Karnataka High Court
Shri. Abdul Qayyum S/O Mohammed Hussain ... vs Shri Riyaz Ahamed Mohammed Hussain ... on 9 October, 2025
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NC: 2025:KHC-D:13689
RSA No. 100163 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 9TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100163 OF 2025 (FDP)
BETWEEN:
SHRI. ABDUL QAYYUM @ GAYYUM
S/O. MOHAMMED HUSSAIN JAMADAR,
AGE: 72 YEARS, OCC. BUSINESS,
R/O. HOUSE NO.3856/A,
KOTWAL GALLI, BELAGAVI-590001.
...APPELLANT
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
AND:
1. SHRI RIYAZ AHAMED MOHAMMED HUSSAIN JAMADAR,
AGE: 62 YEARS, OCC. BUSINESS,
R/O. HOUSE NO 3856/A, KOTWAL GALLI,
BELAGAVI - 590001.
FATIMABAI
Digitally
signed by
W/O. MOHD HUSSAIN JAMADAR,
YASHAVANT
YASHAVANT
NARAYANKAR SINCE DECEASED BY HER LRS.
NARAYANKAR Date:
2025.10.15
11:28:03
+0530 2. SHRI ABDUL RASHID MOHAMMED HUSSAIN JAMADAR,
AGE: 74 YEARS, OCC. BUSINESS,
R/O. PLOT NO 1897, SECTOR NO.9,
ANJANEYA NAGAR,
M. M. EXTENSION, BELAGAVI - 590016.
3. SHRI IRSHADAHMED MOHAMMED HUSSAIN JAMADAR
AGE: 64 YEARS, OCC. BUSINESS,
R/O. KADDAMMA NAGAR,
OPP. STADIUM GROUND, TALUKA: YALLAPUR,
DIST. KARWAR.
4. SHRI HAFIZUR REHMAN
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RSA No. 100163 of 2025
HC-KAR
S/O. MOHAMMED HUSSAIN JAMADAR,
AGED ABOUT 60 YEARS,
OCC. BUSINESS, R/O. NO. 5,
ABHISHEK APARTMENT,
KARYAPPA COLONY, NANAWADI ROAD,
NEAR FUJI MASJID, BELAGAVI.
SHRI MEHMOOD
S/O. MOHAMMES HUSSAIN JAMADAR,
SINCE DECEASED BY HIS LRS.,
5. MRS. FARIDA
W/O. MEHAMOODUL HASAN JAMADAR,
AGE: 66 YEARS, OCC. PVT. SERVICE,
R/O. PLOT NO. 1674, SECTOR 8,
ANJANEY NAGAR,
M.M. EXTENSION, BELAGAVI-590016.
6. MR. IMDADULLA
S/O. MEHAMPOODUL HASAN JAMADAR,
AGE: 38 YEARS, OCC. SERVICE,
R/O. PLOT NO. 1674, SECTOR 8,
ANJANEY NAGAR, M.M. EXTENSION,
BELAGAVI-590016.
SMT. HALIMABI M. BELAWADI
SINCE DECEASED BY HER LRS.,
7. MR. ABDULSATTAR M. BELAWADI,
AGE: 80 YEARS, OCC. RETIRED,
R/O. 1547 (CTS 6169), ANJANEYA NAGAR,
M.M. EXTENSION, BELAGAVI-590016.
8. MR. SHABBIRAHEMAD
S/O. ABDULSATTAR BELAWADI,
AGE: 55 YEARS, OCC. BUSINESS,
R/O. 1547 (CTS 6169),
ANJANEYA NAGAR, M.M. EXTENSION,
BELAGAVI-590016.
9. MR. ZUBAIRAHEMAD
S/O. ABDULSATTAR BELAWADI,
AGE: 49 YEARS, OCC. BUSINESS,
R/O. PLOT NO. 3060,
RAMTIRTH NAGAR, BELAGAVI-590016.
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RSA No. 100163 of 2025
HC-KAR
10. MRS. SALMA
W/O. GOUSMOUDDIN SHEAK,
AGE: 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. H NO. 745, PLOT NO. 45, 2ND CROSS,
SUBHASH NAGAR, BELAGAVI-590016.
11. MRS. AIYSHA
W/O MOHAMMADRAFIQ KITTUR,
AGE: 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. PLOT NO. 3048, RAMTIRTH NAGAR,
BELAGAVI-590016.
12. SHRI SAEED AHAMED
S/O. MOHAMMED HUSSAIN JAMADAR,
AGED ABOUT 68 YEARS,
OCC. PVT. SERVICE,
R/O. PLOT NO. 35, SECTOR NO. 12,
NEAR KHUSRO MASJID,
MAHANTESH NAGAR, BELAGAVI-590016.
...RESPONDENTS
(BY SRI. SADYOJAT R. BALIGATTIMATH, ADVOCATE FOR R1 TO R12)
This RSA is FILED UNDER SECTION 100 READ WITH ORDER XLII
RULE I OF CPC., PRAYING TO a. CALL FOR THE RECORDS, b. SET
ASIDE BEING AGGRIEVED BY THE JUDGMENT AND DECREE PASSED
BY THE VII ADDL. DISTRICT JUDGE, BELGAVI IN RA NO.63/2021
DATED 26.10.2024 BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 27.08.2021 PASSED IN FDP NO.24/2011 BY THE III ADDL.
CIVIL JUDGE AND CJM, BELAGAVI AND ALLOW THE APPEAL WITH
COST, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS MADE THEREIN AS UNDER:
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RSA No. 100163 of 2025
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ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Being aggrieved by the judgment and decree dated
26.10.2024 in R.A.No.63/2021 passed by the VIII Additional
District and Sessions Judge, Belagavi the appellant is before this
Court.
2. On issuance of notice by this Court, the respondents
have appeared through their counsel.
3. The submissions of learned counsel appearing for the
appellant and the respondents were heard.
4. The only issue raised in this appeal is that while
dividing the property by metes and bounds and allotting shares,
the Court Commissioner has allotted share in favour of Fatimabi,
the petitioner No.2 before the Trial Court, who was the mother of
the parties and she had passed away on 05.04.2019. The
learned counsel appearing for the appellant submits that since
the said share is erroneously allotted, what required in this
matter is, readjustment of shares to the parties.
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5. The factual background as may be noted from the
impugned judgment as well as the final decree passed by the
Trial Court is that one Mohammad Hussain S/o. Faridsaheb
Jamadar expired on 27.11.1988 leaving behind him the plaintiffs
and defendants as his legal heirs. The plaintiffs and the
defendants, are the legal heirs of the said Mohammad Hussain
Faridsaheb Jamadar and they have succeeded to the suit
schedule property and there was no partition by metes and
bounds. Therefore, they filed a suit in O.S.No.313/2005 wherein
the Court held that the plaintiff No.1 and 3 to 6 and defendant
No.1 and 2 are entitled for 14/20th share each in the suit
schedule property whereas the plaintiff No.2, being the wife of
said Mohammad Hussain Faridsaheb Jamadar is entitled for 1/8th
share. The plaintiff No.7, being the daughter of the said
Mohammad Hussain Faridsaheb Jamadar is entitled for 7/120th
share in the suit schedule property.
6. The defendants had challenged the judgment and
decree in R.A.No.15/2008, which came to be dismissed on
01.02.2011 and as such, the judgment and decree passed has
become final. After institution of the final decree proceedings,
Court Commissioner was appointed to submit a proposal for the
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partition by metes and bounds. During the pendency of this
petition, the petitioner No.2 [plaintiff No.2] died and her 1/8th
share was again divided among her children i.e., petitioner No.1
and 3 to 6 and respondent No.1 and 2. Again the Court
Commissioner was appointed to divide the same as per the
additional preliminary decree, which was drawn as per the order
dated 04.01.2020. After receiving the proposal for partition by
the Court Commissioner, objections were filed and after hearing,
the Trial Court accepted the Commissioner Report and passed
the final decree as per order dated 27.08.2021 in FDP
No.24/2011. In paragraph 10 of the order while directing for
drawing up of final decree, the Trial Court observes as below:
"10. Point No.1: No doubt, in the preliminary
decree this court has awarded 16/120th share to
the petitioners No.1, 3 to 6 and respondent No.1
and 2 each, 8/120th share is entitled to petitioner
No.7. However, during the pendency of the case,
the petitioner No.2 has died. So, her 1/8th share
again distributed to her legal heirs. Therefore, the
petitioners No.1, 3 to 6 and respondents No. 1 and
2 are entitled 16/120th share each. Accordingly,
the Court Commissioner has divided the suit
property and made proposal in the report. As
discussed above the counsel for petitioners
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submitted no objections to receive the
commissioner's report. Inspite of sufficient
opportunity given to the respondents they did not
file objections. Therefore, I have no reasons to
discard the claim of the petitioners. Accordingly, I
answer point No.1 in the Affirmative."
7. It is pertinent to note that the Trial Court noticed that
the share of the plaintiff No.2 to the extent of 1/8th share has to
be distributed among other legal heirs. After observing so, in the
operative portion of the order, it orders as below:
"The portion shown as "VIII" in the Court
Commissioner's Report is allotted to the share of
petitioner No.2."
8. Obviously, when it has noticed that 1/8th share of the
plaintiff No.2 has to be distributed among the petitioner No.1, 3
to 6 and respondent No.1 and 2, the portion shown as "VIII"
could not have been allotted to the petitioner No.2, who was no
more. It is pertinent to note that the petitioner No.2-Fatimabi
was no more. Though the error is apparent on the face of the
record, The First Appellate Court has confirmed the impugned
order mechanically and it has not bestowed its attention to the
operative portion of the order of the Trial Court, where it grants
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the portion shown as "VIII" to deceased-Fathimabi in the report
of the Court Commissioner. Therefore, the First Appellate Court
has also not bestowed its attention on this error and has
confirmed the impugned order. In that view of the matter, the
appeal succeeds. Hence, the following:
ORDER
i. The impugned judgment and decree dated
26.10.2024 passed in R.A.No.63/2021 by the VIII
Additional District Judge Belagavi and the
judgment and decree dated 27.08.2021 passed in
FDP No.24/2011 by the III Additional Senior Civil
Judge and CJM, Belagavi are hereby set aside.
ii. The matter is remanded back to the III-Additional
Senior Civil Judge, Belagavi to obtain report of
the Court Commissioner after amalgamating the
share of petitioner No.2 amongst her legal heirs
as per the extant personal law of the parties. The
portion shown as 'VIII' in the Court Commissioner
Report, which came to be allotted to the
petitioner No.2 has to be amalgamated among
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the share holders and accordingly, a fresh
proposal for partition has to be prepared by the
Court Commissioner and the same has to be
considered by the Trial Court.
iii. The Trial Court is directed to expeditiously
dispose off the final decree proceedings by
requesting the Court Commissioner to give a
fresh proposal as expeditiously as possible.
iv. Both the parties are directed to appear before the
III-Additional Senior Civil Judge and CJM,
Belagavi on 10.11.2025 without awaiting further
notice by the said Court.
v. Registry is directed to send a copy of this
judgment immediately to the Trial Court by post
and e-mail.
SD/-
(C M JOSHI)
JUDGE
YAN
CT:PA
