Karnataka High Court
Smt. Kurshid Unnisa vs Sri Mohammed Fazil @ Farusabi on 6 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:19517
RSA No. 645 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.645 OF 2022 (DEC/INJ)
BETWEEN:
1. SMT. KURSHID UNNISA
@ KHRUSHID BEGUM
D/O. ABDUL AZEEZ
AGED ABOUT 60 YEARS
2. SMT. SHAHAZAD UNNISA
@ SHAHAZAD BEE
D/O. ABDUL AZEEZ
AGED ABOUT 54 YEARS
BOTH ARE RESIDING AT
SULIBELE VILLAGE AND POST
MUSLIM MOHALL,
Digitally signed HOSAKOTE TALUK
by DEVIKA M BANGALORE RURAL DISTRICT-562129.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
SRI. MOHAMMED FAZIL @ FARUSABI
S/O. SHEIK FAKRUDDIN SAB
SINCE DIED REP. BY HIS LR'S RES.1 TO 6.
1. SMT. JAIBU UNNISSA
W/O. MAHAMMED FAZIL @ FARUSABI
AGED ABOUT 64 YEARS
-2-
NC: 2025:KHC:19517
RSA No. 645 of 2022
HC-KAR
2. SRI. MAHAMMED ISSAQ
S/O. MAHAMMED FAZIL @ FARUSABI
AGED ABOUT 47 YEARS
3. SRI. MAHAMMED MOULA
S/O. MAHAMMED FAZIL @ FARUSABI
AGED ABOUT 45 YEARS
4. SRI. MUNNAVAR PASHA
S/O. MAHAMMED FAZIL @ FARUSABI
AGED ABOUT 42 YEARS
5. SRI. RAHAMMETH PASHA
S/O. MAHAMMED FAZIL @ FARUSABI
AGED ABOUT 37 YEARS
RESPONDENTS NO.1 TO 5 ARE
RESIDING AT SULIBELE VILLAGE AND POST
MUSLIM MOHALL, HOSAKOTE TALUK
BANGALORE RURAL DISTRICT-562129.
6. SRI. MAHAMAD HUSSAIN
S/O. LATE. ABDUL RAHEEM
AGED ABOUT 77 YEARS
RESIDING AT NO.1/2, 5TH MAIN
10TH CROSS, GIDDAPPA BLOCK,
GANGANAGAR, R.T.NAGAR
BANGALORE-560032.
7. SRI. ABDUL BASHEER KHAN
S/O. SATTAR KHAN
AGED ABOUT 82 YEARS
NO.3366, DARGA MOHALLA,
VIJAYAPURA TOWN,
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT-562110.
8. SRI. RIYAJ PASHA
S/O. ABDUL AZEEZ
AGED AGOUT 57 YEARS
-3-
NC: 2025:KHC:19517
RSA No. 645 of 2022
HC-KAR
9. SMT. MUMTHAZ UNNISA
D/O. ABDUL AZEEZ
AGED ABOUT 53 YEARS
10. SRI. NAJEER AHAMED
S/O. ABDUL AZEEZ
AGED ABOUT 49 YEARS
11. SRI. MOHABOOB
D/O. ABDUL AZEEZ
AGED ABOUT 49 YEARS
12. SMT. AFROZ UNNISA
D/O. ABDUL AZEEZ
AGED ABOUT 47 YEARS
13. SRI. MOHAMMED PASHA
S/O ABDUL AZEEZ
AGED ABOUT 44 YEARS
RESPONDENTS NO.8 TO 13 ARE
RESIDING AT SULIBELE VILLAGE AND POST
MUSLIM MOHALLA, HOSAKOTE TALUK
BANGALORE RURAL DISTRICT-562129.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.12.2021
PASSED IN R.A.NO.275/2020 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT BENGALURU. DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 29.09.2020
PASSED IN O.S.NO.1562/2012 ON THE FILE OF THE CIVIL
JUDGE AND JMFC, ARAKALGUD.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-4-
NC: 2025:KHC:19517
RSA No. 645 of 2022
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellants.
2. The appellants' counsel submits that the suit is
filed for the relief of declaration to declare that the
plaintiffs are the absolute owners of the 'A' schedule
property and also to declare that sale deed dated
02.06.2005 executed by defendant Nos.1 to 6 in favour of
defendant No.7 is illegal, void and not binding upon the
plaintiffs and also to declare that registered gift deed
dated 09.12.2011 executed by defendant No.1 in favour of
defendant No.2 is not binding upon the plaintiffs and also
sought for the decree of possession of 'B' schedule
property and claimed the permanent injunction restraining
the defendants from interfering with peaceful possession
and enjoyment of the suit schedule 'B' and 'C' properties.
3. The case of the plaintiffs in brief that father of
plaintiffs, namely Abdul Azeez, was the youngest son of
NC: 2025:KHC:19517
HC-KAR
Tavakal Sabi had 3 sons namely Jahangeer Sab, Sheikh
Fakruddin and Abdul Azeez. It is averred that Tavakal Sabi
died leaving behind certain immovable properties and his
three sons entered into partition dividing the properties by
virtue of registered partition deed dated 20.02.1983. It is
also the contention that 'C' schedule property of the
partition deed was allotted to the share of father of
plaintiffs Abdul Azeez which comprises of 3 items. In
pursuance of the partition, mutation was accepted in the
name of Abdul Azeez and he was in peaceful possession
and enjoyment of the properties allotted to his share in
the said partition. It is also the contention that suit
schedule survey number is also one of the item of 'C'
schedule property of the partition deed, the same is
described as 'A' schedule in the plaint schedule. The father
of plaintiffs and plaintiffs jointly cultivated the said land.
That on 27.04.2008 Abdul Azeez died and thereafter on
04.01.2012 Smt.Kamrunnisa died who are the parents of
the plaintiffs. It is also contended that defendant No.1
NC: 2025:KHC:19517
HC-KAR
alleging that suit 'A' property had fallen to his share in the
partition and khata changed to his name, even though
there was no such partition. That the defendant No.1 on
the basis of the said illegal katha, sold an extent of 1 acre
3 guntas in Sy.No.14/1 in favour of defendant No.7 vide
sale deed 02.06.2005, the said property is described as 'B'
scheduled property in the plaint schedule.
4. It is also contended that 1st defendant has also
executed a gift deed in favour his wife defendant No.2 in
respect of 1 acre 3 guntas in Sy.No.14/1 and the same is
described as 'C' scheduled property in the plaint schedule.
It is contended that 1st defendant is the close relative of
the plaintiffs and is the son of Sheikh Fakruddin Sab, the
elder brother of the Abdul Azeez, who is the father of
plaintiffs. That the defendant No.1 playing fraud has
created documents in collusion with defendant No.2 who is
the wife of defendant No.1 in collusion with defendant
No.7. That the defendant Nos.2 to 6 are the wife and
children of defendant No1. It is contended that though
NC: 2025:KHC:19517
HC-KAR
they are not the owners of the property, they have jointly
executed alleged sale deed. The defendant No.8 had filed
suit in O.S.No.36/2006 claiming 29 guntas of land in
Sy.No.14 alleging that parents of the plaintiffs had agreed
to sell the said land in his favour by an agreement of sale
dated 13.10.1989 and that he has perfected the title by a
way of adverse possession.
5. It is contented that in the said suit defendant
No.1 forged the signature of the parents of the plaintiff
and filed the written statement to his convenience, the
said suit came to be dismissed on 22.11.2007 and against
the judgment, an appeal was filed in R.A.No.10/2008 by
the defendant No.8 and the same was allowed and
remanded to the Trial Court for fresh disposal. The plaintiff
herein are the defendants in the said suit. The defendant
No.1 has played fraud on the parents of the plaintiffs and
the plaintiffs herein and also forged the signature of the
parents of the plaintiff and filed written statement in
O.S.No.36/2006 and also created revenue documents in
NC: 2025:KHC:19517
HC-KAR
his name and fraudulently sold 'B' schedule property and
also executed gift deed in respect of 'C' schedule property.
Based on the sale deed and the gift deed, got changed the
khata and hence, filed the suit seeking the relief of
declaration and other consequential relief. In pursuance of
the suit summons, defendant Nos.1 to 8 have appeared
and filed their written statement and defendant Nos.7 to 8
have also filed separate written statement. The defendants
have filed written statement denying the very contention
of the plaintiff, however, they admits the relationship
between the parties and also the partition deed, but
contended that such document is executed with some
reservation, which is described in detail in the later part of
the written statement. It is contented that 'A' schedule
property measuring 2 acres 6 guntas was held by Tavakal
Sabi and late Khartoonbi. They are none other than the
grand parents of plaintiffs and defendant No.1 and great
grand parents of defendant Nos.3 to 6. That after the
death of Tavakal Sabi and Khartoonbi, their 3 sons divided
NC: 2025:KHC:19517
HC-KAR
all the properties including Sy.No.14, that stood in the
name of Tavkal Sabi and Khartoonbi and entered into
registered partition dated 20.02.1983.
6. It is contended that as on the date of partition,
there was prohibition of fragmentation of land by virtue of
prohibition of fragmentation Act, for the said reason, it
was mutually agreed by their 3 sons to hold some of the
items of the schedule of said partition deed in one of the
brother's name. Accordingly, 'A' schedule property
measuring 2 acres 6 guntas was divided among 3
brothers, that is 29 guntas each and another 18 guntas in
favour of Abdul Azeez, father of the plaintiffs. The said
persons were put in physical possession of their respective
shares but however, for convenience and to overcome the
fragmentation act in the registered partition deed, 'A'
schedule measuring 2 acres 6 guntas was shown to be
held in the name of father of plaintiffs Abdul Azeez.
Subsequently, the revenue records was mutated in the
name of Abdul Azeez and his wife. But, respective persons
- 10 -
NC: 2025:KHC:19517
HC-KAR
shown in partition deed were enjoying their respective
shares without any interference. For the said reason, these
defendants deny the averments made in paragraph No.4
of the plaint and also contend that neither the plaintiffs
nor the father of the plaintiffs cultivated entire extent of a
'A' scheduled property. But, they were in actual possession
only to the extent of 28 guntas of land that was allotted to
their share by virtue of partition. It is also the contention
that Abdul Azeez and Kamrunnisa along with their sons
that is plaintiff Nos.2, 5, 6 and 8 have executed
agreement of sale on 18.05.1994 in favour of Anwarsab in
respect of 28 guntas of land and 29 guntas of land that is
the share of Jahangeer Sab. Further, the share of Sheikh
Fakruddin sab, who is the father of defendant No.1 was
retained. It is contented that when defendant No.1 came
to know about the execution of agreement of sale dated
18.05.1994, he approached the said Anwarsab and
expressed his desire to retain entire property by himself as
he got sentimental values towards the property of elders.
- 11 -
NC: 2025:KHC:19517
HC-KAR
Saying so, he settled the agreement amount paid by
Anwar Pasha in favour of his uncles namely Jahangerr sab
and Abdul Azeez. Having settled the agreement amount,
1st defendant executed agreement of sale dated
19.04.1999 in favour of his wife Jaibunnisa, who is the 2nd
defendant and to the said agreement plaintiff Nos.2, 5, 6
and 8 have signed as witnesses. It is contended that after
execution of agreement of sale dated 19.04.1999, Abdul
Azeez retained share of 1st defendant's father namely
Sheik Fakrudin Sab. That the 1st defendant to secure his
right over the entire 'A' scheduled property felt it
necessary to get a fresh agreement of sale in his favour
and accordingly, a fresh agreement of sale dated
04.06.2001 that was executed by Abdul Azeez and
Kamarunnisa, the parents of the plaintiff, at enhanced sale
consideration in favour of the wife of 1st defendant namely
Jaibunnisa, who is the 2nd defendant. That the 2nd
defendant and plaintiff Nos.2, 5, 6 and 8 have signed as
witness to the said agreement. The 1st defendant has paid
- 12 -
NC: 2025:KHC:19517
HC-KAR
the entire sale consideration as agreed in terms of
agreement dated 04.06.2001 by virtue of sale agreement
19.04.1999 and 04.06.2001, the second defendant namely
Jaibunnisa, wife of 1st defendant as acquired right over 2
acres 6 guntas of land in Sy.No.14. That the 1st defendant
being in possession of entire 'A' schedule property
alienated the portion of the property to the defendant
No.7. For the said reasons, these defendants deny the
allegation that plaintiffs are in possession of the suit
schedule property ever since from 13.10.1989. That the
revenue records continued in the name of Abdul Azeez but
Abdul Azeez and Kamarunnisa, these defendants wanted
to transfer entire 'A' schedule in his favour, but thinking
that execution of sale deed in pursuance of agreement of
sale would cost him more resorted to another alternative
method of getting execution of partition deed. It is
contended that according to the partition deed dated
14.05.2003 executed among parents of plaintiffs, namely
Abdul Azeez, Kamarunissa, Jahageer sab and brother of 1st
- 13 -
NC: 2025:KHC:19517
HC-KAR
defendant, 'A' scheduled property that is Sy.No.14
measuring 2 acres, 6 guntas was allotted in favour of the
1st defendant. On the strength of the same, he got
mutated the property MR.No.25/2003-04 and contend that
there is no illegality as alleged in the plant and claimed the
dismissal of the suit.
7. The Trial Court having considered the grounds
urged in the plaint as well as in the written statement,
framed the issues and allowed the parties to lead their
evidence. Having considered the evidence of the plaintiff
and defendant, the very claim of the plaintiffs are
answered as negative in answering all the issues and
dismissed the suit. Being aggrieved by the said judgment
and dismissal of suit, an appeal is filed in
R.A.No.275/2020. The First Appellate Court also on
re-appropriation of both oral and documentary evidence
available on record, formulated the point as whether the
Trial Court committed an error in dismissing the suit and
whether it requires interference of this Court. That
- 14 -
NC: 2025:KHC:19517
HC-KAR
whether the plaintiff Nos.1 and 3 have made out sufficient
grounds to show that Trial Court has committed an error.
The First Appellate Court also, on re-appropriation of both
oral and documentary evidence placed on record,
answered the point as negative and comes to the
conclusion that plaintiff No.1 and 3 have failed to make
out any ground to show that Trial Court has committed an
error to appreciate both oral and documentary evidence
and also made an observation that sons of the Abdul
Azeez, who are some of the plaintiffs before Trial Court in
the suit have not chosen to challenge the impugned
judgment and decree by filing any appeal and only 2
daughters of Abdul Azeez, who are the plaintiffs Nos.1 and
3 have filed the present appeal and also take a note of in
the cross examination of P.W.1 admitted that the 29
guntas each had fallen to the share of brothers of her
father and 28 guntas had fallen to the share of her father
Abdul Azeez in the partition between Abdul Azeez and his
brothers. This admission prove the contention of the
- 15 -
NC: 2025:KHC:19517
HC-KAR
written statement filed by the defendant Nos.1 to 6.
Having taken note of the admission, both the Trial Court
as well as the First Appellate Court dismissed the suit and
appeal respectively. Being aggrieved by the finding of Trial
Court, the present second appeal is filed before this Court.
8. The counsel appearing for the appellants would
vehemently contend that both the Courts have committed
an error in coming to the conclusion that appellants are
not the owners of the suit schedule property since they
had not joined hands in selling their share in the suit
schedule property and finding of the First Appellate Court
parties to the suit being governed by Mohammedan Law
are not entitled for declaration of ownership over the
scheduled property and the very finding of the Trial Court
and also the First Appellate Court is erroneous. Hence, it
requires interference of this Court.
9. Having heard the appellants' counsel and also
the Counsel appearing for the respondents and no doubt
the Trial Court in detail considered the both oral and
- 16 -
NC: 2025:KHC:19517
HC-KAR
documentary evidence placed on record and also the
counsel for appellants mainly relies upon the document of
Ex.P1 that is C.C of the partition deed. It is very important
to note that when one of the plaintiff was examined before
the Trial Court given an admission that 28 guntas of
property was allotted in favour of their father Abdul Azeez
and said admission was also taken note of by the Trial
Court since suit is filed to the extent of 2 acre 6 guntas
and also taken note of earlier there was a partition and
also the pleadings which was made by the defendant was
accepted by the P.W.1. When such being the case, rightly
comes to the conclusion that plaintiffs have not made out
any case in proving their ownership. The First Appellate
Court also taken note of that other sons of the Abdul
Azeez have not filed any appeal as against the judgment
and decree passed in O.S.No.1562/2012. The First
Appellate Court having re-appropriated both oral and
documentary evidence placed on record, particularly in
paragraph No.39 of the judgment taken note of admission
- 17 -
NC: 2025:KHC:19517
HC-KAR
and also comes to the conclusion that this admission
would prove the averments of the written statement filed
by defendant Nos.1 to 6 and they took specific contention
that even though there was a partition earlier and
subsequently there was agreement of sale and rights of
the father of the Plaintiffs was also purchased by making
payment and also taken note of sale deed executed by the
defendant Nos.1 to 6 in favour of defendant No.7 and suit
was also filed after 2012 after 7 years of date of execution
of the sale deed and also possession was delivered in
favour of the purchaser. Having taken note of relief sought
for declaration and declaring the sale deed dated
20.06.2005 is null and void and also execution of gift deed
by Defendant Nos.1 and 2 in the year 2012. Though it is
contended as illegal and taken note of the admission on
the part of P.W.1. When such admission was given, I do
not find any error committed by the Trial Court in
dismissing the suit of the plaintiff and confirmed the same
by Appellate Court. Hence, question of framing any
- 18 -
NC: 2025:KHC:19517
HC-KAR
substantive question of law as contended by the
appellants' counsel doesn't arise. Hence, no merit to admit
and frame substantive question of law.
10. In view of the discussions made above, I pass
the following:
ORDER
The Second Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
