Karnataka High Court
Imamsab vs Sapurbi on 7 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:45208
RSA No. 487 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.487 OF 2024 (PAR)
BETWEEN:
IMAMSAB
S/O KHDARSAB
AGE: 73 YEARS
OCC AGRI
R/O YADAGOPPA VILLAGE
CHANDRAGUTTI HOBLI
SORABA TALUK
SHIVAMOGGA DISTRICT
...APPELLANT
Digitally signed (BY SRI RAJENDRA S ANKALKOTE, ADVOCATE)
by DEVIKA M
Location: HIGH AND:
COURT OF
KARNATAKA 1. SAPURBI
W/O NOT KNOWN
TO THE APPELLENT ILLEGALLY
CLAIMING TO BE THE WIFE OF
MAHAMMAD HUSSAIN
AGE: 71 YEARS
OCC: HOUSEHOLD
R/O THIMMAPURA ONI ANAVATTI
SHIVAMOGGA DISTRICT
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NC: 2025:KHC:45208
RSA No. 487 of 2024
HC-KAR
2. MAHAMMADGOUSE
S/O SAPURABI
ILLEGALLY CLAIMING AS SON OF
MAHAMMAD HUSSAIN
AGE: 48 YEARS
OCC: HOUSEHOLD
R/O THIMMAPURA ONI ANAVATTI
DIST. SHIVAMOGGA
3. SHABANA
D/O SAPURABI
ILLEGALLY CLAIMING TO BE
THE DAUGHTER OF
MAHAMMAD HUSSAIN
AGE: 44 YEARS
OCC: HOUSEHOLD
R/O THIMMAPURA ONI ANAVATTI
DIST. SHIVAMOGGA
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 04.01.2024
PASSED IN R.A NO.15/2022 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SORABA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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NC: 2025:KHC:45208
RSA No. 487 of 2024
HC-KAR
ORAL JUDGMENT
This appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.
2. This matter is listed for admission. Heard the learned counsel appearing for the appellant.
3. The factual matrix of the case of plaintiffs before the Trial Court is that plaintiffs are claiming half share in respect of the suit schedule property as they are the legal heirs of one Mohammed Hussain @ Babu. It is contended that defendant also got half share in the suit schedule property which is more fully described in the schedule. It is also the case of the plaintiffs that originally, the property belongs to the one Imam Sab who has 6 sons and though had 6 sons, among the 2 brothers i.e., husband and father of the plaintiffs as well as defendant, the property was devolved. It is also contend that inspite of share was claimed, the defendant has not given any share and hence, made the claim that plaintiff No.1, the -4- NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR wife and plaintiff Nos.2 and 3 are the children of Mohammed Hussain @ Babu are entitled for half share and also content that they are the tenants in common in respect of the suit schedule property.
4. The defendant appeared and filed the written statement contending that he himself and his brother Mahammed Hussain are the sons of Imam Sab but totally denied the very contention of the plaintiffs with regard to the relationship between the plaintiffs and also his brother Mohammed Hussain. But he has contended that he married one Khaisarabi who died issue less and subsequent to her death, Mohammed Hussain also died and hence, plaintiffs are not entitled for the relief of partition.
5. The Trial Court having considered the pleadings of the parties, allowed the parties to lead their evidence and after considering both oral and documentary evidence placed on record not accepted the evidence of DW1 since -5- NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR he is not having any knowledge about the factual aspects of the case even though he is a power of attorney holder. However, taken note of evidence of PW2 and PW3. PW2 is the daughter of the said Mohammed Hussain and PW3 is a witness who speaks that both of them are in common tenancy and cultivating the property and accepted the case of plaintiffs regarding relationship between the plaintiffs and the brother of the defendant Mohammed Hussain @ Babu and granted half share in the suit schedule property. The said judgment and decree of the Trial Court was challenged before the First Appellate Court in R.A.No.15/2022.
6. The First Appellate Court also having considered the grounds which have been urged before it, formulated the Points and reassessing both oral and documentary evidence placed on record, in detail discussed the pleadings of the parties and contentions and also the reasons assigned by the Trial Court while considering the evidence of the witnesses who have been examined before -6- NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR the Trial Court and also taken note of documentary evidence which have been placed in paragraphs 19 to 25 and confirmed the judgment and decree of the Trial Court. Being aggrieved by the concurrent finding of the Trial Court as well as the First Appellate Court, the present second appeal is filed before this Court.
7. The main contention of the counsel appearing for the appellant that both the Courts are not justified in decreeing the suit of the plaintiffs when there are no documents or evidence to show the death of Mohammed Hussain and both Courts are not justified in arriving to the conclusion that there was partition in the family of Imam Sab and suit properties were allotted Mohammed Hussainsab and Khadarsab in the absence of any evidence whatsoever and both the Courts have overlooked the documents of Exs.P35 and 36 to show the change of katha in the name of defendant's father in the year 1940-41 itself, which has got presumptive value. Hence, this Court -7- NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR has to admit the appeal and frame substantive questions of law.
8. Heard the appellant's counsel and also perused the reasons assigned in the judgment of Trial Court and First Appellate Court and taken note of the pleadings of the plaintiffs as well as defendant. In paragraph 13, the Trial Court taken the note of the relationship between the Mohammed Hussain as well as the defendant and they are the sons of Imam Sab. It is the specific case of the plaintiffs that the property devolves upon these two families and both of them are in joint cultivation and hence, they are entitled for half share in the suit schedule property and the said fact is discussed in detail by the Trial Court. Though the Trial Court judgment is cryptic with regard to the finding is concerned, but the First Appellate Court in detail discussed the same and the evidence of all the witnesses were extracted and in paragraph 19 taken note of the very contentions as well as Ex.P33 and P34, which clearly establishes that Item No.1 of the plaint -8- NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR schedule was granted to original propositus - Imam Sab and also taken note of Ex.P5 and P6, which clearly discloses that plaintiff Nos.2 and 3 are the children of Mohammed Hussain. In paragraph 20 taken note of the fact that both of them have not given any details of the properties allotted to the shares of Imam Sab. Except oral evidence, no other documents are produced in proof of the earlier oral partition between the children of Imam Sab. In paragraphs 22 and 23 also, the First Appellate Court taken note of the claim made by the plaintiffs and defendant and comes to the conclusion that there is no documentary proof among them to show that there was a partition and relied upon the evidence of PW3. Though PW3 was in detail cross examined, nothing was elicited.
9. The First Appellate Court also taken note of Ex.D3 which reveals that the name of Khadar Sab, son of Imam Sab has been mutated to the record of the suit land as the heir and elder son of Imam Sab. In Ex.D1 it is stated that the defendant has given power of attorney in -9- NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR favour of his son who has given evidence as DW1 due to his old age and ill-health. But evidence of DW1 was not considered. But First Appellate Court has discussed that as per Section 118 of Evidence Act, all persons will be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. As per the explanation provided to Section, a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding, the questions put to him and giving rational answers to them. In the cross-examination, DW1 has clearly admitted that his father is healthy, but his hearing ability has been reduced. In addition to this, DW1 clearly stated that he does not know the contentions taken by his father in the written statement. Such being the fact, not considered the evidence of DW1. In paragraph 25, taken note of the documents of Ex.P33 and 34 and comes
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NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR to the conclusion that the Trial Court has not committed any error in coming to such a conclusion. When such reasoning is given by the First Appellate Court in keeping the contentions urged by the parties and though the Trial Court elaborately not discussed both oral and documentary evidence, but the First Appellate Court has taken pain in considering each and every material on record and also the grounds which have been urged before it, I do not find any error on the part of the Trial Court and First Appellate Court in granting half share in respect of the suit property. Hence, no grounds are made out to admit the appeal and to frame substantive questions of law.
10. In view of the discussions made above, I pass the following:
ORDER The second appeal is dismissed.
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NC: 2025:KHC:45208 RSA No. 487 of 2024 HC-KAR In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed.
Sd/-
(H.P.SANDESH) JUDGE SN