Shabbir Ahamed vs Abdul Rehaman
2025 Latest Caselaw 10247 Kant

Karnataka High Court

Shabbir Ahamed vs Abdul Rehaman on 14 November, 2025

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                                     RSA No. 1134 of 2016



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14th DAY OF NOVEMBER, 2025

                         BEFORE

       THE HON'BLE DR. JUSTICE K.MANMADHA RAO

     REGULAR SECOND APPEAL NO. 1134 OF 2016 (PAR)
BETWEEN:

1.    SHABBIR AHAMED
      S/O LATE BUDEN SAB,
      AGED ABOUT 66 YEARS,
      NOW R/A NO.21, 2ND CROSS,
      ANKAPPA BLOCK, J.C. NAGAR
      NEAR MUBARAK MASJID
      MUNIREDDY PALYA
      BANGALORE-560 046.

2.    FIAZ AHAMED
      S/O LATE BUDEN SAB
      AGED ABOUT 57 YEARS,
      R/O BEHIND SHANKAR GARAGE,
      NEHRUNAGAR
      CHIKKAMAGALURU CITY-577 101.
                                            ...APPELLANTS
(BY SRI. N.MANOHAR, ADVOCATE)

AND:

1.    ABDUL REHAMAN
      S/O LATE HAYATH HUSSAIN
      AGED ABOUT 69 YEARS,
      LORRY OWNER
      R/O OPP: GIRI LODGE,
      I.G ROAD,
      CHIKKAMAGALUR CITY-577 101.

2.    TAJMUL
      AGED ABOUT 45 YEARS,
                             -2-
                                     RSA No. 1134 of 2016



3.   AMANUL
     AGED ABOUT 43 YEARS,


4.   ASGAR
     AGED ABOUT 40 YEARS,

5.   AKBAR
     AGED ABOUT 39 YEARS,

6.   TARA
     AGED ABOUT 37 YEARS,

7.   MISS LALA
     AGED ABOUT 35 YEARS,

     NO.2 TO 7 ARE THE CHILDREN OF
     LATE NAZEER AHMED

8.   SMT MAJUBI
     W/O LATE NAZEER AHAMED
     AGED ABOUT 73 YEARS,

     NO.2 TO 8 ARE R/O BEHIND
     SHANKAR GARAGE
     NEHRU NAGAR,
     VIJAYAPURA EXTENSION
     CHIKKAMAGALUR-577 101.

9.   MAIMUNNISSA
     AGED ABOUT 50 YEARS,
     W/O ABDUL RAHIMAN
     R/A SIDDARAMANAHALLI
     SINGATAGERE HOBLI,
     KADUR TALUK-577 138.

10. C.V. VASUDEV
    AGED ABOUT 70 YEARS
    S/O LATE C.P. VENKATARAMU
    PROP: SRI RAMA SWEETS
    M.G.ROAD,
    CHIKMAGALUR CITY-577 101.
                          -3-
                                   RSA No. 1134 of 2016



11. C.H. ABDUL RAHIM @ VAZIR
    AGED ABOUT 56 YEARS,
    S/O LATE HAYATH HUSSAIN,
    R/O C.H.R BUILDING, HOTEL MAHARAJA
    I.G.ROAD,
    CHIKMAGALUR CITY-577 101.

12. ABDUL RASHEED AHAMED
    S/O LATE BUDEN SAB,
    AGED ABOUT 58 YEARS,
    CAR DRIVER, MUTHANNA GARDEN,
    EXTENTION, 2ND CROSS,
    BENSON TOWN,
    BANGALORE-560 046.

13. RAFEEQ AHAMED
    S/O LATE BUDEN SAB
    AGED ABOUT 55 YEARS,
    TIMBER MERCHANT
    R/O BEHIND SHANKAR GARAGE,
    NEHRUNAGAR
    CHIKKAMAGALURU CITY-577 126.

    SINCE DEAD BY HIS LRS
    13(1) GULNAZ
    W/O LATE RAFEEQ AHEMED
    AGED ABOUT 50 YEARS.

    13(2) SABIYA SULTHANA
    W/O MAHABOOB BASHA,
    D/O LATE RAFEEQ AHAMED
    AGED ABOUT 33 YEARS

    BOTH ARE R/A H.NO.1431,
    BENNERGHATTA ROAD,
    GOTTIGERE POST,
    BANGALORE 560 083.

14. BALKIS BANU
    W/O K M SULAIMAN
    AGED ABOUT 42 YEARS,
    R/O KOPPA TOWN-577 126.
                              -4-
                                         RSA No. 1134 of 2016



15. BASHEER AHAMED
    S/O AYEEZ SAB
    AGED ABOUT 80 YEARS,
    R/O DR. PAIS COMPOUND
    CHIKKAMAGALUR-577 101.
                                                 ...RESPONDENTS
(V/O DTD:14.10.2024, APPEAL STANDS DISMISSED AGAINST R1;
R2, R3, R4, R5, R6, R7, R8, R10, R11 - ARE SERVED
AND UNREPRESENTED;
V/O DATED:24.04.2025 NOTICE TO R9, R12, R13(1 & 2), R14,
R15 IS D/W)


      THIS   REGULAR    SECOND     APPEAL   IS    FILED    UNDER
SECTION 100 OF CPC, PRAYING TO CALL FOR THE ENTIRE
RECORDS FROM THE FILE OF THE 1ST ADDL. DISTRICT JUDGE
AT CHIKMAGALUR IN R.A.NO.41/2012 AND ALSO FROM ADDL.
SENIOR CIVIL JUDGE AT CHIKMAGALUR IN O.S.NO.128/1997
AND   SET    ASIDE   THE   JUDGMENT      AND     DECREE    DATED
05.01.2012 PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND
CHIKMAGALUR IN O.S.NO.128/1997 ANE ETC.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT      ON     25.10.2025    AND    COMING      ON     FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED
THEREIN AS UNDER:

CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO


                       CAV JUDGMENT

The present Regular Second Appeal is filed by the

plaintiffs to set aside the judgment and decree dated

08.03.2016, in R.A.No.41/2012 passed by the I Additional

District Judge at Chikmagalur (hereinafter referred to as

'the first appellate Court') and the judgment and decree

dated 05.01.2012, in O.S.128/1997, passed by the

Additional Senior Civil Judge at Chikmagalur (hereinafter

referred to as 'the trial Court').

2. The appellants herein are the

plaintiffs/appellants before the Courts below and the

respondents herein are the defendant/respondent before

the Courts below.

3. For convenience of reference, the parties herein

are referred to as per the rankings before the trial Court.

4. The plaintiffs filed O.S.No.128/1997 against the

defendants on the file of the Additional Senior Civil Judge,

Chikmagalur for the relief of partition and separate

possession of their 2/5th share over the suit schedule

properties and also for accounts and mesne profits.

5. The brief facts of the case are that:-

It is the specific case of the plaintiffs that the suit

schedule properties comprise two landed properties at

Indavara Village and two house properties at Chikmagalur

City, originally belonging to late Chabumiya, a Police

Daffedar. After his and his wife's demise, they were

succeeded by three sons--late Hayath Hussain, late Buden

Sab, and late Moideen Sab--and a daughter, late Smt.

Hurmathbi. Since late Moideen Sab died unmarried, under

Mohammedan Law, late Hayath Hussain and late Buden

Sab each became entitled to 2/5th share, and late Smt.

Hurmathbi to 1/5th share. On Buden Sab's death in 1970,

his 2/5th share devolved upon the plaintiffs, who are now

co-heirs and co-owners along with the defendants, in joint

and constructive possession of the suit properties. After

Chabumiya's death, the katha was first mutated in the

name of Hayath Hussain and later in the name of his wife,

Smt. Zaheerabi.

6. On 18.07.1997, the plaintiffs demanded

partition and allotment of their 2/5th share, but defendant

No.1 gave evasive replies. Upon obtaining certified copies,

the plaintiffs revealed that the katha had been transferred

to defendant No.1 based on an alleged Land Tribunal

grant. The plaintiffs contend that defendant No.1 was

never a tenant of the lands, and the Land Tribunal

proceedings, to which they were not parties, are neither

valid nor binding on them. The plaintiffs further submit

that late Hayath Hussain and Smt. Zaheerabi could not

have leased the entire property, as their entitlement

extended only to an undivided 2/5th share. As the suit

properties are situated near Chikmagalur City with

potential for non-agricultural conversion, the plaintiffs

seek a decree for partition and separate possession of

their 2/5th share, along with accounts and mesne profits.

7. Per contra the defendant No.1, in his written

statement admitted the relationship between the parties

and asserted that suit items No.1 and 2 originally

belonged to his father and were mortgaged to the PLD

Bank, Chikmagalur, in 1965. He contended that he and his

mother have been in continuous possession and

enjoyment of these properties. After the death of Hayath

Hussain, his wife and children were unable to cultivate the

lands, which were thereafter managed by one Manjappa,

who later made an unsuccessful ownership claim over suit

items No.1 and 2.

8. The defendant No.1, denied the possession or

enjoyment of the said properties by the plaintiffs and other

defendants. He further stated that he had no knowledge of

suit item No.3, while suit item No.4 belonged to Hayath

Hussain, purchased in the year 1930, and that he had

demolished the old structure thereon and constructed a

new building by borrowing a bank loan and investing his

own savings. He further contended that the suit is barred

by limitation, not properly valued and insufficiently

stamped with court fees, and therefore prayed for the

dismissal of the same.

9. The defendants No.2 to 6 filed a separate

written statement supporting the plaintiffs' claim and

sought their respective shares in the suit schedule

properties. The defendant No.10, who was subsequently

impleaded, filed his written statement denying ownership

of any of the suit properties and contended that the suit

suffers from misjoinder of parties.

10. Based on the pleadings, the trial Court has

framed following issues for consideration:-

(i) Whether the plaintiff prove that the suit schedule properties were belonging to late Chabumiya, after his death, his three sons and one daughter have inherited the same under Mohammedan law?

(ii) Whether the plaintiff proves that they are co-heirs and co-owners and in joint and constructive possession of the suit schedule properties along with defendants?

(iii) Whether the first defendant proves that, item No.1, 2 and 4 were belonging to his father and he is the absolute owner and in exclusive possession of the same?

(iv) Whether the first defendant proves that the suit is not properly valued and Court fee paid is insufficient?

(v) Whether the first defendant proves that the suit is barred by limitation?

(vi) Whether defendant No.10 proves that, this suit is bad for mis-joinder of un-

necessary parties?

(vii) Whether the plaintiffs are entitled for the partition and separate possession of their 2/5th share in all the suit schedule properties?

are also entitled for their un-divided 2/5th share in the suit schedule properties?

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(ix) Whether the plaintiffs are entitled for accounts and mesne profits as prayed for?

(x) What order or decree?

11. In order to substantiate his claim, the plaintiff

examined himself as PW-1 and got marked the documents

as per Exs.P1 to Ex. P13. On the other hand, the

defendants to substantiate their defense, defendant No.1

got himself examined as DW1 and got documents marked

as per Exs.D1 to D5.

12. The trial Court based on the pleadings, oral and

documentary evidence dismissed the suit with costs and

held that the plaintiffs and defendants No.2 to 8 failed to

prove they have got share over the suit schedule

properties. Hence, the plaintiffs were not entitled for the

relief of partition, accounts and mesne profits.

13. Assailing the said Judgement and decree of the

trial Court, the plaintiffs have preferred an appeal in

R.A.No.41/2012.

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14. The first appellate Court has framed following

issues for its consideration:-

1. Whether the plaintiffs prove that the suit schedule properties belonging to late Chabumiya, after his death, his three sons and one daughter have inherited the same under Mohammedan law?

2. Whether the plaintiff proves that they are co-heirs and co-owners and in joint and constructive possession of the suit schedule properties along with defendants?

3. Whether the first defendant proves that, item No.1, 2 and 4 were belonging to his father and he is the absolute owner and in exclusive possession of the same?

4. Whether the first defendant proves that the suit is not properly valued and Court fee paid is insufficient?

5. Whether the first defendant proves that the suit is barred by limitation?

6. Whether defendant No. 10 proves that, this suit is bad for mis-joinder of un-necessary parties?

7. Whether the plaintiffs are entitled for partition and separate possession of their 2/5th share in all the suit schedule properties?

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8. Whether the defendants No.2 to 8 are also entitled for their un-divided 2/5th share in the suit schedule properties?

9. Whether the plaintiffs are entitled for accounts and mesne profits as prayed for?

10. What order or decree?

15. The first appellate Court after considering the

facts and circumstances of the case held that the concept

of joint family property is not recognized under

Mohammedan Law, as co-owners are merely tenants in

common. No pleadings or evidence was produced showing

that the disputed property was purchased from joint family

funds or for joint family benefit. The plaintiffs also failed to

prove joint or constructive possession, as admissions

revealed long-standing separate residence, independent

ownership, and lack of contribution toward taxes or

construction expenses. Concluding that the plaintiffs had

not substantiated their claims and had filed the suit to

compel a compromise, the first appellate Court affirmed

the judgment of the trial Court dismissing the suit.

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16. The learned counsel for the appellant has raised

following substantial question of law for consideration of

this Court:-

(a) Whether on the basis of the revenue records mutated in the name of one of the sons (Hayath Hussain) after death of his Father (Chabumiya) can it be concluded that the other children of Chabumiya are not the inheritors of the estates of Chabumiya?

(b) When the properties held by one of the son (Hayath Hussain) in trust for himself and other legal heirs of Chabumiya, can the Respondent No.1 who is the son of Hayath Hussain make an application before the authority and obtain a grant order in LRF No.44/75-76 behind the back of the Appellant?

(c) Whether the court erred in not looking at the Exhibits P1 to P5 which were earlier marked and on the basis of which the Hon'ble Court had also passed Judgment and Decree in favour of the Appellant, which was subsequently set aside on the ground of Exparte and taken up again for fresh disposal. Whether is it not erroneous of not taking into account the Exhibits which were already marked earlier in the very same proceedings?

(d) Whether the burden of proof regarding the ancestral property fixed by the Hon'ble Court on the Plaintiff who is alleging

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Ancestral property is proper when there is settled principles of law that mere averments of ancestral property gives presumption of ancestral property and it is the party who is disputing the ancestral property should prove that the property is not ancestral property?

17. The learned counsel appearing for the

appellants that the Courts below failed to appreciate that

the property in question originally belonged to one Mr.

Chabumiya and upon his demise, Mr. Hayath Hussain,

being his eldest son, caused the revenue records to be

mutated in his name only for and on behalf of the legal

heirs of Mr. Chabumiya, holding the property in trust for

them. The mutation of revenue entries in the name of Mr.

Hayath Hussain did not extinguish or diminish the

hereditary rights of the other legal heirs of Mr. Chabumiya.

The Learned Judge further erred in concluding that

respondent No.1, Mr. Abdul Rehman, son of Mr.Hayath

Hussain, became the absolute owner of the property

pursuant to the Order passed in LRF No. 44/75-76,

without noting that such an order was obtained behind the

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back of these appellants, who have a lawful right, title,

and interest over the suit schedule property.

18. It is further contended that the Learned Judge

also failed to appreciate that the LRF proceedings initiated

by respondent No.1 were concealed from and conducted

without notice to the appellants. Hence, the same was

non-binding upon them. Further, it is contended that the

appellants had not established that their father,

Mr.Budden Sab, inherited the suit schedule property,

ignoring the presumption of ancestral ownership, which

the respondents failed to rebut. The documentary

evidence adduced by the appellants was overlooked by the

Courts below and arrived at an erroneous finding that the

suit schedule property was the self-acquired property of

respondent No.1. Furthermore, the documents relied upon

and produced by the respondents were fabricated and

concocted.

19. Heard learned counsel appearing for the

petitioner and perused the records.

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20. It is observed by the trial Court that the plaintiffs

and defendants No.2 to 8 failed to prove that they have

got share over the suit schedule properties. Hence, the

plaintiffs are also not entitled for the relief of partition,

accounts and mesne profits. The trial Court dismissed the

suit filed by the plaintiffs with costs, which is confirmed by

the first Appellate Court.

21. On hearing the submissions of the counsel for

the appellants, it appears that at the outset that this being

a second appeal, it is only substantial question of law

which gives raise for this Court to clutch the jurisdiction

and answer the said question of law as otherwise, this

Court would lack jurisdiction to entertain second appeal.

22. In view of the forgoing discussions, this Regular

Second Appeal lacks merit. Hence, Regular Second Appeal

is Dismissed.

Sd/-

(DR.K.MANMADHA RAO) JUDGE BNV