Karnataka High Court
Hussain Sab S/O Murtuza Teli vs Murtuza S/O Lalesab Teli on 13 November, 2025
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2025:KHC-K:6810
RSA No. 200335 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200335 OF 2019
(DEC/INJ)
BETWEEN:
HUSSAIN SAB S/O MURTUZA TELI
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: KEMBAVI VILLAGE,
TQ: SHORAPUR,
DIST: YADAGIR-585201.
...APPELLANT
(BY SRI JIDAGE KAILASH C., ADVOCATE)
Digitally signed AND:
by SACHIN
Location: HIGH MURTUZA S/O LALESAB TELI,
COURT OF AGE: 39 YEARS, OCC: AGRICULTURE,
KARNATAKA
R/O KEMBAVI VILLAGE, TQ: SHORAPUR,
DIST: YADGIR-585201.
...RESPONDENT
(SERVED)
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE PRAYING TO SET-ASIDE THE
JUDGMENT AND DECREE DATED 05.07.2019 MADE IN
R.A.NO.2/2019 PASSED BY THE SENIOR CIVIL JUDGE AT
SHORAPUR CONFIRMING THE JUDGMENT AND DECREE IN
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NC: 2025:KHC-K:6810
RSA No. 200335 of 2019
HC-KAR
O.S.NO.78/2011 DATED 18.12.2018 ON THE FILE OF ADDL.
CIVIL JUDGE AND JMFC, SHORAPUR, CONSEQUENTLY DECREE
THE SUIT OF THE PLAINTIFF/APPELLANT AS PRAYED FOR WITH
COSTS THROUGH OUT IN THE INTEREST OF JUSTICE AND
EQUITY. ALTERNATIVELY IT IS ALSO PRAYED TO REMAND THE
MATTER TO THE FIRST APPELLATE COURT FOR
CONSIDERATION OF THE DOCUMENTARY EVIDENCE FILED BY
THE APPELLANTS BEFORE HON'BLE LOWER APPELLATE COURT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) Plaintiff is before this Court being aggrieved by the judgment and decree dated 18.12.2018 passed in O.S.No.78/2011 on the file of Additional Civil Judge and JMFC, Shorapur (hereinafter referred to as 'the trial Court' for brevity) by which the suit for declaration and injunction filed by the plaintiff is dismissed, which is confirmed by the judgment and order dated 05.07.2019 passed in R.A.No.2/2019 on the file of Senior Civil Judge and JMFC, Shorapur (hereinafter referred to as 'the first appellate Court' for brevity).
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NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR
2. Case of the plaintiff is that he is the owner and in possession of suit property, namely property bearing Panchayath No.5-84/1 (old), 14-117 (new) measuring East-West 44 feet and North-South 13 feet and towards South-East room measuring 22x21 feet situated at Kembhavi Village, Shorapur Taluk, bounded on East by public way, West by house of one Jainabee Teli, North by house of the defendant and South by house defendant and plaintiff.
3. It is the case of the plaintiff that one Murtuza was the owner of the suit property and he passed away leaving behind, 1) Lalesab, 2) Fathimabee, 3) Masabee, 4) Hussainsab - the plaintiff. That Fathimabee and Masabee are married and residing in their husbands' house. Lalesa, the first son of Murtuza passed away leaving behind
1) Masabee, 2) Mumtaj and 3) Martuza - defendant herein and 4) Malanbee. After the demise of Murtuza, about 50 years ago, the property was mutated in the name of -4- NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR Lalesa, the eldest son of Murtuza, who was the father of defendant No.1.
4. That there was oral partition. In terms of which the suit schedule property was allotted to the share of the plaintiff and another property was given to the share of Lalesa. That the plaintiff has been in possession and enjoyment of the suit property as absolute owner thereof in terms of the partition entered into. It is alleged that the defendant is causing interference into the possession and enjoyment of the plaintiff, denying his right and entitlement. Hence, the suit for declaration and injunction.
5. Defendant in the written statement denied the plaintiff being the absolute owner and possessor of the suit property. It is claimed that the suit property is in joint ownership and possession of plaintiff and defendant as tenants-in-common. That there has no partition taken place in respect to the suit property. As such, the claim of the plaintiff is not tenable.
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NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR
6. Based on the pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that he is the absolute owner and in possession of the schedule property ?
2. Whether the plaintiff further proves the alleged interference by the defendant over the suit schedule property ?
3. Whether the plaintiff is entitled for the relief of declaration and injunction ?
4. What order or decree ?
7. Plaintiff examined himself as PW.1 and another witnesses as PW.2 and exhibited seven documents marked as Exs.P1 to P7. Defendant examined himself as D.W.1 and marked nine documents marked as Exs.D1 to D9. On appreciation of evidence, trial Court answered Issue Nos.1 to 3 in negative and consequently, dismissed the suit. Being aggrieved, plaintiff preferred the regular appeal in R.A.No.2/2019. The first appellate Court framed the following point for its consideration :
1. Whether the judgment and decree passed by Trial Court dated 18.12.2018 are capricious, arbitrary, erroneous ?-6-
NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR
2. Whether the judgment and decree passed by the Trial Court needs interference from this Court ?
3. What order or decree ?
and on re-appreciation, answered the points in negative and consequently dismissed the appeal, confirming the judgment and decree passed by the trial Court. Being aggrieved with, the plaintiff is before this Court.
8. This Court by order dated 02.02.2021 framed the following substantial questions of law :
1. Whether both the Courts are justified in dismissing the suit without moulding the relief of declaration and injunction into partition under Order 7 Rule 7 of Code of Civil Procedure ?
2. Whether both the Courts are justified in dismissing the suit despite the admission by the defendant that they are tenants in common ?
9. Counsel for the appellant submits that in the light of the substantial question of law warranting moulding of the relief, the suit be remanded to the trial Court for fresh trial and permit the plaintiff to implead the other members of the family and to seek relief of partition. -7-
NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR He relies upon the judgment of the Coordinate Bench of this Court in the case of Ibrahim vs. Ismail and another
- ILR 2008 KAR 1539, to buttress his submission of moulding the relief.
10. Heard. Perused the records.
11. The trial Court and the first appellate Court on appreciation of evidence have come to concurrent finding that the plaintiff has failed to prove the prior partition between himself and the father of the defendant. That apart, defendant himself has admitted that the plaintiff and the defendant are residing as tenants in common and there is no partition of the property.
12. As rightly pointed out by the learned counsel for the plaintiff/appellant in the normal course the plaintiff ought to have sought for relief of partition and separate possession of the property, which is the course adopted by the Co-ordinate Bench of this Court in the case of Ibrahim (supra) referred to above and relied upon by the -8- NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR learned counsel of the plaintiff. However, in the instant case as noted above, Murtuza, the father of the plaintiff and the grandfather of defendant, apparently passed away 50 years ago leaving behind father of the defendant, plaintiff and two other daughters. Daughters have not been made party to the suit.
13. Further, Lalsa the father of the defendant also stated to have passed away leaving behind two sons and two daughters. Even the said persons have not been made party to the suit. That apart, there is also reference to certain agriculture land in Sy.No.337/2/A measuring 03 acre 04 guntas standing in the name of Murtuza. A suit in O.S.No.49/2016 has been filed by defendant herein for relief of injunction in respect of the said property. A copy of the plaint in the said suit in OS No.49/2016 is also produced at Ex.P.5. That the plaintiff contend that the said land originally belonged to his father Murtuza. Thus, clearly apart from the suit property there appears to be a -9- NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR dispute in respect of land in Sy.No.No.337/2/A measuring 03 acres 04 guntas.
14. Under the circumstances, it would not be appropriate to remand this matter for consideration by moulding the relief as sought for. Since the trial Court and the first appellate Court have concurrently held plaintiff having failed to prove the partition and plaintiff and the defendant remaining to be the tenants-in-common, this Court do not find any reason to interfere with the judgment and decree passed by the trial Court in O.S.No.78/2011 dated 18.21.2018 which is confirmed by the first appellate Court in R.A.No.2/2019 dated 05.07.2019. For the reasons referred to above, the substantial questions of law is answered accordingly.
15. However, notwithstanding the dismissal of the appeal, liberty is reserved to the plaintiff to seek relief of partition and separate possession of the suit property and any other property which belonged to the father of the
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NC: 2025:KHC-K:6810 RSA No. 200335 of 2019 HC-KAR plaintiff and grandfather of the defendant, by making all children/descendents of Murtuza as parties thereof.
16. With the above observation, appeal is dismissed.
17. Pending interlocutory applications, if any are disposed of accordingly.
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(M.G.S.KAMAL) JUDGE SN List No.: 1 Sl No.: 9