Plaintiffs challenged judgments dismissing their suit seeking declaration, partition and injunction over ancestral property alienated by registered deeds. Court held plaintiffs out of possession without relief of possession cannot seek mere declaration, and no substantial question of law arose; appeal dismissed.
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NC: 2024:KHC:39352 RSA No. 588 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 588 OF 2024 (DEC/PAR)
BETWEEN:
W/O IMAM, AGED ABOUT 50 YEARS, R/AT INDIRANAGARA, MADHUGIRI TOWN, MADHUGIRI TALUK, TUMKUAR DISTRICT, PIN 572132.
Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka
AGED ABOUT 60 YEARS, R/AT GORANTA VILLAGE,
PUTTAPARTHI MANDALAM, ANANTHAPURA DISTRICT. ANDHRA PRADESH, PIN 515134.
4(a) RAMEEJA, W/O JIYAULLA, AGED ABOUT 36 YEARS,
NC: 2024:KHC:39352 RSA No. 588 of 2024
4(b) IDAYATH, S/O REHMAN PASHA, AGED ABOUT 34 YEARS,
4(c) SHABANABANU, S/O REHMAN PASHA, AGED ABOUT 34 YEARS,
4(d) HASEEF PASHA, S/O REHMAN PASHA, AGED ABOUT 29 YEARS.
APPELLANTS NO.4(a) to 4(d) ARE RESIDING AT C.B.A COLONY, HINDUPURA, ANANTHAPURA DISTRICT, ANDHRA PRADESH, PIN:515201.
4(e) RESHMA W/O MEHABOOB PASHA, AGED ABOUT 38 YEARS, R/AT BASAVANAHALLI, SPINNING MILL, HINDUPURA, ANANTHAPURA DISTRICT, ANDHRA PRADESH, PIN 515201.
4(f) SABEHABANU, W/O MONNA, AGED ABOUT 32 YEARS, R/AT MARUVEKERE VILLAGE, KASABA HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT, PIN: 5721321.
APPELLANTS NO.5 TO 8 ARE RESIDING AT BEHIND YARKOTAL MASJID, REHAMATHPURA,HINDPURA, ANDHRA PRADESH, PIN 515201.
…APPELLANTS
(BY SRI VENKATESHA, ADVOCATE)
AND:
RESPONDENTS NO.1 TO 6 ARE RESIDING AT GONDHIHALLI VILLAGE, PURAVARA HOBLI, MADHUGIRI TALUK, TUMKURU DISTRICT, PIN 572132.
SINCE DEAD BY HIS LRS
D/O LTE KHALEEL SAB, AGED ABOUT 33 YEARS.
D/O LATE KHALEEL SAB, AGEDA BOUT 24 YEARS, RESPONDENT 8(a) to 8(e) ARE RESIDING AT DARGA ROAD, MADHUGIRI TOWN, TUMKUR DISTRICT, PIN: 572132.
…RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.01.2024 PASSED IN RA NO.48/2018 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.03.2018 PASSED IN OS NO.523/2012 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, AT MADHUGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
challenging the judgment and decree dated 29.01.2024 in R.A. No.48/2018 on the file of Additional Senior Civil Judge
and J.M.F.C., Madhugiri dismissing the appeal and confirming the judgment and decree dated 16.03.2018 in O.S No.523/2012 on the file of the Principal Civil Judge & J.M.F.C., Madhugiri dismissing the suit of the plaintiff.
Khan was the owner of the schedule property and he had two children namely, Ismail Sab and Ibrahim Sab. Both the aforementioned sons are no more. It is stated in the
NC: 2024:KHC:39352 RSA No. 588 of 2024
plaint that the plaintiffs and defendant No.3 are the sons of late Ismail Sab and defendants No.1 and 2 are the daughters of Ibrahim Sab. It is further stated in the plaint that both the plaintiffs and defendants are the grand children of Husman Khan and therefore, as the grand father of Husman Khan gifted the suit schedule property in favour of defendant No.1 and 2 as per registered gift deed dated 15.01.1975, and in furtherance of the same, the defendants No.1 and 2 and the plaintiffs' father and defendant No.3 have no right over the suit schedule property and as they have sold the schedule property in favour of defendants No.4 to 8 as per registered sale deed dated 10.02.1975 and therefore, the plaintiffs have filed a suit seeking relief of declaration, partition and permanent injunction against the defendants.
NC: 2024:KHC:39352 RSA No. 588 of 2024
on 10.06.1975 and accordingly, sought for dismissal of the suit.
the appellants contended that though the Gift Deed dated 15.01.1975 said to have been executed by the grand father of the plaintiffs-Husman Khan in favour of defendants No.1 and 2 and therefore, the defendants No.1 and 2 have no right to alienate the suit schedule property in favour of the defendants No.4 to 8 and as such, both the judgment and decree passed by the Courts below requires to be interfered in this appeal.
the learned counsel appearing for the parties, it is not in dispute that the property in question belongs to grand father of the plaintiffs and the defendant No.3-Husman Khan. It is also forthcoming from the finding recorded by both the Courts below that the said Husman Khan had gifted the suit schedule property in favour of defendants No.1 and 2 as per registered gift deed dated 15.01.1975 and thereafter, the said gift deed was cancelled on 11.12.1975 (Ex.P1).
NC: 2024:KHC:39352 RSA No. 588 of 2024
both the Courts below, it is not in dispute that defendants No.1 to 3 though appeared before the Court have not chosen to file written statement. Defendants No.6 and 5 have been examined as DW-1 and DW-2 and the Ex. D1 is the original sale deed dated 18.05.1984 executed by Asiya Bee W/o Abdul Rahim on her behalf and on behalf of her children in favour of the defendant No.6 in respect of the Item No.1 of the suit schedule property. It is also forthcoming from the finding recorded by both the Courts
below that on the basis of the mutation extract (Ex.D16) the suit schedule property has been sold as per Ex.D18 on 19.05.1977 executed by Ismail Sab, Ibrahim Sab and their
daughters in favour of Abdul Rahim S/o Khasim Sab in respect of Item No.2. Taking into consideration the proceedings in O.S. No.247/2007 on the file of the Principal Civil Judge and JMFC, Madhugiri as the plaintiffs have filed suit against their father Ismail Sab seeking relief of partition and separate possession and in the said suit, application has been filed seeking withdrawal of the suit
and thereafter, the sale deed has been executed in favour of Mastan Sab S/o Abdul Sab by defendants No.1 and 3 in respect of Item No.1 as per registered sale deed dated 15.01.1975 and therefore, I do not find any merit in the appeal. Accordingly, as both the Courts below have taking into consideration the entire factual aspects of record, rightly dismissed the suit filed by the plaintiff as considering fact that the suit schedule property has been sold in favour of the defendant No.5 as per registered sale deed dated 10.05.1975 (Ex.P30). In that view of the
matter, as both the Courts below have arrived at a conclusion that the plaintiffs have not made out a case for interference, rightly rejected the claim made by the plaintiffs. That apart, the plaintiffs have sought for relief of declaration with consequential relief of permanent injunction and partition, undisputably, the plaintiffs are out of possession and in that view of the matter, the relief sought for by the plaintiffs seeking mere declaration does not confer title to the plaintiffs without being seeking relief of possession in view of declaration of law made by the
Hon'ble Supreme Court in the case of Vasantha (Dead)
Thr. L.R. vs Rajalakshmi @ Rajam (Dead) Thr. Lrs.1 and therefore, the suit filed by the plaintiffs itself is not maintainable as the plaintiffs, though out of possession, have not sought for relief of possession in respect of the suit schedule properties.
10. The appeal is dismissed.
SD/(E.S.INDIRESH) JUDGE
CHS
List No.: 1 Sl No.: 31
1 (2024) 5 SCC 282
1 issue framed by the court
Whether a declaratory suit for partition and injunction by plaintiffs out of possession, without seeking possession, is maintainable.
Colour shows how this judgement treated each authority
Vasantha (Dead) Thr. L.R. vs Rajalakshmi @ Rajam (Dead) Thr. Lrs.Relied on¶8
(2024) 5 SCC 282 · Who else cites this
1 provisions across 1 enactments
Smt Shakeela
Fathima
Aminabhi
Haseena (by LRs)
Abbas
Khurshid Unnisa
E.S.Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
