- 1 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100926 OF 2024 (PAR/POS) BETWEEN: SRI. RAJESAB S/O. FAKEERSAB RAGHAPUR, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: HALEPETE KERUR, TAL: BADAMI, DIST: BAGALKOT – 587 201. …APPELLANT (BY SRI. P. G. CHIKKANARAGUND, ADVOCATE) AND: 1. GAIBUSAB S/O. FAKEERSAB RAGHAPUR, AGE: 70 YEARS, OCC: AGRICULTURE, R/O: HALEPETE KERUR, TAL: BADAMI, DIST: BAGALKOT – 587 201. 2. SAIDUSAB S/O. FAKEERSAB RAGHAPUR, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: HALAPETE KERUR, TAL: BADAMI, DIST: BAGALKOT – 587 201. 3. SHIVAPPA S/O. APPANNA MALI, AGE: 70 YEARS, OCC: AGRICULTURE, R/O: MALAGI ROAD, GARDEN HOUSE, KERUR, TAL: BADAMI, DIST: BAGALKOT – 587 201. …RESPONDENTS THIS REGULA SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AN DECREE DATED 01.10.2024 IN R.A.NO.38/2018 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC, BADAMI AND THE JUDGMENT AND DECREE DATED 11.12.2017 IN O.S.NO.200/2012 PASSED BY THE LEARNED PRL. CIVIL JUDGE AND JMFC, BADAMI AND DISMISS THE SUIT OF THE PLAINTIFF, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 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 by defendant No.1 being aggrieved by the judgment and decree dated 11.12.2017 passed in OS No.200/2012 on the file of the Principal Civil Judge and JMFC, Badami, by which suit of the plaintiff for partition and separate possession was decreed granting 1/3rd share, which is confirmed by the judgment and decree dated 01.10.2024 passed in RA No.38/2018 on the file of the Senior Civil Judge and JMFC, Badami. 2. The above suit is filed by the plaintiff- respondent No.1 herein contending that the suit schedule property consisting of 4 items of landed properties belonged to one Fakeersab Raghapur who is the husband of defendant No.3 (now deceased) and father of plaintiff and defendant Nos.1 and 2. Upon his demise, the property was inherited by defendant No.3 as his wife, and Plaintiff, - 3 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 defendant Nos.1 and 2 as his sons. Thus Plaintiff being entitled for his share in the properties filed the suit for partition. 3. Defendant Nos.1 to 4 appeared. Defendant No.4 filed written statement. Defendant Nos.1 to 3 adopted the same. It is contended though the defendants admitted the relationship of plaintiff with defendant Nos.1 to 3 and also admitted that Fakeersab Raghapur was the owner of the suit property, it was however denied that the suit property was in the joint possession of the plaintiff and defendant Nos.1 to 3. It is contended that there was a partition effected on 22.7.1996, during the lifetime of Fakeersab Raghapur in terms of which the plaintiff has already received his share. As such, he is not having any right, share title in the suit property. It is further contended that defendant No.2 has sold 20 guntas of land in the suit property in favour of defendant No.4 for his family and legal necessity. As such, defendant No.4 has - 4 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 become the owner to the extent of 20 acres of land. Hence, sought for dismissal of the suit. 4. Based on the pleadings, the trial Court framed the following issues and additional issues: “1. Whether plaintiff proves that the suit schedule properties are his and defendant No.1, 2 and 3’s common in tenant properties? 2. Whether defendant No.4 proves that the plaintiff and defendant No.1 to 3 have partitioned the suit schedule property on 22.07.1996? 3. Whether defendant No.4 proves that defendant No.2 sold 20 gunta of the suit property to him? 4. Whether plaintiff is entitled for 1/4th share in the suit schedule properties as prayed for? 5. What order or decree?” 5. The plaintiff examined himself as PW1 and 2 witnesses as PW2 and PW3 and marked 6 documents as Exs.P1 to P6. Defendant examined himself as DW1, defendant No.4 has examined as DW2 and 18 documents were marked as Exs.D1 to D18. 6. During the pendency of suit defendant No.3, the mother of plaintiff and defendant Nos.1 and 2 passed - 5 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 away leaving behind them as her legal heirs. As such, the trial court decreed the suit granting 1/3rd equal share to the plaintiff. 7. Being aggrieved, defendant No.1 preferred an appeal in R.A. No.38/2018. 8. The First Appellate Court framed the following points for its consideration:- “1. Whether the trial court is justified in holding that the plaintiff and defendant Nos.1 to 3 are the tenants in common of the suit schedule properties? 2. Whether the trial court is justified in holding that the plaintiff is entitled for 1/3rd share in the suit schedule properties? 3. Whether the trial court is justified in holding that the defendant No.4 has failed to prove the that there was a partition on 22.07.1996 in between the plaintiff and defendant Nos.1 to 3? 4. Whether the judgment passed by the trial court is capricious, perverse and oppose to law and needs interference? 5. What order or decree?” 9. Upon re-appreciation of the evidence, answered point Nos.1, 2 and 3 in the affirmative and point No.4 in - 6 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 the negative. Consequently, it dismissed the appeal and confirmed the judgment and decree passed by the trial Court. 10. Being aggrieved, the present appeal is filed by defendant No.1. 11. Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal vehemently submits that the trial Court and the First Appellate Court have erred in not appreciating the fact that there was a partition entered into on 22.07.1996 during the lifetime of father of the plaintiff and defendant Nos.1 and 2. That the said partition had been acted upon in terms of which suit schedule properties were divided and the share of the plaintiff was also allotted. As such, there was no joint family property available for the purpose of the partition. He further submits that the share which was allotted to the plaintiff has not been included in the suit property which is another aspect of the matter that indicating prior partition, which aspect of the matter not having been - 7 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 appreciated by the trial Court and the First Appellate Court. The same gives rise to substantial question of law requiring consideration at the hands of this Court. 12. Heard and perused the records. 13. Necessary to note that the parties are governed under the provisions of Muslim Personal law. Admittedly, property belongs to Fakeersab S/o Gaibusab Raghapur. He stated to have passed away on 03.04.2002. The right of succession/inheritance to the property opens only on his demise and not prior. The theory of prior partition set up by the defendants therefore cannot be countenanced. That apart, the document Ex.D1 which is sought to be produced by the defendants to substantiate their claim of there being earlier partition is admittedly not signed by plaintiff and defendant No.2. The trial Court and the First Appellate Court have taken note of this aspect of the matter while declining to accept the contention of the defendants that there was a prior partition. Both legally - 8 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 and factually, the contention urged by the defendant of prior partition is untenable. 14. The other ground being urged is that the share that was allotted to the plaintiff in the said partition has not been made subject matter of the suit. No such plea is taken before the trial Court or before the First Appellate Court. Same cannot be permitted to raise here. 15. In the absence of any irregularity or illegality being pointed out, there is no reason to interfere with the judgment and decree passed by the trial Court and the First Appellate Court. 16. Even under the normal circumstances, upon the demise of Fakeersab Raghapur, his wife being the sharer and the sons being the residuaries would be entitled to shares prescribed under the Personal Law. Since the wife of Fakeersab Raghapur (mother of plaintiff and defendant Nos.1 and 2) stated to have passed away, during the pendency of the suit, the plaintiff and defendant Nos.1 and 2 being the sons and only the natural heirs are entitled to - 9 - HC-KAR NC: 2025:KHC-D:7863 RSA No. 100926 of 2024 1/3rd share which has been rightly allotted by the trial Court and confirmed by the First Appellate Court. No substantial questions of law arise for consideration. Appeal is accordingly dismissed. Pending IAs. does not survive for consideration. Accordingly, they are disposed of. Sd/- (M.G.S. KAMAL) JUDGE VMB/CT-ASC List No.: 1 Sl No.: 7