- 1 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS SECOND APPEAL NO. 100003/2023 (RO) BETWEEN: NAZEER AHAMED, S/O. LATE DAVALSAB GADAGKAR, AGED ABOUT 71 YEARS, OCC: BUSINESS, R/O. AZAD COLONY, HUBBALLI, DIST. DHARWAD-580023. - APPELLANT (BY SRI. SANTOSH B. MANE, ADVOCATE) AND: 1. MOHAMMEDGOUS, S/O. ABDUL AZIZ GADAGKAR, AGED ABOUT 53 YEARS, OCC: FRUIT BUSINESS AND COMMISSION AGENT, R/O H.NO.16 1ST CROSS, GURUNATH NAGAR, ANANDNAGAR, HUBBALLI, DIST. DHARWAD-580024. 2. M/S D. G. GADAGKAR, HUBLI, A REGISTERED COMMISSION FIRM ARRYING ON BUSINESS AS FRUIT AGENTS AND GENERAL MERCHANTS, PAN BAZAAR, HUBBALLI, DIST. DHARWAD-580020. 3. ABDUL KARIM S/O. LATE DAVALSAB GADAGKAR, SINCE DECEASED BY LRS. 3A. SMT. KHUTEJABI, W/O. ABDUL KAREEM GADAKAR, AGED ABOUT 70 YEARS, OCC: HOUSEHOLD WORK. 3B. MAHAMMED SALEEM S/O. ABDUL KAREEM GADAKAR, AGED ABOUT 46 YEARS, OCC: BUSINESS. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 3C. MAHAMMED JAVEED S/O. ABDUL KAREEM GADAKAR, AGED ABOUT 46 YEARS, OCC: BUSINESS, ALL ARE R/O. MAZID SALEEM BUILDING, TABIB LAND, HUBBALLI, DIST. DHARWAD-20. 4. SMT. MEHARUNNISA W/O. KASHIMSAB KHANDEWALE, SINCE DECEASED BY LRS. 4A. MOHAMMAD ARFATH, S/O. LATE MOHAMMAD KASHIM KHANDEWALE, AGED ABOUT 37 YEARS, OCC: BUSINESS, R/O. MULLA ONI, OPP: JAMIYA MASJID, HUBBALLI, DIST. DHARWAD. 4B. KUMARI ASHU D/O. LATE MOHAMMAD KASHIM KHANDEWALE, AGED ABOUT 35 YEARS, OCC: HOUSEHOLD, R/O. MULLA ONI, OPP: JAMIYA MASJID, HUBBALLI, DIST. DHARWAD. 4C. KUMARI NASAREENBANU, D/O. LATE MOHAMMAD KASHIM KHANDEWALE, R/O. MULLA ONI, OPP: JAMIYA MASJID, HUBBALLI, DIST. DHARWAD. 5. BEEBIHALEEMA W/O. DR. MOHAMMED IQBAL SOUDAGAR, AGED ABOUT 63 YEARS, OCC: DOCTOR, R/O. GURANI LAYOUT, VISHALNAGAR, GUDIHAL ROAD, OLD HUBBALLI, DIST. DHARWAD-580024. 6. SMT. KHAIRUNNISA W/O. KHURSHID AHAMED, AGED ABOUT 62 YEARS, OCC: HOUSEHOLD, R/O. ISLAMPUR, OLD HUBBALLI, DIST. DHARWAD-5800024. 7. SMT. MOHAMMADYUSUF S/O. ABDULAZIZ GADAGKAR, AGED ABOUT 51 YEARS, OCC: BUSINESS, R/O. VISHALNAGAR, OLD HUBBALLI, DIST. DHARWAD-580024. 8. SMT. HAZARATHBI @ TAHASLEEMKOUSAR W/O. MOHAMMADUSSAIN SHAIKH, AGED ABOUT 55 YEARS, OCC: BUSINESS, R/O. MANTUR ROAD, HUBBALLI, DIST. DHARWAD-580023. - 3 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 9. RFIUDDIN S/O. ABDULAZIZ GADAGKAR, AGED ABOUT 45 YEARS, OCC: BUSINESS, R/O. VISHALNAGAR, OLD HUBBALLI, IST. DHARWAD-580024. 10. SMT. BIBIHALEM W/O. ABDULRAZAK SHAIKH, AGED ABOUT 38 YEARS, OCC: HOUSEHOLD. 11. PRAKASH S/O. GANGADHAR SHETTY URF KALMANE, AGED ABOUT 53 YEARS, OCC: BUSINESS. 12. GANGADHAR S/O. GANAPAIAH SHETTY (KALMANE), AGED ABOUT 53 YEARS, OCC: BUSINESS. 13. ARUN GANAPAIAH SHETTY (KALMANE), AGED ABOUT 52 YEARS, OCC: BUSINESS. 14. PRAKASH GANAPAIAH SHETTY (KALMANE), AGED ABOUT 51 YEARS, OCC: BUSINESS. 15. SATHISH S/O. GANAPAIAH SHETTY (KALMANE), AGED ABOUT 50 YEARS, OCC: BUSINESS. 16. RAVIRAJ S/O. GANAPAIAH SHETTY (KALMANE), AGED ABOUT 32 YEARS, OCC: BUSINESS. 17. SMT. SABEENA W/O. ASHRAFULLA M. R, AGED ABOUT 39 YEARS, OCC: HOUSEHOLD. 18. SMT. GOUSIYA W/O. ADILAHMED, AGED ABOUT 38 YEARS, OCC: HOUSEHOLD. 19. SMT. RAJEHA W/O. MOHAMMEDNABI MULLA, AGED ABOUT 37 YEARS, OCC: HOUSEHOLD. 20. SMT. NABEELA W/O. IRFANAHMED SHAIKH, AGED ABOUT 35 YEARS, OCC: HOUSEHOLD. 21. SMT. FATHEEMA W/O. SHAKEERAHMED SHAIKH, AGED ABOUT 33 YEARS, OCC: HOUSEHOLD. 22. KHADIM INDIA LTD. KOLKATA REPRESENTATIVE BY EXECUTIVE LEGAL SRI. SUBHENDU MALLIK, AGED ABOUT 58 YEARS. - 4 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 23. VASANTHA RAMACHANDRA MISKIN, AGED ABOUT 58 YEARS, OCC: BUSINESS. 24. GANGADHAR HANAMANTHASA KATWE, AGED ABOUT 53 YEARS, OCC: BUSINESS. 25. BADASA S/O. LASHMANSA KATWE, AGED ABOUT 54 YEARS, OCC: BUSINESS. 26. RAGHVENDRA NAGAPPA VERNEKAR, AGED ABOUT 55 YEARS, OCC: BUSINESS, R/O. ZAHARA PLAZA DURGADBAIL. RESPONDENT NO.11 TO 26 ARE R/O. OLD ARUN LODGE BUILDING, HUBBALLI, DIST. DHARWAD-580020. - RESPONDENTS (BY SRI. G. I. GACHCHINAMATH, ADVOCATE FOR R1; NOTICE TO R2 AND R11 TO R26 DISPENSED WITH; NOTICE TO R3 (A TO C) AND R4 (B & C) AND R5 TO R10 HELD SUFFICIENT; NOTICE TO R4 (A) SERVED) THIS MISCELLANEOUS SECOND APPEAL IS FILED U/SEC.43 RULE 1 (u) OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DTD 25.11.2022 PASSED BY THE LEARNED V ADDITIONAL DISTRICT JUDGE, DHARWAD SITTING AT HUBBALLI, IN R.A.NO.77/2019 IN THE INTEREST OF JUSTICE AND EQUITY & ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by the defendant No.3/ respondent No.3 challenging the order of remand dated 25.11.2022 passed by the learned V Addl. District Judge, Dharwad sitting at Hubballi in R.A. No. 77/2019. The plaintiff (respondent No.1 herein) filed O.S. No. 195/2018 for the relief of partition. The defendant No.3 (appellant herein) had filed I.A. No. 3 under Order 7 Rule 11A before the trial Court for rejecting the plaint on the ground that there was no cause of action to the plaintiff to file the suit. After hearing the parties the learned trial judge allowed I.A. No. 3 and rejected the plaint by order dated 14.03.2019. Plaintiff has challenged the said order before the first appellate Court on various grounds. After hearing the said appeal, the first appellate Court set aside the order passed by the trial Court on I.A. No. 3 and remanded the suit to the trial Court for fresh consideration of the matter on merits. Being aggrieved by the said order the defendant No.3 preferred this appeal. - 6 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 2. Heard arguments. 3. The only question which arises for consideration of this Court is: Whether the order of remand passed by the first appellate Court is in accordance with law? 4. The learned Advocate for the appellant submits that the trial Court considering the plaint averments as well as I.A. filed by the defendant No.3 rightly rejected the plaint. The first appellate Court had no ground to reconsider the same. However, the first appellate Court has not understood the pleadings of the plaintiffs in the present suit as well as suit in O.S. No. 103/1977 which was filed before the Civil Judge Court, Hubballi, and erroneously set aside the order passed by the trial Court on I.A. No. 3. 5. He further contends that the hidden agenda of the plaintiff in the suit is just to harass the defendant No.3 and extract the property from them. In the judgment of O.S. No. 103/1977 it is already held by the Court that - 7 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 there were no funds given to Davalsab by the mother of plaintiff and business was not run by Davalsab by the said amount. It is also contended that in O.S. No. 103/1977 it is already held that there was no partnership firm between the father of the plaintiff and other members of the family with Davalsab. Therefore reconsideration of the same in the present suit was not required. Moreover there was no concept of joint family under the Mohammadan Law and hence the order passed by the trial Court was proper. The remand order passed by the first appellate Court was totally incorrect and there was no reason to set aside the order passed by the trial Court. With these reasons prayed to allow the appeal by setting aside the judgment passed by the first appellate Court in R.A. No. 77/2019. 6. Learned counsel for respondent No.1 submits that trial Court had not only considered the plaint averments, but also taken the defence of the defendants and rejected the plaint. He further contends that the reliefs sought in the previous suit and the present suit, are different. - 8 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 Father of the present plaintiff sought for the relief of dissolution of the firm and rending of the accounts. The relief of partition in the property belonging to the grandfather, that is to be decided independently without consideration of the previous litigation. He further contends that even if the contention of the defendants are taken into consideration that the present suit is hit by principle of resjudicata then also the trial court ought to have permitted the parties to complete the pleadings, thereafter framed issues and answered the issue of resjudicata on the basis of material placed on record. Without going to that stage the trial Court ought not to have rejected the plaint at the threshold. The respondent No.1 further contends that limitation is a question of law and fact; especially looking to the facts of the present case. However the trial Court without permitting to lead the evidence, considered it as a question of law and decided the case, which is erroneous. He further submits that after remand of the case the trial Court concluded the evidence and the suit is at the verge of disposal. - 9 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 Therefore if the trial Court is permitted to record its finding on merits basing on the records the dispute between the parties could be fully and finally decided by the said Court. With these reasons prayed to dismiss the appeal. 7. The finding to the above question is in the negative for the following reasons. 8. The present suit is for partition and separate possession of the share of the plaintiff in the suit schedule properties. Suit properties are stated to be purchased by Davansab from his business income. It is also contended that in some of the properties Davalsab had no absolute right and he could not had transferred more than 1/3rd share in the said property in favour of other defendants and that was challenged. In addition to that, plaintiff also sought for the relief of permanent injunction restraining the defendants from alienating and transferring of the suit properties. - 10 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 9. Plaintiffs have produced copy of the plaint in O.S. No. 103/1977. Looking to the pleadings of the said suit it is mainly on the ground that there was a partnership firm consisting of one Abdul Azeez (father of the plaintiff in the present suit), Davalsab (grandfather of the plaintiff herein) and his wife and other sons of Davalsab. There were no specifications of the properties and of the subject matter of the present suit were not properties in the said suit. Apart from that, the reliefs sought in the said suit is as under: “Plaintiff therefore prays that the suit firm M/s D.G.Gadagkar, Hubballi, be dissolved and after taking the accounts, plaintiff be awarded his share of amount and the assets of the firm. Plaintiff is ever ready and willing to pay the Court Fees on the amounts found due.” Therefore the said suit mainly pertain to the partnership firm. Merely there are similar averments in both the suits, cannot be a ground to hold that the reliefs sought in both suits are one and the same. - 11 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 10. It is true that parties are governed by Mohammadan Law. O.S. No. 103/1977 though dismissed by the trial Court, when an appeal filed against it, it appears parties to the said suit had compromised the matter and accordingly compromise decree was passed which was noted in the orders of the trial Court in O.S. No. 195/2018. In view of the said submission, plaintiff in O.S. No. 103/1977 did not prosecute the appeal. The present plaintiff is son of Abdul Azeez who was plaintiff in O.S. No. 103/1977 claiming share in the properties purchased by Davalsab. Under Mohammadan Law, after death of Davalsab his son and daughters are entitled for share of the property. If there was no partition already then plaintiff had right to claim his share in the property through his father, that has to be considered by the trial Court on merits. 11. As rightly submitted by the learned counsel for plaintiff, the trial Court not only considered the averments in the plaint, but also considered the defence of the defendant No.3 and allowed the application, is not - 12 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 permissible under law. On plain reading of the plaint in O.S. No. 195/2018 it does not appear that there was no cause of action for the plaintiff to file the suit. If the reliefs prayed in O.S. No. 103/1977 and O.S. No. 195/2018 are one and the same, then the trial Court may have to frame the issue regarding resjudicata and has to answer the same on the basis of pleadings and other materials placed by the parties. For that, the trial Court cannot invoke the provisions of Order 7 Rule 11 CPC. The first appellate Court considered these points in detail in the impugned order. 12. The first appellate Court from paragraph Nos.32 to 36 elaborately discussed the purview of Order 7 Rule 11 CPC and the circumstances under which the plaint could be rejected by the Court under Order 7 Rule 11 CPC. The first appellate Court also considered that the trial Court went beyond the framework of Order 7 Rule 11 CPC and considered the defence of the defendant No.3 while rejecting the plaint. Therefore the first appellate Court - 13 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 held that the trial Court has traveled beyond the framework of Order 7 Rule 11 CPC. Hence, it was set aside. This Court does not find any reasons to find fault with the orders passed by the first appellate Court. The first appellate Court by the well reasoned order considered the facts of the case including the previous litigation passed in O.S. No. 103/1977 and also order 7 Rule 11 CPC and rightly set aside the order passed by the trial Court. To put a quietus to litigation already the trial Court recorded evidence of both the parties and suit is said to be posted for arguments. Under such circumstances, this appeal more or less has become infructuous. If the trial Court is permitted to proceed with the suit and decide on merits the dispute between the parties could be decided fully and finally on merits without going into multiplicity of the proceedings. 13. For the aforesaid discussion, the question framed for consideration is answered in the negative and proceed to pass the following order. - 14 - NC: 2025:KHC-D:5122 MSA No. 100003 of 2023 ORDER The appeal is dismissed. The order passed by the learned v District & Sessions Judge, Dharwad sitting at Hubballi in R.A. No. 77/2019 dated 25.11.2022 is confirmed. The trial Court without being influenced by the order passed by the first appellate Court as well as this Court, shall decide the suit independently on merits. Send a copy of this judgment to the trial court as well as the first appellate Court. Sd/- (UMESH M ADIGA) JUDGE BVV /CT-AN List No.: 1 Sl No.: 14