Karnataka High Court
Sri. M Abdul Khuddus vs Sri Abdul Gafoor on 30 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.F.A.No.1479/2012
BETWEEN:
1. SRI M ABDUL KHUDDUS
S/O LATE ABDUL KAREEM
SINCE DEAD BY HIS LRS.
2. SMT. HASMATH UNNISA
W/O LATE M ABDUL KHUDDUS
AGED ABOUT 63 YEARS
R/AT No.31, DURGAMMA
TEMPLE STREET, KALASIPALYA
BANGALORE-560 002.
3. SRI MUSTAQ AHAMED
S/O LATE ABDUL KHUDDUS
AGED ABOUT 40 YEARS
R/AT No.151, MAIN ROAD
KALASIPALYAM
BANGALORE-560 002.
4. SMT. JASMIN
D/O LATE ABDUL KHUDDUS
W/O A M FASI BAIG
AGED ABOUT 45 YEARS
R/AT No.198/1, DAS COMPOUND
R V ROAD CROSS
BASAVANAGUDI
BANGALORE-560 004.
2
5. HUMERA BEGAUM
D/O LATE C ABDUL KHUDDUS
W/O C ABDUL GAFOOR
AGED ABOUT 43 YEARS
R/AT No.3, MOSQUE ROAD
BASAVANAGUDI
BANGALORE-560 004.
6. SAMEENA BEGUM
D/O LATE C ABDUL KHUDDUS
W/O K K MAKSUD ALI
AGED ABOUT 41 YEARS
R/AT No.31, DURGAMMA
TEMPLE STREET, KALASIPALYA
BANGALORE-560 002.
7. NAJMA ZABI
D/O LATE C ABDUL KHUDDUS
W/O M S ZABI PASHA
AGED ABOUT 31 YEARS
R/AT No.64, 1ST FLOOR
RANAJI RAO ROAD
BASAVANAGUDI
BANGALORE- 560 002.
8. SHABANA BANU
D/O LATE C ABDUL KHUDDUS
W/O SYED SHAH MAKSOOD ALI
AGED ABOUT 29 YEARS
R/AT S .B .M ROAD
NELMANGAL TALUK
BANGALORE - 560 099.
...APPELLANTS
(BY SRI MOHAMMED NASIRUDDIN, ADVOCATE)
AND:
1 . SRI ABDUL GAFOOR
S/O LATE ABDUL KAREEM
AGED ABOUT 58 YEARS
3
R/AT No.18/1
18TH CROSS ROAD
LAKKASANDRA
BANGALORE- 560 030.
SRI M ABDUL LATEEF
S/O LATE ABDUL KAREEM
SINCE DEAD BY HIS LRS
2. SMT. HASEENA BEGUM
W/O LATE M ABDUL LATEEF
AGED ABOUT 61 YEARS.
3. SMT. HINA KAUSAR
D/O LATE M ABDUL LATEEF
AGED ABOUT 41 YEARS
4. SRI MASOOD ALI
S/O LATE M ABDUL LATEEF
AGED ABOUT 38 YEARS
5. SMT. SHAMER BANU
D/O LATE M ABDUL LATEEF
AGED ABOUT 36 YEARS
RESPODNENTS No.2 TO 5 ARE
R/AT No.8/1, 1ST FLOOR
3RD CROSS, LALBAGH FORT ROAD
DODDAMAVALLI, BANGALORE- 560 004.
6 . SRI M ABDUL RASHEED
S/O LATE ABDUL KAREEM
AGED ABOUT 59 YEARS
R/AT No.11/4, COFFEE STREET
BASAVANAGUDI
BANGALORE-560 004.
SMT. ASHYA BEE
D/O LATE ABDUL KAREEM
SINCE DEAD BY HER LRS
4
SMT. ZAHEEDA BEGUM, SINCE
DEAD BY HER L.Rs.
7. SRI SYED SIRAJ KHAN
S/O LATE ZAHEEDA BEGUM
AGED ABOUT 46 YEARS
R/AT No.99, 5TH CROSS
P & T COLONY, B .S. A ROAD
BANGALORE-560 045.
8 . SRI SHIRAJ AHAMED KHAN
S/O SMT. ZAHEEDA BEGUM
AGED ABOUT 44 YEARS
R/AT No.8, 1ST CROSS
KOUSER NAGAR
BANGALORE-560 032.
SMT. SHAMEEM TAJ
D/O LATE ZAHEEDA BEGUM
SINCE DEAD BY HIS LRS.
9. SRI MOHAMMED ARIF PASHA
S/O LATE SHAMEEM TAJ
AGED ABOUT 36 YEARS.
10. SRI SYED ANJUM PASHA
S/O LATE SHAMEEM TAJ
AGED ABOUT 34 YEARS.
11 . SRI SYED TAJAMUL PASHA
S/O LATE SHAMEEM TAJ
AGED ABOUT 32 YEARS
RESPONDENTS No.9 TO 11 ARE
R/AT No.6, 2ND MAIN
(REHA MEDICALS) BILAL NAGAR
PILLANNA GARDEN, 3RD STAGE
BANGALORE-560 045.
12 . SMT. NASEEM TAJ
5
D/O LATE ZAHEEDA BEGUM
AGED ABOUT 42 YEARS
R/AT No.100, SMALL QUARTERS
NEELASANDRA
BANGALORE- 560 047.
13 . SMT. NAEM TAJ
D/O LATE ZAHEEDA BEGUM
AGED ABOUT 40 YEARS
R/AT SULTANPALYA
DINNUR MAIN ROAD
R .T NAGAR
BANGALORE - 560 032.
14 . SMT. JABEEN TAJ
D/O LATE ZAHEED BEGUM
AGED ABOUT 36 YEARS
W/O ABDUL REHMAN
R/AT No.21, 3RD CROSS
PILLANNA GARDEN
BANGALORE- 560 045.
15 . SMT. SHIREEN TAJ
D/O LATE ZAHEEDA BEGUM
W/O SRI JANI BASHA
AGED ABOUT 34 YEARS
R/AT No.32/2, 7TH CROSS
SOMESWARA NAGAR
JAYANAGAR 1ST BLOCK
BANGALORE-560 011.
16 . SMT. ZUBEDA BEGUM
D/O LATE ASHYA BEE
AGED ABOUT 71 YEARS
R/AT No. 817, 1ST FLOOR
BESIDE APNA BAZAAR
BSA ROAD
BENGALURU-560 045.
6
SMT. RAFIA BEGUM
D/O ABDUL KAREEM
SINCE DEAD BY HER LRS.
17. SRI SIRAJULLA KHAN
HUSBAND OF RAFIA BEGUM
AGED ABOUT 56 YEARS.
18 . SRI KHIZERULLA KHAN
S/O LATE RAFIA BEGUM
AGED ABOUT 32 YEARS.
19 . SRI ZAMIRULLA KHAN
S/O LATE RAFIA BEGUM
AGED ABOUT 27 YEARS
RESPONDENTS No.17 TO 19 ARE
R/AT. No.23,24, 4TH CROSS
NEW GURAPPANAPALYA (DRC POST)
BANGALORE-560 029.
20. SMT. RASHEEDA BEGUM
D/O LATE ABDUL KAREEM
W/O FARHATHULLA KHAN
AGED ABOUT 54 YEARS
R/AT No.35/2, 1ST FLOOR
9TH A MAIN, 4TH ROSS
BMT 1ST STAGE
BANGALORE-560 051.
21. SMT. NOORJAN
W/O LATE ABDUL SALAM
AGED ABOUT 66 YEARS
22. SMT. SHEERAN BANU
D/O LATE ABDUL SALAM
AGED ABOUT 31 YEARS
7
23. SRI MOHAMMED HANEEF
S/O LATE ABDUL SALAM
AGED ABOUT 30 YEARS
24. SMT. TASEEN BANU
D/O LATE ABDUL SALAM
AGED ABOUT 29 YEARS.
RESPONDENTS 21 TO 24
ARE R/AT No.5/4, 2ND FLOOR
(BESIDE DELUXE WHEEL ALIGNMENT)
THIMMAIAH ROAD, SHIVAJINAGAR
BANGALORE-560 051.
...RESPONDENTS
(BY SRI N NAVEEN CHANDRA, ADVOCATE FOR C/R1
M/S. CHALAPATHY & SRINIVAS, ADVOCATES FOR R2-5
SRI RAHAMATHUALL SHARIFF, ADVOCATE
FOR R6 & R17-R19,
R7, R8, R9, R10, R11, R12, R14 R15, R16,
R20, R21, R22 & R24 - SERVED)
THIS RFA FILED UNDER ORDERS-41, RULE-1, R/W
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND
ORDER DATED 18.7.2012 PASSED IN FDP. 03/2006 ON THE
FILE OF THE V-ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, DECREEEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellants/LRs of defendant No.1-Abdul Kuddus, is directed against the judgment and decree dated 18-07-2012 passed in FDP No.3/2006 by 8 the learned V Additional City Civil and Sessions Judge, Bangalore City, which is in respect of the judgment and decree passed in O.S.No.3721/1985 dated 28.1.2002.
2. Earlier, this appeal was allowed and the matter was remanded by this Court on 15.06.2015. Thereafter, on an application filed by learned counsel for 3rd respondent in I.A.No.2015, the judgment dated 15-06- 2015 is recalled subject to payment of costs on 03-07- 2015.
3. For the convenient understanding, it is necessary to mention the background of the case in brief:
Original suit in O.S.No.3721/1985 was filed by plaintiff/1st respondent- Abdul Gafoor, 38 years, son of Abdul Kareem, before the learned trial Judge seeking partition and separate possession. The suit came to be decreed on 28.1.2002.9
4. The predecessor in title of the appellants(1st defendant) had filed RFA No.556/2002 challenging the said judgment and decree. The said appeal was allowed in part on 17-09-2007 setting aside the findings recorded on additional Issue No.2 and confirmed the judgment relating to quantification and allotment of shares to plaintiff and defendants wherein the trial court was directed to consider the question regarding execution of the sale deeds by the contesting defendant No.2 and other defendants in favour of 1st defendant/Abdul Kuddus in respect of their undivided shares in A- schedule property as also binding nature of the sale deeds is left open to be decided in final decree proceedings and the decree regarding liability of plaintiff to pay a sum of Rs.79,000/- is confirmed.
5. Case of the 1st defendant-Abdul Kuddus represented by his LRs is that respondents are bound by 10 the sale deeds and no flaws were involved for getting the sale deeds executed.
6. In order to avoid overlapping and confusion, the parties hereinafter are referred with reference to their nomenclature and rankings as stood before the trial court in original suit in O.S.No.3721/1985.
7. Before proceeding further, it is necessary to mention about the family of Mr.Abdul Kareem who is the father of the appellant/1st defendant Abdul Kuddus.
8. The diagram showing the entire family of Abdul Kareem is as under:
M. Abdul Kareem / Majan Bee @ Hazara bee - Defendant No.8 (no more) / Abdul Abdul Abdul Abdul Ashya Rafia Rasheed Abdul Gafoor Kuddus Lateef Rasheed bee begum begaum Salam Son Son Son Son daughter daughter daughter dead by (Plaintiff) (D1) (D2) (D3) (D4) (D5) (D6) his LRs 11
9. Original suit came to be decreed wherein plaintiff was granted 2/13th share in the suit schedule A property by metes and bounds subject to his liability so also defendant Nos.7,9,10 and 11 are together entitled for 2/13th share in A schedule property being the legal heirs of one Abdul Salam son of Abdul Kareem,(who had died earlier to the filing of the suit) subject to their proportionate liability.
10. It is the further case of appellants/LRs of 1st defendant in this appeal that, regular first appeal before this court is preferred by the appellants challenging the order dated 18.7.2012 passed in FDP 3/2006 wherein respondent Nos. 2 to 24 are entitled for the share in the schedule property. As the 1st defendant claim that he has acquired the undivided shares of respective siblings and their legal heirs, there was no share to be allotted to them.
12
11. Insofar as original suit in O.S.No.3721/1985 before the trial Court is concerned, Abdul Kuddus/1st defendant and Abdul Lateef/2nd defendant are the sons and Ayesha Bee is daughter of Abdul Kareem. Thus, female members being off springs of Abdul Kuddus. Plaintiff, defendant Nos. 1 to 3, Ayesha bee (now dead living behind defendant Nos. 7 to 16. Rafia Begum daughter of Abdul Kareem is also impleaded in the suit. Rasheeda Begaum is the another daughter of Abdul Kareem (sister of plaintiff and defendants Abdul Kuddus and plaintiff). Smt. Majanbee, wife of Abdul Kareem was earlier is defendant No.8 and in the circumstances, respective plaintiffs and defendants formed her legal representatives.
12. In O.S.No.3721/1985, 1st defendant/Abdul Kuddus had filed joint written statement along with defendant Nos.2, 3,6,7 and 8, denying the claim made by 13 plaintiff Abdul Gafoor, wherein he had denied the Will said to have been executed by Abdul Kareem.
13. The defendant No.1 first claimed that the other defendants siblings had sold their undivided share to him thus they do not have any right title interest or possession over the schedule property.
14. The appellants further claim that insofar as plaintiff and other defendants are concerned (excluding 1st defendant)had no intention to execute registered sale deeds of their respective shares.
15. Initially, 2nd defendant filed written statement along with defendant No.1. However, it was in the latter stages, 2nd defendant shifted the gear and filed his written statement.
16. 4th defendant filed separate written statement. 14
17. It all started with the filing of original suit in O.S.No.3721/1985 by plaintiff-Abdul Gafoor for partition and separation possession claiming 7/40th share in the schedule property which came to be decreed. In the said suit, Abdul Gafoor is the plaintiff. 2nd defendant-M.Abdul Lathif was sailing with 1st defendant-Abdul Kuddus, who claimed the title. The plaintiff and other children including the grand children, through sons and daughters of Abdul Kareem are claiming their share.
18. Learned trial Judge on the basis of the pleadings and contentions, framed the following issues and additional issues:
Issues:
(i) Whether the Plaintiff proves that he and the defendant inherited the suit schedule property from Abdul Kareem?
(ii) Whether the plaintiff proves that himself and the first defendant jointly discharged the family debts?15
(iii) Whether the plaintiff proves that the first defendant misappropriated the income derived from the schedule A property?
(iv) Whether the plaintiff is entitled to the mesne profits pleaded by him?
(v) Whether defendant No.1 proves he has alone discharged the family debts?
(vi) Whether the defendant No.1 proves that he has spent Rs.79,000/- in all as contended by him in his written statement and the plaintiff has to contribute before claiming share as alleged?
(vii) Whether the defendants prove that B schedule movables were not left by Abdul Kareem as alleged?
(viii) What is the extent of shares the plaintiff and defendant No.4 entitled to 7/44th share 7/40th share and in which properties?
(ix) What decree or order?
Additional Issues:
(i) Whether the first defendant proves that he has succeeded A schedule property by virtue of Will executed by late Abdul Kareem as averred in the written statement?
(ii) Whether the second defendant proves that the sale deed is executed by him is out come of fraud and undue influence exercised by the first defendant and no consideration was passed under the sale deed as contended by him?16
(iii) Whether the second defendant is also entitled for 7/40th share in the plaint schedule property?
(iv) Whether the first defendant proves that he is the absolute owner of the schedule property?
(v) Whether the defendant Nos.9,10,11 are entitled for 7/40th share in the schedule property?
19. Learned trial Judge was accommodated with the oral evidence of PW1-Abdul Gafoor and Exs.P1 to Ex.P67 on behalf of plaintiff and oral evidence of Dws 1 to 4 and documentary evidence of Exs.D1 to D6 on behalf of defendants.
20. According to plaintiff and the siblings defendants, the defendant No.1 never inherited right of inheriting rights under the will or deriving through sale deed. There was no question of inheriting the property under the Will - Ex.D2 by 1st defendant- Abdul Kuddus.
21. The Regular first appeal preferred by Abdul Kuddus (by virtue of his death by legal representatives) 17 came to be allowed in part on 17.9.2007 in RFA No.556/2002. The operative portion of the appeal is as under:
"The appeal is allowed in part. The findings recorded by the learned trial judge on additional issue 2 are set aside. The decree of the trial court relating to quantification and allotment of shares to plaintiff and defendants is confirmed. However, the question as to whether defendant No.II and other defendants have executed registered sale deeds in favour of I defendant in respect of their undivided shares in A schedule property as also binding nature of sale deeds is left open to be decided in final decree proceedings. The decree regarding liability of plaintiff to pay a sum of Rs.79,000/- is confirmed."
22. The crux of the order passed by this court in RFA No.556/2002 is:
this court considered the execution of the registered sale deeds and the objections raised on and further the contentions of 2nd defendant who questions the very existence and enforceability of the said share. It is in this connection, another prime contention of Abdul Kuddus/ appellant is that sale deed cannot be ignored for the very 18 reason it is a registered document for a valuable consideration. It is in this connection, the terms of remand order (as extracted above) passed by this court in RFA No.556/2002 come into relevance.
23. The plaintiff was saddled with the liability of Rs.79,000/-. Against which, a review petition came to be filed by the plaintiff before this court in RP No.463/2007 which came to be disposed of on 25-03-2008 by modifying the last sentence of the operative portion of the order.
24. Now this Court is sitting in the first appeal which is filed questioning the judgment passed by the learned City Civil and Sessions Judge in FDP No.3/2006 on 18-07-2012 wherein the judgment and decree is stated to have been passed on the direction given by this court in RFA No.556/2002.
19
25. Earlier, the appeal was allowed and the matter was remanded by this Court on 15.06.2015. Thereafter, on an application filed by learned counsel for 3rd respondent in I.A.No.1/2015, the Judgment dated 15-06- 2015 is recalled subject to payment of costs on 03-07- 2015. It is in this connection, the parties to go back to their original claims and contentions.
26. The plaintiff and defendants are the children of Abdul Kareem and Majanbee. The latest rivalry is between LRs of 1st defendant on one side and the other defendants and plaintiff on the other side. The plaintiff and defendants excluding 1st defendant bank upon the succession of property of late Abdul Kareem in accordance with personal law relating to Sunni Mohammedans.
27. The claim of the plaintiff is seriously countered by 1st defendant- Abdul Kuddus. The stand of 1st defendant is on the basis of the relationship of other 20 defendants and plaintiff with Abdul Kareem, who having inherited the undivided share in the suit schedule property, except plaintiff, have conveyed their right, title, interest and possession to the 1st defendant.
28. The plaintiff and defendants substantially out of them are siblings and the allegation is fraud was played on them by Abdul Khuddus being 1st defendant before the trial court.
29. The plaintiff, siblings, defendants and grand children of the deceased siblings contend that whatever the document relied by Abdul Khuddus are the out come of fraud.
30. Here, it is necessary to go through Order VI Rule 4 and 5 of CPC which is as under:
Rule 4 Order VI of Code of Civil Procedure 1908 "Particulars to be given where necessary"
In all cases in which the party pleading relies on 21 any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.
Rule 5 Order VI of Code of Civil Procedure 1908 "Further and better statement, or particulars"
A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.
31. In cases where fraud is alleged and pleaded by a party to the suit against the existence of a document because of fraud or undue influence being practiced by the other, the details of the fraud or other flaws are to be mentioned as contemplated in Order VI Rule 4 of CPC.
32. The contention of the plaintiff and other defendants are that the 1st defendant -Abdul Kuddus 22 played fraud on his own siblings and persons claiming under them.
33. In order to avoid repetition, the claim and contention in this connection that 1st defendant- Abdul Kuddus, beneficiary under the sale deeds Exhibits D-1 to D-7 and details sale deeds are as under:
EXHIBITS DATE EXECUTANTS IN FAVOUR
EXHIBIT D-1 SALE DEED EXECUTED BY IN FAVOUR OF
CERTIFIED DATED (A) (A) M.ABDUL KHUDDUS
COPY 20.02.1984 SMT.NOORUNNIS (DEF.NO.1) AND
PRODUCED SA (DEF.NO.7), (B)
AT EXHIBIT W/O LATE MRS.HASHMATHUNNISSA
D-9 MR.ABDUL (LR.OF DEF.NO.1)
SALAM
(B) KUMARI
SHABRIN, D/O
LATE MR.ABDUL
SALAM
(C) KUMARI
SHERIN
DEF.NO.9
D/O LATE
MR.ABDUL
SALAM
(D) MOHAMMED
HANEEF
(DEF.NO.10), S/O
LATE MR.ABDUL
SALAM
(E)
KUM.THAHASEE
N (DEF.NO.11),
D/O LATE
MR.ABDUL
SALAM
(B) TO (E)
REPRESENTED
23
BY MOTHER AS
GUARDIAN
(F) ABDUL
RASHID
(DEF.NO.3) S/O
LATE MR.ABDUL
KAREEM
EXIBIT D-2 SALE DEED EXECUTED BY IN FAVOUR OF
DATED (A) (A)MR.M ABDUL
30.01.1984 SMT.HAZARABI @ KHUDDUS(DEF. No.1)
MAJANBI (DEF. AND
No.8) W/O LATE (B)MRS.HASMATHUNNISS
ABDUL KAREEM. A (LR OF DEFENDANT
(B) SMT. ASIA BI No.1)
(DEF No.4) D/O
LATE ABDUL
KAREEM
(C) SMT. RAFIA
BEGUM (DEF
No.5) D/O LATE
ABDUL KAREEM
(D) SMT.
RASHEEDA
BEGUM (DEF.
No.6) D/O LATE
ABDUL KAREEM.
EXIBIT D-3 RECTIFICA EXECUTED BY IN FAVOUR OF
TION DEED (A) (A)MR.M ABDUL
DTD. SMT.HAZARABI @ KHUDDUS(DEF. No.1)
16.07.1984 MAJANBI (DEF. AND
WHICH IS No.8) W/O LATE (B)MRS.HASMATHUNNISS
RECTIFICA ABDUL KAREEM. A (LR OF DEFENDANT
TION OF (B) SMT. ASIA BI No.1)
EX. D2. (DEF No.4) D/O
LATE ABDUL
KAREEM
(C) SMT. RAFIA
BEGUM (DEF
No.5) D/O LATE
ABDUL KAREEM
(D) SMT.
RASHEEDA
BEGUM (DEF.
No.6) D/O LATE
ABDUL KAREEM.
24
EXIBIT D-4 SALE DEED EXECUTED BY IN FAVOUR OF
CERTIFIED DTD. SRI ABDUL (a) MR. M ABDUL
COPY 30.1.1984 LATHIF (DEF KHUDDUS (DEFENDANT
ORIGINAL IS No.2) S/O ALTE No.1) AND
PRODUCED ABDUL KAREEM (b)
AT EX. D7 MRS.HASMATHUNNISA
(Lr OF DEFENDANT No.1)
EXIBIT D-5 GIFT DEED EXECUTED BY IN FAVOUR OF
DTD.21.04. MR.M ABDUL MRS. HASMATHUNNISSA
2005 KHUDDUS (LR OF DEFENDANT No.1
(DEFENDANT AND WIFE)
No.1)
EXIBIT D-6 RECEIPT
EVIDENCIN
G
DISCHARG
E OF
MORTGAGE
DT.
27.01.1984.
34. It is the said sale deeds which are seriously questioned regarding sanctity and validity. Here it is necessary to mention the three instances:
(i) Date of death of Abdul Kareem on 29.10.73
(ii) Date of registered sale deeds Exhibits D-1 to D-7 as stated in the table.
(iii) Date of execution of Will dated 20.10.1973 by Abdul Kareem -
Exhibit D-2 in favour of Abdul Kuddus.
25
35. Needless to say that Exhibit D-2 registered Will comes into effect after the death of testator. Exhibit D-2 registered Will dated 20.10.1973 was filed by 1st defendant-Abdul Kuddus now by his LRs/appellants herein on 06.01.99 as it was tendered during examination of 1st defendant.
36. Thus, the parties are at logger heads in connection with reliance on Exhibits D-1 to D-7 by 1st defendant-Abdul Kuddus. However during the ending stages of trial defendants sought for amendment of the pleadings with reference to existence of the Will Exhibit D-2 and thereafter it was filed. The point in this connection would be timing of the registered sale deeds claimed by defendants are admittedly after the death of the owner of the said property which goes to legal heirs.
37. The plaintiff and sibling defendants strongly deny the execution of the sale deed in favour of defendant 26 No.1. The plaintiff and the other defendants claim that they are the victims of fraud played by the defendants in the matter of Will Ex.D-2 dated 20.10.1973 and the sale deeds.
38. It need not be in a particular quantum or form of evidence. Evidence not to be counted, but to be weighed.
39. The first defendant-Abdul Kuddus defended the case that he became the owner of the said portion of properties by virtue of sale deeds Exhibits D-1 to D-7. In this connection the timing of sale deeds in all the seven cases that they were not divided by metes and bounds nor boundaries were mentioned or borders are demarcated nor separate numbers are assigned by the concerned local body. Thus, on the date of filing of the written statement 1st defendant was firm and invariably cautious that the means of acquiring ownership over the 27 property was through registered sale deeds by respective siblings or heirs representing respective siblings. Later as a further salvo, 1st defendant shifts his gear from getting the title to conveyance to that of testamentary succession.
40. It is claimed by the 1st defendant that the property was bequeathed by all the undivided owners under the respective sale deeds from to that of a Will he is a legatee under the Will dated 20-10-2973 marked as Exhibit D-2. The father of 1st defendant-Abdul Kuddus executed the Will to the exclusion of all his legal heirs.
41. In this connection the principles regarding Will differs from Hindu Law to Mohammedan law in the matters of distinguishing of Will of joint family property by Kartha or senior Member. The principles and substantial principle of Mohamedan law is that the testator cannot bequeath beyond 1/3rd of his total 28 property after deducting the debts which including Mahr. However insofar as balance 2/3rd is concerned, it would go back to the legal heirs as if no execution is taken place. Thus full fledged Will also cannot confer more than 1/3rd of the legacy. Further in case of Will to a legal heir the position is worst. In this connection it is necessary to refer chapter in Mohammedan law.
42. Sunni Mohammedan even he is debarred from execution of Will to the extent of even 1/3rd even in favour of legal heir. Under the circumstances a person cannot be expected to forgot material aspects in respect of life and death and regarding purchase or loosing of property. If it is stated that the execution of the Will is stated not in the knowledge of the 1st defendant- Abdul Kuddus. Hence, he relied upon the sale deeds Exhibits D-1 to D-7 and 9. If property is already bequeathed in favour of 1st defendant -Abdul Kuddus through a Will from his father Abdul Kareem marked as Exhibit D-2 in 29 the evidence upon the death of Abdul Kareem Will would have come into existence forthwith even if the plaintiff has consented for it. When the ownership vested with 1st defendant according to him through the Will it is quite cynical how he can come for registering the sale deeds. As it is not totally necessary to get the ownership of the property through testamentary succession and later through conveyance. In this connection Order VI Rule 4 and 5 and even 10 of CPC is of significance. Order VI Rule 10 deals with malice, knowledge etc., as under:
Rule 10 Order VI of Code of Civil Procedure 1908 "Malice, knowledge, etc"
Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
43. Thus, when the allegation of fraud by the plaintiff is made mainly with reference to the circumstances of claiming under the sale deeds at the 30 first instance and Will at the second instance all emanate from the mind of 1st defendant in which case it will be their duty to exercise what has happened in terms of event and the court to examine why they happened. In the circumstances it is admitted that the Will was not within the knowledge of plaintiff till it was produced and marked as Ex.D-2. Further 1st defendant had knowledge of the Will and it is not his case that he had no knowledge of the Will that is why he purchased properties from the plaintiff. The intention behind the diagonally inconsistent act are relating to the mind and intention as stated above and it is invariably responsibility of 1st defendant to explain the same within the meaning of Order VI Rule 10 of CPC as stated above.
44. Learned counsel for appellants relied upon the decision of the Hon'ble Supreme Court in the case of Bachhaj Nahar Vs. Nilima Mandal and another - Civil 31 Appeal Nos. 5798-5799 of 2008 in connection with the said issue.
45. The point that was driven in this connection is regarding challenging of the separate sale deeds stated to have been executed by brothers and sisters in the form of Exs.D1 to 7, D9. The point of contention that when the issues are not present and when there is no case of the plaintiff in the said connection any amount of pleading or evidence to the said effect cannot be available. Para No.11 of the said judgment is as under:
11. The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884]:
"No doubt, no issue was framed, and the one, which was framed, could have been more elaborate, but since the parties went to trial fully knowing the 32 rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion."
But the said observations were made in the context of absence of an issue, and not absence of pleadings. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad vs. Shri Chandramaul - AIR 1966 SC 735 :
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matter relating to the title of both parties to the suit was touched, tough indirectly or even obscurely in the issues, and evidence has been led about them then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was 33 involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
(emphasis supplied) The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR 1987 SC 1242]:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance if the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the 34 pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
[emphasis supplied]
46. It was further submitted that whenever the question about lack of pleading is raised, enquiry should not be so much about the form of pleadings. It is the duty of the Court to ensure that all the points under transfer between the parties are to be adjudicated. Whenever a question about lack of pleading is raised, the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case. In fact, this observation is extracted in the same judgment relied upon by the learned counsel for appellants. Hyper 35 technicalities are not to be considered seriously when there are sufficient evidence and materials to adjudicate the matter.
47. Further, learned counsel for the appellants has also relied upon the following decisions:
(i)Vishwambhar and others Vs. Laxminarayana (Dead) through L.Rs and another reported in AIR 2001 Supreme Court 2607;
(ii) Mahadeo and another Vs. Somaji and another reported in AIR 1927 Nagpur 145;
(iii) Jhanda Vs. Sapurna Singh and others reported in 1925 Lahore 509.
48. So far as framing of the issues even at the stage of judgment is possible. In this connection, it is necessary to mention Order 14 Rule 3 of CPC.
Order XIV Rule 3 of Code of Civil Procedure 1908 "Materials from which issues may be framed"
The Court may frame the issues from all or any of the following materials :-36
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
49. Learned counsel for appellants would further submit that the trial Judge had no jurisdiction to decide on the sale deeds and binding nature on the respective parties. In this connection, he would submit that even the scope of remand did not allow the learned trial judge to devolve the matter in connection with this binding nature of the sale deeds in favour of 1st defendant not only by 2nd defendant and other defendants as well. In this connection, it was submitted that there was no direction to adjudicate regarding the sale deeds stated to have been executed by all the defendants and no whisper is made in the pleadings by the plaintiff in this connection.
37
50. Another development is, to a question to the effect that why the Will was not acted upon in the beginning and produced it at later stages, and claiming right by the defendant No.1 through diagonally opposite source. It was submitted that the 1st defendant consulted the religious leaders, imams at Bengaluru and they advised him to place the same. In this connection, neither the names of religious leaders or Imams are made available nor there is pleadings to the said effect by 1st defendant. To a question as to whether it was pleaded or the evidence was adduced to the said effect, it was answered in favour of the plaintiff. However, no further question were asked in the said connection. The further question is that, how the sale deeds can be set aside by this Court and how the matter regarding court fee would be adjudicated. The documents are registered and they have their own sanctity. To a further question as to locus standi of the plaintiff answer by the plaintiff is to consider the sale deeds as nominal in nature.
38
51. Here, it is necessary to mention about the recap of the previous proceedings.
The suit is not filed by the plaintiff for cancellation of the sale deeds Exs.D1 to D7. In this connection, it is also necessary to place on record that the defendants filed the written statement and pleaded about the fact of sale deeds atleast at that juncture steps were not taken to challenge the same.
52. Learned counsel for plaintiff would submit that the plaintiff has not executed any sale deeds in favour of 1st defendant-Abdul Kuddus. It was in this connection, learned counsel for appellant graciously submitted that insofar as plaintiff is concerned, 1st defendant has no issues for accommodating his share.
53. It is necessary to make a mention that the scope of the present suit being the one for division of properties sought by the siblings against the other. Incidentally, in the entire context, as answer to the court 39 questions, learned counsel for defendants would submit that the court had no authority to come to the conclusion that sale deeds are not binding. In this connection, the provisions contemplated under Order VI Rule 4, 5 and 10 have been discussed at length above.
54. The heavy purpose of requirement of particulars under order VI Rule 4 and 5 is that when a party claims that he has been a victim of fraud and misrepresentations, he has to place the facts in detail so that the other party will get an opportunity to go through the same and rebut the same.
55. Considering the fact of the plea of registered sale deeds by 1st defendant has to be looked into with reference to the entire context. Exs.D1 to 7 and D9 are sale deeds admittedly, stated to have been executed after the death of Abdul Kareem, father of the plaintiff and 1st defendant. Consequence of the Will by a Mohammedan 40 is also stated by him in the beginning. Then the moot question would be the effect of the sale deeds.
56. In the peculiar circumstances of the case, it is necessary to mention that the defendant No.1 is stated to be an employee in HAL and reasonably admitted the material fact regarding acquisition of property cannot be a matter of slippery or jiggery or forgotten, more particularly regarding source of acquisition. He was abreast of fact that property belonged to Abdul Kareem.
57. Another development in this case is, RFA No.556/2002 was also came into picture and it was allowed in part and thereafter, Review petition No.463/2007 which was disposed of by this court on 25- 03-2008. However, the same is of no serious consequence in the matter.
41
58. Among the sale deeds, Exs.D1 and D9 are executed by defendant No.7-Smt. Noorunnissa wife of Mr.Abdul Salam and her children in favour of defendant No.1-M.Abdul Khuddus. Thus, guardianship is not recognized under Mohammedan Law. It is the acknowledgement of paternity that is known to Mohammedan Law. In that case, it is not known what is the quarter of sources whether the defendant No.1 claims that the sale deed was executed not only by Noorunnissa wife of Abdul Salam (brother of defendant No.1) and also on behalf of her minor children. Moreover, in order to sell the share of minor property it requires mandatory procedure as contemplated under law.
59. The operative portion of judgment in O.S.No.3721/1985 dated 18.1.2002 is as under:
"The suit of the plaintiff is decreed as follows:
It is ordered and decreed that the plaintiff is entitled for his separate possession of 2/13th share in the suit schedule A property by metes and 42 bounds subject to his proportionate liability and so also the defendant Nos. 7,9,10 and 11 are together entitled for separate 2/13th share in A schedule property being the legal heirs of late Abdul Salam S/o. Abdul Kareem subject to their proportionate liability.
There shall be a separate enquiry in regard to mesne profits of the plaint A schedule property as contemplated under Order 20 Rule 12 CPC. The suit in respect of plaint B schedule property is hereby dismissed. The suit against defendant No.8 is dismissed as abated.
Under the circumstances of the case, there will be no order as to costs."
60. In all probabilities, the said judgment is a preliminary decree. However, the appeal that was preferred by 1st defendant-Abdul Kuddus is against a preliminary decree. It is necessary to make a mention that Final Decree Proceedings were initiated. While disposing of the said RFA No.556/2002, this court observed and discussed about the scope of the suit also. In this regard, answer to point No.3 at para No.15 reads as under:
43
"15. RE.Point No.3:
It is seen from the impugned judgment and written statement filed by defendants 7 to 11 that they have not consented to the sale deeds said to have been executed in favour of I defendant and he sale deeds are not binding on them. It is interesting to notice, none of these defendants has stated the dates of sale deeds and the circumstances in which sale deeds were executed in favour of I defendant.
The I defendant has not come forward with a case the rights of other defendants are lost by virtue of registered sale deeds executed in his favour. The learned trial Judge without noticing the absence of specific pleadings in this behalf has framed additional issues and answered the same against I defendant. The I defendant has no where specifically asserted that defendants 2 to 11 have sold their undivided share in A schedule property in favour of I defendant under different registered sale deeds. Therefore, merely based on assertions made in the written statement of other defendants, the learned trial Judge has framed additional issues that too in a vague manner and ultimately answered the same in favour of other defendants and against I defendant.
In my considered opinion, when the I defendant had not come forward with a specific plea of execution of registered sale deeds in his favour by other defendants to defeat their rights in A schedule property, there was no need for the trial court to frame additional issues based on vague assertions made by other defendants in their written statement. This inter se dispute between the defendants was raise din the form of additional 44 issues without there being specific pleadings. The other defendants have not set out circumstances in which the sale deeds came into existence. They have not given details of registered sale deeds. In the absence of specific pleadings and evidence, the learned trial Judge was not justified in recording a finding that sale deed executed by II defendant in favour of I defendant was not binding.
The learned counsel for I defendant has contended the matter requires a remand in view of improper findings recorded by the trial court. In the discussion made supra, I have held that I defendant has failed to prove execution of registered will as also validity of the Will and its binding nature on the legal heirs of deceased Abdul Karim. This would automatically result in decree in favour of plaintiff and other defendants. However, there is serious dispute between defendants regarding execution of registered sale deeds in favour of I defendant and their binding nature. This has to be necessarily adjudicated upon in the final decree proceedings. Therefore, in my considered opinion, the matter does not require a remand. For these reasons, I answer point No.3 in the negative."
61. There was no need for the trial court to frame issues based on vague assertions by other defendant. Interse dispute was raised between the defendants was in the form of additional issues, which are as under: 45
Additional Issues:
(i) Whether the first defendant proves that he has succeeded A schedule property by virtue of Will executed by late Abdul Kareem as averred in the written statement?
(ii) Whether the second defendant proves that the sale deed is executed by him is out come of fraud and undue influence exercised by the first defendant and no consideration was passed under the sale deed as contended by him?
(iii) Whether the second defendant is also entitled for 7/40ty share in the plaint schedule property?
(iv) Whether the first defendant proves that he is the absolute owner of the schedule property?
(v) Whether the defendant Nos.9,10,11 are entitled for 7?40th share in the schedule property?
62. Before the matter was remanded, it was the 1st defendant who requested the court for remanding the matter. However, the conclusion of this court in the first phase of proceeding against the Preliminary decree in RFA No.556/2002 that 1st defendant failed to prove the execution of the registered Will and validity of the Will 46 and its binding nature on the legal heirs of Abdul Kareem. This would automatically resulted in decree in favour of the plaintiff and other defendants. However, there is a serious dispute regarding the execution of the registered sale deeds in favour of 1st defendant and their binding nature. This has to be necessarily be adjudicated in the final decree proceedings. Therefore, in my considered opinion, the matter does not require for remand.
63. Further, it is also observed by learned Judge that there was serious dispute between defendant Nos. 1 and 2 regarding registered sale deeds. Dispute regarding execution of registered sale deeds in favour of 2nd defendant and this court held that the findings recorded by the learned trial judge on additional issue No.2 cannot be sustained as to whether the defendant No.2 or defendant No.7 had executed the registered sale deed in favour of 1st defendant regarding undivided share and 47 also binding nature of the sale deed is open and has to be adjudicated in the final decree proceedings. Learned counsel for 1st defendant seriously objected that this is not a case for remanding for considering the sale deeds of other defendants because the nature and scope of the suit does not allow.
64. It is necessary to mention about representation, mis representation and fraud they come in series. 'Simple representation' is statement of fact. 'Mis-representation' would be wrong statement of facts. When the wrong statement of facts is made intentionally it becomes 'intentional mis-representation or fraud'.
65. As observed under order 6 Rule 10 CPC it was incumbent on the part of the 1st defendant to explain what flowed in his mind under Section 106 of Indian Evidence Act, because he who holds the Will wherein he was the exclusive legatee that he who asserted that he has become owner according to it. Then he realizes 48 that if Will was not acted upon it becomes waste. Then he goes for sale deeds in the year 1984 and suit is filed in 1985. Further, when the limitation operate under Mohammedan law, including the 'bequeathee'/defendant No.1 does not get any as in the first instance he claims to be a purchaser thereafter claims as a legatee, regard being had to the fact he has two disqualification of the bequeathee and a legal heir of Abdul Kareem.
66. Insofar as pleadings are concerned, the written statement of defendant Nos.1, 2, 3, 6, 7 and 8 was common in the beginning and it was to the tune of the 1st defendant. However, it appears, later the parties bid adieu to their earlier understanding came away. It is necessary to make a mention that even defendant Nos.1 and 2 is a party to the written statement, wherein 1st defendant is the purchaser. Nowhere, there is a whisper of sale deeds of the year 1984. This cannot be an accidental miss, but it appears to be calculated move. 49 However, in the additional written statement that was filed by 2nd defendant the sale deeds are mentioned however, it is stated as nominal one.
67. Learned counsel for 1st defendant would submit that there was no occasion for 1st defendant to mention in the written statement regarding the execution of sale deeds. In this connection, it is to be understood that the context of the case as pleaded by the plaintiff in the original suit in OS No.3721/1985 is to the effect that the property belonged to Abdul Kareem and were disposed of during his life time and they are entitled for undivided right, title and interest and possession which goes to show that the plaintiff never mentioned about the sale deeds as they were certain that they are not meddling with the undivided interest and possession. Thus, while remanding the matter it was the mandate of this court to the trial court to take up the matter during final decree proceedings. Thus, the scope of remand was 50 that sanctity, validity or irregularity of the registered sale deeds should be tested in the final decree proceedings. It is in this connection, in the Final Decree proceedings, learned trial judge held that the sale deeds were not binding.
68. Here, it is necessary to mention the scope of Section 54 of CPC which is as under:
"54. Partition of estate or separation of share-
Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him this be half, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates."
Thus, it is meant for Final decree proceedings.
69. It is necessary to make a mention that there are two phases wherein the appeal could be preferred 51 against the judgment of the trial court in a suit for partition or of a similar in nature.
70. Firstly, against the preliminary decree like the one in RFA 556/2002. Secondly, whether with or without the appeal being preferred against preliminary decree after the closure of the proceedings at the stage of preliminary decree. There is one more opportunity of preferring the appeal i.e. against the Final Decree. But the important aspect is, one cannot prefer appeal against the matter that should have been preferred while assailing preliminary decree.
71. In this connection, it is also necessary to mention that, when an appeal is preferred against the preliminary decree, the appeal proceedings would be an extension of preliminary decree and do not take a shape of final decree proceedings. As such, in the extension of preliminary decree proceedings in RFA, it was the wish and submission of the appellant-defendant No.1 to 52 remand the matter and did not challenge that judgment. Thus the judgment rendered in RFA 556/2002 is remanding the matter with a direction to the trial court to adjudicate on the effect and validity of the sale deeds. Having not chosen to question that the 1st defendant cannot try to use the forum of final decree proceedings as the one preferred against RFA or preliminary decree.
72. By this time, as I have stated above, in order to mention the fraud regarding sale deeds, no doubt, better particulars should be stated as I have stated it need not be voluminous. It is to be read with Order VI Rule 10 CPC also.
73. Here it is necessary to mention that defendant No.1 claimed under the sale deeds Ex-D-1 to D-7. Later gives them up and relies on the will. Being a muslim the defendant is bound by the limitations imposed on bequest by a Mohammedan. When the circumstances and the sequence establish the conduct and intention of 53 the defendant in his reliance on sale deeds thereafter Will the mode of claim and the findings of the trial court that are not set aside have established the fraud played by the defendant No.1 on his siblings for getting sale deeds.
74. When the conduct of the 1st defendant can be explained in limited words, plaintiff need not go in search of line of witnesses and cluster of documents. I find in the proceedings among the members of the family, the parameter also take a different shape wherein the sale deeds will have to be mentioned and also considerable approach will be there to explain such circumstances. More particularly, order VI Rule 5 and 10 of CPC mandates a reasonable responsibility on the defendant. I find in the nature and circumstances of the facts which are pleaded as fraud, responsible approach of the 1st defendant also fortifies that sale deeds were neither intended nor came into existence in legal or valid atmosphere as such, to stay away from the liability. In 54 the further circumstances of the case, the plaintiff and defendants insofar as sons and daughters stand at par and not that 1st defendant is kept out of consideration.
75. Learned counsel Sri. Mohammed Nasiruddin, for 1st defendant would submit that what was ordered by this court in RFA No.556/2002 is not a remand. In this connection, the operative portion is as under:
"The appeal is allowed in part. The findings recorded by the learned trial judge on additional issue 2 are set aside. The decree of the trial court relating to quantification and allotment of shares to plaintiff and defendants is confirmed. However, the question as to whether defendant No.II and other defendants have executed registered sale deeds in favour of I defendant in respect of their undivided shares in A schedule property as also binding nature of sale deeds is left open to be decided in final decree proceedings. The decree regarding liability of plaintiff to pay a sum of Rs.79,000/- is confirmed."
76. In this connection, Final Decree Proceedings are not made optional to the parties. On the other hand, there was definite direction of the court to conduct final 55 decree proceedings in order to adjudicate the particular point. In this connection, there was no alternative except to conduct final decree proceedings for the trial court and also to the parties to participate therein to adjudicate the matter. In this connection, it is not a remand, but it is a process wherein this court ordered the trial court to deal with and dispose of the matter pertaining to the sale deeds. The words do not matter function matters.
77. In the circumstances, I do not find that the direction for remand has been wrongly understood by the trial court nor there is prejudice in the direction. Therefore, I do not find any infirmity, illegality or perversity in the judgment and decree passed by the learned trial Judge. The appeal is devoid of merits. It is dismissed. No costs.
78. Meanwhile, it is submitted that the matter is of the year 2012 and of the year 1985 in terms of the 56 original suit and a direction be given to the trial court to conclude the final decree proceedings expeditiously. It is also submitted that, the Commissioner is also appointed under Order 26 Rule 13 CPC and he has submitted his report stating that it is not possible to divide the property.
If such were to be the case, learned trial Judge would workout means for suitable alternative as per law and there shall be completion of final decree proceedings within four months from the date of receipt of certified copy of this judgment.
Sd/-
JUDGE tsn*/SBN