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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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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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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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
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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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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 ?
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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.
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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
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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
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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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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.
Sd/-
(M.G.S.KAMAL)
JUDGE
SN
