- 1 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1537 OF 2023 (PAR) BETWEEN: 1. SRI. MOHAMMAD ASLAM PASHA SON OF AL HAZ ABDUL REHAMAN @ AMIR JAN AGED ABOUT 70 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 2. SRI. MOHAMMAD IQBAL SON OF AL HAZ ABDUL REHMAN @ AMIR JAN AGED ABOUT 65 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 3. SRI. MOHAMMAD NOORUDDIN SON OF AL HAZ ABDUL REHAMAN @ AMIR JAN AGED ABOUT 60 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 4. SRI. MOHAMMAD FAZLUDDIN SON OF AL HAZ ABDUL REHAMAN @ AMIR JAN AGED ABOUT 55 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 TUMKUR DISTRICT - 572 140. 5. SRI. MOHAAMMAD UMRUDDIN SON OF AL HAZ ABDUL REHAMAN @ AMIR JAN AGED ABOUT 50 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 6. SRI. MOHAMMAD AZIF PSHA SON OF AL HAZ ABDUL REHAMAN @ AMIR JAN AGED ABOUT 45 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. …APPELLANTS (BY SRI. P.M. GOPI, ADVOCATE FOR SRI. SIDDAMALLAPPA P.M, ADVOCATE) AND: 1. SRI. SYED KHADAR SON OF LATE SYED PASHA AGED ABOUT 53 YEARS RESIDING AT OPPOSITE TO SUBRAMANYA SWAMY TEMPLE P.H. COLONY, TUMKURU TOWN - 572 102. 2. SRI. SYED NIZAM SON OF LATE SYED PASHA AGED ABOUT 51 YEARS RESIDING AT OPPOSITE TO SUBRAMANYA SWAMY TEMPLE P.H. COLONY, TUMKURU TOWN - 572 102. - 3 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 3. SMT SYED SHABEENA D/O LATE SYED PASHA AGED ABOUT 49 YEARS RESIDING AT OPPOSITE TO SUBRAMANYA SWAMY TEMPLE P.H. COLONY, TUMKURU TOWN - 572 102. 4. SMT. SYED MUBEENA D/O LATE SYED PASHA AGED ABOUT 48 YEARS RESIDING AT OPPOSITE TO SUBRAMANYA SWAMY TEMPLE P.H. COLONY, TUMKURU TOWN - 572 102. 5. SRI. SYED NOOR PASHA SON OF LATE SYED PASHA AGED ABOUT 46 YEARS RESIDING AT OPPOSITE TO SUBRAMANYA SWAMY TEMPLE P.H. COLONY, TUMKURU TOWN - 572 102. 6. SMT. SYED JABEENA DAUGHTER OF LATE SYED PASHA AGED ABOUT 43 YEARS RESIDING AT OPPOSITE TO SUBRAMANYA SWAMY TEMPLE P.H. COLONY, TUMKURU TOWN - 572 102. 7. SMT. JULEKHABI WIFE OF LATE MOHAMMED PEER AGED ABOUT 79 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 102. 8. SRI. MOHAMMED RASUL - 4 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 SON OF LATE MOHAMMED PEER AGED ABOUT 59 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 9. SRI. MOHAMMED MUNAVAR SON OF LATE MOHAMMED PEER AGED ABOUT 59 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 10. SMT. ZAIBUNNISSA W/O LATE ABDUL LATHIF AGED ABOUT 69 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 11. SRI. UMRUDDIN SON OF LATE ABDUL LATHIF AGED ABOUT 39 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 12. SRI. JAMID SON OF LATE ABDUL LATHIF AGED ABOUT 39 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 13. SMT. KHASIM BI W/O LATE ABDUL LATHIF - 5 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 AGED ABOUT 69 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 14. SMT. MAHARE PEER W/O LATE ABDUL LATHIF AGED ABOUT 59 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 15. SRI. CHANU SON OF LATE ABDUL LATHIF AGED ABOUT 54 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 16. SRI. HALLEL SON OF LATE ABDUL LATHIF AGED ABOUT 49 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 17. SRI. JALEEL SON OF LATE ABDUL LATHIF AGED ABOUT 49 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. 18. SRI. SHANU SON OF LATE ABDUL LATHIF - 6 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 AGED ABOUT 39 YEARS RESIDING AT KESARAMADU VILLAGE URDIGERE HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572 140. …RESPONDENTS (BY SRI. RAVISHANKAR K, ADVOCATE FOR C/R2 AND R5) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.06.2023 PASSED IN RA NO.45/2020 ON THE FILE OF IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.07.2015 PASSED IN OS NO.76/2008 ON THE FILE OF PRINCIPAL CIVIL JUDGE, TUMKURU. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT 1. Heard Sri.P.M.Gopi, learned counsel for the appellants. None appears for the respondents. 2. Unsuccessful plaintiffs are the appellants challenging the dismissal of the suit for partition. 3. Facts of the case are as under: 3.1. Common prepositus of the family is Al Haz Abdul Rehaman @ Ameer Jan who had wife by name Khairunnisa In - 7 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 the wedlock, they had nine children. Genealogical tree reads as under: CïºÁeï C§ÄÝï gɺÀªÀÄ£ï @ C«ÄÃgï eÁ£ï (¥ÀªÀw) ºÉA:SÉÊgÀĤßøÀ (¥ÀªÀw) RĶðzï G¤ßøÁ(68) ªÉÆúÀªÀÄäzï EPÁâï ªÉÆúÀªÀÄäzï ¥sÁdÄè¢Ýãï(58) ¥sÀ«ð£ï ¨Á£ÀÄ(51) £À¹ÃªÀĨÁ£ÀÄ(48) ªÉÆúÀªÀÄäzï C¹Ã¥sï ¥ÁµÀ(47) (UÀA.ªÀÄ.ªÁ.¸À.) PÁvÀÄA¨ÉÃ(52) ¥sÁ»ÃªÀiï G¤ßøÁ(52) (UÀA.ªÀÄ.ªÁ.¸À.) (UÀA.ªÀÄ.ªÁ.¸À.) ºÀ¹Ã£Á (¨ÉÃgÉ ªÁ¸À) (¨ÉÃgÉ ªÁ¸À) (¨ÉÃgÉ ªÁ¸À) ªÉÆúÀªÀÄäzï C¸ÀèA ¥ÁµÁ(66) ªÉÆúÀªÀÄäzï £ÀÆgÀÄ¢Ýãï(63) ªÉÆúÀªÀÄäzï GªÉÆæâÝãï(56) £ÀÆgï D¬ÄµÁ(53) µÀAµÁzï ±Á§£À ¨Á£ÀÄ (¨ÉÃgÉ ªÁ¸À) (¨ÉÃgÉ ªÁ¸À) ªÉÆúÀªÀÄäzï EµÁðzï ¥ÁµÀ(37) ªÉÆúÀªÀÄäzï £ËµÁzï ¥ÁµÀ(37) ªÉÆúÀªÀÄäzï D±Àðzï ¥ÁµÀ(32) ªÉÆúÀªÀÄäzï gÀ¦(30) ªÉÆúÀªÀÄäzï µÀ¦(25) ¤ÃªÀiÁ ºÉZï. J¸ï(33) jeÁÓ£À¨Á£ÀÄ(31) D¬ÄõÁ ¸ÀÄÁÛ£À JA(29) (®UÀß«®è) (®UÀß«®è) gÁfÃPÀ ¦üzÉÆæøï(5) vÁºÉÃgÁ vÀ§¸ÀĪÀiï(6) ªÉƺÀªÀÄäzï G¸Áä£ï C¸Àzï(01) 3.2. Plaintiff filed a suit seeking partition and separate possession in respect of the following properties (hereinafter referred to as suit properties): “Land bearing Sy.No.9/1, measuring 0-33 guntas, Asst. 1-08 and land bearing Sy.No.9/2 masuring 1-03, Asst. Rs.1.41 in total 1-36 acres situated at Kesaramadu village, Urdigere Hobli, Tumakuru Taluk, bounded by common boundaries: - 8 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 East: lands of Kempasiddaiah and Somashekaraiah West: Property of Dharmaiah and plaintiffs property Sy.No.6/1 and Sy.No.6/2 North: Lands of K.C.Ramaiah and Yelavanna South: Lands of Hussain Sab and Shahabuddin.” 3.3. Plaintiffs contended that plaintiffs are the tenants- in-common being the sons of defendant No.2 namely Al Haz Abdul Rehaman @ Ameer Jan. Husband of defendant No.3 and father of defendant Nos.4 and 5 namely Mohammad Peer and Abdul Lathief who is the husband of defendant Nos.6 and 9 and father of defendant Nos.7, 8, 10, 11 to 14 are younger brothers of defendant No.2. 4. Suit properties belonged to three brothers namely Al Haz Abdul Rehaman @ Ameer Jan, Mohammad Peer, Abdul Lathief. After the death of Mohammad Peer and Abdul Lathief, plaintiffs and defendant Nos.2 to 14 are in joint possession and enjoyment of suit property as tenants in common. 5. Defendant No.1 who is an utter stranger to the family, tried to illegally interfere with the peaceful possession and enjoyment of the suit property of the plaintiffs and - 9 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 defendant Nos.2 to 14 on the pretext that he had obtained sale deed on 09.02.1987 from defendant No.2 and his younger brother namely Mohammad Peer and Abdul Lathief. 6. Defendant No.2 or his younger brothers had no exclusive right, title or interest over the suit property to alienate the same in favour of anybody muchless defendant No.1 and thus sought for grant of relief as prayed for. 7. During the pendency of the suit, defendant No.2 died. Defendant No.2 appeared through his Advocate and filed written statement so also defendant Nos.9 to 14 filed separate written statement denying the plaint averments in toto. 8. It is further contended that defendant No.2 has sold the property for a valuable consideration through registered sale deed dated 09.02.1987 and later on suit property was converted for industrial purpose by obtaining necessary license and a brick kiln came to be established. 9. Based on the rival contentions of the parties, learned Trial Judge raised necessary issues and recorded a categorical finding that plaintiff failed to prove that they are - 10 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 owners in the suit property as tenants in common after the death of common prepositus and dismissed the suit. 10. Being aggrieved by the same, plaintiffs filed an appeal before the First Appellate Court in RA No.45/2020. 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material on record, dismissed the appeal. 12. Being further aggrieved by the same, plaintiffs are before this Court, in this appeal. 13. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum would contend that approach of the First Appellate Court in raising only one issue and not appreciating the material on record both on facts and law has resulted in grave miscarriage of justice besides non- exercise of the power vested in the First Appellate Court under Section 96 of Code of Civil Procedure and thus sought for admitting the appeal on the aforesaid substantial questions of law. - 11 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 14. Having heard the learned counsel for the appellants, this Court perused the material on record meticulously. 15. On such perusal of the material on record, it is to be noted that plaintiffs have to make out their right in respect of the suit property to lay a claim for partition and separate possession. When plaintiffs have failed in establishing the said aspect of the matter especially they belonging to the Mohammedan community and their personal law would entitle them to claim the right in respect of the suit property by establishing that they are the sharers or residuary so as to enjoy the suit property as tenants in common; when they failed to do so, dismissal of the suit by the Trial Court is just and proper. 16. However, as rightly pointed out by learned counsel for the appellants, First Appellate Court committed an error in raising only one point. First Appellate Court being the Court which was required to deal with the appeal both on factual aspects and question of law, failed in its duty in reappreciating - 12 - HC-KAR CNR: KAHC010454282023 NC: 2026:KHC:44909 RSA No. 1537 of 2023 the material on record as is contemplated under Section 96 read with Section 41 of Code of Civil Procedure. 17. However, in the case on hand, only on that score, the present second appeal cannot be admitted and matter cannot be remitted to the First Appellate Court as plaintiffs have failed to make out right in respect of the suit property to seek for partition. 18. Therefore, even though the First Appellate Court failed in its duty in properly disposing of the appeal, this Court does not find any merit in any one of the substantial questions of law raised in the appeal for further consideration. 19. Accordingly, the following: ORDER i. Admission declined. ii. Appeal is dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 61