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2022 Supreme(Online)(Kar) 30620
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 08TH DAY OF FEBRUARY, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5055/2013 (INJ)
BETWEEN
SHRI NAZEERSAB
MAKTUMSAB AZMATKHAN,
AGE: 61 YEARS, OCC: BUSINESS,
R/O HOSATEGUR,
DHARWAD-581001.
… APPELLANT
(BY SRI S.G.KADADAKATTI, ADV.)
AND
1.
BABAJAN
MAKTUMSAB AZMATHKHAN
AGE: 61 YEARS, OCC: BUSINESS,
R/O. HOSATEGUR,
DHARWAD TQ. & DIST.581001.
2.
SMT.JULEKHABI
W/O. GOUSEMODDIN AZAMATHKHAN
AGE: MAJOR, OCC: COOLIE,
R/O. HOSATEGUR,
DHARWAD TQ. & DIST.581001.
3.
SHRI BABUSAB
GOUSEMODDIN AZAMATHKHAN
AGE: MAJOR, OCC: COOLIE,
R/O. HOSATEGUR,
DHARWAD TQ. & DIST.581001.
4.
MAHAMMODRAFIQ
GOUSEMODDIN AZAMATKHAN
AGE: MAJOR, OCC: COOLIE,
R/O. HOSATEGUR,
2
DHARWAD TQ. & DIST.-581001.
5.
HAJARATHAJI
GOUSEMODDIN AZAMATHKHAN
AGE: MAJOR, OCC: COOLIE
R/O. HOSATEGUR,
DHARWAD TQ. & DIST.581001.
6.
HABIBSAB
GOUSEMODDIN AZAMATHKHAN
AGE: MAJOR, OCC: COOLIE,
R/O. HOSATEGUR,
DHARWAD TQ. & DIST.-581001.
7.
SMT.AMINA
W/O. NANNESAB DAVALANAVAR
AGE: MAJOR, OCC: COOLIE,
R/O. HOSATEGUR,
DHARWAD TQ. & DIST.-581001.
8.
SMT.MAHABOOBI
W/O. MAKTUMSAB DALENNAVAR
AGE: MAJOR, OCC: COOLIE,
R/O GULEDKOPPA,
DHARWAD TQ. & DIST.581001.
...RESPONDENTS
(BY SRI V.N.BHANDIWAD, ADV. FOR R.2, R3, R5, & R6.)
(NOTICE TO RESPONDENT NOS.1 & 4 : HELD SUFFICIENT.)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 20.04.2012 PASSED
IN R.A.NO.157/2006 BY LEARNED III ADDL. SR.CIVIL JUDGE,
DHARWAD BY CONFIRMING THE JUDGMENT AND DECREE
DATED 11.10.2006 PASSED IN O.S.NO.267/2004 BY THE
LEARNED II ADDL. CIVIL JUDGE (JR.DN.) & JMFC AND DECREE
THE SUIT OF APPELLANT/PLAINTIFF AS PRAYED FOR BY
ALLOWING HE APPEAL IN THE ENDS OF JUSTICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
The captioned regular second appeal is filed by
unsuccessful plaintiff whose suit for partition and
permanent injunction claiming sharwe in the property
bearing VPC.No.408 was dismissed and confirmed by
the First Appellate Court.
Present appellant-plaintiff filed a suit for
partition and permanent injunction by specifically
contending that the suit schedule property was jointly
purchased by appellant-plaintiff and his brother
Gousemoddin and therefore he claims that he is
entitled for share in the suit property bearing
VPC.No.408.
On contest, the widow of Gousemoddin who
was arrayed as the 2nd defendant has filed written
statement and stoutly denied the entire averments
made in the plaint. The 2nd defendant has specifically
contended that the suit schedule property bearing
VPC.No.408 is self acquired property of her deceased
4
husband Gousemoddin. It was further specifically
denied that the suit schedule property is the joint
family
ancestral
property.
The
2nd
defendant
specifically
contended
that
she
is
in
exclusive
possession and enjoyment of the suit schedule
property and that the appellant-plaintiff has no share
in the suit schedule property as it is self acquired
property of her husband.
The Trial Court having assessed oral and
documentary evidence has answered issue Nos.1 and
2 in the negative and Issue No.3 in the affirmative.
The Trial Court having meticulously examined the
evidence on record has recorded a categorical finding
that the appellant-plaintiff has failed to prove that the
suit schedule property is the joint family ancestral
property and that the suit property was partitioned in
the family as per Ex.P.1 which is dated 21.04.1976.
The Trial Court having assessed the material on record
has come to the conclusion that the property was
5
admittedly purchased by husband of the 2nd defendant
way back in the year 1975 and therefore in absence of
clinching evidence indicating that the appellant-
plaintiff had also contributed towards purchase of suit
schedule property, the Trial Court was of the view that
the appellant-plaintiff cannot claim any share in the
suit schedule property.
The appellant-plaintiff feeling aggrieved,
preferred regular appeal in R.A.No.157/2006. The First
Appellate Court having appreciated the oral and
documentary evidence independently, has concurred
with the judgment and decree of the Trial Court and
has proceeded to dismiss the appeal.
Heard learned counsel appearing for the
appellant. Perused the judgment under challenge.
The appellant-plaintiff’s specific case is that
the suit schedule property bearing VPC.No.408 along
with property bearing VPC.No.422 are the joint family
ancestral
properties
of
appellant-plaintiff
and
6
defendants. Further contention was taken by the
appellant-plaintiff that there was a partition in the
year 1976 and the present suit schedule property was
jointly allotted to the appellant-plaintiff and husband
of defendant No.2 as well as his mother. The
appellant-plaintiff has also contended that at the time
of purchase of VPC No.408, the present appellant-
plaintiff has also contributed. Therefore, it was
contended that he is entitled for share in VPC.Noo.408
also and it is not the self acquired property of husband
of the 2nd defendant. If the partition deed dated
21.04.1976 is examined, this Court would find that
there are lot of ambiguities as the details of properties
are not at all furnished. The said document is
unregistered document. Though a feeble attempt is
made by the learned counsel appearing for appellant-
plaintiff, that that it is a memorandum of partition,
however, on reading the document, this Court would
find that under the said document, the parties have
resolved to effect partition. Therefore for want of
7
registration, the document produced at Ex.P.1 is not
at all admissible in evidence. Even otherwise, the
contents of Ex.P.1 does not establish that the present
suit schedule property bearing VPC No.408 is also joint
family ancestral property.
Admitt
