- 1 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 11TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO.100807 OF 2014 (PAR) BETWEEN: BABAJAN S/O. MOHAMMAD PASHA INAMDAR, AGE: 67 YEARS, OCC. NILL, R/O. CTS NO.2386/A, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. …APPELLANT (BY SRI. SHIVARAJ S. BALLOLLI, ADVOCATE) AND: 1. PACHASAB S/O. MEHAMOOD PASHA INAMDAR, AGE: 58 YEARS, OCC. H/W, R/O. H.NO.2386/B, AZAD GALLI, NOW AT R/O. PLOT NO.179, HASEEN MANSION, ASADKHAN SOCIETY, NEAR BUDA OFFICER, BELAGAVI – 590001. 2. PARVEEN W/O. BAPUSAB INAMDAR, AGE: 50 YEARS, OCC. H/W, R/O. HOUSE NO 2386/1, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. 3. NAHIDA D/O. BAPUSAB INAMDAR, AGE: 31 YEARS, OCC. STUDENT, R/O. HOUSE NO 2386/1, AZAD GALLI, BELAGAVI-590001, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.13 10:24:06 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 DIST. BELAGAVI. 4. NIYAZ S/O. BASHEERAHMED ARKATI, AGE: 53 YEARS, OCC. TAILOR, R/O. HOUSE NO 2386/1, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. 5. SHRI SAYEED S/O. RASULSAB MOKASHI, AGE: 48 YEARS, OCC. BUSINESS, R/O. HOUSE NO 2386, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. 6. SHRI SAJEED S/O. HYDERALI MUNIYAR, AGE: 47 YEARS, OCC. PRIVATE SERVICE, R/O. CTS NO.2386/P, AZAD GALLI, BELAGAVI, DIST. BELAGAVI-590001. 7. NASIR S/O. ISMAIL ANSARI, AGE: 52 YEARS, OCC. TAILOR, R/O. CTS NO.2386/B, AZAD GALLI, BELAGAVI, DIST. BELAGAVI-590001. 8. NABISAB S/O. MOHAMAD NAIKWADI, AGE: 52 YEARS, OCC. TAILOR, R/O. CTS NO.2386/B, AZAD GALLI, BELAGAVI, DIST. BELAGAVI-590001. 9. DADAPEER S/O. KHATALSAB PATHAN, AGE: 50 YEARS, OCC. PRIVATE SERVICE, R/O. CTS NO.2386/B, AZAD GALLI, BELAGAVI, DIST. BELAGAVI-590001. 10. SALEEM S/O. ABDULHAMID DHAWADKAR, AGE: 47 YEARS, OCC. MECHANIC, R/O. CTS NO.2386/C2, AZAD GALLI, - 3 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 BELAGAVI, DIST. BELAGAVI-590001. 11. KASHIM S/O. MAKUMSAB MIRAJI, AGE: 45 YEARS, OCC. MECHANICAL, R/O. HOUSE NO 2386/D2, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. 12. SMT. RAHMATBI W/O. BADAJAN INAMDAR, AGE: 55 YEARS, OCC. H/W, R/O. HOUSE NO 2386/A, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. 13. SHRI SAYYED AHAMMAD PASHA S/O. BABAJAN INAMDAR, AGE: 38 YEARS, OCC. SERVICE, R/O. HOUSE NO 2386/A, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. 14. SHRI NAZIMPASHA S/O. BABAJAAN INAMDAR, AGE: 40 YEARS, OCC. SERVICE, R/O. HOUSE NO 2386/A, AZAD GALLI, BELAGAVI-590001, DIST. BELAGAVI. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 31.07.2014 PASSED IN R.A.NO.1066/2009 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, BELAGAVI CONFIRMING THE JUDGMENT AND DECREE DATED 28.10.2009 PASSED IN O.S.NO.45/2003 ON THE FILE OF PRL. CIVIL JUDGE, SENIOR DIVISION, BELAGAVI BY ALLOWING THE TOP NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER. - 4 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 ORAL JUDGMENT (PER. THE HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel appearing for the appellant/plaintiff. 2. The appellant/plaintiff is before this Court in second appeal assailing the judgment of the First Appellate Court which denied partitioning the schedule ‘A’ and ‘C’ properties. The Trial Court had dismissed the entire suit for partition. 3. The grievance of the appellant/plaintiff was that he and defendant Nos.1 and 2 were the children of one Mehaboobi. The suit schedule properties were owned by the said Mehaboobi and her husband (father of the plaintiff and defendant Nos.1 and 2). The said Mehaboobi, through her husband as a power of attorney holder had given an application to the City Survey Authorities to divide the suit schedule ‘A’ immovable property into three parts, and accordingly, three parts were created. The shares of the plaintiff and defendant No. 1 and 2 were carved out, and - 5 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 consequently, the names of the plaintiff and defendants Nos. 1 and 2 were entered in the City Survey records. 4. Schedule ‘B’ property is the double-barrel gun said to have been given to the father of the plaintiff by the Britishers. Schedule ‘C’ happens to be a sword owned by the father of the plaintiff. It is to be noted that the Trial Court dismissed the suit on the ground that there was already a partition in respect of the schedule ‘A’ property during lifetime of their father and mother as evidenced by Ex.D.1, the application given to the City Survey, which was acted upon and entries were made in the City Survey records. The Trial Court also held that there is no material to show the existence of schedule ‘B’ and ‘C’ properties i.e. the double-barrel gun and the sword. 5. Being aggrieved, the plaintiff approached the First Appellate Court in R.A.No.1066/2009. After hearing the parties, the First Appellate Court partly allowed the appeal granting division in the suit schedule ‘B’ property the gun, and confirming the judgment of the Trial Court in respect of ‘A’ and ‘C’ properties. - 6 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 6. Being aggrieved, the plaintiff is before this Court contending that the application given to the City Survey by the father of the plaintiff as Power of Attorney holder of his mother Mehaboobi cannot be treated as a partition. He contends that the division is unequal and therefore, the plaintiff is entitled for a share. He also contends that the division also should have been made in respect of sword. It is submitted that the mutation entries or the City Survey reports cannot be construed as a partition and therefore, the conclusions of the First Appellate Court are not justifiable. It is submitted that under Mohammedan law, the partition can happen only after death of a person and there cannot be any partition during lifetime. Therefore, the conveyance of the suit schedule ‘A’ property in favour of the plaintiff and defendant Nos.1 and 2 through the application given to the City Survey and their names being entered cannot be a good conveyance and as such, the judgment of the First Appellate Court is liable to be set aside. 7. A perusal of the records would reveal that the application given by the mother of the plaintiff and defendants - 7 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 through her husband M.N. Inamdar, as depicted in Ex.D.1 reads as below: “To The City survey Officer, Belgaum. Subject: Divisions in house C.T.S.No2386 Azad lane Belgaum. Sir, I, M.N. Inamadar, General holder of Power of Attorney of Smt. M.M. Inamadar of Belgaum request as under:- The house bearing C.T.S.No.2386 measuring 492 Sq.Yards is in the ownership and Wahivat of my wife Smt. M.M. Inamadar. The house in question hat already three separate parts, but no separate members have been acquired in the C.T.S. records. Now I intend to have three separate parts in my three sons (1) Shri. Babajan Mohamadpasha Inamader (2) Pachasaheb M. Inamadar M/G mother Smt. Mahabubabee M. Inamadar (3) Bapusaheb Mohamadpasha Inamadar, M/G mother Mahabubibi Mohamadpash Inamadar having are separate part to each arranging C.T.S.Nos.2386, 2386A and 2386B having backyard-well and laterin in common use to all the three. Accordingly necessary divisionwise measurements may kindly be made and necessary charges be effected in the C.T.S records accordingly. I have credited the measurement fees of Rs. 21/- and the credited challan is enclosed for early action. Address M.N. Inamadar H.No. Yours faithfully, 2386, Azad, Belgaum Sd/- English lane (M.K. Inamadar) 8. The endorsement on Ex.D.1 by the City Survey Authorities is also available on the back side and it is evident that the property was measured by the surveyor and then, the - 8 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 division was made. The said endorsement contains the signature of the minor guardian of defendant Nos.1 and 2 and the consent of the plaintiff also. Thus, it is evident that the plaintiff had given consent for the same and it categorically mentioned about the partition. In that view of the matter, the Trial Court as well as the First Appellate Court came to the conclusion that there was a partition in respect of the suit schedule ‘A’ property during lifetime of Mehaboobi and she as well as the father of the plaintiff had given consent. 9. When there is a consent and division has been made and the property was enjoyed, it is needless to say that such enjoyment after death of Mehaboobi became final and by virtue of the consent, the plaintiff was estopped from reopening the said partition. Under these circumstances, no fault can be attributed in respect of the finding given by the Trial Court as well as the First Appellate Court in respect of schedule ‘A’ property. 10. So far as schedule ‘B’ property is concerned, it is a double-barrel gun and since certain documents were available to show its existence, the First Appellate Court granted the - 9 - HC-KAR NC: 2025:KHC-D:15380 RSA No. 100807 of 2014 share. It is not known how the plaintiff and defendant Nos.1 and 2 would divide the said gun. It is advisable that the valuation may be made and if necessary, the same may be sold in auction and the proceeds may be distributed as decreed. As noted by the First Appellate Court, there is no evidence to show that there existed a sword in the form of schedule ‘C’ property. 11. In that view of the matter, the appeal is bereft of any merits and there is no substantial question of law that arise. Hence, the appeal is dismissed. SD/- (C M JOSHI) JUDGE SSP CT.PA LIST NO.. 1 SL NO.. 17