Karnataka High Court
Imamsab vs Sapurbi on 7 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 487 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.487 OF 2024 (PAR)
BETWEEN:
IMAMSAB
S/O KHDARSAB
AGE: 73 YEARS
OCC AGRI
R/O YADAGOPPA VILLAGE
CHANDRAGUTTI HOBLI
SORABA TALUK
SHIVAMOGGA DISTRICT
...APPELLANT
Digitally signed (BY SRI RAJENDRA S ANKALKOTE, ADVOCATE)
by DEVIKA M
Location: HIGH AND:
COURT OF
KARNATAKA 1. SAPURBI
W/O NOT KNOWN
TO THE APPELLENT ILLEGALLY
CLAIMING TO BE THE WIFE OF
MAHAMMAD HUSSAIN
AGE: 71 YEARS
OCC: HOUSEHOLD
R/O THIMMAPURA ONI ANAVATTI
SHIVAMOGGA DISTRICT
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RSA No. 487 of 2024
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2. MAHAMMADGOUSE
S/O SAPURABI
ILLEGALLY CLAIMING AS SON OF
MAHAMMAD HUSSAIN
AGE: 48 YEARS
OCC: HOUSEHOLD
R/O THIMMAPURA ONI ANAVATTI
DIST. SHIVAMOGGA
3. SHABANA
D/O SAPURABI
ILLEGALLY CLAIMING TO BE
THE DAUGHTER OF
MAHAMMAD HUSSAIN
AGE: 44 YEARS
OCC: HOUSEHOLD
R/O THIMMAPURA ONI ANAVATTI
DIST. SHIVAMOGGA
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 04.01.2024
PASSED IN R.A NO.15/2022 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SORABA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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RSA No. 487 of 2024
HC-KAR
ORAL JUDGMENT
This appeal is filed against the concurrent finding of
the Trial Court and the First Appellate Court.
2. This matter is listed for admission. Heard the
learned counsel appearing for the appellant.
3. The factual matrix of the case of plaintiffs
before the Trial Court is that plaintiffs are claiming half
share in respect of the suit schedule property as they are
the legal heirs of one Mohammed Hussain @ Babu. It is
contended that defendant also got half share in the suit
schedule property which is more fully described in the
schedule. It is also the case of the plaintiffs that originally,
the property belongs to the one Imam Sab who has 6 sons
and though had 6 sons, among the 2 brothers i.e.,
husband and father of the plaintiffs as well as defendant,
the property was devolved. It is also contend that inspite
of share was claimed, the defendant has not given any
share and hence, made the claim that plaintiff No.1, the
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wife and plaintiff Nos.2 and 3 are the children of
Mohammed Hussain @ Babu are entitled for half share and
also content that they are the tenants in common in
respect of the suit schedule property.
4. The defendant appeared and filed the written
statement contending that he himself and his brother
Mahammed Hussain are the sons of Imam Sab but totally
denied the very contention of the plaintiffs with regard to
the relationship between the plaintiffs and also his brother
Mohammed Hussain. But he has contended that he
married one Khaisarabi who died issue less and
subsequent to her death, Mohammed Hussain also died
and hence, plaintiffs are not entitled for the relief of
partition.
5. The Trial Court having considered the pleadings
of the parties, allowed the parties to lead their evidence
and after considering both oral and documentary evidence
placed on record not accepted the evidence of DW1 since
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he is not having any knowledge about the factual aspects
of the case even though he is a power of attorney holder.
However, taken note of evidence of PW2 and PW3. PW2 is
the daughter of the said Mohammed Hussain and PW3 is a
witness who speaks that both of them are in common
tenancy and cultivating the property and accepted the
case of plaintiffs regarding relationship between the
plaintiffs and the brother of the defendant Mohammed
Hussain @ Babu and granted half share in the suit
schedule property. The said judgment and decree of the
Trial Court was challenged before the First Appellate Court
in R.A.No.15/2022.
6. The First Appellate Court also having considered
the grounds which have been urged before it, formulated
the Points and reassessing both oral and documentary
evidence placed on record, in detail discussed the
pleadings of the parties and contentions and also the
reasons assigned by the Trial Court while considering the
evidence of the witnesses who have been examined before
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the Trial Court and also taken note of documentary
evidence which have been placed in paragraphs 19 to 25
and confirmed the judgment and decree of the Trial Court.
Being aggrieved by the concurrent finding of the Trial
Court as well as the First Appellate Court, the present
second appeal is filed before this Court.
7. The main contention of the counsel appearing
for the appellant that both the Courts are not justified in
decreeing the suit of the plaintiffs when there are no
documents or evidence to show the death of Mohammed
Hussain and both Courts are not justified in arriving to the
conclusion that there was partition in the family of Imam
Sab and suit properties were allotted Mohammed
Hussainsab and Khadarsab in the absence of any evidence
whatsoever and both the Courts have overlooked the
documents of Exs.P35 and 36 to show the change of katha
in the name of defendant's father in the year 1940-41
itself, which has got presumptive value. Hence, this Court
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has to admit the appeal and frame substantive questions
of law.
8. Heard the appellant's counsel and also perused
the reasons assigned in the judgment of Trial Court and
First Appellate Court and taken note of the pleadings of
the plaintiffs as well as defendant. In paragraph 13, the
Trial Court taken the note of the relationship between the
Mohammed Hussain as well as the defendant and they are
the sons of Imam Sab. It is the specific case of the
plaintiffs that the property devolves upon these two
families and both of them are in joint cultivation and
hence, they are entitled for half share in the suit schedule
property and the said fact is discussed in detail by the Trial
Court. Though the Trial Court judgment is cryptic with
regard to the finding is concerned, but the First Appellate
Court in detail discussed the same and the evidence of all
the witnesses were extracted and in paragraph 19 taken
note of the very contentions as well as Ex.P33 and P34,
which clearly establishes that Item No.1 of the plaint
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schedule was granted to original propositus - Imam Sab
and also taken note of Ex.P5 and P6, which clearly
discloses that plaintiff Nos.2 and 3 are the children of
Mohammed Hussain. In paragraph 20 taken note of the
fact that both of them have not given any details of the
properties allotted to the shares of Imam Sab. Except oral
evidence, no other documents are produced in proof of the
earlier oral partition between the children of Imam Sab. In
paragraphs 22 and 23 also, the First Appellate Court taken
note of the claim made by the plaintiffs and defendant and
comes to the conclusion that there is no documentary
proof among them to show that there was a partition and
relied upon the evidence of PW3. Though PW3 was in
detail cross examined, nothing was elicited.
9. The First Appellate Court also taken note of
Ex.D3 which reveals that the name of Khadar Sab, son of
Imam Sab has been mutated to the record of the suit land
as the heir and elder son of Imam Sab. In Ex.D1 it is
stated that the defendant has given power of attorney in
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favour of his son who has given evidence as DW1 due to
his old age and ill-health. But evidence of DW1 was not
considered. But First Appellate Court has discussed that as
per Section 118 of Evidence Act, all persons will be
competent to testify unless the Court considers that they
are prevented from understanding the questions put to
them or from giving rational answers to those questions,
by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind. As per
the explanation provided to Section, a lunatic is not
incompetent to testify, unless he is prevented by his
lunacy from understanding, the questions put to him and
giving rational answers to them. In the cross-examination,
DW1 has clearly admitted that his father is healthy, but his
hearing ability has been reduced. In addition to this, DW1
clearly stated that he does not know the contentions taken
by his father in the written statement. Such being the fact,
not considered the evidence of DW1. In paragraph 25,
taken note of the documents of Ex.P33 and 34 and comes
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to the conclusion that the Trial Court has not committed
any error in coming to such a conclusion. When such
reasoning is given by the First Appellate Court in keeping
the contentions urged by the parties and though the Trial
Court elaborately not discussed both oral and
documentary evidence, but the First Appellate Court has
taken pain in considering each and every material on
record and also the grounds which have been urged before
it, I do not find any error on the part of the Trial Court and
First Appellate Court in granting half share in respect of
the suit property. Hence, no grounds are made out to
admit the appeal and to frame substantive questions of
law.
10. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
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In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
