Karnataka High Court
Syed Habeeb vs T M Vijayakumar on 4 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:18993
RSA No. 2801 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.2801 OF 2007 (DEC/INJ)
BETWEEN:
1. SYED HABEEB
S/O.LATE ABDUL AZEEZ
SINCE DECEASED BY HIS LRs
1a. SMT. ZAHEEDA,
W/O LATE SYED HABIB,
AGED ABOUT 57 YEARS,
R/A KARUR VILLAGE,
DAVANAGERE TALUK.
1b. SYED MOIDIN BI,
D/O LATE SYED HABIB AKTHARUNNISA,
AGED ABOUT 39 YEARS,
R/A KARUR VILLAGE,
Digitally signed DAVANAGERE TALUK.
by RAMESH
MATHAPATI 1c. SYED ZUBAN,
Location: HIGH S/O LATE SYED HABIB
COURT OF AGED ABOUT 36 YEARS,
KARNATAKA
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
1d. SYED FATHIMA,
D/O LATE SYED HABIB
AGED ABOUT 35 YEARS
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
1e. SYED ANJUM
D/O LATE SYED HABIB
AGED ABOUT 33 YEARS
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
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RSA No. 2801 of 2007
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1f. SYED HAFEEZ
S/O LATE SYED HABIB
AGED ABOUT 32 YEARS,
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
1g. SYED MUSHTARI
D/O LATE SYED HABIB
AGED ABOUT 28 YEARS
R/A KAURU VILLAGE,
DAVANAGERE TALUK.
2. SYED ABDUL KHASIM
S/O.LATE ABDUL AZEEZ
AGED ABOUT 40 YEARS, AGRICULTURIST
R/O SANTEBENNUR VILLAGE
CHANNAGIRI TALUK.
3. AKTHARUNNISA
W/O IMAM HUSSAIN
SINCE DECEASED BY HER LRs
3a. ISHRATH UNNISA
D/O LATE AKTHARUNNISA
W/O D.H.K. RAHAMATHULLA,
AGED ABOUT YEARS
R/A VINOBHANAGAR
1ST MAIN, 8TH CROSS,
DAVANAGERE.
3b. FARHATH UNNISA
D/O LATE AKTHARUNNISA
W/O K.C.B. MAKBUL,
AGED ABOUT YEARS,
KTG NAGAR, 2ND MAIN, 4TH CROSS,
DAVANAGERE.
3c. SALLIMA UNNISA,
D/O LATE AKTHARUNNISA,
W/O MUNNAVAR SAB
AGED ABOUT YEARS,
R/ VINOBHANAGAR
3RD MAIN, 15TH CROSS,
DAVANAGERE.
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RSA No. 2801 of 2007
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3d. DASTAGIR
S/O LATE AKTHARUNNISA
AGED ABOUT YEARS
R/A YARAGUNTA, KARUR
DAVANAGERE.
3e. ZAKIR HUSSAIN
S/O LATE AKTHARUNNISA
AGED ABOUT YEARS
R/A SANTEBENNUR
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
3f. NAZREEN TAJ
D/O LATE AKTHARUNNISA
W/O ZAFFRULLA KHAN
1ST MAIN, 4TH CROSS,
SANTE MARKET, MALEBENNUR
DAVANAGERE DISTRICT.
4. NOORJAHAN
W/O.RAHAM SAB
AGED ABOUT 60 YEARS
R/O.KARUR VILLAGE,
DAVANAGERE TALUK.
5. SHA JAHAN
W/O YUNUS SAB, AGED ABOUT 47 YEARS
HOUSEHOLD, C/O.RESPONDENT NO.1 AT
KARUR VILLAGE IN DAVANAGERE TALUK.
...APPELLANTS
[BY SRI SHANTHA KUMAR N., ADVOCATE FOR
SRI M.S. RAJENDRA, ADVOCATE FOR APPELLANTS]
AND:
T.M. VIJAYAKUMAR
S/OT.M. SIDDARADHYA
SINCE DECEASED BY HIS LRs
1a. T.M. RAJEANDRA KUMAR,
S/O LATE T.M. VIJAY KUMAR,
AGED ABOUT 60 YEARS
NO.232/10, SHANTINIVAS,
OPP. TO OLD BUS STAND,
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RSA No. 2801 of 2007
HC-KAR
OPP. TO CANARA BANK, P.B.ROAD,
DAVANAGERE - 577 002.
1b. A.H. POORNIMA,
W/O A.H. ANANDA,
AGED ABOUT 56 YEARS,
NO.1340/7A, SUSHEELA SWAMY ANUGRAHA
SIDDALINGASWAMY COMPOUND
K.B. EXTENSION
DAVANGERE-577 002.
1c. T.M. SIDDALINGESHWARA
S/O LATE T.M. VIJAYAKUMAR,
AGED ABOUT 54 YEARS,
R/A NO.232/3, OPP. TO SOUTH,
INDIA OPTICALS,
MAHILA SAMAJA ROAD,
DAVANAGERE-577 002.
1d. T.M. NAGARATHNA,
D/O LATE T.M. VIJAYAKUMAR,
AGED ABOUT 52 YEARS,
NO.232/10, SHANTHINIVAS,
OPP. TO OLD BUS STAND,
OPP CANARA BANK,
P.B. ROAD, DAVANAGERE-577 002.
...RESPONDENTS
[BY SRI B.M. SIDDAPPA AND SRI T. BASAVARAJ ADVS FOR R1 (a-d)]
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT
& DECREE DATED 31.7.07 PASSED IN R.A.NO 177/02 ON THE FILE
OF THE ADDL. SESSIONS JUDGE, PRESIDING OFFICER, FAST TRACK
COURT I, DAVANAGERE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DTD 8.8.02 PASSED IN OS
597/96 ON THE FILE OF THE ADDL. CIVIL JUDGE, (JR.DN),
DAVANAGERE..
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.03.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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RSA No. 2801 of 2007
HC-KAR
CAV JUDGMENT
Challenging judgment and decree dated 31.07.2007 passed by Addl. Sessions Judge, Presiding Officer, Fast Track Court - I, Davanagere in RA no.177/2002, this appeal is filed.
2. Appellant was plaintiff in OS no.597/1996 filed for declaring plaintiff as absolute owner of Eastern portion of Sy.no.13/1, measuring 4 Acres 5 guntas of land situated at Karur village, Kasaba Hobli, Davanagere, ('suit property' for short) and for permanent injunction etc.
3. In plaint, it was stated Smt.Mehaboob Bi w/o Yakoob Sab was owner of land bearing Sy.no.13 totally measuring 13 Acres 37 guntas. After her death, it was divided by mutual agreement/oral partition between her two children, with extent of 8 Acres 10 guntas i.e. Syno.13/1 assigned to Syed Kasim Sab ('SKS', for short) and 5 Acres 27 guntas i.e. Sy.no.13/2 assigned to Syed Zainulabddin Sab ('SZ', for short). It was stated unequal partition was due to fact that SKS as elder brother shouldered responsibility of family and discharged debts. It was further stated since then, they were enjoying respective properties as absolute owners. -6-
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4. Thereafter, SKS had sold half portion to Matadashaksharappa ('MSS' for short) under registered Sale deed dated 29.05.1939. But, due to typographical error, measurement/extent sold to MSS was not mentioned, except stating that eastern half portion in Sy.no.13/1 was sold and western half portion measuring 4 Acres 5 guntas was retained by SKS.
5. It was stated, vide MR no.7/39-40 name of MSS was mutated on 30.05.1939, mentioning total measurement of Sy.no.13/1 and sale of half portion to MSS. After death of SKS, his children namely Syed Abdul Azeez, Syed Ahamed, Syed Abdul Gafoor, Syed Usuf and Syed Umar were in joint cultivation of their property until oral partition in 1982, wherein suit property was assigned to Abdul Azeez (plaintiff's father) as others were in government service. And in 1983, Abdul Azeez died leaving behind six children (plaintiffs herein) of whom plaintiffs no.4 to 6 - daughters were married and residing with their husbands, therefore plaintiffs no.1 to 3 - sons were in joint possession of suit property. It was stated, in year 1991, brothers of Abdul Azeez also executed Assignment Deed in -7- NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR favour of plaintiffs no.1 to 3. Thus, plaintiffs were absolute owners of suit property in which defendant claiming to have succeeded to ownership as grandson of MSS and son of Siddadharaiah. Therefore, revenue entries showing assignment of 6 Acres 38½ guntas in Sy.no.13/1 to ancestors of defendant were erroneous.
6. It was stated, even as per sale deed and partition between SKS and SZ, half share would not exceed 4 Acres 5 guntas. Same was sold by SKS. Applications were made to Tahsildar for rectifying entries. Taking advantage of same, defendant got converted extent standing in his name and began interfering. In meanwhile, Tahsildar, Davanagere initiated enquiry on applications and on 29.02.1996 passed order that property sold by SKS to MSS was 4 Acre 5 guntas renumbered as Sy.no.13/1A, and remaining extent measuring 4 Acres 5 guntas as Sy.no.13/1B. Consequently, conversion of excessive extent, interference with suit property belonging to plaintiffs and efforts for alienation of portion of suit property was illegal. Hence, suit was filed.
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7. On appearance, defendant filed written statement denying existence of suit property and its measurement. He admitted land bearing Sy.no.13 measuring 13 Acres and 37 guntas, situated at Karur village, belonged to Smt.Mehaboob Bi w/o Yakoob Sab and succeeded by her sons - SKS and SZ. He denied phodi of Sy.no.13 as Sy.no.13/1 and Sy.no.13/2 and plaintiff's claim about unequal shares in oral partition.
8. It was stated, after death of Smt.Mehaboob Bi, her two sons divided several properties under oral partition in year 1925 and Sy.no.13 was divided equally with SKS given Eastern half portion measuring 6 Acres 38½ guntas and SZ given Western half portion. It was stated, SKS had five children - Syed Abdul Azeez, Syed Ahamed, Syed Abdul Gafoor, Syed Usuf and Syed Umar.
9. It was stated, SKS and his two sons - Syed Abdul Azeez and Syed Ahamed had borrowed money from MSS by executing simple mortgage deed on 11.06.1928 to extent of 6 Acres 38½ guntas of Sy.no.13. In fact, mortgage was for family necessity. Thereafter, under registered sale deed dated 29.05.1939, SKS and his children sold 6 Acres 38½ guntas to -9- NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR MSS receiving consideration of Rs.1000/- and delivered possession by mentioning total extent of Sy.no.13 as 13 Acres 37 guntas and 'Eastern half portion' as demised property. Therefore, plaintiffs' claim about unequal partition was baseless. Thereafter, there was phodi and Sy.no.13/1 assigned to land purchased by name of MSS and remaining land assigned Sy.no.13/2.
10. And on death of MSS, his two sons namely TM Siddaradhya and TM Maheshwaraiah executed registered partition deed on 17.11.1951 wherein 6 Acres 38 ½ guntas was allotted to Siddaradhya. It was stated, during life time of Siddaradhya, he and his five sons - TM Jaydev, TM Vijaya Kumar (defendant), TM Shiva Kumar, TM Shashidharamurthy, and TM Niranjanmurthy executed registered partition deed on 26.09.1969, wherein defendant was allotted 6 Acres 38½ guntas. It was stated, said land was called "Khasim sahebara hola", as he was elder brother. It was stated, since SKS was well acquainted with family of defendant, his name was mentioned in respect of Western half portion instead of SZ, which was formal mistake. Moreover SKS was not alive on date of partition dated 26.06.1969. Thus, from date of partition,
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR defendant and his two children were possession by paying tax. It was stated property bearing Sy.no.13/1A measuring 6 Acres 38½ guntas was 'ws property'.
11. It was stated, Sy.no.13/1B measuring 1 Acre 11 guntas belonged to Syed Ibrahim Sab s/o Syed Zainulabdin. It was stated, Sy.no.13/2 was further divided into Sy.no.13/2A measuring 3 Acres 19 guntas and Sy.no.13/2B measuring 2 Acres 7 guntas and together they measured 6 Acres 37 guntas i.e. western half portion of Sy.no.13. And after sale of ws property, neither SKS nor his five children continued in possession. Hence, suit was not maintainable.
12. It was stated, defendant had got converted ws property for residential purposes and until 23.08.1995, there was no dispute about it. When defendant realized attempt to tamper revenue records, he filed application before Tahsildar. As plaintiffs also sought mutation, dispute arose. After enquiry, Tahsildar rejected plaintiff's application on 08.07.1996. Thereafter, without cause of action suit was filed. It was alternatively stated suit was barred by time, besides being bad
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR for non-joinder of necessary parties. On above grounds, sought for dismissal of suit.
13. Based on pleadings, trial Court framed following:
ISSUES
1. Whether the defendant proves that suit property is not in existence which measures 4 acres 5 guntas and which was alleged to be part of Sy.No.13 of Karur village?
2. Whether the plaintiff proves that defendant is claiming ownership of more than 4 acres 5 guntas in suit schedule land even though they have no right over the same?
3. Whether the defendant proves that Syed Khasim and his five sons sold the land bearing Sy.No.13 measuring 6 acres 38½ guntas to the said Shadakshraiah?
4. Whether the defendant proves that by registered partition deed date 26.06.69 defendant became the owners and in possession of Sy.No.13/1 measuring 6 acres 38½ guntas?
5. Whether the plaintiffs are entitled for declaration as sought for?
6. Whether the plaintiff is entitled for injunction as sought for?
7. What order or decree?
ADDITIONAL ISSUE
1. Whether the plaintiff proves that he is the owner of the suit schedule property?
14. Thereafter, plaintiff no.1 examined himself and two others as PWs.1 to 3 and got marked Exhibits P1 to P20, while
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR defendant examined himself as DW.1 and got marked Exhibits D1 to D37.
15. On consideration, trial Court answered issues no.1, 3 and 4 in negative; issues no.2, 5, 6 and addl. issue no.1 in affirmative and issue no.7 by decreeing suit holding plaintiffs as owners in possession of suit property and directing defendant etc. from interfering with their peaceful possession and enjoyment of suit property and also restraining from alienating any portion of suit property.
16. Aggrieved defendant filed RA no.177/2002. Based on contentions, first appellate Court framed following points:
1. Whether the plaintiffs/appellant have proved the existence of suit property and that, they are the absolute owner in possession of the suit property?
2. Whether the plaintiff/appellant have proved the alleged interference with their possession and enjoyment of suit property?
3. Whether the plaintiff/appellants are entitled to the relief of declaration and injunction as prayed for?
4. Whether the judgment and decree passed by the lower court is liable to be interfered with?
5. What order or decree?
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17. On consideration, it answered points no.1 to 3 in negative, point no.4 in affirmative and point no.5 by allowing appeal, setting aside trial Court decree and dismissing suit. Aggrieved plaintiffs are in second appeal.
18. Sri Shanth Kumar N, learned counsel appearing for MS Rajendra, advocate for plaintiffs submitted that appeal was against divergent findings in suit for declaration of title and permanent injunction. It was submitted suit property was part of original Sy.no.13 totally measuring 13 Acres 37 guntas, which belonged to Smt.Mehaboob Bi and same was not disputed by defendant. It was submitted, after her death, since SKS as elder member was managing family, discharged family debts, at time of oral partition, larger extent of 8 Acres 10 guntas was allotted to him and 5 Acres 27 guntas was allotted to SZ and mutations effected accordingly. Therefore, contention of defendants about equal partition was without basis. Further, Exs.P3, P4, P8, P9, P13 and P15 - RTC records from years 1970-71 to 1988-89 showed 5 Acres 27 guntas was allotted to SZ, while Exs.P5, P7, P10, P11 and P14 showed 8 Acres 10 guntas in Sy.no.13/1 was allotted to SKS.
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19. It was contended except stating eastern half portion of Sy.no.13/1, there were no recitals about extent sold in sale deed dated 29.05.1939 executed by SKS in favour of defendant's grandfather - MSS. Half extent of Sy.no.13/1 would be 4 Acres 5 guntas. Therefore, defendant's claim over 6 Acres 38½ guntas was not justified.
20. It was submitted, DW.1 admitted sale of eastern half portion of Sy.no.13/1 and non-mention of measurements in sale deed. He also admitted, he had no claim over remaining portion of land. On appreciation of same and consistent revenue records about unequal partition between children of Smt.Mehaboob Bi, and failure of defendant to establish that his grandfather purchased 6 Acres 38½ guntas, trial Court decreed suit. It also noted, despite sale on 29.05.1939, attempt for entering name of defendant in revenue records was made for first time in year 1985-86.
21. Without proper appreciation, first appellate Court erroneously interfered with judgment and decree of trial Court. It was submitted, first appellate Court mis-read boundaries mentioned in Ex.D1 - sale deed and Ex.D2 - partition effected
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR between MSS and his children in year 1951. Therefore, interference was illegal. It also failed to appreciate consistent revenue records produced by plaintiffs. Thus, judgment and decree passed by first appellate Court was contrary to material on record and therefore perverse, giving rise to substantial question of law. He prayed for answering them in favour of plaintiffs and allow appeal.
22. On other hand, Sri BM Siddappa, learned counsel for defendant submitted appeal was without merit. It was submitted, there was no dispute that Smt.Mehaboob Bi was absolute owner of property bearing Sy.no.13 measuring 13 Acres 37 guntas. But, plaintiffs claimed that in oral partition between children of Smt.Mehaboob Bi, SKS was allotted 8 Acres 10 guntas and SZ was allotted 5 Acres 27 guntas. It was submitted, defendant took specific contention about equal partition, allotment of 6 Acres 38½ guntas to SKS and its sale to MSS. And allotment of said extent to defendant's father in partition between children of MSS and to defendant in partition between defendant and his brothers.
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23. It was submitted, plaintiffs never disputed or challenged sale deed in favour of MSS. On other hand, failure to produce any material to establish oral partition was fatal to plaintiffs' claim. It was submitted, production of sale deed and partition deeds - Exs.D1 to D3 would establish defendant's title. While records of rights, encumbrance certificate, tax paid receipts and settlement of Aakarband as Ex.D14 to 16, D22 to 35 would establish possession. On other hand, plaintiffs failed to discharge even initial burden about unequal partition. It was submitted, contention of plaintiffs about failure to mention extent in Ex.D1 would not sustain as boundaries were mentioned and same would prevail. Moreover, sale deed described demised property as eastern half portion and as PW.1 admitted SKS sold his entire extent, there was no property remaining to substantiate plaintiffs' claim.
24. It was submitted, while passing judgment and decree, trial Court failed to appreciate above and held unequal partition based only on revenue entries, ignoring consistent revenue records from 1938 substantiating defendant's claim. Therefore, judgment and decree passed by trial Court was erroneous. But in appeal, first appellate Court dismissed suit
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR taking note of admissions of plaintiffs in cross-examination, documents produced and holding except revenue records, plaintiffs had not produced title documents to establish SKS was holding extent of land as claimed. It was submitted, first appellate Court noted western boundary description in Ex.D1 - sale deed, Exs.D2 and D3 - partition deeds, was mentioned as belonging to SZ (brother of SKS) to hold that SKS sold his entire share to plaintiff's grandfather and there remained no land as claimed by plaintiffs and therefore defendant was absolute owner. It held as against revenue records produced by plaintiffs, Ex.D1 - registered sale deed would prevail and rightly dismissed suit.
25. It was also submitted, after mutation of defendant's name in revenue records, he had got converted his entire extent for non-agricultural purposes. Failure to object to revenue entries or establish possession over suit property, would disentitle claim and suit was without cause of action. It was submitted SKS and his children were parties to Ex.D1. Their successors were therefore estopped from staking claim after lapse of decades. On above grounds, learned counsel
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR submitted no substantial question of law would arise for consideration and sought for dismissal.
26. Heard learned counsel, perused impugned judgment and decree and record.
27. This appeal is by plaintiff in suit for declaration and injunction challenging judgment and decree passed by first appellate Court reversing trial Court judgment and decree and dismissing suit. Appeal was admitted on 18.09.2014 to consider following substantial questions of law:
1. Whether the lower Appellate Court was justified in reversing the judgment of the trial Court?
2. Whether the judgment of the lower Appellate Court suffers from perversity?
28. Main ground of challenged is perversity of findings by first appellate Court. It is contended, plaintiffs' claim for declaration of their title over suit property was that in oral partition between SKS and SZ, extent of 8 Acres 10 guntas was allotted to SKS and out of same he sold half extent to MSS under Ex.P1 sale deed, thus he retained remaining half extent i.e. 4 Acres and 5 guntas. It is contended plaintiff's claim was supported by Exs.P3, P4, P8, P9, P13 and P15 - RTCs from
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR years 1970-71 to 1988-89 showing 5 Acres 27 guntas was allotted to SZ, while Exs.P5, P7, P10, P11 and P14 showed allotment of 8 Acres 10 guntas to SKS.
29. While passing judgment and decree, trial Court adverted to rival pleadings and evidence. It observed plaintiffs claimed to be owners of suit property after SKS sold half extent of land he got in oral partition with SZ and to prove same PW.1 deposed as per plaint averments. It also referred to documentary evidence of plaintiffs. From Ex.P1 - sale deed it observes even though exact extent was not mentioned, description of property sold as 'eastern half portion share of SKS' would indicate sale of 4 Acres 5 guntas in Sy.no.13/1 to MSS and not 6 Acres and 38 ½ guntas. It found corroboration in Exs.P13 and P14 - RTCs from 1970-71 to 1983-84 showing 5 Acres 27 guntas in name of SZ and Ex.P6 - Form no.5 showing 8 Acres 10 guntas in name of SKS. Even Exs.P7 and P8 - RTCs showed 8 Acres 10 guntas in Sy.no.13/1 in name of SKS. Based on above material, it holds purchase by MSS was not 6 Acres 38½ guntas and defendant's claim was doubtful and based on manipulated revenue records. It also draws adverse inference for records not showing extent of 6 Acres 38½ guntas in name
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR of SKS. It notes Ex.D2 (a) in Ex.D2 - partition deed showed only 38½ guntas was shown allotted to defendant's father. Likewise it notes, Ex.D3 (a) in Ex.D3 showed extent of Sy.no.13/1 as 6 guntas. It holds Exs.D4 to D6 showing extent of 8 Acres 10 guntas in name of MSS contradicting defendant's case to castigate them as manipulated. On above observations, suit was decreed.
30. In appeal, defendant filed application for additional evidence which was allowed and additional evidence recorded after challenge against said order was dismissed. Additional evidence led was to effect that 6 Acres 38½ guntas allotted to SZ in oral partition was partitioned between his two sons each taking 3 Acres 19¼ guntas under Partition Deed marked as Ex.D36. Even sale deed executed by one of sons selling his share to one Mariyappa was got marked as Ex.D37.
31. While passing impugned judgment and decree, first appellate Court refers to principle of law that entries in record of rights are not documents of title. It refers to admission by PW.1 that there was no document to prove oral partition and allotment 8 Acres 10 guntas to SKS and further, as plaintiffs
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR were seeking for declaration of his title, heavy burden lie on plaintiffs to prove allotment of unequal shares to SKS and SZ in partition. It noted basis for allotment of larger share to SKS was clearing of debts by SKS, but, PW.1 admitting ignorance about same. It observed in case of variation/inconsistency between oral and documentary evidence, latter would prevail. From pleadings and oral evidence, first appellate Court observes partition between SKS and SZ effected, share of SKS renumbered as Sy.no.13/1. And recitals in Ex.P1 showed Sy.no.13/1 was mortgaged in favour of MSS and due to inability to redeem, it was sold to MSS by receiving further consideration.
32. First appellate Court also noted, as per defendant's case, there was equal partition between SKS and SZ, eastern portion fell to share of SKS was renumbered as Sy.no.13/1 and western portion of SZ renumbered as Sy.no.13/2. And in 1928, SKS was in need of money mortgaged Sy.13/1 to MSS, unable to redeem it sold it to him. Thereafter, sons of MSS divided it in which 6 Acres and 38½ guntas fell to share of defendant's father in registered partition of 17.11.1951 and in later partition of 26.06.1969 fell to share of defendant. It noted
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR contents of Exs.P1, D2 and D3 were consistent in this regard. It observed appreciation of Ex.P1 by trial Court was erroneous. It observed that if as per plaintiffs half portion in share of SKS (eastern portion) were sold under Ex.P1, western boundary shown as property of SZ would not tally and reference to 'Khasim Sabana Hola' referred to 6 Acres 38½ guntas mortgaged with MSS. On perusal of another certified copy of partition deed (Ex.D2) produced at time of arguments as permitted, extent shown was 6 Acres 38½ guntas. It further noted Ex.P2 - sketch showed bifurcation of Sy.no.13 was in equal proportion and consequently concluding trial Court had committed error in appreciation of material on record.
33. It also observes there was improper appreciation of evidence led by defendant and admission in cross-examination about property of SKS lying on western side of his property would yield to documentary evidence i.e. Exs.D1 - sale deed, Exs.D2 and D3 - registered partition deeds. Based on above observations, it concluded entire extent fallen to share of SKS i.e. 6 Acres 38½ guntas was sold under Ex.P1 to MSS and there was no existence of suit property and proceeded to allow appeal and dismiss suit.
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34. Though re-appreciation of evidence is not permitted in an appeal under Section 100 of CPC, since substantial question of law required to be answered is about perversity of findings of first appellate Court, which in turn was on conclusion that there was improper appreciation of material on record by trial Court and there is divergence of finding between both Courts, a brief reference to material on record would appear necessary.
35. Suit was filed on assertion that Smt.Mehaboob Bi was owner of Sy.no.13 totally measuring 13 Acres 37 guntas. On her death it was unequally divided between her two sons with SKS taking 8 Acres 10 guntas and SZ taking 5 Acres 27 guntas (renumbered as Sy.no.13/2). And SKS selling half his portion i.e. 4 Acre 5 guntas to MSS and retaining remaining extent (suit property), which came to share of plaintiffs' father in oral partition with his siblings. It was alleged that without any right defendant began interfering with suit property.
36. While, defendant admitted Smt.Mehaboob Bi as original owner of Sy.no.13 measuring 13 Acre 37 guntas and partition between her sons, he asserted that partition was
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR equal and SKS sold his extent of 6 Acres 38½ guntas (ws property) to MSS, which was inherited by defendant's father and thereafter by defendant.
37. Above would indicate both plaintiffs and defendant claiming to be successors in title from SKS. There is no dispute about property allotted to SZ. Dispute is about extent SKS got in partition with SZ and extent sold under Ex.P1 - sale deed.
38. Plaintiff no.1 deposed as PW.1 I terms of plaint and produced sale deed by SKS to MSS as Ex.P1, Hissa Tippani showing division of Sy.no.13 as Sy.no.13/1 and Sy.no.13/2 as Ex.P2, RTCs showing Sy.no.13/2 belonging to SZ as Exs.P3 and P4, RTCs of 1951 to 1982 showing extent of Sy.no.13/1 as 8 Acres 10 guntas standing in name of SKS, as Exs.P5, P7, P10 and P11, Form no.5 showing extents of lands of SKS and SZ as Ex.P6, RTC of 1980-81 to 1984-85 showing Sy.no.13/1A measuring 8 Acres 10 guntas standing in name of defendant and another as Ex.P12, RTCs of year 1980-1981 to 1984-85 of Sy.no.13/2 as Ex.P13, RTCs of year 1970-71 to 1974-75 of Sy.no.13/1 and Sy.no.13/2 respectively as Exs.P14 and P15, RTC of year 1961-62 and 1962-63 showing 1 Acre 11½ guntas
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR in Sy.no.13/1A in name of MSS and 6 Acres 38½ guntas in Sy.no.13/1B in name of Shiddharadhya as Exs.P16 and 18, RTCs of year 1963-64 and 1964-65 showing 8 Acres 10 guntas in Sy.no.13/1 name of Shiddharadhya as Exs.P17 and P19 and Mutation Extract as Ex.P20.
39. In cross-examination, he admits oral partition between SKS and SZ was in 1925 and he had no documents to show SKS got 8 Acres 10 guntas in it. He admits not knowing particulars of family loan cleared by SKS. He admits not having RTCs, tax paid receipts to show name of SKS entered in revenue records. He admits that on 11.06.1928, his father, grandfather and uncle had mortgaged land bearing Sy.no.13, denies suggestion about extent mortgaged as 6 Acres 38½ guntas, but volunteers to state it was 4 Acres and 5 guntas. He admits that in Ex.P1 it is mentioned that half of land in Sy.no.13 was sold to MSS, but claims recital to be false. He admits on western side of land sold to MSS, there was land of SZ and on eastern side there was land of MSS. He also admits sons of SZ divided 6 Acres 38½ guntas equally. He admits his application before Tahsildar to enter his name to extent of 4
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR Acres 5 guntas in Sy.no.13 was rejected with liberty to approach Civil Court.
40. Resident of Karur village examined as PW.2, deposed that suit property was irrigated land measuring 4 Acres 5 guntas and in possession of plaintiffs. He states defendant's land is adjoining land of SZ. In cross-examination, he states partition in year 1938 was under registered partition deed and he had seen it. PW.3, deposed that extent of 8 Acres 10 guntas in Sy.no.13 was earlier in possession of SKS and SZ had 5 Acres 27 guntas and SKS sold 4 Acres 5 guntas to MSS and retained 4 Acres 5 guntas. He states extent sold by SKS to MSS was mentioned in sale deed as 4 Acres 5 guntas. He admits he is deposing at instance of plaintiffs.
41. Defendant deposed as DW.1 in terms of written statement averments and got marked sale deed dated 29.05.1939, partition deeds as Ex.D1 to D3, RTCs as Ex.D4 to Ex.D14, tax paid receipts as Ex.D15, Ex.D22 to D34, Encumbrance Certificate as Ex.D16, Applications to Tahsildar and notices as Ex.D17 to D21, Settlement/Akarband as Ex.D35. In cross-examination suggestion that in partition share allotted
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR to SKS was numbered as Sy.no.13/1 and that of SZ Sy.no.13/2. He admits he does not know whether 8 Acres 10 guntas was given to SKS and admits eastern half portion in Sy.no.13/1 was sold to SKS. He also admits suggestion that defendant had no right in remaining land of SKS which was not sold to MSS.
42. In additional evidence led in first appeal, DW.1 stated SKS had executed simple mortgage in favour of MSS on 11.07.1928, original deed was lost, certified copy showed extent mortgaged was 6 Acres 38½ guntas, while SZ was enjoying western half i.e. Sy.no.13/2 measuring 6 Acres 38½ guntas, which was shared by his two sons equally. He produced certified copy of partition deed dated 21.05.1966 between children of SZ as Ex.D36 and certified copy of sale deed dated 24.05.1969 executed by children of SZ as Ex.D37. In cross- examination, except suggesting that said documents were in respect of land bearing Sy.no.13/2 and not suit property, nothing material is elicited.
43. Though perversity is alleged, it is seen there is detailed examination of material and first appellate Court
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR arrived at conclusion by assigning sufficient reasons. When it is plaintiffs' case that SKS got larger share in partition since he had cleared family debts, he had to substantiate same. First appellate Court noted failure on this count. In fact, there is admission that he was unaware of debts.
44. His further admission about sale of half of land in Sy.no.13 to MSS, would also be directly contrary to his case. Though he claims recitals in Ex.P1 to be false, he admits on western side of land sold to MSS, there was land of SZ and on eastern side there was land of MSS. If eastern half of his share were sold to MSS, then land of SZ could not be western boundary. Apart from above, he admits sons of SZ divided 6 Acres 38½ guntas equally. Said admission would be fully in tune with case of defendant. Depositions of PWs2 and 3 would be unreliable for being contrary to material or beyond case of plaintiffs. Further, doubts entertained by trial Court about omission to mention Acres in Ex.D3 stood explained as copyist's error as another certified copy disclosed extent as 6 Acres 38 ½ guntas was partitioned by sons of SZ. And Ex.D36 and Ex.38 partition deed and sale deeds would indicate successors of SZ dealing with 6 Acres 38 ½ guntas. First appellate Court also
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NC: 2025:KHC:18993 RSA No. 2801 of 2007 HC-KAR dealt with admissions elicited from DW.1. It observed when compared with admission in pleadings and documentary evidence, oral admissions had to yield.
45. Thus, reasoning and findings of first appellate Court are based on proper appreciation of material on record. Therefore, substantial questions of law are answered as follows:
1. Whether the lower Appellate In affirmative Court was justified in reversing the judgment of the trial Court?
2. Whether the judgment of the In negative.
lower Appellate Court suffers from perversity?
46. In view of above, following:
ORDER Appeal is dismissed.
Sd/-
(RAVI V. HOSMANI) JUDGE Psg/AV/GRD