- 1 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100856 OF 2024 (PAR/POS) BETWEEN: MR. ALLISAB @ ALLABAKSH NABISAB LAVANGI, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: AIGALI, TQ: ATHANI, DIST: BELAGAVI – 591 248. …APPELLANT (BY SRI. MAQBOOLAHAMED M. PATIL, ADVOCATE) AND: 1. SRI. SHAMULAL @ SHAMEER CLAIMING TO BE SON OF MODINSAB LAVANGI, AGE: 35 YEARS, OCC: COOLIE, R/O: AMBIKA NAGAR, MAISHYAL, TQ: MIRAJ, DIST: SANGLI – 416 409. 2. SMT. DILSHABDI @ DILASHADBI CLAIMING TO BE WIFE OF MODINSAB LAVANGI, AGE: 57 YEARS, OCC: HOUSEHOLD, R/O: AMBIKA NAGAR, MAISHYAL, TQ: MIRAJ, DIST: SANGLI – 416 409. …RESPONDENTS [BY SRI. PRASAD SIDDHANTI, ADVOCATE (THROUGH VC) FOR R1] THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 16.10.2024 PASSED IN RA NO. 21/2020 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, ATHANI; AND SET ASIDE THE JUDGMENT AND DECREE DATED 03.01.2020 OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, ATHANI IN O.S.NO.850/2017 CONSEQUENTLY, DISMISS THE SUIT OF THE PLAINTIFF. ALL COST OF THIS APPEAL AND ETC., Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by the defendant aggrieved by the judgment and decree dated 03.01.2020 passed in O.S.No.850/2017 on the file of Civil Judge and JMFC, Athani (Trial Court) decreeing the suit of the plaintiffs for partition and separate possession, which is confirmed by the judgment and decree dated 16.10.2024 passed in R.A.No.21/2020 on the file the Principal Senior Civil Judge, Athani (First Appellate Court). 2. Plaintiffs filed the above suit for partition and separate possession, claiming half share in the suit property being land bearing RS No.441/1+2 contending that the suit property belonged to one Nabisab who passed away leaving behind his wife by name Tarabi and two sons by name Alisab also known as Allabaksh and Modinsab. Second son Modinsab passed away leaving behind his wife Dilashadbi - plaintiff No.1 and a son by name Shamulal @ - 3 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 Sameer - Plaintiff No.2. Defendant is the first son of Nabisab. 3. Upon demise of Nabisab, the property devolved upon his legal heirs in equal share as such the plaintiffs No.1 and 2 being the wife and children of second of Nabisab are entitled for half share which the defendant is entitled for other half share. Hence, the suit. 4. Defendant in the written statement though admitted that Nabisab passed away leaving behind, himself and his brother Modinsab, however categorically denied plaintiff No.1 being the wife and plaintiff No.2 being the son of said Modinsab. It is contended that the plaintiff No.1 who was married to the said Modinsab was divorced thereafter plaintiff No.2 did not born out of their wedlock. He also contended that the second son of Nabisab namely Modinsab passed away, as such the defendant being the only surviving heir became the absolute owner of the entire suit property. Hence, sought for dismissal of the suit. - 4 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 5. The Trial Court framed the following issues for its consideration: “1. Whether the plaintiffs prove that themselves and defendant is tenants in common of the suit schedule properties? 2. Whether the defendant proves that suit schedule properties are his self acquired properties? 3. Whether the plaintiffs are entitled to the share in the suit schedule properties? If so, to what extent? 4. What decree or order?” 6. The Trial Court recorded the evidence and on appreciation of evidence answered issue Nos.1 and 3 partly in the affirmative, issue No.2 in the negative and consequently partly decreed the suit holding plaintiff No.2 and defendant are entitled for half share each in the suit property. Being aggrieved, the defendant preferred appeal in R.A.No.21/2020. The First Appellate Court framed the following points for its consideration: “1. Whether the trial court has erred to consider the evidence of both the parties and wrongly passed the erroneous judgment? 2. Whether the judgment of the trial court has resulted in miscarriage of justice and requires interference in the hands of this court? - 5 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 3. What order or decree? 7. On re-appreciation of evidence, the First Appellate Court answered points No.1 and 2 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Aggrieved by the same, defendant is before this Court. 8. Reiterating the grounds urged in the memorandum of appeal, Sri.Maqboolahamed M Patil, learned counsel for the appellant submit that admittedly marriage of plaintiff No.1 with Modinsab, second son of Nabisab resulted in dissolution. Referring to document at Ex.P.15 which is school leaving certificate of plaintiff No.2, learned counsel vehemently submitted that as per said Ex.P.15 the date of birth of plaintiff No.2 is shown as 11.10.1985 whereas the marriage of the plaintiff No.1 with the deceased Modinsab was solemnized on 13.02.1985. Thus, he submits that considering the date of marriage - 6 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 and date of birth, it is highly improbable that plaintiff No.2 would have born to them out of their wedlock. Thus, he submits that when plaintiff No.1 was no more a wife which fact having been accepted by the Trial Court in the light of the serious dispute with regard to the plaintiff No.2 being the son of plaintiff No.1, the Trial Court and the First Appellate Court ought not to have granted any share to plaintiff No.2. Thus, he submit non-appreciation of this material evidence has resulted in perversity in the judgments giving raise to substantial question of law. 9. Sri.Prasad Siddhanti, learned counsel for the respondent s who appeared through Video Conference on the other hand submitted that the deceased Modinsab had not denied his marriage with plaintiff No.1 and plaintiff No.2 being his son. He refers to the judgment in Crl.Misc.No.68/1991 passed on an application filed by plaintiffs No.1 and 2 under Section 125 of Cr.P.C. on the file of Judicial Magistrate First Class, Miraj claiming maintenance against the deceased Modinsab. The said - 7 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 order has been produced at Ex.P.12. Referring to the same, counsel for the respondents submits that the said judgment was passed after contest granting relief of maintenance in which the deceased Modinsab was arrayed as respondent and has admitted the relationship. Thus, he submit that the Trial Court and First Appellate Court were justified in granting the relief of partition to plaintiff No.2 as sought for and submits that no substantial question of law would therefore arise for consideration. 10. Heard. Perused the records. 11. The only ground urged in this appeal is by disputing the relationship of plaintiffs No.1 and 2 with deceased Modinsab and as regards the schedule property being owned and possessed by Nabisab and the same having been inherited by his sons after his demise is not in dispute. Though the defendant has claimed that upon demise of second son of Nabisab he became absolute owner of the suit property, his allegation of plaintiff No.2 not being son of Modinsab is the only fact to be - 8 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 considered. Ex.P.12 is judgment dated 13.08.1993 passed in proceedings under Section 125 of Cr.P.C. which was initiated by plaintiffs No.1 and 2 against deceased Modinsab seeking relief of maintenance. By the said judgment, the Court had granted maintenance of Rs.400/- p.m. Perusal of the said judgment would indicate that the deceased Modinsab in his written statement filed in the said proceedings had admitted the relationship with the plaintiffs who were the applicants therein. It was contended that applicant No.1 therein who is plaintiff No.1 in this case had gone to her parental house for delivery of the child and never returned thereafter. The said document being on record, the contention taken up by the defendant/appellant herein is liable to be rejected. The reasoning and conclusion arrived by the Trial Court based on facts and evidence adduced by the parties cannot be interfered with. No substantial question of law would therefore arise for consideration. 12. Hence, the following: - 9 - HC-KAR NC: 2025:KHC-D:7584 RSA No. 100856 of 2024 ORDER a) Appeal is dismissed. b) Judgment and decree dated 03.01.2020 passed in O.S.No.850/2017 on the file of Civil Judge and JMFC, Athani and judgment and decree dated 16.10.2024 passed in R.A.No.21/2020 on the file the Principal Senior Civil Judge, Athani are confirmed. Sd/- (M.G.S. KAMAL) JUDGE SH/CT-ASC List No.: 1 Sl No.: 34