- 1 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100246 OF 2019 (PAR) BETWEEN: YASMEENBEGUM, D/O. ABBASALI NADAF YASMEENBEGUM W/O. ALLHABAKSHA NADAF AGE: 52 YEARS, OCC: SERVICE, R/O: BUDHA NAGAR, CHIKKODI, TQ: CHIKKODI, DIST: BELAGAVUM …APPELLANT (BY SRI. RAMACHANDRA MALI, ADVOCATE) AND: 1. FATIMA, W/O. ABBASALI NADAF AGE: 78 YEARS, OCC: PENSIONER, R/O : H.NO. 189/4, BASAVA NAGAR, TQ: GOKAK, DIST: BELAGAVI. 2. ALTAFHUSSEIN, S/O. ABBASALI NADAF, AGE: 46 YEARS, OCC: SERVICE. R/O: H.NO. 189/4,BASAVA NAGAR, TQ: GOKAK, DIST: BELAGAVI. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.02.15 11:34:39 +0530 - 2 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 3. IRFAN S/O. ABBASALI NADAF AGE: 42 YEARS, OCC: SERVICE, R/O: OPPOSITE SANKESHWAR POLICE STATION, OLD POONA-BANGALORE ROAD, SANKESHWAR, TQ: HUKKERI, DIST: BELAGAVI. 4. SHABANAPARVEEN, D/O. ABBASALI NADAF AGE: 44 YEARS, OCC: SERVICE R/O: BAITUL MAL MASJID, DR. PATIL CHOUL, KESHAVAPUR HUBLI TQ: AND DIST: DHARWAD …RESPONDENTS (BY SRI. J.M. KORABU, ADVOCATE FOR C/R1 & R4; SRI. S.H. YADAWAD, ADVOCATE FOR R2 AND R3) THIS RFA IS FILED UNDER SECTION 96 CPC., PRAYING TO ALLOW AND SET ASIDE THE JUDGMENT AND DECREE DATED 14.03.2019 MADE O.S.NO.148/2017 PASSED BY SENIOR CIVIL JUDGE, AND JMFC, RAIBAG AND ETC., THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) Plaintiff has filed this appeal challenging the judgment and decree dated 14.06.2019 in O.S.No.148/2017 passed on the learned Senior Civil Judge, JMFC, Raigad. 2. The plaintiff has prayed for relief of partition and declaration. The trial court dismissed the suit by the impugned judgment. The same has been challenged in the present appeal. 3. We refer the parties as per their ranking before the trial court. 4. Brief facts of the case of both the parties before the trial court are as under: Plaintiff averred in the plaint that one Abbasali was her father and defendant No.1 Fathima B is her mother and from the said wedlock defendant Nos.2 to 4 were born. The suit property was purchased by Abbasali and it - 4 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 is his absolute property. The said Abbas Ali died on 19.07.2009 leaving behind plaintiff and defendants as his heirs to succeed to the property. The parties are governed by Muslim Personal Law. The plaintiff-appellant further averred that on 30.12.2009, defendant No.2 and 3 had taken signatures of the plaintiff on some documents saying that names of the legal heirs of deceased Abbasali has to be entered in the revenue records, for which her signature was required. Out of faith over the defendants she signed on the said papers without reading the contents of the document. 5. The plaintiff has further contended that misusing the said document signed by the plaintiff, it appears that the defendants have created the documents of relinquishment of right over the immovable property and got entered the names of defendant No.1 in the revenue records of suit properties. She further contended that during the year September 2017, defendant Nos.2 and 3 again approached her to sign on some documents - 5 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 and told her that they want to change the khata in respect of house property in the name of defendant No.1 and others. At that time, she suspected the bonafide of defendant No.2 and 3. Therefore, she did not sign on the document. Later on she came to know after obtaining the certified copy of the necessary document that defendants have played fraud on her and obtained her signature on the document, which they have converted as a relinquishment deed. In view of these reasons, she requested defendant No.1 for effecting partition and delivery of her share in the suit properties and defendants refused to effect partition. Therefore, she was constrained to file the suit. With these reasons, she prayed for relief of partition and separate possession of her share in the property belonging to her father. She has also prayed to declare the alleged relinquishment deed dated 30.12.2009 created by defendant as illegal and is not binding on the share of the plaintiff over the suit schedule property. - 6 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 6. Defendant No.1 has filed written statement and it was adopted by the defendant No.2 to 4. Defendants admitted the relationship between the parties. According to contention of defendant No.1 her husband Abbasali was serving as Government servant in Agricultural Department and he was serving as a Teacher in Government Urdu School. From their earnings they purchased agricultural land bearing R.S.No.280/1A measuring 1 acre 2 guntas at Kankanwai Village. Out of love and affection towards her husband, the sale deed was taken in the name of her husband Abbasali. She further stated that to have a residential house, both of them purchased plot No.18 measuring 60x40 feet in the land bearing R.S.No.189/4 in Basava Nagara at Gokak. Though both of them equally paid sale consideration but the sale deed was executed in the name of her husband Abbasali. Therefore, both the properties are not absolute properties of Abbasali. She has further stated that in the said plot No.18, both of them by obtaining loan had constructed the residential house and have been residing in the said house. - 7 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 7. Defendant No.1 further contended that she retained from service prior to death of her husband Abbasali. She herself as well as her husband had given good education to plaintiff as well as defendant No.2 to 4. During December, 2009 in the presence of elders of the family as well as well wishers, family settlement talks were held and plaintiff and defendant No.2 to 4 have agreed to relinquish their right over both the properties standing in the name of Abbasali. In the presence of elders of the family and well wishers, plaintiff and defendant No.2 to 4 agreed to relinquish their right and execute necessary document in this regard. Thereafter, on 30.12.2009, both plaintiff and defendant No.2 to 4 have executed two relinquishment deeds and thereby released their right over the property bearing belonging to Abbasali. By virtue of the said documents, name of defendant No.1 was entered into revenue records. 8. Defendant No.1 further contended that plaintiff is not an illiterate and she is well educated and she has - 8 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 been serving as a teacher in the Government School. Therefore, her contention that she signed on the document without reading the same and she had not executed the said document in the presence of the notary are all false and just to harass the defendant, this suit is filed. With these reasons, defendant No.1 prayed to dismiss the suit with cost. 9. From the rival contentions of the parties, the trial court has framed following issues: 1. Whether the plaintiff proves that, the suit schedule properties are the tenanted and common properties of plaintiff and defendants and there was no partition in between them as on the date of suit? 2. Whether the plaintiff is entitled for partition and separate possession by metes and bounds, if so, what is their share? 3. What judgment ore decree? 10. The plaintiff on her behalf examined herself as PW-1 and her evidence was incomplete. She got marked - 9 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 11 documents as per Exs.P1 to 11 and closed her evidence. Defendant No.1 was examined as DW-1 and she has not got marked any document on her behalf. 11. The trial court after hearing both the parties and by impugned judgment dated 14.03.2019 dismissed the suit. Same is challenged in this appeal on the grounds mentioned in the appeal memo. 12. We have heard the arguments of learned counsel appearing for both the parties. 13. Learned counsel for the appellant would submit that the trial court has not given the reasons for dismissal of the suit. The trial court has not appreciated the oral or documentary evidence led by both the parties. The trial court has highlighted in the impugned judgment that PW- 1 did not offer for cross-examination. In that event, the procedure prescribed under Order IX as well as XVII of CPC, the court should have dismissed the suit for non- prosecution. The relationship was admitted and it was not denied that the suit properties were - 10 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 standing in the name of father of the plaintiff. Therefore, after the death of her father she would get share in the property and all the plaintiffs and defendants will become tenants in common and would get share in accordance with Mohammedan Law. Defendants have not produced documents to prove that plaintiff had relinquished her right over the suit property though the said facts were pleaded in the written statement. Learned counsel further submits that in the cross-examination of DW1, she has admitted the case of the plaintiff when such is the case, the trial court ought to have given an opportunity to plaintiff to tender herself for cross-examination. Therefore, learned counsel for the appellant contends that impugned judgment passed by the trial court is erroneous and prays to set aside the same. 14. Learned counsel for the appellant in the alternative submits that if PW-1 did not offer for cross- examination, then matter shall be remanded to the trial court so that she will keep herself present for cross- - 11 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 examination and after recording her cross-examination, the trial court shall decide the matter in accordance with law. Learned counsel has also stated that right over the suit properties is involved in this case, therefore, instead of deciding the matter on technical grounds, it shall be decided on merits of the matter. Hence, prayed to remand the appeal and restore the original suit. Therefore prayed to allow the appeal and remand the matter to the trial court by restoring the suit so that both the parties will get opportunity to lead their respective evidence, if any, and there after suit would be decided on merits. 15. Learned counsel for respondent submits that the trial court has considered the contentions of the appellant and rightly dismissed the suit assigning the reasons. When plaintiff herself did not offer for cross- examination; her evidence cannot be considered by the trial court and the trial court on merit also decided the matter and dismissed the suit. He further submits that in the event if the matter is to be remanded to the trial court - 12 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 then proper opportunities is to be given to the defendants to cross-examine PW1 and if required lead rebuttal evidence on their behalf. With these reasons, prayed to pass suitable orders. 16. The following points emerges for our determination: i. Whether the procedure followed by learned trial judge to proceed with the matter when PW-1 did not offer for cross-examination and pass the judgment on merits is in accordance with law or not? ii. Whether the learned trial Judge is justified in holding that suit properties were not joint properties of plaintiff and defendants after death of Abbasali and interference in the said findings is required? iii. What Order? POINT No.1: The trial court in the impugned judgment has re- produced pleadings of the parties and evidence of PW-1 - 13 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 and DW-1. The trial court in the impugned judgment at paragraph No.11 passed the following: ORDER “On perusal of the order sheet dated 9.01.2019 reveal that, the PW-1 absent and she has not tender the cross-examination. As per the Mohammedan Law, the defendant No.1 is an absolute owner of the suit properties. Therefore, the plaintiff has no right over the suit properties. The plaintiff has utterly failed to prove that the suit properties are the tenant in common properties of plaintiff and defendant Nos.1 to 4. Therefore, the plaintiff is not entitled relief of partition and separate possession by metes and bounds…”. 18. The trial court has not discussed the evidence of the parties or considered the question of law involved in this case. The trial court has not appreciated the evidence led by both the parties. Therefore, the trial court has not applied its mind while deciding the matter. It is not a speaking order. 19. On going through the order sheet of the trial court, it is not readable. Learned trial Judge while submitting the TCR has not sent typed copy of the order - 14 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 sheet since it was not readable. However, for the benefit of this court, there is an endorsement in paragraph No.11, which is noted above and it is not disputed by appellant- plaintiff during the arguments. It is noted in the above said order that PW-1 did not tender herself for cross- examination by the defendants, it means her evidence is incomplete. When the party to the proceedings were not present on the hearing date or the witness to the party to the proceeding was not present for offering for further evidence or cross-examination, then what is the procedure to be followed is mentioned in Order IX as well as 17 of CPC. 20. Order IX Rule 8 reads as under: “Procedure where defendant only appears- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been - 15 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 admitted, shall dismiss the suit so far as it relates to the remainder.” 21. As per the above said provision, it is very clear that when the plaintiff remained absent or PW-1 on the date of hearing or further proceedings, then the only remedy available to the court is to dismiss the suit for non-prosecution, unless the court intends to adjourn the matter. In this case, on the date of hearing, presence of PW-1 was very much required for the cross-examination by defendant and as per the opinion of the trial judge on the date of the hearing, the PW-1 was not present. When such was the fact, then court instead of proceeding with the matter and deciding it on merits, would have dismissed the suit as per Rule IXA of CPC unless trial court deemed it fit to adjourn the matter for some future date and it could not have proceeded with the matter and pass the judgment. The procedure followed by the trial court is erroneous and contrary to the provisions of Order IX Rule 8 of CPC. - 16 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 22. There is no speaking order and there is no appreciation on oral or documentary evidence produced by the parties and in addition to that, procedures followed by the trial court to proceed with the matter in the absence when PW-1 did not offer for cross-examination is also erroneous. In view of these reasons, the matter needs to be remanded to the trial court for re- consideration of the matter afresh. For the aforesaid reasons, we answer point No.1 in the affirmative and we have not considered point No.2 since the matter needs to be remanded to trial court for re-consideration. 23. For the aforesaid discussions, we pass the following: ORDER The appeal is allowed. The impugned judgment dated 14.03.2019 passed in O.S.No.148/2017 by the learned - 17 - NC: 2025:KHC-D:2509-DB RFA No. 100246 of 2019 Senior Civil Judge & JMFC, Raibag is hereby set aside. The suit is restored. The trial court is directed to permit the defendant to cross-examine PW-1 and thereafter pass appropriate judgment in accordance with law after hearing both the parties. Parties are directed to appear before the trial court on 03.03.2025 without awaiting any further notice. All the contentions of the parties are kept open. Office is directed to transmit the records to the trial court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE AG LIST NO.: 1 SL NO.: 24