Karnataka High Court
Manjibee vs Awalambi @ Apsarpashya on 18 January, 2012
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
Dated this the 18h1 day of January, 2012
BEFORE
THE HON'BLE MRJUSTICE N.KUMAR
R.F.A No.1584 of 2005
BETWEEN:
1. Smt. Manjihee
W/o Makka Husseni Jahagirdar,
Since dead by Lrs.
a) Peerhusaini S/o Makkahuseni
Aged about 48 years.
R/o Bol Chikkalki,
Tq and Dist: Bijapur.
b) Chand Pashya S/o Makkahuseni
Aged about 42 years,
R/o Bol Chikkalki.
Tq. and Dist: Bijapur.
c) Tarupashva S/o Makkahuseni
Aged about 38 years.
R/o Bol Chikkalki,
Tq. and Dist: Bijapur.
d) Anwar Pashya Sb Makkahuscni
Aged about 35 years
R/o Bol Chikkalki.
Tq. and Dist: Bijapur.
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e) Smt. Surayyahanu D/o Makkahuseni
W/o Raheem Jahagirdar,
Aged about 38 years.
R/o Chikka Galagali.
Tq. and Dist: Bijapur.
fl Smt. Shakeerabanu I) /o Makkahu seni
W/o Hahibmiva Jahagitdar.
Aged about 33 years.
R/o Chik-Galgali
Tq. and 1)1st: Bijapur.
2. Smt Mehabood-bee
W/o Hussien Saheb Sheikh,
Aged about 63 years,
0cc: Household work,
R/o Bol Chikkalki.
Tq. and Dist: Bijapur.
Appellants
(By Sri: Sanjeev Kurnar C. Patil Advocate)
AND:
1. Srnt. Awalambi © Apsarpashva
W/o Chandpashya Inarndar,
Aged about 55 years.
0cc : Household work,
R/o Harival Gaul. Jumma Masjid Road,
Bijapur.
2. Uhed S/o Shamshoddin Kandgal
Aged about 25 years.
R/o Have1iLa11i.
Baa1kot Road. Bijapur.
3. Rajesh S/o Deepchand Runwal
Age: Major,
R/o S.S. Road, Bijapur.
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4. Siddappa S/o Mallappa Kahadgi
Age: Major.
R/o Madbavi,
Tq. & Dist: Bijapur.
* Respondents
(By Sri A.Vijavakumar. Adv., for Ri:
Miss. Shoha S. Adv for R-2 & R-3
Sri: Bapugouda Siddappa Adv for R-4)
This RFA is filed under 96 of CPC Against the Judgment
and Decree dated: 20-07-2005 passed in O.S.No.46/95 on the
file of the I Addi. Civil Judge (Sr.Dn) Bijapur. dismissing the
suit for partition and separate possession.
This RFA coming on for orders this day. the Court
delivered the following:
JUDGMENT
This is a plaintiffs' appeal against the judgment and decree of the trial Court which has dismissed the suit of the plaintiffs for partition and separate possession on the ground that the plaintiffs have failed to establish that they are the daughters of Sahebpashva through his first wife Becpashva.
2. For the purpose of convenience. the parties are referred to as they referred to in the original suit. 4
3. The schedule property consists of lands and open space. It is described in detail in the appended schedules. schedule consists of 3 items of agricultural lands whereas B' schedule is in respect of the house property (hereinafter for short reftrred to as the suit schedule propertv).
4. One Sahebpashva s/o Yakubsab lnamdar alias Mokheshi was the owner of the suit schedule property. The case of the plaintiffs is. he had two wives Beepashya and Peeranhee. The second wife-Peeranbee died in 1972 and the first wife-Beepashya died on 9.1.1963, Sahebpashya died on 20.5.1993. By the first wife. Sahebpashva had two daughters who are the plaintiffs. By the second wife he had only one daughter i.e.. the defendant. The suit schedule property belonged to the deceased Sahebpashva. He was in actual possession till his death \vhich occurred on 20. 1993. Parties being Muslims, there was no problem till Sahebpashva was alive. But, the trouble arose after his death. After the death of Sahebpashva. the defendant started a dispute savin that she is the only legal heir of her father- Sahchpashya. Accordingly she gave a wardi to the Village Accountant of the Village Madhbhavi. 5 The Village Accountant made entry No. 5124 in the name of the defendant. Plaintiffs contested the claim. The matter was taken to the disputed register and papers were submitted to the Tabsildar. Bijapur. The Tahslldar gave the case a number as R.tS.SRI9/93-94. On 7.2.1994, the Tahsildar, Bijapur, certified the M.E. No. 5124 by rejecting the contention of the plaintiffs. The plaintiffs preferred an appeal before the Assistant Commissioner, Bijapur Division, In RTS.AP.74/93-94. The Assistant Commissioner also dismissed the appeal of the plaintiff on 20.12.1994. So far as the house property-CTS No. 1567 was concerned. the ADLR Bijapur. entered the name of the defendant only as the holder. But, on appeal by the plaintiffs, the DILR, Belgaum DMsion, Belgaum, by his order bearing No. CTS.AP. 16/93-94 dated 4.3.1994 allowed the plaintiffs' appeal holding that the names of the plaintiffs along with that of the defendant should be entered In the City Survey records as holders. Since the defendant denied the plaintiffs' claim before the revenue authorities, the plaintiff was constrained to file the suit against her.
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5. Under the Mohammdan Law, both the plaintiffs and the defendant would become sharers and so each of them would be entitled to a distinct equal 1 /3$ share. Thus, the plaintiffs would be entitled to 2/3M joint share In the suit properties. The plaintiffs and the defendant are the tenants in common with specific share under the Mohammdan Law and there will be no bar of limitation to file the suit for partition unless there is an ouster or denial of title. In the Instant case, there is no ouster. But, there is denial of the plaintiffs' title by the defendant. The plaintiffs are in actual possession of the suit property along with the defendant. Both the plaintiffs and the defendant were in joint possession of all the suit properties till 16.3.1995. But, the defendant with the help of police has disturbed the possession of the plaintiffs from the suit lands wrongly and has tried to oust the plaintiffs from suit lands of Madbhavi Village. The plaintiffs are not a match to the defendant and their partisans. The rural police of Bijapur Taluk have also helped the defendant in trying to oust the plaintiffs from the suit lands. Harvesting the jawar and other crops was going on but the police and the defendant prevented the plaintiffs from entering into the suit lands. Hence, the 7 plaintiffs are obliged to seek a separate relief of perpetual injunction against the defendant, Therefore, they filed the suit for partition and separate possession of 2/3rd share in the suit schedule property and also for a perpetual injunction restraining the defendant and her agents from causing obstruction to the peaceful possession and enjoyment of the plaintiffs joint 2/3d share in the suit schedule properties and for future mesne profits.
6. After service of summons, the defendant entered appearance and filed her detailed written statement. She contended that, plaintiffs are strangers to the family of the defendant or her ancestors. Therefore, the question of claiming partition and for other reliefs does not arise at all. The suit seems to have been got filed with a systematic plan to grab the property which belongs to this defendant exclusively. Armed with some false documents coupled with got up witnesses, the plaintiffs have launched a misadventure of the present kind by making false and vexatious averments knowing them to be false, The defendant is entitled to compensatory costs. It is her specific case that, Smt. Peeranbi was the only wife of Shri 8 Sahebpashya. Smt. Beepashya was not the wife of Sin-i Sahebpashya much less first wife of Shri Sahebpashya as contended. The said Smt. Beepashya was a stranger to Shri Sahebpashya and not a wife as contended. Some false relations are imagined and stated to suit the convenience. Smt. Beepashya had nothing to do either with Shri Sahebpashya or in any way concerned or related to him. Smt. Peeranbee was the only wife of Shri Sahebpashya and this defendant Is the sole daughter and heir to them. Neither Sahebpashya had any other wife other than Smt. Peeranbee nor the present plaintiffs are the daughters born to Shri Sahebpashya. This defendant is the only daughter of Sahebpashya and Smt. Peeranbee and Smt. Peeranbee Is the only wife to Shri Sahebpashya during his life time. It is the plaintiffs who are trying to create some trouble to harass the defendant. The defendant has preferred appeal against the orders of the DDLR Belgaum and has obtained a stay order.
7. As per the Births and Deaths register maintained by the Tahsildar, Bijapur, Smt. Beepashya's death took place on 9.1.1963. In the column of whether dead person was married 9 or not' it is clearly and unequivocally mentioned as 'not married'. In the column of 'name of husband/wife' nothing is mentioned. During the course of proceedings before revenue Courts xerox copies of the said register pertaining to Smt, Beepashya are produced and also before the High Court of Karnataka. Finding irked by the production of said xerox copies, it seems that plaintiffs hatched a plan with mischief making elements who had access to the said register got entered as 'married' and in the column of 'name of husband/wife' inserted the name of Sahebpashya. This fact of insertion came to the knowledge of the defendant when she received Court summons in the form of postal cover pertaining to the suit. When she made an enquiry apprehending probable foul play, she came to know about the said insertion. Immediately the defendant got filed an application through her son before the Tahsildar, Bijapur complaining the said illegal acts. The Tahsildar after making detailed enquiry and investigation ordered to delete the said illegal entries. Thus it can be seen that how illegal and dirty hands of plaintiffs work and reach to any extent. It is this defendant alone in possession and wahiwat of the suit properties to the exclusion 10 of others. Neither the plaintiffs are in possession nor they are in any way concerned with them. Plaintiffs have nothing to do with the suit properties much less they are in joint possession as contended. Therefore, they sought Ibr dismissal of the suit.
8. On the aforesaid pleadings. the trial Court framed the following issues : -
1. Do plaintiffs prove that their mother Bee Pashya was the wfe of Sahebpashya?
2. Do they further proce that they are born out ol the wedlock between Beepashija cinci Sahebpashya?
3. If so. are they tenants in common wit/i defndant in respect of the stilt properties?
4. Are they entitled ro share in the suit properties?
5. f so. what is the share of each of the party and in which of the suit properties?
6. What decree or order?
9. The plaintiffs in order to establish their case examined the second plaintiff as PW1 and they also examined 1' 11 two witnesses as PWs 2 and 3. They also produced 23 documents which are marked as Exs. P1 to P23. Defendant also examined herself as DW1. She also produced 12 documents which are marked as Exs. Dl to D12.
10. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that the plaintiffs have failed to establish that Beepashya was married to Sahebpashya and they are born to them. On the contrary the evidence on record shows Sahebpashya had only one wife Peeranbee and defendant Is her only daughter and therefore on the death of Sahebpashya she succeeded to the entire estate. Therefore, the plaintiffs are not entitled to partition and separate possession much less to the relief of Injunction. Therefore, it dismissed the suit. Aggrieved by the said judgment and decree. the plaintiffs have preferred this appeal.
11. Learned counsel for the appellants assailing the Impugned judgment and decree of the trial Court contended that. Ex.P 13-the registered gift deed executed by the father of Beepashya on 24.9.1942 clearly shows that Beepashya Is the p 12 wife of Sahebpashya. Similarly, one Syed P Pasha had filed a suit against Beepashy&s father and brother and sisters in 0.5. No. 161/1995 whereIn Beepashya was shown as 7° defendant and described as the wife of Sahebpashya Inamdar of Bijapur which is marked as Ex.P19. Ex.P20 is the decree passed in the said suit which also shows that Beepashya was the wife of Sahebpashya. Ex.P21 is the judgment in appeal No.149/57 where also Beepashya is shown as the wife of Sahebpashya Inamdar, Gachi Mahal Lane. Ex.P22 is the decree copy which again shows the same tiling. The advocates of the plaintiffs on 20.2.1986 durIng the lifetime of their father Sahebpashya had issued a public notice stating that Sahebpashya had two wives Beepashya and Peeranbee and plaintiffs and defendant are the daughters born to them. There are no sons. Sahebpashya is aged about 75 years and therefore as he is not mentally in a fit condition, nobody should purchase the properties mentioned in the said notification which belongs to him as the daughters have a right in the said property. He also relied on Ex.P18 dated 28.10.1942 where mutation entry was made on the basis of the registered gift deed In favour of Beepashya. He contends these are all registered documents which have come into 13 existence at an undisputed point of time which are more than 30 years old and therefore the trial Court committed a serious error In ignoring this documentary evidence and holding that the plaintiffs have not proved their case and therefore he submitted that it is a clear case of misreading of the evidence on record. as such the judgment and decree of the trial Court requires to be set aside and the plaintiffs' suit Is to be decreed.
12. Per contra. the learned counsel appearing for the defendant-respondent submitted that the mutation entries were made in the name of the defendant after the death of Sahebpashya. Aggrieved by the same. the plaintiffs preferred an appeal which came to be dismissed and the said orders have become final. Against the order which was passed In their favour defendants have preferred an appeal and obtained a stay order. That apart in the death certificate obtained by the plaintiffs showing that Beepashya was married to Sahebpashya. the name of Sahebpashya was inserted, otherwise the said colunm was left blank showing that she was not married. The defendants had obtained a copy to that effect which they have produced before the revenue authorities. On coming to know of 14 the insertion they made an application to the Tahsildar who after enquiry being convinced that it is an insertion has passed an order deleting the said insertion. In those circumstances. the plaintiffs not having established their relationship are not entitled to decree for partition. The trial Court has appreciated these facts and passed an order which cannot be found fault with. Therefore, he sought for dismissal of the appeal.
13. In the light of the aforesaid facts and the contentions, the point that arise for consideration in this appeal is:
Whether the plaintiffs are the daughters of Beepashya and were born to Sahebpashya? In other words, whether Beepashya was the first wife of Sahebpashya and the plaintiffs were born to them?
14. The undisputed facts which emerge from the material on record is. the suit schedule property belong to I 15 Sahebpashya. The dispute is whether he had two wives or only one wife. The case of the plaintiffs Is, he had two wives, Beepashya and Peeranbee. Plaintiffs are the daughters born to Sahebpashya through the first wife, whereas the defendant Is the daughter born to Sahebpashya through second wife. k Is not In dispute that Beepashya died on 9.1 .1963 whereas Peeranbee died in 1972. Sahebpashya died on 20.5.1993. The trial Court was carried away by the fact that in the birth extract produced by the plaintiffs showing that Beepashya was the wife of Sahebpashya, the name of Sahebpashya was an interpolation because earlier to that the defendant had obtained a death certificate and produced the same before the revenue authorities where the said column was left blank giving an Impression that she died unmarried. On coming to know of the Insertion It Is the case of the defendant they filed an application before the Tahsildar for deletion of the said name. According to them. the Thhsildar held an enquiry and being satisfied that It Is an Insertion passed an order deleting the name of Sahebpashya. Therefore, the trial Court concludes that Beepashya was not married, she was not the wife of Sahebpashya and therefore plaintiffs have not established their 16 case. It is unfortunate that in a Civil Court. the suits of the parties are sought to be decided on the basis of an entry in the death certificate and relying on the so called enquiry conducted by a Tahsildar. The revenue authorities have no jurisdiction to decide the status of parties. Either they can make entries in the revenue records on the basis of the representation made and if those representations are found to be false they can delete it. Either the entries made or the entries deleted would not decide the status of the parties. It falls exclusively within the jurisdiction of the Civil Court to decide the status of the parties. This elementaiy principle has not been kept in mind by the learned trial Judge and he committed serious error in holding that the plaintiffs have failed to prove that their mother Beepashya was the first wife of Sahebpashya. Therefore the said finding requires to be set aside.
15. In order to substantiate their claim, the plaintiffs rely on Ex.P-13, a registered gift deed executed by father of Beepashya in her favour on 24.09.1942 at an undisputed point of time. Acting on the said registered gift deed, the Revenue authorities mutated the name of Beepashya as per Ex.P- 18 on 1--• 17
28. 10. 1942. When confronted with this undisputed registered document. the defendant's stand is. when the father was giving property to the daughter, if it was recited that she was unmarried. ft was humiliating and therefore they have added this name. An explanation which is far from satisfactory. I fail to understand how, if a lady is described as not married, it would be humilating and how she can be shown to be the wife of a person to whom she is not married. A strange explanation which has been accepted by the trial Court. That is not the only solitary document, The suit was filed against Beepashya and her parents challenging the alienation in O.S.No. 161/55. In the said suit, Beepashva was arrayed as 7i defendant and there she is described as wife of Sahebpashya. It is in the year 1957. After contest. the suit came to be dismissed by judgment and decree dated 15.04.1957. which is marked as Ex.P-i9. A decree was drawn up as per Ex.P-20 where also Beepashya was shown as wife of Sahebpashya. Against the said judgment and decree, an appeal was filed in R.A.No.149/57 as per Ex.P-21 where also Beepashva was shown as w/o Sahebpashva. The appeal came to be dismissed. A decree came to be drawn as per Ex.P-23 where also the name of Beepashva was shown as w/o S 18 Sahebpashya. These Court proceedings initiated by the third parties who are strangers to the famfly described Beepashya as w/o Sahebpashya in the year 1957, at an undisputed point of time. The explanation is they are all got up documents and therefore they cannot be acted upon. The argument which requires to be rejected at the threshold.
16. Then we have Ex.P- 17, a paper publication issued by a Counsel of the plaintiffs Informing the general public that the properties exclusively belong to Sahebpashya; he has got two wives; Beepashya and Peeranbee and through them he has got three daughters. who are the plaintiffs and defendant herein: he Is aged 75 years; he is mentally not alert: these daughters have a right In the said property and therefore any person who Is purchasing the said property should be careful and they will be doing at their own risk and cost. It Is to be remembered that Sahebpashya died In the year 1993, i.e., nearly seven years after the said advertisement. Neither Sahebpashya nor the defendant raised their little finger againt this notification. Again this Is also at an undisputed point of time. These documentaiy evidence clearly establishes that 19
-4 Beepashya was married to Sahebpashya. In this context It Is to be noticed that if in 1942 Beepashya married Sahebpashya and the suit Is filed In 1995, nearly after 50 years and the daughters of Beepashya were called upon to prove the marriage of their mother with Sahebpashya, having regard to the background from which these parties are coming from, It Is next to Impossible, though an attempt Is made to examine the witness. ft Is not the exact date of marriage, performance of marriage ceremonies. who attended the marriage, where the marriage took place, how many people had gathered. who were the persons who saw the marriage, which weigh with the Court. It Is the course and conduct which should weigh with the Court. If we look at It from that angle. the father executes a gift deed In favour of his daughter who Is married, In 1942 and the Revenue authorities acting on the same makes the mutation entries. A stilt Is filed against father, one daughter and sons. where the description of daughter Is clearly given. The suit Is contested. Suit Is dismissed. Appeal filed. Appeal dismissed. In all these proceedings. if Beepashya Is shown as w/o Sahebpashya. I do not think the Court should insist on any more proof and it has to simply rely on these registered documents. the mutation 20 entries and judicial proceedings which clinchingly proves that Beepashya is the w/o Sahebpashya. Even in 1986 when paper notification was given making it known to the general public the relationship, no one raised their little finger. The trouble started only after the death of the old man on 25.09. 1993. It is at that stage when dispute arose, the parties approached the Court, the Court cannot insist on proof of marriage as though it has happened few years back. The entire approach of the trial Court is perverse, insensitive to the needs of the situation, parties involved, the valuable right accrued to the parties have been thrown to winds without heart. In that view of the matter. the judgment and decree of the trial Court cannot be sustained.
17. From the aforesaid discussion, it is clear that suit property helons to Sahehpashya. He married Bcepashva and plaintiffs are born to them. Sahehpashva also married Peeranbee. Defendant is born to her. Now that Sahebpashva's two wives are dead leaving behind daughters. all the three daughters would take the property equally, i.e., 1/3rd share each. So plaintiffs are entitled to 2/3 share and defendant is entitled to 1/3rd share.
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18. It is submitted that during the pendency of this proceedings, in utter disobedience of the order of injunction granted. the defendant has sold the property to the proposed defendants2 to 6. As the said alienation is made during the pendency of the proceedings. it is hit by doctrine of Us peridense. As the plaintiffs have succeeded in the end, this alienation to the extent of plaintiffs' share remains unaffected. At the same time, when parties purchase the properties in derrogation of the interim order passed by this Court. the Court has to decide the rights of the parties ignoring such alienation. In that view of the matter, the question of showing any mercy to these purchasers would not arise. Hence, I pass the following order:
Appeal is allowed.
The judgment and decree is hereby set aside, It is declared that plaintiffs between them are entitled to 2/3rd share in the suit schedule property. Whereas, defendant is entitled to 1 /3rd share. The plaint(ffs are also entitled to mesne profits from the date of the suit till they are put in possession of their respective shares. Parties to bear their own costs.
Sd/ IUDGE ckl/ksp/