Karnataka High Court
Babajan S/O Mohammad Pasha Inamdar vs Pachasab S/O Mehamood Pasha Inamdar on 11 November, 2025
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NC: 2025:KHC-D:15380
RSA No. 100807 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 11TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.100807 OF 2014 (PAR)
BETWEEN:
BABAJAN
S/O. MOHAMMAD PASHA INAMDAR,
AGE: 67 YEARS, OCC. NILL,
R/O. CTS NO.2386/A,
AZAD GALLI, BELAGAVI-590001,
DIST. BELAGAVI.
...APPELLANT
(BY SRI. SHIVARAJ S. BALLOLLI, ADVOCATE)
AND:
1. PACHASAB
S/O. MEHAMOOD PASHA INAMDAR,
AGE: 58 YEARS, OCC. H/W,
R/O. H.NO.2386/B, AZAD GALLI,
YASHAVANT NOW AT R/O. PLOT NO.179,
NARAYANKAR
HASEEN MANSION, ASADKHAN SOCIETY,
Digitally signed by NEAR BUDA OFFICER, BELAGAVI - 590001.
YASHAVANT
NARAYANKAR
Date: 2025.11.13
10:24:06 +0530
2. PARVEEN
W/O. BAPUSAB INAMDAR,
AGE: 50 YEARS, OCC. H/W,
R/O. HOUSE NO 2386/1, AZAD GALLI,
BELAGAVI-590001,
DIST. BELAGAVI.
3. NAHIDA
D/O. BAPUSAB INAMDAR,
AGE: 31 YEARS, OCC. STUDENT,
R/O. HOUSE NO 2386/1, AZAD GALLI,
BELAGAVI-590001,
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DIST. BELAGAVI.
4. NIYAZ
S/O. BASHEERAHMED ARKATI,
AGE: 53 YEARS, OCC. TAILOR,
R/O. HOUSE NO 2386/1, AZAD GALLI,
BELAGAVI-590001,
DIST. BELAGAVI.
5. SHRI SAYEED
S/O. RASULSAB MOKASHI,
AGE: 48 YEARS, OCC. BUSINESS,
R/O. HOUSE NO 2386, AZAD GALLI,
BELAGAVI-590001,
DIST. BELAGAVI.
6. SHRI SAJEED
S/O. HYDERALI MUNIYAR,
AGE: 47 YEARS, OCC. PRIVATE SERVICE,
R/O. CTS NO.2386/P, AZAD GALLI,
BELAGAVI, DIST. BELAGAVI-590001.
7. NASIR
S/O. ISMAIL ANSARI,
AGE: 52 YEARS, OCC. TAILOR,
R/O. CTS NO.2386/B, AZAD GALLI,
BELAGAVI, DIST. BELAGAVI-590001.
8. NABISAB
S/O. MOHAMAD NAIKWADI,
AGE: 52 YEARS, OCC. TAILOR,
R/O. CTS NO.2386/B, AZAD GALLI,
BELAGAVI, DIST. BELAGAVI-590001.
9. DADAPEER
S/O. KHATALSAB PATHAN,
AGE: 50 YEARS, OCC. PRIVATE SERVICE,
R/O. CTS NO.2386/B, AZAD GALLI,
BELAGAVI, DIST. BELAGAVI-590001.
10. SALEEM
S/O. ABDULHAMID DHAWADKAR,
AGE: 47 YEARS, OCC. MECHANIC,
R/O. CTS NO.2386/C2, AZAD GALLI,
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RSA No. 100807 of 2014
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BELAGAVI, DIST. BELAGAVI-590001.
11. KASHIM
S/O. MAKUMSAB MIRAJI,
AGE: 45 YEARS, OCC. MECHANICAL,
R/O. HOUSE NO 2386/D2, AZAD GALLI,
BELAGAVI-590001, DIST. BELAGAVI.
12. SMT. RAHMATBI
W/O. BADAJAN INAMDAR,
AGE: 55 YEARS, OCC. H/W,
R/O. HOUSE NO 2386/A, AZAD GALLI,
BELAGAVI-590001, DIST. BELAGAVI.
13. SHRI SAYYED AHAMMAD PASHA
S/O. BABAJAN INAMDAR,
AGE: 38 YEARS, OCC. SERVICE,
R/O. HOUSE NO 2386/A, AZAD GALLI,
BELAGAVI-590001, DIST. BELAGAVI.
14. SHRI NAZIMPASHA
S/O. BABAJAAN INAMDAR,
AGE: 40 YEARS, OCC. SERVICE,
R/O. HOUSE NO 2386/A, AZAD GALLI,
BELAGAVI-590001, DIST. BELAGAVI.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 31.07.2014 PASSED
IN R.A.NO.1066/2009 ON THE FILE OF THE I ADDL. DISTRICT JUDGE,
BELAGAVI CONFIRMING THE JUDGMENT AND DECREE DATED
28.10.2009 PASSED IN O.S.NO.45/2003 ON THE FILE OF PRL. CIVIL
JUDGE, SENIOR DIVISION, BELAGAVI BY ALLOWING THE TOP NOTED
APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER.
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RSA No. 100807 of 2014
HC-KAR
ORAL JUDGMENT
(PER. THE HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel appearing for the
appellant/plaintiff.
2. The appellant/plaintiff is before this Court in
second appeal assailing the judgment of the First Appellate
Court which denied partitioning the schedule 'A' and 'C'
properties. The Trial Court had dismissed the entire suit for
partition.
3. The grievance of the appellant/plaintiff was that he
and defendant Nos.1 and 2 were the children of one
Mehaboobi. The suit schedule properties were owned by the
said Mehaboobi and her husband (father of the plaintiff and
defendant Nos.1 and 2). The said Mehaboobi, through her
husband as a power of attorney holder had given an
application to the City Survey Authorities to divide the suit
schedule 'A' immovable property into three parts, and
accordingly, three parts were created. The shares of the
plaintiff and defendant No. 1 and 2 were carved out, and
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consequently, the names of the plaintiff and defendants Nos. 1
and 2 were entered in the City Survey records.
4. Schedule 'B' property is the double-barrel gun said
to have been given to the father of the plaintiff by the
Britishers. Schedule 'C' happens to be a sword owned by the
father of the plaintiff. It is to be noted that the Trial Court
dismissed the suit on the ground that there was already a
partition in respect of the schedule 'A' property during lifetime
of their father and mother as evidenced by Ex.D.1, the
application given to the City Survey, which was acted upon
and entries were made in the City Survey records. The Trial
Court also held that there is no material to show the existence
of schedule 'B' and 'C' properties i.e. the double-barrel gun
and the sword.
5. Being aggrieved, the plaintiff approached the First
Appellate Court in R.A.No.1066/2009. After hearing the
parties, the First Appellate Court partly allowed the appeal
granting division in the suit schedule 'B' property the gun, and
confirming the judgment of the Trial Court in respect of 'A' and
'C' properties.
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6. Being aggrieved, the plaintiff is before this Court
contending that the application given to the City Survey by
the father of the plaintiff as Power of Attorney holder of his
mother Mehaboobi cannot be treated as a partition. He
contends that the division is unequal and therefore, the
plaintiff is entitled for a share. He also contends that the
division also should have been made in respect of sword. It is
submitted that the mutation entries or the City Survey reports
cannot be construed as a partition and therefore, the
conclusions of the First Appellate Court are not justifiable. It is
submitted that under Mohammedan law, the partition can
happen only after death of a person and there cannot be any
partition during lifetime. Therefore, the conveyance of the suit
schedule 'A' property in favour of the plaintiff and defendant
Nos.1 and 2 through the application given to the City Survey
and their names being entered cannot be a good conveyance
and as such, the judgment of the First Appellate Court is liable
to be set aside.
7. A perusal of the records would reveal that the
application given by the mother of the plaintiff and defendants
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through her husband M.N. Inamdar, as depicted in Ex.D.1
reads as below:
"To
The City survey Officer,
Belgaum.
Subject: Divisions in house C.T.S.No2386 Azad
lane Belgaum.
Sir,
I, M.N. Inamadar, General holder of Power of
Attorney of Smt. M.M. Inamadar of Belgaum request as
under:-
The house bearing C.T.S.No.2386 measuring 492
Sq.Yards is in the ownership and Wahivat of my wife
Smt. M.M. Inamadar. The house in question hat already
three separate parts, but no separate members have
been acquired in the C.T.S. records. Now I intend to
have three separate parts in my three sons (1) Shri.
Babajan Mohamadpasha Inamader (2) Pachasaheb M.
Inamadar M/G mother Smt. Mahabubabee M. Inamadar
(3) Bapusaheb Mohamadpasha Inamadar, M/G mother
Mahabubibi Mohamadpash Inamadar having are
separate part to each arranging C.T.S.Nos.2386, 2386A
and 2386B having backyard-well and laterin in common
use to all the three. Accordingly necessary divisionwise
measurements may kindly be made and necessary
charges be effected in the C.T.S records accordingly. I
have credited the measurement fees of Rs. 21/- and the
credited challan is enclosed for early action.
Address
M.N. Inamadar H.No. Yours faithfully,
2386, Azad, Belgaum Sd/- English
lane (M.K. Inamadar)
8. The endorsement on Ex.D.1 by the City Survey
Authorities is also available on the back side and it is evident
that the property was measured by the surveyor and then, the
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division was made. The said endorsement contains the
signature of the minor guardian of defendant Nos.1 and 2 and
the consent of the plaintiff also. Thus, it is evident that the
plaintiff had given consent for the same and it categorically
mentioned about the partition. In that view of the matter, the
Trial Court as well as the First Appellate Court came to the
conclusion that there was a partition in respect of the suit
schedule 'A' property during lifetime of Mehaboobi and she as
well as the father of the plaintiff had given consent.
9. When there is a consent and division has been
made and the property was enjoyed, it is needless to say that
such enjoyment after death of Mehaboobi became final and by
virtue of the consent, the plaintiff was estopped from
reopening the said partition. Under these circumstances, no
fault can be attributed in respect of the finding given by the
Trial Court as well as the First Appellate Court in respect of
schedule 'A' property.
10. So far as schedule 'B' property is concerned, it is a
double-barrel gun and since certain documents were available
to show its existence, the First Appellate Court granted the
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share. It is not known how the plaintiff and defendant Nos.1
and 2 would divide the said gun. It is advisable that the
valuation may be made and if necessary, the same may be
sold in auction and the proceeds may be distributed as
decreed. As noted by the First Appellate Court, there is no
evidence to show that there existed a sword in the form of
schedule 'C' property.
11. In that view of the matter, the appeal is bereft of
any merits and there is no substantial question of law that
arise. Hence, the appeal is dismissed.
SD/-
(C M JOSHI)
JUDGE
SSP
CT.PA
