- 1 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200252/2022 (PAR/POS) BETWEEN: SRI JAHAGIRPASHA S/O SAYYED PASHA JAHAGIRDAR AGE: 68 YEARS, OCC: AGRICULTURE, R/O: 102, 14-A, MAIN ROAD, 8TH CROSS, VIDYA NAGAR, 2ND STAGE, ATTIGUPPE, BENGALURU. …APPELLANT (BY SRI D.P. AMBEKAR, ADVOCATE) AND: 1. SRI SAYYED IKBALPASHA S/O SAYYED AHMED JAHAGIRDAR AGE: 65 YEARS, OCC: RETIRED, R/O: A/17/502, AT KAHIF MILLATNAGAR, ANDHERI WEST, MUMBAI – 400 053. Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 2. SAYYED JABEERPASHA S/O SAYYED AHMED JAHAGIRDAR AGE: 60 YEARS, OCC: AGRICULTURE, R/O: 37, 4TH CROSS, 22ND MAIN ROAD, VINAYAAK NAGAR, J.P. NAGAR, 5TH STAGE, BENGALURU – 560 078. …RESPONDENTS (BY SRI B BHIMASHANKAR & SRI PRADEEP KUMAR, ADVOCATES) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 05.08.2021 PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C., INDI, DISMISSING R.A.NO.4/2017, FILED BY THE APPELLANT HEREIN AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.01.2017 PASSED BY THE CIVIL JUDGE AND J.M.F.C., INDI, IN O.S.NO.35/2012, ETC. THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This appeal is arising out of the concurrent findings of both the Courts below in a suit for partition. The suit in O.S. No.35/2012 on the file of the Civil Judge, Indi, (hereinafter referred to as ‘Trial Court’ for the sake of convenience), was - 3 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 filed by two brothers against one brother, seeking partition and separate possession of the suit schedule property. Each of the plaintiffs sought for 1/3 share in the suit premises. The suit property originally belonged to their father. The defendant contested the suit and raised two grounds, viz., (a) Sisters of the plaintiffs and defendant are necessary parties to the suit; (b) Father of the plaintiffs and defendant executed oral gift deed in respect of the suit schedule property gifting entire property in favour of the defendant. The contentions are raised by filing the counterclaim. The Trial Court framed issues as under: “1. Whether plaintiffs prove that, they and defendant are tenant in common of the suit property? 2. Whether the defendant proves that, suit is bad for non-joinder of necessary parties? 3. Whether the plaintiffs are entitled for relief as sought for? 4. What order or Decree? - 4 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 Addl. issue: 1. Whether the defendant proves that he is the owner and in possession over the suit land as claimed by him in his written statement?” 2. The plaintiffs filed written statement to the counterclaim. 3. The Trial Court held that the plaintiffs have established their case and additional issue relating to the claim made by the defendant in written statement is answered against the defendant. 4. Aggrieved by the judgment and decree passed by the Trial Court, defendant filed an appeal in R.A. No.4/2017 before the Senior Civil Judge and J.M.F.C., at Indi, (hereinafter referred to as ‘the First Appellate Court’ for the sake of convenience) and first Appellate Court dismissed the appeal concurring with the finding of the Trial Court. - 5 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 5. Aggrieved by the concurrent findings by the Trial Court and the First Appellate Court, defendant is in this regular second appeal. 6. Learned counsel for the appellant-defendant would contend that the defendant had filed a counterclaim, claiming exclusive right over the property, on the basis that his father has executed oral gift deed and no decree is passed on the said counterclaim. It is also his contention that the First Appellate Court did not give any finding relating to the counterclaim not being adjudicated by the Trial Court. Thus, it is contended that the matter requires to be remanded to the Trial Court for fresh adjudication of both, the suit as well as the counterclaim. 7. Learned counsel appearing for the respondents- plaintiffs would contend that in the counterclaim the defendant made a claim that he is owner of the suit property on the basis of oral gift alleged to have been executed by his father and since, the claim relating to oral gift is adjudicated with reference to the evidence, the counterclaim should be - 6 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 deemed to have been rejected by the Trial Court. It is also his further contention that the defendant ought to have filed one more appeal challenging the rejection of the counterclaim and he having not filed one more appeal, is not entitled to raise a contention that the counterclaim should be adjudicated. 8. This Court has considered the contentions raised at the Bar and perused the records. The following substantial question of law arises for consideration: “Whether the Trial Court is justified in decreeing the suit without passing any orders on the counterclaim filed by the defendant?” 9. The relationship of the parties is not in dispute. Plaintiffs and defendant are sons of one Sri Sayyed Pasha. Admittedly, the suit schedule property belongs to the father of the plaintiffs and defendant. Sri Sayyed Pasha died intestate in the year 1981. He was survived by two daughters along with the plaintiffs and defendant. Though the defendant raised a contention that the daughters are - 7 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 necessary parties to the suit, plaintiffs examined the daughters as witnesses before the Trial Court and they made a statement that they have no claim over the suit property. Under these circumstances, the Court has concluded that the daughters are not necessary parties to the suit. This Court does not find any error in the said finding of the Trial Court. 10. The plaintiffs have filed objections to the counterclaim. Plaintiffs denied execution of the oral gift in favour of the defendant by their father. When there is a denial relating to oral gift, the Trial Court ought to have framed an issue relating to the oral gift claimed by the defendant. However, the issue is not framed. Thereafter, the parties have led evidence. Defendant has led evidence in support of his claim relating to oral gift alleged to have been executed by his father. The witnesses to the said oral gift have been examined. Plaintiffs have cross-examined the defendant as well as the witnesses, who are examined in support of alleged oral gift. Thereafter, the Court has come to the conclusion that oral gift is not established. - 8 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 11. The Trial Court has referred to the requirement of the gift under the Mohammedan Law and after analyzing the evidence on record, has come to the conclusion that oral gift is not established. 12. It is noticed that no formal decree is passed based on the counterclaim. Thereafter, the defendant has filed regular appeal. Even the First Appellate Court has discussed on the contentions raised and also held that the oral gift said to have been executed by the defendant’s father is not established. Thereafter, the decree passed by the trial Court is confirmed. 13. The learned counsel for the appellant would contend that not framing an issue based on the counterclaim and not deciding the contentions with reference to issues to be framed on the counterclaim has caused prejudice to the defendant, who has set up a defence based on the oral gift. This Court, on appreciation of the impugned judgment and decree as well as the evidence, is of the view that all the contentions, which were required to be considered with - 9 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 reference to an issue which ought to have been framed in the counterclaim relating to oral gift, have been appreciated and considered by both the Courts below. 14. The parties went to the trial knowing what they required to prove and what they were required to disprove. The defendant has led evidence of the witness, who is said to be a witness to the oral gift. The plaintiffs have cross- examined the said witness. Under these circumstances, it cannot be said that non-framing of an issue based on the counterclaim has caused prejudice to the contentions raised by the defendant. 15. In fact, full evidence is led in support of the claim relating to the oral gift. The arguments have been considered with reference to the evidence on record. Under these circumstances, though there is a technical error in the way in which the counterclaim is decided, this Court is of the view that error has not caused any prejudice to the contention raised by the defendant and accordingly, the - 10 - NC: 2025:KHC-K:1615 RSA No. 200252 of 2022 substantial question of law framed is answered in favour of the respondents and against the appellant. 16. The appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE SBS List No.: 1 Sl No.: 34