Karnataka High Court
Md.Abdul Majeed Khan S/O Md. Abdul Azeez ... vs Mohd.Abdul Jaleel Khan S/O Abdul Azeez ... on 6 January, 2012
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGFI COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
Dated this the 6h day of January. 2012
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
MSA No.561/2010
BEIWEEN:
Md.Abdul Majeed Khan,
Sb Md.Abdul Azeez Khan,
Aged about 49 Years,
0cc: Business.
R/oH.No. 1-178,
Lower Lane, Station Bazar,
Gulbarga.
2. Smt.Mazhar Sultana.
W/o Abdul Majeed Khan,
Age: 45 Years,
0cc: Household,
R/o H.No.l-178,
Lower Lane, Station Bazar,
Gulbarga.
Appellants
(By Sri Arneet Kumar Deshpande, Advocate)
AND:
Mohd.Abdul Jaleel Khan,
Sb Abdul Azeez Khan,
Aged about 64 Years.
0cc: Rtd.Employee of
Private Sugar Factory,
R/oH.No. 1-178,
Lower Lane, Station Bazar,
2
Gulbarga.
Now residing at
Baduruddin Colony,
Bidar.
Moh.Abdul Hafeez Khan
Since dead by LRs,
Masooda Begum,
W/o Abdul Hafeez Khan,
Dead by LRs.
2. Abdul Khadeer Khan,
Sb Abdul Hafeez Khan,
Age: 29 Years,
0cc: KEB Employee,
3. Mateen Khan,
Sb Abdul Hafeez Khan,
Age: 26 Years,
0cc: Business,
Both R/o H.No. 1-178,
Lower Lane, Station Bazar,
Gulbarga.
Now residing at
H.No. 17-8-478/48/1,
Shaha Colony, Dabeerpura Railway
Station, Hyderabad.
Md,Abdul Rasheed Khan,
Since dead by LRs.
4. AbdulJavidKhan,
Sb Late Md.Abdul Rasheed Khan.
Age: 33 Years,
5. AbdulWajidKhan,
Sb Late Md.Abdul Rasheed Khan,
Age: 31 Years,
6. Abdul Babar Khan,
Sb Late Md.Abdul Rasheed Khan,
Age: 21 Years,
3
7. Asma Jabeen,
D/o Late Md.Abdul Rasheed Khan,
Age: 18 Years, 0cc: Household,
8. Salma Jabeen,
D/o Late Md.Abdul Rasheed Khan,
Age: 16 Years,
U/g of her mother Shameem Begum.
9. Shameed Begum,
W/o Late Md.Abdul Rasheed Khan,
Age: 51 Years, 0cc: Household,
4 to 9 are R/o HallikhedB.
Tq: Humnabad, Dist: Bidar.
Respondents
(R2, R4 to R7 & R9 served)
This MSA filed under Order 43 Rule 1(u) of the CPC,
against the judgment and decree dated 06.10.2010 passed in
R.A.No. 14/2009 on the file of the I Addl.Dist.Judge at
Gulbarga, allowing the appeal and setting aside the judgment
and decree dated 01.12.2008 passed in O.S.No. 352/2007 on
the file of the I Addi. Civil Judge (Sr.Dn) at Gulbarga.
This MSA coming on for orders this day, the Court
delivered the following:
JUDGMENT
This appeal is preferred against the judgment and decree passed by the Lower Appellate Court in HA No. 14/2009 remanding the matter to the trial Court for fresh disposal in accordance with law.
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2. The subject matter of the suit is house property bearing No. 1/178 situated in Lower Lane. Station Area. Gulbarga. Plaintiff No.1, deceased plaintiff No.2, plaintiff No.3 and defendant No.1 are the sons of one Abdul Azeez Khan. Plaintiff No. 2(a) is the wife and plaintiffs No. 2(b) and (c) are children of deceased plaintiff No.2 and defendant No.2 is the wife of defendant No.1. Late Fatima Bee who is the mother of the plaintiffs and defendant No.1 was the absolute owner and in possession of the suit property. She died on 21.1.1999 leaving behind the plaintiffs and defendant No.1 as her legal heirs. After her death the suit property devolved among the plaintiffs and defendant No.1 as descendants and plaintiffs No.1 to 3 and defendant No.1 are the only male members, tenants in common. They are in joint possession of the suit property as co-owners. Plaintiffs 1 to 3 are residing separately for their avocation and taking undue advantage of absence of plaintiffs No.1 to 3, the defendant No.1 got mutated the suit house in his name behind the back of plaintiffs. On a representation made by the plaintiffs the mutation was deleted. The plaintiff was demanding partition. He came to know on 8.11.2006 the defendant has already executed a registered gift deed dated 28.2.2005 in favour of 5 defendant No.1 in respect of the suit property. When questioned defendant No.1 disputed the right of the plaintiff to the property. Therefore, the plaintiff was constrained to file the suit for partition and separate possession of his legitimate share and also sought for cancellation of the gift deed.
3. After service of summons, defendants entered appearance. They contested the matter. They denied all the allegations in the plaint. It is their specific case that suit property was gifted by Fatima Begum in favour of defendant No.1 on 20.3.1998. Fatima Begum had executed a memorandum of gift deed on 7.4.1998 and plaintiff No.3 had signed the document. Suit is filed in the year 2006 after lapse of 6 years. Therefore, the suit is hopelessly barred by time.
4. On the aforesaid pleadings, the trial Court framed the following issues: -
Li Whether the plaintiffs prove that the suit property has devolved upon themselves and defendant No.1 after the death of SmL Fatima Begum as alleged?
ii) Whether the plaintiffs further prove that themselves and defendant No.1 are the co L 6 owners in joint possessions and eqjoyment of the suit property as alleged?
iii) Whether the plaintiffs further prove that the
gft deed dated 28.02.2005 executed by
defendant No.1 in favour of defendant No.2 is collusive and illegal as alleged?
iv) Whether the defendants proves that
SmLFatima Begum being the mother of
defendant No.1 and out of love and affection gfted the suit property orally and thereafter executed a memorandum of gift dated 20.03.1998 in his favour and delivered possession of the suit property as alleged?
v) if so, whether the defendants further prove that the first defendant is the absolute owner of the suit property by virtue of the gtft made by the mother as alleged?
vi) Whether the suit is not maintainable as
contended in Para No.18 of the written
statement?
vii) Whether the plaint ffs prove that they have
got equal share over the suit properties along with defendant No.1 as alleged?
viii) Whether the plaintiffs are entitled for partition and separate possession?
ix1 Whether the plaintiffs are entitled for the relief of declaration?
x) What Order or Decree?
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ADDITIONAL ISSUE
I) Whether the suit of the plaintiffs is barred by limitation as contended by the defendant at Para 18 of the written statement?
5. Strangely without notice to the parties, issues were recasted on 25.11.2008 as under: -
i) Whether the plaintiffs prove that after the death of Fatima Begum the property has devolved upon the plaintiffs and defendant No.1 and has become the co-owners and in joint possession and enjoyment of the same and hence they are entitled for 1/4th share each as sought in the plaint?
ii) Whether the defendants prove that out qf love and affection. Fatima Begum had executed the oral gft in favour of defendant at the first instance and thereafter executed the Memorandum of Gift Deed dated 20.03.1998 and delivered the possession in favour of the defendant No.1?
iii) Whether the plaintiffs prove that the gft deed dated 28.02.2005 executed by defendant No.1 in favour of defendant No.2 is not binding on therm as it is illegal and collusive? 8
iv) Whether the defendants prove that they have become absolute owner of the suit property by virtue of gft made?
v1 Whether the suit is hit by law of limitation?
vi) What Decree or Order?
6. Plaintiff in support of his case examined himself as PW1 and a witness Mohammed Abdul Aziz as PW2 and produced 3 documents which are marked as Exs. P1 to P3. On behalf of the defendants, 4 witnesses were examined as DWs 1 to 4 and 9 documents were produced which are marked as Exs. Dl to D9.
7. The trial Court on consideration of the oral and documentary evidence on record dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiff preferred an appeal to the District Court. The learned District Judge noticed that the parties had no notice of the recasting of the issues. After recasting of the issues, no opportunity was given to the parties to adduce any additional evidence nor have they been heard in respect of the recasted issues. Under those circumstances, he was of the view the entire judgment and decree passed by the trial Court is vitiated and therefore he set aside the judgment and decree of the trial Court, 9 remanded the matter back to the trial Court for fresh consideration after giving opportunity to the parties if they want to lead any further evidence. It is against the said order, the present appeal is filed.
8. Learned counsel for the appellant assailing the impugned judgment and decree of the Lower Appellate Court contends though issues were recasted without notice to the parties, substantially the recasted issues are similar to the issues which were framed earlier. No prejudice is caused to any of the parties by such recasting. The evidence on record is sufficient to decide even the recasted issues. In those circumstances, the Lower Appellate Court was not justified in setting aside the judgment and decree of the trial Court and in not delivering a judgment on merits and therefore he submits a case for interference is made out.
9. From the order of the lower Appellate Court it is clear, what is the reason for recasting of the issues is not forthcoming either from the judgment or from the order sheet maintained by the trial Court. Even the recasted issues are not signed by the trial Judge. As is clear from the judgment, 10 the issues framed earlier are also set out, additional issues are also set out, recasted issues are also set out and then an attempt is made to answer only the recasted issues. This is not the way a trial Court should write a judgment. If before writing a judgment issues have been recasted there should be some reasons for recasting of the issues. Application of mind, thinking process of the Judge is to he evidenced by an order of the Court. If at the time of writing the judgment if the learned Judge feels issues had to be recasted he has ample power to recast the issues, But, he owes a duty to bring it to the notice of the parties the issues which are recasted and give them an opportunity to adduce any evidence if they choose to do so and then only he can write the judgment on merits. If that procedure is not followed, not only the judgment is vitiated it offends the principles of natural justice. At any rate that is not the way a judicial authority should write while dealing with a regular suit. The procedure adopted by the trial Court is contrary to the settled principles and the provisions of CPC. Therefore, the lower Appellate Court was justified in setting aside the judgment and decree of the trial Court and remanding the matter back to the trial Court for fresh disposal. I do not see any justification to 11 interfere with the well considered order passed by the lower Appellate Court. No merits. Appeal is accordingly dismissed.
However, as the matter is lying in the Court for some time without any finality of the dispute, the trial Court shall issue notice to the parties, secure them and try to dispose of the suit expeditiously after giving opportunity to the parties if they make a request in accordance with law.
No costs.
Sd/ JUDGE ckl/