- 1 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5534 OF 2009 (PAR-) BETWEEN: SHRI ILAHI APPALAL KAMATE, AGE: 61 YEARS, OCC: AGRICULTURE, R/O. BEDAKIHAL-591214, TALUK: CHIKODI, DIST: BELGAUM. …APPELLANT (BY SRI. B.S. KAMATE, ADVOCATE) AND: 1. BALASAHEB NARAYAN NAIK, SINCE DECEASED BY LR’S. 1(A) SATISH S/O. BALASAHEB NAYAK, AGE: 36 YEARS, OCC: AGRICULTURE, R/O. GONDAGALLI GALLI, BEDAKIHAL-591214, TALUK: NIPANI, DIST: BELGAUM. 1(B) VINAYAK S/O. BALASAHEB NAYAK, AGE: 34 YEARS, OCC: AGRICULTURE, R/O. LAXMI BANDI MARKET, RAIBAG, TALUK: RAIBAG, DIST: BELGAUM. 1(C) RAJASHREE W/O. SHRIDHAR RENAKE, AGE: 41 YEARS, OCC: HOUSEHOLD, R/O. JAWAR NAGAR, ICHALKARANGI, TALUK: ICHALKARANGI, DIST: KOLHAPUR MAHARASTRA. 1(D) VAISHALI RAVI ATTAK, AGE: 38 YEARS, OCC: HOUSEHOLD, R/O. RAM LAXMAN NIVAS, NEAR LAXMI NARAYAN BOLWAD ROAD, MIRAJ, TALUK: SANGLI, DIST: SANGLI, MAHARASTRA. 2. MAHADEV NARAYAN NAIK, AGE: NIL, OCC: AGRICULTURE, ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 R/O. BEDAKIHAL-591214, TALUK: CHIKODI, DIST: BELGAUM. 3. SALEEM MUSTAFA KAMATE, AGE: 51 YEARS, OCC: AGRICULTURE, R/O. BEDAKIHAL-591214, TALUK: CHIKODI, DIST: BELGAUM. 4. RAJIV MUSTAFA KAMATE, AGE: 46 YEARS, OCC: AGRICULTURE, R/O. BEDAKIHAL-591214, TALUK: CHIKODI, DIST: BELGAUM. 5. KIRUNNA W/O. MUSTAFA KAMATE , AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O. BEDAKIHAL-591214, TALUK: CHIKODI, DIST: BELGAUM. 6. SHAHIDA W/O. SHABBIR GOUNDI , AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O. ICHALKARANJI-416115, TALUK: HATAKANAGAL, DIST: KOLHAPUR. …RESPONDENTS (BY SRI. CHETAN MUNNOLI, ADVOCATE FOR R1(A-D) AND R2; R3-R6 SERVED, UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE IMPUGNED JUDGMENT & DECREE DATED 30-07-2009 PASSED BY THE LEARNED DISTRICT JUDGE FAST TRACK COURT-I, CHIKODI IN R.A.NO.65/2003 AND FURTHER RESTORE THE JUDGMENT AND DECREE DATED 15-09-2003 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C., CHIKODI, IN O.S.NO.367/1993 BY ALLOWING THIS RSA WITH COSTS IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the plaintiff challenging the judgment and decree dated 30.07.2009 in R.A.No.65/2003 on the file of the Fast Track Court-I, Chikodi,1 allowing the appeal and setting aside judgment and decree dated 15.09.2003 in O.S.No.367/1993 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Chikodi2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that, the defendant No.1 is the tenant of the suit property and same was leased by plaintiff No.1 and his cousin – Mustafa on 10.09.1983 for a period of ten years. It is also stated in the plaint that the lease period was expired and as such the plaintiff and wife and children of Mustafa (plaintiffs No.2 to 5 who were transposed as defendant No.3 to 6 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 later), requested the defendants No.1 and 2 to vacate the suit property on payment of arrears of rent. It is also stated in the plaint that the defendants No.1 and 2 have filed O.S.No.43/1993, seeking relief of permanent injunction against the plaintiff and defendants No.3 to 6 and the said suit came to be decreed in favour of defendants No.1 and 2 restraining the plaintiff and defendants No.3 to 6 from interfering with suit schedule property. Hence, O.S.No.367/1993 is filed by the plaintiff seeking 3/4th share in the suit schedule property inter alia for recovery of possession from defendants No.1 and 2. 4. After service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of defendant No.1 that, the annual rent of the premises in question is Rs.1,600/- for a period of ten years and in this regard, the defendant No.1 has paid advance rent of eight years, nearly Rs.12,800/- and thereafter paid Rs.4,400/- as the plaintiff was in need of financial assistance and - 5 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 therefore it is the contention of defendant No.1 that the present suit is filed as a counter blast against the judgment and decree in O.S.No.43/1993 and accordingly sought for dismissal of the suit. 5. During the pendency of the proceedings, the plaintiffs No.2 to 5 were transposed as defendants No.3 to 6. Defendant No.5 has filed written statement and same was adopted by defendants No.3, 4 and 6, wherein it is stated that they have sold their entire extent, i.e. 1/4th share in the suit property in favour of defendant No.1 as per the registered Sale Deed dated 12.11.1997 and therefore, it is the contention of defendants No.3 to 6 that the plaintiff cannot claim relief against these defendants and accordingly prayed for dismissal of the suit. 6. The Trial Court based on the pleadings on record, has framed issues and additional for its consideration. In order to establish their case, the plaintiff has examined 3 witnesses as PW.1 to PW.3 and produced 10 documents and same were marked as Exs.P.1 to P.10. - 6 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 The defendants have examined 3 witnesses as DW.1 to DW.3 and got marked 11 documents as Exs.D.1 to D.11. 7. The Trial Court after considering the material on record, by its judgment and decree dated 15.09.2003 decreed the suit in part, holding that the plaintiff is entitled to recover 3/4th portion of the schedule property from defendant No.1. Feeling aggrieved by the same, the defendants No.1 and 2 have preferred R.A.No.65/2003 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re- appreciating the material on record, by its judgment and decree dated 30.07.2009, allowed the appeal, consequently set aside the judgment and decree in O.S.No.367/1993. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal. 8. I have heard Sri.B.S.Kamate, learned counsel appearing for the appellants and Sri.Chetan Munnoli, learned counsel appearing for the respondents. - 7 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 9. This court vide order dated 13.03.2014 framed the following substantial question of law: i. Whether the lower appellate Court has committed a serious error in upturning the considered judgment of the trial Court holding that no preliminary decree for partition has been passed? 10. Learned counsel appearing for the appellants contended that, the First Appellate Court has committed an error in dismissing the suit in entirety despite the fact that the plaintiff is having 3/4th share in the suit schedule property and therefore sought for interference of this Court. 11. Per contra, learned counsel appearing for the respondents submitted that the relief sought for by the plaintiff, is for recovery of possession of the suit schedule property, however, the Trial Court has gone into the shares of the parties of original propositus - Gajabar. He further submitted that the First Appellate Court after - 8 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 considering the entire material on record, rightly dismissed the suit and same has to be confirmed in this appeal. 12. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below and perused the records. 13. On careful examination of the findings recorded by both the Courts below, originally the suit was filed by the appellants herein and the defendant No.3 to 6 seeking relief of recovery of possession and thereafter the plaintiffs No.2 to 5 were transposed as defendants No.3 to 6 as the defendants No.3 to 6 have sold their share in the suit schedule property in favour of defendant No.1. It is also forthcoming from the records that the amendment was sought by the plaintiff which came to be allowed, seeking relief of partition and separate possession of 3/4th share in the suit schedule property and claim was not only with regard to recovery of possession of 3/4th share and also effecting partition in the suit schedule property. In order to - 9 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 understand the relationship between the parties, the genealogy reads as under: Gajabar Appalal Dawal (1978) Illahi (Plttf) Isaq Mustafa(1988) Khairun(D5) (wife) Saleem Rajeev Shaheeda (D2) (D3) (D6) 14. Perusal of the genealogy would indicate that Gajabar had two children namely Daud and Appalal. Plaintiff is the son of Appalal. Daud had two children Isaq and Mustafa. Defendant No.5 is the wife of Mustafa and defendants No.3, 4 and 6 are the children of Mustafa. It is also not in dispute that the share of the Mustafa i.e. 1/4th share of the suit schedule property was sold in favour of defendant No.1. The plaintiff has purchased the entire share of Isaq and therefore the total extent of the - 10 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 schedule property belonging to the plaintiff is 3/4th of Gajabar and as the defendant No.1 had purchased 1/4th share of the suit property from the family members of Mustafa and therefore the plaintiff is entitled for 3/4th share in the suit schedule property and defendants No.1 and 2 are collectively entitled for 1/4th share in the suit schedule property. 15. In that view of the mater, I find force in the arguments advanced by the learned counsel appearing for the appellants as the Trial Court after considering the material on record including the aspects of amendment in the plaint, rightly decreed the suit and same was misconstrued by the First Appellate Court and has dismissed the suit in entirety without going to the share of the plaintiff in the suit schedule property as the plaintiff has sought for partition and separate possession in respect of his share in the suit schedule property. 16. In the result, the substantial question of law formulated above favours the plaintiff as the First - 11 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 Appellate Court has committed serious error in dismissing the suit of the plaintiff in entirety without considering the amendment of pleadings before the Trial Court. 17. Hence, I pass the following: ORDER i. Appeal is allowed. ii. Judgment and decree dated 30.07.2009 in R.A.No.65/2003 on the file of the Fast Track Court-I, Chikodi is hereby set aside. iii. Judgment and decree dated 15.09.2003 in O.S.No.367/1993 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Chikodi is hereby confirmed. iv. Suit of the plaintiff is decreed holding that the plaintiff is entitled for 3/4th share in the suit schedule property and defendants No.1 and 2 - 12 - NC: 2025:KHC-D:5976 RSA No. 5534 of 2009 together are entitled for 1/4th share in the suit schedule property. v. Registry is directed to draw the preliminary decree accordingly. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 31