Karnataka High Court
Mr A Nissar Ahamed vs Mr Mohamed Amanulla on 16 January, 2025
Author: K.Somashekar
Bench: K.Somashekar
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RFA No. 1744 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.1744 OF 2016 (PAR)
BETWEEN:
1. MR. A. NISSAR AHAMED
S/O. LATE ABDUL AZEEZ
SINCE DEAD, REPRESENTED BY HIS
LEGAL REPRESENTATIVES:
1(A) MS. ASHRAF UNNISA
W/O. LATE A. NISSAR AHMED
AGED ABOUT 70 YEARS
RESIDING AT GAFFAR KHAN MOHALLA
M. G. ROAD, WEST SRINIVASAPURA
KOLAR - 563 135.
1(B) MS. NADEEM UI IRFAN
S/O. LATE A. NISSAR AHMED
Digitally signed by AGED ABOUT 44 YEARS
MOUNESHWARAPPA
NAGARATHNA RESIDING AT GAFFAR KHAN MOHALLA
Location: HIGH
COURT OF M. G. ROAD, SRINIVASAPURA
KARNATAKA
KOLAR - 563 135.
1(C) MS. SADIYA TABASUM
D/O. LATE A. NISSAR AHMED
AGED ABOUT 41 YEARS
RESIDING AT SRINIVASAPURA
KOLAR - 563 135.
2. MR. A. NAZEER AHAMED
S/O. LATE ABDUL AZEEZ
AGED ABOUT 66 YEARS.
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RFA No. 1744 of 2016
3. MR. A. MUSHIR AHAMED
S/O. LATE ABDUL AZEEZ
AGED ABOUT 61 YEARS.
4. MS. SHAMSHED BEGUM
W/O. SIRAJUDDIN
D/O. LATE ABDUL AZEEZ
AGED ABOUT 51 YEARS.
APPELLANT NOS.2 TO 4 ARE
RESIDING AT GAFFAR KHAN MOHALLA
SRINIVASAPURA TOWN
KOLAR - 563 136.
5. MS. GULZAR BAGUM
W/O. AZARULLA SHARIEF
D/O. LATE ABDUL AZEEZ
AGED ABOUT 55 YEARS
RESIDING AT SIDLAGHATTA TOWN
CHIKKABALLAPUR - 561 207.
...APPELLANTS
[BY SRI CHETHAN, ADVOCATE, FOR SRI NISHANTH A.V., FOR
A-1(A TO C)]
AND:
1. MR. MOHAMED AMANULLA
S/O. LATE ABDUL AZEEZ
SINCE DEAD, REPRESENTED BY HIS
LEGAL REPRESENTATIVES:
1(A) MS. ROOHI SULTANA
W/O. ABUBAKAR SIDDIQUE
D/O. LATE MOHAMED AMANULLA
AGED ABOUT 45 YEARS
RESIDING AT NO.1014/44
38TH CROSS, 26TH MAIN
4TH T BLOCK, JAYANAGAR
BENGALURU - 560 041.
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RFA No. 1744 of 2016
1(B) MS. SAHEKHA SULTANA
W/O. HABEEB SHARIFF @ BIYAZ SHARIFF
D/O. LATE MOHAMED AMANULLA
AGED ABOUT 43 YEARS
RESIDING AT NEXT TO
KARNATAKA BANK LIMITED ATM
CHINTAMANI ROAD, SRINIVASAPUR
KOLAR - 563 135.
1(C) MS. SHAISTHA RUVEEM
W/O. M. RUVEEM
D/O. LATE MOHAMED AMANULLA
AGED ABOUT 39 YEARS
RESIDING AT NO.6/6, 1ST MAIN ROAD
S. K. GARDEN, BENSON TOWN
BENGALURU - 560 046.
1(D) MS. FARHANAZ
W/O. HAKEEM ASSARI
D/O. LATE MOHAMED AMANULLA
AGED ABOUT 37 YEARS
RESIDING AT NO.124
GAFFAR KHAN MOHALLA
CHINTAMANI CIRCLE, SRINIVASAPUR
KOLAR - 563 135.
2. MR. ARSHAD MUKHTAR
S/O. MUKHTAR AHAMED
AGED ABOUT 49 YEARS
RESIDING AT MANOORA
P.B. NO.4516
THANISANDRA MAIN ROAD
THANISANDRA
BENGALURU - 560 045.
...RESPONDENTS
(BY SRI V. B. SHIVAKUMAR, ADVOCATE, FOR R-2,
SRI H. S. SUHAS, ADVOCATE, FOR R-1(A TO D), &
VIDE ORDER DATED 24/8/2022, APPEAL ABATES QUA R-1)
***
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RFA No. 1744 of 2016
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER XLI
RULES 1 & 2 READ WITH SECTION 96 OF THE C.P.C. AGAINST THE
JUDGMENT AND DECREE DATED 20.08.2016 PASSED IN O.S. NO.356
OF 2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE,
KOLAR, DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS REGULAR FIRST APPEAL IS COMING ON FOR HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T.
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed challenging the judgment and decree dated 20-8-2016 passed by the Court of Principal Senior Civil Judge, Kolar, in Original Suit No.356 of 2014.
2. For the sake of convenience, the parties are hereinafter referred to as per their rankings before the trial Court. The appellants are the plaintiffs and the respondents are the defendants.
3. Plaintiffs filed a suit against the defendants for partition and separate possession in respect of the suit schedule property. It is the case of the plaintiffs that, the plaintiffs and the first defendant are the children of Late Abdul Azeez.
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4. Late Abdul Azeez had two wives, namely Kairunnissa and Rahamathunnisa. The first wife, Kairunnissa, had only one son, i.e., the first defendant, whereas, the second wife, Rahamathunnisa, had three sons and two daughters, i.e., the plaintiffs. Plaintiffs and the first defendant are the owners in possession of the suit schedule property bearing Survey No.21 measuring 7.05 acre situate at Boyi Nachapalli Village, Kasaba Hobli, Srinivasapur Taluk, as tenants in common. The suit schedule property was acquired by the father of the plaintiffs and the first defendant i.e., Late Abdul Azeez, under a registered sale deed dated 1-11-1961 from its previous owner/vendor, Mohammed Ghouse @ Sabusab. Since then, the property is in possession of the father of the plaintiffs and the first defendant, and all revenue records entries are in his name. The suit schedule property was acquired by the plaintiffs and the first defendant under Pavathivarsu from their father, Late Abdul Azeez, and katha was transferred in the name of the first defendant with the consent of the plaintiffs.
5. It is the contention of the plaintiffs that the first wife of Late Abdul Azeez, i.e. Kairunnissa died in the year 1949, the -6- NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 father of the plaintiffs and the first defendant, Abdul Azeez, died in the year 1979 and the second wife of Late Abdul Azeez i.e. Smt. Rahamathunnisa died in the year 2000. The plaintiffs and the first defendant are the only legal heirs to Late Abdul Azeez and thus, they succeeded to the schedule property. Plaintiff Nos.4 and 5 are the married sisters of plaintiff Nos.1 to 3 and the first defendant. Plaintiffs and the first defendant are residing separately. However, they are enjoying the schedule property as tenants in common. Late Abdul Azeez, the father of the plaintiffs and the first defendant, did not sell the schedule property to any person. Hence, it is liable to be divided among the plaintiffs and the first defendant equally. Prior to the initiation of the suit, the plaintiffs requested the first defendant to make partition. However, the first defendant obstructed the plaintiffs in entering the schedule property and joint possession and enjoyment over the schedule property. Further, the second defendant obstructed joint possession and enjoyment of the plaintiffs and the first defendant, the plaintiffs resisted the same and at that time, the second defendant disclosed the execution of the sale deed dated 8-2-2007 in his favour by the first defendant. In this regard, the plaintiffs questioned the act -7- NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 of the first defendant. However, the first defendant gave an evasive reply. Therefore, the plaintiffs constrained to file the suit for partition and separate possession in respect of the schedule property.
6. After initiation of the suit, the first defendant was placed ex parte and the second defendant filed his written statement denying the claim of the plaintiffs as false and has taken the contention that the first defendant conveyed his absolute right, title and interest over the schedule property in his favour under the sale deed dated 8-2-2007 for valuable consideration. Further, the suit is barred by law of limitation. Hence, defendant No.2 prayed for dismissal of the suit.
7. The trial Court, based on the pleadings of the parties, framed the following issues:
1. Whether the plaintiffs prove that they and defendants are enjoying the schedule property as tenants in common?
2. Whether the plaintiffs prove that they are in possession of schedule property and there was an attempt of interference by the defendants?-8-
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3. Whether the 2nd defendant proves that he is the bonafide purchaser of the schedule property for valuable consideration?
4. Whether the plaintiffs are entitled to plaint reliefs?
5. What order or decree?
8. The plaintiffs, in support of their case, examined on oath as PWs.1 to 4 and got marked Exs.P1 to P9. Defendant No.2 examined himself on oath as DW2, but no documents were marked.
9. The trial Court, after considering the oral and documentary evidence on record, answered issue Nos.1, 2 and 4 in negative, issue No.3 in the affirmative and consequently, dismissed the suit of the plaintiffs with costs.
10. Aggrieved by the judgment and decree passed by the trial Court, the plaintiffs have prepared this appeal.
11. Heard Sri Chethan, learned counsel representing Sri Nishanth A.V., learned counsel for accused Nos.1 (A to C), and Sri V.B. Shivakumar learned counsel for respondent No.2. -9-
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12. Learned counsel for the appellants/plaintiffs has contended that the plaintiffs are the children of Late Abdul Azeez and Late Rahamathunnisa and in order to substantiate their contention, plaintiff No.1 relied upon genealogical tree, Transfer Certificate, Election ID Card and Ration Card vide Exs.P1, P7, P8 and P9 respectively. These documents clearly establishes that the name of the plaintiffs' father as Abdul Azeez. The trial Court without examining these documents mechanically dismissed the suit of the plaintiffs. Further, Exs.P8 and P9 are public documents which come within the purview of Section 74 of the Indian Evidence Act, 1872. These legal aspects have not been considered by the trial Court. Further, the trial Court has failed to consider the fact that the first defendant being one of the legal heirs of Late Abdul Azeez has remained ex parte. However, the second defendant being an outsider has questioned the relationship of the plaintiffs and the first defendant on untenable grounds. Without rejecting such plea of the second defendant, the trial Court proceeded to dismiss the suit based on illogical consideration.
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13. Learned counsel has further contended that, the trial Court has not considered the oral and documentary evidence of the plaintiffs and also testimonies of PWs.3 and 4, who are independent witnesses. They were well aware of the background of the family members of Late Abdul Azeez and the plaintiffs. Further, the trial Court has not considered the aspect that Ex.P2-Mutation Register, wherein the fact that the plaintiffs being the children of the second wife of Abdul Azeez have given consent for the said entry is clearly and categorically recorded. Ex.P2 is also a public document. The trial Court ought to have considered the evidentiary value of Ex.P2. The trial Court has erroneously held that the plaintiffs have not made out any grounds and they have not made any complaint against the first defendant in respect of the suit schedule property. Further, as soon as the plaintiffs possession were interfered by the second defendant, they made necessary enquiries and thereupon came to know about the alleged execution of sale deed in favour of the second defendant by the first defendant, without the consent of the plaintiffs. Therefore, the plaintiffs made a demand for their share in the schedule property to the first defendant. As no response was given by
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 the first defendant, the plaintiffs filed the suit for partition for their legitimate share. The second defendant failed to examine the mode of acquisition of title by the first defendant and this aspect has not been considered by the trial Court. The trial Court has not at all considered the pleadings of the parties and their evidence in proper perspective and dismissed the suit of the plaintiffs without any basis. Thus, on these grounds, he prayed to allow the appeal.
14. Learned counsel for respondent No.2/defendant No.2 has taken the contention that the trial Court, after considering the oral and documentary evidence on record, has dismissed the suit of the plaintiffs, which calls for no interference by this Court. He further contended that respondent No.2 has disputed the relationship between the plaintiffs and the first defendant and their alleged possession over the suit schedule property. Thus, he prayed to dismiss the appeal.
15. Learned counsel for defendant No.2 has relied upon the following judgments:
i. Rajasthan State Road Transport Corporation and Another v. Bajrang Lal, (2014) 4 SCC 693
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 ii. Biswanath Prasad and Others v. Dwarka Prasad and Others, AIR 1974 SC 117 iii. Bhaurao Dagdu Paralkar v. State of Maharashtra and Others, (2005) 7 SCC 605 iv. Paramesh and Another v. S. Hanumantharayappa and Another, (2012)(2) AIR Kar R 289 v. Dolgobinda Paricha v. Nimai Charan Misra and Others, AIR 1959 SC 914 vi. Smt. Puttasiddamma and Others v. Siddaraju and Others, 2015 (2) KCCR 1368 vii. Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Another, AIR 2014 SC 932 viii. V. R. Kamath v. Divisional Controller, Karnataka State Road Transport Corporation and Others, AIR 1997 Karnataka 275 ix. Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others, AIR 2013 SC 58 x. Union of India and Others v. Vasavi Co-op. Housing Society Ltd. and Others, AIR 2014 SC 937 xi. Municipal Corporation, Gwalior v. Puran Singh alias Puran Chand and Others, AIR 2014 SC 2665
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 xii. State of A. P. and Others v. M/s. Star Bone Mill and Fertiliser Co., 2013 (3) KCCR SN 252 (SC) xiii. Sri Prakash v. Smt. Doddathayamma and Others, 2014 (4) KCCR 2967.
xiv. Ram Suresh Singh v. Prabhat Singh Alias Chhotu Singh and Another, (2009) 6 SCC 681.
xv. Narbada Devi Gupta v. Birendra Kumar Jaiswal and Another, (2003) 8 SCC 745.
xvi. Selvi J. Jayalalitha and Others v. State, by the Superintendent of Police, Vigilance and Anti-Corruption Special Investigation Cell, Chennai, 2015 (2) KCCR SN
182.
APPRECIATION OF LAW AND ANALYSIS
16. At the outset, we may remind ourselves of the observations made in regard to personal laws by Hon'ble Sri Justice J.S. Khehar, the then Chief Justice of India, in his dissenting judgment in Shayara Bano v. Union of India and Others1, wherein the Hon'ble Apex Court at paragraph Nos.240 and 322 has held as under:
1
(2017) 9 SCC 1
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 "240. xxx xxx xxx Reference was also made to the definition of the term Personal Law in Conflict of Laws 188 (7th Edn., 1974) by R.H. Graveson, who defined the term as under:
"The idea of the Personal Law is based on the conception of man as a social being, so that those transactions of his daily life which affect him most closely in a personal sense, such as marriage, divorce, legitimacy, many kinds of capacity, and succession, may be governed universally by that system of law deemed most suitable and adequate for the purpose."
(emphasis in original)
322. "Personal law" has a constitutional protection. This protection is extended to "Personal Law"
through Article 25 of the Constitution. It needs to be kept in mind that the stature of "Personal Law"
is that of a fundamental right. The elevation of "Personal Law" to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, "Personal Law" of every religious denomination is protected from invasion and breach, except as provided by and under Article 25."
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17. Mohammedan Law, being the personal law, possesses its own legal principles and regulations which govern family relationships in matters such as marriage, divorce, inheritance, custody and guardianship. Its distinctive feature sets it apart from other personal laws on fundamental issues. It is pertinent to examine the legal principles, if any, governing partition under Mohammedan law.
18. Tahir Mahmood, in his book, 'The Muslim Law of India', 2nd Edition, Chapter 12 (Law of Inheritance) Paragraph II, has provided for various concepts related to succession in Muslim Law which distinguish it from other personal laws:
"II. Muslim Law-Concepts known and unknown:
1. The Muslim law of succession is basically different from the parallel indigenous systems of India. The doctrine of janmswatvavada (right by birth), which constitutes the foundation of the Mitakshara law of succession, is wholly unknown to Muslim law. The law of inheritance in Islam is relatively close to the classical Dayabhaga law, though it differs also form that on several fundamental points. The modern Hindu law of succession (as laid down in the Hindu Succession
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 Act, 1956) is, however, much different from both the aforesaid classical systems; it has a remarkable proximity, in certain respects, to the Muslim law of inheritance.
2. The division of heritage (daya) into sapratibandh ('obstructed') and apratibandh ('unobstructed')- self-acquired and ancestral- is equally foreign to Muslim law. Whatever property one inherits (whether from his ancestors or from others) is, at Muslim law, one's absolute property- whether that person is a man or a woman.
3. In Muslim law, so long as a person is alive he or she is the absolute owner of his or her property; nobody else (including a son) has any right, whatsoever, in it. It is only when the owner dies- and never before- that the legal rights of the heirs accrue. There is, therefore, no question of a would be- heir dealing in any way with his future right to inherit.
4. The Indian legal concepts of 'joint' or 'undivided' family, 'coparcenary', karta, 'survivorship', and 'partition', etc., have no place in the law of Islam. A father and his son living together do not constitute a 'joint family'; the father is the master of his property; the son (even if a minor) of his, if he has
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 any. The same is the position of brothers or others living together.
5. Unlike the classical Indian law, female sex is no bar to inherit property. No woman is excluded from inheritance only on the basis of sex. Women have, like men, right to inherit property independently, not merely to receive maintenance or hold property 'in lieu of maintenance'. Moreover, every woman who inherits some property is, like a man, its absolute owner; there is no concept of either stridhan or a woman's 'limited estate' reverting to others upon her death.
6. The same scheme of succession applies whether the deceased was male or a female. This is one of those salient features of Muslim law of succession which distinguish it from modern Hindu law of inheritance."
(Emphasis supplied)
19. The position on devolution of property under Mohammedan Law has been succinctly captured in Chapter 22- Law of Succession and Inheritance of Mulla on Mohammedan Law 5th Edition in the following terms: "all properties devolve by succession, so the rights of heirs come into existence only on the death of the ancestor. The whole property vests in
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 them." The Mohammedan Law has well defined rules of inheritance that come into effect upon the death of the ancestor, and its policy has been to restrain the owner from interfering in such well-defined rules. Transfer of property, if required to be made during the lifetime of a person, they may do so primarily by way of gift (hiba). Other methods include the writing of a Will, but even therein certain restrictions have been postulated.
20. Prior to looking to the above said sources, a general understanding of partition would also be instructive. Advanced Law Lexicon2 defined partition as a separation between joint owners or tenants in common of their respective interests in land, and setting apart such interest, so that they may enjoy and possess the same in severalty. In Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna and others3, partition was defined at paragraph Nos.5 and 6 as under:
2
P Ramanatha Aiyar 3rd Edition Reprint 2009 3 (2009) 9 SCC 689
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 "5. "Partition" is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.
6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co- owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother."
(Emphasis supplied)
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21. Let us now turn to the position as it is under Mohammedan Law. The right of an heir-apparent comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir, if he survived the ancestor as per the Mulla Principles of Mohammedan Law.
22. In view of the aforesaid proposition, let us now turn our attention to the next question arising for adjudication, i.e. the claim of the plaintiffs that they are the children of Abdul Azeez and Rahamathunnisa. According to the plaintiffs, they are the tenants in common along with the first defendant, but in view of the relationship disputed by the second defendant, no doubt who is an outsider, still the burden is cast upon the plaintiffs to prove the relationship that they are the children of Abdul Azeez and Rahamathunnisa.
23. From perusal of oral and documentary evidence on record, it appears that the plaintiffs have not placed any special or specific evidence as required under Sections 50 and 60 of the Indian Evidence Act, 1972, in order to prove the relationship between Abdul Azeez and Rahamathunnisa and to
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 prove that Abdul Azeez and Rahamathunnisa were living together, cohabitated for a longtime as husband and wife and out of which, the plaintiffs were born. Further, there is no pleading and proof as to the existence of relationship between Abdul Azeez and Rahamathunnisa and therefore, the Court cannot give a benefit of presumption to Ex.P2-Mutation Register extract only on the ground that it is a revenue entry. Therefore, the plaintiffs are called upon to prove the relationship first. Secondly, in the evidence of DW1, it is stated that as the first defendant disclosed him that he is the only son of Abdul Azeez and Kairunnissa, the second defendant purchased the schedule property under Ex.P6-Registered Sale Deed. When the oral testimony of PWs.2 to 4 are gone through, there is no material evidence to establish that Abdul Azeez married Rahamathunnisa and plaintiff Nos.1 to 5 were born to Abdul Azeez and Rahamathunnisa. In the evidence led by PW2, there is a reference to the fact that the plaintiffs are children of Abdul Azeez, but this witness himself does not know fully about the family affairs of Abdul Azeez. Therefore, even the plaintiffs have failed to establish their relationships with Abdul Azeez and his alleged second wife, Rahamathunnisa, and they are born
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 out of the wedlock of Abdul Azeez and Rahamathunnisa, then the schedule property becoming their family property and both the plaintiffs and the first defendant are tenants in common cannot be accepted at all. Further, PW1, who is the first plaintiff, examined on oath and tendered for chief-examination, but due to medical grounds, he was not tendered for cross- examination. Therefore, his evidence was discarded by the trial Court. PW2, who is the second plaintiff, gave his evidence and reiterated the contents of the plaint averments. According to the oral testimony of PW2, all the plaintiffs had given consent for the first defendant to effect change of katha in his name in respect of the schedule property. On the basis of Pavathivarsu, the first defendant transferred the katha in his name, but taking advantage of the fact, the first defendant alienated the schedule property in favour of the second defendant. According to PW2, as they are legal heirs with the first defendant, they are also entitled for a definite share in the schedule property. The plaintiffs have relied upon Ex.P2-Mutation Register extract, wherein there is a reference to the fact that, the plaintiffs are the children of the second wife of Abdul Azeez and they have given consent for said mutation register extract. Hence, Ex.P2
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 has come into existence. From perusal of Ex.P2, it appears that there is a reference that the name of the plaintiffs is shown in Ex.P2 and with their consent, the mutation was changed in the name of the first defendant. However, from perusal of the cross-examination of PW2, it clearly establishes that, they have not furnished any documents to show that their mother is Rahamathunnisa and their father is Abdul Azeez. Further, they have not furnished any document to show that they were cultivating the schedule property as tenants in common. When the important aspect of the plaintiffs' relationship with Abdul Azeez is not proved, reference made to Ex.P2-Mutation Register extract cannot be accepted. Further, the schedule property is being enjoyed by the plaintiffs and the first defendant as tenants in common is also not established by the plaintiffs. Admittedly, the first defendant conveyed his absolute right, title and interest over the schedule property in favour of the second defendant under the Registered Sale Deed dated 8-2-2007 for valuable consideration. Hence, the second defendant acquired lawful right, title and interest over the schedule property and continuous to be in peaceful possession and enjoyment of the same since the date of purchase i.e., 8-2-2007, whereas the
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 plaintiffs have filed the suit for partition on 20-11-2014, that too, after a lapse of seven and half years.
24. From cross-examination of PW2, it clearly establishes that prior to the registration of sale deed or after the registration of sale deed; the plaintiffs never issued any legal notice to the first defendant calling upon to answer as to alienation made by him in favour of the second defendant. No criminal case has been registered against the first defendant or the second defendant alleging fraud or undue influence. Further, the plaintiffs never objected for change of katha or they never submitted any application before the Revenue Authority claiming their rights in respect of the schedule property. The plaintiffs in categorical terms admitted that they never entered the land and cultivated the same. So the admission of PW2 goes a long way in showing before the Court that the suit filed by the plaintiffs appears to be collusive in nature.
25. The plaintiffs are relying upon Ex.P2-Mutation Register extract. A perusal of the mutation entry shows that the first defendant got admitted his name. The mutation entry
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 clearly indicates that the property was mutated from the name of the father of the first defendant to the name of the first defendant. The purpose of mutation entry as is well settled in only limited to revenue records. They do not, in any way, translate to or confer any title in regard to subject matter property. Some decisions reflecting this position of laws are as follows:
26. In SAWARNI v. INDER KAUR AND OTHERS reported in (1996) 6 SCC 223, wherein the Hon'ble Apex Court at paragraph No.7 held as under:
"7. Having heard the learned counsel for the parties and having scrutinised the judgment of the trial Judge as well as that of the lower appellate court, we find sufficient force in all the contentions raised by the learned counsel for the appellant. At the outset, it may be noticed that the plaintiff had filed the suit claiming half interest for herself and claiming half interest in favour of the husband and sons of Roori and, therefore, the learned Additional District Judge was wholly in error to hold that the plaintiff could not have filed the suit in question. In view of the rival stand of the parties the main question that arose for consideration was whether
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 Roori was the daughter of Gurbax Singh or Inder Kaur, Defendant 5 was the daughter of the same Gurbax Singh? The learned trial Judge after elaborate discussion of the evidence on record both oral and documentary came to the positive conclusion that it was Roori who was the daughter of Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower appellate court without focusing its attention on the weighty reasons advanced by the trial court and without examining the materials on record in that respect even did not set aside the said finding of the trial Judge and yet reversed the decree of the trial Judge. We have no hesitation to come to the conclusion that the said judgment of the Additional District Judge is wholly unsustainable in law. The crucial point being as to who was the second daughter of Gurbax Singh, namely Roori or Inder Kaur, and the trial Judge having come to the positive conclusion that it was Roori who was the second daughter of Gurbax Singh, the lower appellate court was not justified in not considering the material evidence as well as the reasons advanced by the trial Judge and merely coming to the conclusion that the evidence on the file does not prove Roori to be the daughter of Gurbax Singh. Further, the lower appellate court has not come to any positive finding that Inder Kaur was the daughter of Gurbax Singh. He has been swayed
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 away by the so-called mutation in the revenue record in favour of Inder Kaur. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. That apart, as it would be seen, the learned trial Judge had considered the oral evidence adduced on behalf of the parties to establish the respective stand as to who was the second daughter of Gurbax Singh and on perusal of the same came to the conclusion that it was Roori who was the second daughter of Gurbax Singh. The Additional District Judge has not even discussed anything about the said oral evidence and the reasonings advanced by the learned trial Judge in coming to the conclusion that it was Roori who was the second daughter of Gurbax Singh. Non- consideration of the oral evidence adduced by the parties, by the lower appellate court vitiates the ultimate conclusion on the question whether Roori was the daughter of Gurbax Singh or not. It is further seen that Gurdip Kaur, widow of Gurbax Singh had executed a Will in respect of the entire
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 estate in favour of the plaintiff and Roori and after the death of Gurdip Kaur a succession certificate had been issued by the civil court under the Indian Succession Act, 1925 in favour of the plaintiff and the said Roori. The said succession certificate and rights flowing therefrom cannot be ignored.
Admittedly no attempt has been made by Defendants 1 to 4 to annul the succession certificate on the grounds available under the Succession Act. The Additional District Judge committed serious error of law in not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these questions and dismissing the second appeal in limine."
27. In JITENDRA SINGH v. STATE OF MADHYA PRADESH AND OTHERS. reported in 2021 SCC OnLine SC 802, wherein the Hon'ble Apex Court at paragraph No.7 held as under:
"7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter."
28. Further, the aforesaid position of law was recently reiterated by the Hon'ble Apex Court in the case of P. KISHORE KUMAR v. VITTAL K. PATKAR reported in 2023 SCC OnLine SC 1483.
29. Proceeding to the factual circumstances of the case, the relationship of the plaintiffs with the first defendant is not proved and they also not placed any record to show that Abdul Azeez is the husband of Rahamathunnisa. The oral testimonies of PWs.1 to 4 do not offer any relevant details which can show that Abdul Azeez and Rahamathunnisa are husband and wife and these plaintiffs born out of the wedlock of Abdul Azeez and Rahamathunnisa and they cultivated the schedule property as tenants in common.
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016
30. Having considered the material on record, we do not find any reason to take a view differing from the trial Court in disbelieving the testimonies of these witnesses. A perusal of the trial Court judgment lends credence to this conclusion for the testimonies as extracted therein are nothing but vague, it seems that the witnesses were trying desperately to make relevant testimonies grasping at a standard of feeding memory. That apart, there is no mention of these witnesses in the mutation entry.
31. As a result of our discussion in the foregoing paragraphs, we do not find any fault with the reasoning given by the trial Court. Thus, the judgment and decree dated 20-8-2016 rendered by the Court of the Principal Senior Civil Judge, Kolar, in Original Suit No.356 of 2014, is confirmed. Thus, the appeal stands dismissed.
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NC: 2025:KHC:1647-DB RFA No. 1744 of 2016 In view of the dismissal of the main appeal, pending applications, if any, shall stand dismissed.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE KVK List No.: 1 Sl No.: 16