- 1 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 808 OF 2023 (DEC/PAR) BETWEEN: 1. SYED MOHIUDDIN RAZVI SINCE DECEASED REPRESENTED BY HIS LRS MRS. KOUSAR BEGUM W/O LATE SYED MOHIUDDIN RAZVI, AGED ABOUT 55 YEARS, R/AT NO. 217-B, 4TH BLOCK, 57TH CROSS, RAJAJINAGAR, BANGALORE- 10 2. MRS. SYED JAMEELUNISA D/O LATE SYED MOHIUDDIN RAZVI, W/O MOHAMMED IMRAN ALI, AGED ABOUT 39 YEARS, R/AT NO 18, 6TH CROSS ROAD, NANDIDURGA EXTENSION, BANGALORE- 46 3. MRS SYED KHAIRUNISA D/O SYED MOHIUDDIN RAZVI, W/O MOHAMMED TAHER, AGED ABOUT 35 YEARS, R/AT NO 11, 6TH MAIN, 2ND A CROSS ROAD, H V R LAYOUT, GOVINDARAJNAGAR, BANGALORE- 79 4. MRS SYEDA KAREEM UNISA D/O LATE SYED MOHIUDDIN RAZVI, W/O MOHAMMED IBRAHIM, Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 AGED ABOUT 32 YEARS, R/AT NO 35, 2ND FLOOR, WARD NO 45, 13TH A MAIN, MALLESWARAM, BANGALORE- 55 5. SYED GULAM MEHDI RAZVI S/O LATE SYED MOHIUDDIN RAZVI, AGED ABOUT 29 YEARS, C/O KOUSAR BEGUM R/AT NO 217 -B, 4TH BLOCK, 57TH CROSS, RAJAJINAGAR, BANGALORE- 10 6. SYED KHAWAJA MOINUDDIN RAZVI, S/O LATE SYED MOHIUDDIN RAZVI, AGED ABOUT 29 YEARS, C/O KOUSAR BEGUM, R/AT NO 217 -B, 4TH BLOCK, 57TH CROSS, RAJAJINAGAR, BANGALORE- 10 7. MRS. SYED RAHEEM UNISA, D/O LATE SYED MOHIUDDIN RAZVI, AGED ABOUT 24 YEARS, C/O KOUSAR BEGUM, R/AT NO.217-B, 4TH BLOCK, 57TH CROSS, RAJAJINAGAR, BANGALORE-10 …APPELLANTS (BY SRI. KIRAN V RON., ADVOCATE FOR A1 TO A6 SRI. B.S. PRASAD., ADVOCATE FOR A7) AND: 1. SYED HUSSAIN RAZVI S/O LATE SYED GULAM MOHAMMED MEHDI RAZVI, AGED ABOUT 71 YEARS, R/AT NO 686, 3RD MAIN, 3RD CROSS, A BLOCK, - 3 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 SAHAKAR NAGAR, BANGALORE- 92 2. MRS. H. MEHRE JABEEN W/O LATE SYED ALI RAZVI, AGED ABOUT 64 YEARS, R/AT NO 72/73, SECOND PHASE, CLASSIC ORCHARDS, J P NAGAR 8 PHASE, BANNERGHATTA ROAD, BANGALORE- 76 3. FOUZEEN RAZVI D/O LATE SYED ALI RAZVI, W/O MR. MOHAMED YUNUS MECCI, AGED ABOUT 35 YEARS, R/O NO. 72/73, SECOND PHASE, CLASSIC ORCHARDS, J P NAGAR 8TH PHASE BANNEGHATTA ROAD, BANGALORE- 76 4. MRS SAMEERA RAZVI D/O LATE SYED ALI RAZVI, W/O RAHUL MAHAJAN, AGED ABOUT 34 YEARS, R/AT NO G708, GOPALAN GRANDUER, HOODI JUNCTION, BANGALORE -48 5. MS HUSNA RAZVI D/O LATE SYED ALI RAZVI, AGED ABOUT 28 YEARS, R/AT NO 72/73, SECOND PHASE, CLASSIC ORCHARDS, J P NAGAR 8TH PHASE BANNEGHATTA ROAD, BANGALORE- 76 6. SYED ABDULLA RAZVI D/O LATE SYED GULAM MOHAMMED MEHDI RAZVI, AGED ABOUT 59 YEARS, R/AT NO 1489, 20TH MAIN, SECTOR 1, HSR LAYOUT, - 4 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 BANGALORE -102 7. EJAZ FATHIMA D/O LATE SYED GULAM MOHAMMED MEHDI RAZVI, AGED ABOUT 49 YEARS, R/AT NO. 58/2, 1ST FLOOR, BENSON CROSS, BENSON TOWN POST, BANGALORE -46 8. AHMED UNNISSA BEGUM D/O LATE SYED GULAM MOHAMMED MEHDI RAZVI, AGED ABOUT 46 YEARS, R/AT NO 1395, 25TH MAIN, II SECTOR , HSR LAYOUT, BANGALORE-102 9. MRS AYESHA SIDDIQUA W/O LATE AZEEM RAZVI, AGED ABOUT 38 YEARS, R/AT NO 1641, 5TH CROSS, 16TH 'A' MAIN, J P NAGAR 2ND PHASE, BANGALORE- 78 10. MS ALEENA RAZVI D/O LATE AZEEM RAZVI, AGED ABOUT 8 YEARS, R/AT NO 1641, 5TH CROSS, 16TH A MAIN J P NAGAR, 2ND PHASE, BANGALORE- 78 11. MR AYMAN RAZVI S/O LATE AZEEM RAZVI, AGED ABOUT 5 YEARS, R/AT NO 1641, 5TH CROSS, 16TH A MAIN J P NAGAR 2ND PHASE, BANGALORE 78 - 5 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 12. S. G. M. RAZVI S/O LATE SYED USMAN RAZVI, AGED ABOUT 34 YERS, R/AT NO 22, 1ST FLOOR, 3RD CROSS, CAUVERY NAGAR, BANGALORE- 32. 13. MRS SIRAJUNISA BEGUM D/O LATE SYED USMAN RAZVI, AGED ABOUT 33 YERS, R/AT NO 22, 2ND FLOOR, 3RD CROSS, CAUVERY NAGAR, BANGALORE- 32. 14. MRS NOORUNNISA BEGUM D/O LATE SYED USMAN RAZVI, AGED ABOUT 31 YERS, R/AT NO 18/1, 3RD CROSS, 2ND FLOOR, EX-SERVICEMEN COLONY, BANGALORE- 32. 15. SYED HYDER RAZVI S/O LATE GULAM MOHAMMED MEHDI RAZVI, AGED ABOUT 60 YEARS, R/AT NO 217-B, 4TH BLOCK, 57TH CROSS, RAJAJINAGAR, BANGALORE- 10 16. MRS SYEDA SALAMATHUNISA D/O LATE SYED MOHIUDDIN RAZVI, W/O MOHAMMED RAHEEM KHAN, AGED ABOUT 33 YEARS, R/AT NO 10-180, V T NAGAR, GODKONDLA, TELANGANA- 508250 17. MRS SYEDA SALEEMUNISA D/O LATE SYED MOHIUDDIN RAZVI, - 6 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 W/O SYED ZAINUDDIN, AGED ABOUT 28 YEARS, R/AT NO. 11, 2ND FLOOR, AVENUE CURVE ROAD, TASKER TOWN, BANGALORE- 51 …RESPONDENTS (BY SRI. SYED IMRAN., ADVOCATE FOR R1, R6, R7, R12, R13 AND R14, SMT. M. MAMATHA FOR R15, SRI.B.S.PRASAD FOR R16 AND R17, R4 AND R8, R9, R10, R11 ARE SERVED AND UNREPRESENTED, V/O DTD 12.12.24 NOTICE TO R2, R3 AND R5 IS H/S, V/O DTD 18.03.2025, I.A.1/24 FOR TRANSPOSE R18 TO A7) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.10.2021 PASSED IN OS No.4508/2016 ON THE FILE OF THE XVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND DECLARATION AND COUNTER CLAIM IS DISMISSED. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT This appeal is filed by the legal heirs of defendant No.1, assailing the dismissal of the counterclaim filed in O.S.No.4508/2016. - 7 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 2. For the sake of convenience, the parties are referred as per their ranks before the Trial Court. 3. The plaintiffs, being the legal heirs of the late Syed Gulam Mohammed Mehdi Razvi, instituted a suit for partition in O.S.No.4508/2016, asserting that upon the demise of their father, the katha of the suit schedule property was transferred to their mother, Smt. Ikramunisa Begum. It is further pleaded that following her demise on 07.10.2022, and with the consent of all legal heirs, the katha was subsequently transferred to the name of the eldest son, Syed Usman. The plaintiffs have categorically stated in the plaint that they, along with the defendants, are tenants in common and continue to be in joint possession and enjoyment of the suit schedule property. It is further averred that the plaintiffs were under a bona fide belief that defendant No.1 would protect their interest in the property. They have also pleaded that neither the plaintiffs nor the defendants possess exclusive rights over the suit schedule property. - 8 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 4. The plaintiffs, citing differences that emerged amongst the parties, contended that they requested defendants No.1 and 2 to effect partition by metes and bounds and to allot their respective shares. Although there was initial consent from the defendants, they allegedly failed to act upon the request and continued to postpone the same. Consequently, the plaintiffs issued a legal notice dated 23.12.2015, demanding partition of the suit schedule property. In response, defendant No.1 issued a reply notice claiming absolute ownership over the property on the basis of an alleged gift (HIBA) executed by their father in her favour. Left with no alternative, the plaintiffs filed the partition suit in O.S.No.4508/2016. 5. Upon service of summons, defendant No.1 entered appearance and filed a written statement, denying the plaint averments in toto. Defendant No.1 set up a counterclaim, asserting absolute ownership and exclusive possession over the suit schedule property pursuant to a - 9 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 gift deed dated 24.10.1978, allegedly executed by their father, Syed Gulam Mohammed Mehdi Razvi. 6. In view of the rival pleadings, the matter was set down for trial. To establish their claim, the plaintiffs examined plaintiff No.1 as P.W.1 and produced 27 documents, which were marked as Exhibits P-1 to P-27. 7. During the pendency of the suit, the original defendant No.1 passed away and his legal heirs were brought on record. However, despite the subsistence of the counterclaim, the legal heirs of defendant No.1 failed to prosecute the counterclaim. They did not adduce any rebuttal evidence, nor did they produce the gift deed in support of the alleged exclusive title claimed by defendant No.1. 8. In the absence of rebuttal evidence from the side of the defendants, the trial court proceeded to decree the suit in favour of the plaintiffs. Consequently, the counterclaim raised by defendant No.1 was rejected. - 10 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 9. The present appeal is filed assailing the rejection of the counterclaim. Notably, the preliminary decree passed in O.S.No.4508/2016 has not been challenged and remains unassailed. 10. Heard learned counsel for the legal heirs of defendant No.1 and learned counsel for the plaintiffs. Perused the records. 11. The following point would arise for consideration; i. Whether this appeal is maintainable without there being a challenge to the preliminary decree in O.S.No.4508/2016? ii. Whether, in absence of rebuttal evidence, the dismissal decree and counter-claim warrant interference at the hands of this Court? iii. What order? Findings on points No. i and ii: - 11 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 12. The trial court, in the absence of any rebuttal evidence adduced by the legal heirs of defendant No.1, proceeded to answer Issue Nos. 2, 3, and 6 in the negative. While doing so, the trial court categorically held that defendant No.1 and his legal heirs had failed to establish that defendant No.1 was the absolute owner of the suit schedule property. Specifically, while answering Issue No.3, the trial court observed that defendant No.1 had failed to substantiate the claim of a gift made in his favour by his father under a gift deed dated 24.10.1978, particularly in light of the complete absence of supporting evidence. 13. It is well settled that once a counterclaim is raised, it assumes the character of an independent suit and must be independently proved by the party asserting it. Defendant No.1 and, after his demise, his legal heirs being plaintiffs in the counterclaim failed to adduce any evidence to demonstrate exclusive ownership over the suit schedule property. In the absence of such evidence, the - 12 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 trial court was justified in dismissing the counterclaim. Consequently, the present appeal being confined only to the counterclaim and not laying any challenge to the preliminary decree passed in O.S.No.4508/2016 is not maintainable. 14. Although learned counsel for the appellants has sought to contend that the appeal is directed against both the preliminary decree and the dismissal of the counterclaim, this Court is not inclined to accept the said submission. When a composite judgment involves a preliminary decree and a decree on counterclaim, it is incumbent upon the aggrieved party to challenge both decrees independently under Section 96 of the CPC. However, in the present case, the record clearly reflects that the preliminary decree passed in O.S.No.4508/2016 remains unchallenged. The present appeal is confined only to the decree rejecting the counterclaim. In such circumstances, and in the absence of any rebuttal evidence from the legal heirs of defendant No.1, the - 13 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 counterclaim cannot be examined in appeal in absence of challenge to preliminary Decree. The trial court was therefore fully justified in answering Issue Nos. 2, 3, and 6 against the defendants. The findings recorded by the trial court on the rival claims of title and possession cannot be disturbed in the absence of any evidence on record. Accordingly, Points No.1 and 2 are answered in the negative. Findings on point No. iii. 15. In view of the findings on Points No.1 and 2, this Court is of the considered opinion that the appeal is devoid of merit and is liable to be dismissed. As regards the apprehension expressed by the legal heirs of defendant No.1 that their share has not been carved out, the learned counsel for the plaintiffs has clarified that the final decree court has already taken note of this aspect and has recorded an observation that the share of the defendants has in fact been carved out. - 14 - HC-KAR NC: 2025:KHC:26576 RFA No. 808 of 2023 16. In light of the above observations, the regular first appeal stands dismissed. Pending applications, if any, are also disposed off. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE HDK List No.: 1 Sl No.: 5