- 1 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100887 OF 2023 (PAR/DEC-) BETWEEN: 1. MAHAMMEDSHAFI S/O. HUSENSAB BUDIHAL, AGE.: 45 YEARS, OCC.: AGRICULTURE, R/O.: KATAGAR ONI, DAMBAL, TQ.: GADAG-582113. 2. MEHABOOB S/O. HUSENSAB BUDIHAL, AGE.: 43 YEARS, OCC.: AGRICULTURE, R/O.: KATAGAR ONI, DAMBAL, TQ.: GADAG-582113. 3. MEHRUNBI W/O. MAHAMMEDSAFI MULAGUND, AGE.: 41 YEARS, OCC.: HOUSEHOLD, R/O.: KURATTIPETHA, BETAGERI, TQ.: GADAG-582102. 4. YASMEENBANU W/O. AKBAR CHOUTAI, AGE.: 39 YEARS, OCC.: HOUSEHOLD, R/O.: KANAMANGARADI, GADAG. TQ.: GADAG-582102. …APPELLANT (BY SRI. MAQBOOLAHAMED M. PATIL, ADVOCATE) MANJANNA E Digitally signed by MANJANNA E Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.01 11:43:10 +0530 - 2 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 AND: 1. SMT. ASHABI W/O. HUSENSAB BUDIHAL, AGE: 50 YEARS, OCC: AGRICULTURE, R/O. KATAGAR ONI, DAMABL, TQ.: AND DIST:GADAG-582113. 2. MAKTUMALI S/O. HUSENSAB BUDIHAL, AGE: 52 YEARS, OCC: AGRICULTURE, R/O. KATAGAR ONI, DAMABL, TQ.: AND DIST:GADAG-582113 3. MAHAMMADRAFI S/O. HUSENSAB BUDIHAL, AGE: 50 YEARS, OCC:AGRICULTURE, R/O. KATAGAR ONI, DAMABL, TQ.: AND DIST:GADAG-582113. 4. SMT. SHAKINABANU W/O. MURTUJASAB BUDIHAL, AGE: 78 YEARS OCC: HOUSEHOLD WORK, R/O.: MIG II, 124, HUDCO COLONY, TQ.: AND DIST:GADAG-582103. 5. MAKTUMSAB S/O. MURTUJASAB BUDIHAL, AGE: 56 YEARS, OCC: SERVICE, R/O.: MIG II, 124, HUDCO COLONY, TQ.: AND DIST:GADAG-582103. 6. SHRI. MAHAMMEDSHAFI S/O. MURTUJASAB BUDIHAL, AGE: 53 YEARS, OCC: PRIVATE SERVICE, R/O.: MIG II, 124, HUDCO COLONY, TQ.: AND DIST:GADAG-582103. 7. MEHABOOBALI S/O. MURUTUJASAB BUDIHAL, AGE: 51 YEARS, OCC: PRIVATE SERVICE, R/O.: MIG II, 124, HUDCO COLONY, TQ.: AND DIST:GADAG-582103. 8. MAHAMMADHANIF S/O. MURUTUJASAB BUDIHAL, AGE: 50 YEARS, OCC: PRIVATE SERVICE, R/O.: MIG II, 124, HUDCO COLONY, TQ.: AND DIST:GADAG-582103. - 3 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 9. KHUTIJA D/O MURTUJASAB BUDIHAL, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O.: MIG II, 124, HUDCO COLONY, TQ.: AND DIST:GADAG-582103. 10. SHABANA D/O. MURTUJASAB BUDIHAL, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O.: MIG II, 124, HUDCO COLONY, TQ.: AND DIST:GADAG-582103. 11. SMT. GANGAVVA W/O BASAPPA ALAWANDI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O.: PETA-ALUR VILLAGE, TQ: MUNDARGI, DIST: GADAG-582113. 12. SMT. TIPPAVVA W/O RAMANNA BHAJANTRI, AGE: 54 YEARS, OCC: HOUSEHOLD WORK , R/O.: PETA-ALUR VILLAGE, TQ: MUNDARGI, DIST: GADAG-582113. 13. SMT. MANJAVVA W/O DEVAPPA SAVANUR, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O.: PETA-ALUR VILLAGE, TQ: MUNDARGI, DIST: GADAG-582113. 14. SMT. HULAGAVVA W/O LAXMAPPA SAVANUR, AGE: 48 YEARS OCC: HOUSEHOLD WORK, R/O.: PETA-ALUR VILLAGE, TQ: MUNDARGI, DIST: GADAG-582113. 15. DEVAKKA W/O YALLAPPA BHAJANTRI AGE. 51 YEARS, OCC HOUSEHOLD WORK R/O ETA-ALUR VILLAGE, TQ. MUNDARGI, DIST. GADAG-582113 …RESPONDENTS (R1-SERVED UNREPRESENTED; R2 TO R10 – HELD SUFFICIENT; SRI. H. N. GULARADDI AND SRI.YALAGI KAVYA SHIVAPPA, ADVOCATE FOR R11 TO R15) -------- - 4 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 THIS RSA FILED U/SEC.100 OF CPC, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 22.06.2023 PASSED IN R.A.NO.09/2021 PASSED BY THE HON’BLE I ADDL. PRL. JUDGE, FAMILY COURT, AT. GADAG AND SET ASIDE THE JUDGMENT AND DECREE DATED 18.12.2020 OF THE HON’BLE SENIOR CIVIL JUDGE, MUNDARGI PASSED IN O.S.NO.117/2015 AND CONSEQUENTLY, DECREE THE SUIT OF THE PLAINTIFFS AND ALL COST OF THIS APPEAL. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the plaintiffs challenging the judgment and decree dated 22.06.2023 in R.A.No.9/2021 on the file of the I-Additional Principal Judge, Family Court, Gadag (for short “First Appellate Court”) confirming the judgment and decree dated 18.12.2020 in O.S.No.117/2015 on the file of the Senior Civil Judge, Mundaragi (for short “the Trial Court”) dismissing the suit of the plaintiffs. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiffs that the plaintiff No.1 to 4 are the children of deceased-Hussainsab Budihal, defendant No.1 is the mother of the plaintiffs, defendant No.2 and 3 are the brothers of the plaintiffs, defendant No.4 is the - 5 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 wife of Murtajasab (brother of Hussainsab) and defendant No.5 to 10 are the children of defendant No.4 and Murtajasab. It is the case of the plaintiffs that the land in question is an ‘Inam’ land and was granted to Hussainsab (father of the plaintiffs) on 01.11.1958 and the portion of the land has been granted to their uncle-Murtajasab. It is stated that the Hussainsab died on 12.12.1989 and therefore, the revenue records transferred into the name of defendant No.1 to 3. It is also stated that the uncle of the plaintiffs (Murtajasab) has filed a suit in O.S.No.382/1990 seeking declaration and injunction in respect of the subject matter of the land and the said suit came to be decreed on 07.04.1993 declaring that the said Murtajasab is the absolute owner in possession of the subject matter of the suit and therefore, it is the case of the plaintiffs that the said suit in O.S.No.382/1990 is a collusive suit filed by the uncle of the plaintiffs herein and accordingly, the plaintiffs filed O.S.No.117/2015 seeking relief of partition and separate possession in respect of the subject mater of the land. 3.1. On service of notice, defendant No.1 to 10 did not appear before the Trial Court and accordingly, they have been placed ex- parte. Defendant No. 11 to 15 have appeared before - 6 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 the Trial Court and filed written statement denying the averment made in the plaint. 3.2. It is the case of the defendant No.11 to 15 that the Murtajasab has become owner of the land in question pursuant to the judgment and decree in O.S.No.382/1990 and accordingly, sought for dismissal of the suit. 3.3. The Trial Court based on the pleadings of the parties, framed issues for its consideration. In order to establish their case, the plaintiffs have examined three witnesses as PW1 to PW3 and produced 50 documents and same were marked as Ex.P1 to Ex.P50. The defendants have not examined any witness nor produced any documents. 3.4. The Trial Court, after considering the material on record, by its judgment and decree dated 18.12.2020 dismissed the suit and feeling aggrieved by the same, the plaintiffs have preferred R.A.No.9/2021 before the First Appellate Court and the appeal was resisted by the defendants. The First Appellate Court, after considering the material on record, by its judgment and decree dated 22.06.2023 dismissed the appeal consequently confirmed the judgment and - 7 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 decree passed in O.S.No.117/2015 and feeling aggrieved by the same, the plaintiffs have preferred this Regular Second Appeal. 4. I have heard Sri. Maqboolahmed M Patil, learned counsel appearing for the appellants and Miss. Yalagi Kavya Shivappa, learned counsel appearing for the respondents. 5. It is the contention of the learned counsel appearing for the appellants that both the Courts below have not considered the factual aspects on record as the Murtajasab has filed O.S.No.382/1990, which is a collusive suit to knock off the property in question and the said aspect has not been considered by both the Courts below. Accordingly, he sought for interference of this Court. It is also submission of the learned counsel appearing for the appellants that a stray admission of PW1 has been considered by both the Courts below and the said aspect has to be interfered with in this appeal. 6. Per contra, learned counsel appearing for the respondents submitted that since the suit in O.S.No.117/2015 is hit by res-judicata as the right of the parties have been - 8 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 crystallized in O.S.No.382/1990 and therefore, sought for dismissal of the appeal. 7. In the light of the submission of the learned counsel appearing for the parties and taking into consideration the relationship between the parties is not in dispute, however, in order to understand the relationship between the parties for adjudication of the appeal is concerned, the genealogy tree is reproduced as under: Muktumsab Budihal Hussainsab Murtujasab (died on 12.12.1989) (Died leaving behind wife Leaving behind wife Ashabi (D1) Smt.Shakinabanu (D4) Muktum Mahammed Mohammed Mehaboob Mehrunbi Yasmeenbanu Ali (D2) Rafi (D3) Shafi (P1) Ali (P2) (P3) (P4) Maktumsab Mohammed Mehaboob Mohammed Khutija Shabana (D5) Shafi (D6) Ali (D7) Hanif (D8) (D9) (D10) 8. Perusal of the genealogy tree would indicate that Hussainsab (father of the plaintiffs) and Murtajasab (father of the defendant No.5 to 10) are the brothers. It is also forthcoming from the finding recorded by both the Courts below - 9 - NC: 2025:KHC-D:1729 RSA No. 100887 of 2023 that the subject matter of the suit in O.S.No.117/2015 was the subject matter in O.S.No.382/1990 filed by Murtajasab seeking relief of declaration in respect of subject matter, which came to be decreed on 07.04.1992 and undoubtedly the plaintiffs herein are the parties in the said proceedings. In that view of the matter, taking into consideration the finding recorded by the Trial Court on Issue No.3 is concerned, I am of the view that, no interference is called for in this appeal as the rights of the parties have been crystallized in O.S.No.382/1990 and same reached finality. Hence, I do not find any merit in the appeal. Accordingly, the appeal is dismissed at the stage of admission itself, as there is no need for formulation of substantial question of law under Section 100 of the Code of Civil Procedure, 1908. 9. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT:ANB List No.: 1 Sl No.: 28