Sri. Mohammed Sikandar Vs Mohammed Sardar

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 01.07.2009 PASSED IN R.A.NO.71/2007 ON THE FILE THE DISTRICT AND SESSIONS JUDGE, CHAMRAJANAGAR, DISMISSING THE APPEAL CONFIRMING THE JUDGMENT AND DECREE DTD: 31.10.2007 PASSED IN O.S.NO.03/2006 ON THE FILE OF THE CIVIL JUDGE (SR. DN), KOLLEGAL.

¶23

THIS RSA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12/12/2025 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

¶24

CORAM: HON'BLE MRS JUSTICE M G UMA

¶25

CAV JUDGMENT

¶26

The plaintiffs in O.S.No.03.2006 (Old No.277/1991) on the file of the learned Civil Judge and JMFC, Kollegal, (hereinafter referred to as 'the Trial Court', for short), are impugning the judgment and decree dated 31.10.2007 dismissing the suit of the plaintiffs, which was confirmed vide judgment dated 01.07.2009 passed in RA.No.71/2007 on the file of the learned District Judge, Chamarajnagar (hereinafter referred to as 'the First Appellate Court', for short).

¶27

For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

¶28

Facts of the case in brief are that, plaintiff Nos.1 to 4 have filed the suit OS.No.277/1991 which was later

¶29

3 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶30

HC-KAR

¶31

renumbered as OS.No.03/2006 before the Trial Court, against

¶32

the defendant seeking declaration that they are the absolute owners in possession of the properties and for grant of permanent injunction restraining the defendant from interfering with their possession and enjoyment. The schedule attached to the plaint describes 5 agricultural properties bearing Sy.No.633/A measuring 52 cents, Sy.No.633/D measuring 45.35 acres, Sy.No.352 measuring 75 cents, Sy.No.353/B(1) measuring 28 cents and Sy.No.350 measuring 1.15 acres, which are situated at Bandahalli village, Kollegal Taluk, Mysore District with the boundaries mentioned therein (hereinafter referred to as 'the schedule properties').

¶33

It is stated by the plaintiffs that, one B.K.Mohammed Khalandar, the father of the defendant was the younger brother of B.K.Mohammed Jaffar, who is the father of the plaintiffs. Mohammed Jaffer was appointed as Kazi for the village of Bandahalli of Kollegal Taluk on 11.10.1942. Then Bandahalli of Kollegal taluk was the part of State of Tamilnadu. The appointment of the father of the plaintiffs as Kazi, was notified in the Gazzette on 29.09.1942. Accordingly, he held the office of Kazi and discharged his functions. Item Nos.1 and 2 in the

¶34

4 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶35

HC-KAR

¶36

plaint schedule were attached to the office of Kazi and was being enjoyed by B.K.Mohammed Jaffar. He sold a portion of Sy.No.633/D during 1970. Since patta in respect of the land granted by virtue of office of Kazi was not changed, an application was moved before the Tahsildar, Kollegal during April 1946. He held the proceedings and passed an order dated 21.03.1946 changing the patta in respect of item Nos.1 and 2 of the schedule in favour of the father of the plaintiffs. Accordingly, patta was issued in his name.

¶37

It is stated that B.K. Mohammed Khalandar-the father of the defendant in a clandestine manner instituted proceedings in MRT.No.515/62 and managed to obtain an order registering his name along with the name of the father of the plaintiffs as joint khatedar on 08.09.1953. The father of the plaintiffs after coming to know about this act of B.K.Mohammed Khalandar, raised dispute before the Tahsildar, Kollegal Taluk. After enquiry, the Tahsildar, Kollegal ordered for deletion of the name of B.K. Mohammed Khalandar as joint khatedar. The said proceedings became final and remained unchallenged.

¶38

5 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶39

HC-KAR

¶40

The defendant, after the death of his father with an intention to grab the land made a representation to Jamabandi Officer for inclusion of his name. The proceedings were held rejecting his claim vide order dated 12.07.1972.

¶41

It is contended that, the defendant approached the Tahsildar, Kollegal, for change of khata in respect of Item Nos.1 and 2 of the schedule on the ground that he acquired right by inheritance over half share in the land, which are the ancestral properties. The said proceedings in R.R.P.R.No.22/1987-88 was contested by the plaintiffs and the said proceedings came to be dismissed vide order dated 25.07.1987. The defendant preferred an appeal before the Assistant Commissioner, Mysore in RRT No.84/1987-88, which came to be allowed and the matter was remanded to the Tahsildar, Kollegal to hold fresh enquiry on 03.07.1989. The Tahsildar passed a cryptic order on 27.12.1990 ordering for change of khata in the name of the defendant in respect of half of the property. The plaintiffs have challenged the same before the Assistant Commissioner in RRT.No.115/1990-91, which was pending consideration at the time of filing the suit.

¶42

6 -

¶43

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶44

HC-KAR

¶45

The plaintiffs stated that Item Nos.1 and 2 of the schedule were granted in favour of the father of the plaintiffs in lieu of appointment as Kazi. Therefore, the defendant or any other persons cannot have any claim over the same.

¶46

It is contended that Item Nos.3 to 5 of the schedule properties were acquired and possessed by the grandfather of the plaintiffs by name Kazi Abdul Khadar. He transferred the properties in favour of his wife by name, Peeranbiamma towards Mahar, through a registered document dated 09.09.1936 and was in possession and enjoyment of the same as khatedar. After the death of said Peeranbiamma , plaintiff No.1 applied for change of khata. An enquiry was held by the Tahsildar of Kollegal and ordered for change of khata in the name of the father of the plaintiffs. The said order was well within the knowledge of the defendant. The plaintiffs were paying the land revenue being in possession of all the schedule properties.

¶47

In respect of these item Nos.1 to 5, the defendant has no manner of right, title or interest. The plaintiffs are in possession and enjoyment of all the properties and they are

¶48

7 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶49

HC-KAR

¶50

entitled for declaration that they are the owners in possession of the properties and for permanent injunction against the defendant. Accordingly, they prayed for decreeing the suit.

¶51

The defendant has appeared before the Trial Court and filed his written statement denying the contentions taken by the plaintiffs. It is contended that the property in question belongs to the father of the plaintiffs and the father of the defendant. Since the father of the plaintiffs without the knowledge of the defendant got Patta in his name, the father of the defendant initiated proceedings to include his name jointly with the father of the plaintiffs.

¶52

It is stated that Kazi Mohammed Abdul Khadar is the paternal grandfather of the plaintiffs and the defendant. The plaint schedule properties along with other properties were acquired by him. He had sons by name Mohammed Jaffar i.e. the father of the plaintiffs and B.K. Mohammed Khalandar, the father of the defendant. The said Kazi Mohammed Abdul Khadar divided the properties amongst his two sons. However, there was misunderstanding between the brothers regarding enjoyment of the lands. A panchayat was convened and both

¶53

8 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶54

HC-KAR

¶55

the parties have executed muchalika patra undertaking that they will settle all the differences and will abide by the division of the properties as desired by their father. Accordingly, the father of the defendant got half share in the schedule properties and the plaintiffs' father got remaining half of the properties. The father of the defendant died in the year 1967. At that time, the defendant and his brothers were minors and they could not look after the properties. Thus, the plaintiffs started managing the properties on behalf of the defendant and his brothers. The defendant after attaining majority, took over his share in the land. In the meantime, the plaintiffs managed to get khata in their names by playing fraud on the defendant and his brothers.

¶56

It is stated that the defendant submitted an application to the Tahsildar for change of khata in his name. An enquiry was held by the Assistant Commissioner and the matter was remanded to the Tahsildar for fresh enquiry. After remand, the Tahsildar passed the order dated 27.12.1990 ordering to change the khata in the name of the defendant. The plaintiffs have preferred an appeal against the said order before the

¶57

9 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶58

HC-KAR

¶59

Assistant Commissioner, which was pending at the time of filing the suit.

¶60

The defendant denied that Item Nos.3 to 5 in the schedule were held by Peeranbiamma as Mahar under the registered document dated 09.09.1936. It is stated that the plaintiffs have purposefully not given any details about their right over the said property. After the death of Peeranbiamma, the plaintiffs managed to get khata in their names clandestinely and the plaintiffs have no right over the same. It is contended that, Item Nos.3 to 5 of the schedule had fallen to the share of the father of the defendant and hence the defendant was put in possession of the same. The khata in respect of the same stands in the name of his mother Hibzabiamma. Alternatively, it is stated that even if the plaintiffs contended that the property was belonging to Peeranbiamma as Mahar even the defendant is entitled for equal share.

¶61

The contention taken by the plaintiffs with regard to Item Nos.1 and 2 of the schedule, that the same were given in favour of his father as Kazi is denied. It is stated that the defendant and his brothers have right over the said property as

¶62

10 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶63

HC-KAR

¶64

grandsons of Kazi Mohammad Abdul Khadar, who initially held

¶65

the properties and later the same were divided between the plaintiffs and the defendant. The contention of the plaintiffs that the defendant is trying to interfere with their possession and enjoyment over the schedule properties are denied. The boundaries of the properties as mentioned in the plaint are denied and it is contended that the plaintiffs are not entitled for any reliefs. Accordingly, prayed for dismissal of the suit.

¶66

On the basis of these pleadings, the following issues came to be framed by the Trial Court:

¶67

i) Do the plaintiffs prove that they are the owners in possession of the suit schedule properties?

¶68

ii) Do they further prove that their possession has been interfered with by the defendant ?

¶69

iii) As they entitled to the suit relief's as prayed for?

¶70

The plaintiffs examined PWs.1 and 2 and got marked Exs.P1 to 20 in support of their contentions. The defendant examined DWs.1 to 4 and got marked Exs.D1 to 66 in support of his defence. The Trial Court, after taking into consideration

¶71

11 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶72

HC-KAR

¶73

all these materials on record, answered issue Nos.1 to 3 in the negative and accordingly, dismissed the suit of the plaintiffs. Being aggrieved by the same, the plaintiffs have preferred RA.No.71/2007. The First Appellate Court, on re-appreciation of the materials on record, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved by the same, the plaintiffs are before this Court.

¶74

Heard Sri. V Lakshminarayana, learned senior advocate for Sri. K.N.Subba Reddy, learned counsel for the appellants and Sri. S.Keerthikar, learned counsel for the respondent. Perused the materials including the Trial Court records.

¶75

It is the contention of the learned counsel for the appellants / plaintiffs that Ex.P1 is the grant order dated 11.10.1942, which clearly discloses that item Nos.1 and 2 of the plaint schedule were granted for personal cultivation in favour of B.K. Mohammad Jaffar, the father of the plaintiffs, which is heritable. The defendant claims that these properties were partitioned as per Ex.D2, effected by Kazi Mohammad Abdul Khadar. According to the defendant, Exs.D63, 64 and 65

¶76

12 -

¶77

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶78

HC-KAR

¶79

the deed of partition and undertaking letters. All these documents are neither registered nor stamped. Objection was raised while marking these documents. The Trial Court has not given any finding about the admissibility of these documents. The documents were also not impounded, but heavy reliance was placed on all these inadmissible documents to dismiss the suit of the plaintiffs.

¶80

Learned senior advocate contended that Ex.P13 is the order passed by the Tahsildar dated 29.09.1942, holding that the name of the father of the defendant cannot be mutated in respect of Item Nos.1 and 2 of the schedule as it is against the terms of Ex.P1-the order of grant. As per Ex.P1, Item Nos.1 and 2 of the schedule properties were granted as the lands attached to the personal Inam to the post of Kazi, on appointment of the father of the plaintiffs. The parties to the suit are governed by Sunni Law of Hanafi School. Therefore, it is only the wife and children of the grantee, who are entitled for said lands.

¶81

Learned senior advocate would contend that the contentions taken by the defendant that Kazi Mohammad Abdul

¶82

13 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶83

HC-KAR

¶84

Khadar partitioned Item Nos.1 and 2 of the schedule cannot be accepted, as he had no authority for the same. He places reliance on the decision of the Hon'ble Apex Court in Mansoor Saheb (dead) & Ors. V/s Salima (D) by LRS. & Ors¹ , to contend that only upon the death of a person, the property could be inherited by his legal representatives. But during the lifetime of the grantee, he had no authority to partition the property attached to the office of Kazi. It is only by natural succession, the wife and children would succeed to the property. Therefore, the defendant will not be entitled for any share.

¶85

Learned senior advocate referring to Ex.P1 dated 11.10.1942 contended that, it is the grant order issued in favour of the father of the plaintiffs by the Tahsildar, Kollegal notifying B.K. Mohammed Jaffar, the father of the plaintiffs as Kazi to the village of Bandahalli of Kollegal Taluk. There is reference to the Gazette Notification dated 29.09.1942. Ex.P2 is the Register of Inams. Column No.8 gives the description of Inam, which was granted for the personal benefit of the holder. The land was given rent free, it is heritable and granted by

¶86

1 2024 SCC OnLine SC 3809

¶87

14 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶88

HC-KAR

¶89

Tippu Nawab of Shrirangapatna. Even though the year of grant originally by Tippu Nawab was not known, Exs.P1 and P2 make it clear that there was re-grant in the name of father of the plaintiffs. Learned senior advocate refers to column No.52 of Ex.P2, where there is reference to the Title Deed number 29 [T.D.No.29] and contended that in all the subsequent documents, there is reference to this TD.No.29, referring to Item Nos.1 and 2 of the plaint schedule.

¶90

Learned senior advocate contended that Ex.P3 dated 10.05.1946 is the revenue demand document in respect of TD.No.29 in the name of the father of the plaintiffs. Even though the document is in Tamil, the Kannada translation is produced as per Ex.P3(a). There is reference to Item Nos.1 and 2 of the schedule in this document, which came into existence at an undisputed point of time.

¶91

Learned senior advocate refers to Ex.P10-the letter issued by the Tahsildar to issue patta in respect of TD.No.29 in favour of the father of the plaintiffs. Ex.P11 is the endorsement in that regard having sent the information to the office of the Registrar. Learned senior advocate referring to Ex.P12 dated

¶92

15 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶93

HC-KAR

¶94

31.12.1954 contended that the name of Mohammed Khalandar,

¶95

the father of the defendant was deleted as per the order of the Tahsildar as it was mentioned inadvertently. As per Ex.P13 dated 31.12.1954, the Joint Registrar ordered that the name of the father of the plaintiffs is to be retained in the revenue document, while cancelling the name of the father of the defendant. The Revenue Inspector was directed to take note of the same and change the name of the father of the plaintiffs in respect of T.D.No.29.

¶96

Placing reliance on all these documents, learned senior advocate contended that, there are clinching documents to prove that in the year 1942, the father of the plaintiffs was granted the personal Inam. Therefore, there is no question of effecting partition by Kazi Abdul Khadar during his lifetime, as he had no authority to do the same. Even otherwise, Exs.D2, 63, 64 and 65 are not admissible in evidence and the same cannot be the basis to reject the claim of the plaintiffs.

¶97

Learned senior advocate suggested to formulate the following additional substantial questions of law.

¶98

16 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶99

HC-KAR

¶100

Learned counsel for the respondent opposing the appeal submitted that even according to the plaintiffs, Item Nos.1 and 2 of the schedule were enjoyed by the ancestors of the plaintiffs and defendant. The properties were granted by Tippu Nawab. It was about more than one and half century earlier to filing of the suit. Under such circumstances, the plaintiffs cannot contend that it is only their father who was entitled for the properties. He refers to the evidence of PW.1 to contend that there is an admission by him that Item Nos.1 and 2 of plaint schedule were granted by Tippu Sultan of Srirangapatna as Kazi Inam land. Since then, it is being inherited from their ancestors and that the witness admitted that the Kazi right has come to the plaintiffs by inheritance.

¶101

Learned counsel referring to Ex.P2 contended that the document makes it clear that the lands were granted by Tippu Nawab of Srirangapatna long back, as the year of such grant is not known. It is heritable even though the name of the original grantee is not known as per column Nos.10, 11 and 13. Therefore, it is contended that the name of the original grantee is not known even according to Ex.P2, but it was about more than a century ago. Under such circumstances, the contention

¶102

17 -

¶103

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶104

HC-KAR

¶105

of the plaintiffs that, their father was the grantee in respect of

¶106

Item Nos.1 and 2 of the schedule, cannot be accepted.

¶107

Learned counsel specifically submitted that the plaintiffs are not very much particular about claiming right over Item Nos.3 to 5 of the schedule properties since the same were held by Peeranbiamma as Mahar. So, the suit of the plaintiffs in respect of Item Nos.3 to 5 is liable to be dismissed.

¶108

Learned counsel contended that Ex.P1 is the order appointing the father of the plaintiffs as Kazi for the village of Bandahalli in Kollegala Taluk. Obviously, there is no reference to grant of any land attached to the office of Kazi. In Ex.P2-the copy of the Register of Inams, there is reference to the grant of several lands mentioned in Column No.3, totally measuring 47.2.3 acres. But there is no reference to Item Nos.1 and 2 of the schedule properties. In respect of the properties mentioned in Column No.3, it is stated that the said grant is rent free and it is heritable. As per Column No.11, it is granted by Tippu Sultan, Nawab of Srirangapatna and properties were given TD No.29. This TD No.29 is conspicuously missing in Ex.P1.

¶109

18 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶110

HC-KAR

¶111

Learned counsel further contended that Ex.P1-the order appointing the father of the plaintiffs as Kazi was under the provisions of the Kazi Act, 1880, which is not repealed till date. This Act was for appointment of persons to the office of Kazi. The Act which consists of only 4 Sections do not refer to grant of land attached to the office of Kazi. Therefore, it is contented that, Item Nos.1 and 2 of the schedule cannot be attached to the office of Kazi held by the father of the plaintiffs as per Ex.P1.

¶112

Learned counsel contended that as per Ex.P3, Item Nos.1 and 2 of the schedule is given TD No.29 and therefore, even if it is to be taken that Ex.P2 refers to these Item Nos.1 and 2, the properties were never attached to the office of Kazi. But it was the grant in favour of the ancestors of the plaintiffs and defendant and it is specifically mentioned in Column No.10 that, it is heritable. Accordingly, the properties were inherited from generation to generation and held by the grandfather of the plaintiffs and defendant. Since the defendant was a minor at the time of the death of his father, the father of the plaintiffs managed to get the revenue records changed in his name, which was set aside by the order of Tahsildar / Assistant

¶113

19 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶114

HC-KAR

¶115

Commissioner and it is only thereafter, the plaintiffs have approached the Trial Court seeking declaration of their title. Ex.P3(a) is the translated copy of Ex.P3. But there is no reference to the office of Kazi while referring to Item Nos.1 and 2 of the schedule properties, with TD No.29.

¶116

Learned counsel further contended that since the Kazi Act, 1880 which was enacted to appoint the Kazi by an order made by the Government after repealing the earlier enactments, whose presence is required at the time of celebration of marriages and performance of certain other rites and ceremonies and it was never considered as personal Inam and therefore, the Act was not repealed on the advent of Personal and Miscellaneous Inam Abolition Act, 1954. The Act never states that appointment of a Kazi is in the form of Personal Inam or that it is attached to the grant of any land. He also refers to Ex.D53-the copy of the survey settlement, in which there is reference to Item Nos.1 and 2 of the schedule properties, where there is reference to one Muhammed Kazi Abdul Saheb, who is none other than the grandfather of the plaintiffs and the defendant.

¶117

20 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶118

HC-KAR

¶119

Learned counsel contends that in Ex.D53, there is no reference to the office of Kazi held by Mohammed Kazi Abdul Saheb for being the owner of Item Nos.1 and 2 of the schedule properties, which makes it clear that the properties were not attached to the office of Kazi at any point of time. Ex.P3 also supports Ex.D53 where the patta in respect of Item Nos.1 and 2 of schedule properties stood in the name of the grandfather of the plaintiffs and defendant with TD No.29. Learned counsel also refers to Ex.P8-the Record of Rights in respect of Item No.2 to contend that even though the revenue document stands in the name of the father of the plaintiffs along with one Mallappa, column No.10 makes it clear that it his ancestral property. Under such circumstances, learned counsel contented that by no stretch of imagination, it could be contented that Item Nos.1 and 2 of the schedule properties are attached to the office of Kazi and the same was devolved on the father of the plaintiffs by virtue of such appointment.

¶120

Learned counsel contended that, even though the plaintiffs have taken a stand that the properties in question are having patta TD No.29, and even though the said number finds place in the revenue records including Ex.P2, the said Title

¶121

21 -

¶122

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶123

HC-KAR

¶124

Deed is not produced before the Court to show as to what this title deed is.

¶125

Learned counsel contended that Ex.P10 dated 20.05.1946 has no seal. Therefore, the same was marked subject to objection. Hence, the same cannot be relied on by the plaintiffs. Even if all the other revenue documents relied on by the plaintiffs are to be accepted, merely because the revenue documents stand in the name of the father of the plaintiffs, the same cannot be a ground to deny the right of the defendant as the revenue documents also disclose that the properties were standing in the name of the grandfather of the plaintiffs and defendant and it was inherited from the time of Tippu Sultan, Nawab of Srirangapatna. Therefore, the right of the defendant over Item Nos.1 and 2 of the schedule properties, cannot be denied.

¶126

Learned counsel contended that as per Ex.P17, the Assistant Commissioner had allowed the appeal preferred by the defendant and the matter was remanded to the Tahsildar for fresh consideration. The Tahsildar, by order dated 20.07.1990 held that the properties are the ancestral properties of the plaintiffs and defendants and both of them are

¶127

22 -

¶128

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶129

HC-KAR

¶130

entitled for a share. Accordingly, the mutation was effected as per MR 24/1990-91 produced as per Ex.D66. This order was never challenged by the plaintiffs.

¶131

Learned counsel referring to Ex.P18-the order passed by the Land Tribunal, Kollegal, contends that even when the Wakf Board had claimed Sy.No.633 of Bandahalli Village, plaintiff No.1 had appeared before the Land Tribunal and categorically admitted that the lands in question were standing in the name of his father i.e. the grandfather of the plaintiffs and defendant as the decision as per 'Kairathi Grant' made by Tippu Sultan, Nawab of Srirangapatna with TD No.29 dated 20.05.1946 and that the same were being cultivated by the family and denied the right of Wakf Board. There is reference to the revenue document which was standing in the name of the grandfather of the plaintiffs and defendant Kazi Mohammed Abdul Khadar Sahib. Taking into consideration all these materials on record, the Tribunal rejected the claim of Wakf Board.

¶132

Placing reliance on all these documents, learned counsel for the respondent contended that Item Nos.1 and 2 of the schedule properties were never attached to the office of

¶133

23 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶134

HC-KAR

¶135

Kazi. But the lands were granted during the time of Tippu Sultan, Nawab of Srirangapatna and since then from generation to generation, the properties were inherited and enjoyed by the members of the family. Therefore, the plaintiffs cannot claim exclusive title over the same. There is not even a single piece of paper to show that Item Nos.1 and 2 of the schedule properties were attached to the office of Kazi.

¶136

Learned counsel referring to the evidence of PW1 during cross-examination, contented that the witness has categorically admitted that there was an earlier partition in respect of the schedule properties and that the grandfather of the plaintiffs and defendant i.e. Kazi Mohammed Abdul Khadar had died in the year 1936. Learned counsel refers to Ex.P1-the order of appointing the father of the plaintiffs as Kazi on 14.10.1942 and contended that from 1936 to 1942, the property could not have been held in vacuum. There is no explanation as to what had happened to the properties between 1936 to 1942, if the said properties were attached to the office of Kazi. But on the other hand, it clearly discloses that after the death of the grandfather of the plaintiffs and defendant in the

¶137

24 -

¶138

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶139

HC-KAR

¶140

year 1936, his sons i.e. the fathers of the plaintiffs and defendant continued to hold and enjoy the properties.

¶141

Learned counsel again referring to the evidence of PW1, contended that the witness has categorically admitted that these items of properties were held even during the time of Tippu Sultan, Nawab of Srirangapatna and inherited by his ancestors. Therefore, atleast during 1970's, the land was enjoyed by the ancestors and continued to be enjoyed by the grandfather of plaintiffs and defendant. Under such circumstances, the contention of the plaintiffs cannot be accepted.

¶142

Learned counsel also refers to the evidence of PW1 and contended that the witness has categorically admitted that the defendant had sold a house under the registered sale deed in favour of the plaintiffs. Referring to Ex.D60-the registered sale deed, learned counsel contended that there is categorical reference to the shares of each of the parties over the properties in question.

¶143

Learned counsel referring to Ex.D1 contended that plaintiff Nos.2 to 4 have claimed tenancy over Item Nos.1 and 2 of the schedule against plaintiff No.1 without making the

¶144

25 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶145

HC-KAR

¶146

defendant as party. The Land Tribunal simply divided the properties amongst the brothers without any basis. This shows the conduct of the plaintiffs in creating documents in their favour to deny the right of the defendant.

¶147

Learned counsel contended that PW.2 is examined by the plaintiffs to prove their possession over Item Nos.1 and 2 of the schedule properties. The witness pleads ignorance about the survey numbers and the name of the cultivators of the neighboring lands, which creates serious doubts about the credibility of the witness, as he knows only about the name of the plaintiffs and the survey Number of Item Nos.1 and 2 of the schedule, while he is ignorant about such particulars regarding neighboring lands. Therefore, his evidence cannot be believed in support of the case of the plaintiffs.

¶148

Learned counsel contended that Exs.D63, 64 and 65 were marked during examination of the defendant as DW1. The only objection raised by the learned counsel for the plaintiffs at the time of marking these documents is that, they are in Tamil language. Therefore, the English translations as per Exs.63(a), 64(a) and 65(a) were produced and accordingly, the Trial Court overruled the objection raised by the learned senior advocate

¶149

26 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶150

HC-KAR

¶151

for the plaintiffs. The deposition of DW1 makes it very clear that the plaintiffs have never raised any objection regarding non-registration or non-stamping of the documents. Even otherwise, learned counsel contended that Exs.D63 and 64 are only the joint statements of the father of the plaintiffs and defendant, affirming that the properties were given to them in partition. It is only referred to as evidence of partition referring to as parikattu. There is also reference to the share divided by their father, which is nothing but acknowledgment of the partition. Even though the attention of PW1 was drawn during cross-examination to this partition that was effected by the grandfather of the plaintiffs and defendant, he only pleads ignorance, but never denied the said factum.

¶152

Learned counsel referring to Ex.D64(a) dated 14.05.1947 contends that, both Exs.D63 and 64 came into existence on the same day i.e. on 14.05.1947 and under Ex.D64, the details of the properties that were shared as evidenced by Ex.D63 is highlighted. Learned counsel contended that Ex.D65 is the muchalika patra i.e. an undertaking letter of even-dated between the brothers i.e. the father of the plaintiffs and the father of the defendant executed before the

¶153

27 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶154

HC-KAR

¶155

panchayatdars. PW1 pleads ignorance even about this document. No new right is created under Exs.D63, 64 or 65 between the parties and hence these documents do not require registration or stamp duty payable on it. Under such circumstances, the contention of the plaintiffs raising objection about its admissibility at the time of addressing the argument before the Court is unsustainable.

¶156

Learned counsel contended that Ex.D2 is the Panchayati parikattu, which is in Urdu language and the English translation is produced as per Ex.D2(c). It is the acknowledgment of the partition between the father of the plaintiffs and the father of the defendant during the lifetime of their father i.e. the grandfather of the plaintiffs and the defendant. Learned counsel refers to Ex.D33-the Record of Rights in respect of Item No.1 of the schedule for the year 1997–98, which still stands in the name of plaintiff No. 1 and defendant. Therefore, learned counsel contended that the contention of the plaintiffs that they are in exclusive possession and enjoyment of the schedule properties cannot be believed even for a moment. Such revenue entries continued to be in existence in Ex.D34 till Ex.D43, where joint khata is entered in

¶157

28 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶158

HC-KAR

¶159

the names of plaintiffs and defendant. Such entries were never

¶160

challenged by the plaintiffs.

¶161

Learned counsel contended that Exs.D3 to 32, 42 to 66 are not relevant as the same are relating to Item Nos.3 to 5 of the schedule properties and learned counsel for the appellants conceded that they are not claiming any right over these properties.

¶162

Learned counsel referred to Ex.D53-the survey resettlement in the name of the grandfather of the plaintiffs and defendant. He also refers to Ex.D57, the mortgage deeds of the year 1939 executed by the father of the plaintiffs, to contend that even though the subject matter of the mortgage deeds are not Item Nos.1 and 2 of the schedule, there is clear reference to the partition entered into between the father of the plaintiffs and father of the defendant. There is also reference to TD No.29, to contend that there was a partition in respect of the same and the specific share allotted in his favour. Therefore, learned counsel contended that even though TD No.29 is referred to in Ex.P2 of the year 1942, the registered document Ex.D57 which is of the year 1939 refers to this TD

¶163

29 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶164

HC-KAR

¶165

No.29 and also to the partition entered into between the brothers.

¶166

Learned counsel drawing the attention of the Court to Ex.D58 contended that, it is a registered Sale Deed of 22.09.1946 executed by the father of the plaintiffs. The schedule attached to this sale deed, discloses that the father of the plaintiffs categorically states that the property in TD No.29 has fallen to the share of himself and his brother. Similarly, Ex.D59 is the registered sale deed dated 23.04.1949 executed

¶167

by the father of the defendant in favour of one Abdul Razak where again in the schedule, there is reference to a partition in respect of Patta No.29 while referring to the title to the property. Ex.D60 is the similar registered Sale Deed dated 18.07.1947, where under, plaintiff No.1 purchased the house property from the defendant’s father, where the father of the defendant categorically refers to the subject matter of the sale deed as the property inherited by him and fallen to his share. Learned counsel submits that PW1 categorically admitted that it is the same sale deed, where under, he purchased the house property. If at all the plaintiffs were having absolute right over the property, there was no question of purchasing the same

¶168

30 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶169

HC-KAR

¶170

and there is no explanation regarding the share that had fallen to the share of the father of the defendant, if there was no partition amongst the brothers.

¶171

Similarly, learned counsel referred to Ex.D67 dated 19.11.1954, concerning Item Nos.1 and 2 of the plaint schedule to contend that it is an agreement of tenancy entered into by the father of the defendant with one Chikka Madappa. Again there is reference to Patta No.29 and there is reference to the partition under which the property had fallen to the share of the father of the defendant. Placing heavy reliance on this Ex.D57, learned counsel contended that it is a registered document entered into at an undisputed point of time and there is no explanation by the plaintiffs regarding the same. Therefore, learned counsel for the respondent contented that Exs.D57 to 61 are all the registered documents, where there is reference to Patta No.29 which is referred to by the plaintiffs as TD No.29 and there is invariable reference to partition and the share allotted in favour of the father of the plaintiffs.

¶172

Learned counsel referring to Ex.D63(a), the translated copy of Ex.D63, contended that it is joint statements given by the father of the plaintiffs and father of the defendant

¶173

31 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶174

HC-KAR

¶175

dated 14.05.1947. There is reference to Panchayati parikattu i.e. the partition that was already entered into and also reference to the property that had fallen to their share. It is nothing but an acknowledgment of partition which do not require registration or payment of stamp duty. Ex.D64(a), which is again the translated copy of Ex.D64, contains the details of properties referred to in Ex.D63 and there is reference to the share of each of the brothers dated 14.05.1947. Ex.D65(a) is the muchalike patra between the brothers i.e. the father of the plaintiffs and the father of the defendant executed in the presence of Panchayathdars, where again there is reference to partition. PW.1 had never denied any of these documents.

¶176

Learned counsel referring to the cross examination of DW1 by the learned counsel for the plaintiffs contended that, there is absolutely no cross examination to DW1 on any of these registered or other documents referred to above, including Exs.D63 to 65. A bald suggestion is made that there was no partition between the brothers, which is rightly denied by the witness. Relying on all these documents and the oral evidence, learned counsel contended that, there are enough

¶177

32 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶178

HC-KAR

¶179

and more materials before the Court, which clearly go to show that the title had flowed since decades and there was partition between the father of the plaintiffs and the father of the defendant, for which, both of them are parties. Under such circumstances, the plaintiffs are not entitled for any relief.

¶180

Learned counsel for the respondent placed reliance on the decision of this Court in Riyazuddin Khazi Vs State of Karnataka² , to contend that the co-ordinate Bench of this Court, in a similar circumstances categorically held that the Kaziship is not hereditary in nature. The documents and the oral evidence placed before the Court amply proves that Item Nos.1 and 2 of the schedule properties were inherited from the family members and as per Panchayathi Parikattu-Ex.D2, the father of plaintiffs and the father of the defendant have acquired title over the same to their respective shares. Learned counsel also contended that once the right is vested with the defendant, subsequent appointment of the plaintiffs as Kazi in the year 1942 will not divest his rights. The partition entered into earlier binds the plaintiffs. He places reliance on the

¶181

2 ILR 2010 KAR 680

¶182

33 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶183

HC-KAR

¶184

decision in Ajambi V/s Roshanbi and others³ in support of his contention.

¶185

Learned counsel further contented that if the contention taken by the plaintiffs that Item Nos.1 and 2 of the schedule is attached to the office of Kazi, even then the plaintiffs are not entitled for any relief, since admittedly, the plaintiffs are not appointed as Kazis as per Section 2 of the Kazi Act, 1880. Admittedly, the plaintiffs have not sought for regrant of the land on Karnataka (Personal and Miscellaneous) Inam Abolition Act, 1954. Therefore, he would contend that the lands in question was never granted in favour of the father of the plaintiffs and hence, the plaintiffs are not entitled for any relief. He submitted that the Trial Court and the First Appellate Court on proper appreciation of the materials on record came to a right conclusion. There are no reasons to interfere with the same. Accordingly, prays for dismissal of the appeal.

¶186

Learned counsel for respondent has no objection to formulate additional substantial questions of law as suggested by the learned senior advocate for the appellants.

¶187

3 (2017) 11 SCC 544

¶188

34 -

¶189

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶190

HC-KAR

¶191

This Court vide order dated 05.11.2012, has formulated the following substantial questions of law for consideration:

¶192

"1. Whether the finding in respect of the nature of grant of 1942 in favour of Mohammed Jaffer is in compliance with the law?

¶193

Whether the Courts below have erred in ignoring that the grant of 1942 was for the personal benefit of Mohammed Jaffer Sab? and

¶194

To consider any other substantial questions of law that would arise for consideration at the time of hearing?"

¶195

Since the substantial questions of law suggested by the learned senior advocate for the appellants are relevant, I deem it appropriate to formulate the same as additional substantial questions of law:

¶196

i) Whether during the lifetime of Kazi Abdul Khadar, partition of the properties attached to the office of Kazi was permissible?

¶197

ii) Whether the Trial Court and the First Appellate Court have ignored the position of law, since the parties are governed by Hanafi School of Sunni law, according to which, it is only the plaintiffs who are

¶198

35 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶199

HC-KAR

¶200

entitled to inherit Item Nos.1 and 2 of the schedule properties?

¶201

iii) Whether the Trial Court and the First Appellate Court have committed an error by placing reliance on Exs.D2, 63, 64 and 65 to determine the rights of the parties when the same are neither registered nor stamped and were marked subject to objections?

¶202

Ex.P1 is the order dated 29.09.1942 appointing Mohammed Jaffar, the father of the plaintiffs as Kazi in the village of Bandahalli of Kollegal Taluk. This order does not refer

¶203

to grant of any land as attached to the office of Kazi and even there is no reference to TD No.29 to refer it to Item Nos.1 and 2 of the schedule property.

¶204

Ex.P2 is the Register of Inams in the village of Bandahalli. It is having many details, but there is no reference to Item Nos.1 and 2 of the schedule properties. Column No.8 of

¶205

the document refers to Kairathi Grant for the personal benefit of the holder. Very oftenly Kairathi Grant refers to land given as a charitable or religious endowment generally held rent free for the purpose of maintaining the temples, mosque or other

¶206

36 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶207

HC-KAR

¶208

charitable institutions. The very word ‘Kairathi’ refers to charity or charitable gift.

¶209

As per Column No.9, the grant is rent free and as per Column No.10, it is hereditary. Column No.11 of the document makes it clear that this grant was from time immemorial as there is reference to Tippu Sultan, Nawab of Srirangapatna and the year is not known. Column No.3 refers to various survey numbers with all other details in various columns including the extent of the lands. In Column No.22, there is reference to TD No.29.

¶210

Even though, there is no reference to Item Nos.1 and 2 of the schedule properties in Ex.P2 of which, Ex.P3 is the translated copy, it refers to TD No.29 with reference to Kazi B K Mohammed Jaffar Sahib. Again with reference to Sy.Nos.633-A and 633-D of Bandahalli Village, this document is referred to as the Patta receipt issued in favour of the father of plaintiffs as against payment of miscellaneous revenue in respect of Item Nos.1 and 2 of schedule property. Relying on this document, learned senior advocate for the appellants contended that TD Number referred to in Exs.P2 and P3 discloses that the title document in respect of Item Nos.1 and 2 of the schedule is the

¶211

37 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶212

HC-KAR

¶213

land granted since from the time of Tippu Sultan of Srirangapatna. Ex.P2 makes it clear that the grant is rent-free and it is hereditary in nature. Admittedly, the rule of Tippu Sultan as Nawab of Srirangapatna, Mysore was from 1782 till his death in 1799. Therefore, the grant of these items of properties referring to TD No.29 can relate back to 18th century and since then it was inherited from generation to generation till Kazi B.K. Muhammad Abdul Khadar, who is the grandfather of plaintiffs and the defendant. The revenue records particularly Ex.D53 being the copy of Survey Resettlement Register of Bandahalli village with reference to Item Nos.1 and 2 of the schedule stands in the name of Mohammad Kazi Abdul Khadar sahib i.e. the grandfather of the plaintiffs and the defendant.

¶214

It is pertinent to note that, this Ex.D53 do not relate to holding of the property by virtue of the office of Kazi held by him on account of Ex.P3, which is the patta receipt. Ex.P8 is the Record of Rights in respect of Item No.2 of the schedule property. In Column No.9, there is reference to Mohammed Jaffar and one Mallappa and in Column No.10, the inheritance is by the ancestors. Therefore, it is clear that Mohammed

¶215

38 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶216

HC-KAR

¶217

Jaffar, the father of the plaintiffs inherited the property from his

¶218

father. Ex.P9 is a similar Record of Rights in respect of Item No.1 of the schedule and Column No.9 again refers to the name of Mohammed Sikandar i.e. plaintiff No.1 with Khata No.TD-29 and MR No.182/1970-71. We do not know the manner in which the name of plaintiff No.1 came to be entered in the Record of Rights since the mutation register extract is not produced. Ex.P10 is the stray document issued by the Tahsildar of Bandahalli in favour of the father of the plaintiffs, where there is reference to petition dated 29.04.1946 filed by Kazi Mohammed Jaffar Sahib of Bandahalli Village and he was informed that Title Deed No.29 of Bandahalli is attached to the post of Kazi and has since been transferred and the same is followed by Ex.P11 issued by the Tahsildar dated 09.08.1963 informing B.K. Mohamed Jaffar that necessary intimation has been sent to the Sub-Registrar Office, Hanur regarding Patta TD No.29 of Bandahalli Village. Exs.P12 and 13 are dated 31.12.1954-the orders passed by the Tahsildar cancelling the joint registry of the name of B. K. Mohammed Khalander, who is the father of the defendant in respect of TD No.29, attached to the post of Kazi as the MR number was passed inadvertently

¶219

39 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶220

HC-KAR

¶221

without reference to G.O. dated 29.09.1942. However, as per Ex.P14, defendant has made an application to the office of the Tahsildar of Kollegal and accordingly this endorsement was issued to him informing that his application dated 09.06.1972 is rejected and he is advised to approach competent court of law if need be. Thus, the name of the father of the plaintiffs was restored in respect of TD No.29, cancelling the joint registry.

¶222

Ex.P17 is the order passed by the Assistant Commissioner, Sub-Division Mysore in Proceedings No.RR 84/1987-88 preferred by the defendant against the plaintiffs challenging the order of Tahsildar and as per this order, the Assistant Commissioner records that as per the documents, the property in question was held by the ancestors of the plaintiffs and defendant herein and ultimately devolved on the father of the plaintiffs and father of the defendant. Since it was acquired from generation to generation as hereditary and the Land Tribunal passed an order holding that the land is an Inam land, the matter was remitted back to the Tahsildar for fresh consideration. As per Ex.D66, MR No.24/1990-91 in respect to Item Nos.1 and 2 of the schedule property was restored in the joint names as per the order dated 27.12.1990. This order

¶223

40 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶224

HC-KAR

¶225

passed by the Tahsildar was never challenged by the plaintiffs. On the other hand, the suit came to be filed on 21.11.1991 seeking declaration and for permanent injunction against the defendant.

¶226

Ex.P18 is the order of the Land Tribunal, Kollegal, according to which, the District Wakf Committee, Mysore, claimed Item Nos. 1 and 2 of schedule property. The Tribunal, after recording the statement of plaintiff No.1 held that these two items of properties were Kairathi Grant made by Nawab of Srirangapatna and the same was recorded as TD No.29 as per order dated 20.05.1946 and since then family members are cultivating the same. This finding was recorded by the Land Tribunal on the basis of statement given by plaintiff No.1. There is reference to the name of Mohammed Kazi Abdul Khadar Sahib, i.e. the grandfather of plaintiff No.1, who was holding the property and held that there are no documents in favour of the Wakf Board to claim the property and thereby rejected its claim. Ex.D1 is the order of the Land Tribunal, according to which, plaintiff Nos.2, 3 and 4, who are the applicants made

¶227

their claim for grant of land under the provisions of Karnataka Land Reforms Act (for short, 'the KLR Act') against plaintiff

¶228

41 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶229

HC-KAR

¶230

No.1, where plaintiff No.1 clearly admitted that his brothers are

¶231

also entitled for a share in the property. According to the learned counsel for the respondent, it is the collusive application that was filed to bring the property under the purview of KLR Act, to deny the rights of the respondent.

¶232

Exs.D3 to D32 and D44 to D65 relates to Item Nos.3 to 5 of the plaint schedule. Ex.D33 is the Record of Rights in respect of Sy.No.633-A measuring 0.52 acres and in Column No.9, the names of both plaintiff No.1 and defendant are mentioned as Kabjadars. Similar are the Record of Rights produced as per Exs.D34 to 43, where the names of plaintiff No.1 and defendant are shown in Column No.9 as the possessors of the property.

¶233

Ex.D66 is MR 24/1990-91 effected as per the order of the Tahsildar, restoring the name of the defendant in respect of Sy.Nos.633(a), 633(d) of Bandahalli village. Ex.D61 dated 19.11.1954 is the lease deed executed by the father of the defendant with one Chikka Madappa in respect of Sy.Nos.633-A and 633-D. This document is a registered document, which came into existence at an undisputed point of time in the year 1954. Referring to these Item Nos.1 and 2 of the schedule with

¶234

42 -

¶235

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶236

HC-KAR

¶237

Patta No.29, there is also reference to a partition between the brothers while referring to the schedule and the boundaries of the properties.

¶238

Ex.D57 is of the year 1939 and it is the registered Mortgage Deed executed by the father of the plaintiff. Even though Item Nos.1 and 2 are not the subject matter of this Mortgage Deed, there is reference to TD No.29 and the properties which are the subject matter of the mortgage are described with reference to the property that had fallen to his share in TD No.29. Therefore, Ex.P2 is not the document, which has referred T.D.No.29 for the first time, but it was referred much earlier in the year 1939.

¶239

Ex.D58 is the sale deed dated 22.09.1946 executed by the father of the plaintiffs, where there is again reference to a partition. Similar sale deed Ex.D59 dated 23.04.1949 executed by the father of the defendant in favour of Abdul Razak, refers to the partition between the brothers in respect of the property with Patta No.29. Ex.D60 is another sale deed dated 18.07.1957 whereunder admittedly plaintiff No.1 purchased the house property from the father of the defendant. It is stated that the said property was inherited and had fallen

¶240

43 -

¶241

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶242

HC-KAR

¶243

to the share of the father of the defendant. This document is

¶244

categorically admitted by PW1 during cross-examination.

¶245

Exhibit D63(a) is the translated copy of the joint statements by the father of the plaintiffs and the father of the defendant, according to which there was a partition which was affirmed by them by giving the statement. Ex.D64(a) is a similar translated copy having the description of the properties which were partitioned between the brothers, including the properties situated at Bandahalli. Ex.D65(a) is again the translated copy of Muchalika patra dated 14.05.1947 executed by father of the plaintiffs and father of the defendant in the presence of Panchayathdars, according to which, the dispute between the brothers was settled as per the decision of the Panchayatdars and accordingly, there was a partition. Both the parties have agreed to withdraw all the disputes and decided to enjoy the properties that had fallen to their respective shares.

¶246

Exs.D63(a), 64(a) and 65(a), which are the translated copies of the originals Exs.D63, 64 and 65, are dated 14.05.1947. The combined reading of these documents disclose that, there was joint statements by the father of the plaintiffs and the father of the defendant and the muchalika patra, which

¶247

44 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶248

HC-KAR

¶249

clearly disclose that there was a partition amongst them and the same was acknowledged by the brothers. Under such circumstances, the contention of the learned senior advocate for the appellants that these documents are inadmissible evidence, as they are not registered or stamped, cannot be accepted.

¶250

It is relevant to note that the Hon'ble Apex Court in Ajambi (supra), under similar circumstances held that, the father during his lifetime made some arrangements and subsequently reduced into such arrangement writing in a document which was duly acted upon by the Revenue authority by dividing the properties, even though the parties are governed by Mohammedian Law and there is no concept of joint family amongst Muslims, it is open to the father to make arrangements to divide the properties amongst his sons in a particular manner to avoid any dispute which could have arisen after his death. It is held that the same is binding on parties, when such arrangements were accepted by the family members, the same was reduced into writing and which was never questioned by any of the family members.

¶251

45 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶252

HC-KAR

¶253

In the present case, Exs.D63 to D65 are the statements, details of properties and muchalika patra, which throw much light on the contention taken by the defendant that even during the lifetime of the father of the plaintiffs and father of the defendant, the brothers have accepted the partition and have given statements referring to Item Nos.1 and 2 of the schedule and even gave a muchalika patra. Therefore, the contention of the learned counsel for the appellants that, there is no concept of joint family amongst the Mohammedans and hence the grandfather of the plaintiffs and defendant could not have effected partition amongst his sons, cannot be accepted.

¶254

Learned senior advocate for the appellants also contended that the objection was raised by the plaintiffs while marking these documents before the Trial Court, and no findings were recorded by the Trial Court and thereby it has committed an error.

¶255

I have gone through the evidence of DW1 recorded before the Trial Court. During chief-examination of DW1, these documents Exs.D63, 64 and 65 were sought to be marked. The learned Trial Judge made a note that the learned counsel representing the plaintiffs had raised objection for marking

¶256

46 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶257

HC-KAR

¶258

these documents on the ground that those are in Tamil language and not in Court language. It also recorded that these documents which are in Tamil were translated through Court Commissioner and translated copies are marked as Exs.D63(a), 64(a) and 65(a) respectively and thus, the objections were overruled. I do not find any reason to ignore these documents as either the nomenclature or the recitals in these documents require either registration or stamp duty. On the other hand, these documents which came into existence during 1947, between the father of the plaintiffs and the father of the defendant throw much light on the defence taken by the defendant that there was a partition between the brothers and accordingly, they were enjoying the properties including the schedule item Nos.1 and 2.

¶259

Plaintiff No.1 who is examined as PW1, categorically admits during cross-examination that there was a partition between his father and the father of the defendant and also states that his grandfather Kazi Mohammed Abdul Khadar Sahib died in the year 1936. Admittedly, the father of the plaintiffs was appointed as Kazi under Ex.P1 during 1942. There is no explanation as to who was owning Item Nos.1 and 2 of

¶260

47 -

¶261

NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶262

HC-KAR

¶263

the schedule property during this period of 1936 to 1942. If the contention of the plaintiffs is to be accepted that the land was attached to the office of Kazi, there was nobody to hold the properties during this period and admittedly there is no reference to these properties which were re-granted in favour of the father of the plaintiffs under Ex.P1.

¶264

PW1 during cross-examination further admits that, these items were granted by Tippu Sultan, Nawab of Srirangapatna and it was inherited by his ancestors. He also admits Ex.D60, whereunder the father of the defendant had sold the portion of the house in favour of the plaintiffs, where there is reference to the partition and the shares allotted to each of the parties.

¶265

The evidence of PW2 may not help the plaintiffs much to prove the contention of the plaintiffs that, they are exclusively entitled for the right, title and interest over the schedule properties.

¶266

The Kazi Act, 1880 is still in force as the same is not repealed either expressly or by necessary implications under any of the enactments under this Act. Power is conferred on the State Government to appoint a Kazi where there are

¶267

48 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶268

HC-KAR

¶269

considerable number of Mohammedans residing to select one amongst them, and to appoint him as Kazi. The object of the Act expressly states that such appointments do not confer any judicial or administrative powers nor does it make the presence of Kazi compulsory for marriage and other rites and do not prevent any other persons from acting as Kazi. Such appointment of a person to the office of Kazi by no stretch of imagination has to be hereditary. Interestingly, the grandfather of the plaintiffs and the defendant was a Kazi, the same cannot lead to a conclusion that Item Nos.1 and 2 of the schedule properties as held by them are attached to the office of Kazi.

¶270

When all these materials on record are taken into consideration as a whole, I do not have any hesitation to hold that the plaintiffs are not successful in their attempt to prove that, Item Nos.1 and 2 of the schedule properties are attached to the office of Kazi and accordingly, it was being enjoyed exclusively by the father of the plaintiffs. When admittedly none of these plaintiffs are appointed as Kazi, they could not have succeeded to these items of properties, if the same was attached to the office of Kazi. On the other hand, the same

¶271

49 - NC: 2025:KHC:55166 RSA No. 1367 of 2009

¶272

HC-KAR

¶273

should have been revert back to the State. In that view of the matter also, the plaintiffs are not entitled for any reliefs.

¶274

By taking into consideration all the materials on record and on going through the impugned judgment and decree passed by the Trial Court and the judgment passed by the First Appellate Court, I am of the opinion that, both the Courts have consistently formed an opinion in favour of the defendant and it do not call for any interference. Accordingly, I answer substantial questions of law and additional substantial questions of law against the appellants-plaintiffs and in favour of the respondent-defendant and proceed to pass the following:

¶275

ORDER

¶276

The appeal is dismissed with costs.

¶277

Registry is directed to send back the Trial Court records

¶278

along with copy of this judgment.

¶279

Sd/(M G UMA) JUDGE

¶280

MKM List No.: 1 Sl No.: 8

Sri. Mohammed Sikandar v. Mohammed Sardar

Case brief

What is this about?

What did the court decide?

Sri. Mohammed Sikandar v. Mohammed Sardar

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Manjunatha Vs the State of Karnataka

Parvathamma Vs the Special Land Acquisiiton Officer

Samyuktha Systems & Software Ltd. Vs M/S Shri Chitrapur Math

Sri Gururaj U M Vs the State of Karnataka

Smt Prema Kumari Vs Assistant Registrar of Co. Operative Societies

Nagendra Vs the State of Karnataka