Karnataka High Court
Miyajan S/O. Muktumsab Abbigeri vs Rahamatbi W/O. Abdulsalam on 5 March, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
R.F.A. No.100037/2014
BETWEEN
1. MIYAJAN S/O. MUKTUMSAB ABBIGERI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. JAWALI BAZAAR, NEAR TANGAKOT,
GADAG.
2. MOHAMMAD GHOUSH S/O. MUKTUMSAB ABBIGERI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O. JAWALI BAZAAR, NEAR TANGAKOT,
GADAG.
3. NOOR AHAMED S/O. MUKTUMSAB ABBIGERI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. JAWALI BAZAAR, NEAR TANGAKOT,
GADAG
.....APPELLANTS
(BY SRI SADIQ N GOODWALA, ADV.)
AND
1. SMT. RAHAMATBI W/O. ABDULSALAM
AGE: 65 YEARS, OCC: HOUSE WORK,
R/O. PLOT NO. 73, EX-SERVICEMEN COLONY,
BANGALORE BYE PASS ROAD,
COWL BAZAAR, BELLARY.
2. SMT. JAMELABI W/O. KASHIMSAB TAHSILDAR,
AGE: 62 YEARS,
OCC: AGRICULTURE AND HOUSE WORK,
R/O. NETAJI COLONY, GOKUL ROAD,
2
HUBLI, DHARWAD DISTRICT.
3. SMT. JAINABBI W/O. SIKANDARSAB SINDAGI,
AGE: 60 YEARS,
OCC: AGRICULTURE AND HOUSE WORK,
R/O. SETTLEMENT, GANDHINAGAR,
GADAG-BETAGERI, AT BETTIGER,
GADAG DISTRICT.
4. SMT. YASMIN W/O. SHAIK AHAMED,
AGE: 50 YEARS, OCC: TEACHER,
R/O. ELAHI COLONY, BASAVAPTNA ROAD,
GANGAVATHI, RAICHUR DISTRICT.
5. MOHAMMED ANEEF S/O. MOHAMMED GHOUSH,
AGE: 45 YEARS, OCC: TEACHER,
R/O. ELAHI COLONY, BASAVAPTNA ROAD,
GANGAVATHI, RAICHUR DISTRICT.
6. SMT. PARVEEN W/O. BABU SAB,
AGE: 51 YEARS, OCC: HOUSEWIFE,
R/O. ELAHI COLONY, BASAVAPTNA ROAD,
GANGAVATHI, RAICHUR DISTRICT.
7. SMT. MUBBEN W/O. MOHAMMED YUSUFF,
AGE: 37 YEARS, OCC: HOUSEWIFE,
R/O. ELAHI COLONY, BASAVAPTNA ROAD,
GANGAVATHI, RAICHUR DISTRICT.
8. KUM. JABEEN D/O. MOHAMMED GHOUSH,
AGE: 32 YEARS,
R/O. ELAHI COLONY, BASAVAPTNA ROAD,
GANGAVATHI, RAICHUR DISTRICT.
.....RESPONDENTS
(BY SRI S A HUDDAR, ADV. &
SRI M S HARVI, ADVS. FOR C/R-1 TO R-3
R-4 TO R-8 ARE SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.11.2013 PASSED
IN O.S.No.52/2012 ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE & CJM, GADAG, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
H.T.NARENDRA PRASAD, J. DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the defendants under Section
96 of Code of Civil Procedure, 1908, challenging the
judgment and decree dated 25.11.2013 passed by the
Additional Senior Civil Judge & C.J.M., Gadag, whereby the
suit has been decreed.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court.
3. The plaintiffs and defendants No.1 to 3 are the
children of one Muktumsab who was the propositus of the
family of the plaintiffs and defendants. The defendants
No.4 to 8 are the children of deceased Fatima Bee, who is
also a daughter of Maktumsab. The plaintiffs and
defendants are joint tenants-in-common and co-owners of
the suit schedule properties.
4. After the service of summons, the defendants
No.1 to 4 appeared before the trial Court but they have not
filed any written statement. Later they have filed an
application seeking permission for filing of the written
statement. The same came to be rejected vide order dated
26.03.2013. Being aggrieved by the same, the defendants
have filed writ petition before this Court in
W.P.No.78726/2013. During the pendency of the said writ
petition, the suit has been decreed as under:
"It is declared that plaintiffs No.1 to 3 and
deceased Fathima Bee are entitled to get 1/10th
share each in the suit schedule properties.
It is further declared that defendants No.1 to
3 are entitled to get 2/10th share each in the suit
schedule properties and plaintiffs No.1 to 3 and
deceased Fathima (defendant No.4 to 8 i.e., legal
representatives of deceased Fathima) are entitled
to get partition and separate possession of their
1/10th share each in the suit schedule properties
by metes and bounds as provided under law.
Defendant No.1 to 3 are entitled to get their 2/10th
share in the suit schedule properties by metes and
bounds for partition and separate possession as
provided under law, after payment of necessary
Court fee."
5. Since the suit came to be decreed during the
pendency of the writ petition, on 25.11.2013, W.P.
No.78726/2013 filed by the defendants became infructuous
and the same came to be dismissed vide order dated
21.01.2014. Being aggrieved by the judgment and decree,
the defendants have filed this appeal.
6. Sri Sadiq N. Goodwala, learned counsel
appearing for the appellants has submitted that the
defendants No.1 to 3 have appeared through their counsel
and filed an application seeking leave of the Court to file
written statement. The same has been dismissed. Being
aggrieved by the same, they have filed a writ petition
before this Court. During the pendency of the writ petition,
the suit has been decreed. There was no opportunity for
the defendants to make out their case. He further
contended that if one more opportunity is given, the
defendants can establish their case before the trial Court.
7. Per contra, learned counsel Sri S.A. Huddar and
Sri M.S. Haravi, learned counsel appearing for plaintiffs/
respondents No.1 to 3 have submitted, on receipt of
summons, they have engaged their counsel and even after
one year of filing of the suit, they have not filed the written
statement. Further, the defendants No.1 to 3 have cross-
examined PW-1. Now the suit is decreed and final decree
proceedings is also concluded, after lapse of ten years, the
defendants No.1 to 3 cannot be permitted to file written
statement to establish their case. Hence, they sought for
dismissal of the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and decree and the trial Court
records.
9. There is no dispute regarding the relationship of
the parties. It is also not in dispute that the defendants
No.1 to 3 were represented by their counsel before the trial
Court. Even after giving sufficient opportunities, the
defendants have not chosen to file written statement.
Later they have filed an application seeking permission to
file written statement and that has been dismissed. Though
the defendants No.1 to 3 have filed W.P.No.78726/2013,
they did not obtain any interim order staying the further
proceedings of the suit. In the meantime, they have also
cross-examined PW-1. The trial Court, on considering the
oral evidence and available material on record, decreed the
suit. Subsequently, the final decree has also been drawn.
However, we are of the opinion that one more opportunity
has to be given in the interest of justice to the
appellants/defendants No.1 to 3 to file written statement
subject to payment of cost of Rs.50,000/- by the
defendants No.1 to 3 to the plaintiffs.
10. Accordingly, we pass the following:
ORDER
The appeal is allowed.
The judgment and decree dated 25.11.2013 passed
by the Additional Senior Civil Judge & C.J.M., Gadag, in
O.S.No.52/2012, is set aside. The matter is remitted back
to the trial Court.
The trial Court is directed to accept the written
statement filed by the defendants No.1 to 3 and permit the
parties to adduce additional evidence. However, it is made
clear that the defendants shall not be permitted to file any
additional defence.
However, for the inconvenience caused, the
appellants/defendant Nos.1 to 3 are directed to pay cost of
Rs.50,000/- to the plaintiffs within four weeks from the
date of receipt of a certified copy of this order.
It is further directed that, the trial Court shall proceed
with the case only after the cost being paid by defendants
No.1 to 3 to the plaintiffs and shall conclude the
proceedings within three months from that day. If the cost
is not paid within four weeks as prescribed, the judgment
and decree dated 25.11.2013 passed by the trial Court
stands revived.
Sd/-
JUDGE
Sd/-
JUDGE
Naa
