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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 25^TH DAY OF JANUARY 2023

PRESENT

THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

AND

THE HON’BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA

REGULAR FIRST APPEAL No.200024/2018

Between:

Azeemshah S/o Late Habib Shah Khan

Age:67 years, Occ: Bonesetter

H.No.7-4-13, Rohilegalli

Bidar-585 401.

…Appellant

(By Sri Amresh S. Roja, Advocate)

And:

1.

Raheman Shah Khan

S/o Late Habib Shah Khan

Age: 57 years,

Occ: Agriculture and Private Service

R/o: H.No.7-4-49, Taskar Road, Rohilegalli

Bidar-585 401

2.

Khursheed Jahan Ara

W/o Yusuf Khan Adil

Age: 67 years,

Occ: House Hold and Agriculture

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R/o: Hyderabad- Andhra Pradesh-500 002

3.

Sabera Begum

W/o Late Syed Safiulla Hussaini

Age: 61 years, Occ: House Hold and Agriculture

R/o: Gulbarga-585 103

4.

Qaiser Jahan Ara W/o Asadulla

Age: 58 years,

Occ: House Hold and Agriculture

R/o: Rohilegalli, Bidar-585 401

5.

Seema Ashra

D/o Late Moizuddin W/o Md. Asif

Age:39 years, Occ: House Hold

R/o: H.No.19-4-145C/115, Ratima Nagar

Vatepalli, Charminar

Hyderabad(A.P)-500 002

6.

Reshma D/o Late Moizuddin

Age:37 years, Occ: House Hold

R/o: Kapalapur

Tq. and Dist: Bidar-585 401

7.

Rizviya D/o Late Moizuddin

Age:35 years, Occ: House Hold

R/o: House of Haji Saheb, Qasai Wada

Rajabagh Road, Bidar-585 401

8.

Azahar Altamas @ Babu

S/o Late Moizuddin

Age: 33 years, Occ: Carpenter

R/o: Mustaidpura Khasai Wada

Bidar-585 401

…Respondents

(By Sri Harshavardhan R. Malipatil, Advocate for

C/R1 to R4;

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Notice to R5 to R8 is Dispensed with V/o dated

19.11.2019 )

This Regular First Appeal is filed under Section 96

read with Order 41 Rule 1 of CPC, praying to set aside the

judgment

and

decree

in

O.S.No.53/2013

dated

01.01.2018, on the file of Additional Senior Civil judge and

CJM at Bidar, by dismissing the suit of the plaintiff, in the

interest of justice.

This appeal coming on for final hearing this day,

Sreenivas Harish Kumar J., delivered the following:

JUDGMENT

This appeal is filed by the first defendant in

O.S.No.53/2013 on the file of the Additional Senior

Civil Judge, Bidar. The substance of the pleadings is

as follows.

2.

Plaintiff no.1 and defendant no.1 are the

sons of Habib Shah Khan. Plaintiff nos.2, 3, 4 and one

Bilqis Jahan are the daughters of Habib Shah Khan.

Since Bilqis Jahan was dead by the time suit was filed,

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her children i.e., defendant nos.2 (a) to (d) were

made parties in the suit.

3.

It is the case of the plaintiffs that three

properties bearing numbers (i) 7-4-40 (old)/7-4-49

(new), (ii) 7-4-11 (old)/7-4-13 (new) and (iii) 7-4-68

(old)/7-4-81

(new)

situate

at

Rohilegalli,

Bidar

described in Schedule-A to the plaint belonged to

Habib Shah Khan. After the death of Habib Shah

Khan in the year 1988, his children succeeded to the

properties as tenants in common. Plaintiff nos.1 and

2 have 2/8^th share each and daughter of Habib Shah

Khan has 1/8^th share each in the said properties. The

plaintiffs requested the first defendant to effect

partition of the said properties, but the first defendant

did not heed to their request and hence they

approached the civil court seeking partition and

separate possession of the properties.

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4.

The first defendant admitted relationship as

has been stated in the plaint and the fact that the said

properties belonged to his father. His specific

contention is that according to the oral gift dated

01.03.1979 made by his father the first item of the

schedule property was given to the share of the first

plaintiff, the second item of the schedule property was

given to the share of first defendant and the third item

was left to the enjoyment of the father and mother till

their lifetime and after their demise the southern side

of the property would go to the first plaintiff and the

northern portion of the said property would go to the

share of the first def