- 1 - HC-KAR NC: 2025:KHC-D:15609 RSA No. 5230 of 2012 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 17TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 5230 OF 2012 (PAR) BETWEEN: MOHAMMED ALI S/O. ISMAIL KHAN MUJJAWAR, AGE: 60 YEARS, OCC. TAILOR, R/O. KAKARMATH, ANKOLA, UTTARA KANNADA DISTRICT. …APPELLANT (BY SRI. S.G. KADADAKATTI, ADVOCATE AND SRI. L.V. KATTIMANI, ADVOCATE) AND: 1. MOHAMMED ISMAIL DEAD BY HIS LRS. 1A. MRS. HAFEEZA ISMAIL AGE: 55 YEARS, OCC. HOUSEWIFE, 1B. MR. KHAIYAM KHAN S/O. MOHAMMAD ISMAIL, AGE: 28 YEARS, OCC. BUSINESS, 1C. MRS. JHULEKHA D/O. MOHAMMAD ISMAIL, AGE: 29 YEARS, OCC. HOUSE WIFE, 1D. MR. ABDUL KHADAR S/O. MOHAMMAD ISMAIL, AGE: 25 YEARS, OCC. STUDENT, 1E. MRS. HALEEMA BI D/O. MOHAMMAD ALI, AGE: 30 YEARS, OCC. HOUSEWIFE, ALL ARE R/O. KAKARAMATH, ANKOLA-581314, UTTARA KANNADA DISTRICT. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.19 11:50:09 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15609 RSA No. 5230 of 2012 2. SHABBIR AHAMMED S/O. MOHAMMAD KHAN, AGED ABOUT 41 YEARS, OCC. BUSINESS, R/O. KOTEWADA, ANKOLA-581314, UTTARA KANNADA DISTRICT. 3. ABDULVAHAB S/O. ABDUL RAHAMAN MUJAVAR, AGE: 49 YEARS, OCC. SOCIAL WORKER, R/O. NEAR YELLAPUR BUS STAND, TQ. YELLAPUR, UTTARA KANNADA DISTRICT-581359. 4. RIYAZ S/O. MAYUDDIN MUJAVAR, AGE: 34 YEARS, OCC. DRIVER, R/O. HEGADAKATTA, SIRSI TALUK, UTTARA KANNADA DISTRICT-581401. 5. MUJAMMIL S/O. ABDULLAKHAN MUJJAVAR, AGE: 54 YEARS, OCC. BUSINESS, R/O. ISLAMPUR, ANKOLA, ANKOLA TALUK-581314, UTTARA KANNADA DISTRICT. …RESPONDENTS (BY SRI. SANGRAM S. KULKARNI, ADVOCATE FOR R1(A TO E); SRI. V.P. KULKARNI, ADVOCATE FOR R2 TO R5) THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER XLII OF CPC 1908, PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED 10.09.2008 PASSED BY THE TRIAL COURT CIVIL JUDGE SR.DN. KUMTA IN O.S.NO.43/2007 AND THE JUDGMENT AND DECREE DATED 01.12.2011 OF THE FIRST APPELLATE COURT I.E. THE DISTRICT JUDGE KARWAR, UTTARA KANNADA DISTRICT IN R.A.NO.1/2009 AND DISMISS THE SUIT OF THE PLAINTIFFS IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:15609 RSA No. 5230 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI ) Heard the learned counsel appearing for the respondents. 2. None appears for the appellant. 3. This Court notices that earlier this appeal came to be dismissed on 14.10.2015 and then it was restored to the file of this Court. Thereafter, again it was dismissed on 26.08.2022 and then, it was restored to the file of this Court. Thereafter, in the meanwhile, one of the respondents had died and his legal heirs are brought on record. Today also there is none who is appearing for the appellant. 4. The learned counsel appearing for the respondents brings to the notice of this Court that the appellant who was defendant No.1 before the Trial Court had admitted in paragraph No.3 of his written statement that Faridkhan had two wives and together he had seven sons from Imambi and Hawabi. Before the Trial Court, the alienation made by one of the sons was not accepted since no material was produced to show that he had alienated his share in the property. Later before the First - 4 - HC-KAR NC: 2025:KHC-D:15609 RSA No. 5230 of 2012 Appellate Court, by virtue of an application filed under Order XLI Rule 27 of CPC, the copy of the sale deed was produced and the same was accepted showing the alienation of the share of the seventh son of Faridkhan. Therefore, the First Appellate Court had granted 2/7th share to the plaintiff. 5. Now in the present appeal, the appellant, who is the defendant No.1 before the Trial Court is contending that there is no proof that Hawabi was also one of the wives of Faridkhan. The perusal of the appeal memo shows that it does not consider paragraph No.3 of the written statement where the relationship between the parties is admitted. Therefore, the contention of the appellant appears to be contrary to his own written statement. 6. The appeal memo raises a question of res judicata. It is seen from the records that O.S.No.16/2006 was a suit filed for injunction and it came to be dismissed on the ground that the property is not yet divided and therefore, the injunction against the co-owner cannot be granted. The said suit being one for injunction, the question whether Hawabi was the second wife or not, not being an issue in the said suit, will not operate as res judicata. The question of res judicata was not at all raised before - 5 - HC-KAR NC: 2025:KHC-D:15609 RSA No. 5230 of 2012 the First Appellate Court. Therefore, this Court finds no merit in the appeal and particularly, when the objection to the relationship was not at all raised in the written statement and on the contrary, the relationship was admitted. 7. In that view of the matter, the appeal is bereft of any merits. Hence, the appeal is dismissed at the admission stage itself. SD/- (C M JOSHI) JUDGE SSP CT:PA LIST NO.: 1 SL NO.: 12