Karnataka High Court
Sri Allabaksh Khasimsab Kudavand vs Sri Mohammadgous Hasimsab Khudavand on 18 August, 2022
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 1486 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18th DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR FIRST APPEAL NO. 1486 OF 2005
BETWEEN:
1. SRI. ALLABAKSH KHASIMSAB KHUDAVAND,
AGE 52 YEARS, OCC: SERVICE,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
2. SRI. LIYAKATHALI KHASIMSAB KHUDUVAND,
AGE 37 YEARS, OCC: BUSINESS,
R/O. NAVALGUND, DIST. DHARWAD - 582208
...APPELLANTS
(BY SRI. A.A.PATHAN, ADVOCATE)
AND:
1. SRI. MOHAMMADGOUS HASIMSAB KHUDAVAND,
AGE 51 YERS, OCC: AGRICULTURIST,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
2. SRI. IMAMSAB HASIMSAB KHUDAVAND,
AGE 48 YEARS, OCC: SERVICE,
R/O. HOLE-ALUR, TALUK RON, DIST. GADAG,
NOW RESIDING AT EMPLOYEE, SYNDICATE BANK,
HAVERI-581110.
3. SRI. MUNEER @ MEERASAB HASHIMSAB,
AGE 55 YEARS, OCC: AGRICULTURIST,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
4. SRI. SALEEM @ ABDULRAHEEM HASIMSAB KHUDAVAND,
AGE 53 YEARS, OCC: AGRICULTURST,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
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RFA No. 1486 of 2005
5. HAZRATSAB NABISAB KHUDAVAND
(SINCE DECEASED BY HIS L.RS.)
5A. NAJMABI W/O. HAZARATSAB NABISAB KHUDAVAND,
AGE 52 YEARS, OCC: HOUSEHOLD WORK,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
5B. NIYAZ AHAMAD S/O. HAZARATSAB NABISAB,
KHUDAVAND (SINCE DECEASED BY HIS L.RS.).
5B(1) NAJEEMA BEGUM @ SAINAZ BEGUM
W/O. NIYAZ AHAMAD, AGE 30 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
5B(2) MEERASAB @ WAHID S/O. NIYAZ AHAMAD,
AGE 10 YEARS, MINOR, REPRESENTED
BY HIS MGM RESPONDENT NO.5B(A)
5B(3) JAHID S/O. NIYAZ AHAMAD,
AGE 8 YEARS, MINOR, REPRESENTED BY
HIS MGM RESPONDENT NO.5B(A).
5B(4) HAJARESAB @ SAJID S/O. NIYAZ AHAMAD,
AGE 6 YEARS, MINOR REPRESENTED BY HIS MGM
RESPONDENT NO.5B(A).
5C. MUJEER S/O. HAZRATSAB NABISAB KHUDAVAND,
AGE 32 YEARS, OCC: GLASSING WORK,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
5D. SHAKIRALI S/O. HAZRATSAB NABISAB KHUDAVAND,
AGE 31 YEARS, OCC: GLASSING WORK,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
6. ABDULKHADAR NABISAB KHUDAVAND,
AGE 38 YEARS, OCC: TYPIST, SPECIAL
TAHSILDAR OFFICE, R/O. HUBBALLI,
DISTRICT DHARWAD - 580020.
7. JUBEDA BEGUM ABDULSAB KHUDAVAND,
AGE 54 YEARS, OCC: HOUSEHOLD WORK,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
8. MUKTUMSAB KHASIMSAB KHUDAVAND,
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RFA No. 1486 of 2005
AGE 54 YEARS, OCC: SERVICE,
R/O. SATTI, ATHANI TALUK, DIST. BELAGAVI-591304.
9. SAYYAD AHMADALI RAJ AHAMAD PEERAZADE
(SINCE DECEASED BY HIS L.RS.)
9A. NIJUMUDDIN S/O. SAYYAD AHMADALI PEERAZADE,
AGE MAJOR, OCC: BUSINESS,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
9B. SHRI. SALAUDDIN S/O. SAYYAD AHMADALI PEERAZADE,
AGE MAJOR, OCC: BUSINESS,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
9C. SHRI. SHABBIR AHAMAD S/O. SAYYAD AHMADALI
PEERAZADE, AGE MAJOR, OCC: BUSINESS,
R/O. NAVALGUND, DIST. DHARWAD - 582208.
10. BASAVANTAPPA S/O. SHIVAPPA TOTAD,
(SINCE DECEASED BY HIS L.RS.)
10A. SMT. DYAMAVVA W/O. BASAVANTAPPA TOTAD,
AGE 80 YEARS, OCC: HOUSEHOLD WORK,
10B. SHRI. DYAMAPPA S/O. BASAVANTAPP TOTAD,
AGE 56 YEARS, OCC: BUSINESS,
10C. SHRI. SHIVAPP S/O. BASAVANTAPPA TOTAD,
AGE 54 YEARS, OCC: BUSINESS,
10D. SHRI. KANTU S/O. BASAVANTAPPA TOTAD,
AGE 52 YEARS, OCC: BUSINESS,
10E. SHRI. NAGESH @ NAGAPPA S/O. BASAVANTAPPA TOTAD,
(SINCE DECEASED BY HIS L.RS.).
10E(1)SMT. LAXMAVVA W/O. NAGAPPA TOTAD,
AGE MAJOR, OCC: HOUSEWIFE,
10E(2)SMT. MAHADEVI D/O. NAGAPPA TOTAD,
AGE MAJOR, OCC: HOUSEWIFE,
10E(3)SHRI. BASAVRAJ S/O. NAGAPPA TOTAD,
AGE MAJOR, OCC: BUSINESS,
10E(4)SHRI. ESHWAR S/O. NAGAPPA TOTAD,
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RFA No. 1486 of 2005
AGE MAJOR, OCC: BUSINESS,
(RESPONDENT NOS.10E(1) TO 10E(4) ARE
R/O. SIDDAPPA ONI, NAVALGUND,
DIST. DHARWAD - 582208.
10F. SMT. DEVAKKA W/O. CHANABASAPPA MULIMAGADI,
AGE 48 YEARS, OCC: HOUSEHOLD WORK,
10G. SMT. SHIVAMMA W/O. SANGAPPA,
AGE 45 YEARS, OCC: HOUSEHOLD WORK,
(RESPONDENT NOS.10A TO 10G ARE R/O. LINGARAJ NAGAR,
NAVALGUND, DIST. DHARWAD-582208).
11. KALLAPPA S/O. SHIVAPPA TOTAD,
AGE MAJOR, OCC; BUSINESS,
R/O. LINGARAJ NAGAR, NAVALGUND,
DIST. DHARWAD - 582208.
12. SIDDAYYA S/O. RAYESYSA MAKANDAR,
(SINCE DECEASED BY HIS L.RS.).
12A. RAJESHA S/O. SIDDAYYA MAKANDAR,
AGE MAJOR, OCC: BUSINESS,
R/O. KALLIMATH ONI, NAVALGUND,
DIST. DHARWAD - 582208.
12B. BABAJAN S/O. SIDDAYYA MAKANDAR,
AGE MAJOR, OCC: BUSINESS,
R/O. KALLIMATH ONI, NAVALGUND,
DIST. DHARWAD - 582208.
12C. CHAADALI S/O. SIDDAYYA MAKANDAR,
AGE MAJOR, OCC: BUSINESS,
R/O. KALLIMATH ONI, NAVALGUND,
DIST. DHARWAD - 582208.
13. MANSURSAB S/O. MASTANSAB DHOBI,
AGE MAJOR, OCC: LAUNDRY WORK,
R/O. KALLIMATH ONI, NAVALGUND,
DIST. DHARWAD - 582208.
14. KARIMSAB S/O. BUDNESAB HARLAPUR,
AGE MAJOR, OCC: BRANDY SHOP,
R/O. NEAR BUS STAND, NAVALGUND,
DIST. DHARWAD-582208.
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RFA No. 1486 of 2005
15. VENKATESH S/O. LAXMAN BETDUR,
AGE MAJOR, OCC: KIRANI BUSINESS,
R/O. LINGARAJ NAGAR, NAVALGUND,
DIST. DHARWAD - 582208.
16. MAHAMMAD IBRAHIM S/O. KHUDAABAKSH KUDAVAND,
(SINCE DECEASED BY HIS L.RS.).
16A. SMT. SABIYA W/O. MAHAMMAD IBRAHIM KHUDAVAND,
AGE 60 YEARS, OCC: HOUSEHOLD WORK,
16B. SHRI. SIRAJUDDIN S/O. MAHAMMAD IBRAHIM
KHUDAVAND, AGE 35 YEARS, OCC: BUSINESS,
16C. SMT. SHAINAZ D/O. MAHAMMAD IBRAHIM KHUDAVAND,
AGE 33 YEARS, OCC: HOUSEHOLD WORK,
16D. SMT. SHAHEEN D/O. MAHAMMAD IBRAHIM KHUDAVAND,
AGE 30 YEARS, OCC: HOUSEHOLD WORK,
16E. SMT. PARVEEN D/O. MAHAMMAD IBRAHIM KHUDAVAND,
AGE 28 YEARS, OCC: HOUSEHOLD WORK.
(RESPONDENT NOS.16A TO 16E ARE ALL
RESIDENT OF HARIHAR, DIST. DAVANGERE - 577601)
...RESPONDENTS
(SRI. F.V.PATIL, ADVOCATE FOR R1 TO R4, R5(D) & R6;
SMT. PALLAVI F. PATIL, ADVOCATE FOR R9(A TO C);
SRI. SURESH P. HUDEDAGADDI, ADVOCATE FOR R10(C), R(11),
R(13) TO R(15), R5A, R5B(A), R5B(B), R5B(C), R5B(D), R7, R10(B),
R10(F), R10(9), R16(A), R16(B), R16(C), R16(D), R16(E), R10E(3),
R10E(4) ARE HELD SUFFICIENT;
R5(C), R8, R10(A), R10(D), R12(A), R12(B), R12(C), R10E(1),
R10(E)(2) ARE SERVED;
R10(E) APPEAL ABATED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 13.07.2005 PASSED IN
O.S.NO.112/1994 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.
DN.) DHARWAD, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
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RFA No. 1486 of 2005
THIS APPEAL COMING ON FOR FINAL HEARING, HAVING
HEARD AND RESERVED FOR JUDGMENT, THIS DAY THE COURT
MADE THE FOLLOWING.
JUDGMENT
This Regular First Appeal is filed challenging the Judgment and decree of the dismissal of the suit passed in O.S.No.112/1994 dated 13.07.2005 on the file of the II Additional Civil Judge (Sr. Dn.), at Dharwad.
2. The parties are referred in the original rankings for the convenience of the Court in order to avoid confusion.
3. The factual matrix of the case of the plaintiffs before the trial Court seeking for the relief of partition and separate possession of their half share in the suit schedule properties. It is contended by the plaintiffs that, the suit schedule properties are the house properties situated at Navalagund, district Dharwad comprising of CTS number in detail, in total five suit schedule properties and the suit schedule properties are the residential house and the open -7- RFA No. 1486 of 2005 space, Darga, Burial ground, etc., It is contended by the plaintiffs that the suit properties are the ancestral properties of the plaintiffs and the defendant Nos.1 to 8 and no partition has been taken place between the plaintiffs and the defendants in respect of the suit schedule properties and that they are enjoying the suit schedule properties as tenant in common. The parties belongs to Muslim community and hence, they are bound by Mohammadan Law. It is contended that, the ancestors of the plaintiffs and defendants got divided the agricultural lands for their convenience, but the house properties and open space etc., have not been divided. The property bearing CTS No.1557 is the property kept for Darga and Burial ground. The defendant No.9 was appointed to look after into the affairs of the Darga and open space by the ancestors of the plaintiffs and defendants. The defendant Nos.1 to 9 in collusion with defendant No.9 are trying to dispose of the said open space to third parties, keeping the plaintiffs in dark and also denying the rights of the -8- RFA No. 1486 of 2005 plaintiffs over the suit properties. The defendant No.9 is claiming that, he himself is the owner of CTS No.1557. In the said property, there are tombs of Khudavand's family. The said property kept only for the purpose of performing the festivals and for burial ground of Khudavand's family. The plaintiffs have requested the defendants to effect partition but they denied, hence constrained to file suit. In the suit, description of the genealogy is also given and during the pendency of the suit, defendant No.5 passed away and hence, his L.Rs. have been brought on record. Defendant Nos.5 and 9 and their L.Rs. have been brought on record. Defendant Nos.10 to 15 have been added as parties, subsequent to the filing of the suit. In pursuance of the claim made by the plaintiffs, defendants have appeared and defendant No.1 has filed written statement, contending that neither plaintiffs nor the defendant No.8 are concerned to the suit properties at all and denied all the allegations. The property of defendant No.8 is quite different. They are concerned only with CTS No.1114. -9- RFA No. 1486 of 2005 Another CTS No.1087 has been sold by the plaintiffs themselves to one Mallappa Basappa Hallad on 15.06.1960 and hence, the claim made by the plaintiffs are false and no cause of action for the suit and hence, prayed the Court to dismiss the suit.
4. The defendant No.9 filed a separate written statement and denied the contentions of the plaintiffs. He contended that the suit was filed in O.S.No.199/1993 between the defendant No.9 and defendant Nos.1 to 6 and the said suit was decreed on 28.2.1995/17.03.1995. In terms of the said suit, defendant No.9 is the absolute owner to the extent of 4989 square yards situated to the southern side. In the said suit, it was also decreed that defendant Nos.1 to 6 are the absolute owners of the northern portion to the extent of 1206.92 square yards. Hence, it is contended that, plaintiffs' family has no right at all in CTS No.1557. The defendant No.9 is enjoying the southern portion of CTS No.1557 as an absolute owner after the decree was passed by the Court in the above
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RFA No. 1486 of 2005 suit. It is contended that, CTS No.1087 was belonging to the plaintiffs' family and the same was sold by the ancestors of the plaintiffs to one Mallappa Basappa Hallad and the purchaser is in possession and enjoyment of the said property. The CTS No.123/A belonging to defendant Nos.1 to 6 and they sold the same to one Babajan Khudavand and others on 19.07.1984 and they are in actual possession of the suit property and hence, impleading those persons as a party to the suit, the very suit is not maintainable. The other property CTS No.1145 is in possession and enjoyment of defendant Nos.1 to 6 and hence, the plaintiffs are not entitle for any relief of partition. It is also contended that, earlier to this suit the defendant Nos.1 to 6 had filed a suit in O.S.No.113/1982 against the defendant No.9 in respect of CTS No.1557. The said suit was dismissed. Being aggrieved by the said order, defendant Nos.1 to 6 have filed an appeal in R.A.No.78/1984 and subsequently the same was transferred to Munsiff Court and ultimately the Court has
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RFA No. 1486 of 2005 dismissed the suit in coming to the conclusion that the Court has no jurisdiction and not filed any appeal and hence the order has become final. The defendant No.5 also filed separate genealogy and it is contended that, the properties are only concerned to the legal heirs of the Branch of Mohammad Gouse Khudavand. The properties are Sanadi Inam lands and the Sanad was given in favour of defendants family by the then British Government on 07.06.1923 and hence, the plaintiffs have no semblance of right. Based on the pleadings of the respective parties, the trial Court framed the following issues :
(i) Whether the plaintiffs are entitled for partition and separate possession of a share in the suit property ?
(ii) Whether the plaintiff proves that
defendant No.9 was appointed for
upkeeping the Darga and open space by
the ancestral property by plaintiffs and defendants?
(iii) Whether the defendant No.9 is the owner of the area measuring 4987 square yards in CTS No.1557?
(iv) Whether the suit is for non-joinder of necessary parties Mallappa Basappa Halad and Babajan Kudavand?
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RFA No. 1486 of 2005
(v) What decree or order the parties are
entitled?
And also framed additional issue i.e.
(i) Whether the Judgment and decree passed
in O.S.No.110/1993 is not binding?
5. Having considered the evidence of both oral and documentary evidence placed before the trial Court, the trial Court dismissed the suit in answering Issue Nos.1 and 2 as negative and issue No.3 and 4 as affirmative, in coming to the conclusion that the defendant No.9 is the owner of the area measuring 4987 square yards in CTS No.1557 and suit is also filed for non-joinder of necessary parties i.e. Mallappa Basappa Hallad and Babajan Khudavand.
6. Being aggrieved by the Judgment and decree of the dismissal of the suit, the present appeal is filed by the plaintiffs contending that, the Court below has committed an error in dismissing the suit. The counsel appearing for
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RFA No. 1486 of 2005 the appellant in his argument also he vehemently contend that Nabisab who is the propositus of the family of the plaintiffs and defendants, admittedly as per the Court order in L.C.No.238/1898, the property in CTS No.1557 was in the name of Kasimsab S/o. Makdumsab was the ancestor of the appellants. In the year 1921, the name of Mohammad Gouse Abdul Khudavand who was the son of one Abdulsab, the brother of Kashimsab was entered in the enquiry register at Ex.P.8 in respect of the said property, at that time itself he was shown as Dargha Wahivatdar of the said property. The name of Mohammad Gouse Abdul Khudavand came to be entered in the enquiry register on the basis of the decree passed by the Civil Court in L.C.No.238/1898 in favour of Kashimsab who was the ancestor of the appellants. Therefore, merely because Sanad has been issued in favour of Mohammad Gouse by the British Government, it would not became is sole property, particularly when he was shown as Dargha Wahivatdar. The counsel also would vehemently contend
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RFA No. 1486 of 2005 that, the appellants have examined one Sayyad Abdul Rahim who is the Khazi of the said place. He has deposed that, there will be a pooja once in a year. The dead bodies of appellants and defendant Nos.1 to 8 have been burriend in the said Dargha. The trial Court has not considered the same particularly he is Khazi to both the families. The Court order passed in L.C.No.238/1898 in favour of Khasimsab, the ancestor of the appellants which was then entered in the name of Mohammadgouse, the ancestor of defendants where it was shown as he was the Dargha Wahivatdar and hence, the said property is the property belongs to the plaintiffs and defendants. The Sanad issued in the name of Mohammadgouse will not confer any right, title or any interest in the said property. Hence, defendant Nos.1 to 8 have no right to enter any compromise with the defendant No.9 and the same is not binding on the plaintiffs. Hence, the trial Court has committed an error. The counsel would vehemently contends that, the Court has to look into the contents of Ex.P.29 recitals and CTS
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RFA No. 1486 of 2005 No.1557 belongs to Khasimsab and defendant No.4 is only a tenant. The trial Court has failed to take note of the contents of Ex.P.28 and defendants are not the absolute owners of the suit schedule properties and the trial Court fails to take note of the evidence of P.W.2. The counsel also would vehemently contend that in respect of compromise decree is concerned, the plaintiffs are not parties and the same is not binding on them.
7. Per contra, the counsel appearing for the defendants/respondents would vehemently contend that the plaintiffs have no right in respect of the suit schedule properties. The trial Court considered the documents of Ex.D.17, 18 and 19 and also taken note of Sanad and grant was made in favour of the Mohammadgouse and no material is placed before the Court both plaintiffs and defendants are entitle for share in the suit schedule property and the property belongs to the propositus of the family. The counsel would vehemently contend that the grant was made in favour of Mohammadgouse and not in
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RFA No. 1486 of 2005 respect of the family of Nabisab. The counsel also would submits that, the suit was decreed in favour of the defendant No.9 and the same was compromised and documents have been relied upon by the trial Court and given the definite finding while answering issue No.1 and rightly comes to the conclusion that the property was granted in favour of Mohammadgouse and defendants have also produced Sanad issued by the then Secretary of State in Council, in the British Government which are at Ex.P.17 to Ex.P.19 and hence, no merits in the appeal.
8. Having heard the respective counsel and also on perusal of the material available on record, both oral and documentary evidence, the points that would arise for consideration of this Court are ;
(i) Whether the trial Court has committed an error in coming to the conclusion that the plaintiffs are not entitle for partition and separate possession of a share in the suit property;
(ii) Whether the trial Court has committed an error in coming to the conclusion that the defendant No.9 is the owner of the area measuring 4987 square yards in CTS No.1557 by answering Issue No.3 as affirmative;
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RFA No. 1486 of 2005
(iii) Whether the trial Court has committed an error in coming to the conclusion that the suit is bad for non-joinder of necessary parties;
9. Answer to Point Nos.1 to 3:
Having heard the respective counsel and this Court being the first Appellate Court having powers to re-assess the evidence and available material on record, both on facts and question of law to reconsider the material on record. The main contention of the plaintiffs before the trial Court is that, the suit properties are the ancestral properties of plaintiffs and defendant Nos.1 to 8. It is also their contention that the ancestors of the plaintiffs and defendants effected partition in respect of agricultural lands only, but partition was not effected in respect of the suit properties and they have been tenants in common. The plaintiffs in order to prove their case, examined the witness i.e. P.W.1 and in his evidence he says that, there was a partition between their ancestors in respect of landed properties. The said partition was effected between Mohammadgouse and Mohammad Ibrahim. But on perusal
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RFA No. 1486 of 2005 of the genealogy given by the plaintiffs, it discloses that one Mohammadgouse is the ancestor of the defendants branch, whereas, Khasimsab is ancestor of plaintiffs branch, but in the cross-examination of P.W.1, he has admitted that, there is no any document to show that, there was a partition in the year 1916 between the above said two branches in respect of the landed properties. In order to substantiate the same, no document is also placed before the Court. The fact that, Nabisab was the original propositus of plaintiffs and defendants family, but it has been admitted by the P.W.1 in his cross-examination that, they have not produced either birth certificate or death extract of Khasimsab and Abdulsab to show that, they both were the sons of original propositus Nabisab. No material is placed before the Court in order to prove the genealogy. But no dispute with regard to the fact that, suit properties were granted by the British Government in favour of Mohammadgouse Abdulsab Khudavand, who was the grand-father of defendant Nos.1 to 4. The defendants
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RFA No. 1486 of 2005 have also relied upon the Sanad issued by the then Secretary of the State in Council, in the British Government which have been marked as Ex.D.17 to Ex.D.19. It is also not in dispute that, the said Mohammadgouse is the ancestor of defendant Nos.1 to 4 and no material is placed before the Court to show that, even after the death of propositus Nabisab, where Khasimsab and Abdulsab who were said to be the sons of late Nabisab were residing together and enjoying the suit properties as tenants in common. In order to prove the fact that, the grant was also made in favour of the plaintiffs and defendants family, no material are placed before the Court and instead of that, the defendants have relied upon the document at Ex.D.17 to D.19 which discloses that the grant was made in favour of the Mohammadgouse. It is emerged in the evidence that the plaintiffs have sold CTS No.1087 to one Basappa Hallad in the year 1960 and the same is also admitted by P.W.1 in his cross-examination and admittedly the said purchaser
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RFA No. 1486 of 2005 has not been made as defendant in the suit when the date is claimed in respect of the said property which is Item No.1 of the suit schedule property and P.W.1 also admitted in the cross-examination that CTS No.1114 belongs to his uncle Ibrahimsab Khasimsab Khudavand and the same is not standing in the name of all the persons. The defendants have also relied upon the document at Ex.D.21 and D.22 and the same discloses that, Khudabhaksh Ibrahimsab Khudavand and Khasimsab Muktumsab Khudavand, both of them gave Vardi to the village accountant intimating that they are the legal heirs of the deceased Ibrahimsab and Muktumsab and to enter their names in respect of the suit schedule properties. The defendants have also relied upon the document at Ex.D.22 which depicts that, the partition was effected between the said Khudabaksh and Khasimsab as per the partition effected between them on 13.06.1957. It is also emerged in the evidence that, after that partition the Khudabaksh has sold CTS No.1087 to one Basappa Hallad in the year
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RFA No. 1486 of 2005 1960. Though the plaintiffs are included the said properties and the same is not at all available for the partition, as it has been already been sold. In order to prove the fact that, the properties are belongs to the plaintiffs and defendants, no material is placed by the plaintiffs to substantiate their contentions. It is also emerged in the evidence that, when the property was subsequently sold after partition by the plaintiffs and the same has not been questioned by any of the parties either the plaintiffs or the defendants. The defendants have also effected partition between them on 28.01.1954 in respect of their properties and the same has not been questioned by the plaintiffs at any point of time and plaintiffs were also aware of the said fact. The documents which have been placed by the plaintiffs as well as the defendants, clearly discloses that, the British Government as per the Sanad i.e. Ex.D.17, 18 and 19 was granted in favour of Mohammadgouse who is the father of the defendant Nos.1 to 4. The main contention of appellants in this appeal is
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RFA No. 1486 of 2005 that, there was a Court Order in L.C.No.238/1898, the property in CTS No.1557 was in the name of Khasimsab S/o. Maktumsab who was the ancestor of the appellants. The said order passed in L.C.No.238/1898 was not produced before the trial Court. However, the counsel appearing for the appellant brought to the notice of this Court, that there was an entry to that effect to the enquiry register at Ex.P.28. On perusal of Ex.P.28, no doubt there is a reference of the Court order and on perusal of the document at Ex.P.28, no doubt there was a reference of the Court order, but wherein it was mentioned that Dargha Wahivatdar, but name is mentioned as Mohammadgouse Abdulsab Khudavand and the same is also clear that, the name of the father of the defendant Nos.1 to 4 is mentioned as Dargha Wahivatdar and in order to prove the factum of the contention of the appellants that, in terms of the order in case No.238/1898, it was in favour of the name of Khasimsab S/o. Magdumsab, there was no any reference, but no doubt it was mentioned that, he is
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RFA No. 1486 of 2005 the Dargha Wahivatdar of the said property and in order to prove the fact that, it was in favour of Khasimsab S/o. Maktumsab, no material is placed as contended in the appeal memo in paragraph No.13 and when such being the material before the Court, I do not find any error committed by the trial Court in answering issue No.1 as negative in coming to the conclusion that, the plaintiffs have failed to prove that they are having a right in respect of the suit schedule properties. No doubt it is the contention of the appellant counsel that, the appellants are not parties to the suit initiated by defendant No.9 and defendants have not disputed the decree in favour of defendant No.9 in respect of area measuring 4987 square yards in CTS No.1557 and the same is also a compromise decree. Unless the plaintiffs proves that, they are having semblance of right in respect of the suit schedule properties, the question of arraying them as parties to the proceedings also does not arise and they are not parties to the suit and the same is not binding, cannot be accepted
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RFA No. 1486 of 2005 and prima-facie, the plaintiffs have to make out a case that they are entitle for a relief of partition and separate possession in respect of the suit schedule properties and the same has not been made out. The other contention is that, the trial Court has committed an error in, the families of plaintiffs and defendants were buried in the said land and merely because of bodies are buried, does not create any right and other contention that mere issuing Sanad in the name of Mohammadgouse will not confer any right and plaintiffs have not denied the fact that the Sanad was issued in the name of Mohammadgouse and the trial Court has also taken note of the documents to that effect and taking note of those documents only comes to the conclusion that, the property was granted in favour of the Mohammadgouse who is the father of defendant Nos.1 to 4. When such material are considered by the trial Court, the very contention of the plaintiffs counsel that the trial Court failed to take note of the Court order in L.C.No.238/1898 cannot be accepted
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RFA No. 1486 of 2005 and the same is also placed before the trial Court except the entries made in Ex.P.28 and the plaintiffs have also not denied upon the document at Ex.D.17 to Ex.D.19 having granted the land by the then British Council, in favour of Mohammadgouse and hence, I answer all the points as negative.
10. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
No costs.
Sd/-
JUDGE SVH