Smt. Noorjahan W/O Abdulrajak Mulla and Others Vs Smt Salima W/O Shirajahmad Mulla and Others

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1 - NC: 2025:KHC-D:11787-DB RFA No. 100434 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 11^TH DAY OF SEPTEMBER 2025

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PRESENT

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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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REGULAR FIRST APPEAL NO. 100434 OF 2022 (PAR/POS)

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BETWEEN:

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SMT. NOORJAHAN W/O ABDULRAJAK MULLA, AGE: 88 YEARS, OCC: AGRICULTURE AND HOUSE WORK, R/O. SOMAWARPETH KITTUR, TAL. KITTUR, DIST. BELAGAVI – 591115.

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

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SHRI MAHAMMAD ARIF S/O ABDULRAJAK MULLA, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: SOMWAR PETH, MULLA STREET, KITTUR, TAL & DIST: BELAGAVI.

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SHRI ASIF MAHAMMAD S/O. ABUDULRAJAK MULLA (SINCE DECEASED BY LR'S)

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3(A). MASOODAHMED ARIF AHMED MULLA AGE: 28 YEARS, R/O: SOMWAR PETH, MULLA STREET, KITTUR, TAL & DIST: BELAGAVI.

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3(B). ASHFAQAHMED S/O. ASIF AHMED MULLA AGE: 26 YEARS, OCC: STUDENT, R/O: SOMWAR PETH, MULLA STREET, KITTUR

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TAL & DIST: BELAGAVI.

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3(C). MUSARRAT JAHAN D/O. ASIF AHMED MULLA AGE: 28 YRS, OCC: HOUSEHOLD WORK, R/O: SOMWAR PETH, MULLA STREET, KITTUR TAL & DIST: BELAGAVI.

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3(D). MUSKAN D/O ASIF AHMED MULLA AGE: 18 YRS, OCC: STUDENT, R/O: SOMWAR PETH, MULLA STREET, KITTUR TAL & DIST: BELAGAVI.

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SHRI ALTIFAHAMMAD S/O ABDULRAJAK MULLA AGE: 51 YEARS, OCC: AGRICULTURE R/O: SOMWAR PETH, MULLA STREET, KITTUR TAL & DIST: BELAGAVI

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SMT. FARZANA BANU W/O ASIFMAHAMMAD MULLA AGE: 53 YEARS, OCC: AGRICULTURE R/O: SOMWAR PETH, MULLA STREET, KITTUR TAL & DIST: BELAGAVI.

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…APPELLANTS

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(BY SRI. CHETANA S. BIRAJ, ADVOCATE)

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AND:

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SMT. SALIMA W/O SHIRAJAHMAD MULLA AGE: 85 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O: CIVIL HOSPITAL ROAD FORT DHARWAD, A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD.

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SMT. SHAMEEM W/O HAFIZ ATTAR AGE: 62 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK,

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R/O: CIVIL HOSPITAL ROAD FORT DHARWAD, A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD.

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SHRI ILIYAS S/O SHIRAJAHMAD MULLA (SINCE DECEASED BY HIS LR'S) 3. SMT SHAHANAZ BEGAUM W/O. ILIYAS MULLA AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: CIVIL HOSPITAL ROAD FORT DHARWAD A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD.

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SHRI ABDUL RAHIM S/O ILIYAS MULLA AGE: 35 YEARS, OCC: AGRICULTURE, R/O: CIVIL HOSPITAL ROAD FORT DHARWAD A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD.

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KUMARI NISHAT D/O ILIYAS MULLA AGE: 33 YEARS, OCC: STUDENT, R/O: CIVIL HOSPITAL ROAD FORT DHARWAD A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD.

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SMT. HASEENA W/O USMAN SHAIKH AGE: 55 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O: BELAGAVI, TAL & DIST: BELAGAVI NOW AT LONDON

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SHRI IMTIYAZ S/O SHIRAJAHMAD MULLA AGE: 53 YEARS, OCC: AGRICULTURE, R/O: CIVIL HOSPITAL ROAD FORT DHARWAD A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD.

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SHRI EJAZ S/O SHIRAJAHMAD MULLA AGE: 48 YEARS, OCC: AGRICULTURE,

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R/O: CIVIL HOSPITAL ROAD FORT DHARWAD A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD. 9. SHRI. IRSHAD S/O SHIRAJAHMAD MULLA AGE: 44 YEARS, OCC: AGRICULTURE, R/O: CIVIL HOSPITAL ROAD FORT DHARWAD A/P: K.C. PARK DHARWAD, TAL & DIST: DHARWAD 10. SHRI FAZLURREHMAN S/O. MAHAMMADYASIN TOPINKATTI AGE: 53 YEARS, OCC: AGRICULTURE, R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD, TAL & DIST: DHARWAD

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SHRI. HIZABULREHMAN S/O MAHAMMADYASIN TOPINKATTI AGE: 50 YEARS, OCC: AGRICULTURE, R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD, TAL & DIST: DHARWAD

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SHRI KHALEELULREHAMAN S/O MAHAMMADYASIN TOPINKATTI (SINCE DECEASED BY HIS LR'S)

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SMT. HASINA W/O KHALEELULRAHMAN TOPINKATTI AGE: 48 YEARS, OCC: AGRICULTURE, R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD, TAL & DIST: DHARWAD

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KUMARI FIRDOS D/O KHALEELULRAHMAN TOPINKATTI AGE: 23 YEARS, OCC: STUDENT, R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD, TAL & DIST: DHARWAD 14. KUMAR AYUB S/O KHALEELULRAHMAN TOPINKATTI R/O: KUSUM NAGAR, 9TH CROSS,

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DHARWAD, TAL & DIST: DHARWAD.

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KUMAR ASFAN S/O KHALEELULRAHMAN TOPINKATTI AGE: 13 YEARS, OCC: STUDENT, R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD, TAL & DIST: DHARWAD.

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SHRI AMJADHUSEN S/O MAHAMMADYASIN TOPINKATTI AGE: 46 YEARS, OCC: AGRICULTURE, R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD, TAL & DIST: DHARWAD.

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SMT. ABEDA W/O BABAJAAN INAMDAR (SINCE DECEASED BY LR'S)

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SMT. SHAHEENARA W/O MOHAAMMEDALI SANADI AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O: COLD DRINK HOUSE, NEAR M.K.HUBBALLI BUS STAND, M.K.HUBBALLI, TAL-KITTUR, DIST-BELAGAVI.

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SRI. NASIR BABAJAN INAMDAR AGE: 53 YEARS, OCC: AGRICULTURE AND POLICE DEPARTMENT, R/O: MALMARUTI PO4LI4CE STATION, SHRINAGAR, BELAGAVI, TAL & DIST: BELAGAVI.

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SMT. SABIYABANU W/O MOHAMMEDALI KITTUR AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: SURALI, MADAGAON, GOA.

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SHRI. NAEEM BABAJAN INAMADAR AGE: 49 YEARS, OCC: AGRICULTURE, R/O: JAVIDBHAI GHEEWALE, NEAR NAMAKAWALA SHOP, 6TH CROSS,

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HC-KAR

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AZIM NAGAR, BELAGAVI, TAL & DIST: BELAGAVI.

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SMT. KHAWAJABI W/O MAHABOOBSUBANI MOMIN, (SINCE DEAD BY HIS LR'S)

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SMT. ASIYA W/O SHAMIM MANHOLI AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: BEHIND BST QUARTERS, BLOCK NO.1, QARTER NO.1, NEAR ARBIYA HOTEL, MUMBAI CENTRAL, MAHARASHTRA STATE.

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SHRI WASIM BABAJAN MOMIN AGE: 49 YEARS, OCC: AGRICULTURE, R/O: NEAR MADINA MASJID, GURUWAR PETH KITTUR, A/P: KITTUR, TAL: KITTUR, DIST- BELAGAVI-591115.

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SMT. RAEESA W/O AMJADHUSEN TOPINKATTI, AGE: 43 YEARS, OCC: HOUSEHOLD, R/O: KUSUMNAGAR, 4TH CROSS SADANAKERI, DHARWAD, TAL & DIST: DHARWAD-580007

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SMT. FATIMA W/O MAHAMMADSHAFI KITTUR, AGE: 64 YEARS, OCC: AGRICULTURE R/O: AUTO NAGAR, DOUBLE ROAD, BELAGAVI, TAL & DIST: BELAGAVI- 590015

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SHRI MAHAMMADGOUSE S/O ABDULKHADAR USTAD, AGE: 68 YEARS, OCC: BUSINESS, R/O: NEKAR ONI, KITTUR, TAL: KITTUR, DIST: BELAGAVI

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SHRI VISHNU S/O NINGAJI KALAL, AGE: 66 YEARS, OCC: BUSINESS, R/O: NEKAR ONI, KITTUR, TAL: KITTUR, DIST: BELAGAVI 27. SHRI. MANJUNATH S/O PRAKASH KALAL AGE: 29 YEARS, OCC: BUSINESS, R/O: MULLA ONI, KITTUR, TAL: KITTUR, DIST: BELAGAVI

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SHRI. INAYATULLA S/O SULTANSAB BELAWADI AGE: 43 YEARS, OCC: BUSINESS, R/O: MULLA ONI, KITTUR, TAL: KITTUR, DIST: BELAGAVI

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SHRI SABIYA W/O ILIYAS MULLA AGE: 58 YEARS, OCC: HOUSEHOLD WORK, C/O: TABASSUM W/O ZIAULHAQ ATTAR R/O: SINGAPORA MAIN ROAD, M.S. PALAYA CIRCLE, NEAR LIMRA EDUCATION AND WELFARE TRUST, JALAHALLI, BENGALORE-560097.

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SMT. TABASSUM W/O ZIAULHAQ ATTAR, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, C/O: TABASSUM W/O ZIAULHAQ ATTAR R/O: SINGAPORA MAIN ROAD, M.S. PALAYA CIRCLE, NEAR LIMRA EDUCATION AND WELFARE TRUST, JALAHALLI, BENGALORE-560097.

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SMT. TAHSEEN D/O I KALLEMANI AGE: 38 YEARS, OCC: HOUSEHOLD WORK R/O: MALAPUR MAIN ROAD, OPPOSITE RAMANAGOUDAR HOSPITAL, DHARWAD, A/P: DHARWAD, TAL & DIST: DHARWAD-58008

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HC-KAR

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KUMARI RUKHSAR D/O ILLIYAS MULLA, AGE: 35 YRS, OCC: STUDENT, C/O SRI BASJEER HALABHAVI R/O: YATTINGUDD ROAD, MALAPUR, A/P: DHARWAD, TAL & DIST: DHARWAD-58008

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…RESPONDENTS

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(BY SMT. P.S.JADHAV, ADVOCATE FOR C/R1 AND R7; SRI. MAHESH WODEYAR, ADVOCATE FOR R11 AND GPA HOLDER FOR R10, R12, R17 TO R20, R22 TO R24; R14 AND R15 ARE MINORS REP. BY R12;

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NOTICE TO R13, R16, R21, R28 TO R32 ARE DISPENSED WITH VIDE ORDER DATED 04.12.2023; NOTICE TO R2 TO R6, R8, R9, R25, R26 AND R27 ARE SERVED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST

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THE JUDGMENT AND DECREE DATED 22.06.2022 PASSED IN O.S.NO.25/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL COMING ON FOR FINAL HEARING 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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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), by the defendant Nos.1 to 5 calling in question the judgment and decree dated 22.06.2022 passed in OS No.25/2014 by the Senior Civil Judge, Bailhongal (for short, ‘the Trial Court’), whereunder, the suit for partition and separate possession filed by the plaintiffs/respondent Nos.1 to 9 herein has been decreed by the Trial Court.

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The parties will be referred to as per their ranks before the Trial Court for the sake of convenience.

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It is the case of the plaintiffs that the propositus namely Abdulraheem died on 13.12.1984, and his wife Jaibunissa died on 25.08.1997. The genealogy of the parties is extracted hereunder for reference:

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GENEALOGY

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Abdulraheem S/o. Abdulrajak Mulla (died on 13-12-1984)
Jaibunissa
(died on 25-08-1997)
Abdulrajak Shirajahmad Noorjahan Abeda Khawajabi Fatima
(died) (died) (died 2014) (D-10) (D-11) (D-12)
Noorjahan Mohammadyasin
(D-1) (Died)
Fazlurrehman Hizabulrehaman Khaleelulrehaman Amjadhusen
(D-6) (D-7) (D-8) (D-9)
Mohammedarif Asifmahammad Altafahmed Salima
(D-2) (D-3) (D-4) (P-1)
Farzana banu
(D-5)
Shameembanu Iliyas Haseenabanu Imtiyaz Ejaz Irshad
(P-2) (P-3) (P-4) (P-5) (P-6) (P-7)

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It is the further case of the plaintiffs that the

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properties of the propositus, not having been divided or partitioned, the parties are in joint possession and enjoyment as tenants in common and hence, the plaintiffs filed the suit for partition seeking for their 2/8^th share in the suit schedule property.

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The defendant Nos.1 to 5, 13, 14 and 15 entered appearance through their counsel. The other defendants

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remained absent and were placed exparte before the Trial Court.

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The defendant Nos.1 to 5 in their written statement has disputed the case of the plaintiffs and also the genealogy and contended that there is no cause of action to file the suit against the defendants. It is specifically denied that there was no partition. That the names of the defendant Nos.1 to 5 have been entered in the revenue records lawfully and the alienations made have not been challenged. That the plaintiffs are not the legal representatives of deceased Abdul Rahim. It is the specific case of the defendants that the father of the plaintiff Nos.3 and 6 got executed a relinquishment deed dated 05.11.1986, in favour of defendant No.2 and the father of plaintiff Nos.3 and 6 ceased to have any rights in the suit properties consequent to execution of the said relinquishment deed. Various contentions have been taken by the defendants on merits of the matter and a counter claim has also been made,

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whereunder, the defendant Nos.1 to 5 sought for the relief of declaration and other reliefs.

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The defendant Nos.13 and 14 have also filed

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their written statements. On the basis of pleadings of the parties, the Trial Court framed twelve issues and two additional issues.

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PW1 was examined on behalf of the plaintiffs and Ex.P1 to P15 has been marked in evidence. Defendant No.14 has been examined as DW1 and Ex.D1 to D25 have been marked in evidence. The Trial Court by its judgment and decree dated 22.06.2022 partly decreed the suit and passed the following order:

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“The suit of the plaintiffs is partly decreed with proportionate costs.

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The plaintiff Nos.1 to 7 are together entitled for 2/8^th share. Defendant Nos.1 to 5 are together entitled for 2/8^th share. The defendant Nos.6 to 9 are together entitled for 1/8^th share. The defendant Nos.10 to 12 are entitled for 1/8^th shares each in the suit properties except item Nos.5 and 6.”

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Being aggrieved, the present appeal is filed by defendant Nos.1 to 5.

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Along with the above appeal, the

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appellants/defendant Nos.1 to 5 have, inter alia, filed IA No.2/2022 under Order XLI Rule 27 read with Section 151 of

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CPC, seeking leave of the Court to produce the original relinquishment deed and original gift deed. It is averred in the affidavit filed in support of the application that the documents produced along with application were misplaced and could not have been produced earlier.

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Heard the submissions of learned counsel for the appellants, learned counsel for respondent Nos.1 and 7 as well as the learned counsel for respondent No.11, who was also the GPA holder of respondent Nos.10, 12, 17 to 20 and 22 to 24.

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It is the contention of the learned for the appellants that suit for partition filed by the plaintiffs is not maintainable and that the Trial Court ought not to have decreed the suit. Various contentions have been urged on

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the merits of the matter to impeach the findings recorded by the Trial Court.

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In addition to the grounds urged in the

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memorandum of appeal, the learned counsel for the appellants/defendant Nos.1 to 5 submits that although the defendant Nos.1 to 5 have filed their written statement, they do not contest the suit inasmuch as, the defendant Nos.1 to 5 did not cross examine PW1 and also did not adduce any oral or documentary evidence.

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It is further contended that IA No.2/2022 is filed seeking leave to produce the documents which are required to be taken on record and the matter is required to be remanded to enable the defendants to contest the suit of the plaintiffs on its merits.

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Learned counsel for respondent Nos.1 and 7 vehemently opposes the contentions put forth on behalf of the appellants contending, inter alia, that the appellants have an adequate opportunity to contest the suit on its merits and that the appellants have not availed the

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opportunity, the judgment and decree passed by the Trial

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Court is just and proper.

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Per contra, the learned counsel for respondent Nos.11 who was the GPA holder of respondent Nos.10, 12, 17 to 20 and 22 to 24, also seeks for an opportunity to contest the suit of the plaintiffs on its merits and seeks for remand of the matter to the Trial Court.

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The submissions of learned counsel for the

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parties have been considered and material on record have been perused.

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The questions that would arise for our

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consideration are as under:

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1) Whether IA No.2/2022 is required to be allowed?

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2) Whether the judgment and decree passed by the Trial Court is required to be interfered with?

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Regarding question No.1 :

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IA No.2/2022 is filed under Order XLI Rule 27 of CPC by the appellants seeking to produce two documents

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namely the relinquishment deed dated 05.11.1986, and gift deed dated 22.10.1987. It is depose in the affidavit filed in support of the said application that the custody of the said documents having been misplaced and due to old age of the appellants the same could not be traced during the pendency of proceeding before the Trial Court. It is further deposed that the documents were in the custody of appellant No.1 and they were traced before filing of the appeal.

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Although the learned counsel for the respondents/plaintiffs vehemently opposes IA No.2/2022, it is forthcoming that the application was filed at the time of filing of the appeal itself. It is further pertinent to note that the appellants/defendant Nos.1 to 5 had taken a specific defence regarding the relinquishment deed and the gift deed in their written statement. In view of aforementioned circumstances, it is clear that the said documents are necessary for adjudication of the questions that would arise for consideration in the present appeal. In view of the same

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and in the interest of justice, it is expedient that IA No.2/2022, will be favourably considered. Hence question No.1 is answered in the affirmative.

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Regarding question No.2:

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Although various contentions have been urged by

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the respective parties on the merits of the matter, it is pertinent to note that the defendant Nos.1 to 5 did not cross examine the PW1, nor led any oral or documentary evidence. An opportunity is sought to contest the suit on its merits by remanding the matter. It is pertinent to note that the evidence in the suit was adduced during the period of COVID-19 pandemic. It is further pertinent to note that PW1 has not been cross examined by any of the other defendants except defendant No.13 and that only defendant No.13 has adduced evidence as DW1 and produced documentary evidence at Ex.D1 to D25.

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Having regard to the aforementioned, in view of the fact that IA No.2/2022 has been allowed and the documents produced along with the said application have

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been taken on record, keeping in mind the fact that valuable rights of the parties have been adjudicated by the Trial Court as also rights in immovable property, in view of the specific defence taken by defendant Nos.1 to 5 and the documents produced in that regard which have been taken on record in the present appeal, it is just and proper that the defendants be afforded another opportunity to contest the suit of the plaintiffs on its merits by issuing certain directions. Hence, question No.2 framed for consideration is answered in the affirmative.

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In the result, we pass the following:

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ORDER

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(i) IA No.2/2022 is allowed and the documents produced along with the application are taken on record;

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(ii) The appeal is allowed;

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(iii) The judgment and decree dated 22.06.2022 passed in OS No.25/2014 by the Senior Civil Judge, Bailhongal, is hereby set aside;

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(iv) The parties shall appear before the Trial Court on 16.10.2025 without requirement of any further notice being issued in this regard;

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(v) Consequent to the appearance of the parties, the Trial Court shall afford another opportunity to the parties to lead evidence/further evidence and conduct further proceedings in accordance with law;

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(vi) The Registry shall transmit the records of the Trial Court together with the documents produced along with IA No.2/2022 to the Trial Court forthwith;

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(vii) All contentions of the parties on the merits of the matter are kept open.

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(viii) The parties shall co-operate with the Trial Court for speedy disposal of the suit and the Trial Court shall endeavour to dispose of the suit as expeditiously as possible as, i any event not later than eight (8) months

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