- 1 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD BENCH DATED THIS THE 9TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100484 OF 2019 (PAR/POS-) BETWEEN: IMAMSAB S/O. GUDUDSAB KHANASABNAVAR AGE: 66 YEARS, OCC: AGRICULTURE, R/O: NAVALUR BRIDGE, OPP: SUJAL MINERAL, NAVALUR, TQ and DIST: DHARWAD-580009. &APPELLANT (BY SRI. A. P. MURARI, ADVOCATE) AND: 1. MUKTUMSAB S/O. GUDUDSAB KHANASABNAVAR, AGE: 40 YEARS, OCC: SERVICE, R/O: MADANAGIRI, TQ: ANKOLA-581314, DIST: UTTARA KANNADA. 2. MOULASAB S/O. GUDUDSAB KHANASABNAVAR, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: GOUDAR ONI, NAVALUR, TQ: DHARWAD, DIST: DHARWAD-580009. 3. SMT.MASABI W/O. MAIBUSAB LADAMMANAVAR, AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O: KALLUR, TQ: DHARWAD-580001. 4. MAKTUMBI W/O. DAVALSAB KUDALAGI, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O: BANAGITTIGUDIHAL, TQ: KALAGHATAGI, DIST: DHARWAD-580114. 5. KASHAMBI W/O. KASHIMSAB DARAGAD @ KUNNUR, AGE: 49 YEARS, OCC: AGRICLTURE, R/O: HULIMATH ONI, MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 HEBBALLI-580112, TQ: DHARWAD, DIST: DHARWAD. 6. MAHABOOBI W/O. MAHABOOBSAB DODDAMANI AGE: 45 YEARS, OCC: AGRICULTURE, R/O: KYARAKOPPA, MASJID, KYARAKOPPA, TQ: DHARWAD, DIST: DHARWAD-580007. 7. FATIMA W/O. MAKABULSHA MULLANAVAR AGE: 44 YEARS, OCC: AGRICULTURE, R/O: MULLANAVAR ONI, NEAR MASJID, BAMMIGATTI, TQ: KALAGHATAGI-581204, DIST: DHARWAD. 8. RASULBEE W/O. GUDUDSAB KHANASABNAVAR AGE: 90 YEARS, OCC: HOUSEHOLD WORK, R/O: GOUDAR ONI, NAVALUR, DHARWAD, DIST: DHARWAD-580009. &RESPONDENTS (BY SRI. G.I. GACHCHINAMATH, ADVOCATE FOR R1; R2 TO R8 ARE SERVED) THIS RFA FILED UNDER SEC. 96 R/O ORDER 41 RULE 1 OF CPC., PRAYING TO ALLOW THIS APPEAL, SETTING ASIDE THE IMPUGNED JUDGMENT AND DECREE IN O.S. NO.553/2014 DATED 19.09.2019 PASSED THE LEARNED IV ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., DHARWAD DECREEING THE PLAINTIFF9S SUIT FOR PARTITION OF HIS ALLEGED 1/3RD SHARE OUT OF 2/3RD SHARE OF THE SUIT PROPERTIES AND TO DISMISS THE SUIT WITH COSTS. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER : CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI - 3 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 ORAL JUDGMENT This appeal is filed by the appellant/defendant No.1 challenging the judgment and decree dated 19.09.2019 passed by the IV Addl. Senior Civil Judge and JMFC, Dharwad. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.1, respondent No.1 was the plaintiff and other respondents were the other defendants. 3. Brief facts leading rise to the filing of this Regular First Appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that the properties bearing R.S.No.25 measuring 2 acres 27 guntas, R.S. No.71/1 measuring 14 guntas, R.S. No.71/4 measuring 13 guntas and a residential RCC building bearing Municipal No.108/A, all situated at Navalur - 4 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 Village in Dharwad Taluk and are originally belonged to one Gudusab Khansabanavar. The Land Tribunal, Dharwad granted suit land at Sl.No.(i) to Gudusab Khansabnavar as he filed an application seeking occupancy rights. The suit properties at Sl.Nos.(ii) and (iii) were acquired through his ancestors. It is contended that the plaintiff and the defendants are in joint possession of the suit properties as tenants in common. The plaintiff and the defendants together were enjoying the suit schedule properties along with their father Gudusab, till his death. Gudusab passed away on 08.06.2007 leaving behind him the plaintiff and the defendants. After the demise of Gudusab, there was no partition effected between the plaintiff and the defendants. It is contended that defendants No.1 and 2 by taking undue advantage of ill-health of Gudusab, created a registered gift dated 10.11.2006. Hence, the registered gift deed alleged to have been executed by Gudusab in favour of defendants No.1 and 2, is not binding on the plaintiff9s share. The plaintiff and defendant No.2 together have constructed the - 5 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 residential house at Sl.No.(iv). The plaintiff and the defendants have got a share in the suit schedule properties. The plaintiff demanded for partition and separate possession. Defendant No.1 refused to effect a partition. Hence, a cause of action arose for the plaintiff to file the suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant No.1 filed a written statement denying the averments made in the plaint and contended that the suit schedule Sl.No.(i) property bearing R.S.No.25 was granted by the Land Tribunal in favour of Gudusab. The property bearing Sy.No.71 measuring 2 acres 6 guntas was acquired by the ancestors of Gudusab. There was a partition effected between Gudusab and his siblings and in the said partition, Gudusab got 1 acre 3 guntas of land in Sy.No.71. Portions of the said land to the extent of 10 guntas were sold by Gudusab in favour of one Venkatesh and Vani under a registered sale deed dated 23.02.2000 and 6 guntas to one Trilochan Ranu under a registered sale deed dated - 6 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 10.07.2006 and he distributed the sale consideration to his wife, plaintiff and defendant Nos.3 to 7 and also for himself. It is contended that Gudusab, gifted the suit schedule properties in favour of defendants No.1 and 2 out of love and affection and executed a registered gift deed on 10.11.2006. It is further contended that defendants No.1 and 2 became the absolute owners of the suit schedule properties by virtue of the registered gift deed dated 10.11.2006. It is also contended that the plaintiff has no right, title or interest to claim a share in the suit schedule properties. Hence, prays to dismiss the suit against defendant No.1. 5. Defendant No.2 filed a written statement admitting the plaint averments except that he and defendant No.1 created a gift deed dated 10.11.2006 and it is contended that the plaintiff had settled at Madangiri village in Akola Taluk of Karwar District, they were under the impression that he would not seek any share in respect of the suit schedule properties and therefore, Gudusab got executed - 7 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 gift deed in favour of defendants No.1 and 2. Defendant No.2 admitted that himself and the plaintiff have contributed for the construction of a residential property at Sl.No.(iv). As such, prays to decree the suit. 6. Defendant No.8, the mother of the plaintiff and the defendants filed a written statement, admitting all the plaint averments, except execution of the alleged gift deed by her husband, in favour of defendants No.1 and 2. Hence, prays to decree the suit by allotting the legitimate share to her. 7. The trial Court, based upon the pleadings of the parties, framed the following issues and additional issues: ISSUES 1. Whether the genealogy of the family furnished by the plaintiff is correct? 2. Whether the plaintiff proves that the suit items No.1 to 3 properties were granted by the Land Tribunal to the deceased Gudusab Khansabnavar? 3. Whether the plaintiff proves that himself and the defendants are the tenants in common in respect of the suit properties? - 8 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 4. Whether plaintiff proves that the Gift deed dated 10- 11-2006 alleged to have been executed by Gudusab Khansabnavar is a created document and binding on him? 5. Whether the defendant No.1 proves that the deceased Gudusab Khansabnavar has gifted the suit properties to himself and the defendant No.2? 6. Whether the defendant No.1 proves that the suit is barred by limitation? 7. Whether the valuation of the suit made by the plaintiff is proper and that the Court fee paid on the plaint is sufficient? 8. Whether the plaintiff is entitled for partition of the suit properties and for separate possession thereof? If so, what is the share to which the plaintiff entitled? is 9. What Decree or Order? ADDITIONAL ISSUES 1. Whether the plaintiff proves that suit property Item No.1 was granted land to the deceased Gudusab Khanasabnavar by the Land Tribunal ? 2. Whether the plaintiff further proves that the suit schedule property Item No.2 & 3 are acquired through ancestors of their father Gudusab Khansabnavar? - 9 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 8. The plaintiff, to substantiate his case, examined himself as PW-1 and marked 8 documents as Exs.P-1 to P- 8. In rebuttal, defendant No.1 was examined as DW-1, defendant No.2 was examined as DW-4, examined 2 witnesses as DW-2 and DW-3 and marked 48 documents as Exs.D-1 to D-48. 9. The trial Court, after recording the evidence, hearing both sides, and assessing the verbal and documentary evidence, answered Issue Nos. 1, 3, 4, 7, 8, additional issue Nos.1 and 2 in the affirmative, issue Nos.2 partly in the affirmative, issue Nos.5 and 6 in the negative and issue No.9 as per the final order. Consequentially, the suit of the plaintiff was decreed. It is declared that the plaintiff is entitled to 1/3rd share out of 2/3rd in the suit schedule properties. Defendant No.1, aggrieved by the impugned judgment and preliminary decree, filed this Regular First Appeal. - 10 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 10. Heard the learned counsel for defendant No.1 and the learned counsel for the plaintiff. 11. Learned counsel for defendant No.1 submits that Gudusab executed a registered gift deed regarding the properties at Sl.Nos.(i) to (iv) out of love and affection in favour of defendants No.1 and 2. He also submits that defendant No.1 has proved the ingredients of 8Hiba9 (gift in Mohammedan Law) which is declaration, acceptance and delivery of possession. The said aspect was not properly considered by the trial Court. He also submits that the trial Court has not framed any issue about the execution of the registered gift deed. He also submits that the trial Court has awarded a share as if the parties are Hindus. He submits that the parties are Mohammedans. The trial Court has not properly considered the evidence on record and committed an error in passing the impugned judgment. On these grounds, he prays to allow the appeal. - 11 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 12. Per contra, learned counsel for the plaintiff submits that admittedly the suit properties were owned and possessed by Gudusab. Gudusab, during his lifetime, sold a portion of land in R.S.No.71/1 measuring to the extent of 10 guntas and a portion in Sy.No.71/4 to the extent of 6 guntas. The remaining properties are the matruka and the plaintiff and the defendants and they are the tenants-in- common and no partition was effected between them. The trial Court was justified in decreeing the suit of the plaintiff. He also submits that though the trial Court has not framed any issues regarding the registered gift deed alleged to have been executed by Gudusab in favour of defendants No.1 and 2, it has given finding on the registered gift deed. Hence, on these grounds, he prays to dismiss the appeal. 13. Perused the records and considered the submissions of the learned counsel for the parties. 14. The points that arise for consideration are: 1. Whether the judgment and preliminary decree passed by the trial Court is perverse, arbitrary and erroneous? - 12 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 2. Whether the trial Court was justified in recording its finding on the registered gift deed, without framing any issue? 3. Whether the trial Court was justified in granting 1/3rd share in 2/3rd share? 4. What order or decree? Reg. Point No.1: 15. The plaintiff, to substantiate his case examined himself as PW-1, who deposed that the suit schedule properties were owned and possessed by Gudusab. The suit schedule property at Sl.No.(i) was granted in favour of Gudusab by the Land Tribunal and he became the absolute owner of the suit schedule property at Sl.No.(i). So far as item Nos.(ii) and (iii) are concerned, the said properties were acquired by Gudusab in the partition effected between him and his siblings. It is contended that the plaintiff and defendant No.2 have constructed the house i.e. at Sl.No.(iv) of the suit schedule. The plaintiff and the defendants are tenants in common and no partition was effected between - 13 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 them. The plaintiff demanded for partition and separate possession. The defendants refused to effect the partition. 16. The plaintiff, to substantiate his case, produced record of rights in respect of the suit schedule properties, marked as Exs.P-1 and P-2. Ex.P-3 is the certified copy of the mutation entry. Ex.P-4 is the letter issued by the Assistant Commissioner, Dharwad. Ex.P-5 is the certified copy of the registered gift deed, which discloses that Gudusab gifted the suit schedule properties in favour of defendant Nos.1 and 2 and delivered the possession of the suit schedule properties in favour of defendant Nos.1 and 2. Exs.P-6 to P-8 are the record of rights in respect of the suit schedule properties, which disclose that based on Ex.P-5, the names of defendant Nos.1 and 2 have been entered in the revenue records. 17. During the cross-examination, it was suggested to PW-1 that Gudusab gifted the suit schedule properties in favour of defendant Nos.1 and 2 and defendant Nos.1 and 2 - 14 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 accepted the gift and Gudusab delivered the possession in favour of defendant Nos.1 and 2. The said suggestion was denied by PW-1. 18. In rebuttal, defendant No.1 was examined himself as DW-1, who has deposed that Gudusab was the owner of the suit schedule properties. He gifted the suit schedule properties in favour of defendant Nos.1 and 2 and defendant Nos.1 and 2 accepted the gift and Gudusab had delivered the possession of the suit schedule properties. By virtue of the registered gift deed, defendants No.1 and 2, became the absolute owners of the suit schedule properties. The plaintiff has no right, title or interest over the suit schedule properties and is not entitled to a share in the said properties. 19. To prove the defense, defendant No.1 has produced the documents. Exs.D-1 is the certified copy of Form No.7. Ex.D-2 is the certified copy of the order passed by the Land Tribunal, Dharwad, which discloses that item - 15 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 No.(i) of the suit schedule was granted in favour of Gudusab. Ex.D-3 is the certified copy of Form No.10. Ex.D-4 is the RTC of item No.(i) of the suit schedule, which stands in the name of Gudusab. Exs.D-5 and D-6 are the certified copies of the registered sale deeds, which disclose that Gudusab, during his lifetime, sold the portions of the land in Sy.No.71/1 measuring 10 guntas, Sy.No.71/4 to the extent of 6 guntas, in favour of the purchasers for a valid consideration. Exs.D-7 to D-34 are the RTC extracts. Exs.D35 to D43 are the tax paid receipts. Exs.D-44 to D-46 are the certified copies of the mutation extracts. Exs.D-47 and D-48 are mutation extracts. The defendant also examined the attesting witnesses who were present at the time of the execution of registered gift deed. They have deposed that Gudusab, out of love and affection, gifted the suit schedule properties in favour of defendant Nos.1 and 2 and executed a registered gift deed in favour of defendant Nos.1 and 2 and delivered the possession of the suit schedule properties in favour of Defendant Nos.1 and 2. - 16 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 20. From the perusal of the entire material on record, there is no dispute that the suit schedule properties were owned and possessed by Gudusab. Though defendant No.1 alone has taken a defense that Gudusab, out of love and affection, had gifted the suit schedule property in favour of defendants Nos.1 and 2, defendant No.2 being the beneficiary, has filed a written statement not supporting the case of defendant No.1, on the contrary, supported the case of the plaintiff. 21. Further, the trial Court has not framed any issue regarding the execution of the gift deed. The trial Court without framing an issue regarding the partition, by placing burden on defendant No.1, to prove the execution of the gift deed, has recorded its finding. The trial Court has taken defendant No.1 by surprise, without notifying the execution of the registered gift deed. Thus, the finding recorded by the trial Court without notifying defendant No.1 regarding the execution of the registered gift deed is arbitrary and erroneous. - 17 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 22. In view of the above discussions, I answer the point No.1 in the affirmative. Reg. Points No.2 and 3: 23. As the points No.2 and 3 are interlinked, they are taken up together for common discussion. 24. The perusal of the entire judgement of the trial court discloses that trial court has not framed any issues regarding the alleged gift deed and proceeded to record the finding on the same and passed the impugned judgement. The trial Court ought to have framed the issue on the alleged gift deed and ought to have decided the same as it goes to the root of the case in hand. However, the trial Court erred in passing the impugned judgment without framing any issue on the gift deed alleged to have executed by the deceased Gudusab in favour of defendants No.1 and 2. The Hon9ble Apex Court in the case of Makhan Lal Bangal v/s. Manas Bhunia and ors., reported in AIR 2001 SC 490, held in para 19, as follows: - 18 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 <An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided. Further, admittedly, the parties are Mohammedans. The trial Court has granted 1/3rd share in 2/3rd share. The trial Court has not considered the fact that the parties have not pleaded that they belong to Shia or Sunni. As far as the inheritance regarding the Shia and Sunni are concerned, is - 19 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 different. The said aspect was not properly considered by the trial Court. The trial Court has granted 1/3rd share as if the parties are Hindus. The trial Court, without considering Sections 148, 149 and 150 of the Mulla9s Mohammedan Law, has passed the impugned judgment. Thus, in view of the above discussion, the matter requires reconsideration by the trial Court. 25. Hence, I answer the point Nos.2 and 3 in the negative. Reg. Point No.4: 26. The quantum of share is required to be re- determined by the trial Court as per the Mohammedan Law. 27. In view of the above discussions, I proceed to pass the following: ORDER (i) The Regular First Appeal is allowed. (ii) The judgment and decree dated 19.09.2019 passed in O.S.No.553/2014 by the IV Addl. Senior Civil Judge and JMFC, Dharwad, is set aside. - 20 - HC-KAR NC: 2025:KHC-D:11628 RFA No. 100484 of 2019 (iii) The suit in O.S.No.553/2014 is restored to its original file. (iv) The trial Court is directed to frame an issue regarding the execution of the registered gift deed by Gudusab Kahnasabnavar in favour of defendants No.1 and 2 and also regarding the quantum of share and pass the appropriate orders in accordance with law. (v) All the contentions of the parties are kept open. (vi) This Court has not made any adjudication on the merits in issue. (vii) The liberty is reserved to the parties to amend their pleadings. (viii) The parties are directed to appear before the trial Court on 29.10.2025. (ix) The Office is directed to transmit the records to the trial Court forthwith. Sd/- (ASHOK S. KINAGI) JUDGE NAA List No.: 1 Sl No.: 16