- 1 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100049 OF 2016 (DEC/INJ-) BETWEEN: 1. SMT.RAMEZA W/O ABDULGANI BAGWAN, SINCE DECEASED BY HER LR’S, ALREADY ON RECORD AS APPELLANT NOS. 2 TO 5. 2. SHRI. ABUTALIB S/O ABDULGANI BAGWAN AGE: 40 YEARS, OCC: AGRICULTURE, 3. SHRI. ASHPAK S/O ABDULGANI BAGWAN AGE: 36 YEARS, OCC: AGRICULTURE, 4. SHRI. ASHRAFFALI S/O ABDULGANI BAGWAN AGE: 34 YEARS, OCC: AGRICULTURE, 5. SHRI. ABDULLA S/O ABDULGANI BAGWAN, AGE: 32 YEARS,OCC: AGRICULTURE, ALL ARE R/O: AZAD GALLI, HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. …APPELLANTS (BY SRI. DINESH M.KULKARNI, ADV FOR A2 & A3, SRIYUTHS. SHARANABASAVARAJ C. & PRAVEEN P. TARIKAR, KUSHAL N.KAMBLE, ADVS FOR A2 TO A5) AND: 1. 1a. 1b. SMT. BIBANBI W/O MOHAMMADGOUSE PATEL SINCE DECEASED BY HER LRS., MOHAMMED MUSTAQ S/O MOHAMMADGOUSE PATEL AGE: 58 YEARS, OCC: BUSINESS, MOHAMMEDSHOIB S/O MOHAMMEDGOUSE PATEL AGE: 58 YEARS, OCC: BUSINESS, BOTH ARE R/O: H.NO.3m, BAZAAR GALLI, KHASBAG, BELAGAVI. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.02 11:02:55 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 2. SMT. SHALAMBI W/O ABDULKHADAR BHADDURBHAI AGE: 70 YEARS, OCC: HOUSEHOLD WORK, R/O: BAZAAR GALLI, HOLSI, BELAGAVI-590003. 3. SMT. RAZIYA WD/O ABDULHASAB BAGWAN, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.3, BAZAAR PETH, KHASBAG, BELAGAVI-590003. 4. SHRI. MOHAMMAD SHAKEEB S/O ABDULHASSAN BAGWAN, AGE: 27 YEARS, OCC: AGRICULTURE, R/O: H.NO.3, BAZAAR PETH, KHASBAG, BELAGAVI-590003. 5. SMT. RUBINA W/O SARFRAZ KAZI AGE: 26 YEARS, OCC: AGRICULTURE, R/O: PANT BALEKUNDARI, ARBI MADRSA, BELAGAVI-591103, SINCE DEAD BY LR’S MOHAMMAD SAAD MOHAMMAD SAFRAZ KAZI, AGE: 10 YEARS, OCC: STUDENT, R/O: H.NO.1680, ALWAN GALLI, SHAHPUR, BELAGAVI-590003, 6. SAZIYA MOHAMMAD SAFRAZ KAZI, AGE: 8 YEARS, OCC: STUDENT, R/O: H.NO.1680, ALWAN GALLI, SHAHPUR, BELAGAVI-590003, 7. MOHAMMAD SIDIQ MOHAMMAD SAFRAZ KAZI AGE: 6 YEARS, OCC: STUDENT, R/O: H.NO.1680, ALWAN GALLI, SHAHPUR, BELAGAVI-590003, RESPONDENT NOS. 5 TO 7 ARE MINORS, R/BY GRAND FATHER TAZEEM KAZI, R/O: H.NO.1680, ALWAN GALLI, SHAHPUR, BELAGAVI-590003. 8. SHRI.AKBAR S/O ABDULKHADAR BAGWAN, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: MOMIN GALLI, HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. - 3 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 9. SHRI.ASKAR S/O ABDULKHADAR BAGWAN AGE: 37 YEARS, OCC: AGRICULTURE, R/O: MOMIN GALLI, HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 10. SHRI. AJIJ S/O ABDULRAZAK BAGWAN AGE: 57 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 11. SHRI. SHIKANDAR S/O ABDULRAZAK BAGWAN, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 12. SHRI. BASHEER S/O ABDULRAZAK BAGWAN AGE: 40 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 13. SHRI. KHALIL S/O ABDULRAZAK BAGWAN AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 14. SHRI. ISAMAIL S/O AMEENSAB BAGWAN, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 15. SHRI. BABULAL @ MOHAMMADFARUQ AMEENSAB BAGWAN, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 16. SHRI. ABDULLATIF W/O AMEENSAB BAGWAN AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 17. SHRI. USMAN S/O AMEENSAB BAGWAN AGE: 40 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. - 4 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 18. SHRI. ABUBAKAR S/O AMEENSAB BAGWAN AGE: 37 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 19. SHRI. IRAFAN S/O AMEENSAB BAGWAN AGE: 32 YEARS, OCC: AGRICULTURE, R/O: HIREBAGEWADI, TAL & DIST: BELAGAVI-591109. 20. 20a. 20b. 20c. 20d. SHRI. ABDUL RAHIM S/O GOUSSAB BAGWAN, SINCE DECEASED BY HIS LR’S., KAMMUNISSA ABDULRAHIM BAGWAN AGE: 66 YEARS, OCC: HOUSEHOLD WORK, AFTAB ABDULRAHIM BAGWAN AGE: 49 YEARS, OCC: AGRICULTURE, TABASSUM D/O. ABDULRAHIM BAGWAN AGE: 46 YEARS, OCC: HOUSEHOLD WORK, TARANUM D/O. ABDULRAHIM BAGWAN AFTER MARRIAGE TARANUM W/O MUBARAK BAGAWAN AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R20(A TO D) ARE R/O: HIREBAGEWADI TQ & DIST. BELAGAVI-591109. 21. SMT. HASANBEE ABDULRASUL GOKAK AGE: 45 YEARS, OCC: AGRICULTURE, R/O: AZAD GALLI, HIREBAGEWADI, TAL & DIST: BELAGAVI. …RESPONDENTS (BY SRI. SANTOSH B. RAWOOT, ADV FOR R2; SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV FOR R3, R4, R8, R9 AND R11 TO R19; SRI. DEEPAK S. KULKARNI, ADV FOR ADV FOR R10; NOTICE TO R1(A & B), R5 TO R7, R20(B), R21 ARE SERVED; NOTICE TO R16, R18, R20(A, C & D) ARE HELD SUFFICIENT) THIS RFA IS FILED U/SEC. 96 R/W ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 21.11.2015 - 5 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 PASSED IN O.S.NO.183/2011 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND CJM, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION, DECLARATION AND PERMANENT INJUNCTION. 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 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Regular First Appeal is filed by the appellants, challenging the Judgment and preliminary decree dated 21.11.2015 passed in O.S.No.183/2011 by the learned II Additional Senior Civil Judge and C.J.M.Belagavi (for short ‘the Trial Court’). 2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellants were defendant Nos.16 to 20, respondent Nos.1 and 2 were plaintiffs and the respondents were the other defendants. - 6 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that one Goussab Imamsab Bagawan was the absolute owner in possession of A and B schedule properties. He died on 26.01.1978. Goussab died leaving behind his six sons and two daughters who are the plaintiffs. Imam Khasim, Abdulkhadar, Abdulrazak, Ameensab, Abdulgani and Abdulrahim are the sons of Goussab Bagwan. The defendant Nos.1 to 3 are the children of Abdulhasan. The defendant Nos.4 and 5 are the children of Abdulkhadar. Defendant Nos.6 to 9 are the legal heirs of Abdulrazak. Defendant Nos.10 to 15 are the legal heirs of Ameensab. Defendant No.16 is the wife of Abdulgani and defendant Nos.17 to 20 are the sons of Abdulgani. It is contended that the plaintiffs and defendants are the Sunni Muslims, as such they are governed by Mohammedan Law regarding succession. After the demise - 7 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 of Goussab, his six sons and two daughters have inherited the suit schedule properties of the late Goussab. The plaintiffs and defendants are co-owners, and tenants in common of the suit schedule properties. There is no partition effected between the plaintiffs and defendants. The plaintiffs demanded partition and separate possession; the defendants refused to effect a partition by stating that there was a prior partition between the sons of Goussab. It is contended that the defendant Nos.16 to 20, who are the widow and children of late Abdulgani, filed a suit in O.S.No.410/2006 against the defendants Nos.2, 21, and the father of defendant Nos.4 and 5 before the III Additional Senior Civil Judge, Belagavi, for a partition and separate possession regarding some of the agricultural lands shown in Schedule-A. It is contended that the said suit was filed on the false ground that there was a family arrangement in the presence of panchas during the lifetime of Goussab and as per the said family arrangement, three sons of Goussab, namely Abdulkhadar, Ameensab and - 8 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 Abdulrazak, were separated by taking their shares in the suit schedule properties, and the remaining three brothers are living together and cultivating the agricultural lands jointly in common. It is contended that the defendant Nos.16 to 20 who are the plaintiffs in O.S.No.410/2006 who sought a partition and separate possession. The plaintiffs herein were not a parties to the said suit and also to the alleged family arrangement. It is contended that FDP No 16/2009 which is filed is still pending consideration. It is contended that the alleged family arrangement is behind the back of plaintiff and the alleged family arrangement and the preliminary decree passed in O.S.No.410/2006 is not binding on the share of the plaintiffs herein. It is contended that the defendant Nos.6 to 15 filed a partition suit against some family members in O.S.No.66/2009 on the file of II Additional Senior Civil Judge, Belagavi, for a partition and separate possession regarding the suit schedule properties. The plaintiffs were not impleaded as a parties in the said suit also. After becoming aware about the pendency of the - 9 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 suit in O.S.No.66/2009, the plaintiffs filed an application to implead themselves as the defendants. The Trial Court allowed the said application and the plaintiffs herein have filed the written statement. However the said suit was dismissed for non prosecution. Hence, it is contended that the plaintiffs are entitled to a share in the suit schedule properties. Hence, prays to decree the suit of the plaintiff. 4. Defendant Nos.1 and 2 filed a joint written statement, whereas defendant No.6 has filed a separate written statement. Defendant Nos.16 to 20 have filed their common written statement and defendant No.22 filed a separate written statement. 5. Defendant Nos.1 and 2 in their written statement admitted the entire case of the plaintiff as pleaded in the plaint and accordingly prayed for carving out their legitimate shares in the suit schedule properties after collecting the necessary Court fee from them. - 10 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 6. Defendant No.6 filed a written statement admitting the genealogy as contended in Schedule-C of the plaint, and denied that after the demise of Goussab Bagwan all his sons and daughters have inherited the suit schedule properties as a tenants in common. Regarding the filing of suit in O.S.No.410/2006, defendant No.6 has pleaded his ignorance for want of knowledge. It is contended that the defendant Nos.4, 7 to 15 by forging the signature of defendant No.6, have filed a suit in O.S.No.66/2009 by impersonating him. However, he has no intention to file any suits much less the suit in O.S.No.6/2009. It is contended that according to defendant No.6, defendant No.22 was holding R.S.No.191/3B totally measuring 4 acres 6 guntas, out of the said area, she sold an area measuring 1 acre 13 guntas to defendant No.6 under a registered sale deed dated 26.12.2008. The name of defendant No.6 was appeared in the revenue records, and he has been in possession of the same as the absolute owner, and it is his self-acquired properties and not inherited from Goussab - 11 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 Bagwan. It is contended by him that his father Abdulrazak had purchased the property in R.S.No.202/2, which is item No.5 of Schedule-A property measuring 3 acres under register the sale deed dated 24.04.1974 from one Nagappa B. Koppad and Abdulrazak had also purchased the remaining area of 1 acre 12 guntas in the said survey number from Nagappa Koppad in 1976. He became the absolute owner of the land to the entire extent of 4 acres 12 guntas in R.S.No.202/2. Subsequently, the said survey number was renumbered as R.S.No.202/2A+2B. It is contended that after the demise of Abdulrazak, defendant Nos.6 to 9 who are the children of Abdulrazak, have entered into partition regarding the said land. As per the partition, the entire land was given to the share of defendant No.6, based on the partition name of defendant No.6 was mutated in the revenue records as and absolute owner. The said property is the self acquired property of defendant No.6. It is contended that item No. 3 at schedule B is also the separate property of Abdul Razak and the - 12 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 same has been allotted to defendant No. 6’s share in the said partiton. Hence, the plaintiffs have no share in the said properties. Hence, prays to dismiss the suit against the defendant No.6. 7. Defendant Nos.16 to 20 filed a joint written statement denying the family genealogy as shown in Schedule-C of the plaint, contending that it is incomplete and incorrect. It is admitted that Goussab Bagawan was the head of the family, and he has six sons. There was a family arrangement in the presence of panchas, and the three sons of Goussab namely Abdulkhadar, Ameensab, and Abdulrazak, had separated long back by taking their shares in the properties of the Goussab. The remaining three sons of the Goussab lived together by cultivating the remaining property jointly in common. It is also contended that the defendant Nos.16 to 20 filed a suit in O.S.No.410/2006 for a partition and separate possession among the three brothers. The said suit was decreed, and now the final decree proceedings is pending in FDP No.16/2009. The - 13 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 plaintiffs are not entitled to a share in the suit properties as of right, in view of the preliminary decree passed in O.S.No.410/2006. As there was already a family arrangement and as the parties are residing separately, the instant suit for partition and separate possession filed by the plaintiff is not maintainable. It is also contended that the suit is bad for the non-joinder of the necessary parties. It is contended that the suit is hit by the principles of res judicata. Hence, prays to dismiss the suit against defendant Nos.16 to 20. 8. Defendant No.22 filed a written statement contending that he is a stranger to the family of the plaintiff and defendant Nos.1 to 21, and he has pleaded ignorance about the genealogy and relationship inter-se between the plaintiffs and defendant Nos.1 o 21. It is contended that defendant No.22 had inherited R.S.No.191/3B totally measuring 4 acres 6 guntas from her parents, and therefore, her name was entered in the revenue records. She had entered into a sale agreement with defendant No.6 - 14 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 regarding 1 acre 13 guntas of land measuring 1 acre 13 guntas in R.S.No.191/3B. Subsequently, she sold the said land in measuring 1 acre 13 guntas in favour of defendant No.6 under the registered sale deed dated 26.12.2008, and handed over the possession of the said extent of land in favour of defendant No.6. Hence, prays to dismiss the suit against defendant No.22. 9. The Trial Court, based on the pleadings of the parties, framed the following issues, and additional issue: ISSUES (1) Do the plaintiffs prove that they along with the defendants are the co-owners of the suit properties as tenants in common? (2) Do the defendant Nos.6 & 22 prove that her mother had acquired title over land in R.S.No. 191/3B and after her death defendant. No.22 alone became the owner of the suit property? (3) Do the defendant Nos.6 & 22 further prove that the defendant No.22 has validly executed a registered sale deed dated 26-12-2008 in favour of defendant No.6 and has put defendant No.6 in possession of the said property? - 15 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 (4) Do the defendant Nos. 16 to 20 prove that in view of lawful decree passed in O.S.No.410/2006, the plaintiffs are not entitled to any share in the suit properties? (5) Do the defendant Nos. 16 to 20 prove that there was a family arrangement earlier in the family between the propositus and his three sons as averred in the written statement? (6) Do the defendant Nos. 16 to 20 prove that the plaintiffs along with defendant Nos.1 to 5 and defendant No.21 have filed a collusive suit to defeat the fruits of decree passed in O.S.No.410/2006 and pending in FDP.No.16/2009? (7) Do the defendant Nos. 16 to 21 prove that the genealogy of the family shown in the suit schedule-C is incomplete, since the date of death of the propositus and other deceased persons are not given? (8) Is the suit bad for non-joinder of necessary parties? (9) Do the plaintiffs prove that the preliminary decree passed in O.S.No.410/2006 and final decree pending in FDP.No.16/2009 on the file of III Addl. Senior Civil Judge, Belagavi is not binding on them and is to be declared as null and void? (10) Are the plaintiffs entitled to any share in the suit properties? If so, to what extent? - 16 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 (11) What order of decree? Addl. Issue (1) Are Defendant Nos.1 & 2 entitled to any share in the suit properties? If so, to what extent and in which of the properties? 10. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1, and marked 20 documents as Ex.P1 to P20. In rebuttal, the defendants, defendant No.6 was examined as DW-1, and marked 7 documents as Ex.D1 to D7. Defendant No.17 was examined as DW-2 and has not produced any documents. 11. The Trial Court, after recording the evidence, hearing both sides, and after assessing the verbal and documentary evidence, answered issue No.1 partly in the affirmative, issue Nos.2,3 and 9 in the affirmative. Issue Nos.4 to 8 in the negative, and additional issue No.1, that defendant No. 1 and 2 are entitled to a 1/6th share together in Sl.Nos.1 to 3 and 6 to 11 of Schedule-A and Sl.Nos.1,2 and 4 of Schedule-B of the plaint, and issue No.10, that the - 17 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 plaintiffs are entitled to a 1/14th share each in Sl.Nos.1 to 3 and 6 to 11 of Schedule-A, and Sl.Nos.1,2 and 4 of Schedule-B of the plaint and issue No.11 as per the final order, the suit of the plaintiff was decreed in part vide judgment dated 21.11.2015. It is declared that the plaintiffs are entitle for partition and separate possession of their 1/14th share each in the landed properties in Sl.Nos.1 to 3 and 6 to 11 of Schedule-A properties, and the house properties at Sl.Nos.1,2 and 4 of Schedule-B of the plaint. It is also ordered, and declared that defendant Nos.1 and 2 are entitled to a partition and separate possession of their 1/6th share together in the aforesaid properties only as a residuary. The suit of the plaintiffs was dismissed in respect of Sl.Nos.4 and 5 of Schedule-A, and house property at Sl.Nos.3 of Schedule-B plaint. Defendant Nos.16 to 20, aggrieved by the Judgment and preliminary decree passed in O.S.No.183/2011, preferred this Regular First Appeal. - 18 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 12. Heard the arguments of the learned counsel for defendant Nos.16 to 20, and the learned counsel for the plaintiffs. 13. Learned counsel for defendant Nos.16 to 20 submits that the suit filed by the plaintiff is barred by limitation, and he submits that the plaintiffs had a knowledge regarding the suit in O.S.No.410/2006 and they have not filed instant the suit within time. Further, he submits that the suit filed by the plaintiffs is barred under Article 110 of the Limitation Act 1963. He also submits that, when the Trial Court has declared that the Judgment and decree passed in O.S.No.410/2006 is null and void, and not binding on the shares of the plaintiffs the Trial Court ought to have granted a share to the other defendants, i.e., defendant Nos.3 to 21, wherein the Trial Court has not granted any share to defendant Nos.3 to 21. He also submits that there was a family arrangement between the sons of Goussab, and the three sons are separated by taking their share after the demise of Goussab. He also - 19 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 submits that when there was a prior partition, the question of filing the suit for partition and separate possession would not arise and the suit would not be maintainable. Hence, he submits that the Trial Court committed an error in passing the impugned Judgment. Hence, on these grounds, he prays to allow the appeal. 14. Per contra, learned counsel for the plaintiffs submits that the suit schedule properties were owned and possessed by Goussab Bagwan, and he died, leaving behind him, six sons and two daughters. The plaintiffs are the daughters, and are entitled to a share in the suit schedule properties. He submits that there was no prior family arrangement as alleged by defendant Nos.16 to 20. He also submits that the plaintiffs were not parties to the alleged family settlement, and also parties O.S.No.410/2006. The Judgment and preliminary decree passed in O.S.No.410/2006 is not binding on the plaintiffs. He submits that the Trial Court, considering the entire evidence on record, has rightly held that defendant Nos.16 - 20 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 to 20 have failed to establish that there was a prior family arrangement between the sons of Goussab Bagwan, and also that the plaintiffs were not parties to the suit in O.S.No.410/2006, and the Judgment and preliminary decree passed in the aforesaid suit is not binding on the share of the plaintiffs. He submits that the Trial Court, has rightly passed the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal. 15. Perused the records, and considered the submissions of the learned counsels of the parties. 16. The points, that would arise for my consideration is this appeal are as follows: (i) Whether defendant Nos.16 to 20 proves that there was a prior family arrangement in between the three sons as averred in the written statement? (ii) Whether defendant Nos.16 to 20 proves that the Judgment and preliminary decree passed - 21 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 in O.S.No.410/2006 is binding on the shares of the plaintiffs ? (iii) Whether defendant Nos.16 to 20 to prove that the Trial Court has committed an error in not granting the share to the other defendant Nos.3 to 21 ? (iv) What order or decree ? 17. Points No.(i) and (ii) :- Points No.(i) and (ii) are interrelated to each other, and are taken together for common discussion to avoid the repetition facts. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1. She deposed that the plaintiffs are the daughters of Goussab Bagwan, and Goussab had six sons. The suit schedule properties were owned and possessed by Goussab Bagwan. After his demise, the plaintiffs and his six sons inherited the suit schedule properties from Goussab. The plaintiffs and defendants are tenants in common, and no partition has been effected - 22 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 between the plaintiffs and defendants. The defendants No. 16 to 20 behind the back of the plaintiffs, filed a suit in O.S.No.410/2006. The said suit was decreed and the FDP is pending consideration. The plaintiffs in O.S.No.410/2006 (i.e., defendant No. 16 to 20) did not array the plaintiffs herein as the defendants in the said suit. The said suit was decreed behind the back of the plaintiffs. The Judgment and preliminary decree passed in O.S.No.410/2006 is not binding on the shares of the plaintiffs. It is contended that defendant No.6 filed asuit in O.S.No.66/2009 and defendant No.6 to 15 did not array the plaintiffs as the parties to the said suit. The plaintiffs filed an application to be impleaded themselves as the defendants. The said application came to be allowed, and the plaintiffs herein were impleaded as defendants. However, the said suit was dismissed for non prosecution. 18. To prove that the suit schedule properties were owned and possessed by Goussab, the plaintiffs have produced the documents. Ex.P1 is the RTC extract of the - 23 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 land bearing Sy.No.199/2, which stands in the name of Bagwan Mohammedsakib Abdulhasan. Ex.P2 is the RTC extract of the land bearing Sy.No.116/5, which stands in the name of Bagawan Imamkashim Goussab and others jointly. Ex.P3 is the RTC extract of the land bearing Sy.No.200, which stands in the name of Itagi Rudrappa Nagappa and Hanchinmani Nagendra. Ex.P4 is the RTC extract of the land bearing Sy.No.191/3b, which stands in the name of the sons of Gokak Hasanabi Abdulrasool. Ex.P6 is the RTC extract of the land bearing Sy.No.202/2A+2B, which stands in the name of Bagawan Abdul Ajiz Abdulrajak. Ex.P7 is the RTC extract of land bearing Sy.No.202/1B, which stands in the name of Bagawan Imamkasim Goussab Ex P8 is the RTC extract of the land bearing S.No.196/5B standing in the name of Bagwan Ismail Ameensab. Ex.P9 is the RTC extract of land bearing Sy.No.196/5A, which stands in the name of Bagwan Ismail Ameensab. Ex.P10 is the RTC extract of land bearing Sy.No.145/1A/1B, which stands in the name of Bagwan - 24 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 Abdulrahim Goussab. Ex.P11 is the RTC extract of the land bearing Sy.No.232/2, which stands in the name of Bagawan Imamkasim Goussab to the extent of 1.17 acres. Ex.P12 is the RTC extract of land bearing Sy.No.275/3, which stands in the name of the sons of Bagwan Moustakahmad Mohammedhanif. Ex.P13 is the Khata extract issued by the Gram Panchayat about to the property bearing No.1227, 1290, 1227/1, 1227/2, and 1227/3, which stands in the name of Bagwan Iamasab. Ex.P14 is the Khata extract of property bearing No.1480, 1537, 1480/A. and 1480 Ex.P15 is the Khata extract of the property bearing No.1382 and 1439. Ex.P16 is the RTC extract of the property bearing No.1423 and 1480. Ex.P17 is the certified copy of the plaint of O.S.No.410/2006, wherein Smt.Rameja and the others filed a suit for partition and separate possession against Mohammad Shakib and others. Ex.P18 is a certified copy of the Judgment passed in O.S.No.410/2006, which discloses that the suit filed by Smt.Rameja and others was decreed vide Judgment dated 26.02.2009. Ex.P19 is a certified copy - 25 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 of the preliminary decree passed in O.S.No.410/2006. Ex.P20 is a certified copy of the petition in the Final Decree Proceedings No.16/2009. 19. During the cross-examination of PW-1, it was suggested that there was a prior family arrangement between the sons of Goussab Imamsab Bagwan. PW1 pleads ignorance to the said suggestion. It was also suggested that, at the instigation of PW-1’s brother, the instant suit was filed knowing about the proceedings in O.S.No.410/2006. The said suggestion was denied by PW- 1l. PW-1 pleaded ignorance about the filing of the suit in O.S.No.66/2009. She also pleaded ignorance that the three brothers, namely Abdulkhadar, Abdulrazak, and Ameensab, were residing separately, and the remaining three brothers, namely Iamakasim, Abdulrahim, and Abdulgani, were residing jointly. She pleaded ignorance that they were residing separately based on a settlement by the Zamat in writing. Nothing worth has been elicited to disbelieve the evidence of PW-1. - 26 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 20. In rebuttal, defendant No.6 was examined as DW-1 and he deposed that the defendant Nos.16 to 20 filed a suit in O.S.No.410/2006 on the file of the learned III Additional Senior Civil Judge, Belagavi and the Final Decree Proceedings is pending in FDP No.16/2009. He deposed that defendant Nos.7 to 15, along with defendant No.6, filed one more suit for partition and separate possession in O.S.No.66/2009 by forging his signature. He had no intention to file a suit in O.S.No.66/2009. To prove the defence of defendant No.6, defendant No.6 marked 7 documents as follows: Ex.D1 is the original registered sale deed dated 26.12.2008; Ex.D2 and D3 are the mutation entries; Ex.D4 to D6 are the RTC extracts; regarding the land in Sy.No.191/3B and Ex.D7 is the VPC extract of the property bearing No.1480/A. 21. During the cross-examination of DW1, he has denied that out of the income yielded by the lands of his grandfather the lands were purchased in the respective names of his sons. It is elicited that his father alone was - 27 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 engaged in agriculture, but the other brothers were engaged different avocations like bakery, batti, etc. He admits that during the lifetime of his grandfather and father, the entire income from agricultural land was being utilized for the family. DW-1 was unable to say as to which property was given to his father’s share in the partition, and he deposed that the partition was reduced in writing and signed by him. It was suggested to him that since there was no partition, he has not produced the partition deed. The said suggestion was denied by him. It was suggested that there was no partition between defendant No.6's father and his other uncle. DW-1 admits that after coming to know about the preliminary decree passed in O.S.No.410/2006, he had not challenged the preliminary decree passed in O.S.No.410/2006. 22. Defendant No.17 was examined as DW-2, who deposed that defendant No.16 is the mother, and defendant Nos.18 to 20 are his brothers. He deposed that the suit schedule properties shown in plaint Schedule-A and B are - 28 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 not properly described with its proper boundaries. He further deposed that Goussab Bagwan had left behind six sons and two daughters, and there was a family arrangement in the presence of panchas, wherein three sons, namely Abdulkhadar, Ameensab, and Abdulrazak, separated by taking their shares. The remaining three brothers live together, and cultivate the properties jointly as tenants in common. Therefore, they filed the suit in O.S.No.410/2006 for a partition and separate possession, and the said suit was decreed and no appeal was filed. The Judgment and preliminary decree passed in O.S.No.410/2006 was in favour of defendant Nos.16 to 20. 23. The plaintiffs are not entitled to a share in the suit schedule properties, in view of the preliminary decree passed in O.S.No.410/2006, and Final Decree Proceedings was filed in FDP No.16/2009. It is also deposed that defendant Nos.6 to 15 filed the suit in O.S.No.66/2009 on the file of II Additional Senior Civil Judge, Belagavi, and in the said suit, the plaintiffs filed an application for - 29 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 impleading themselves as the defendants. The said application was allowed, and they were impleaded as defendant Nos.10 and 11 in O.S.No.66/2009. The said suit came to be dismissed for non-prosecution. It is further deposed that the suit was filed only with an intention to help defendant Nos.1 to 5 and 21, and accordingly prays to dismiss the suit against defendant Nos.16 to 20. 24. During the course of cross-examination, DW-2 admitted that they had filed a suit in O.S.No.410/2006 against Mohammad Shakir, Abdulrahim Goussab Bagwan, and Abdulkhadar Goussab Bagwan. He also admitted that he was plaintiff No.2 in the said suit and had given instructions to the counsel to draft the plaint in O.S.No.410/2006. It was admitted that all the suit properties of this suit were owned and possessed by Goussab Imamsab Bagwan and he had six sons and two daughters. It is admitted that, except for defendant No.21, the other five sons of Goussab Imamsab are no more. The plaintiffs are the daughters of Goussab Bagwan, and after - 30 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 the demise of Goussab, there was a partition between his six sons. It was suggested that no partition was effected between the sons of Goussab Imamsab. The said suggestion was by denied by DW-1. He also admitted that defendant Nos.6 to 15 filed the suit in O.S.No.66/2009 for a partition and separate possession. 25. From the perusal of the record produced by the parties, there is no dispute that the suit schedule properties, i.e., Sl. Nos. 1 to 3 and 6 to 11 of Schedule-A and house property at Sl. Nos. 1, 2, and 4 of Schedule-B of the plaint, were owned and possessed by Goussab Imamsab Bagwan. The plaintiffs and Imamkasim, Abdulkhadar, Abdulrazak, Abdulrahim, Ameensab, and Abdulgani are the sons, and the plaintiffs as the daughters of Goussab Imamsab Bagwan. Further, the defence of defendant Nos.16 to 20 is that there was a family arrangement between the sons of Goussab Imamsab Bagwan. To prove the defence of defendant Nos.16 to 20, except the oral evidence of DW-2, the - 31 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 defendant Nos.16 to 20 have not produced any records to demonstrate that there was a prior family arrangement between the sons of Goussab Imamsab Bagwan. Admittedly, the plaintiffs were not parties to the alleged family arrangement, and further, the sons of Goussab Imamsab Bagwan i.e. Defendant Nos. 16 to 20 filed a suit in O.S.No.410/2006 for a partition and separate possession without arraying the plaintiffs as parties in the said suit. The sons of Goussab Imamsab Bagwan, behind the back of the plaintiffs, obtained the preliminary decree in O.S.No.410/2006. The Judgment and decree passed in O.S.No.410/2006 is not binding on the share of the plaintiffs. It is not the case of the defendants that, based on the alleged prior family settlement, the names of the respective parties were entered in the revenue records. No such records are produced to establish that there was a prior family arrangement. Defendant Nos.16 to 20 have failed to establish that there was a prior family arrangement in the family between Goussab, and his three - 32 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 sons. The Trial Court was justified in answering issue No.5 in the negative. Hence, I do not find any error in the finding recorded by the Trial Court on issue No. 5. 26. Though admittedly, the plaintiffs were not parties in O.S.No.410/2006, the Judgment and preliminary decree passed in O.S.No.410/2006 is not binding on the share of the plaintiffs, and the said collusive decree was obtained to defeat the rights of the plaintiffs. In view of the above discussion, I answer point Nos.(i) and (ii) in the negative. 27. Point No. (iii):– The plaintiffs have filed a suit for partition and separate possession claiming their share in the suit properties. Admittedly, the Trial Court has declared that the Judgment and preliminary decree passed in O.S.No.410/2006 is null and void and not binding on the shares of the plaintiffs. The Trial Court ought to have granted the share to the other defendants. As rightly pointed out by the learned counsel for defendant Nos.16 to 20, the Trial Court has not allotted any share to the - 33 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 defendant Nos.3 to 21. Admittedly, it is a well-settled principle of law that in a suit for partition and separate possession, everybody is a plaintiff. From the perusal of the Judgment passed by the Trial Court, the Trial Court has not granted any share to defendant Nos.3 to 21. The Trial Court has committed an error in not allotting the share to the defendant Nos.3 to 21. In view of the above discussion, I answer point No.(iii) in the affirmative. 28. Point No.(iv):- As I have already discussed above in point Nos.(i) to (iii), in view of the same, I proceed to pass the following rules: ORDER (i) The Appeal is allowed in part. (ii) The Judgment and preliminary decree passed in O.S.No.183/2011 dated 21.11.2015 is, hereby modified. (iii) The suit of the plaintiffs is hereby modified, and it is declared that the plaintiffs are - 34 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 entitled to a 1/14th share each in landed properties in Sl.No.1 to 3 and Sl.No.6 to 11 of Schedule-A and the house property at Sl.No.1, 2 and 4 of Schedule-B of the plaint. (iv) Defendant No.1 is entitled to a 4/7th share in Sl.Nos.1 to 3 and 6 to 11 of Schedule-A. (v) Defendant Nos.1 and 3 each are entitled to a 4/7th share, defendant Nos.2, 4 and 5 each are entitled to a 2/7th share. Defendant Nos.6 to 9 each entitled to a 4/7th share. Defendant No.10 to 15 each are entitled to a 6/7th share. Defendant No.16 is entitled to a 1/56th share. Defendant Nos.17 to 20 each are entitled to a 1/32 share. Defendant No.21 is entitled to a 1/7th share in Sl.No.1 to 3 and 6 to 11 of Schedule-A and house property at Sl.No.1, 2 and 4 of Schedule-B of the plaint properties. (vi) No order as to the costs. - 35 - HC-KAR NC: 2025:KHC-D:9426 RFA No. 100049 of 2016 (vii) In view of disposal of the appeal, the I.A.Nos.1/2016 and 2/2016 do not survive for consideration, and are accordingly, disposed off. (viii) Defendant Nos.16 to 20 are directed to pay the Court fee. (ix) Office is directed to draw preliminary decree. SD/- (ASHOK S. KINAGI) JUDGE RHR/- CT: BSB List No.: 1 Sl No.: 2