Kishor Kumar S/O Pundalik Rao Sarwade Vs Mahaboobsab S/O Abdulkarimasab Siddi

S/O. PUNDALIK RAO SARWADE, AGE: 53 YEARS OCC: BUSINESS, R/O: H. NO. 399K/3 SAVITA MAHARSHI CIRCLE, GANDIMADI ROAD AT GADAG – 582 103, TQ / DIST: GADAG.

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Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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SUVARNA, W/O. RACHAPPA NALAWAD, AGE: 61 YEARS OCC: HOMEMAKER, R/O: NEAR VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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HONNURSAB, S/O. ABDULSAB MARANABASARI, AGE: 47 YEARS, OCC: BUSINESS, R/O: #113, ASHRAY COLONY, GADAG–582 103, TQ / DIST: GADAG.

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NAGARAJ, S/O. DATTATRAYA VERNEKAR, AGE: 55 YEARS, OCC: BUSINESS, R/O: OPP TO SBI ATM, K.C. RANI ROAD, GADAG – 582 103, TQ / DIST: GADAG.

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SUMITRA, W/O. DATTATRAYA VERNEKAR, AGE: 76 YEARS OCC: HOMEMAKER, R/O: NEAR VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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GANAPATASA, S/O. YALLOSA HABIB, AGE: 37 YEARS, OCC: BUSINESS, R/O: #159/1-2-3 PLOT NO. 11, NEAR CAMBRIDGE SCHOOL, ADARSH NAGAR, GADAG – 582 103, TQ / DIST: GADAG.

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PRABHAKAR, S/O VITHALASA BADI, AGE: 67 YEARS OCC: RTD PERSON, R/O: H. NO. 399K/36 SAVITA MAHASHE CIRCLE, GANDIMADI ROAD, GADAG – 582 103, TQ / DIST: GADAG.

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ARAVINDASA, S/O. SUBBANASA BAKALE, AGE: 52 YEARS OCC: BUSINESS, R/O: H. NO.227/1, BANKAR'S COLONY, GADAG – 582 103, TQ / DIST: GADAG.

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BHIMAJI, S/O RAMACHANDRA KULAKARNI, AGE: 81 YEARS, OCC: BUSINESS, R/O: ANAND NAGAR, HUDCO COLONY SOUTH, GADAG – 582 103, TQ / DIST: GADAG.

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NASIMABANU, W/O. NAZEERAHAMMAD LAKKUNDI, AGE: 56 YEARS OCC: HOMEMAKER, R/O: GANDIMADI ROAD, AT GADAG – 582 103, TQ / DIST: GADAG.

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SHIDDAPPA, S/O. MAHANTAPPA METI, AGE: 52 YEARS OCC: SERVICE, R/O: POLICE QUATORS, MALALSAMUDRA – 582 103, TQ / DIST: GADAG.

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KAMALAKHAN, S/O. YASEENAKAHAN PATHAN, AGE: 64 YEARS OCC: BUSINESS, R/O: KATAGAR ONI, JAVALI BAZAR, AT GADAG – 582 103, TQ / DIST: GADAG.

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ISHWARAPPA, S/O. BASAVANNEPPA MENASAGI, AGE: 68 YEARS OCC: BUSINESS, R/O: VIJAY NAGAR, AT GADAG – 582 103, TQ / DIST: GADAG.

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ASHOK, S/O. ADIVEPPA KUMBAR, AGE: 68 YEARS, OCC: BUSINESS, R/O: BASAVA NILAYA, VIJAY NAGAR, GANGIMADI ROAD, AT GADAG – 582 103, TQ / DIST: GADAG.

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GEETA, W/O. VEERUPAXAPPA NEELAGUND, AGE: 46 YEARS, OCC: HOMEMAKER, R/O: 2^ND CROSS, HUDCO COLONY, AT GADAG – 582 103, TQ / DIST: GADAG.

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NAGAPPA, S/O. MAHANTAPPA NEELAGAR, AGE: 73 YEARS, OCC: BUSINESS, R/O: VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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SAYYAD MURTUZA, S/O. MAHAMMADAGOUS KHAZI,

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AGE: 33 YEARS OCC: BUSINESS, R/O: NEAR VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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BASHEERAMMAD, S/O. ABDULKHADAR BEPARI, AGE: 57 YEARS OCC: BUSINESS, R/O: #399K/43, NEAR VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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KASHAVVA, W/O. SHIVAKAUMAR MUGANUR, AGE: 47 YEARS OCC: TEACHER, R/O: #399K/44, NEAR VIJYA NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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MODINASAB, S/O. MUKTUMASAB BHAVIKATTI, AGE: 68 YEARS, OCC: BUSINESS, R/O: #399K/45, NEAR VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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JAIBUNNISA, W/O. MODINASAB BHAVIKATTI, AGE: 64 YEARS OCC: HOMEMAKER, R/O: #399K/45, NEAR VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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ARJUNSA, S/O. NARAYASA BAKALE, AGE: 58 YEARS OCC: BUSINESS, R/O: NEAR LAXMI TEMPLE, MASARI, AT GADAG – 582 103, TQ / DIST: GADAG.

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RAVEENDRA, S/O. DATTATRAYA VERNEKAR, AGE: 54 YEARS, OCC: BUSINESS, R/O: OPP TO SBI ATM, K.C. RANI ROAD,

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AT GADAG – 582 103, TQ / DIST: GADAG.

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LADASAHED, S/O. RAHIMANASAHEB ITAGI, AGE: 68 YEARS OCC: BUSINESS, R/O: #399K/56 NEAR VIJYA NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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NAGESH, S/O. RAMAKRISHANASA HABEEB, AGE: 47 YEARS OCC: BUSINESS, R/O: NEAR ALUR GURAPPAN COMPOUND, AT GADAG – 582 103, TQ / DIST: GADAG.

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AMBALALASA, S/O. RAMAKRISHANASA HABEEB, AGE: 43 YEARS OCC: BUSINESS, R/O: NEAR ALUR GURAPPAN COMPOUND, AT GADAG – 582 103, TQ / DIST: GADAG.

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REYAZUDDIN, S/O. RAJAHUSAISAHED MORAB, AGE: 75 YEARS, OCC: BUSINESS, R/O: # 399K/58 NEAR VIJAY NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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NAZAMABEGUM, W/O. KAMALAKHAN PATHAN, AGE: 49 YEARS, OCC: HOMEMAKER, R/O: KATAGAR ONI, JAVALI BAZAR, AT GADAG – 582 103, TQ / DIST: GADAG.

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MAHAMMAD SADIK S/O. ABDULVAHAB HANAGI, AGE: 40 YEARS OCC: BUSINESS, R/O: #102 BEHIND VIJYA NAGAR SCHOOL,

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AT GADAG – 582 103, TQ / DIST: GADAG.

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FIROZA, S/O. RAIMASAB HONAWAD, AGE: 40 YEARS OCC: BUSINESS, R/O: #399K/64 NEAR VIJYA NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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RAMACHANDRA, S/O. PALAXAPPA KOPARDE, AGE: 40 YEARS OCC: BUSINESS, R/O: NEAR RING ROAD, GANGIMADI ROAD, AT GADAG – 582 103, TQ / DIST: GADAG.

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VENKATESH, S/O PALAXAPPA KOPARDE, AGE: 54 YEARS OCC: BUSINESS, R/O: NEAR RING ROAD, GANGIMADI ROAD, AT GADAG – 582 103, TQ / DIST: GADAG.

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RIZWAN AHAMMAD, S/O. MAHAMMADARAFIQ MURADAKHAN, AGE: 38 YEARS OCC: PVT JOB, R/O: # 796 RAMALINGESHWAR NAGAR, GOKUL ROAD AT HUBBALLI – 580 030, TQ: HUBBALLI, DIST: DHARWAD.

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MAZAHARHUSAIN, S/O. MADARASAB MULLA, AGE: 49 YEARS, OCC: BUSINESS, R/O: MAKANA GALLI, AT GADAG – 582 103, TQ / DIST: GADAG.

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35. SHANKRAPPA,

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S/O. FAKKIRAPPA SOMASAGAR, AGE: 52 YEARS, OCC: SERVICE, R/O: #399K/27 NEAR VIJYA NAGAR SCHOOL, AT GADAG – 582 103,

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TQ / DIST: GADAG.

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SHAKILABANU, D/O. MAHAMMADALSMAIL PATIL, AGE: 54 YEARS, OCC: HOMEMAKER, R/O: #399K/51/B NEAR VIJYA NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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DEVAKKA, W/O. RUDRAPPA VENKATAPUR @ LAKKANNAVAR, AGE: 59 YEARS, OCC: HOMEMAKER, R/O: GANGAPUR PETH, AT GADAG – 582 103, TQ / DIST: GADAG.

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SHANMUKHA, S/O. RUDRAPPA VENKATAPUR @ LAKKANNAVAR, AGE: 28 YEARS, OCC: PVT JOB, R/O: GANGAPUR PETH, AT GADAG – 582 103, TQ / DIST: GADAG.

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MUKTUMSAB, S/O. HUSAINSAB ITAGI, AGE: 61 YEARS, OCC: RTD PERSON, R/O: NEAR SAVITA MAHARSHI CIRCLE, GANDIMADI ROAD, AT GADAG – 582 103, TQ / DIST: GADAG.

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KASHIMALI, S/O. KASHIMASAB GANDKUDARI, AGE: 47 YEARS OCC: SERVICE, R/O: NEAR SAVITA MAHARSHI CIRCLE, GANDIMADI ROAD, AT GADAG – 582 103, TQ / DIST: GADAG.

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SHANKAR, S/O. SUBBANASA BAKALE, AGE: 42 YEARS, OCC: BUSINESS, R/O: BANKARA'S COLONY, MULAGUND ROAD,

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AT GADAG – 582 103, TQ / DIST: GADAG.

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NAGENDRASA, S/O. SUBBANASA BAKALE, AGE: 45 YEARS OCC: BUSINESS, R/O: BANKARA'S COLONY, MULAGUND ROAD, AT GADAG – 582 103, TQ / DIST: GADAG.

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SHANKAR, S/O. YALLAPPA BENAGI, AGE: 60 YEARS, OCC: SERVICE, R/O: JAVALI GALLI, AT GADAG – 582 103, TQ / DIST: GADAG.

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VIJAYALAXMI, W/O. YALLAPPAGOUDA HUILAGOL, AGE: 54 YEARS, OCC: SERVICE, R/O: 399K/54, NEAR VIJAYA NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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RAFIQ, S/O. BASHASAB MULLA, AGE: 48 YEARS, OCC: PVT WORK, R/O: 399K/61, NEAR VIJAYA NAGAR SCHOOL, AT GADAG – 582 103, TQ / DIST: GADAG.

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…APPELLANTS

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(BY SRI. CHANNABASAVARAJ S.SHETTAR, ADVOCATE)

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AND:

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MAHABOOBSAB, S/O. ABDULKARIMASAB SIDDI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: BEHIND SRI VEERANARAYANA TEMPLE, AT GADAG – 582 103, TQ & DIST: GADAG.

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MALLIKARJUNAPPA S/O. FAKKIRAPPA MALLADAD, AGE: 65 YEARS, OCC: BUSINESS, R/O: BEHIND SRI VEERANARAYANA TEMPLE, AT GADAG – 582 103, TQ & DIST: GADAG.

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VINAYAK, S/O. TEJAPPAGOUDA PATIL, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: 2ND CROSS PANCHAXARI NAGAR, GADAG – 582 103, TQ & DIST: GADAG.

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SANTOSH, S/O. MAHESHCHANDRA KABADAR, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: SARAF BAZAR, KARUGALLI ONI, GADAG – 582 103, TQ & DIST: GADAG.

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…RESPONDENTS

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(BY SRI. DINESH M.KULKARNI, ADVOCATE FOR R1) (NOTICE TO R2, R3 AND R4 ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC PRAYING TO ADMIT THE APPEAL AND CALL FOR THE RECORDS AND ALLOW APPEAL SETTING ASIDE THE JUDGMENT AND DECREE IN OS NO.444/2022 DATED 09.02.2024 PASSED BY LEARNED ADDITIONAL SENIOR CIVIL JUDGE, GADAG; THEREBY DISMISS THE SUIT OF THE PLAINTIFFS.

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

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This appeal is directed against the impugned judgment and decree dated 09.02.2024 passed in O.S.No.444/2022 by the Additional Senior Civil Judge, Gadag, whereby the suit for partition and separate possession filed by respondents No.1 and 2 against respondents No.3 and 4 in relation to the suit schedule immoveable property was decreed in favour of respondents No.1 and 2 and against respondents No.3 and 4.

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Along with the appeal, the appellants, who are not parties to the suit or the impugned judgment and decree, have filed I.A. No.3/2025 seeking leave/permission to prefer and prosecute the present appeal.

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Heard the learned counsel for the appellants

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and the learned counsel for respondent No.1 and perused the material on record.

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Respondents No.2 to 4 have been served with

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the notice of this appeal; however, they have chose to remain unrepresented and have not contested the appeal.

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A perusal of the material on record will indicate that respondents No.1 and 2 filed the instant suit inter alia contending that they jointly purchased the suit schedule immoveable property along with respondents No.3 and 4 (defendants No.1 and 2) vide registered sale deed dated 12.04.2022 and since requests/demand made by respondents No.1 and 2 to respondents No.3 and 4 to effect partition and division of the suit schedule properties were not complied with by respondents No.3 and 4 (defendants No.1 and 2), the plaintiffs instituted the aforesaid suit for partition and separate possession of their 1/4^th share in the suit schedule immoveable properties and for other reliefs.

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The defendants having entered appearance

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admitted that they, along with the plaintiffs, had purchased the suit schedule properties jointly, and submitted that they had no objection for the suit to be decreed and partition to be effected between the plaintiffs and defendants No.1 and 2. Accordingly, the Trial Court framed five issues which are as hereunder:

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“1. Whether the plaintiffs prove that, the plaintiffs are the joint owner and in possession of the suit property?

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Whether the plaintiffs are entitled 1/2th share in the suit schedule property?

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Whether the defendant No.1 proves that, he is entitled ½ share in the suit schedule property?

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Whether the plaintiffs are entitled for relief has claimed in the plaint?

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What order or decree?”

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Plaintiff No.1 examined himself as P.W.1, and

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two documents were marked as Exs.P.1 to P.2 on behalf

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of the plaintiffs. A copy of the sale deed was marked as Ex.D.1 when confronted the P.W.1 during cross-

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examination by the defendants. Defendants did not adduce any oral evidence. The Trial Court proceeded to pass the impugned judgment and decree noticing that there was no dispute between the parties as regards purchasing of the suit schedule property jointly from their vendor on 11.04.2022 vide Ex.D.1 and proceeded to pass the decree for partition accordingly.

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Aggrieved by the impugned judgment and decree, the appellants are before this Court inter alia contending that they had independent right, title, interest and possession over the suit schedule property and that the impugned judgment and decree having been passed behind their back would affect their possessory and proprietary rights over the suit schedule property and as such it was necessary that the impugned judgment and decree passed by the Trial Court be set aside and the matter be remitted back to the Trial Court for reconsideration afresh in accordance with law.

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Per contra, learned counsel for respondent

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No.1 submits that the suit schedule property claimed by

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the appellants is completely different than the property purchased by respondents No.1 to 4 and as such, the appellants do not have any locus standi either to put forth a claim over the suit schedule property or to challenge the judgment and decree which does not warrant any interference by this Court in the present appeal which is liable to be dismissed.

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Though several contentions have been urged by both sides in support of their respective claims inasmuch as, while the appellants contend that they have right, title and interest and possession over the suit schedule property, the respondents contend that the property claimed by the plaintiffs is different from the property which was the subject matter of the impugned judgment and decree, it is an undisputed fact borne out from the material on record that the appellants, who claim independent right, title, interest and possession over the suit schedule property, are not parties to the suit in O.S. No.444/2022 or the impugned judgment and decree passed by the Trial Court.

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11. There is no gainsaying the fact that the

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judgment and decree will not be binding upon a non-party to the suit and it follows there from that the impugned judgment and decree in relation to the suit schedule property passed in favour of respondents No.1 to 4 would clearly not be binding upon the appellants herein particularly when they claim independent right, title, interest and possession over the suit schedule property.

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Under these circumstances, without

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expressing any opinion on the merits/demerits of the rival contention as regards their respective claims, we deem it just and appropriate to dispose of I.A. No.3/2025 as well as the main appeal by holding that the suit in O.S. No.444/2022 as well as the impugned judgment and decree would not be binding upon the appellants nor affect their alleged right, title, interest or possession over the property claimed by them, and by reserving liberty in favour of the appellants to take recourse to such other remedies as available in law.

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In the result, we pass the following:

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ORDER

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i) The appeal stands disposed off without interfering with the impugned judgment and decree;

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ii) It is made clear that the impugned judgment and decree shall not be binding upon the appellants nor affect the right, title, interest and possession over the properties claimed by the appellants;

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iii) In view of disposal of the appeal, I.A. No.3/2025 also does not survive and the same is accordingly disposed of;

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iv) Liberty is reserved in favour of the appellants to take recourse to such other remedies as available in law ;

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v) All rival contentions between the appellants and the respondents on all aspects of the mater in relation to the property claimed by all/any of them are kept open and no opinion is expressed on the same.

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