Karnataka High Court
Smt. Noorjahan W/O Abdulrajak Mulla And ... vs Smt Salima W/O Shirajahmad Mulla And ... on 11 September, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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RFA No. 100434 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 11TH DAY OF SEPTEMBER 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100434 OF 2022 (PAR/POS)
BETWEEN:
1. SMT. NOORJAHAN
W/O ABDULRAJAK MULLA,
AGE: 88 YEARS,
OCC: AGRICULTURE AND HOUSE WORK,
R/O. SOMAWARPETH KITTUR,
TAL. KITTUR, DIST. BELAGAVI - 591115.
2. SHRI MAHAMMAD ARIF
S/O ABDULRAJAK MULLA,
AGE: 57 YEARS,
OCC: AGRICULTURE,
Digitally signed
by SAMREEN
R/O: SOMWAR PETH, MULLA STREET,
AYUB
DESHNUR
KITTUR, TAL & DIST: BELAGAVI.
Location:
HIGH COURT
OF 3. SHRI ASIF MAHAMMAD
KARNATAKA
DHARWAD S/O. ABUDULRAJAK MULLA
BENCH
(SINCE DECEASED BY LR'S)
3(A). MASOODAHMED ARIF AHMED MULLA
AGE: 28 YEARS,
R/O: SOMWAR PETH, MULLA STREET,
KITTUR, TAL & DIST: BELAGAVI.
3(B). ASHFAQAHMED S/O. ASIF AHMED MULLA
AGE: 26 YEARS, OCC: STUDENT,
R/O: SOMWAR PETH, MULLA STREET, KITTUR
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TAL & DIST: BELAGAVI.
3(C). MUSARRAT JAHAN D/O. ASIF AHMED MULLA
AGE: 28 YRS, OCC: HOUSEHOLD WORK,
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI.
3(D). MUSKAN D/O ASIF AHMED MULLA
AGE: 18 YRS, OCC: STUDENT,
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI.
4. SHRI ALTIFAHAMMAD
S/O ABDULRAJAK MULLA
AGE: 51 YEARS, OCC: AGRICULTURE
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI
5. SMT. FARZANA BANU
W/O ASIFMAHAMMAD MULLA
AGE: 53 YEARS, OCC: AGRICULTURE
R/O: SOMWAR PETH, MULLA STREET, KITTUR
TAL & DIST: BELAGAVI.
...APPELLANTS
(BY SRI. CHETANA S. BIRAJ, ADVOCATE)
AND:
1. SMT. SALIMA W/O SHIRAJAHMAD MULLA
AGE: 85 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O: CIVIL HOSPITAL ROAD
FORT DHARWAD,
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
2. SMT. SHAMEEM W/O HAFIZ ATTAR
AGE: 62 YEARS, OCC: AGRICULTURE
& HOUSEHOLD WORK,
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R/O: CIVIL HOSPITAL ROAD
FORT DHARWAD, A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
SHRI ILIYAS S/O SHIRAJAHMAD MULLA
(SINCE DECEASED BY HIS LR'S)
3. SMT SHAHANAZ BEGAUM
W/O. ILIYAS MULLA
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
4. SHRI ABDUL RAHIM S/O ILIYAS MULLA
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
5. KUMARI NISHAT D/O ILIYAS MULLA
AGE: 33 YEARS, OCC: STUDENT,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
6. SMT. HASEENA W/O USMAN SHAIKH
AGE: 55 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O: BELAGAVI, TAL & DIST: BELAGAVI
NOW AT LONDON
7. SHRI IMTIYAZ S/O SHIRAJAHMAD MULLA
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
8. SHRI EJAZ S/O SHIRAJAHMAD MULLA
AGE: 48 YEARS, OCC: AGRICULTURE,
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R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD.
9. SHRI. IRSHAD S/O SHIRAJAHMAD MULLA
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: CIVIL HOSPITAL ROAD FORT DHARWAD
A/P: K.C. PARK DHARWAD,
TAL & DIST: DHARWAD
10. SHRI FAZLURREHMAN
S/O. MAHAMMADYASIN TOPINKATTI
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS,
DHARWAD, TAL & DIST: DHARWAD
11. SHRI. HIZABULREHMAN
S/O MAHAMMADYASIN TOPINKATTI
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD
SHRI KHALEELULREHAMAN
S/O MAHAMMADYASIN TOPINKATTI
(SINCE DECEASED BY HIS LR'S)
12. SMT. HASINA
W/O KHALEELULRAHMAN TOPINKATTI
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD
13. KUMARI FIRDOS
D/O KHALEELULRAHMAN TOPINKATTI
AGE: 23 YEARS, OCC: STUDENT,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD
14. KUMAR AYUB
S/O KHALEELULRAHMAN TOPINKATTI
R/O: KUSUM NAGAR, 9TH CROSS,
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DHARWAD, TAL & DIST: DHARWAD.
15. KUMAR ASFAN
S/O KHALEELULRAHMAN TOPINKATTI
AGE: 13 YEARS, OCC: STUDENT,
R/O: KUSUM NAGAR, 9TH CROSS, DHARWAD,
TAL & DIST: DHARWAD.
16. SHRI AMJADHUSEN
S/O MAHAMMADYASIN TOPINKATTI
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: KUSUM NAGAR, 9TH CROSS,
DHARWAD, TAL & DIST: DHARWAD.
SMT. ABEDA W/O BABAJAAN INAMDAR
(SINCE DECEASED BY LR'S)
17. SMT. SHAHEENARA
W/O MOHAAMMEDALI SANADI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: COLD DRINK HOUSE,
NEAR M.K.HUBBALLI BUS STAND,
M.K.HUBBALLI, TAL-KITTUR, DIST-BELAGAVI.
18. SRI. NASIR BABAJAN INAMDAR
AGE: 53 YEARS,
OCC: AGRICULTURE AND
POLICE DEPARTMENT,
R/O: MALMARUTI PO4LI4CE STATION,
SHRINAGAR, BELAGAVI,
TAL & DIST: BELAGAVI.
19. SMT. SABIYABANU
W/O MOHAMMEDALI KITTUR
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: SURALI, MADAGAON, GOA.
20. SHRI. NAEEM BABAJAN INAMADAR
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: JAVIDBHAI GHEEWALE,
NEAR NAMAKAWALA SHOP, 6TH CROSS,
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RFA No. 100434 of 2022
HC-KAR
AZIM NAGAR, BELAGAVI,
TAL & DIST: BELAGAVI.
SMT. KHAWAJABI
W/O MAHABOOBSUBANI MOMIN,
(SINCE DEAD BY HIS LR'S)
21. SMT. ASIYA W/O SHAMIM MANHOLI
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: BEHIND BST QUARTERS,
BLOCK NO.1, QARTER NO.1,
NEAR ARBIYA HOTEL, MUMBAI CENTRAL,
MAHARASHTRA STATE.
22. SHRI WASIM BABAJAN MOMIN
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: NEAR MADINA MASJID,
GURUWAR PETH KITTUR,
A/P: KITTUR, TAL: KITTUR,
DIST- BELAGAVI-591115.
23. SMT. RAEESA
W/O AMJADHUSEN TOPINKATTI,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: KUSUMNAGAR,
4TH CROSS SADANAKERI,
DHARWAD,
TAL & DIST: DHARWAD-580007
24. SMT. FATIMA W/O MAHAMMADSHAFI KITTUR,
AGE: 64 YEARS, OCC: AGRICULTURE
R/O: AUTO NAGAR, DOUBLE ROAD,
BELAGAVI, TAL & DIST: BELAGAVI- 590015
25. SHRI MAHAMMADGOUSE
S/O ABDULKHADAR USTAD,
AGE: 68 YEARS, OCC: BUSINESS,
R/O: NEKAR ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
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RFA No. 100434 of 2022
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26. SHRI VISHNU S/O NINGAJI KALAL,
AGE: 66 YEARS, OCC: BUSINESS,
R/O: NEKAR ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
27. SHRI. MANJUNATH S/O PRAKASH KALAL
AGE: 29 YEARS, OCC: BUSINESS,
R/O: MULLA ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
28. SHRI. INAYATULLA
S/O SULTANSAB BELAWADI
AGE: 43 YEARS, OCC: BUSINESS,
R/O: MULLA ONI, KITTUR,
TAL: KITTUR, DIST: BELAGAVI
29. SHRI SABIYA W/O ILIYAS MULLA
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
C/O: TABASSUM W/O ZIAULHAQ ATTAR
R/O: SINGAPORA MAIN ROAD,
M.S. PALAYA CIRCLE,
NEAR LIMRA EDUCATION
AND WELFARE TRUST, JALAHALLI,
BENGALORE-560097.
30. SMT. TABASSUM W/O ZIAULHAQ ATTAR,
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
C/O: TABASSUM W/O ZIAULHAQ ATTAR
R/O: SINGAPORA MAIN ROAD,
M.S. PALAYA CIRCLE,
NEAR LIMRA EDUCATION
AND WELFARE TRUST, JALAHALLI,
BENGALORE-560097.
31. SMT. TAHSEEN D/O I KALLEMANI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O: MALAPUR MAIN ROAD,
OPPOSITE RAMANAGOUDAR HOSPITAL,
DHARWAD, A/P: DHARWAD,
TAL & DIST: DHARWAD-58008
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RFA No. 100434 of 2022
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32. KUMARI RUKHSAR D/O ILLIYAS MULLA,
AGE: 35 YRS, OCC: STUDENT,
C/O SRI BASJEER HALABHAVI
R/O: YATTINGUDD ROAD, MALAPUR,
A/P: DHARWAD, TAL & DIST: DHARWAD-58008
...RESPONDENTS
(BY SMT. P.S.JADHAV, ADVOCATE FOR C/R1 AND R7;
SRI. MAHESH WODEYAR, ADVOCATE FOR
R11 AND GPA HOLDER FOR R10, R12, R17 TO R20, R22 TO R24;
R14 AND R15 ARE MINORS REP. BY R12;
NOTICE TO R13, R16, R21, R28 TO R32 ARE DISPENSED WITH
VIDE ORDER DATED 04.12.2023;
NOTICE TO R2 TO R6, R8, R9, R25, R26 AND R27 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 22.06.2022 PASSED IN
O.S.NO.25/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BAILHONGAL PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
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RFA No. 100434 of 2022
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present First Appeal is filed under Section 96 of
the Code of Civil Procedure, 1908 (for short, 'CPC'), by the
defendant Nos.1 to 5 calling in question the judgment and
decree dated 22.06.2022 passed in OS No.25/2014 by the
Senior Civil Judge, Bailhongal (for short, 'the Trial Court'),
whereunder, the suit for partition and separate possession
filed by the plaintiffs/respondent Nos.1 to 9 herein has been
decreed by the Trial Court.
2. The parties will be referred to as per their ranks
before the Trial Court for the sake of convenience.
3. It is the case of the plaintiffs that the propositus
namely Abdulraheem died on 13.12.1984, and his wife
Jaibunissa died on 25.08.1997. The genealogy of the parties
is extracted hereunder for reference:
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GENEALOGY
Abdulraheem S/o. Abdulrajak Mulla (died on 13-12-1984)
Jaibunissa
(died on 25-08-1997)
Abdulrajak Shirajahmad Noorjahan Abeda Khawajabi Fatima
(died) (died) (died 2014) (D-10) (D-11) (D-12)
Noorjahan Mohammadyasin
(D-1) (Died)
Fazlurrehman Hizabulrehaman Khaleelulrehaman Amjadhusen
(D-6) (D-7) (D-8) (D-9)
Mohammedarif Asifmahammad Altafahmed Salima
(D-2) (D-3) (D-4) (P-1)
Farzana banu
(D-5)
Shameembanu Iliyas Haseenabanu Imtiyaz Ejaz Irshad
(P-2) (P-3) (P-4) (P-5) (P-6) (P-7)
4. It is the further case of the plaintiffs that the
properties of the propositus, not having been divided or
partitioned, the parties are in joint possession and
enjoyment as tenants in common and hence, the plaintiffs
filed the suit for partition seeking for their 2/8th share in the
suit schedule property.
5. The defendant Nos.1 to 5, 13, 14 and 15 entered
appearance through their counsel. The other defendants
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remained absent and were placed exparte before the Trial
Court.
6. The defendant Nos.1 to 5 in their written
statement has disputed the case of the plaintiffs and also the
genealogy and contended that there is no cause of action to
file the suit against the defendants. It is specifically denied
that there was no partition. That the names of the defendant
Nos.1 to 5 have been entered in the revenue records lawfully
and the alienations made have not been challenged. That
the plaintiffs are not the legal representatives of deceased
Abdul Rahim. It is the specific case of the defendants that
the father of the plaintiff Nos.3 and 6 got executed a
relinquishment deed dated 05.11.1986, in favour of
defendant No.2 and the father of plaintiff Nos.3 and 6
ceased to have any rights in the suit properties consequent
to execution of the said relinquishment deed. Various
contentions have been taken by the defendants on merits of
the matter and a counter claim has also been made,
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whereunder, the defendant Nos.1 to 5 sought for the relief
of declaration and other reliefs.
7. The defendant Nos.13 and 14 have also filed
their written statements. On the basis of pleadings of the
parties, the Trial Court framed twelve issues and two
additional issues.
8. PW1 was examined on behalf of the plaintiffs and
Ex.P1 to P15 has been marked in evidence. Defendant No.14
has been examined as DW1 and Ex.D1 to D25 have been
marked in evidence. The Trial Court by its judgment and
decree dated 22.06.2022 partly decreed the suit and passed
the following order:
"The suit of the plaintiffs is partly decreed
with proportionate costs.
The plaintiff Nos.1 to 7 are together entitled
for 2/8th share. Defendant Nos.1 to 5 are together
entitled for 2/8th share. The defendant Nos.6 to 9
are together entitled for 1/8th share. The
defendant Nos.10 to 12 are entitled for 1/8th
shares each in the suit properties except item
Nos.5 and 6."
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9. Being aggrieved, the present appeal is filed by
defendant Nos.1 to 5.
10. Along with the above appeal, the
appellants/defendant Nos.1 to 5 have, inter alia, filed IA
No.2/2022 under Order XLI Rule 27 read with Section 151 of
CPC, seeking leave of the Court to produce the original
relinquishment deed and original gift deed. It is averred in
the affidavit filed in support of the application that the
documents produced along with application were misplaced
and could not have been produced earlier.
11. Heard the submissions of learned counsel for the
appellants, learned counsel for respondent Nos.1 and 7 as
well as the learned counsel for respondent No.11, who was
also the GPA holder of respondent Nos.10, 12, 17 to 20 and
22 to 24.
12. It is the contention of the learned for the
appellants that suit for partition filed by the plaintiffs is not
maintainable and that the Trial Court ought not to have
decreed the suit. Various contentions have been urged on
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the merits of the matter to impeach the findings recorded by
the Trial Court.
13. In addition to the grounds urged in the
memorandum of appeal, the learned counsel for the
appellants/defendant Nos.1 to 5 submits that although the
defendant Nos.1 to 5 have filed their written statement, they
do not contest the suit inasmuch as, the defendant Nos.1 to
5 did not cross examine PW1 and also did not adduce any
oral or documentary evidence.
14. It is further contended that IA No.2/2022 is filed
seeking leave to produce the documents which are required
to be taken on record and the matter is required to be
remanded to enable the defendants to contest the suit of the
plaintiffs on its merits.
vehemently opposes the contentions put forth on behalf of
the appellants contending, inter alia, that the appellants
have an adequate opportunity to contest the suit on its
merits and that the appellants have not availed the
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opportunity, the judgment and decree passed by the Trial
Court is just and proper.
16. Per contra, the learned counsel for respondent
Nos.11 who was the GPA holder of respondent Nos.10, 12,
17 to 20 and 22 to 24, also seeks for an opportunity to
contest the suit of the plaintiffs on its merits and seeks for
remand of the matter to the Trial Court.
17. The submissions of learned counsel for the
parties have been considered and material on record have
been perused.
18. The questions that would arise for our
consideration are as under:
1) Whether IA No.2/2022 is required to be
allowed?
2) Whether the judgment and decree passed
by the Trial Court is required to be
interfered with?
Regarding question No.1:
19. IA No.2/2022 is filed under Order XLI Rule 27 of
CPC by the appellants seeking to produce two documents
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namely the relinquishment deed dated 05.11.1986, and gift
deed dated 22.10.1987. It is depose in the affidavit filed in
support of the said application that the custody of the said
documents having been misplaced and due to old age of the
appellants the same could not be traced during the
pendency of proceeding before the Trial Court. It is further
deposed that the documents were in the custody of
appellant No.1 and they were traced before filing of the
appeal.
20. Although the learned counsel for the
respondents/plaintiffs vehemently opposes IA No.2/2022, it
is forthcoming that the application was filed at the time of
filing of the appeal itself. It is further pertinent to note that
the appellants/defendant Nos.1 to 5 had taken a specific
defence regarding the relinquishment deed and the gift deed
in their written statement. In view of aforementioned
circumstances, it is clear that the said documents are
necessary for adjudication of the questions that would arise
for consideration in the present appeal. In view of the same
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and in the interest of justice, it is expedient that IA
No.2/2022, will be favourably considered. Hence question
No.1 is answered in the affirmative.
Regarding question No.2:
21. Although various contentions have been urged by
the respective parties on the merits of the matter, it is
pertinent to note that the defendant Nos.1 to 5 did not cross
examine the PW1, nor led any oral or documentary
evidence. An opportunity is sought to contest the suit on its
merits by remanding the matter. It is pertinent to note that
the evidence in the suit was adduced during the period of
COVID-19 pandemic. It is further pertinent to note that PW1
has not been cross examined by any of the other defendants
except defendant No.13 and that only defendant No.13 has
adduced evidence as DW1 and produced documentary
evidence at Ex.D1 to D25.
22. Having regard to the aforementioned, in view of
the fact that IA No.2/2022 has been allowed and the
documents produced along with the said application have
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been taken on record, keeping in mind the fact that valuable
rights of the parties have been adjudicated by the Trial Court
as also rights in immovable property, in view of the specific
defence taken by defendant Nos.1 to 5 and the documents
produced in that regard which have been taken on record in
the present appeal, it is just and proper that the defendants
be afforded another opportunity to contest the suit of the
plaintiffs on its merits by issuing certain directions. Hence,
question No.2 framed for consideration is answered in the
affirmative.
23. In the result, we pass the following:
ORDER
(i) IA No.2/2022 is allowed and the
documents produced along with the
application are taken on record;
(ii) The appeal is allowed;
(iii) The judgment and decree dated
22.06.2022 passed in OS No.25/2014
by the Senior Civil Judge, Bailhongal,
is hereby set aside;
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(iv) The parties shall appear before the
Trial Court on 16.10.2025 without
requirement of any further notice
being issued in this regard;
(v) Consequent to the appearance of the
parties, the Trial Court shall afford
another opportunity to the parties to
lead evidence/further evidence and
conduct further proceedings in
accordance with law;
(vi) The Registry shall transmit the records
of the Trial Court together with the
documents produced along with IA
No.2/2022 to the Trial Court
forthwith;
(vii) All contentions of the parties on the
merits of the matter are kept open.
(viii) The parties shall co-operate with the
Trial Court for speedy disposal of the
suit and the Trial Court shall
endeavour to dispose of the suit as
expeditiously as possible as, i any
event not later than eight (8) months
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from the date of appearance of the
parties.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
SMM / Ct:vh
