Full Judgment
-1- IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 200126 OF 2024 (PAR/POS) BETWEEN:
1. MOBIN S/O LATE MOINODDIN PAINTOR AGE ABOUT 50 YEARS, OCC: AGRIL. R/O: KALI CHOUDI, BOHI GALLI, BASAVAKALYAN NOW AT VILLAGE KAIJ DIST: BEED.
2. SMT. ZAIBUN BEE
W/O LATE MOINODDIN, AGE ABOUT 85 YEARS, R/O: BASAVAKALYAN NOW AT VILLAGE KAIJ Digitally signed by DIST: TALUK: BEED(MS) - 585 327. BASALINGAPPA SHIVARAJ 3. ABDUL RAFIQ DHUTTARGAON Location: HIGH S/O ABDUL RAHSEED BHANGYA, COURT OF AGE ABOUT 53 YEARS, KARNATAKA OCC: BUSINESS AND AGRIL. R/O: TRIPURANT, TQ: BASAVAKALYAN - 585 327.
4. SYED SABER
S/O SYED PEERPASHA PEERAN, AGE ABOUT 39 YEARS, OCC: AGRIL. AND BUSINESS, R/O: BASAVAKALYAN NOW AT H.NO.4-3-129/2, FIRST FLOOR, KHANA NAGAR, NEAR PATEL HOTEL, ATTAPUR, RAJENDRA NAGAR, HYDERABAD - 500001. -2-
5. SYED ANWAR
S/O SYED PEERPASHA PEERAN, AGE ABOUT 41 YEARS, OCC: AGRIL. AND BUSINESS, R/O: BASAVAKALYAN NOW AT H.NO.4-3-129/2, FIRST FLOOR, KHANA NAGAR, NEAR PATEL HOTEL, ATTAPUR, RAJENDRA NAGAR, …APPELLANTS (BY SRI SHIVAKUMAR KALLOOR, ADVOCATE) AND:
1. SMT. CHURA BEE D/O AHMED ALI SHERIKAR, W/O YAKUB ALI, AGE 55 YEARS, R/O: 1/151, BHASKAR NAGAR, CHITGUPPA TQ: HUMNABAD - 585 836.
2. SMT. TAHERA BEE D/O AHMED ALI SHEIRKAR W/O MOHD MOINODDIN, AGE: 60 YEARS, R/O: H.NO.17-1-319/9 RIYASATH NAGAR, PARGAH BURHAN SHAH SAHIB,
3. AKTHAR BEE D/O AHMED ALI SHERIKAR W/O LATE OSMANSAB, AGE: 71 YEARS, R/O: HULSOOR, TQ: BASAVAKALYAN, DIST: BIDAR. NOW AT AMAN NAGAR-B, TALAB KATTA HYDERABAD - 500 001. -3-
4. SMT. MEHARUN BEE D/O AHMED ALI SHERIKAR BABUMIYAN, AGE: 65 YEARS, R/O: KALI GALLI BASAVAKALYAN, DIST: BIDAR - 585 327.
5. SMT. RASHIDA BEGUM D/O AHMED ALI SHERIKAR W/O LATE RAHIMANSAB AGE: 88 YEARS, R/O: H.NO.19-5-31/A/2/74/1, ASAB BABA NAGAR, KISHAN BAGH, DIED THROUGH HER LRS a) RAZIYA BEE W/O GHUDUSAB D/O ABDUL RAHEMAN AGE ABOUT 68 YEARS, R/O: H.NO.19-5-32/13/1/50/A/4, MAHEMOOD NAGAR, KISHAN BAGH, BAHADURPURA. b.. KHALED S/O ABDUL RAHEMAN GUTTEDAR, AGE ABOUT 66 YEARS, OCC: GUTTEDAR, R/O: H.NO.19-5-31/A/2/74/A, ASADBABA NAGAR, KISHAN BAAG, HYDERABAD - 500 064. c. SHAIK ABDUL FAIS S/O ABDUL RAHEMAN, AGE 57 YEARS, OCC: PRIVATE SERVICE, R/O: H.NO. 20-7-44/46, GAZIPURA STORE, CHARMINAR, HYDERABAD - 500001. -4- d. RAISA BEGUM
W/O MOHD. RAFEEQ, D/O ABDUL RAHEMAN, AGE ABOUT 64 YEARS, OCC: HOUSE HOLD, R/O: H.NO.18-1-514/5/2, NASEEB NAGAR, CHANDRAYAN GUTTA, BANDALE GOULE, HYDERABAD - 500 005.
e. SALMA BEGUM W/O SALAUDDIN, D/O ABDUL RAHEMAN, AGE: 53 YEARS, OCC: HOUSE HOLD, R/O: RIKSHAW COLONY, HULSOOR ROAD, BASAVAKALYAN - 585 327. f. ZAFAR S/O ABDUL RAHEMAN, AGE ABOUT 40 YEARS, OCC: WELDER, R/O: RIKSHAW COLONY, HULSOOR ROAD, BASAVAKALYAN - 585 401. g. FAROOQ S/O ABDUL RAHEMAN, AGE BOUT 48 YEARS, OCC: TAILOR, R/O: NEAR JAMA MASJID, BHATAMBRA, TALUKA BHALKI, DISTRICT : BIDAR - 585 401. h. KHAJA BEE
W/O ZAHEERSAB TOTACHAP BEEDIWALE, D/O ABDUL RAHEMAN, AGE: 40 YEARS, OCC: HOUSE HOLD, R/O: NABISAB GALLI, CHITGUPPA, TALUKA: HUMNABAD - 585 320. -5- i. MOHD. ASIF IQBAL S/O ABDUL RAHEMAN, AGE ABOUT 50 YEARS, R/O: H.NO.11-223 #2, WADE AND MUSTAFA, SHEHEEN NAGAR, CHANDRAYANGUTTA, HYDERABAD - 500 053. j. SHAMIN BEGUM W/O MOHD. ALI, D/O ABDUL RAHEMAN, AGE ABOUT 60 YEARS, R/O: H.NO.19-5-32/13/50/A/4, MAHEBOOB NAGAR, KISHAN BAAG, BAHADURPURA, HYDERABAD - 500 001.
6. SMT. NAZMA BEE W/O LATE SALEEM, AGE ABOUT 71 YEARS, OCC: HOUSE HOLD, R/O: VILLAGE RAJESHWAR, TALUKA BASAVAKALYAN - 585 327.
7. MOHAMMAD BABA
S/O LATE SALIM, AGE ABOUT 45 YEARS, R/O: VILLAGE RAJESHWAR, TALUKA BASAVAKALYAN - 585 327. 8 MD. AHMED S/O LATE SALIM, AGE ABOUT 41 YEARS, R/O: VILLAGE RAJESHWAR, TALUKA BASAVAKALYAN - 585 327.
9. MD. ABU S/O LATE SALIM, AGE ABOUT 36 YEARS, -6- R/O: VILLAGE RAJESHWAR, TALUKA BASAVAKALYAN - 585 327.
10. MOHAMMAD DASTAGIR S/O LATE SALIM, AGE ABOUT 50 YEARS, R/O: VILLAGE RAJESHWAR, TALUKA BASAVAKALYAN - 585 327.
11. SMT. HAMEEDA BEGUM W/O LATE MOHD. FAIZUDDIN, AGE ABOUT 77 YEARS, R/O: H.NO.18-7-423/B/404, AMAN NAGAR (B), TALAB KATTA,
12. MD. FASI S/O LATE MD. FAIZUDDIN, AGE ABOUT 41 YEARS, R/O: H.NO.18-7-423/B/404, AMAN NAGAR (B), TALAB KATTA,
13. MD. VASI S/O LATE MD. FAIZUDDIN, AGE ABOUT 36 YEARS, R/O: H.NO.18-7-423/B/404, AMAN NAGAR (B), TALAB KATTA,
14. MD. FOUSEN S/O MD. FAIZUDDIN, AGE ABOUT 32 YEARS, R/O: H.NO.18-7-423/B/404, AMAN NAGAR (B), TALAB KATTA, -7-
15. MD. FARZAN S/O MD. FAIZUDDIN, AGE ABOUT 30 YEARS, R/O: H.NO.18-7-423/B/404, AMAN NAGAR (B), TALAB KATTA,
16. MD. MUKTAR S/O LATE AHMED ALI, AGE ABOUT 65 YEARS, OCC: AGRICULTURE, R/O: KALI GALLI, BASAVAKALYAN - 585 307.
17. ABDUL SATTAR S/O MANZOOR MIYAN,
AGED ABOUT 68 YEARS, OCC: AGRICULTURE, R/O: KALI GALLI, BASAVAKALYAN - 585 327. …RESPONDENTS (BY SRI K.M.GHATE, ADV., FOR R1 TO R4 & R5 LRS (A TO J); R6 AND R7 ARE SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, PRAYING TO ALLOW ABOVE REGULAR SECOND APPEAL AND SET ASIDE THE IMPUGNED
JUDGMENT AND DECREE DATED 20.04.2023 PASSED BY II
ADDITIONAL DISTRICT AND SESSIONS COURT, BIDAR SITTING AT BASAVAKALYAN IN R.A.NO.59/2019 CONFIRMING THE JUDGMENT AND DECREE DATED 26.04.2019 IN O.S.NO.62/2013 ON THE FILE OF SENIOR CIVIL JUDGE BASAVAKALYAN AND DISMISS THE SUIT OF THE PLAINTIFFS OR IN THE ALTERNATIVE REMAND THE MATTER TO THE TRIAL COURT SENIOR CIVIL JUDGE, BASAVAKALYAN IN O.S.NO.62/2015, IN ENDS OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE -8-
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the appellants and the learned counsel appearing for respondents.
2. This appeal is against a concurrent finding in a suit
for partition and separate possession. The suit filed by the plaintiffs who were the daughters of late Ahmed Ali Sherikar against his grandsons and one of his sons, is decreed. Some of the defendants filed first appeal against the decree for partition. The first appeal is also dismissed. Hence the present second appeal is filed.
3. Learned counsel appearing for the appellants
submits that some of the appellants though served with the notice and though appeared through advocate, could not file written statement and could not bring to the notice of the court that the properties in question where granted to late Mohammad Mainuddin by the Land Tribunal. Thus, the said properties would become the self acquired properties of late Mohammad Mainuddin and plaintiffs who are the sisters of late Mohammed Mainuddin would not acquired any right over the properties. It is further urged that, on some of the appellants, -9- the notice is said to have been served through paper publication and though the notice is published in a newspaper, the said appellants were not aware of the publication on the newspaper as they were the resident of Maharashtra state. Under these circumstances, it is urged that, some of the appellants are prevented from appearing before the court and contesting the matter by producing documents.
4. It is further stated that, before the First Appellate
Court, the appellants have taken a stand that the plaintiffs have not included all the properties in the suit assuming that the suit for partition is maintainable, in respect of granted land. Under these circumstances, the learned counsel for the appellants would submit that the matter be remitted to the Trial Court for fresh consideration.
5. Learned counsel for the respondents on the other
hand would contend that the appellants together filed present appeal and some of the appellants were duly served and appeared through advocate, but did not choose to file written statement and after the decree, though the appellants have filed the appeal, they did not file written statement before the Appellate Court and did not produce any documents and even - 10 - before this court, they have not filed written statement disclosing their stand and they have not produced any evidence.
6. Considering the materials placed on record the following substantial question of law is framed Whether the appellants make a case for remanding the matter on the premise that notice is not duly served on them?
7. On going through the materials on record, it is
evident that, some of the appellants were duly served and they appeared before the Trial Court and engaged the advocate. However, failed to file written statement and contest the matter. As far as some of the appellants are concerned, it is noticed that the notice is served through paper publication and it is further stated that they are the residents of Maharashtra. Fact that, some of the appellants were residing in Maharashtra, is not in dispute.
8. It is noticed that the notice before the Trial Court is
served by way of paper publication in a local newspaper, obviously, some of the appellants who were residing in Maharashtra could not come across the said paper publication, - 11 - as such, this Court is of the view that, service of notice is defective as against some of the appellants. Though, the notice is duly served on some of the appellants, the decree cannot be split into two parts to say that the suit against some of the defendants/appellants is to be decreed and against some of the defendants/appellants has to be remanded back to the Trial Court for fresh consideration. Such course of action is impermissible given the nature of the claim made by the plaintiff.
9. Under these circumstances, this Court is the view that, the matter has to be remitted to the Trial Court by setting aside the Judgment and Decree passed by the Trial Court as well as the First Appellate Court.
10. However as rightly submitted by Sri K. M. Ghate,
learned counsel appearing for the respondents, because of inaction on the part of the appellants who are duly served, and failed to file written statement and lead evidence, the plaintiffs have been put to substantial inconvenience and they had to defend two rounds of litigations, one before the First Appellate Court and one before this Court and now again the matter sent - 12 - back to the Trial Court. The plaintiffs have to undergo one more round of trial and possibly, two more rounds of appeal.
11. Considering the overall circumstances that have
been brought out before this Court, this Court is of the view that, the appellants have to pay the cost of Rs.25,000/- payable to the plaintiffs, which is a condition precedent to contest the suit.
12. Hence the following:
ORDER
i) The petition is allowed in part; ii) Judgment and Decree dated 20.04.2023 on the file of II Addl. District and Sessions Court, Bidar are set aside. iii) The judgment and Decree dated 26.04.2019 on the file of Senior Civil Judge, Basavakalyana are set aside. iv) The matter is remitted to the Trial Court for fresh consideration. v) The parties to whom the notice before this Court, shall appear before the Trial Court on 24.04.2025 - 13 - and the Trial Court shall issue notice to other respondents. vi) The defendants shall pay Rs.25,000/- ordered by this Court within two weeks from the date of appearance. The written statement shall be filed within two weeks from the date of appearance. vii) Since the suit is filed in the year 2013, the Trial Court endeavor to dispose the matter within the period of eight months from the date of appearance of the parties. viii) It is further made clear that the defendants shall not seek unnecessary adjournment and shall co- operate for early disposal. ix) Nothing is expressed on merits of the case and all contentions kept open. Sd/- (ANANT RAMANATH HEGDE) JUDGE THM List No.: 1 Sl No.: 17