Karnataka High Court
Mohammed Ali, S/O Ismail Khan Mujawar vs Mohammed Ismail S/O Khaiyamkhan ... on 17 November, 2025
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NC: 2025:KHC-D:15609
RSA No. 5230 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 17TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 5230 OF 2012 (PAR)
BETWEEN:
MOHAMMED ALI
S/O. ISMAIL KHAN MUJJAWAR,
AGE: 60 YEARS, OCC. TAILOR,
R/O. KAKARMATH, ANKOLA,
UTTARA KANNADA DISTRICT.
...APPELLANT
(BY SRI. S.G. KADADAKATTI, ADVOCATE AND
SRI. L.V. KATTIMANI, ADVOCATE)
AND:
1. MOHAMMED ISMAIL
DEAD BY HIS LRS.
1A. MRS. HAFEEZA ISMAIL
YASHAVANT AGE: 55 YEARS, OCC. HOUSEWIFE,
NARAYANKAR
Digitally signed by 1B. MR. KHAIYAM KHAN S/O. MOHAMMAD ISMAIL,
YASHAVANT
NARAYANKAR AGE: 28 YEARS, OCC. BUSINESS,
Date: 2025.11.19
11:50:09 +0530
1C. MRS. JHULEKHA D/O. MOHAMMAD ISMAIL,
AGE: 29 YEARS, OCC. HOUSE WIFE,
1D. MR. ABDUL KHADAR S/O. MOHAMMAD ISMAIL,
AGE: 25 YEARS, OCC. STUDENT,
1E. MRS. HALEEMA BI D/O. MOHAMMAD ALI,
AGE: 30 YEARS, OCC. HOUSEWIFE,
ALL ARE R/O. KAKARAMATH, ANKOLA-581314,
UTTARA KANNADA DISTRICT.
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RSA No. 5230 of 2012
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2. SHABBIR AHAMMED S/O. MOHAMMAD KHAN,
AGED ABOUT 41 YEARS, OCC. BUSINESS,
R/O. KOTEWADA, ANKOLA-581314,
UTTARA KANNADA DISTRICT.
3. ABDULVAHAB S/O. ABDUL RAHAMAN MUJAVAR,
AGE: 49 YEARS, OCC. SOCIAL WORKER,
R/O. NEAR YELLAPUR BUS STAND,
TQ. YELLAPUR,
UTTARA KANNADA DISTRICT-581359.
4. RIYAZ S/O. MAYUDDIN MUJAVAR,
AGE: 34 YEARS, OCC. DRIVER,
R/O. HEGADAKATTA, SIRSI TALUK,
UTTARA KANNADA DISTRICT-581401.
5. MUJAMMIL S/O. ABDULLAKHAN MUJJAVAR,
AGE: 54 YEARS, OCC. BUSINESS,
R/O. ISLAMPUR, ANKOLA, ANKOLA TALUK-581314,
UTTARA KANNADA DISTRICT.
...RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1(A TO E);
SRI. V.P. KULKARNI, ADVOCATE FOR R2 TO R5)
THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER XLII OF
CPC 1908, PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED
10.09.2008 PASSED BY THE TRIAL COURT CIVIL JUDGE SR.DN.
KUMTA IN O.S.NO.43/2007 AND THE JUDGMENT AND DECREE DATED
01.12.2011 OF THE FIRST APPELLATE COURT I.E. THE DISTRICT
JUDGE KARWAR, UTTARA KANNADA DISTRICT IN R.A.NO.1/2009 AND
DISMISS THE SUIT OF THE PLAINTIFFS IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 5230 of 2012
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI )
Heard the learned counsel appearing for the respondents.
2. None appears for the appellant.
3. This Court notices that earlier this appeal came to be
dismissed on 14.10.2015 and then it was restored to the file of
this Court. Thereafter, again it was dismissed on 26.08.2022 and
then, it was restored to the file of this Court. Thereafter, in the
meanwhile, one of the respondents had died and his legal heirs
are brought on record. Today also there is none who is appearing
for the appellant.
4. The learned counsel appearing for the respondents
brings to the notice of this Court that the appellant who was
defendant No.1 before the Trial Court had admitted in paragraph
No.3 of his written statement that Faridkhan had two wives and
together he had seven sons from Imambi and Hawabi. Before the
Trial Court, the alienation made by one of the sons was not
accepted since no material was produced to show that he had
alienated his share in the property. Later before the First
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Appellate Court, by virtue of an application filed under Order XLI
Rule 27 of CPC, the copy of the sale deed was produced and the
same was accepted showing the alienation of the share of the
seventh son of Faridkhan. Therefore, the First Appellate Court
had granted 2/7th share to the plaintiff.
5. Now in the present appeal, the appellant, who is the
defendant No.1 before the Trial Court is contending that there is
no proof that Hawabi was also one of the wives of Faridkhan. The
perusal of the appeal memo shows that it does not consider
paragraph No.3 of the written statement where the relationship
between the parties is admitted. Therefore, the contention of the
appellant appears to be contrary to his own written statement.
6. The appeal memo raises a question of res judicata. It
is seen from the records that O.S.No.16/2006 was a suit filed for
injunction and it came to be dismissed on the ground that the
property is not yet divided and therefore, the injunction against
the co-owner cannot be granted. The said suit being one for
injunction, the question whether Hawabi was the second wife or
not, not being an issue in the said suit, will not operate as res
judicata. The question of res judicata was not at all raised before
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the First Appellate Court. Therefore, this Court finds no merit in
the appeal and particularly, when the objection to the
relationship was not at all raised in the written statement and on
the contrary, the relationship was admitted.
7. In that view of the matter, the appeal is bereft of any
merits. Hence, the appeal is dismissed at the admission stage
itself.
SD/-
(C M JOSHI)
JUDGE
SSP
CT:PA
