- 1 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 9TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 100163 OF 2025 (FDP) BETWEEN: SHRI. ABDUL QAYYUM @ GAYYUM S/O. MOHAMMED HUSSAIN JAMADAR, AGE: 72 YEARS, OCC. BUSINESS, R/O. HOUSE NO.3856/A, KOTWAL GALLI, BELAGAVI-590001. …APPELLANT (BY SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: 1. SHRI RIYAZ AHAMED MOHAMMED HUSSAIN JAMADAR, AGE: 62 YEARS, OCC. BUSINESS, R/O. HOUSE NO 3856/A, KOTWAL GALLI, BELAGAVI – 590001. FATIMABAI W/O. MOHD HUSSAIN JAMADAR, SINCE DECEASED BY HER LRS. 2. SHRI ABDUL RASHID MOHAMMED HUSSAIN JAMADAR, AGE: 74 YEARS, OCC. BUSINESS, R/O. PLOT NO 1897, SECTOR NO.9, ANJANEYA NAGAR, M. M. EXTENSION, BELAGAVI – 590016. 3. SHRI IRSHADAHMED MOHAMMED HUSSAIN JAMADAR AGE: 64 YEARS, OCC. BUSINESS, R/O. KADDAMMA NAGAR, OPP. STADIUM GROUND, TALUKA: YALLAPUR, DIST. KARWAR. 4. SHRI HAFIZUR REHMAN YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.15 11:28:03 +0530 - 2 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 S/O. MOHAMMED HUSSAIN JAMADAR, AGED ABOUT 60 YEARS, OCC. BUSINESS, R/O. NO. 5, ABHISHEK APARTMENT, KARYAPPA COLONY, NANAWADI ROAD, NEAR FUJI MASJID, BELAGAVI. SHRI MEHMOOD S/O. MOHAMMES HUSSAIN JAMADAR, SINCE DECEASED BY HIS LRS., 5. MRS. FARIDA W/O. MEHAMOODUL HASAN JAMADAR, AGE: 66 YEARS, OCC. PVT. SERVICE, R/O. PLOT NO. 1674, SECTOR 8, ANJANEY NAGAR, M.M. EXTENSION, BELAGAVI-590016. 6. MR. IMDADULLA S/O. MEHAMPOODUL HASAN JAMADAR, AGE: 38 YEARS, OCC. SERVICE, R/O. PLOT NO. 1674, SECTOR 8, ANJANEY NAGAR, M.M. EXTENSION, BELAGAVI-590016. SMT. HALIMABI M. BELAWADI SINCE DECEASED BY HER LRS., 7. MR. ABDULSATTAR M. BELAWADI, AGE: 80 YEARS, OCC. RETIRED, R/O. 1547 (CTS 6169), ANJANEYA NAGAR, M.M. EXTENSION, BELAGAVI-590016. 8. MR. SHABBIRAHEMAD S/O. ABDULSATTAR BELAWADI, AGE: 55 YEARS, OCC. BUSINESS, R/O. 1547 (CTS 6169), ANJANEYA NAGAR, M.M. EXTENSION, BELAGAVI-590016. 9. MR. ZUBAIRAHEMAD S/O. ABDULSATTAR BELAWADI, AGE: 49 YEARS, OCC. BUSINESS, R/O. PLOT NO. 3060, RAMTIRTH NAGAR, BELAGAVI-590016. - 3 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 10. MRS. SALMA W/O. GOUSMOUDDIN SHEAK, AGE: 45 YEARS, OCC. HOUSEHOLD WORK, R/O. H NO. 745, PLOT NO. 45, 2ND CROSS, SUBHASH NAGAR, BELAGAVI-590016. 11. MRS. AIYSHA W/O MOHAMMADRAFIQ KITTUR, AGE: 42 YEARS, OCC. HOUSEHOLD WORK, R/O. PLOT NO. 3048, RAMTIRTH NAGAR, BELAGAVI-590016. 12. SHRI SAEED AHAMED S/O. MOHAMMED HUSSAIN JAMADAR, AGED ABOUT 68 YEARS, OCC. PVT. SERVICE, R/O. PLOT NO. 35, SECTOR NO. 12, NEAR KHUSRO MASJID, MAHANTESH NAGAR, BELAGAVI-590016. …RESPONDENTS (BY SRI. SADYOJAT R. BALIGATTIMATH, ADVOCATE FOR R1 TO R12) This RSA is FILED UNDER SECTION 100 READ WITH ORDER XLII RULE I OF CPC., PRAYING TO a. CALL FOR THE RECORDS, b. SET ASIDE BEING AGGRIEVED BY THE JUDGMENT AND DECREE PASSED BY THE VII ADDL. DISTRICT JUDGE, BELGAVI IN RA NO.63/2021 DATED 26.10.2024 BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.08.2021 PASSED IN FDP NO.24/2011 BY THE III ADDL. CIVIL JUDGE AND CJM, BELAGAVI AND ALLOW THE APPEAL WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS MADE THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Being aggrieved by the judgment and decree dated 26.10.2024 in R.A.No.63/2021 passed by the VIII Additional District and Sessions Judge, Belagavi the appellant is before this Court. 2. On issuance of notice by this Court, the respondents have appeared through their counsel. 3. The submissions of learned counsel appearing for the appellant and the respondents were heard. 4. The only issue raised in this appeal is that while dividing the property by metes and bounds and allotting shares, the Court Commissioner has allotted share in favour of Fatimabi, the petitioner No.2 before the Trial Court, who was the mother of the parties and she had passed away on 05.04.2019. The learned counsel appearing for the appellant submits that since the said share is erroneously allotted, what required in this matter is, readjustment of shares to the parties. - 5 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 5. The factual background as may be noted from the impugned judgment as well as the final decree passed by the Trial Court is that one Mohammad Hussain S/o. Faridsaheb Jamadar expired on 27.11.1988 leaving behind him the plaintiffs and defendants as his legal heirs. The plaintiffs and the defendants, are the legal heirs of the said Mohammad Hussain Faridsaheb Jamadar and they have succeeded to the suit schedule property and there was no partition by metes and bounds. Therefore, they filed a suit in O.S.No.313/2005 wherein the Court held that the plaintiff No.1 and 3 to 6 and defendant No.1 and 2 are entitled for 14/20th share each in the suit schedule property whereas the plaintiff No.2, being the wife of said Mohammad Hussain Faridsaheb Jamadar is entitled for 1/8th share. The plaintiff No.7, being the daughter of the said Mohammad Hussain Faridsaheb Jamadar is entitled for 7/120th share in the suit schedule property. 6. The defendants had challenged the judgment and decree in R.A.No.15/2008, which came to be dismissed on 01.02.2011 and as such, the judgment and decree passed has become final. After institution of the final decree proceedings, Court Commissioner was appointed to submit a proposal for the - 6 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 partition by metes and bounds. During the pendency of this petition, the petitioner No.2 [plaintiff No.2] died and her 1/8th share was again divided among her children i.e., petitioner No.1 and 3 to 6 and respondent No.1 and 2. Again the Court Commissioner was appointed to divide the same as per the additional preliminary decree, which was drawn as per the order dated 04.01.2020. After receiving the proposal for partition by the Court Commissioner, objections were filed and after hearing, the Trial Court accepted the Commissioner Report and passed the final decree as per order dated 27.08.2021 in FDP No.24/2011. In paragraph 10 of the order while directing for drawing up of final decree, the Trial Court observes as below: “10. Point No.1: No doubt, in the preliminary decree this court has awarded 16/120th share to the petitioners No.1, 3 to 6 and respondent No.1 and 2 each, 8/120th share is entitled to petitioner No.7. However, during the pendency of the case, the petitioner No.2 has died. So, her 1/8th share again distributed to her legal heirs. Therefore, the petitioners No.1, 3 to 6 and respondents No. 1 and 2 are entitled 16/120th share each. Accordingly, the Court Commissioner has divided the suit property and made proposal in the report. As discussed above the counsel for petitioners - 7 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 submitted no objections to receive the commissioner's report. Inspite of sufficient opportunity given to the respondents they did not file objections. Therefore, I have no reasons to discard the claim of the petitioners. Accordingly, I answer point No.1 in the Affirmative.” 7. It is pertinent to note that the Trial Court noticed that the share of the plaintiff No.2 to the extent of 1/8th share has to be distributed among other legal heirs. After observing so, in the operative portion of the order, it orders as below: “The portion shown as "VIII" in the Court Commissioner's Report is allotted to the share of petitioner No.2.” 8. Obviously, when it has noticed that 1/8th share of the plaintiff No.2 has to be distributed among the petitioner No.1, 3 to 6 and respondent No.1 and 2, the portion shown as “VIII” could not have been allotted to the petitioner No.2, who was no more. It is pertinent to note that the petitioner No.2-Fatimabi was no more. Though the error is apparent on the face of the record, The First Appellate Court has confirmed the impugned order mechanically and it has not bestowed its attention to the operative portion of the order of the Trial Court, where it grants - 8 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 the portion shown as “VIII” to deceased-Fathimabi in the report of the Court Commissioner. Therefore, the First Appellate Court has also not bestowed its attention on this error and has confirmed the impugned order. In that view of the matter, the appeal succeeds. Hence, the following: ORDER i. The impugned judgment and decree dated 26.10.2024 passed in R.A.No.63/2021 by the VIII Additional District Judge Belagavi and the judgment and decree dated 27.08.2021 passed in FDP No.24/2011 by the III Additional Senior Civil Judge and CJM, Belagavi are hereby set aside. ii. The matter is remanded back to the III-Additional Senior Civil Judge, Belagavi to obtain report of the Court Commissioner after amalgamating the share of petitioner No.2 amongst her legal heirs as per the extant personal law of the parties. The portion shown as ‘VIII’ in the Court Commissioner Report, which came to be allotted to the petitioner No.2 has to be amalgamated among - 9 - HC-KAR NC: 2025:KHC-D:13689 RSA No. 100163 of 2025 the share holders and accordingly, a fresh proposal for partition has to be prepared by the Court Commissioner and the same has to be considered by the Trial Court. iii. The Trial Court is directed to expeditiously dispose off the final decree proceedings by requesting the Court Commissioner to give a fresh proposal as expeditiously as possible. iv. Both the parties are directed to appear before the III-Additional Senior Civil Judge and CJM, Belagavi on 10.11.2025 without awaiting further notice by the said Court. v. Registry is directed to send a copy of this judgment immediately to the Trial Court by post and e-mail. SD/- (C M JOSHI) JUDGE YAN CT:PA List No.: 1 Sl No.: 54