Defendant No.3 Reshma Begum has preferred this

appeal challenging the judgment and decree passed in

O.S.No.7138/2005, whereby learned Trial Judge held as

under:

"The suit of the plaintiff is decreed with costs to

the following extent:

It is declared that Judgment and Decree in

O.S.No.3869/1980 on the file of XVIII Addl City Civil

Judge, Bangalore dated 30.10.1984 and proceedings in

F.D.P No.71/95 are not binding on the plaintiffs.

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It is also held that the plaintiffs and defendant

No.6 together are entitled for two shares out of 7/8"

share over the suit property

There shall be a partition and separate possession

of the said share to the plaintiffs and defendant No.6.

The plaintiffs and defendant No.6 may produce

the Judgment and Decree of this case in F.D.P 71/95

and see modification of the decree in the said case.

Draw preliminary decree accordingly."

2.

Brief facts of the case are as under:

A suit came to be filed by Jareena Begum and Maqsood

Ali Khan against Athika and others. The said suit was

seeking for partition of two shares out of 7/8^th shares in the

suit schedule property and to declare the judgment and

decree passed in O.S.No.3869/1980 and Final Decree

Proceedings in No.71/1995 are not binding on the plaintiffs

and also for staying of further proceedings in Final Decree

Proceedings No.75/1995.

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3.

The suit property is immovable property bearing

old No.8 and new No.C-170 in the Corporation ward No.63 of

Sebegalli of Masjid road, Jolly Mohalla, measuring 20'9"X50'.

The property was earlier belonging to Janab Abdul Hafeez

Khan. His wife was Smt. Fatimabi. After death of both, their

children Abdul Nazeer Khan, Bhasheer Ahmed Khan, Abdul

Lateef Khan @ Shazad and Abdul Azeez khan @ Wazir,

succeeded to the said property. Among them, first three

children died and last son Sri. Abdul Nazeer Khan @ Wazir

was made as the fifth defendant in the suit. It is further

stated that Abdul Nazeer Khan, first son of Abdul Hafeez

Khan released out of the family long ago and subsequently

Abdul Hafeez Khan lived with his three children. Basheer

Ahmed khan left behind Smt. Jareena Begum and Maqsood

Ali Khan and sixth defendant Asif Ali Khan. Third son of

Abdul Lateef Khan left behind his widow wife namely; Smt.

Athika who inturn left behind defendant Nos.2 to 4 who are

their children. The property initially belonged to Sri Janab

and Sri Abdul Hafeez Khan and therefore plaintiffs being the

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wife and children of Basheer Ahmed Khan are entitled for

share in the property.

4.

Plaintiffs further contended that in the month of

July 2005, there was a thick rumor in the area that the suit

property is put to public auction and notice in this regard was

circulated in the vicinity of the suit property. When the

plaintiffs came to know that an Advocate has been appointed

as Court commissioner to auction the property. On further

enquiry,

they

came

to

know

about

the

filing

of

O.S.No.3869/1980 before the XVIII Additional City Civil

Judge, Bengaluru for partition against defendant No.5 and

proceedings were conducted only between the defendant

No.5 and the plaintiffs in the said suit. After collecting

necessary documents, they approached the Advocate and

filed the suit in O.S.No.7138/2005 seeking the partition and

also seeking for stay of further proceedings in Final Decree

Proceedings No.71/1995.

5.

After the service of notice of suit summons, all

the defendants remained absent and they were placed

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exparte. Thereafter, the plaintiff No.2 was examined as

P.W.1 and nine documents were marked.

6.

Trial

Court

raised

following

points

in

O.S.No.7138/2005:

"1.

Whether the plaintiffs prove that through Sri.

late Basheer Ahamed Khan they have right

over two shares out of 7/8^th share in the suit

property ?

2.

Whether the plaintiffs prove that judgment

and Decree in O.S.NO.3869/1980 on the file

of XVIII Addl. City Civil Judge, Bangalore and

proceedings in F.D.P.71/95 are not binding

on them ?

3.

What decree or order ?"

7.

After considering the or