ALLAMMA W/O KHADIRASH SUGANDI vs KHASIMSA S/O LALSA NAIKODI

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IN THE HIGH COURT OF KARNATAKA



KALABURAGI BENCH

TH
DATED THIS THE 17 DAY OF SEPTEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO. 7075 OF 2009 (PAR/POS)


BETWEEN:

1. SMT. ALLAMMA W/O KHADIRSA SUNGANDI,
SINCE DECEASED BY HER LR'S.

1A) LALEMASHAK S/O KHADARSAB SUGANDI,
AGED ABOUT 42 YEARS,

1B) KHASIMSAB S/O KHADARSAB SUGANDI,
AGED ABOUT 50 YEARS,

1C) RAZIA BEGUM W/O CHANDSAB ARASNAL,
AGED ABOUT 40 YEARS,

(LA TO 1C ARE ALL R/O. NALATWAD,
TQ: MUDDEBIHAL, DIST: VIJAYAPUR).

1D) RASOOL BEE W/O NASHEKSAB MULLA,
AGE: MAJOR,
R/O: KODEKAL, TQ: SHORAPUR,
DIST: YADGIR.

2. BADSHA SAHEB ALLA BAKSH,
SINCE DECEASED BY HIS LRS.

2A) SHEBBEE W/O MAIBOOBSAB MAKANDAR
AGED ABOUT 52 YEARS, OCC: HOUSE HOLD,
R/O: MAMDAPUR, TQ: BABALESHWAR,
DIST: VIJAYAPUR.










Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA

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2B) NOORJAN W/O MD. HUSSAIN MULLA
AGED ABOUT 42 YEARS, OCC: AGRICULTURE,
R/O: HAVARAGI, TQ: HUNAGUND,
DIST: BAGALKOT.

2C) FATEEMA W/O MASHAKSAB,
AGED ABOUT 44 YEARS, OCC: HOUSE HOLD,
R/O: MUKIHAL, TQ: MUDDEBIHAL,
DIST: VIJAYAPUR.

2D) MAHABUBI W/O HUSSAIN SHAIKH
AGED ABOUT 43 YEARS, OCC: AGRICULTURE,
R/O: MUKIHAL TQ: MUDDEBIHAL,
DIST: VIJAYAPUR,


2E) MEHBUB S/O ALLABAKSH KUNTOJI,
AGED ABOUT 50 YEARS, OCC: AGRICULTURE,
R/O: NALTWAD, TQ: MUDDEBIHAL,
DIST: VIJAYAPUR.

2F) IBRAHIM S/O BHASHASAB KUNTOJI,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O: NALATWAD, TQ: MUDDEBIHAL
DIST: VIJAYAPUR.


…APPELLANTS
(BY SMT. REKHA PATIL, ADVOCATE FOR
SRI. G. G. CHAGASHETTI, ADVOCATE)

AND:

1.


1A)
KHASIMSHA S/O LALSHA NAIKODI,
SINCE DECEASED BY HIS LRS.

ANUSALISAB S/O LATE KHASIMSA,
AGED ABOUT 50 YEARS, OCC: AGRICULTURE,
R/O: KUNTOJI TQ: MUDDEBIHAL,
DIST: VIJAYAPUR.

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1B) LALBEE W/O KHADARSAB CHUTUDU
AGED ABOUT 55 YEARS, OCC: HOUSE HOLD,
R/O: NALATWAD TQ: MUDDEBIHAL
DIST: VIJAYAPUR.

2. REJESA S/O LALSHA NAIKODI,
AGE: MAJOR, R/O B. BAGEWADI,
DIST. VIJAYAPUR.

3. SMT. AMEERBI W/O LALSA RANJANAGI,
AGE: MAJOR, OCC: HOUSEHOLD
R/O MUKHIAL, TQ. BASAVAN BAGEWADI
DIST. BIJAPUR.

4. SMT. JAINAMA W/O MD. SA AUTI,
SINCE DECEASED BY HER LRS

4A) VAJEERBEE W/O CHINIVAL,
AGED ABOUT 60 YEARS,
OCC: HOUSE HOLD,
R/O DINDIVEER TQ: B. BAGEWADI,
DIST: VIJAYAPUR.

5. SMT. FATHIMA W/O BADESAB NIJAWAR,
SINCE DECEASED BY HER LRS.

5A) RAJESAB S/O BHADASAB MUJAWAR,
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
R/O: AYYANGUDI,
TQ: MUDDEBIHAL, DIST: VIJAYAPUR.

5B) SHAJMASTEEN S/O BADESAB MUJAWAR,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/O: DINDAWAR, TQ: B. BAGEWADI,
DIST: VIJAYAPUR.

5C) KHAJAPATEL S/O BHADESAB MUJAWAR,
AGED ABOUT 36 YEARS,

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OCC: AGRICULTURE,
R/O: GOKUL ROAD FIRST GATE
MARUTI NAGAR, INDUSTRIAL, AREA, HUBLI.

5D) KHAJABEE W/O NOOR AHMED NALATWAD,
AGED ABOUT 46 YEARS,
OCC: HOUSE HOLD,
R/O: HALTAF PLOT NEAR MADIN MAJEED OLD,
HUBLI.

5E) MURATAJ S/O BHADESAB MUJAWAR,
AGED ABOUT 44 YEARS,
OCC: AGRICULTURE,
R/O: AYYANGUDI POST: VIJAYAPUR
TQ: MUDDEBIHAL DIST: VIJAYAPUR.

5F) HUSSAINBEE W/O LALESAB KUNTOJI,
AGED ABOUT 35 YEARS,
OCC: HOUSE HOLD,
R/O: DINDAWAR TQ: B. BAGEWADI
DIST: VIJAYAPUR.

5G) LALSAB S/O BHADESAB MUJAWAR,
AGED ABOUT 30 YEARS,
OCC: AGRICULTURE
R/O: GOKUL ROAD, FIRST GATE
MARUTI NAGAR, INDUSTRIAL AREA,
HUBLI.

6. SMT. KHASIMBI
W/O KHASIM SAB NAIKODI,
SINCE DECEASED BY HER LRS.
AND LRS ARE ALREADY ON RECORD
AS A R-1(A) & 1(B).

7. SRI GURAPPA
S/O VEERA BASAPPA ANGADI,

AGE: MAJOR, OCC: AGRICULTURE,
R/O KUNTOJI,

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TQ. MUDDEBIHAL,
DIST. BIJAPUR

8. SRI HUSSEIN SAB
S/O LALESAB NAIKODI,
SINCE DECEASED BY HIS LRS.

8A) GHAFOOR
S/O LATE HUSSAINSAB NAIKODI,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O: OLD BSNL OFFICE P.H.C BACKSIDE
MUDDEBIHAL, TQ: MUDDEBIHAL
DIST: VIJAYAPUR.

8B) MOMMAD S/O HUSSAINSAB,
AGED ABOUT 50 YEARS
OCC: AGRICULTURE,
R/O: KUNTOJI, TQ: MUDDEBIHAL.
DIST: VIJAYAPUR.

8C) ALLISAB
W/O HUSSAINSAB,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE,
R/O: WAJJAL, TQ: HUNSAGI
DIST: YADGIR.

8D) LALESAB
W/O HUSSAINSAB NALATWAD,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE,
R/O: WAJJAL, TQ: HUNASAGI
DIST: YADGIR.

9. SRI ANSARSA,
S/O KHASIMSA NAIKODI,
AGE: MAJOR,
OCC:MASON,
R/O. KUNTOJI,

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TQ. MUDDEBIHAL,
DIST. BIJAPUR-586101.
…RESPONDENTS
(BY SRI. PRAKASH R. KULKARNI, ADVOCATE FOR R7;
SRI SUDHIRSINGH R. VIJAPUR, ADVOCATE FOR R9;
V/O DTD.28.11.2025 NOTICE TO R1(A) AND R8(B)
IS HELD SUFFICIENT;
V/O DTD.18.02.2010 APPEAL ABATES AGAINST R3 & R6;
R1(B), R2, R4(A), R5(A-G), R8(A), R8(C) AND R8(D) ARE
SERVED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO ALLOW THIS REGULAR SECOND APPEAL AND TO
SET-ASIDE THE JUDGMENT AND DECREE DATED 1.8.2008
PASSED BY THE LEARNED CIVIL JUDGE (SR. DN),
MUDDEBIHAL IN R.A.NO.61/2001 CONFIRMING THE JUDGMENT
AND DECREE DATED 2.12.1997 PASSED BY THE CIVIL JUDGE
(JR.DN), MUDDEBIHAL IN O.S.NO.111/1991.

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

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

ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 01.08.2008
passed in RA No. 61 of 2001 by the Court of learned Civil
Judge (Senior Division), Muddebihal (‘ First Appellate
Court ’ for short) confirming the judgment and decree dated
02.12.1997 passed in OS No. 111 of 1991 by the Court of

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learned Principal Civil Judge (Jr.Dn.), Muddebihal (‘ Trial
Court ’ for short).
2. For the sake of convenience, the parties are
referred to based on their rankings before the Trial Court.
Appellants were the plaintiffs and respondents were the
defendants.
3. Brief facts leading rise to the filing of this appeal
are as follows:
3.1. The plaintiffs filed a suit for partition and separate
possession contending that, the suit schedule properties
were earlier belonging to the propositus by name Lalsab. The
said Lalsab had two wives by name Hussainbi and Sahebbi,
who are no more. Defendant Nos.1 to 5 are the children of
Lalsab through his first wife by name Hussainbi and the
plaintiffs are the children of Lalsab through his second wife
by name Sahebbi and defendant No.6 is the wife of
defendant No.1. After the demise of Lalsab, the plaintiffs and
defendants were in common enjoyment of the suit schedule

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properties. Defendant No.1 had created a false sale deed in
favour of his wife-defendant No.6 in respect of land bearing
Sy.No.178/1B and he has also created a bogus seal deed in
favour of defendant No.8 in respect of land bearing
Sy.No.184/1 and similarly, he had illegally sold the suit
schedule properties in favour of defendant No.7. Hence, all
the three sale deeds were executed without the knowledge
of the plaintiffs and the said sale deeds are not binding on
them. Defendant Nos.1 and 2 have not paid the
consideration amount to the plaintiffs. The family of the
plaintiffs and defendant Nos.1 to 5 possesses house property
bearing Panchayath No.170 and land bearing Sy.No.434
measuring 6 acres 20 guntas situated at Dindawar Village of
Basava Bagewadi Taluk, in which the plaintiffs are also
having their shares. The plaintiffs have demanded for
partition and separate possession and defendant Nos.1 to 5
denied their legitimate share. Hence, a cause of action arose
for the plaintiffs to file a suit for partition and separate
possession. Accordingly, pray to decree the suit.

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3.2. Defendant Nos.6 to 8 filed written statements
separately and defendant Nos.1 to 5 were unrepresented
before the Trial Court and they were placed ex-parte .
3.3. Defendant No.6, in her written statement, had
denied the averments made in the plaint and contended that,
she had purchased the land bearing Sy.No.178/1B on
22.06.1955 from defendant No.1 for valid consideration of
Rs.300/- under registered sale deed and defendant Nos.1 to
5 were well aware of execution of the sale deed, and the said
sale deed was for legal and family necessity. The suit is
barred by limitation. Accordingly, prays to dismiss the suit.
3.4. Defendant No.7 filed a written statement
contending that the suit schedule house property had been
purchased from defendant No.2 on 11.06.1986 for valuable
consideration of Rs.6,000/- under a registered sale deed. He
denied the entire allegations made in the plaint.
Accordingly, prays to dismiss the suit.

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3.5. Defendant No.8 filed a written statement denying
the averments made in the plaint and prays to dismiss the
suit.
3.6. The Trial Court, based on the rival pleadings of
the parties, framed the following issues and additional
issues:
1) Whether the plaintiffs proves that they are in joint
possession and enjoyment of the suit properties ?
2) Whether the plaintiffs prove that they are entitled for
th
21/80 share in the suit properties ?
3) Whether defendant No.7 proves that the sale deed
dated 11.06.1986 in respect of VPC No.165 is binding
on the plaintiffs ?
4) Whether defendant No.8 proves that the sale deed
dated 01.12.1975 in respect of Sy.No.184/1 is binding
on plaintiffs ?
5) Whether defendant No.7 and 8 proves that they are
the bonafide purchasers of the suit properties ?
6) What decree or order ?

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Additional Issues : -
1) Whether defendant No.8 proves that Sy.No.178/1B is
her exclusive property ?
2) Whether defendant No.6 proves that the sale deed
dated 22.06.1955 is binding on the plaintiffs ?
3) Whether the defendant No.6 proves that she is the
bonafide purchaser for value ?
4) Whether the suit is within limitation ?

3.7. The plaintiffs, to substantiate their case, plaintiff
No.2 examined himself as PW1, examined one witness as
PW2 and marked four documents as Exs.P1 to P4. In
rebuttal, to substantiate their defence, defendant No.6
examined herself as DW1, defendant No.7 examined himself
as DW3, defendant No.8 examined herself as DW4,
examined one witness as DW2 and marked six documents as
Exs.D1 and D6.
3.8. The Trial Court, after recording the evidence,
hearing both sides and after assessing the verbal and
documentary evidence, answered issue Nos.1, 2 and
additional issue No.4 in the negative, issue Nos.3 to 5 and

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additional issue Nos.1 to 3 in the affirmative and issue No.6
as per the final order. The suit of the plaintiff was dismissed
vide judgment dated 02.12.1997.
3.9. The plaintiffs, aggrieved by the dismissal of suit in
OS No. 111 of 1991, filed a regular appeal in RA No. 61 of
2001 on the file of the First Appellate Court.
3.10. The First Appellate Court, after hearing the
learned counsel for the parties, framed the following points
for consideration:
1) Whether the impugned judgment and decree of the
learned trial Court is arbitrary, perverse, capricious
and opposed to well established principles of law ?
2) Is there any sufficient reason to interfere in the order
of learned trial Court ?
3) What order or decree ?

3.11. The First Appellate Court, after re-appreciating
the entire evidence on record, answered point Nos.1 and 2
in the negative and point No.3 as per the final order. The

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regular appeal was dismissed vide judgment dated
01.08.2008.
4. The plaintiffs, aggrieved by the impugned
judgments and decrees passed by the Courts below, filed this
regular second appeal.
5. Heard the arguments of learned counsel for the
plaintiffs, learned counsel for defendant No.7 and learned
counsel for defendant No.9.
6. Learned counsel for the plaintiffs submits that,
the Courts below have committed an error in non-
consideration of material evidence on record. She submits
that, defendant Nos.1 to 5 have their legitimate share under
the provisions of Mohammedan Law and the transactions
taken place behind the back of the sharers cannot be
enforced against the co-sharers. She further submits that,
the Courts below have committed an error in recording a
finding that the suit is barred by limitation. She submits that,
there is no limitation prescribed for filing the suit for partition

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and separate possession. She submits that, there is no
allotment of shares between the plaintiffs and defendant
Nos.1 to 5 in the family properties. Thus, the impugned
judgments passed by the Courts below are arbitrary and
erroneous. Hence, on these grounds, she prays to dismiss
the appeal.
7. Per contra , learned counsel for defendant No.7
and learned counsel for defendant No.9 supported the
impugned judgments and decrees passed by the Courts
below and pray to dismiss the appeal.
8. None appears for the defendants/legal
representatives of defendant Nos.1 to 5 and 8.
9. Perused the records and considered the
submissions of the learned counsel for the parties.
10. This Court, vide order dated 31.03.2010,
admitted the appeal to consider the following substantial
question of law:

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“In the circumstance that there was no denial of
relationship between the parties and the source of title to
the suit property, whether both the courts below were
justified in dismissing the suit without working out equities
as between the members of the family, even if the
properties were sold to third parties, who may be bona fide
purchasers for value?”

Reg. Substantial Question of Law:
11. It is the case of the plaintiffs that, the suit
schedule properties were owned and possessed by one
Lalsab – the original propositus. He had two wives namely
Hussainbi and Sahebbi, who are no more. Defendant Nos.1
to 5 are the children of Lalsab through first wife Hussainbi
and the plaintiffs are the children of Lalsab through his
second wife Sahebbi. Defendant No.6 is the wife of
defendant No.1. After the demise of Lalsab, the plaintiffs and
defendant Nos.1 to 5 were in common enjoyment of the suit
schedule properties. Defendant No.1 had created a false sale
deed in favour of his wife in respect of land bearing
Sy.No.178/1B and in favour of defendant No.8 in respect of
land bearing Sy.No.184/1. Similarly, he had sold the suit

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schedule properties in favour of defendant No.7. Since all the
suit schedule properties were sold without the knowledge of
the plaintiffs, the said sale deeds are not binding on the
shares of the plaintiffs.
12. Though the plaintiffs have contended that, the
land bearing Sy.No.434 measuring 6 acres 20 guntas
situated at Dindawar of Basava Bagewadi Taluk in which they
are having their shares. From the perusal of the suit, the
said property is not the subject matter of the suit for
partition and separate possession.
13. The plaintiffs, to substantiate their case, plaintiff
No.2 examined himself as PW1 and he reiterated the plaint
averments in the examination-in-chief and produced the
documents marked as Exs.P1 to P4, which discloses that the
property was owned and possessed by Lalsab. The plaintiffs
also examined one Gudusa Maktumsab Nalatwad as PW2.
PW2 has stated that, the plaintiffs and defendant Nos.1 to 5
have not partitioned the suit schedule properties after the
demise of Lalsab.

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14. In rebuttal, defendant No.6 examined herself as
DW1 and she has deposed that, she owns 8 acres 16 guntas
of land at Kuntoji Village and she is in possession for the last
40 years after she had purchased the land from defendant
No.1 for consideration of Rs.300/- and she had produced the
sale deed marked as Ex.D1 and she deposed that, the said
land was purchased by defendant No.6 prior to her marriage
with defendant No.1, and the said sale was for family
necessity and the plaintiffs knew about the fact of execution
of registered sale deed by defendant No.1 in favour of
defendant No.6, and she is cultivating the suit land and
spent Rs.60,000/- to Rs.70,000/- for development of the
land. She had deposed that, the plaintiffs have no share in
the suit schedule properties. Defendant No.6 examined one
witness as DW2. He deposed that, defendant No.6 had
purchased the land from defendant No.1 prior to her
marriage and she is cultivating the said land, and the
plaintiffs have no share in the said land. Defendant No.7
examined himself as DW3. He deposed that, he had
purchased the suit house from defendant No.2 on

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11.06.1986 for consideration of Rs.6,000/- and the said sale
deed was registered and the same was marked as Ex.D5. He
deposed that, the plaintiffs and other defendants knew about
the said sale deed; neither the plaintiffs nor the other
defendants have objected while executing the said registered
sale deed.
15. Defendant No.8 examined himself as DW4. He
deposed that, he had purchased he land bearing
Sy.No.184/1 measuring 7 acres 36 guntas from plaintiff
No.2, defendant No.1 and defendant No.2 for consideration
of Rs.4,000/- and got registered the sale deed and is in
possession of the suit schedule property.
16. From the perusal of the entire evidence on
record, though the sale deeds came to be executed in the
years 1955, 1986 and 1975. Though the plaintiffs had a
knowledge regarding the execution of registered sale deeds
in favour of defendant Nos.6, 7 and 8, despite having
knowledge, the plaintiffs did not challenge the registered sale
deeds. Defendant Nos.1 to 5 did not contest the suit filed by

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the plaintiffs. The suit filed by the plaintiff is a collusive suit
in order to harass the purchasers.
17. The Trial Court, considering the entire evidence
on record, has ruled that, the plaintiffs have failed to prove
that they are in joint possession and enjoyment of the suit
properties; also failed to prove that they are entitled for
th
21/80 share in the suit properties. The Trial Court further
ruled that, defendant No.7 has proved that the sale dated
11.06.1986 in respect of VPC No.165 is binding on the
plaintiffs; defendant No.8 has proved that the sale deed
dated 01.12.1975 in respect of Sy.No.184/1 is binding on
the plaintiffs; defendant Nos.7 and 8 have proved that they
are the bona fide purchasers of the suit properties;
defendant No.8 has proved that, Sy.No.178/1B is her
exclusive property; defendant No.6 has proved that the sale
deed dated 22.06.1955 is binding on the plaintiffs; and
defendant No.6 has proved that she is the bona fide
purchaser for value. The Trial Court, consequently, recorded
a finding that the suit filed by the plaintiffs is barred by

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limitation as the first sale deed was executed in 1955 and as
all the suit schedule properties were sold, question of
working out equities in between the members of the family
does not arise. The sale deeds were executed in the years
1955, 1975 and 1986, but the suit is filed in the year 1997.
As of the date of filing the suit, plaintiff No.1 was aged about
46 years and plaintiff No.2 was aged about 43 years. The
plaintiffs ought to have filed a suit within three years after
attaining the age of majority as per Article 60 of the
Schedule to the Limitation Act, 1963. Thus, both the Courts
below have rightly recorded a finding of fact that the suit
filed by the plaintiffs is barred by limitation.
18. Both the Courts below have concurrently recorded
finding of facts against the plaintiffs. Both the Courts below
were justified in passing the impugned judgments. Hence, I
do not find any error in the impugned judgments.
Accordingly, answering of substantial question of law does
not arise for consideration.

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19. In view of the above discussion, I proceed to pass
the following:
ORDER

i. The regular second appeal is dismissed ;

ii. The impugned judgments and decrees passed by
the Courts below are hereby confirmed ;

iii. Pending IA(s), if any, shall stand disposed of.

Sd/-
(ASHOK S. KINAGI)
JUDGE


PA
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