- 1 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1695 OF 2015 (DEC/INJ) BETWEEN: 1. SMT. MANJUBI W/O LATE AHMED SAB AGED ABOUT 73 YARS 2. IBRAHIM SAB S/O LATE AHMED SAB AGED ABOUT 49 YEARS 3. MOHAMMED SHABBIR S/O LATE AHMED SAB AGED ABOUT 48 YEARS 4. SHAJAB BANU S/O LATE AHMED SAB AGED ABOUT 43 YEARS 5. MOHAMMED ZABEER S/O LATE AHMED SAB AGED ABOUT 40 YEARS 6. AKBAR ALI S/O LATE AHMED SAB AGED ABOUT 38 YEARS 7. KOUSAR BANU D/O LATE AHMED SAB AGED ABOUT 34 YEARS ALL ARE R/O DONABAGHATTA VILLAGE, BHADRAVATHI - 573113. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 …APPELLANTS (BY SRI. S.B. HALLI, ADVOCATE) AND: 1. MOHAMMED SHABBIR S/O MOHAMMED ISMAIL AGED ABOUT 53 YEARS AGRICULTURIST R/O DONABAGHATTA VILLAGE, BHADRAVATHI TALUK - 573113. …RESPONDENT (BY SRI. A KUMARAVEL, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINS THE JUDGMENT AND DECREE DATED 24.08.2015 PASSED IN R.A.NO.92/2012 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT BHADRAVATHI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.02.2012 PASSED IN OS.NO.177/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI. THIS APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 ORAL JUDGMENT 1. This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 25.08.2015 passed in RA.No.92 of 2012 on the file of the IV Additional District and Sessions Judge, Shivamogga, sitting at Bhadravati, dismissing the appeal and confirming judgment and decree dated 23.02.2012 passed in OS.No.177 of 2007 on the file of the Senior Civil Judge and JMFC, Bhadravati, dismissing the suit of the plaintiffs. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that, the original plaintiff- Ahamed Sab, contending that, the land bearing Sy No. 96 of Donabaghatta village, Bhadravati Taluk, measuring 5 acres, 39 guntas was jointly acquired by Khaseem Sab, Son of Jaffer Sab, and Sulthan Sab, Son of Moosa Sab. It is further stated that, the aforementioned land was purchased in the public auction. It is also stated that, the - 4 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 Record of Rights stand jointly in the name of Khaseem Sab and Sulthan Sab. The original plaintiff is the son of Sulthan Sab. Defendant is the grand son of Khaseem Sab. hence, the plaintiffs sought for partition in the suit schedule property. It is also stated that, the family arrangement was made in the Sulthan Sab's family, and allotment of share has been made. It is also stated that, in the family settlement, the family properties were allotted to son of Sulthan Sab and land jointly acquired by Sulthan Sb and Khaseem Sab was allotted to plaintiff i.e. half share of Sulthan Sab i.e. half of 5 acre 39 guntas of land. It is further stated in the plaint that, the revenue records have not been properly made in the name of the original plaintiff and after verification in the office of the JDLR, at Bangalore, an extent of two acres has been made and as such, the plaintiff preferred an appeal before the Assistant Commissioner, Shivamogga, which came to be allowed in part. It is also stated in the plaint that father of the original plaintiff was cultivating the land to an extent of - 5 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 half share in the total extent of the suit schedule property and thereafter, continued by the plaintiff and as such the original plaintiff has filed suit in OS No.177 of 2007 seeking half share in the suit schedule property and for permanent injunction against the defendant. 4. After service of summons, defendant entered appearance and filed written statement denying the averments made in the plaint. It is the case of the defendant that, the plaintiff is not entitled for 02 acres, 30.5 guntas, out of 05 acres, 11 guntas, in land bearing Sy No.96 of Donabaghatta village and accordingly, defendant sought for dismissal of the suit. 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 6. In order to support their case, plaintiffs examined 03 witnesses as PW1 to PW3 and got marked 10 documents as Ex.P1 to Ex.P10. On the other hand, defendant - 6 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 examined 04 witnesses as DW1 to DW4 and marked 19 documents as Ex.D1 to Ex D19. 7. The trial Court, after considering the material on record, by its judgment and decree dated 23.02.2012 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA.No.92 of 2012 on the file of First Appellate Court and the said appeal was resisted by the defendant. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 24.08.2015 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.177 of 2016. 8. Being aggrieved by the judgment and decree passed by the Courts below, the plaintiffs/appellants have preferred this Regular Second Appeal under Section 100 of CPC. - 7 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 9. This court vide order dated 11.09.2024, formulated the following substantial question of law: 1) Whether both courts below have committed on error in passing the impugned judgments on the ground that the plaintiffs are not in possession of the suit schedule property without considering the well established principles of law that possession of all the co-tenant ? 2) Whether both the courts below justified in recording the finding that there was a partition effected between Sultansab and Khasimsab based on Ex.D1 which does not bear the signature of deceased plaintiff or his ancestors ? 10. I have heard Sri. S. B. Halli, learned counsel for the appellants and Sri. A. Kumaravel, learned counsel appearing for the respondent. 11. Sri. S.B. Halli, learned counsel for the plaintiffs/appellants submits that, both the courts below have relied upon the 'Oppige Patra' (Ex. D19) between the sons of Khasim Sab and son of Mohamded Ismail Sab and the said finding recorded by both the courts below requires to be set aside and accordingly, sought for interference. - 8 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 12. Sri. A. Kumaravel, learned counsel for the respondent sought to justify the impugned judgment and decree passed by the courts below. 13. Heard the learned counsel appearing for both the parties and perused the material on record. 14. In the light of the submission made by the learned counsel appearing for the parties, the relationship between the parties is not disputed. Both the parties have agreed that, the plaintiff's grand father Moosa Sab and defendant No.1-Khaseem Sab were brothers and land in question was acquired through the public auction on 15.11.1943. On careful examination of the judgment and decree passed by the Trial Court would indicate that, the Trial Court based on the Ex.D19-Agreement Deed, which is undoubtedly unregistered document, dismissed the suit of the plaintiffs. It is well establish principle in law that, the transfer of property has to be made by way of registered document only and as the Ex.D19 is the unregistered - 9 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 document and therefore, the finding recorded by both the courts below requires to be set aside. It is well established principle in law by the Hon'ble Supreme Court in the case of Yellappu Umahaheshwari and Another vs. Buddha Jagadheeswara Rao and Others reported in (2015) 16 SCC 787 wherein, it is held that, transfer of properties is only through by way of registered document, even if is the 'Oppige Patra/Agreement Deed', requires to be registered under Section 17 of the Indian Registration Act. In that view of the matter, I find force in the submission made by the learned counsel appearing for the appellant and the defendant has not produced any registered documents to establish his right insofar as the half share in the suit schedule property and as the plaintiff had acquired the suit schedule property through his grand father-Moosa Sab, and therefore, the plaintiffs are entitled for half share in the suit schedule property. Hence, substantial question of law framed above favours the plaintiffs and plaintiffs are - 10 - HC-KAR NC: 2025:KHC:36776 RSA No. 1695 of 2015 entitled for half share in the suit schedule property. Hence, I pass the following: ORDER i) Regular Second Appeal is allowed; ii) Judgment and decree dated 25.08.2015 passed in RA.No.92 of 2012 on the file of the IV Additional District and Sessions Judge, Shivamogga, sitting at Bhadravati, dismissing the appeal and confirming judgment and decree dated 22.02.2012 passed in OS.No.177 of 2007 on the file of the Senior Civil Judge and JMFC, Bhadravati, are hereby set aside; iii) Suit of the plaintiffs in OS No.177 of 2007 is hereby decreed holding that, the plaintiffs are entitled for half share in the suit schedule property. SD/- (E.S.INDIRESH) JUDGE SB:List No.: 1 Sl No.: 59