Karnataka High Court
Jamela vs Begumbee on 11 March, 2025
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RSA No. 200069 of 2025
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 200069 OF 2025
(DEC/POS)
BETWEEN:
1. JAMELA
W/O ABDULRAZAK MAKANDAR,
AGE: 62 YEARS,
OCC: BUSINESS
R/O: ROSHANI BATTERY, 100 FEET ROAD,
SANGLI - 416 406.
2. MOHAMMAD FAROOQ
S/O ABDULRAZAK MAKANDAR,
AGE: 39 YEARS,
OCC: BUSINESS
Digitally signed by R/O: ROSHANI BATTERY, 100 FEET ROAD,
BASALINGAPPA SANGLI - 416 406.
SHIVARAJ
DHUTTARGAON
Location: HIGH 3. FATIMA
COURT OF D/O ABDULRAZAK MAKANDAR,
KARNATAKA AGE: 37 YEARS,
OCC: HOUSEHOLD,
R/O: ROSHANI BATTERY, 100 FEET ROAD,
SANGLI - 416 406.
4. ANJUM
D/O ABDULRAZAK MAKANDAR,
AGE: 36 YEARS,
OCC: HOUSEHOLD,
R/O: ROSHANI BATTERY, 100 FEET ROAD,
SANGLI - 416 406.
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RSA No. 200069 of 2025
5. RUKAYYA
D/O ABDULRAZAK MAKANDAR,
AGE: 34 YEARS,
OCC: HOUSEHOLD,
R/O: ROSHANI BATTERY, 100 FEET ROAD,
SANGLI - 416 406.
6. IMRAN
S/O ABDULRAZAK MAKANDAR
AGE: 31 YEARS,
OCC: HOUSEHOLD,
R/O: ROSHANI BATTERY, 100 FEET ROAD,
SANGLI - 416 406.
7. MEHARUNBEE @ ALLAMA
W/O FARKRUDDIN MAKANDAR
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK
R/O: LOKAPUR,
DIST: BAGALKOT - 587 122.
8. RAJESAB @ RAJU
S/O FAKRUDDIN MAKANDAR
AGE: 28 YEARS,
OCC: MECHANIC
R/O: LOKAPUR,
DIST: BAGALKOT - 587 122.
9. RIYAZ
S/O FAKRUDDIN MAKANDAR
AGE: 28 YEARS,
OCC: MECHANIC
R/O: LOKAPUR,
DIST: BAGALKOT - 587 122.
10. SALMA
W/O MOHSIN BAGNIKAR @ CARRYBAGWALE
AGE: 23 YEARS,
OCC: HOUSEHOLD WORK
R/O: BADAM CHOWK,
SANGLI - 416 406.
...APPELLANTS
(BY SRI. SACHIN M.MAHAJAN, ADVOCATE)
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RSA No. 200069 of 2025
AND:
1. BEGUMBEE
W/O LATE BAPUSAB BARGAR @ HORAGINAMANI
AGE: 76 YEARS,
OCC: HOUSEHOLD WORK
R/O: GASTI PLOT, ATHANI
DIST: BELAGAVI - 591 304.
2. MUMTAZ
W/O IBRAHIM HYALAD
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK,
R/O: RAM NAGAR,
TISRI GALLI 100 FEET ROAD CORNER
KOLHAPUR ROAD, SANGLI - 416 406.
3. MOHAMMAD ALI
S/O LATE BAPUSAB BARGAR @ HORAGINAMANI
AGE: 41 YEARS,
OCC: BUSINESS
R/O: GASTI PLOT, ATHANI
DIST: BELAGAVI - 591 304.
4. MAHABOOBBI
W/O HAJI MALANG TELASANGA
AGE: 38 YEARS,
OCC: HOUSEHOLD WORK
R/O: HONWAD VILLAGE,
TQ: TIKOTA
DIST: VIJAYAPURA - 58613.
5. AMIR MUKHTAR
S/O LATE BAPUSAB BARGAR @ HORAGINAMANI
AGE: 36 YEARS,
OCC: BUSINESS
R/O: GASTI PLOT, ATHANI
DIST: BELAGAVI - 591 304.
6. BABULAL
S/O LATE BAPUSAB BARGAR @ HORAGINAMANI
AGE: 34 YEARS,
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RSA No. 200069 of 2025
OCC: BUSINESS,
R/O: GASTI PLOT, ATHANI,
DIST: BELAGAVI - 591 304.
7. CHANDBI
W/O MEHABOOB MADDIN,
AGE: 44 YEARS,
OCC: HOUSEHOLD WORK,
R/O: SHANTNIKETAN COLONY MAHALINGPUR
(RURAL), TQ: MUDHOL,
DIST: BAGALKOT - 587 312.
...RESPONDENTS
(BY SRI G.G.CHAGASHETTI, C/R1 TO R6)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE
FINDINGS ON ISSUE NO.1 AND THE OBSERVATIONS ON ISSUE
NO.3 IN THE JUDGMENT AND DECREE DATED 09.04.2019
PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE,
VIJAYAPURA AND CONSEQUENTLY MODIFY THE JUDGMENT
AND DECREE BY ANSWERING THE ISSUE NO.1 IN THE
NEGATIVE AND ETC.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel appearing for the
appellants as well as learned counsel appearing for the
respondents.
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2. This regular second appeal arising from the
judgment and decree in RA No.44/2019 on the IV-Addl.
Senior Civil Judge, Vijayapur.
3. Initially, the suit was filed in OS No.43/2015
for relief of declaration and injunction. The plaintiff one
Mr.Saheblal sought a declaration that he is the owner of
the property and transfer of property in the name of
defendant No.1 through a wardi and unregistered
document is invalid. He also sought for consequential
relief of injunction.
4. The defendant No.1 contested the suit and
claimed that Saheblal transferred the property through a
document called as settlement deed and thereafter, he
moved an application to the revenue authorities to enter
the name of defendant No.1 in property records,
pursuant to which mutation is certified in the name of
defendant No.1. Thus, defendant claimed absolute
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ownership over the property and prayed for dismissal of
the suit.
5. Trial Court dismissed the suit in entirety. The
trial Court while answering the issue No.1 held that
plaintiff is the absolute owner of the property. However,
the trial Court has also held answered issue No.2
whether defendant No.1 got the document executed
from the plaintiff by practicing fraud, against the
plaintiff. The Court also said that the suit is time barred
and consequently suit is dismissed.
6. Aggrieved by the decree dismissing the suit,
plaintiff filed appeal and defendant No.1 aggrieved by
the finding on issue No.2 filed cross objection.
7. The appeal filed by the plaintiff is allowed.
The judgment and decree passed by the trial Court are
set aside and the suit is decreed in toto. Hence,
defendant No.1 is before this Court assailing the afore
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mentioned judgment and decree passed by the first
appellate Court reversing the judgment and decree of
the trial Court.
8. Learned counsel appearing for the defendant
No.1/appellant would contend that his cross objection
challenging the judgment and decree passed by the trial
Court is pending consideration before the first appellate
Court. The first appellate was required to hear the
cross objection as well as along with the appeal
simultaneously and thereafter should have passed the
appropriate order. He would also submit that though
the suit is dismissed in entirety, defendant No.1 is
aggrieved by the finding that the document in his favour
is invalid, filed cross objection as this is one of the
options available to him in addition to, he orally
objecting to the finding of the trial Court in an appeal
filed by the appellant. Thus, he would contend that the
first appellate Court was under obligation to hear the
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cross objection on merit and it could not have decided
the appeal alone.
9. Learned counsel would also submit that both
appeal and cross objections were heard together and
written submissions were filed by the cross objector
before the first appellate Court. Despite that the first
appellate Court ignores the cross objection and doesn't
decide the cross objection. And the Court has decided
the appeal without reference to the cross objections, as
such, he would contend that the impugned judgment
and decree have to be set aside and the matter has to
be remitted to the first appellate Court to hear the
appeal as well as cross objections simultaneously.
10. Learned counsel appearing for the
respondents vehemently opposed the contentions raised
by the appellant and would contend that the appellant
has not brought to the notice of the Court that the cross
objection filed is pending for consideration. Having not
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argued the matter in the cross appeal and having not
brought it to the notice of the first appellate Court that
the cross appeal is also still pending, appellant is
precluded from raising a contention that the cross
objection is not heard.
11. It is his further submission that only after
disposal of the appeal before the fist appellate Court,
the cross objector filed an application contending that
his cross objection is still pending. This Court has
considered the contentions raised the bar and peruse
the records.
12. The following substantial question of law
arises for consideration.
1) Whether the first appellate Court is
justified in deciding the appeal without
reference to the cross objection which is
filed by the respondent-cross objector?
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13. There is no dispute that two issues are held
against the defendant, though the suit is dismissed in
his entirety. The plaintiff has filed an appeal against the
decree challenging the dismissal of his suit. The cross
objector had an option to support the decree, dismissing
the suit and at the same time he was also enabled in
law to oppose the findings on the issues which have
gone against him. In addition to that he had an option
of filing a cross objection and same was done. Under
these circumstances, the first appellate Court was
required to hear the appeal as well as cross objections
simultaneously.
14. It is also submitted that the appellant has
filed written submission both in appeal as well as cross
objection. Despite this the first appellate Court
proceeded to decide only the appeal and did not pass
any orders in the cross objection. Now the cross
objection is still pending consideration.
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15. In case the first appellate Court is only
directed to consider the cross objection which is pending
some of the findings which are recorded in the judgment
and decree which are under appeal before this Court,
may come in the way of first appellate Court deciding
the cross objection objectively.
16. It is also noticed that the original plaintiff died
during the pendency of the suit. Thereafter, the
contesting respondent has come on record as a legatee
of the original plaintiff. The application to come on
record based on the alleged Will of original plaintiff is
allowed only for a limited purpose. Thus, the finding
relating to declaration of title, if any granted will not
confer obsolete right in favour of the legatee unless the
Will is established the manner known to law.
17. Under these circumstances, it is open to
either of the parties to file a suit based on the their
claim relating to the Will alleged to have been executed
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by deceased Saheblal. If such suit is filed, same shall be
decided in accordance with law notwithstanding the
pendency of the appeal and cross objection before the
first appellate Court.
18. Under these circumstances, impugned
judgment and decree passed by the first appellate Court
has to be set aside and the matter is remitted to the
first appellate court to consider the appeal as well as
cross objection afresh. Hence, the following:
ORDER
Appeal is allowed in part.
Impugned judgment and decree dated 25.11.2024
in R.A.No.44/2019 on the file of IV-Addl. Senior Civil
Judge, Vijayapur are set aside.
The first appellate Court shall hear the appeal as
well as cross objection together.
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It is made clear that nothing is expressed on the
merits of the matter. The parties shall appear before the
first appellate Court on the date fixed for hearing of the
cross objection as well as main appeal without any
further notice on 15.04.2025.
Send the records to the first appellate Court.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
SMP
