AMINABAI W/O AMEERKHAN MUJAWAR vs MOHAMMADSAB S/O HUSENSAB
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA- AT DHARWAD
TH
DATED THIS THE 13 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
REGULAR SECOND APPEAL NO.101133 OF 2023
BETWEEN:
1) AMINABI W/O. AMEERKHAN MUJAWAR,
AGED ABOUT 82 YEARS,
OCC: HOME MAKER,
R/O. #493/3, WARD NO. 4,
HALEPETH, BAGALKOTE, KARNATAKA-587101.
2) JABBARKHAN S/O. AMEERKHAN MUJAWAR,
AGED ABOUT 52 YEARS,
OCC: BUSINESS,
R/O. #493/3, WARD NO. 4,
HALEPETH, BAGALKOTE, KARNATAKA-587101.
3) HASINABEGUM W/O. SHANSHAKHAN MUJAWAR,
AGED ABOUT 40 YEARS,
OCC: HOUSEHOLD WORK,
R/O. #493/3, WARD NO. 4,
HALEPETH, BAGALKOTE, KARNATAKA-587101.
4) MUSKAN NADEEM INAMDAR,
D/O. SHANSHAKHAN MUJAWAR,
AGED ABOUT 21 YEARS,
OCC: HOME MAKER,
R/O. S/O. NADEEM INAMDAR,
NIDONI, BIJAPUR, KARNATAKA-586113.
5) TABASSUM D/O. SHANSHAKHAN MUJAWAR,
AGED ABOUT 20 YEARS,
OCC: HOME MAKER,
R/O. #493/3, WARD NO. 4,
HALEPETH, BAGALKOTE,
KARNATAKA-587101.
Digitally
signed by
BHARATHI
H M
Date:
2026.10.29
14:49:12
+0530
BHARATHI
H M
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6) YOUSUFKHAN S/O. RAHIMKHAN MUJAWAR,
R/O. #493/3, WARD NO. 4,
HALEPETH, BAGALKOTE,
KARNATAKA-587101.
7) SURAYYA W/O. NABISAN MUJAWAR,
AGED ABOUT 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O. WARD NO.19, JM ROAD,
HAKEEM CHOWK, BIJAPUR. R.S.BIJAPUR,
KARNATAKA-586104.
8) MAHEBUBKHAN S/O. RAHIMKHAN MUJAWAR,
AGED ABOUT 53 YEARS,
OCC: BUSINESS,
R/O. #145, WARD NO. 4, BAGALKOTE,
KARNATAKA- 587101.
9) SHANUKHAN S/O. MOHAMMAD HUSEN,
AGED ABOUT 71 YEARS,
OCC: BUSINESS,
R/O. #494/3, WARD NO.4, HALEPETH,
BAGALKOTE, KARNATAKA-587101.
10) ASHABI W/O. DHARVESHKHAN MUJAWAR,
AGED ABOUT 66 YEARS, OCC: BUSINESS,
R/O. SECTOR 28, PLOT NO392,
NAVANAGAR, BAGALKOTE-587102.
11) MOHAMMAD ISMAIL MUJAWAR,
S/O. DARVESHKHAN MUJAWAR,
OCC: BUSINESS, R/O. SECTOR 28, PLOT NO. 392,
NAVANAGAR, BAGALKOTE-587102.
12) MOHAMMADHANIF S/O. SHANSHAKHAN MUJAWAR,
AGED ABOUT 54 YEARS,
OCC: BUSINESS, R/O. #101, SECTOR NO.03,
NAVANAGAR, BAGALKOTE, KARNATAKA-587102.
13) BASIRKHAN S/O. SHANSHAKHAN MUJAWAR,
AGED ABOUT 45 YEARS, OCC: BUSINESS,
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R/O. NEAR BASAVESHWARA MATTA,
BAGALKOTE, KARNATAKA-587101.
14) BABULKHAN S/O. SHANSHAKHAN MUJAWAR,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
15) HUSENBI W/O. IBRAHIMKHAN MUJAWAR,
AGED ABOUT 72 YEARS, OCC: HOUSEHOLD WORK,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
16) YAKUFKHAN S/O. IBRAHIMKHAN MUJAWAR,
AGED ABOUT 56 YEARS, OCC: BUSINESS,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
17) MASUDKHAN S/O. IBRAHIMKHAN MUJAWAR,
AGED ABOUT 44 YEARS,
OCC: BUSINESS,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
18) RIYAZKHAN S/O. IBRAHIMKHAN MUJAWAR,
AGED ABOUT 43 YEARS, OCC: BUSINESS,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
19) RAFIQKHAN S/O. IBRAHIMKHAN MUJAWAR,
AGED ABOUT 39 YEARS, OCC: BUSINESS,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
20) BANDENAWAZ S/O. IBRAHIMKHAN MUJAWAR,
AGED ABOUT 35 YEARS, OCC: BUSINESS,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
21) AMIRABI W/O. HUSENKHAN MUJAWAR,
AGED ABOUT 64 YEARS,
OCC: BUSINESS,
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R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
22) NABISAB S/O. HUSENKHAN MUJAWAR,
AGED ABOUT 56 YEARS, OCC: BUSINESS,
R/O. #137, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
23) RAJJABAKHAN S/O. HUSENKHAN MUJAWAR,
AGED ABOUT 50 YEARS,
OCC: BUSINESS, R/O. #74, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
24) HUSENBI W/O. MOHAMMDKHAN MUJAWAR,
AGED ABOUT 80 YEARS,
OCC: HOUSEHOLD WORK,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
25) KUTUBKHAN S/O. MOHAMMADKHAN MUJAWAR,
AGED ABOUT 51 YEARS, OCC: BUSINESS,
R/O. #135, WARD NO. 6,
BAGALKOTE, KARNATAKA- 587101.
26) MOHAMMADKHAN S/O. BAKSHISAB
@ ALLABAKSH MUJAWAR,
AGED ABOUT 45 YEARS, OCC: BUSINESS,
R/O. #495, WARD NO. 4,
BAGALKOTE, KARNATAKA- 587101.
27) HUSENBI W/O. DILAWARKHAN MUJAWAR,
AGED ABOUT 55 YEARS,
OCC: HOUSEHOLD WORK,
R/O. WARD NO. 04, BAGALKOTE,
KARNATAKA-587101.
28) MAHEBOOBKHAN S/O. DILAWARKHAN MUJAWAR,
AGED ABOUT 39 YEARS, OCC: BUSINESS,
R/O. #138 WARD NO 4,
BAGALKOTE, KARNATAKA- 587101.
29) RASULBI W/O. BABUKHAN MUJAWAR,
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AGED ABOUT 63 YEARS, OCC: HOUSEHOLD WORK,
R/O. #495/5, WARD NO.4,
BAGALKOTE, KARNATAKA- 587101.
30) RAJIYABEGUM W/O. MURTUJSAB DALAYAT,
AGED ABOUT 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. #24/D, SECTOR-35,
NAVANAGAR, BAGALKOTE, KARNATAKA- 587103.
31) RAMIJA W/O. BABUSAB MULLA,
AGED ABOUT 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. AT/P BALUTI,
BASAVANA BAGEWADI, BIJAPUR,
KARNATAKA- 586210.
32) BABAJAN S/O. KHADARKHAN MUJAWAR,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O. #17, SECTOR 14,
VTC NAVANAGAR, BAGALKOTE,
KARNATAKA- 587103.
33) SHENSHAKHAN S/O. KHADARKHAN MUJAWAR,
AGED ABOUT 42 YEARS, OCC: BUSINESS,
R/O. PLOT NO. 75/4 SECTOR-14,
NAVANAGAR, BAGALKOTE-587103.
34) SHAHIN W/O. NISAR MANIYAR,
AGED ABOUT 39 YEARS, OCC: HOUSEHOLD WORK,
R/O. ASHRAYA COLONY,
MUDDEBIHAL, BIJAPUR, KARNATAKA- 586212.
35) ARIFA W/O. BANDENAWAZ HANAGI,
AGED ABOUT 42 YEARS, OCC: HOUSEHOLD WORK,
R/O. MAMADAPUR,
BABALESHWARA, BIJAPUR-586113.
…APPELLANTS
(BY SRI. IBRAHIM MAIBOOB NIDAGUNDI AND
SRI. N.M. NIDAGUNDI, ADVOCATES)
AND:
1) MOHAMMADSAB S/O. HUSENSAB,
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AGED ABOUT 52 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
2) SAYYADHUSEN S/O. AMEENSAB MUJAWAR,
AGED ABOUT 57 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
3) IMAMSAB S/O. AMEENSAB MUJAWAR,
AGED ABOUT 49 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
4) SALEEM S/O. AMEENSAB MUJAWAR,
AGED ABOUT 47 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
5) SAYYADRASUL S/O. SHANSHASAB MUJAWAR,
AGED ABOUT 61 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
6) DADABHAYI S/O. SHANSHASAB MUJAWAR,
AGED ABOUT 59 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
7) ADAMSAH S/O. SHANSHARAB MUJAWAR,
AGED ABOUT 45 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
8) RASOOLSAB S/O. IMAMSAB MUJAWAR,
AGED ABOUT 55 YEARS, OCC: BUSINESS,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
9) MAHEBUBAB S/O. GABISAB CHOUDARI,
AGED ABOUT 51 YEARS, OCC: COOLIE,
R/O. BAGALKOTE, DIST: BAGALKOTE,
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PIN CODE: 587101.
10) AMEENABI W/O. SAHNUSAB MUJAWAR,
AGED ABOUT 59 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
11) SMT. HAJIRABI W/O. HUSENSAB MUJAWAR,
AGED ABOUT 65 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BAGALKOTE, DIST: BAGALKOTE,
PIN CODE: 587101.
12) S. L. A. O. BTDA,
BAGALKOTE.
…RESPONDENTS
(BY SRI. PRAKASH HOSAMANE, ADVOCATE FOR C/R1, R6, R8 &
R11;
SMT. RATNAMALA G.H, HCGP FOR R12;
R2, R3, R4, R5, R7, R9, R10-NTICE SERVED)
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO 1.
CALL FOR THE RECORDS OF THE COURT BELOW. 2. SET ASIDE
THE JUDGMENT AND DECREE PASSED BY THE PRL. JUDGE,
FAMILY COURT, BAGALKOTE IN RA 40/2020 DATED 05.07.2023
AND CONFIRMING JUDGMENT AND DECREE PASSED IN OS
ST
78/2011 BY THE 1 ADDL. SENIOR CIVIL JUDGE AND JMFC
BAGALKOTE, DATED 26.10.2016 IN THE INTEREST OF JUSTICE
AND EQUITY. 3. AND ALLOW THIS APPEAL TO PASS JUDGMENT
AND DECREE IN FAVOUR OF THE APPELLANTS IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE B. MURALIDHARA PAI
ORAL JUDGMENT
Heard learned Counsel for the Appellants and learned
Counsel for Respondent Nos.1, 6, 8 and 11.
2. The Plaintiffs and Defendant Nos.1 to 23 in OS
No.78/2011 on the file of I Additional Senior Civil Judge and
JMFC, Bagalkot have filed this regular second appeal.
3. The plaintiffs namely Smt. Aminabi and others
instituted the suit in OS No.78/2011 for the relief of partition
rd
and separate possession claiming their 1/3 share in 3 items of
properties i.e., CTS Nos.511, 502, and 503 situated in Bagalkot
town or in the compensation to be awarded by Defendant
No.33 in respect of those properties and for perpetual
injunction restraining Defendant Nos.24 to 31 from receiving
any amount from Defendant No.33. The case of the plaintiffs is
that the schedule properties belonged to their common
rd
ancestors and as such they are entitled to 1/3 share in those
properties. They contended that Defendant Nos.24 to 31 have
no manner of right and title over the suit properties.
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4. On service of summons on the defendants, they
appeared before the trial court through their counsel. Initially,
the plaintiffs had maintained the suit only against Defendant
Nos.1 to 33. During pendency of the suit, two more persons
were impleaded as Defendant Nos.34 and 35.
5. On 08.11.2011, Defendant Nos.1 to 23 and 32 filed
a memo stating that the suit may be decreed as prayed for by
rd
the plaintiffs and to award 1/3 share to the Defendant Nos.1
to 23. Defendant No.24 filed the written statement adopting
the memo dated 08.11.2011.
6. Defendant Nos.24 to 31 in their written statement
admitted the genealogy furnished by the plaintiffs at Schedule
rd
A, but they disputed the claim of the plaintiffs for 1/3 share in
the suit properties. They admitted that they and the
defendants are enjoying the suit properties in joint and
common co-ownership. However, they contended that the
plaintiffs and Defendant Nos.1 to 23 belong to second branch
and as such they are having only half share in the suit
properties or in the compensation amount. They further
submitted that Defendant No.33 is going to grant a plot in
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rehabilitation center and that Shanshawali Darga has to be
constructed in the said plot by investing the compensation
amount for the benefit of entire Muslim community for the
purpose of religious functions and for pooja. They alleged that
the plaintiffs have made false claim with an intention of
misusing the compensation amount without using it for
construction of darga. As such they prayed for dismissal of the
suit.
7. Defendant No.34 filed separate written statement
claiming to be the relative of Defendant Nos.17 to 24 and
stated that she is also having a share in the suit property.
Defendant No.35 has not filed any written statement.
8. Based on the pleadings, the trial court framed
necessary issues, recorded the evidence adduced by the parties
and decreed the suit in part vide its judgment dated
26.10.2016, holding that the plaintiffs and Defendant Nos.1 to
23 are having 1/3 share each in Schedule B properties.
9. Defendant Nos.24 to 32, 34 and 35 challenged the
said judgment and decree by preferring the appeal in RA
No.40/2022. During the course of argument in the said appeal,
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the appellants filed a memo along with zerox copy of Gazette
Notification No. MYW 97 ASR 73 dated 20.08.1973 and
disputed maintainability of the suit on the ground that the suit
property is a sunni wakf. The first appellate court, based on the
said document, framed an additional issue as follows: “Whether
suit is maintainable in view of provisions of Wakf Act, 1995?”
and proceeded to consider the said issue on the ground that it
is a question of law and there is no necessity of leading any
oral evidence. The first appellate court based on the contents
of notification held that the suit properties are wakf properties
and the suit is barred under Section 85 of the Wakf Act.
Accordingly, the first appellate court allowed the appeal and
dismissed the suit as not maintainable. Feeling aggrieved, the
plaintiffs and Defendant Nos.1 to 23 have preferred this regular
second appeal.
10. Sri Ibrahim Maiboob Nidagundi, learned Counsel for
the Appellants vehemently submitted that the first appellate
court committed an error in accepting the zerox copy of the
notification to hold that the suit properties are sunni wakf
properties and that the first appellate court proceeded to decide
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the additional issue pertaining to maintainability of the suit
without giving an opportunity of adducing evidence to the
parties and without ascertaining its veracity. He submitted that
the suit properties were not the wakf properties and there was
no express dedication of the property by its owner. He further
submitted that Wakf Board has not conducted survey of the
property and it was not listed as wakf property. In the above
circumstances, he prayed to set aside the impugned judgment
and decree passed by the first appellate court and to remand
the matter for fresh consideration after giving sufficient
opportunities to the parties to adduce their evidence.
11. Sri Prakash Hosamane, learned Counsel for
Respondent Nos.1, 6, 8 and 11 supported the findings recorded
by the first appellate court and submitted that the appellants
have not made out any valid grounds to interfere with the
impugned judgment and decree. He submitted that the copy of
the document produced by the appellants before the first
appellate court was a copy of the Gazette Notification which
discloses that the Shanshawali is a wakf property, notified
under Section 52 of the Wakf Act, 1954 and the name of
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Hasansab Mastansab Makandar is shown as Mutawalli. He
submitted that Section 85 of the Wakf Act,1995 bars the
jurisdiction of the Civil Court. As such, he contended that the
first appellate court rightly allowed the appeal and dismissed
the suit as not maintainable.
12. On considering the submissions made on both
sides, the following substantial question of law arises for the
consideration:
“Whether the first appellate court was justified in
framing an additional issue based on zerox copy of the
Gazette Notification produced before it and disposing
of the matter without giving opportunity to the parties
to adduce their evidence, if any?.”
13. As pointed out above, the plaintiffs maintained the
suit for partition and separate possession claiming their share
in 3 items of properties on the ground that those properties
belong to their common ancestors or share in the compensation
awarded in respect of those properties. The trial court disposed
of the suit on merits of the case after framing necessary issues
and recording the evidence of the parties. The case papers
reveal that none of the defendants raised any contention before
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the trial court regarding any bar to maintain such suit or its
maintainability.
14. No doubt, Defendants No.24 to 31 in their written
statement have contended that the suit properties are called as
Shanshawali Darga for the purpose of pooja and other religious
purposes. Even then, they did not raise any contention about
the suit properties being a wakf property or disputed the
maintainability of the suit. Thus, the materials on record make
it clear that for the first time the contesting defendants raised
an objection regarding the maintainability of the suit before the
first appellate court by relying on a zerox copy of the
notification.
15. Order XIV Rule 3 of CPC contemplates the materials
from which the court may frame the issues in a case. The said
materials are the allegations made on both by the parties
allegations made in the pleadings or for answers to
interrogatories delivered in the suit and the contents of
documents produced by either party. When such being the
case, the first appellate court should have considered the
pleadings of the parties and the authenticated copy of the
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gazette notification before proceeding to frame an additional
issue in the case. Further, it seems the first appellate court
received such additional document without complying with
Order 41 Rule 27 of CPC. It is relevant to note that the first
appellate court itself observed that the notification does not
contain either serial number or registered survey number of the
property in respect of which the notification came to be issued.
The first appellate court jumped to its conclusion based on an
entry at Sl.No.32 about Shanshawali Darga and the name of
Hasanasab Mastansab Makandar as mutawalli. The facts and
circumstances of the case indicate that the first appellate court
could not have considered the additional issue without giving
an opportunity to the parties to adduce their evidence if any, as
it is a mixed question of law and facts.
16. Further, the impugned judgment indicates that the
first appellate court has not considered any other contentions
raised by the defendants challenging the judgment and decree
passed by the trial court. The first appellate court being the last
fact-finding court required to consider every aspect of the case
and record its findings by re-appreciating the materials on
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record. The case papers reveal that the first appellate court has
miserably failed to exercise its duty and responsibility as an
appellate court. In view of the same, this Court holds that it is
a fit case for remand. Accordingly, the substantial question of
law framed by this Court is answered in the negative.
17. In the result, this Court proceeds to pass the
following:
ORDER
i) The regular second appeal is allowed.
ii) The judgment and decree dated 05.07.2023
passed in R.A. No.40/2022 by the learned
Principal Judge, Family Court, Bagalkot, is set
aside and the matter is remitted back to the
first appellate court for fresh disposal in
accordance with law.
SD/-
(B. MURALIDHARA PAI)
JUDGE
HMB/CT:PA
LIST NO.: 1 SL NO.: 31