Karnataka High Court
Shahajahan W/O. Sayyed Isub Khaji vs Fatima W/O. Abdul Gafag Hulkop on 31 March, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO.5813/2013 (DEC. & POSS.)
BETWEEN:
SHAHAJAHAN
W/O.SAYYED ISUB KHAJI,
AGE: 64 YEARS,
OCC:HOUSEHOLD WORK,
R/O. GANDHADA HITLU,
DIST: UTTAR KANNADA -581 334.
... APPELLANT
(BY SRI.DINESH M KULKARNI, ADVOCATE)
AND
1. FATIMA W/O. ABDUL GAFAR HULKOP,
AGE: 79 YEARS,
OCC:HOUSEHOLD WORK,
R/O. GANDHADA HITLU,
HONAVAR KASABA,
HONAVAR - 581 334.
2. MOHAMMAD GOUSE
S/O. VALLAD ABDUL GAFAR HULKOP,
AGE: 51 YEARS,
OCC: AGRICULTURE,
R/O. GANDHADA HITLU,
HONAVAR KASABA,
HONAVAR - 581 334
3. MOHAMMAD ISMAIL
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S/O. VALLAD ABDUL GAFAR HULKOP,
AGE: 43 YEARS, OCC: SERVICE,
R/O. GANDHADA HITLU,
HONAVAR KASABA,
HONAVAR - 581 334.
... RESPONDENTS
(R1 AND R2 THROUGH GPA;
R3 PARTY IN PERSON)
THIS APPEAL IS FILED U/S. 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED:15.07.2013
PASSED IN R.A.NO.26/2009, ON THE FILE OF THE SENIOR
CIVIL JUDGE, HONAVAR, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE
DATED:05.09.2009 AND THE DECREE PASSED IN
O.S.NO.29/1999 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (JR.DN.) HONAVAR, DECREEING THE SUIT FILED
FOR DECLARATION AND POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 03.03.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED
THE FOLLOWING: -
JUDGMENT
That suit property consists of two items namely agricultural land to an extent of 11 Guntas in Survey No.271A, Hissa 6 of Honnavara village and a house property bearing No.686. The 1st plaintiff is the wife and plaintiffs 2 and 3 are the sons of one Abdul Gafar. The defendant No.1 is the brother and the defendant No.2 is the sister of said Abdul Gafar. The plaintiffs brought a suit for declaration of :3: their title in respect of entire suit property and possession of 2nd item of the suit property.
2. The plaintiffs' case is that Abdul Gafar, purchased leasehold right of 27 Guntas of land in Survey No.271A/2 of Honnavara and a house i.e. 2nd item absolutely from one Abdul Rahiman Mefaji Kashim Mavaji of Calcutta, who used to come to Honnavara and stay there in connection with his cane business. Out of 27 Guntas, Abdul Gafar sold 15 Guntas to one Fransis Bastanv Fernandis on 18.11.1963 and retained the 1st item of the suit property with him. Then he applied for grant of occupancy right under the Land Reforms Act and obtained that right on 27.01.1976. Thus he became the occupant of the said land. With respect to the 2nd item of the suit property, he permitted his brother and the sister i.e. the defendants to stay in the ground floor of the house. The plaintiffs and the defendants were using the kitchen, the bathroom and the lavatory commonly.
3. Abdul Gafar died on 02.04.1994. The 1st plaintiff made an application to the Revenue Authority seeking mutation of the suit property to her name after her husband's death. The defendants took objection for the :4: same. The Tahsildar, having registered the application as a dispute, held an enquiry, rejected the objections of the defendants and entered the names of the plaintiffs in the revenue records. The defendants appealed to the Assistant Commissioner, who allowed their appeal. Challenging this, the 1st plaintiff preferred a Writ Petition to the High Court in WP No.7237/1996. Since, an order was passed in the writ petition that the parties should agitate their rights in the Civil Court, the plaintiff brought the suit. The plaintiffs have stated that the defendants have no manner of right or interest in the suit property and that their stay in the house is on the basis of license.
4. The defendants contested the suit. They disputed the marriage of the 1st plaintiff with Abdul Gafar and consequently the right of the plaintiffs on the suit property. They specifically pleaded that their father Abdul Khadar Mugadum Sab obtained the cultivation rights from one Manjunath Annappa Prabhu, who was a tenant of that land. Their father was working under one Abdul Rahiman Mefaji Kashim Mavaji of Calcutta, who used to come to Honnavara for purchasing cane. The said Abdul Rahiman Mefaji Kashim :5: Mavaji was residing in the upstairs of the 2nd item of the suit property with his wife. When the tenant Manjunath Annappa Prabhu wanted to sell his leasehold rights in the year 1947, their father wanted to purchase the said right but he did not have money. Therefore, Abdul Rahiman Mefaji Kashim Mavaji purchased the leasehold rights of the land and the house absolutely. After a few years, the defendant's father purchased the lease hold rights and the house absolutely from Abdul Rahiman Mefaji Kashim Mavaji but he got executed the sale deed in favour of his elder son, Abdul Gafar. Thus it is the case of the defendants that the suit property was actually purchased by their father and not by their elder brother, Abdul Gafar. Actually, Abdul Gafar was unemployed, he did not have income from any source and was not in a position to purchase a property. They were all living in a joint family. Since the revenue records stood in the name of Abdul Gafar, occupancy right was granted to him. But the property belongs to the family and therefore the plaintiffs cannot claim any kind of right or interest absolutely.
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5. The Trial Court after recording evidence came to the conclusion that the property absolutely belonged to Abdul Gafar and therefore, decreed the suit by declaring the title of the plaintiffs and directing the defendants to vacate the house and hand over the same to the plaintiffs, within two months from the date of judgment. The defendants preferred an appeal, RA No.26/2009 to the Court of Senior Civil Judge Honnavara. By judgment and decree dated:15-07-2013, this appeal was dismissed confirming the judgment of the Trial Court. The defendants have challenged the said judgment and decree in this second appeal.
6. On 23.01.2014, this appeal was admitted to consider the following substantial questions of law:-
i) "Whether the trial court as well as the first Appellate Court have committed serious error in coming to the conclusion that the occupancy rights granted in favour of the deceased Abdul Gafar was in his individual capacity in spite of the fact that, Abdul Gafar's father was the tenant of the land during his life time?
ii) Whether the trial Court had committed a serious error in expunging the evidence of :7: defendant No.2 without giving reasonable opportunity for tendering herself for cross-
examination?
7. The learned counsel for the appellants argued that both the Courts below committed an error in law in misconstruing the documents marked Ex.D-1, D-3, D-4 and D-5. Though the sale deed stands in the name of Abdul Gafar, but in the last column of Ex.D-21, Form No.7 submitted by Abdul Gafar, it is clearly written that land was under cultivation of tenant for quite a long time (Anadiyinda). So according to the learned counsel, it was not Abdul Gafar, who became the tenant of this land after purchase of leasehold rights. It can be said that the said land was under cultivation of his father. Because Abdul Gafar was the eldest son, the tenancy rights were purchased in his name by his father. Therefore, the defendants too have a right. Tenancy rights are heritable. The defendants are staying in the house of their father and for these reasons there cannot be a decree for possession against them. Both the Courts below erred in not noticing this aspect of the matter.
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8. Further he argued that the 2nd defendant gave evidence as DW-1. But he could not appear for cross- examination. The entire examination in chief was expunged. The defendants were not provided with reasonable opportunity of establishing their defense. Hence, this is also one of the grounds for which appeal needs to be allowed.
9. The 3rd respondent, Mohammed Ismail appeared in person and argued on his behalf and also on behalf of other two respondents. His argument was that Ex.P-3, 64 and 70 disclose very clearly that his father Abdul Gafar purchased the suit property. A recital in Ex.P-3 shows very that it was Abdul Gafar, who was working under the seller namely Abdul Rahiman Mefaji Kashim Mavaji and therefore, the sale deed was executed in his father's name exclusively. Ex.P-64 shows that Abdul Gafar borrowed money from a Co-operative Bank for purchasing 27 Guntas of land. Ex.P-70 discloses that since Abdul Gafar failed to repay the money, the Bank raised dispute and issued notice to him. Therefore, he had to sell away 15 Guntas of land out of 27 Guntas, and from the sale proceeds he cleared the dues to the bank. It was his further arguments that the Trial Court rightly came to :9: conclusion that the defendants were allowed to stay as licensees in the house and for this reason they have been ordered to vacate the house. Both the Courts have taken consistent view on facts and therefore this Court cannot alter those findings.
10. As regards cross-examination of DW-1, his argument was that the Court rightly expunged the evidence of DW1 because he failed to appear before the Court, in spite of giving sufficient chances. There is no illegality in expunging his evidence. The Court cannot keep waiting for a witness to come. Therefore, this appeal has to be dismissed. Having considered the arguments of learned counsel for parties, the substantial question are answered as below.
Substantial question of law No.(i):
11. So far as 1st substantial question of law is concerned, it has to be stated that both the Courts have consistently held that it was Abdul Gafar who purchased the leasehold rights of the agricultural land and the house. The purchase thus made by him was exclusively on his behalf. The defendants who have taken up a specific contention that their father got the sale deed executed in the name of Abdul : 10 : Gafar have failed to prove it. So when both the Courts below have held concurrently on this issue, this court cannot interfere with that finding of fact. Only when the fact finding appears to be perverse and contrary to the evidence available on record, there can be interference with it in the second appeal.
12. Even otherwise the concept of joint family is alien to Mohammedan Law. The learned counsel for the appellant has relied upon a judgment of this Court in the case of Balagouda Alagouda Patil and others versus Babasaheb Ramagouda Patil (ILR 1999 KAR 831). The ratio laid down in this judgment is that if occupancy right is granted to a member of the family, such grant is to the benefit of the entire family. Though there cannot be a second word with regard to this proposition, but this ratio cannot be made applicable to the facts of this case because the parties are Muslims, who are governed by their own personal law. In Mohammedan Law, there is no presumption, like the one available in Hindu Law, that acquisition by a member of family living and messing together is for the benefit of the entire family. The theory of representation is unknown to Mohammedan Law.
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13. But in the commentary on Principles of Mohammedan Law by Mulla in Para 57, dealing with joint family and joint family business, it is stated as below:-
"But 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 is that they are the properties of the family, and not the separate properties of the member in whose name they stand".
14. So, to apply the above principle, evidence is necessary. But in this case, both the courts have held that there is no evidence in proof of this specific stand taken by the defendants in their written statement.
15. If rules of inheritance found in Mohammedan Law are considered, the defendants being the brother and the sister of Abdul Gafar, come under the category of sharers only in the absence of a child or a child of a son or father or true grandfather. The plaintiffs 2 and 3 being the sons of Abdul Gafar, exclude the defendants from claiming any share in the category of sharers. The 1st plaintiff being the : 12 : wife of Abdul Gafar, is another sharer and she takes 1/8th share when there is a child or child of a son. So her share is not affected. Both plaintiffs 1 and 2 are residuaries. Therefore, the defendants do not get any share in the suit property. So for this reason, it has to be now concluded that both the Courts have not committed any error in law in rejecting the defense put forth by the defendants. Therefore, 1st point is answered in negative.
Substantial question of law No.(ii):
16. The grievance of the defendants is that the 2nd defendant who adduced evidence as DW-1, could not appear for cross-examination after he gave evidence in chief. The Trial Court could have given him some more opportunities. In this regard it is the clear observation of the Trial Court that the defendants have successfully dragged on the matter. It is duty of the witness to appear for the cross-examination. It is not although the Trial Court did not give any opportunity to DW-1 to appear for cross-examination. The matter was adjourned for more than three times to enable DW-1 to appear for cross-examination. So when sufficient opportunity was given and when DW-1 did not appear for : 13 : cross-examination, the Trial Court was fully justified in expunging the entire evidence. There is no error of any kind in this. Hence, this point needs to be answered in the negative.
17. Therefore from the above discussion, it has to be now concluded that the appeal should be dismissed and hence it is dismissed. However, three months time is given to the defendants from today to vacate the house. There is no order as to costs.
Sd/-
JUDGE yan