Karnataka High Court
Mahammedshafi S/O Husensab Budihal vs Smt. Ashabi W/O Husensab Budihal on 29 January, 2025
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NC: 2025:KHC-D:1729
RSA No. 100887 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100887 OF 2023 (PAR/DEC-)
BETWEEN:
1. MAHAMMEDSHAFI
S/O. HUSENSAB BUDIHAL,
AGE.: 45 YEARS,
OCC.: AGRICULTURE,
R/O.: KATAGAR ONI, DAMBAL,
TQ.: GADAG-582113.
2. MEHABOOB S/O. HUSENSAB BUDIHAL,
AGE.: 43 YEARS,
OCC.: AGRICULTURE,
R/O.: KATAGAR ONI, DAMBAL,
TQ.: GADAG-582113.
3. MEHRUNBI
W/O. MAHAMMEDSAFI MULAGUND,
AGE.: 41 YEARS,
OCC.: HOUSEHOLD,
R/O.: KURATTIPETHA, BETAGERI,
MANJANNA
E TQ.: GADAG-582102.
Digitally signed by
MANJANNA E
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.02.01 11:43:10
+0530 4. YASMEENBANU
W/O. AKBAR CHOUTAI,
AGE.: 39 YEARS,
OCC.: HOUSEHOLD,
R/O.: KANAMANGARADI, GADAG.
TQ.: GADAG-582102.
...APPELLANT
(BY SRI. MAQBOOLAHAMED M. PATIL, ADVOCATE)
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RSA No. 100887 of 2023
AND:
1. SMT. ASHABI W/O. HUSENSAB BUDIHAL,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. KATAGAR ONI, DAMABL,
TQ.: AND DIST:GADAG-582113.
2. MAKTUMALI S/O. HUSENSAB BUDIHAL,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. KATAGAR ONI, DAMABL,
TQ.: AND DIST:GADAG-582113
3. MAHAMMADRAFI S/O. HUSENSAB BUDIHAL,
AGE: 50 YEARS, OCC:AGRICULTURE,
R/O. KATAGAR ONI, DAMABL,
TQ.: AND DIST:GADAG-582113.
4. SMT. SHAKINABANU
W/O. MURTUJASAB BUDIHAL,
AGE: 78 YEARS OCC: HOUSEHOLD WORK,
R/O.: MIG II, 124, HUDCO COLONY,
TQ.: AND DIST:GADAG-582103.
5. MAKTUMSAB S/O. MURTUJASAB BUDIHAL,
AGE: 56 YEARS, OCC: SERVICE,
R/O.: MIG II, 124, HUDCO COLONY,
TQ.: AND DIST:GADAG-582103.
6. SHRI. MAHAMMEDSHAFI
S/O. MURTUJASAB BUDIHAL,
AGE: 53 YEARS, OCC: PRIVATE SERVICE,
R/O.: MIG II, 124, HUDCO COLONY,
TQ.: AND DIST:GADAG-582103.
7. MEHABOOBALI
S/O. MURUTUJASAB BUDIHAL,
AGE: 51 YEARS, OCC: PRIVATE SERVICE,
R/O.: MIG II, 124, HUDCO COLONY,
TQ.: AND DIST:GADAG-582103.
8. MAHAMMADHANIF
S/O. MURUTUJASAB BUDIHAL,
AGE: 50 YEARS, OCC: PRIVATE SERVICE,
R/O.: MIG II, 124, HUDCO COLONY,
TQ.: AND DIST:GADAG-582103.
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RSA No. 100887 of 2023
9. KHUTIJA D/O MURTUJASAB BUDIHAL,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O.: MIG II, 124, HUDCO COLONY,
TQ.: AND DIST:GADAG-582103.
10. SHABANA D/O. MURTUJASAB BUDIHAL,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O.: MIG II, 124, HUDCO COLONY,
TQ.: AND DIST:GADAG-582103.
11. SMT. GANGAVVA W/O BASAPPA ALAWANDI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O.: PETA-ALUR VILLAGE,
TQ: MUNDARGI, DIST: GADAG-582113.
12. SMT. TIPPAVVA W/O RAMANNA BHAJANTRI,
AGE: 54 YEARS, OCC: HOUSEHOLD WORK ,
R/O.: PETA-ALUR VILLAGE,
TQ: MUNDARGI, DIST: GADAG-582113.
13. SMT. MANJAVVA
W/O DEVAPPA SAVANUR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O.: PETA-ALUR VILLAGE,
TQ: MUNDARGI, DIST: GADAG-582113.
14. SMT. HULAGAVVA
W/O LAXMAPPA SAVANUR,
AGE: 48 YEARS OCC: HOUSEHOLD WORK,
R/O.: PETA-ALUR VILLAGE,
TQ: MUNDARGI, DIST: GADAG-582113.
15. DEVAKKA W/O YALLAPPA BHAJANTRI
AGE. 51 YEARS, OCC HOUSEHOLD WORK
R/O ETA-ALUR VILLAGE,
TQ. MUNDARGI,
DIST. GADAG-582113
...RESPONDENTS
(R1-SERVED UNREPRESENTED; R2 TO R10 - HELD SUFFICIENT;
SRI. H. N. GULARADDI AND SRI.YALAGI KAVYA SHIVAPPA,
ADVOCATE FOR R11 TO R15)
--------
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RSA No. 100887 of 2023
THIS RSA FILED U/SEC.100 OF CPC, PRAYING TO ALLOW THIS
APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED
22.06.2023 PASSED IN R.A.NO.09/2021 PASSED BY THE HON'BLE I
ADDL. PRL. JUDGE, FAMILY COURT, AT. GADAG AND SET ASIDE THE
JUDGMENT AND DECREE DATED 18.12.2020 OF THE HON'BLE
SENIOR CIVIL JUDGE, MUNDARGI PASSED IN O.S.NO.117/2015 AND
CONSEQUENTLY, DECREE THE SUIT OF THE PLAINTIFFS AND ALL
COST OF THIS APPEAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by the plaintiffs challenging the
judgment and decree dated 22.06.2023 in R.A.No.9/2021 on
the file of the I-Additional Principal Judge, Family Court, Gadag
(for short "First Appellate Court") confirming the judgment and
decree dated 18.12.2020 in O.S.No.117/2015 on the file of the
Senior Civil Judge, Mundaragi (for short "the Trial Court")
dismissing the suit of the plaintiffs.
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. It is the case of the plaintiffs that the plaintiff No.1
to 4 are the children of deceased-Hussainsab Budihal,
defendant No.1 is the mother of the plaintiffs, defendant No.2
and 3 are the brothers of the plaintiffs, defendant No.4 is the
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wife of Murtajasab (brother of Hussainsab) and defendant No.5
to 10 are the children of defendant No.4 and Murtajasab. It is
the case of the plaintiffs that the land in question is an 'Inam'
land and was granted to Hussainsab (father of the plaintiffs) on
01.11.1958 and the portion of the land has been granted to
their uncle-Murtajasab. It is stated that the Hussainsab died on
12.12.1989 and therefore, the revenue records transferred into
the name of defendant No.1 to 3. It is also stated that the
uncle of the plaintiffs (Murtajasab) has filed a suit in
O.S.No.382/1990 seeking declaration and injunction in respect
of the subject matter of the land and the said suit came to be
decreed on 07.04.1993 declaring that the said Murtajasab is
the absolute owner in possession of the subject matter of the
suit and therefore, it is the case of the plaintiffs that the said
suit in O.S.No.382/1990 is a collusive suit filed by the uncle of
the plaintiffs herein and accordingly, the plaintiffs filed
O.S.No.117/2015 seeking relief of partition and separate
possession in respect of the subject mater of the land.
3.1. On service of notice, defendant No.1 to 10 did not
appear before the Trial Court and accordingly, they have been
placed ex- parte. Defendant No. 11 to 15 have appeared before
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the Trial Court and filed written statement denying the
averment made in the plaint.
3.2. It is the case of the defendant No.11 to 15 that the
Murtajasab has become owner of the land in question pursuant
to the judgment and decree in O.S.No.382/1990 and
accordingly, sought for dismissal of the suit.
3.3. The Trial Court based on the pleadings of the
parties, framed issues for its consideration. In order to
establish their case, the plaintiffs have examined three
witnesses as PW1 to PW3 and produced 50 documents and
same were marked as Ex.P1 to Ex.P50. The defendants have
not examined any witness nor produced any documents.
3.4. The Trial Court, after considering the material on
record, by its judgment and decree dated 18.12.2020
dismissed the suit and feeling aggrieved by the same, the
plaintiffs have preferred R.A.No.9/2021 before the First
Appellate Court and the appeal was resisted by the defendants.
The First Appellate Court, after considering the material on
record, by its judgment and decree dated 22.06.2023
dismissed the appeal consequently confirmed the judgment and
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decree passed in O.S.No.117/2015 and feeling aggrieved by
the same, the plaintiffs have preferred this Regular Second
Appeal.
4. I have heard Sri. Maqboolahmed M Patil, learned
counsel appearing for the appellants and Miss. Yalagi Kavya
Shivappa, learned counsel appearing for the respondents.
5. It is the contention of the learned counsel
appearing for the appellants that both the Courts below have
not considered the factual aspects on record as the Murtajasab
has filed O.S.No.382/1990, which is a collusive suit to knock off
the property in question and the said aspect has not been
considered by both the Courts below. Accordingly, he sought
for interference of this Court. It is also submission of the
learned counsel appearing for the appellants that a stray
admission of PW1 has been considered by both the Courts
below and the said aspect has to be interfered with in this
appeal.
6. Per contra, learned counsel appearing for the
respondents submitted that since the suit in O.S.No.117/2015
is hit by res-judicata as the right of the parties have been
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crystallized in O.S.No.382/1990 and therefore, sought for
dismissal of the appeal.
7. In the light of the submission of the learned counsel
appearing for the parties and taking into consideration the
relationship between the parties is not in dispute, however, in
order to understand the relationship between the parties for
adjudication of the appeal is concerned, the genealogy tree is
reproduced as under:
Muktumsab Budihal
Hussainsab Murtujasab
(died on 12.12.1989) (Died leaving behind wife
Leaving behind wife Ashabi (D1) Smt.Shakinabanu (D4)
Muktum Mahammed Mohammed Mehaboob Mehrunbi Yasmeenbanu
Ali (D2) Rafi (D3) Shafi (P1) Ali (P2) (P3) (P4)
Maktumsab Mohammed Mehaboob Mohammed Khutija Shabana
(D5) Shafi (D6) Ali (D7) Hanif (D8) (D9) (D10)
8. Perusal of the genealogy tree would indicate that
Hussainsab (father of the plaintiffs) and Murtajasab (father of
the defendant No.5 to 10) are the brothers. It is also
forthcoming from the finding recorded by both the Courts below
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that the subject matter of the suit in O.S.No.117/2015 was the
subject matter in O.S.No.382/1990 filed by Murtajasab seeking
relief of declaration in respect of subject matter, which came to
be decreed on 07.04.1992 and undoubtedly the plaintiffs herein
are the parties in the said proceedings. In that view of the
matter, taking into consideration the finding recorded by the
Trial Court on Issue No.3 is concerned, I am of the view that,
no interference is called for in this appeal as the rights of the
parties have been crystallized in O.S.No.382/1990 and same
reached finality. Hence, I do not find any merit in the appeal.
Accordingly, the appeal is dismissed at the stage of admission
itself, as there is no need for formulation of substantial
question of law under Section 100 of the Code of Civil
Procedure, 1908.
9. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
CT:ANB
