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Karnataka High Court
Mr Mohammed Abbas vs Mrs Akthar Unnisa on 12 March, 2026
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NC: 2026:KHC:14776
MSA No. 184 of 2025
C/W MSA No. 185 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS SECOND APPEAL NO.184 OF 2025 (RO)
C/W
MISCELLANEOUS SECOND APPEAL NO.185 OF 2025 (RO)
IN MSA NO.184/2025:
BETWEEN:
1. MR. MOHAMMED ABBAS
S/O LATE B.MOHAMMED PEER SAB
AGED ABOUT 72 YEARS
RESIDENT OF ROSHAN CHOWK
KIRUGAVALU VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT-571 401.
...APPELLANT
(BY SRI. RAJA L., ADVOCATE)
Digitally signed
by BELUR AND:
RANGADHAMA
NANDINI
1. MRS. AKTHAR UNNISA
Location: HIGH
COURT OF W/O SYED JAFAR
KARNATAKA AGED ABOUT 65 YEARS
RESIDENT OF NEAR CAUVERY CLINIC
INFRONT OF POST OFFICE, BANNUR
T-NARASIPURA TALUK
MYSURU DISTRICT-570 001.
2. MRS. NAHIDA KHANUM
D/O LATE M.RASOOL KHAN
W/O DAWOOD SAHEB
AGED ABOUT 43 YEARS
RESIDENT OF HEGGUR ROAD
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NC: 2026:KHC:14776
MSA No. 184 of 2025
C/W MSA No. 185 of 2025
HC-KAR
KIRUGAVALU
MALAVALI TALUK,
MANDYA DISTRICT-571 401.
3. MRS. NUHI KHANUM
D/O LATE M. RASOOL KHAN
W/O NAVEED IMRAN M.I.
AGED ABOUT 42 YEARS
RESIDING AT NO.59/69
3RD CROSS, LALJI NAGAR
BENGALURU.
...RESPONDENTS
(BY SRI. BILAL AHMED SHARIFF, ADVOCATE FOR R1;
SRI. B.S.GURUDATH, ADVOCATE FOR R2 AND R3)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.06.2025
PASSED IN R.A.NO.1/2020 ON THE FILE OF THE PRL. DISTRICT
AND SESSIONS JUDGE, MANDYA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
06.02.2019 PASSED IN O.S.NO.27/2018 ON THE FILE OF THE
SENIOR CIVIL JUDGE, MALAVALLI, MATTER IS REMANDED
BACK TO THE TRIAL COURT WITH A DIRECTION TO DISPOSE
THE MATTER AFRESH.
IN MSA NO.185/2025:
BETWEEN:
1. MR. MOHAMMED ABBAS
S/O LATE B.MOHAMMED PEER SAB
AGED ABOUT 72 YEARS
RESIDENT OF ROSHAN CHOWK
KIRUGAVALU VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT-571 401.
...APPELLANT
(BY SRI. RAJA L., ADVOCATE)
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MSA No. 184 of 2025
C/W MSA No. 185 of 2025
HC-KAR
AND:
1. MRS. AKTHAR UNNISA
W/O SYED JAFAR
AGED ABOUT 65 YEARS
RESIDENT OF NEAR CAUVERY CLINIC
INFRONT OF POST OFFICE, BANNUR
T-NARASIPURA TALUK
MYSURU DISTRICT-570 001.
2. MRS. NAHIDA KHANUM
D/O LATE M.RASOOL KHAN
W/O DAWOOD SAHEB
AGED ABOUT 43 YEARS
RESIDENT OF HEGGUR ROAD
KIRUGAVALU, MALAVALI TALUK
MANDYA DISTRICT-571 401.
3. MRS. NUHI KHANUM
D/O LATE M.RASOOL KHAN
W/O NAVEED IMRAN M.I.
AGED ABOUT 42 YEARS
RESIDING AT NO.59/69
3RD CROSS, LALJI NAGAR
BENGALURU.
...RESPONDENTS
(BY SRI. BILAL AHMED SHARIFF, ADVOCATE FOR R1;
SRI. B.S.GURUDATH, ADVOCATE FOR R2 AND R3)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
25.06.2025 PASSED IN R.A.NO.3/2020 ON THE FILE OF
PRL. DISTRICT JUDGE, MANDYA, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
6.12.2019 PASSED IN O.S.NO.27/2018 ON THE FILE OF
SENIOR CIVIL JUDGE, MALAVALLI, AND THE MATTER IS
REMANDED TO THE TRIAL COURT WITH A DIRECTION TO
DISPOSE THE MATTER AFRESH BY FRAMING PROPER
ISSUES AS PER THE PLEADINGS AND PROVIDING
OPPORTUNITY TO BOTH PARTIES TO LEAD FURTHER
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MSA No. 184 of 2025
C/W MSA No. 185 of 2025
HC-KAR
EVIDENCE, PREPARE AND PRONOUNCE JUDGMENT IN
ACCORDANCE WITH MOHAMMEDAN LAW.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
These appeals are filed against the judgment and decree
dated 25.06.2025 passed in R.A.Nos.1/2020 and 3/2020 on the
file of Principal District Judge, Mandya.
2. In terms of the impugned judgment and decree
referred to above dated 25.06.2025, both the appeals are
allowed and matter is remanded to the Trial Court for fresh
consideration.
3. The First Appellate Court has directed the Trial
Court to frame proper issues as per the pleadings and to give
opportunity to both the parties to lead evidence and to
substantiate their case under the provisions of the
Mohammedan Law.
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4. Certain facts are admitted. The suit is one for
partition and separate possession and the said suit is
dismissed.
5. The defendant No.2 in O.S.No.27/2018 on the file
of Senior Civil Judge, Malavalli filed R.A.No.1/2020 and legal
representatives of original plaintiff filed R.A.No.3/2020.
6. The contesting party is defendant No.1.
7. Admittedly, the plaintiff and defendants No.1 and 2
are three children of late B. Mohammed Peer Sab, who died on
01.03.1993 and Banu Maa. The suit is filed on the premise that
the properties are inherited after the demise of B. Mohammed
Peer Sab, this fact is not in dispute.
8. It appears that the defendant No.1 raised a
contention that there is already a partition in the family, as
such, the suit is not maintainable. The Trial Court dismissed the
suit on the ground that the plaintiff is unable to establish how
the plaintiff and defendant No.1 have sold item Nos.1 and 8
properties.
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9. On appeal filed by the plaintiff and legal
representatives of defendant No.1, the appeals are allowed and
matter is remanded to the Trial Court with a direction to frame
proper issues and to consider the case as per the provisions of
the Mohammedan Law.
10. Learned counsel appearing for the appellant would
submit that the order of remand is impermissible. The Trial
Court was justified in dismissing the suit. Without appreciating
the evidence on record and without assigning proper reasons,
the matter is remanded to the Trial Court and the same has to
be set aside.
11. Learned counsel appearing for respondents would
submit that the Trial Court has erroneously dismissed the suit
without appreciating the evidence and without properly framing
the issues and the Trial Court went beyond the issues and
erroneously dismissed the suit. Thus, he would urge that the
matter has to be tried afresh in terms of the judgment and
decree passed by the First Appellate Court.
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12. The Court has considered the contentions raised at
the bar and perused the records.
13. The following question arises for consideration of
this Court:-
(i) Whether the First Appellate Court is justified in
remanding the matter with a direction to frame
proper issues?
14. The Court has perused the issues which are as
under:-
"1. Whether the plaintiff proves her equal right of
partition in the suit schedule properties?
2. Whether the 1st defendant proves that, the
suit of the plaintiff is not maintainable in the
present form?
3. Whether the plaintiff is entitled for reliefs as
sought for?
4. What order or decree? "
15. After going through the pleadings and the issues, it
is noticed that issues framed are rather vague, more
particularly, issue No.2. On what basis, the Trial Court has
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HC-KAR
framed the issue No.2 on maintainability of the suit is not
forthcoming from the said issue No.2.
16. It is also noticed that the Trial Court has dismissed
the suit on the premise that the father died in the year 1993
and the suit is filed in the year 2018. Since, it is a suit for
partition, the question of limitation would arise only in case, the
defendants raise a plea of ouster or adverse possession. In the
absence of any such plea and issue, the Court could not have
held that the suit filed 18 years after the death of the father is
not maintainable.
17. Under these circumstances, without expressing any
opinion on the merits of the matter, the First Appellate Court
remanded the matter with a direction to frame proper issues
and to give opportunity to both the parties to lead evidence.
18. This Court does not find any error in the said
judgment and decree passed by the First Appellate Court.
19. Hence the following:-
ORDER
(i) The appeals are dismissed.
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HC-KAR
(ii) The Trial Court shall frame appropriate issues
based on the pleadings and thereafter, pass
appropriate judgment and decree after giving
opportunity to both the parties to lead
evidence.
(iii) It is made clear that this Court has not
expressed anything on the merits of the
matter.
(iv) All contentions of the parties are kept open.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
ST
List No.: 1 Sl No.: 33
