Dismissed

Shri Nijamuddin S/O Aminsab Peerjade v. Smt Akhtarbegum W/O Mohammadiqbal Khaji

Karnataka HC29 Aug 2024RFA/100219/2024

Case brief

AI extract

What is this about?

This First Appeal challenges a partition decree. The Court held that although the plaint lacked initial boundary details, the amendment matched the appellants' own statements and caused no prejudice. The appeal was dismissed as all contentions were refuted.

What did the court decide?

The appeal was rejected, affirming the lower court's decree of partition granting 1/7th share to each respondent.

Shri Nijamuddin S/O Aminsab Peerjade Vs Smt Akhtarbegum W/O… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12344-DB RFA No. 100219 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 29^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 100219 OF 2024 (PAR/POS)

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BETWEEN:

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SHRI NIJAMUDDIN S/O. AMINSAB PEERJADE AGE. 75 YEARS, OCC. BUSINESS, R/O: SHREE NAGAR, AMBEKAR HALL, NEAR WATER TANK BELAGAVI-590001.

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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SHRI BADRUDDIN S/O. AMINSAB PEERJADE AGE. 70 YEARS, OCC. AGRIL R/O: PATAGUNDI, TQ. GOKAK, DIST. BELAGAVI

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…APPELLANTS

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(BY SRI. SHARAD V. MAGADUM, ADVOCATE)

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AND:

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SMT. AKHTARBEGUM W/O. MOHAMMADIQBAL KHAJI AGE. 60 YEARS, OCC. HOUSEWIFE AND AGRICULTURE, R/O: CTS NO. 4685 MOMIN GALLI, GURUWAR PETH, GOKAK, DIST. BELAGAVI-591307.

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2 - NC: 2024:KHC-D:12344-DB RFA No. 100219 of 2024

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SMT. ABEDA W/O. JAILANI GILAGINCHI AGE. 58 YEARS, OCC. HOUSWIFE, R/O: CTS NO. 4685, MOMIN GALLI, GURUWAR PETH, GOKAK, DIST. BELAGAVI-591307.

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SMT. JAYIDA W/O. ABDULREHMAN KHAJI AGE. 56 YEARS, OCC. HOUSEWIFE AND AGRICULTURE, R/O. CTS NO. 4685 MOMIN GALLI, GURUWAR PETH, GOKAK, DIST. BELAGAVI-591307.

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…RESPONDENTS

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(BY SRI. KIRANKUMAR S. CHATTIMATH, ADVOCATE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.02.2024 PASSED IN O.S.NO.83/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION.

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

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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3 - NC: 2024:KHC-D:12344-DB RFA No. 100219 of 2024

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD)

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This appeal is filed by the defendants in O.S No.83/2015 on the file of I-Additional Senior Civil Judge, Gokak, Belagavi district [for short, “The Civil Court”]. The respondents’ suit in O.S No.83/2015 for partition is decreed declaring that each of these respondents would be entitled for 1/7^th share in the suit schedule properties.

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Sri. Sharad V. Magadum and Sri.Kirankumar S. Chattimath, the learned counsel for the parties, are heard for final disposal of the appeal in the light of the following submissions.

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[a] The parties do not dispute inter se relationship viz., that the appellants are brothers and the respondents are their sisters.

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[b] The suit schedule properties have devolved on to the siblings on the demise of their parents Sri.Aminsab and Sri Shamsunnisa.

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[c] The civil Court has decreed the suit granting to each of the respondents half of the share that

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NC: 2024:KHC-D:12344-DB RFA No. 100219 of 2024

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each of the appellants [the brothers] would be entitled to in accordance that the personal law applicable to the parties.

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[d] The appellants’ grievance with the impugned judgment is essential because of the procedure adopted by the civil Court.

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As regards the appellants’ grievances with the procedure, Sri.Sharad.V.Magdum, the learned counsel for the appellants, submits that the respondents have filed the subject suit listing immovable properties but without providing boundaries as would be required under the provisions of Order VII Rule 3 of the Code of Civil Procedure, 1908 [for short, “CPC”], and as such, the defendants have raised the specific contention that the properties are not adequately described and the suit therefore cannot be sustained. The learned counsel further submits that the parties have led their evidence on the basis of such defense with the appellants themselves providing for the boundaries of the suit schedule lands in the Written Statement.

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Sri. Sharad V. Magdum further submits that it is indisputable that the civil Court reserved the suit for judgment after hearing the learned counsels for the parties for a decision,

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5 - NC: 2024:KHC-D:12344-DB RFA No. 100219 of 2024

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and it is at this stage, the respondents have filed an application for amendment of the plaint and that the civil Court has allowed the application and proceeded to pass the impugned judgment and decree. The learned counsel canvasses that the civil Court could not have proceeded to pass judgment without due opportunity to the appellants to contest the amendment.

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However, when queried pointedly, Sri. Sharad V. Magdum cannot dispute that the amendment furnishing the boundaries for the suit schedule properties is according to the description asserted by the appellants in their Written Statement and reiterated in their evidence. In the circumstances of the case, this Court must opine that even if for some reasons exception could be taken with the procedure that is allowed by the civil Court, the appellants are not prejudiced inasmuch as the amendment is in tandem with their case. Therefore, there cannot be any interference on this ground.

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Sri. Sharad V. Magdum also proposes to canvass contests that the suit is filed 20 years after a waradi [an application for change in revenue entries for the suit schedule properties] is submitted by the appellants, but then, when the appellants do not contend that such waradi is consequent to a

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NC: 2024:KHC-D:12344-DB RFA No. 100219 of 2024

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registered deed, this grievance cannot be a reason to opine that the respondents have relinquished / transferred admitted rights in the suit schedule properties to bar a suit for partition by them for shares / partition.

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Therefore, the appeal stands rejected.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C.M.JOSHI) JUDGE

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PMP

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LIST NO.: 1 SL NO.: 22

Shri Nijamuddin S/O Aminsab Peerjade v. Smt Akhtarbegum W/O Mohammadiqbal Khaji

Case brief

What is this about?

What did the court decide?

Shri Nijamuddin S/O Aminsab Peerjade v. Smt Akhtarbegum W/O Mohammadiqbal Khaji

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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