Sulemansab S/O Rahimansab ... vs Khairunabi W/O Imamsab Doddamani
2022 Latest Caselaw 619 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 13TH DAY OF JANUARY 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO.100786 of 2014 (PAR)

BETWEEN
SULEMANSAB
S/O RAHIMANSAB HUBBALLI,
AGE: 63 YEARS,
OCC: AGRICULTURIST,
R/O: BENAKANAHALLI,
TQ AND DIST: HAVERI-581110

                                              ...APPELLANT

(BY SRI. S. N. BANAKAR, ADVOCATE &
SRI. LINGESH V. KATTIMANI, ADVOCATE)

AND
1.  KHAIRUNABI
    W/O IMAMSAB DODDAMANI,
    AGE: 65 YEARS,
    OCC: HOUSEHOLD,
    R/O: HATTIMATTUR,
    TQ:SAVANUR,
    DIST: HAVERI-581 110.

2.    AKBAR S/O HUSSAIN PATEL,
      AGE:MAJOR,
      OCC:AGRICULTURIST,
      R/O: BENAKANAHALLI,
      TQ AND DIST: HAVERI-581 110.
                            2




3.   KHURESHABI W/O BASHA,
     AGE:MAJOR,
     OCC:HOUSEHOLD WORK,
     R/O: KADASHETTIHALLI,
     TQ: HANAGAL,
     DIST: HAVERI-581 110.

4.   SALEEMABHI W/O MUNAF,
     AGE:MAJOR,
     OCC:HOUSEHOLD WORK,
     R/O: ANAVATTI,
     TQ: SAGAR,
     DIST: SHIMOGGA-577201.

                                          ...RESPONDENTS

(BY SRI. M KUSUMAKAR, SMT. RAJASHREE AND SRI. M. A.
DESHPANDE, ADVOCATES)

     THIS RSA IS FILED UNDER100 OF C.P.C., AGAINST THE
JUDGMENT   AND   DECREE   DATED   27.08.2014   PASSED   IN
R.A.NO.51/2007 ON THE FILE OF THE I-ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT HAVERI, DISMISSING THE APPEAL
FILED AGAINST THE JUDGMENT AND DECREE DATED 20.09.2007
AND THE DECREE PASSED IN O.S.NO.50/2004 ON THE FILE OF
THE ADDITIONAL CIVIL JUDGE (SR.DN) AND J.M.F.C., HAVERI,
PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
POSSESSION.



     THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                  3




                             JUDGMENT

Captioned appeal is filed by unsuccessful defendant

No.1.

2. The facts leading to the case are that

respondent No.1-plaintiff filed a suit for partition and

separate possession and to award 1/3rd share in the suit

schedule properties. The respondent no.1-plaintiff

specifically contended that one Rahimsab Malliksab

Hubballi is owner of the suit schedule property and he

died leaving behind one son by name Sulemansab and

two daughters. The respondent No.1-plaintiff contended

that the properties are gifted under Mohammadan Law

and therefore, they are tenants in common and they have

inherited the properties left behind by one Rahimsab

Malliksab Hubballi.

3. The respondent No.1-plaintiff in support of her

contention let in evidence by examining herself as PW1

and one independent witness as PW2. The present

appellant examined himself as DW1, however did not

chose to produce any documentary evidence. The Trial

Court having appreciated oral and documentary evidence,

answered issue No.1 in affirmative and answered issue

No.2 in negative by holding that the suit is maintainable

as there is no non-joinder of necessary parties. The Trial

Court having appreciated the oral and documentary

evidence has negatived the contention of the appellant

herein, who has set up a plea of prior partition. The Trial

Court was of the view that having set up a plea of prior

partition the appellant has not produced any

documentary evidence to indicate that there is severance

in the family. In the absence of credible evidence, the

Trial Court disbelieved the plea set up by appellant in the

written statement to the effect that there is oral partition.

The Trial Court has decreed the suit granting 1/4th share

in suit 'B' to 'G' properties. However, partition in respect

of schedule 'A' property was rejected. Feeling aggrieved,

the present appellant-defendant preferred an appeal

before the First Appellate Court in R.A.No.51/2007. The

First Appellate Court on reappreciation of oral and

documentary evidence held that except suit schedule 'A'

property, the remaining properties i.e. suit schedule 'B' to

'G' properties were originally owned by their father and

after his death, the sons and daughters are entitled for a

share. In that view of the matter, the First Appellate

Court was also not inclined to interfere with the judgment

and decree passed by the Trial Court.

4. Both the Courts below have concurrently held

that the respondent-plaintiff is entitled to share in the

properties. I do not find any illegality or infirmity in the

judgment and decree passed by the Courts below. Both

the Courts below have concurrently held that the

respondent-plaintiff is entitled for her legitimate share.

No substantial question of law is involved in the present

appeal. The appeal is devoid of merits and is dismissed

accordingly.

5. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN