Karnataka High Court
Syed Shafi S/O Late Syed Kareem And Ors vs Syed Khasim S/O Late Syed Zafer Hussain & ... on 23 November, 2012
Author: B.S.Patil
Bench: B.S.Patil
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 23RD DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
WP.No.86019/2012 (GM-CPC)
BETWEEN:
1. Syed Shafi S/o Late Syed Kareem
Age: 40 years, Occ: Mechanic
R/o No.9-5-32, Maddipet
Raichur - 584 101
2. Haneef S/o Late Syed Kareem
Age: 55 years, Occ: Private Service
R/o Near Eranna's House
Zaheerabad, Raichur - 584 101
3. Maimuna Begum
W/o Late Syed Gafoor
Age: 75 years, R/o Maddipet,
Raichur - 584 101
4. Syed Sadiq S/o Late Syed Gafoor
Age: 45 years, R/o Maddipet
Raichur - 584 101
5. Syed Mohammed
S/o Late Syed Gafoor
Age: 43 years, R/o Maddipet,
Raichur - 584 101
6. Syed Khasim
S/o Late Syed Gafoor
Age: 41 years, R/o Maddipet
Raichur - 584 101
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7. Syed Khaja Hussain
S/o Late Syed Gafoor
Age: 37 years, R/o Maddipet
Raichur - 584 101
8. Syed Moinuddin
S/o Late Syed Gafoor
Age: 35 years, R/o Maddipet
Raichur - 584 101
9. Syed Shalem
S/o Late Syed Gafoor
Age: 28 years, R/o Maddipet
Raichur - 584 101
10. Smt. Malan Begum
W/o Khaja Moinoddin
Age: 39 years
R/o. Opp: Begumpet Railway
Hyderabad (AP)
11. Smt. Zareena Begum
W/o Shaik Mohuiddin
Age: 30 years
R/o Near Laxmi Narayan Hospital
Tippu Sultan Road
Raichur - 584 101
12. Syed Khadeer
S/o Late Syed Basheer
Age: 30 years
W/o Late Syed Basheer
R/o Maddipet, Raichur - 584 101
... PETITIONERS
(By Sri Sachin M. Mahajan, Advocate)
AND:
1. Syed Khasim
S/o Late Syed Zafer Hussain
R/o Santi Bennur village
Tq. Channagiri, Dist. Shimoga - 577 213
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2. Noorani Begum
W/o Late Syed Zafer Hussain
Age: 70 years
R/o H.No.9-5-37, Maddipet
Raichur - 584 101
3. Syed Maheboob
S/o Late Syed Zafer Hussain
Age: 54 years
R/o H.No.9-5-37, Maddipet
Raichur - 584 101
4. Gousiya Begum W/o Syed Sadiq
Age: 32 years
R/o H.No.9-5-37, Maddipet
Raichur - 584 101
5. Bibi Begum W/o Late Ibrahim
Age: 59 years
R/o. Opp: Telephone Exchange
Patel Road, Raichur - 584 101
6. Shameem
W/o Late Abdul Hafeez
Age: 36 years
R/o Maddipet, Raichur - 584 101
7. Zainab Begum W/o Syed Ishaq
Age: 36 years
R/o. Opp: Begumpet Railway Station
Hyderabad (AP) - 500 016
8. Fathima Begum W/o Khasim Ali
Age: 34 years
R/o. Opp: Begumpet Railway Station
Hyderabad (AP) - 500 016
9. Rahimunnisa
W/o Md. Nateem Khan
Age: 35 years
R/o. Opp: Begumpet Railway Station
Hyderabad (AP) - 500 016
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10. Haji Begum W/o G. Farooq
Age: 34 years
R/o. Opp: Begumpet Railway Station
Hyderabad (AP) - 500 016
11. Salam Banu W/o Abdul Lateef
Age: 32 years
R/o. Opp: Begumpet Railway Station
Hyderabad (AP)
12. Shamshad Begum W/o G. Farooq
Age: 30 years
R/o. Opp: Begumpet Railway Station
Hyderabad (AP)
13. Ameenabee
W/o Late Syed Basheer
Age: 40 years, R/o Maddipet
Raichur - 584 101
... RESPONDENTS
(Sri K.N. Timmapuri, Adv. for R1;
Notice to R2 to R13 is dispensed with)
This petition is filed under Articles 226 & 227 of the
Constitution of India, praying to pass a writ or order or
direction in the nature of certiorari and quash the order dated
20.09.2012 passed by the Civil Judge (Sr.Dn.) at Raichur, on
I.A. No.VI in O.S.No.73/1996, produced as Annexure-G and
consequently allow the said application and etc.,
This petition coming on for Preliminary Hearing this day,
the Court made the following:
ORDER
Heard the learned Counsel for the parties. 5
2. Challenge made in this writ petition is to the order passed by the Trial Court rejecting the application seeking amendment of the plaint.
3. The suit is of the year 1996 filed for partition and separate possession of the suit properties. The parties are Mohamedans. The suit is at the stage of evidence. Plaintiffs/petitioners herein filed two applications. One seeking permission to produce an additional document and another seeking amendment of the plaint. The document sought to be produced was registered partnership deed dated 01.05.1997.
4. The court below has allowed the plaintiffs to produce the said document, however, as regards the prayer made for amendment of the plaint for including certain additional factual averments in para 3 of the plaint to the effect that 'previously the second defendant was carrying oil business in his individual capacity with the assistance of participation of other jointly family members i.e., plaintiff No.1, plaintiff No.2 and late Basheer and defendant No.2 and thereafter the said firm finally came 6 into existence and that the suit property was nominally purchased in the name of defendant No.1 out of the income generated by defendant No.1/plaintiff No.1, plaintiff No.2 and late Syed Basheer'. Plaintiff further intends to contend that the registered partnership deed was with the defendant No.2 and hence the copy of the same was filed. This amendment is rejected by the court below holding that, since the parties were Mohamedans question of existence of joint family do not arise.
4. Learned Counsel for the petitioners taking me through the judgment in the case of C.Krishnamurthy Setty V/s Abdul Khadar and others - AIR 1956 MYSORE 14, contends that if during the continuance of the family, properties are acquired in the name of the managing member of the family and it is proved that they are possessed by all the members jointly, the presumption would be that they are the properties of the family and not separate properties of the member in whose name they stand.
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5. It is true that in the above judgment such an observation is made by referring to Mullas Mohammadan Law.
6. In paragraph 4 of the plaint, the plaintiff/petitioner has averred as under:
"Since all the partners of the said business were all members of same family and real brothers, all of them jointly reserved and saved partition of their earnings out of the joint business and out the said savings they purchased an Agricultural Land bearing Sy.No.163 measuring 18 acres 35 guntas assessed at Rs.26-58 Ps. Situated in the limits of Jalibenchi village, Tq: Raichur. The said land shall herein after be called as the "SUIT LAND".
It is in support of the aforesaid averment, that the petitioners have produced the copy of the registered partnership deed. Therefore, it is for the plaintiff to establish these averments by leading evidence in the matter.
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7. Learned Counsel for the respondents rightly contends that the amendment is totally unnecessary and any further delay in the suit, which was instituted in the year 1996, would prejudicially affect the interest of the defendant.
8. In my view there is no apparent illegality or error of jurisdiction in the order under challenge. As the petitioner can lead evidence with regard to the partnership deed, there will be no failure of justice either.
The writ petition, therefore, being devoid of merits is dismissed subject to the observations made above.
Sd/-
JUDGE MSR