HASAN KHAN S/O MASTANKHAN PATHAN vs ANWAKHAN S/O MASTANKHAN PATHAN AND ORS

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IN THE HIGH COURT OF KARNATAKA



KALABURAGI BENCH

TH
DATED THIS THE 18 DAY OF SEPTEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO. 200019 OF 2014 (DEC)


BETWEEN:

HASAN KHAN S/O MASTANKHAN PATHAN,
AGE: ABOUT 59 YRS., OCCU: AGRICULTURE,
R/O GULMIRZA GALLI, NEAR SANGESH MASJID,
BASAVAKALYAN, DIST: BIDAR-585327.

…APPELLANT
(BY SRI. M. M. ALI, ADVOCATE)

AND:

1. ANWARKHAN
S/O MASTANKHAN PATHAN,
AGE: ABOUT 56 YRS.,
OCCU: AGRICULTURE,
R/O RAJPUT GALLI,
BASAVAKALYAN-585327.

2. MOULANKHAN
S/O MASTANKHAN PATHAN,
AGE: ABOUT 66 YRS.,
OCCU: AGRICULTURE,
R/O GULMIRZA GALLI,
NEAR SANGESH MASJID,
BASAVAKALYAN,
DIST: BIDAR-585327.

3. MAHABOOB S/O MASTANKHAN PATHAN,










Digitally signed by
VARSHA N
RASALKAR
Location: HIGH
COURT OF
KARNATAKA

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AGE: ABOUT 56 YRS.,
OCCU: AGRICULTURE,
R/O GULMIRZA GALLI,
NEAR SANGESH MASJID,
BASAVAKALYAN,
DIST: BIDAR-585327.

4. FAIZKHAN S/O MASTANKHAN PATHAN,
AGE: ABOUT 36 YRS.,
OCCU: AGRICULTURE,
R/O GULMIRZA GALLI,
NEAR SANGESH MASJID,
BASAVAKALYAN,
DIST: BIDAR-585327.

5. GAFFARKHAN S/O HASANKHAN PATHAN,
AGE: ABOUT 31 YRS.,
OCCU: AGRICULTURE,
R/O GULMIRZA GALLI,
NEAR SANGESH MASJID,
BASAVAKALYAN, DIST: BIDAR-585327.

6. SATTARKHAN S/O HASANKHAN PATHAN,
AGE: ABOUT 29 YRS.,
OCCU: AGRICULTURE,
R/O GULMIRZA GALLI,
NEAR SANGESH MASJID,
BASAVAKALYAN, DIST: BIDAR-585327.

7. AFSARKHAN S/O HASANKHAN PATHAN,
AGE: ABOUT 26 YRS.,
OCCU: AGRICULTURE,
R/O GULMIRZA GALLI,
NEAR SANGESH MASJID,
BASAVAKALYAN,
DIST: BIDAR-585327.

8. SHAIKH JAVEED S/O KHAJAMIYAN SHAIKH,
AGE ABOUT 49 YRS.,
OCCU: AGRICULTURE,

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R/O GULMIRZA GALLI,
BASAVAKALYAN,
DIST: BIDAR-585327.

9. MOHAMMED ROYAZODDIN
S/O TAJODDIN NAIKWADE,
AGE: ABOUT 37 YRS., OCCU: AGRICULTURE,
R/O RENA GALLI, BASAVAKALYAN,
DIST: BIDAR-585327.

10. IMARAN KHAN S/O SHER KHAN,
AGE : ABOUT 37 YRS.,
OCCU : AGRICULTURE & BUSINESS,
R/O QILLA GALLI, BASAVAKALYAN,
DIST: BIDAR-585327.

11. GURUNATH S/O MANIK,
AGE : ABOUT 51 YRS.,
OCCU : AGRICULTURE,
R/O BUS STAND ROAD, ISHWAR NAGAR,
BASAVAKALYAN, DIST: BIDAR-585327.
…RESPONDENTS
(BY SRI. GANESH S. KALBURGI AND
SRI. DESHPANDE G.V., ADVOCATES FOR R1;
SRI. SACHIN M. MAHAJAN, ADVOCATE FOR R8 TO R11
V/O DTD.01.03.2014 NOTICE TO R2 TO R7
DISPENSED WITH)

THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL AND THEREBY SET ASIDE
THE JUDGMENT AND DECREE PASSED IN R.A. NO. 26/2009
DATED 19-10-2013 BY THE COURT OF SENIOR CIVIL JUDGE
BASAVAKLAYAN CONFIRMING THE JUDGMENT AND DECREE
PASSED IN O.S.NO.53/2007 DATED 20-07-2009 BY THE CIVIL
JUDGE (JR.DN) AND JMFC BASAVAKALYAN AND TO DISMISS
THE SUIT WITH COST THROUGHOUT.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
ORAL JUDGMENT

1. This regular second appeal is filed by the appellant
challenging the judgment and decree dated
19.10.2013 passed in R.A. No.26 of 2009 by the
learned Senior Civil Judge, Basvakalyan, (for short,
‘ the First Appellate Court ’) confirming the
judgment and decree passed in O.S. No.53 of 2007
dated 20.07.2009 by the learned Civil Judge,
Basavakalyan (for short, ‘ the Trial Court ’).

2. For convenience, the parties are referred to based on
their ranking before the Trial Court: the appellant
was defendant No.1 and respondent No.1 was the
plaintiff and the other respondents were the other
defendants.

3. Brief facts leading rise to the filing of this appeal are
as follows:

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4. The plaintiff filed a suit for declaration of ownership
and also sought for a decree for perpetual injunction
against the defendants. It is the case of the plaintiff
that the father of the plaintiff, Mastan Khan, was the
owner of land bearing Survey No.140/2 measuring
13 acres 26 guntas of Bet-Balkunda with other non-
suit lands and house properties, at Basavakalyan.

5. During his lifetime, about 15 years back, a partition
had taken place among the father and sons. In the
said partition, the plaintiff was allotted a land bearing
Survey No.140/2G measuring 3 acres 18 guntas and
non-suit house No.4-2-58 measuring east-west 30
feet and north-south 40 feet, towards the western
portion and the house was jointly purchased by the
plaintiff and defendant No.1, and remaining half
portion was owned and possessed by defendant
No.1. It is contended that as per the partition and
settlement in the form of an affidavit dated
29.04.1997, he became the absolute owner and is in

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possession of the suit schedule property. However,
the defendants tried to interfere with the possession
of the plaintiff over the suit schedule property.
Hence, a cause of action arose for the plaintiff to file
a suit for declaration and perpetual injunction.
Accordingly, prays to decree the suit.

6. Defendant No.1 filed a written statement contending
that the family settlement in the form of an affidavit
dated 29.04.1997 was cancelled by virtue of an
agreement dated 14.05.2003 in between the plaintiff
and defendant No.1 in the presence of witnesses and
other brothers of the plaintiff and defendant No.1.
Therefore, defendant No.1 is the owner in possession
of the suit land. The plaintiff has got no concern with
the ownership and possession of the suit land in any
manner. Defendant No.1’s name is appearing in the
record of rights regarding the suit land as the owner
and possessor. It is contended that there is no cause
of action to file a suit. The cause of action shown in

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the plaint is false and imaginary and accordingly,
prays to dismiss the suit.

7. Based on the rival pleadings of the parties, the Trial
Court framed the following issues:
“1) Whether the plaintiff proves that he
has become the owner of suit land
through agreement dated
19.04.1997 executed by himself
and defendant No.1?
2) Whether the plaintiff proves his
possession over the suit land as on
the date of suit?
3) Whether the defendants prove the
execution of agreement dated
14.05.2003?
4) Do they prove that this suit is hit by
non joinder of necessary parties?
5) Do they prove that the market value
of the suit property exceeds
pecuniary jurisdiction of this court
and hence this court has no

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pecuniary jurisdiction to entertain
the suit ?
6) Do they further prove that the court
fee paid is insufficient ?
7) Whether the plaintiff is entitled for
relief of declaration and injunction ?
8) What order or decree ?”

8. The plaintiff to substantiate his case examined
himself as PW1, and marked 11 documents as
Exhibits P1 to P11.

9. In rebuttal, defendant No.1 examined himself as
DW1, Defendant No.3 examined himself as DW2, and
marked 5 documents as Exhibits D1 to D5.

10. The Trial Court, after recording the evidence, hearing
both sides and assessing the verbal and
documentary evidence on record, answered issue
Nos.1, 3, 4, 5 and 6 in Negative; issue No.2 in
affirmative; issue No.7 partly in affirmative; and
issue No.8 as per the final order. The suit of the

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plaintiff seeking a declaration of title in respect of the
suit land was dismissed, however, the suit of the
plaintiff insofar as the relief of decree for permanent
injunction was decreed with cost and the defendants,
their men, their agents, etc. were restrained from
illegal interference or obstruction in the possession
over the suit land bearing Survey No.140/2F
measuring 1 acre 25 guntas of Betta-Balkunda, by
way of permanent injunction vide judgment dated
20.07.2009.

11. Defendant No.1 aggrieved by the judgment and
decree of permanent injunction granted in O.S.
No.53 of 2007 preferred an appeal in R.A. No.26 of
2009 on the file of the learned Senior Civil Judge
Basavakalyan.

12. The First Appellate Court, after hearing the learned
counsel for the parties, framed the following points
for consideration:

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“(i) Whether trial court is justified in
decreeing the suit ?
(ii) Whether appellant has made out
any ground for this court to
interfere in the Judgment of the
trial court ?
(iii) What order ?”

13. The First Appellate Court, after re-appreciating the
entire evidence on record, answered point No.1 in
affirmative; point No.2 in negative and point No.3 as
per the final order. The appeal was dismissed and
the judgment and decree dated 20.07.2009 passed
in O.S. No.53 of 2007 by the Trial Court was
confirmed by the judgment dated 19.10.2013.

14. Defendant No.1, aggrieved by the impugned
judgments, has filed this regular second appeal.

15. Heard the arguments of the learned counsel for
defendant No.1 and the learned counsel for the
plaintiff.

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16. Learned counsel for defendant No.1 submits that
admittedly the suit is one for declaration of title, and
a consequential relief of permanent injunction. He
submits that permanent injunction is a consequential
relief. When the main prayer for declaration of title
was rejected by the trial Court, it could not have
granted a consequential relief of permanent
injunction. The evidence adduced was not properly
considered by the trial Court, and committed an error
in decreeing the suit for permanent injunction. He
also submits that the First Appellate Court without
considering the said aspect, has affirmed the
judgment and decree passed by the Trial Court. The
First Appellate Court has not re-appreciated the
entire evidence on record, and has confirmed the
judgment and decree passed by the Trial Court. He
submits that the impugned judgments and decrees
passed by the Courts below are arbitrary and

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erroneous. Hence, on these grounds, he prays to
allow the appeal.

17. Per contra, learned counsel for the plaintiff supported
the impugned judgments and submitted that the
plaintiff is in possession of the suit schedule
property, and the Trial Court has rightly granted a
decree for permanent injunction. Hence, on these
grounds, he prays to dismiss the appeal.

18. This Court vide order dated 22.10.2019 admitted the
appeal to consider the following substantial question
of law:
“ Whether both the Courts below
have wrongly came to a conclusion
that the plaintiff holds possession of
1 acre 25 guntas of land in Survey
No.140/2F of Betta-Balkunda to
grant a decree of permanent
injunction despite the fact that
Exhibit D2 shows the handing over of
possession of this land to defendant
No.1?”

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Reg. Substantial Question of Law:

19. It is the case of the plaintiff that the plaintiff is the
absolute owner of the suit schedule property. There
was a partition effected by Mastan Khan i.e., father
of plaintiff. In the said partition, the suit schedule
properties fell to the share of plaintiff and
subsequently, the said partition was evidenced by a
family settlement, which was reduced into writing.
Thus, it is the contention of the plaintiff that, based
on the partition, he became the absolute owner of
the suit schedule property.

20. The plaintiff, to substantiate his case, examined
himself as PW1, and he reiterated the plaint
averments in the examination-in-chief, and he has
produced a copy of the order passed by the Tahsildar
marked as Exhibit P1; Exhibit P2 is the mutation
entry; Exhibits P3 to P11 are the copies of RTCs,
which disclose that defendant No.1 is in possession
of the suit schedule property.

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21. During cross-examination, it is suggested that the
family settlement by way of an affidavit was
cancelled by an agreement dated 14.05.2003 in the
presence of witnesses. The said suggestion was
denied by PW1.

22. Defendant No.1 was examined as DW1 and he
reiterated the written statement averments in the
examination-in-chief, and to prove the defence of the
defendants, the defendants have produced the
documents: Exhibit D1 is the affidavit which clearly
discloses that as per Exhibit D1, the plaintiff gave
Rs.25,000/-, and allotted the western half portion of
the house to defendant No.1 and it was agreed
between the parties that the suit land should go to
the plaintiff, and the parties admitted regarding the
execution of Exhibit D1.

23. The defendants have produced the agreement deed
marked as Exhibit D2, which clearly discloses that

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Exhibit D1 was cancelled, and further, Exhibit D1 is
not registered. The trial Court declined to consider
Exhibit D1 only on the ground that it is not a
registered document, and the entire case of the
plaintiff is based on Exhibit D1. When Exhibit D1 is
inadmissible in evidence, the plaintiff cannot claim to
be the absolute owner of the suit property based on
an inadmissible document. The trial Court has
recorded a finding that the plaintiff has failed to
prove that he has become the owner of the suit
schedule land through an agreement dated
29.04.1997, executed between the plaintiff and
defendant No.1. While recording the said
observation, the trial Court has recorded a finding
that the plaintiff is in possession of the suit land. The
main relief sought by the plaintiff is relief of
declaration of title, and, the relief of perpetual
injunction is a consequential relief. When the plaintiff
is not entitled for the main relief, the trial Court

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could not have granted the consequential relief of
perpetual injunction.

24. This Court, in the case of Mr.Albert Rodrigues and
another v. Mr.Valerian Rodrigues and another,
in RSA No.279 of 2013 disposed of on 01.03.2024
has observed in paragraph 30 as under:
“30. It is a suit for declaration with a
further relief. Whether the further relief
claim has, in a particular case as a
consequential upon a declaration is
adequate must always depend upon the
facts and circumstances of each case.
Where once a suit is held is not
maintainable, no relief of injunction can
be granted even against the true owner
of the property, only when the person
seeking the relief is in law full
possession and enjoyment and also
legally entitled to be in possession, not
to dispossess in except in due process of
law, so admittedly in the instant case,
the trial Court dismissed the entire suit
of the plaintiff wherein the appellate

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Court has confirmed the dismissal of the
declaration of the suit, but however
grated a relief of injunction, which is
contrary to the law laid down by the
Hon'ble Apex Court in case referred
supra . [Padhiyar Prahladji Chenaji vs
Maniben Jagmalbhai (Deceased)
Through LR’s and others (Padhiyar
Prahladji Chenaji) reported in (2022)
2 SCR 3465 in Civil Appeal
No.1382/2022, disposed of on
03.03.2022.]”

25. The Hon'ble Apex Court, in the case of Padhiyar
Prahladji Chenaji ( supra ) , held in paragraph 11 as
follows:
"11.1 An injunction is a consequential
relief and in a suit for declaration with a
consequential relief of injunction, it is not
a suit for declaration simpliciter, it is a suit
for declaration with a further relief.
Whether the further relief claimed has, in
a particular case as consequential upon a
declaration is adequate must always
depend upon the facts and circumstances
of each case. Where once a suit is held

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not maintainable, no relief of injunction
can be granted. Injunction may be
granted even against the true owner of
the property, only when the person
seeking the relief is in lawful possession
and enjoyment of the property and also
legally entitled to be in possession, not to
disposes him, except in due process of
law."

26. From the perusal of Exhibit D2, it clearly discloses
that defendant No.1 is in possession of the suit
schedule property.

27. The Trial Court dismissed the suit for declaration and
decreed the suit for perpetual injunction; when the
plaintiff is not entitled for the main relief, hence, the
question of granting consequential relief does not
arise. The Trial Court, without considering the said
aspect, has decreed the suit for perpetual injunction,
which is a consequential relief and the First Appellate
Court has confirmed the judgment and decree
passed by the Trial Court.

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28. The impugned judgments passed by the Courts
below are contrary to the judgments rendered by the
Hon'ble Apex Court in Padhiyar Prahladji Chenaji
(supra) and also by this Court in the case of
Mr.Albert Rodriguez (supra) .

29. Thus, the impugned judgments passed by the Courts
below are arbitrary, erroneous and are on the wrong
assumption.

30. In view of the above discussion, I answer the
substantial question of law in the affirmative.

31. In the result, I proceed to pass the following Order:
ORDER
(i) The Regular Second Appeal is
allowed ;
(ii) The impugned judgment and
decree dated 19.10.2013 passed
in R.A. No.26 of 2009 by the
learned Senior Civil Judge,
Basvakalyan, confirming the

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judgment and decree passed in
O.S. No.53 of 2007 dated
20.07.2009 by the learned Civil
Judge, Basavakalyan, are set
aside.
(iii) Consequently, the suit in O.S.
No.53 of 2007 is dismissed.
(iv) No order as to the costs.


Sd/-
(ASHOK S. KINAGI)
JUDGE




RK
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