Karnataka High Court
Smt.Kausar Begum W/O S.N.Razvi vs Md Siraj Ahmed Khan on 12 February, 2024
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NC: 2024:KHC-K:1451
RSA NO.200254 OF 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.200254 OF 2019 (DEC/INJ)
BETWEEN:
SMT. KAUSAR BEGUM
W/O S.M. RAZVI
AGE: 56 YEARS,
OCC: HOUSEHOLD,
R/O H.NO.217/B, 57TH CROSS,
RAJAJINAGAR, 4TH BLOCK,
NEAR RAM MANDIR,
BENGALURU - 560 010.
...APPELLANT
(BY SRI. NARESH V. KULKARNI, ADVOCATE)
AND:
Digitally signed
by SACHIN MD SIRAJ AHMED KHAN
Location: HIGH S/O MD BASHEER AHMED KHAN,
COURT OF
KARNATAKA AGE: 64 YEARS,
OCC: RETIRED GOVERNMENT SERVANT,
R/O- H.NO.5-1-107, OPP. MADRSA-E-GAWAN,
QUAZIPURA,
BIDAR - 585 401.
...RESPONDENT
(BY SRI. ANANTH S. JAHAGIRDAR, ADVOCATE)
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RSA NO.200254 OF 2019
THIS REGLAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 05TH APRIL, 2019 PASSED IN
REGULAR APPEAL NO.13 OF 2016 ON THE FILE OF THE 2ND
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., BIDAR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 14TH MARCH, 2016 PASSED IN ORIGINAL
SUIT NO.94 OF 2011 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC-II, BIDAR.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant No.1 challenging
the judgment and decree dated 05th April, 2019 passed in
Regular Appeal No.13 of 2016 on the file of the II
Additional Senior Civil Judge and JMFC, Bidar (for short,
hereinafter referred to as 'First Appellate Court'),
dismissing the appeal and confirming the judgment and
decree dated 14th March, 2016 passed in Original Suit
No.94 of 2011 on the file of the Principal Civil Judge and
JMFC-II, Bidar (for short, hereinafter referred to as 'Trial
Court'), wherein the suit filed by the plaintiff came to be
decreed.
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RSA NO.200254 OF 2019
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. The plaint averments are that the plaintiff has
filed suit for declaration, possession and perpetual
injunction against the defendants. The said suit came to
be decreed on 14th March, 2016 before the Trial Court.
Being aggrieved by the same, defendants preferred
Regular Appeal No.13 of 2016 on the file of First Appellate
Court and the said appeal was resisted by the plaintiff. The
First Appellate Court, after re-appreciating the facts on
record, by its judgment and decree dated 05th April, 2019,
dismissed the appeal and confirmed the judgment and
decree dated 14th March, 2016 passed by the Trial Court in
Original Suit No.94 of 2011. Being aggrieved by the same,
the appellant/defendant No.1 has preferred this Regular
Second Appeal under Section 100 of Civil Procedure Code.
4. This Court, by order dated 18th February, 2021,
formulated the following substantial question of law:
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"a. Whether the Courts below failed to properly
interpret Sec.147 of Mohammed law as
regards to the gift by a Mohammedan?
b. Whether the Courts below were justified in
law in decreeing the suit of the plaintiff
concluding that as per Section 17 and 49 of
the Registration Act any deed reduced into
writing should be registered otherwise it
would not be admissible in evidence?
c. Whether the First Appellate Court is
justified in deciding the case on merits
without passing order on application which
is filed under Order XLI Rule 27 of CPC?"
5. Heard Sri. Naresh V. Kulkarni, learned counsel
appearing for the appellant/defendant No.1 and Sri.
Ananth S. Jahagirdar, learned counsel appearing for the
respondent/plaintiff and perused the original records.
6. On careful perusal of the original records of the
Regular Appeal No.13 of 2016, same would indicate that
the appellant herein has filed certain applications on 04th
January, 2018 to substantiate her case on merties and the
First Appellate Court observed that the applications filed
by the appellant shall be considered along with the main
appeal. However, the said applications were not
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RSA NO.200254 OF 2019
considered by the First Appellate Court in its finding
recorded on 05th April, 2019. In that view of the matter,
following the law declared by this Court in the case of
SUBADHRAMMA vs. MULLANGI NARAYANAMMA AND
OTHERS reported in ILR 2016 KAR 3657, I am of the view
that the appellant has made out a case for interference in
the impugned judgment and decree passed by the First
Appellate Court as the First Appellate Court has not
considered the applications, which are relevant to decide
the appeal on merits. Hence, the substantial question of
law favours the appellant/ defendant No.1. Accordingly, I
pass the following:
ORDER
1) Regular Second Appeal is allowed;
2) Judgment and decree dated 05th April, 2019
passed in Regular Appeal No.13 of 2016 on
the file of the II Additional Senior Civil
Judge and JMFC, Bidar is set-aside and
matter is remanded to the First Appellate
Court to consider the applications filed by
the appellant/defendant No.1 on merits,
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after affording an opportunity of hearaing
to the parties;
3) In order to avoid further delay in the
matter, as the parties are represented
through their learned counsels, they are
directed to appear before the First
Appellate Court on 18th March, 2024. On
their appearance, the First Appellate Court
shall dispose of the appeal within four
months thereafter.
Sd/-
JUDGE
ARK
