- 1 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 18TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.200234 OF 2015 (PAR) BETWEEN: 1. MOHAMMED IQBAL S/O NABISAB MUJAWAR, AGE: 55 YEARS, OCC: SERVICE, R/O: NEAR BUS-STAND, VIJAYAPUR – 586 101. 2. MOHAMMED ISHAQUE NABISAB MUJAWAR, AGE: 47 YEARS, OCC: SERVICE, R/O: NEAR BUS-STAND, VIJAYAPUR – 586 101. 3. USMAN GANI S/O NABISAB MUJAWAR, AGE: 53 YEARS, OCC: BUSINESS, R/O: NEAR BUS-STAND, VIJAYAPUR – 586 101. …APPELLANTS (BY SMT. REKHA PATIL, ADVOCATE FOR SRI G.G.CHAGASHETTI , ADVOCATE) AND: 1. SMT. SHABIRA BEGAM W/O NIJAMUDDIN MUJAWAR, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: BAGAYAT GALLI, VIJAYAPUR -586 101. Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 2. SMT. AFSARA BEGUM W/O NISAR AHAMAD SAYYED, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: BAGAYAT GALLI, VIJAYAPUR -586 101. 3. SMT. SALIMABI W/O NABILAL SHAIKH, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O: GARIBI HATAO COLONY, VIJAYAPUR NAKA, SOLAPUR (MH) – 400 001. 4. SMT. MALANBI W/O KHAJAPEER MULLA, AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: HAMID NAGAR, NEAR USMANIA MASJID, NAVABAGH, VIJAYAPUR – 586 101. 5. SMT. KHATUNBI W/O NIJAMUDDIN MUJAWAR, AGE: 61 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR DATRI MASJID, VIJAYAPUR – 586 101. 6. SMT. SURAYYA W/O IRFAN SAYYED, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: NAYI ZINDAGI COLONY, AKKALKOT ROAD, SOLAPUR – 400 001. 7. SMT. TARANNUM W/O SHAMED SAYYED, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR DATRI MASJID, VIJAYAPUR – 586 101. - 3 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 8. SMT. SHAHANAZ W/O SHAFEEQUE TADEVAL, AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR DATRI MASJID, VIJAYAPUR – 586 101. 9. SMT. SHABANAM W/O SIKANDAR PATEL, AGE: 31 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR DATRI MASJID, VIJAYAPUR – 586 101. …RESPONDENTS (BY SRI KOUJALGI C.L. AND SRI B.A.LAHORI, ADVOCATES FOR R5 TO R9; R1 TO R4 ARE SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20.12.2014 PASSED BY THE I ADDITIONAL DISTRICT JUDGE AT VIJAYAPUR IN R.A.NO.19/2012, DISMISSING THE APPEAL CONSEQUENTLY CONFIRMING THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE AT VIJAYAPUR IN O.S.NO.92/2010 AND TO DISMISS THE SUIT OF THE PLAINTIFF, IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 20.12.2014 passed by I Additional District Judge, Vijaypur (for short, first appellate Court) in R.A.no.19/2012 and judgment and decree dated 17.12.2011 passed by III Additional Senior Civil Judge, Bijapur (for short, trial Court) in O.S.no.92/2010, this appeal is filed. 2. Smt.Rekha Patil, learned counsel submitted that appeal was by defendants no.1 to 3 aggrieved by concurrent erroneous findings by trial and first appellate Courts in suit for partition filed by respondents no.1 and 2 (plaintiffs) against appellants herein and respondents no.3 to 9 (defendants no.1 to 9) respectively. It was submitted, suit claim was based on assertion that suit schedule properties namely Sy.no.491/1 measuring 08 Acres, Sy.no.492/2 measuring 08 Acres and Sy.no.492/3 measuring 09 Acres 33 guntas of Vijaypur along with house property bearing CTS no.59 measuring 262 square yards belonged to one Nabisab. Nabisab had children namely, Salima (defendant no.4), Malanbi (defendant no.5), Nijamuddin - 5 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 (died in year 2002 and was husband of plaintiff no.1 and father of plaintiff no.2), Mohammad Iqbal (defendant no.1), Mohammad Isaq (defendant no.2) and Usman Gani (defendant no.3). 3. It was submitted, Nabisab died in year 1990, leaving behind children as stated above. Plaintiffs and defendants as legal representatives and succeeded to it as tenants in common and their names entered in revenue records. In the year 2002, Nijamuddin died, leaving behind plaintiffs. Their names were also mutated in revenue records as per M.R.no.58/03-04. It was submitted, plaintiffs were thus in joint possession and enjoyment of suit properties. However they learnt about attempt by defendants no.1 to 3 to gulp plaintiffs’ share by creation of a document styled ‘Apasat Vatni’ showing plaintiffs had given up their right in suit property and had consented for partition, by executing a document of relinquishment on 14.11.2008. Alleging that signature on said documents were forged and plaintiffs had not relinquished their right and plaintiffs were denied their share, suit was filed. - 6 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 4. On service of summons, defendants no.1 to 3 appeared and filed written statement. Defendants no.4 and 5 did not appear. They were placed exparte. Defendants no.6 to 10 appeared and filed memo adopting written statement of defendants no.1 to 3. Contentions urged were denying plaintiffs claim as incorrect and untrue. Genealogy as claimed by plaintiffs was disputed. It was asserted that plaintiffs had failed to implead second wife of Nijamuddin and daughters from said wife. It was submitted plaintiffs had filed Crl.Misc.no.190/1991 against Nijamuddin. In said proceedings, they were aware of existence of second wife of Nijamuddin and same ended in compromise wherein plaintiff no.1 was awarded maintenance of `250/- per month. Thereafter, plaintiffs had filed O.S.no.42/2002 for provident fund, pension and other service benefits of Nijamuddin. Dismissal of same was challenged in MFA no.2783/2003 before this Court wherein appeal was allowed and plaintiffs were awarded 50% of family pension. During pendency of same, plaintiffs filed O.S.no.324/2003 for partition and separate possession of their share in suit properties. Said suit was dismissed on 24.09.2007. R.A.no.70/2007 filed before II Additional District Judge, - 7 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 Vijayapur was disposed of on 19.11.2010 holding plaintiff no.1 and defendant no.6 together entitled for 1/8th share and remaining 7/8th to be shared by plaintiff no.2 and four other daughters of Nijamuddin. It was submitted that plaintiffs had deliberately not impleaded second wife and children in present suit. It was contended after death of Nabisab, names of his children were entered in revenue records. But, plaintiffs and defendants no.4 and 5 had given up their rights over suit properties in favour of defendants no.1 to 3 and consented for partitioning of suit schedule properties between defendants no.1 to 3. And relinquishment executed on 14.11.2008 was binding on plaintiffs and in pursuance of same, mutation entries were made. Therefore, plaintiffs aware of said facts had filed suit based on false facts without proper cause of action and sought dismissal of suit. 5. Based on pleadings, Trial Court framed following issues :- 1. Whether plaintiffs prove that, the suit properties are in joint possession and enjoyment of themselves and defendants as tenants in common ? - 8 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 2. Whether the plaintiffs further prove that, the defendants no.1 to 3 have got created a document styled as “Apasat Vatni” dated 14.11.2008, with respect to suit land bearing Sy.no.492 behind their back and same is not binding upon them ? 3. Whether the defendants further proves that the plaintiffs and defendants no.4 and 5 have voluntarily relinquished their share in the suit property in favour of defendants no.1 to 3 by executing document on 14.11.2008 ? 4. Whether the plaintiffs entitle their 2/10th share? 5. What decree or order ? ADDITIONAL ISSUE 1. Whether the defendant no.6 to 10- prove that, they are also L.Rs of deceased Nijamoddin Mujawar ? 6. Thereafter, plaintiff no.1 examined himself as PW.1 and got marked Exs.P.1 to Ex.P.10. In rebuttal, defendant no.3 and two others were examined as DWs.1 to 3. No documentary evidence was led. 7. On consideration, trial Court answered issues no.1, 4 and additional issue no.1 in affirmative, issues no.2 and 3 in negative and issue no.5 by decreeing suit. - 9 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 8. Aggrieved, defendants no.1 to 3 filed R.A.no.19/2012. Based on contentions urged, first appellate Court framed following point for consideration :- “When the plaintiffs-1 and 2 and defendants-6 to 10 as per their ranks in the lower Court vide respondents in the appeal and cross-objections that the lower Court correctly decided 2/10th share between them to inherit property of deceased Nijamuddin S/o Nabisab Mujawar ?” 9. After answering it in negative, it dismissed appeal. Against concurrent findings, defendants no.1 to 3 were in appeal. 10. It was submitted defendants no.1 to 3 had taken clear stand that plaintiffs and defendants no.4 and 5 had executed relinquishment deed on 14.11.2008, signed Form no.21 before revenue authorities and relinquished their right in respect of suit properties. Based on same, M.R.no.88/2009-10 was effected. Defendants had examined signatories/witnesses to relinquishment deed dated 14.11.2008 as DWs.2 and 3, who deposed in support of defendants no.1 to 3. Without proper appreciation, both trial and first appellate Courts had decreed suit. It was submitted by virtue of decree in O.S.no.324/2003 - 10 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 having attained finality, present suit by plaintiffs once again for similar relief would be barred by law. Therefore, following substantial question of law would arise for consideration : “Whether both Courts erred in disbelieving relinquishment by plaintiffs under “Apasat Vatni” dated 14.11.2008, even when there was material to indicate it was acted upon and mutation entries were made ?” 11. Learned counsel sought for answering in favour of appellants and admit and allow appeal. 12. On other hand, Sri B.A.Lahori, learned counsel appearing for defendants no.6 to 10 along with Sri C.L.Koujalagi, opposed appeal. It was submitted both Courts on appreciation of entire material on record had recorded concurrent finding of fact about relationship between parties, being tenants in common in respect of suit properties and entitled for share. It was submitted, decree in O.S.no.42/2002 was pertaining to pensionary benefits of Nijamuddin, while subject matter of O.S.no.324/2003 and R.A.no.70/2007, arising from said suit was not concerning present suit properties. Therefore, settlement of shares inter se between legal representatives of Nijamuddin would not bar present suit. Insofar as contention of defendants no.1 to 3 - 11 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 based on relinquishment deed, it was submitted, though said relinquishment deed was stated to have been executed by plaintiffs and defendants no.4 and 5 in writing, said deed was not produced. No documentary evidence was led. Both Courts had rightly appreciated said facts, disbelieved contentions of defendants based on relinquishment and decreed suit. Therefore, no substantial question of law arose for consideration and sought dismissal of appeal. 13. Heard learned counsel and perused impugned judgment and decree passed by both Courts. 14. This appeal is by unsuccessful defendants no.1 to 3 challenging concurrent findings, decreeing plaintiffs suit for partition. There is no dispute about suit properties belonging to propositus Nabisab. There is also no dispute about Nabisab having six children including Nijamuddin, who had died after death of Nabisab, leaving behind plaintiffs and defendants no.6 to 10 as legal heirs. Relationship between parties is admitted. Main ground for opposing plaintiffs’ suit for partition was execution of relinquishment deed on 14.11.2008 by plaintiffs no.1 to 3 and defendants no.4 and 5 and their consent for - 12 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 division of suit properties inter se between defendants no.1 to 3. But, to substantiate same, they did not produce relinquishment deed. On other hand, they sought to establish relinquishment by examining DWs.2 and 3 - alleged witnesses to said deed. While passing impugned judgment and decree, reason assigned by trial Court for rejecting claim of defendants was about deed being unregistered on perusal of photocopy of same produced. In absence of original deed being produced, no amount of oral evidence led would be helpful. Though, in view of decision of Hon’ble Supreme Court in case of Mansoor Saheb (dead) and others vs. Salima (D) by Lrs. and others1 registration of deed of partition/relinquishment would not be compulsory in case of Mohammedans, production of said deed and examination of witnesses to establish due execution cannot be dispensed with. 15. Even contention about bar of present suit in view of decree in O.S.no.42/2002 and O.S.no.324/2003 (RA no.70/2007) would also be unsubstantiated as said suits were not in respect of properties belonging to propositus Nabhisab, 1 2024 SCC OnLine SC 3809 - 13 - HC-KAR NC: 2025:KHC-K:3200 RSA No. 200234 of 2015 but about service benefits/properties of Nijamuddin determining inter se rights between his successors. While passing impugned judgment and decree, first appellate Court on re-appreciation concurred with findings of trial Court in light of fact that parties subscribed to Mohammedan law and shares determined were inconsonance with same. Though mistake in assignment of shares is urged, while passing impugned judgment and decree, first appellate Court specifically observed:- “…….The defendant-4 has specified share 1/8th and the rest 7/10th share to be decided between all the legal heirs. The learned counsel for the appellants and as well as in cross-examinations when precisely applied calculation they did agree and that misunderstanding has been clarified.” 16. For aforesaid reasons, I do not find contentions urged giving rise to any substantial question of law. Consequently, following : ORDER Appeal is dismissed without being admitted. Sd/- (RAVI V HOSMANI) JUDGE SN/ List No.: 1 Sl No.: 48 Ct:Vk