Karnataka High Court
Smt.Karimbi vs Smt.Ashabi on 8 July, 2021
Author: R.Devdas And J.M.Khazi
RFA NO.100296/2016
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF JULY, 2021
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
REGULAR FIRST APPEAL NO.100296/2016 (DEC, PAR & SP)
BETWEEN:
1. SMT.KARIMBI
W/O ABDULKHADARSAB ARABJAMADAR,
AGE: 64 YEARS, OCC: HOUSEIWFE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
2. SMT.SHAMSHADBEGAUM
W/O BUDENSAB ANEGUNDI,
AGE: 47 YEARS, OCC: HOUSEWIFE,
R/O: STATION ROAD,
BAGALKOTE, TQ and DIST: BAGALKOTE.
3. SMT.NAZAMA W/O MAHIDDINBAIG MULLA,
AGE 38 YEARS, OCC: HOUSEWIFE,
R/O: JAMALAPUR, NEAR MRBC COLONY,
AT: NARAGUND, TQ: NARAGUND,
DIST: GADAG.
4. SMT.RAHANABANU W/O DIVANASAB HOSAMANI,
AGE: 31 YEARS,R/O: BHAGYA NAGAR,
AT and TQ: RAMADURGA, DIST: BELAGAVI.
RFA NO.100296/2016
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5. SMT.SHABIRABAUM
W/O ABUBAKA HOSAMANI,
AGE: 29 YEARS, OCC: HOUSEWIFE,
R/O: SOMAPUR, NARGUND,
TQ: NARAGUNDA, DIST: GADAG.
...APPELLANTS
(BY SRI. J S SHETTY, ADVOCATE)
AND:
1. SMT.ASHABI, W/O ABDULKHADARSAB ARABJAMADAR,
AGE: 55 YEARS, OCC: HOUSEWIFE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
2. SMT.RABIYABEGUM
W/O. MUZARHUSAIN MULLA,
AGE: 32 YE ARS, OCC: HOUSEWIFE,
R/O: MAKANA GALLI, GADAG,
TQ and DIST: GADAG.
3. ISMAILSAB
S/O ABDULKHADARSAB ARABJAMADAR,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
4. SADIK, S/O ABDULKHADARSAB ARABJAMADAR,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
5. SADDAMHUSAIN
S/O ABDULKHADARSAB ARABJAMADAR,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
6. RAFIQ AHMED, S/O ABDULKHADARSAB ARABJAMADAR,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
RFA NO.100296/2016
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7. MEHABUBSAB, S/O ABDULKHADARSAB,
AGE: 45 YEARS, OCC: PVT. SERVICE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
8. SMT.SHAHANAZBEGAUM, W/O BABUSAB UMACHAGI,
AGE 42 YEARS, OCC: HOUSEWIFE,
R/O: REHAMAT NAGAR ROAD,
ITI GALLI, GADAG, TQ: GADAG.
9. SMT.PARAVVENBANU, W/O ZAKIR HUSAIN MULLA,
AGE: 36 YEARS, OCC: HOUSEWIFE,
R/O: NEAR KSRTC DEPOT,
AT: and TQ: HUNASUR, DIST: MYSURU.
10. ANVARHUSAIN, S/O ABDULKHADARSAB ARABJAMADAR,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR, NARAGUND,
TQ: NARAGUND, DIST: GADAG.
11. SMT.NOORAJANABI, W/O KHUTABUSAB BHUDIHAL,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR ONI,
AT: NARAGUND, DIST: GADAG.
...RESPONDENTS
(BY SRI. C. SHETTAR FOR SRI. JAGADISH PATIL, ADV. FOR C/R3;
SRI. V. G. BHAT, ADV. FOR R8 - R10; SRI. K.L. PATIL, ADV. FOR
R7; RESPONDENTS NO.1, 2, 4 - 6 AND R11 ARE SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DTD:21.09.2016 PASSED IN
O.S.NO.21/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG, PARTLY
DECREEING THE SUIT FILED FOR DECLARATION AND PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
R.DEVDAS J., DELIVERED THE FOLLOWING:
RFA NO.100296/2016
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JUDGMENT
R.DEVDAS J., (ORAL):
This regular first appeal is filed under Section 96 of the Code
of Civil Procedure, assailing the judgment and decree in
O.S.No.21/2014, on the file of the Principal Senior Civil Judge and
CJM, Gadag, whereby the suit filed by the plaintiffs/respondents
No.1 to 6 herein has been decreed partly as follows:
"Suit of the plaintiff is partly decreed.
It is hereby declared that the plaintiffs are the joint owners
of 5 acres 16 guntas of land in suit schedule 1(a) and 4 acres 20
guntas of land in suit schedule 1(c) and suit schedule 1(b) and (d)
and suit schedule 1(e)(i) to (vi) and (ix) to (xix) and 1(f) (i) to (iv)
and entire 1(h) properties along with suit schedule properties in
1(e)(x), 1(e)(vii), in 1(a) 1 acre 20 guntas to plaintiff No.3 to 6,
plaintiff No.4 in 1(e) (vii), (xi), plaintiff No.5 and 6 in 1(g), plaintiff
No.2 in 1(f) (vi) as joint owners of the suit properties.
Defendant No.10 is hereby declared as the absolute owner
of the northern portion including the Farm House measuring 2.8
guntas of suit schedule 1(a) property as prayed in the counter
claim.
Having regard to the relationship in between the parties,
there is no order as to costs.
Draw decree accordingly."
2. However, at the outset, learned counsel for the
appellants draws the attention of this Court to the order sheet
maintained by the trial Court to contend that, sufficient opportunity
RFA NO.100296/2016
was not given to the defendants to cross-examine the plaintiff
witnesses as well as to lead evidence on behalf of the defendants.
Therefore, the learned counsel would submit that the matter
requires to be remanded to enable the defendants to cross-
examine the plaintiff witnesses and to lead evidence on behalf of
the defendants, in the interest of justice. It is further submitted
that, during the pendency of this appeal, defendant No.1 (one of
the two widows) died and therefore, the matter will have to be
reconsidered from another angle in view of the death of defendant
No.1. It is submitted that the legal consequences due to the death
of defendant No.1 would arise and therefore the matter requires
reconsideration.
3. Per contra, learned counsel for the
respondents/plaintiffs would submit that, although sufficient
opportunity was given to the defendants, they have failed to cross-
examine the plaintiff witnesses and for no fault of the plaintiffs, the
matter should not be remanded and the appeal should be
considered on merits.
4. We have gone through the impugned judgment and the
order sheet maintained by the trial Court. We find that, on
RFA NO.100296/2016
23.08.2016, the matter was listed for cross-examination of PW1.
Though PW1 was present and cross-examined by the learned
counsel for defendant No.10, learned counsel for defendants No.1
to 9 was not present and therefore, the cross-examination of PW1
was closed. Learned counsel for the appellants submits that,
defendant No.10 before the trial Court was supporting the case of
the plaintiffs and therefore, the cross-examination at the hands of
defendant 10 is not sufficient to decide the case on merits. On the
next date of hearing, i.e., on 29.08.2016, the matter was listed for
recording of the evidence of defendants No.1 to 9. In the order
sheet it was recorded that there was no representation for the
defendants No.1 to 9 and therefore, the evidence of DWs. 1 to 9
was taken as closed. The matter was posted for evidence of
defendant No.10 on 08.09.2016. The evidence of defendants No.1
to 9 was taken as 'Nil'. The case was once again posted for the
evidence of defendant No.10. On 15.09.2016, defendant No.10
has filed an affidavit evidence which is taken as examination-in-
chief of DW1 and DW1 was cross-examined by the learned counsel
for the plaintiffs. Since learned counsel for defendants No.1 to 9
was not present, it was taken as cross-examination "Nil", on behalf
of defendants No.1 to 9. The case was posted for arguments. On
RFA NO.100296/2016
17.09.2016 and 19.09.2016, the arguments were heard and the
matter was posted for judgment.
5. Therefore, as evident from the order sheet, there was
no representation for defendants No.1 to 9, who are the contesting
parties.
6. In the light of the above, we are of the considered
opinion that, one more opportunity is required to be granted to
defendants No.1 to 9 to cross-examine the plaintiff witnesses and
lead evidence on payment of costs. Moreover, as rightly submitted
by the learned counsel for the respondents, on the death of
defendant No.1 during the appeal proceedings, the issue takes a
different colour. Therefore, even on that count, the matter may
require retrial.
7. Consequently, the impugned judgment and decree is
hereby set aside. The matter stands remanded to the trial Court
for fresh consideration or retrial commencing from the evidence of
the plaintiff witnesses and all other proceedings on completion of
the records of evidence of the plaintiff witnesses shall be followed
by the trial Court.
RFA NO.100296/2016
8. At this juncture, both the learned counsel would submit
that, there are ambiguities in the pleadings and therefore, if the
parties intend to amend the pleadings, they should be given an
opportunity. The submission is accepted and the parties are
permitted to file an application seeking amendment of the
pleadings, if they so desire, however, it shall be subject to the
condition that no such pleading would be permitted which would
take away the right accrued to the other party on the law of
limitation. The appellants/defendant Nos. 1 to 9 shall pay costs of
`6,000/- to the plaintiffs on the first date of hearing fixed by this
Court or on any other further date fixed for payment of costs by
the trial Court.
9. Parties are directed to appear before the trial Court on
02.08.2021, without waiting for further notice. Office is directed to
forward the trial Court records to the trial Court forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
gab
