotted to the share of Abdul Razak. 25. Learned counsel for the defendants/appellants though right in contending that the property could not have been partitioned in the year 1975 on the premise - 18 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 that the property stood vested in the Government, it is relevant to note that in the partition deed itself contains a clause stating that in case the land is not granted, then the party will not acquire any right over the property, and the remaining brothers will have to compensate for the shortfall of land in favour of Abdul Razak to whom the said property is allotted in the partition. 26. This Court is of the view that since the occupancy right is granted in favour of Abdul Razak, the partition deed dated 15.05.1975 cannot be declared as void. It would become void only in case the occupancy right was not granted. It is also relevant to notice that grant of occupancy does not create a right for first time, recognizes the right which is already there in the tenant. 27. This being the position, the grant of the occupancy in favour of Abdul Razak validates the partition deed of 15.05.1975 in respect of Survey No.114 and in the said partition, the property is allotted to the share of Abdul Razak. That being the position, the plaintiffs who - 19 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 are the heirs of Abdul Razak along with the defendants are also entitled to the share in the said Survey No.114. 28. As far as Item No.3 property is concerned, it is noticed from the partition deed that those properties are allotted to the share of Abdul Razak and after the demise of Abdul Razak, the plaintiffs and defendants are entitled to inherit the properties under the provisions of Mohammadan Law. 29. As far as computation of share is concerned, there is no contention raised. 30. For the aforementioned reasons, this Court is of the view that though the plaintiffs have not established that Abdul Rashid was acting as a family manager or that he filed Form No.7, representing the interest of Abdul Razak, on oral appreciation of the materials placed on record and for the reasons discussed above, this Court does not find any reason to interfere with the judgment - 20 - HC-KAR NC: 2025:KHC:31179 RSA No. 1194 of 2013 and decree passed by the Trial Court and First Appellate Court. 31. Accordingly, substantial questions of law are also answered against the appellants and in favour of the respondents. 32. The appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 15