Karnataka High Court
Shri Appasab Hasansab Mulla vs Shri Meerasab Appasab Nadaf on 15 October, 2025
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NC: 2025:KHC-D:13959
RSA No. 5124 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 15TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 5124 OF 2008 (INJ)
BETWEEN:
1. SHRI APPASAB HASANSAB MULLA
AGE: 57 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR-591309, TQ. HUKKERI,
DIST. BELAGAVI.
SINCE DECEASED BY HIS LRS.
1A. SURYABI APPASAB MULLA
AGE: 60 YEARS, OCC. HOUSEHOLD,
R/O. SULTANPUR, TQ. HUKKERI,
DIST. BELAGAVI.
SINCE DECEASED BY HIS LRS.,
A1(B) TO A1(G) AS PER ORDER DATED 25.03.2024.
1B. IMTAJ APPASAB MULLA
AGE: 42 YEARS, OCC. AGRICULTURE,
YASHAVANT
NARAYANKAR R/O. SULTANPUR, TQ. HUKKERI,
DIST. BELAGAVI.
Digitally signed by
YASHAVANT
NARAYANKAR
Date: 2025.10.31 1C. HANIFA CHANDSAB KARAJAGI
15:14:49 +0530
AGE: 40 YEARS, OCC. HOUSEHOLD,
R/O. GHODAGERI, TQ. HUKKERI,
DIST. BELAGAVI.
1D. JAVED APPASAB MULLA
AGE: 38 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR, TQ. HUKKERI,
DIST. BELAGAVI.
1E. NISAR APPASAB MULLA
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NC: 2025:KHC-D:13959
RSA No. 5124 of 2008
HC-KAR
AGE: 36 YEARS, OCC. SERVICE,
R/O. SULTANPUR, TQ. HUKKERI,
DIST. BELAGAVI.
1F. RAMAJAN APPASAB MULLA
AGE: 34 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR, TQ. HUKKERI,
DIST. BELAGAVI.
1G. RESHMA KUTUBUDDIN SANADI
AGE: 32 YEARS, OCC. HOUSEHOLD,
R/O. BASAPUR, TQ. HUKKERI,
DIST. BELAGAVI.
...APPELLANT
(BY SRI. B.S. KAMATE, ADVOCATE)
AND:
1. SHRI MEERASAB APPASAB NADAF
AGE: 54 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR-591309, TQ. HUKKERI,
DIST. BELAGAVI.
2. SHRI MOHAMADSAB IMAMSAB NADAF
AGE: 49 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR-591309, TQ. HUKKERI,
DIST. BELAGAVI.
3. SHRI DASTAGIRSAB IMAMSAB NADAF
AGE: 47 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR-591309, TQ. HUKKERI,
DIST. BELAGAVI.
4. SHRI DADASAB IMAMSAB NADAF
AGE: 42 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR-591309, TQ. HUKKERI,
DIST. BELAGAVI.
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NC: 2025:KHC-D:13959
RSA No. 5124 of 2008
HC-KAR
5. SHRI GAJABARSAB IMAMSAB NADAF
AGE: 37 YEARS, OCC. AGRICULTURE,
R/O. SULTANPUR-591309, TQ. HUKKERI,
DIST. BELAGAVI.
5A. SAIDA GAJABARSAB NADAF
AGE: MAJOR, OCC. HOUSEHOLD,
R/O. BALOBAL, TQ. HUKKERI,
DIST. BELAGAVI.
5B. MOULA GAJABARSAB NADAF
AGE: MAJOR, OCC. AGRICULTURE,
R/O. BALOBAL, TQ. HUKKERI,
DIST. BELAGAVI.
...RESPONDENTS
(BY SRI. SHIVARAJ S. BALLOLLI, ADVOCATE FOR R1;
R2, R3, R4 , R5(A) AND R5(B)-NOTICE SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO CALL FOR THE RECORDS AND PROCEEDS OF THE CASE THIS
HON'BLE COURT BE PLEASED TO SET ASIDE THE JUDGMENT
AND DECREE DATED 30.08.2008 PASSED BY THE LEARNED
CIVIL JUDGE (SR.DN.) HUKKERI, IN R.A.NO.47/2007 AND
FURTHER THE JUDGMENT AND DECREE DATED 20.09.2007
PASSED BY THE LEARNED CIVIL JUDGE (JR.DN.) HUKKERI IN
O.S.NO.77/2006 MAY KINDLY BE CONFIRMED BY ALLOWING
THIS RSA WITH COSTS IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-D:13959
RSA No. 5124 of 2008
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI) Being aggrieved by the divergent findings of the Trial Court in O.S.No.77/2006 by the learned Civil Judge, Junior Division of Hukkeri dated 20.09.2007 and R.A.No.47/2007 dated 30.08.2008 by the learned Civil Judge, Senior Division, Hukkeri. The defendants are before this Court in second appeal under Section 100 of CPC.
2. The factual matrix of the case that is relevant for the purpose of this appeal is as bellow:
i) The plaintiff filed the suit for preemption to purchase the suit land from defendant Nos.1 to 5 and for consequential relief to direct defendant Nos.1 to 5 to execute registered sale deed in favour of the plaintiff by receiving ₹50,000/- towards the sale consideration.
ii) The suit schedule property is R.S.No.55/7 measuring 1 acre 5 guntas out of total extent -5- NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR of 1 acre 17 guntas situated at Sultanpur Village of Hukkeri Taluk. The plaintiff contended that he was the owner in possession of the adjoining lands and the suit schedule property was belonging to one Mohammadsab and his wife Rajama.
Defendant Nos.1 to 4 are the distant relatives of the plaintiff and knowing that colluding with defendant No.5, they created a bogus sale deed in favour of defendant No.5.
iii) The sale deed was executed on 23.09.2006 for a consideration of ₹50,000/-. The plaintiff being the cousin of defendant Nos.1 to 4, having the properties adjoining to the suit schedule property, has got first right of preemption as per their personal law.
iv) Therefore, the plaintiff expressed his intention immediately after the sale deed and conveyed his willingness and readiness to purchase the share of defendant Nos.1 to -6- NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR 4 in the suit schedule property. He expressed his intention to purchase the land and informed defendant No.5, the purchaser also. However, they did not respond in favour of the plaintiff and the personal request to execute the sale deed in favour of the plaintiff went in vain.
v) It is stated that such request was made on 27.09.2006 and 01.12.2006. Therefore, there was a cause of action for the plaintiff to file the suit for asserting his right of preemption and as such sought the above mentioned reliefs.
vi) Defendant Nos.1 to 3 and 5 appeared through their counsels and resisted the suit by filing written statement. The defendants contended that defendant Nos.1 to 4 are the owners in actual possession of the land measuring 1 acre 5 guntas and they were in need of money for their legal necessity and therefore, they offered to sell the same for -7- NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR valuable consideration of ₹50,000/- to defendant No.5 and such offer was known to everyone in the village including the plaintiff.
vii) Defendant No.5 agreed to purchase the same and accordingly, he being the only person who offered the highest price, they have executed the sale in his favour on 23.09.2006 and handed over the actual possession. It was further contended that the plaintiff has no preferential right to purchase the land, let alone the right of preemption. Inter alia, they also contended that other allegations made by the plaintiff are false and sought for dismissal of the suit.
3. On the basis of the above pleadings, the Trial Court framed the following issues:
"1) Whether the plaintiff proves that one Smt. Ameena w/o Hasan Nadaf, (2) Maktumbi w/o Abdul Nadaf, (3) Gous Rajesab Nadaf and (4) Meerasab Khadirsab Nadaf, have entered into contract with him to sell the suit property by -8- NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR executing the agreement of sale dated 4/1/1996?
2) Whether the plaintiff further proves that the defendant Nos. 1 to 4 knowing full well that they alone are not the absolute owner of the suit property, incollusion with defendant No.5, have created bogus and hallow sale deed in favour of defendant No.5?
3) Whether the plaintiff proves that the description of the suit property given in the plaint is true and correct?
4) Whether the plaintiff proves that he has right of pre-emption to purchase the suit land from defendants No.1 to 5?
5) Whether the defendants proves that the deft-5 is the bonafide purchase of the suit property?
6) Is suit undervalued for the purpose of Court fee as well as pecuniary jurisdiction of this court?
7) Whether the plaintiff proves that he is ever ready and willing to purchase the suit property from the defendants No.1 to 4 ?
8) Is suit not maintainable ?
9) Is plaintiff entitled for the suit reliefs?
10) To what order or decree?"
4. The plaintiff was examined as PW.1 and two witnesses were examined as PW.2 and 3. Ex.P.1 to Ex.P.4 were marked. Defendant No.3 was examined as DW.1 and defendant No.5 was examined as DW.2. Ex.D.1 to Ex.D.3 were marked. -9-
NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR
5. After hearing both the sides, the Trial Court answered issue Nos.2, 4, 6 to 9 in the negative, issue Nos.3 and 5 in the affirmative and by deleting issue No.1, dismissed the suit.
6. Being aggrieved, the plaintiff filed the first appeal in R.A.No.47/2007. The First Appellate Court heard the appearing parties and held that the plaintiff has a right of preemption and therefore, it reversed the judgment of the Trial Court by allowing the appeal and directed defendant Nos.1 to 5 to execute the sale deed in favour of the plaintiff. Being aggrieved, defendant No.5 is in appeal before this Court.
7. This Court while admitting the appeal, has framed the following substantial question of law for consideration on 25.07.2012.
"Whether the lower appellate Court has committed an error in decreeing the suit when the plaintiff has failed to establish and comply with the preemption?"
8. Learned counsel appearing for the appellant/defendant No.5 submits that the ingredients that are required for the purpose of asserting a right of preemption among Mahomedan's is settled. It is submitted that Articles 226,
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR 231, 232, 236 of Mahomedan law by Mullah, deal with the right of preemption. These Articles, read as below:
226. Pre-emption.-The right of shufaa or pre-
emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which had been sold to another person.
232. Sale alone gives rise to pre-emption- The right of pre-emption arises only out of a valid
(a), complete(b), and bonafide(c) sale. It does not arise out of gift(hiba), sadaqah (s.171), wakf, inheritance, bequest(d), or a lease even though in perpetuity(e). Nor does it arise out of a mortgage even though it may be by way of conditional sale(f); but the right will accrue, if the mortgage is foreclosed(g. ..."
236. Demands for pre-emption- No person is entitled to the right of pre-emption unless-
(1) He has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand): and unless (2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i- mowasibat had already been made(a), and has made a formal demand-
a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale(b), and
b) in the presence at least of two witnesses. This formality is called talab-i-ishhad (demand with invocation of witness)(d).
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR
9. Thus, the learned counsel appearing for the appellant submits that the evidence on record do not show that the relevant legal requirements, especially Article 236 are not complied by the plaintiff. He submits that the relationship between the plaintiff and the defendants that they are distant relatives is not disputed by defendant Nos.1 to 4. However, it is his contention that the right of preemption under Mahomedan law has to be exercised diligently and meticulously. In this regard, he relies on the judgment of this Court in the case of Maheboobsab Buransab Maniyar and others vs. Mohadinsab Maheboobsab Maniyar and others1 and draws the attention of this Court to paragraph Nos.26 and 27 which read as below:
"26. Therefore it is clear that when a Muslim wants to enforce the pre-emptive right that is conferred on him by the custom, the requirement prescribed under the custom is to be strictly followed. The essence of this pre-emptive right is firstly he must express his intention to purchase the property immediately on receiving the information of the sale. Then he has to follow such communication by making a demand to the purchaser or seller in the presence of two witnesses. It is only if such a demand is not complied with, a cause of action arises 1 ILR 2012 KAR 1192
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR for him to file a suit within a period of one year from the date of sale enforce the right of pre-emption. This is the requirement prescribed in the custom. Therefore when the customary right is sought to be enforced in a Court of law, all the prescriptions of the custom have to be meticulously followed.
27. In the instant case, neither in the pleadings nor in the evidence of the plaintiffs it is stated that they made a demand to the defendants in the presence of two witnesses. On the contrary, their specific case is that after making known their intention, when the defendants did not come forward to execute the sale deed, they issued legal notice containing the demand to execute the sale deed and for that sale deed they have taken the signature of two witnesses who are examined in the case as P.Ws-2 and 3. This according to them satisfies the requirement of making a demand in presence of two witnesess and therefore the plaintiffs were entitled to a relief enforcement of their pre-emptive right of specific performance. As set out above, unless a demand is made to the purchaser or the seller in the presence of two witnesses, the second mandatory requirement prescribed under the custom is not fulfilled and issue of legal notice after getting two witnesses attesting their signature to the same cannot be construed as substitute for such requirement in custom. In fact, the two witnessess who are examined in this case have categorically stated that they have not seen the first defendant. In their cross-examination they have categorically stated that they requested the seller not to sell the property. But after sale, they have not played any role at all except attesting the legal notice, which as stated earlier does not satisfy the customary requirement. Though in the examination-in-chief, it is stated that it is in their presence the plaintiffs requested the defendants to execute the sale deed by accepting Rs. 1 lakh as consideration, a perusal of
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR examination-in-chief of both P.Ws-2 and 3 shows that it is identical prepared by the Counsel and in the cross-examination, both of them have categorically stated that they are not acquainted with the first defendant at all. In fact, the plaintiffs in their evidence have stated that they ever made any demand in the presence of those two witnesses demanding execution of the sale deed. Therefore, the Trial Court on careful consideration of the aforesaid oral evidence on record has rightly held that this requirement of custom is not fulfilled which is a condition precedent for enforcing of pre-emptive right and in the absence of such condition not being complied with, the plaintiffs are not entitled to the relief of enforcement of specific performance of the pre-emptive right set up by them."
10. Further he also draws the attention of this Court to the judgment of this Court in Shri Jamaluddin Shileman Mulla and others vs. Shri Babasaheb Fakruddin Mulla and another2 where the reliance was placed on the judgment in the case of Mahaboobsab referred (supra).
11. It is pertinent to note that this Court in the judgment of Maheboobsab, (supra) had placed reliance on the judgment of the Hon'ble Apex Court in Smt. Mattoodevi vs. Damodarlal (D)3 wherein it was held as bellow:
2
R.S.A No.190/2007 dated 22.07.2024 3 Appeal (Civil) 5816/1994, decided on 18.07.2001
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR "The principle of talab in Mohammadan Law has three specific facets : the first being talab-e muwthaba; Talab in common parlance means and implies a demand and talab-e muwthaba literally means the demand of jumping. The idea is of a person jumping from his seat, as though started by news of the sale. In Talab-e-muwathaba the pre-emptor must assert his claim immediately on hearing of sale though not before and law stands well settled that any unreasonable delay will be construed as an election not to pre-empt. The second, being popularly known as the Second Demand, is talab-e-ishhad, which literally speaking mean and imply the demand which stands witnessed. The Second demand thus must be in reference to the first demand and it is so done in the presence of two witnesses and also in the presence of either the vendor (if he is in possession) or the purchaser and the Third Demand though not strictly a demand but comes within the purview of the Principal and means initiation of legal action. It is however not always necessary since it is available only when one enforces his right by initiation of a civil suit such an action is called talab-e tamlk or talab-e or talab-e Khusmat. In this form of Talab the suit must be brought within one year of the purchaser taking possession of the property and a suit of claim for pre-emption must relate to whole of the interest and not part of the estate.
Needless to record that right of pre-emption (shufa) is the right which the owner of immovable property possesses to acquire by purchase of any immovable property which had been sold to another person."
12. From the perusal of the above precedents and the provisions of the Mahomedan law, it is clear that the person who
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR asserts his right of preemption has to make the demand twice. The talab-e-muwthaba and talab-e-ishhad is the demand with in the presence of witness. These two are essential ingredients of asserting the right of preemption. The first demand has to be made immediately after the sale takes place and the second demand should be in the presence of two witnesses and is communicated to the seller or the purchaser. These two witnesses play a vital role in compliance of the requirements of the right of preemption.
13. In this background, when the evidence on record is perused, it is evident that PW.2 and PW.3 though appeared before the Trial Court, were not offered for cross-examination. Therefore, their evidence is incomplete and rightly, it was discarded by the Trial Court. It is pertinent to note that the evidence of the two witnesses, in whose presence the plaintiff has made a demand of preemption not being available on record, the Trial Court was justified in decreeing the suit.
14. It is relevant to note that the testimony of PW.1/plaintiff also do not show that the demand was made by him in the presence of the two witnesses. He only speaks of making the demand and waited for defendant Nos.1 to 5 to
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR execute the sale deed. Therefore, the testimony of PW.1 also falls short of the requirement of law that such demand has to be made in the presence of two witnesses.
15. The perusal of the plaint also do not show as to in whose presence, he had made the demand to defendant Nos.1 to
5. Therefore, it is evident that an essential requirement of exercising the right of preemption has not been fulfilled either by the pleadings, the testimony of PW.1 or by adducing evidence of any of such two witnesses.
16. In that view of the matter, when the plaintiff had failed to establish that the customary right of preemption was not urged by him in the presence of two witnesses. It is clear that the First Appellate Court has committed an error in decreeing the suit. Thus, the substantial question of law framed by this Court has to be answered in the affirmative.
17. As a consequence, the judgment of the First Appellate Court is not sustainable in law. The Trial Court had rightly dismissed the suit of the plaintiff. For these reasons, the appeal succeeds and as such it has to be allowed.
18. A perusal of the records would reveal that pursuant to the decree passed by the First Appellate Court, the plaintiff
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NC: 2025:KHC-D:13959 RSA No. 5124 of 2008 HC-KAR had deposited a sum of ₹50,000/- before the Trial Court. The said deposit has to be ordered to be refunded to the plaintiff.
19. For the aforesaid reasons, the following order is passed:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 30.08.2008 in R.A.No.47/2007 passed by the learned Civil Judge, Senior Division, Hukkeri is hereby set aside by confirming the judgment and decree dated 20.09.2007 in O.S.No.77/2006 passed by the Civil Judge, Junior Division, Hukkeri.
iii) In view of disposal of the appeal, pending interlocutory application, if any, do not survive for consideration and are disposed off accordingly.
iv) The amount deposited by the plaintiff before the Trial Court is ordered to be refunded to him.
SD/-
(C M JOSHI) JUDGE SSP CT:PA LIST NO.: 1 SL NO.: 61