Karnataka High Court
Sri. Mahammad Rafiq vs Sri. Viswhanath on 18 November, 2025
Author: R.Devdas
Bench: R.Devdas
-1-
NC: 2025:KHC-D:15813-DB
RFA No. 100054 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 18TH DAY OF NOVEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
REGULAR FIRST APPEAL NO. 100054 OF 2020 (PAR/POS)
BETWEEN:
1. SRI. MAHAMMAD RAFIQ,
S/O. SAIYADSAB KUDACHI, AGE: 43 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O: KUDACHI CHAL, MALLAMA NAGAR CROSS,
MUDHOL-587313, DISTRICT: BAGALKOT.
2. SRI. FAYAJ S/O. SAIYADSAB KUDACHI,
AGE: 35 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O: KUDACHI CHAL, MALLAMA NAGAR CROSS,
MUDHOL-587313, DISTRICT: BAGALKOT.
3. SRI. RIYAJAHAMMAD S/O. SAIYADSAB KUDACHI,
AGE: 29 YEARS, OCC: AGRICULTURE & BUSINESS,
R/O: KUDACHI CHAL, MALLAMA NAGAR CROSS,
MUDHOL-587313, DISTRICT: BAGALKOT.
Digitally signed by
MOHANKUMAR B
SHELAR
Location: HIGH
4. SRI. ABUBAKAR S/O. SAIYADSAB KUDACHI,
COURT OF
KARNATAKA
AGE: 27 YEARS, OCC: AGRICULTURE & BUSINESS,
DHARWAD R/O: NEAR MANDA BASAPPA TEMPLE,
BENCH
Date: 2025.11.20 MUDHOL-587313, DISTRICT: BAGALKOT.
10:12:24 +0530
5. SMT. MAHABUBI W/O. SAIYADSAB KUDACHI,
AGE: 62 YEARS, OCC: HOUSEHOLD & AGRICULTURE,
R/O: NEAR MANDA BASAPPA TEMPLE,
MUDHOL-587313, DISTRICT: BAGALKOT.
6. SMT. AAYEESHA W/O. SHAFIQ JAGIRDAR,
AGE: 22 YEARS, OCC: HOUSEHOLD,
R/O: KUNDARAGI, TQ: BILAGI,
DISTRICT: BAGALKOT.
-2-
NC: 2025:KHC-D:15813-DB
RFA No. 100054 of 2020
HC-KAR
7. KUMAR. ISMAIL S/O. SAIYADSAB KUDACHI,
AGE: 20 YEARS, R/O: NEAR MANDA BASAPPA TEMPLE,
MUDHOL-587313, DISTRICT: BAGALKOT.
8. KUMARI. BISMILLA D/O. SAIYADSAB KUDACHI,
AGE: 19 YEARS, R/O: NEAR MANDA BASAPPA TEMPLE,
MUDHOL-587313, DISTRICT: BAGALKOT.
- APPELLANTS
(BY SRI. J.S.SHETTY ASSOCIATES, ADVOCATE FOR
SRI. G.P.PATTAR AND SMT. DEEPA UDIYAR, ADVOCATES)
AND:
1. SRI. VISWHANATH S/O. BASAVARAJ SAVALAGI,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: MUDHOL, DIST: BAGALKOT.
2. SMT. KARUNA W/O. GIRISH BANGI,
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: MUDHOL ROAD, JAMKHANDI-587301,
DIST: BAGALKOT.
3. SRI. MAHAMADSHARIN S/O. IMMAMSAB GOTHE,
AGE: 49 YEARS, OCC: BUSINESS, R/O: BEHIND GOKUL
INDIAN OIL PETROL PUMP, MAHALINGAPUR-587312,
TQ: MUDHOL, DIST: BAGALKOT.
4. SMT. HALIMA W/O. SHABIIRSAB BANNUR,
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: JAYANAGAR, MUDHOL-587 313, DIST: BAGALKOT.
5. SMT. SAHEBI W/O. SAIYADSAB KUDACHI,
AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
R/O: MALLAMA NAGAR CROSS, LOKAPUR ROAD,
MUDHOL-587 313, DIST: BAGALKOT.
6. SMT. RASULBI W/O. IBRAHIMSAB HANAGANDI,
AGE: 52 YEARS, OCC: HOUSEHOLD AND AGRICULTURE,
R/O: TERDAL, TQ: JAMKHANDI, DIST: BAGALKOT.
7. SMT. SAYARABANU W/O. JAMALSAB MULTANI,
AGE: 50 YEARS, OCC: HOUSEHOLD AND AGRICULTURE,
R/O: KUDACHI CHAL, MALLAMA NAGAR CROSS,
MUDHOL-587313, DIST: BAGALKOT.
-3-
NC: 2025:KHC-D:15813-DB
RFA No. 100054 of 2020
HC-KAR
8. SMT. SHAMASHAD W/O. DASTAGIRSAB BUDNESHI,
AGE: 47 YEARS, OCC: HOUSEHOLD AND AGRICULTURE,
R/O: KUDACHI CHAL, MALLAMA NAGAR CROSS,
MUDHOL-587313, DIST: BAGALKOT.
9. SMT. SHARIFA W/O. MAHEBUBSAB SARWAD,
AGE: 39 YEARS, OCC: HOUSEHOLD
AND AGRICULTURE, R/O: JAYANAGAR,
MUDHOL-587313, DIST: BAGALKOT.
10. SMT. FARIDA W/O. BANDENAWAJ DONI,
AGE: 37 YEARS, OCC: HOUSEHOLD AND AGRICULTURE,
R/O: NEAR JAI-VIJAY SCHOOL, MANTUR ROAD,
MUDHOL-587313, DIST: BAGALKOT.
11. SMT. MEENAXI W/O. SATISH BANDIWADDAR,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: MUDHOL, DIST: BAGALKOT.
- RESPONDENTS
(BY SRI. P.R.BENTUR AND
SRI. SHIVAPRASAD S.PATIL, ADVOCATES FOR R1 AND R2;
SRI. AVINASH BANAKAR, ADVOCATE FOR R4;
SRI. MRUTYUNJAY TATA BANGI AND
SRI. PAVAN B.DODDATTI, ADVOCATE FOR R11;
NOTICE TO R5 TO R9 IS SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 03.01.2024,
NOTICE TO R3 AND R8 IS HELD SUFFICIENT;
R4-APPEAL STAND DISMISSED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 11.11.2019
PASSED IN O.S.NO.128/2016 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
MUDHOL &ETC.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
-4-
NC: 2025:KHC-D:15813-DB
RFA No. 100054 of 2020
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.DEVDAS)
This regular first appeal is filed by the plaintiffs in O.S.
No. 128/2016 dated 11.11.2019 on the file of the learned
Addl. Civil Judge & JMFC, Mudhol, being aggrieved of the
dismissal of the suit.
2. For the sake of convenience the parties shall be
referred to in terms of their ranking before the trial Court.
3. The brief background in which the suit is filed, seeking
partition is that one Syed Sab had purchased the suit
schedule property on 17.05.1988, in the name of his first
wife Smt. Sahebi (defendant No.5). It is the contention of
the plaintiffs that Sahebi executed a gift deed dated
30.04.2010, gifting the property back to Sri Syed Sab.
Nevertheless, Sahebi raised a contention before the revenue
authorities that she had not intended to transfer the
property in favour of Syed Sab and therefore the revenue
entries should not be transferred in his favour.
NC: 2025:KHC-D:15813-DB
HC-KAR
Immediately thereafter Sahebi filed a suit in O.S. No.
140/2010 on 14.06.2010 seeking declaration of title in
respect of the suit schedule property and to declare that she
continues to be in possession of the suit schedule property
although the gift deed was executed by her in favour of her
husband. Sri Syed Sab is defendant No.1 in the said suit
and he contested the matter before the trial Court. To
complete the genealogical tree, it would be relevant to
mention that Syed Sab had two wives, Smt. Sahebi and
Smt.Mahaboobi. Smt. Sahebi had two sons and six
daughters. Smt. Mahaboobi had four sons and one
daughter. It appears that during the course of the said suit
in O.S. No. 140/2010 Sahebi executed a gift deed dated
29.11.2010 gifting the suit schedule property in favour of
one of her daughters, Smt. Haleema.
4. It is the submission of the learned counsels for the
appellants and the contesting respondents that interim
order of injunctions were passed by the trial Court in favour
of the plaintiff Smt. Sahebi and subsequently in favour of
NC: 2025:KHC-D:15813-DB
HC-KAR
the first defendant Sri Syed Sab injuncting Smt.Haleema
from alienating the suit schedule property during the
pendency of the suit. It is nevertheless pointed out from
the order sheet itself that as on the date when an order of
temporary injunction was passed by the trial Court on
21.11.2011, Smt. Haleema was not a party to the
proceedings. The application, although filed earlier, formal
orders were passed on 27.02.2012 permitting the plaintiff
to amend the plaint to implead Smt.Haleema.
Smt.Haleema, although, served with the notice did not
appear in the said suit but proceeded to execute the sale
deeds in favour of defendant No.1 on 12.09.2013; in favour
of defendant No.2 on 28.03.2013 and in favour of
defendant No. 3 on 29.05.2013, disposing the suit schedule
property by dividing the same into three parts. Defendant
No.3 thereafter sold her share of the property to defendant
No. 11 on 16.03.2015. All these transactions have taken
place during the pendency of the suit in O.S. No. 140/2010.
Smt. Mahaboobi, along with all her children and the two
NC: 2025:KHC-D:15813-DB
HC-KAR
sons of Smt. Sahebi are plaintiffs in the present suit,
claiming a share in the suit schedule properties.
5. The suit filed by the plaintiffs has been dismissed at
the hands of the trial Court. The appellants/ plaintiffs have
filed an application in I.A. No. 1/2015 under Order 41 Rule
27 CPC to produce four documents by way of additional
evidence. The four documents are the original gift deed
dated 30.04.2010 executed by Smt. Sahebi in favour of
Syed Sab Kudachi; certified copy of the order sheet
maintained in O.S. No. 140/2010; copy of the plaint in O.S.
No. 140/2010 and copy of the memo filed by the plaintiff to
close the suit as not pressed.
6. During the course of arguments, learned counsel
appearing for Smt.Haleema submitted that she had no
knowledge of the orders passed by the civil Court
preventing her from alienating the suit schedule property.
Nevertheless, if sufficient opportunity is given to her, she
will be able to demonstrate before the Court that her action
NC: 2025:KHC-D:15813-DB
HC-KAR
in disposing of the suit schedule property during the
pendency of the suit is bonafide and the subsequent
purchasers' rights should be protected in law.
7. During the course of the proceedings we have also
noticed that the plaintiffs have not sought for a declaration
that the gift deed executed by Smt.Sahebi in favour of
Smt.Haleema and the sale deeds executed by Smt.Haleema
in favour of defendants No.1 to 3 and the subsequent sale
deed executed by defendant No.3 in favour of defendant
No. 11 are not binding on the plaintiffs.
8. Having regard to the fact that four documents which
may be relevant for consideration at the hands of the trial
Court, viz, the original gift deed executed by Sahebi in
favour of Smt.Syed Sab and the copy of the plaint and the
order sheet maintained in O.S. No. 140/2010, are now
sought to be produced by the plaintiffs and the fact that a
declaration was not sought by the plaintiffs regarding the
binding nature of the gift deed executed by Sahebi in favour
NC: 2025:KHC-D:15813-DB
HC-KAR
of Syed Sab and the gift deed executed by Sahebi in favour
of Smt.Haleema and the subsequent sale deeds, we are of
the considered opinion that the matter requires
reconsideration at the hands of the trial Court for affording
an opportunity to the plaintiffs to produce the documents as
sought to be produced along with I.A. No. 1/2025. An
opportunity is also required to be given to Smt.Haleema
who was placed exparte, to have her say in the matter.
9. Accordingly we proceed to set aside the judgment
passed in O.S. No. 128/2016 dated 11.11.2019 on the file
of the learned Addl. Civil Judge & JMFC, Mudhol, while
remanding the matter back to the trial Court for fresh
consideration on merits.
I.A. No. 1/2025 filed by the appellants herein/
plaintiffs is allowed.
Liberty is also given to the plaintiffs to amend the
prayer to add the prayer for declaration that subsequent
sale deeds executed during the pendency of the suit are not
binding on the plaintiffs.
- 10 -
NC: 2025:KHC-D:15813-DB
HC-KAR
The trial Court shall permit the plaintiffs to adduce
additional evidence for the purpose of marking the
documents produced along with I.A. No. 1/2025 and at the
request of plaintiffs to adduce further evidence if required.
An opportunity shall be afforded to Smt.Haleema to
file written statement and to adduce evidence.
Depending on the written statement that would be
filed by Smt. Haleema, the trial Court shall permit the
subsequent purchasers/ defendants No.1, 2, 3 and 11 to file
additional written statement if necessary.
Parties are directed to appear before the trial Court on
10.12.2025 without waiting for further notice.
Ordered accordingly.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
BVV
Ct:vh
