Karnataka High Court
Sri. S Sadiq Pasha vs Smt. Rahamathbi on 26 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR SECOND APPEAL NO.471 OF 2017
BETWEEN:
1. SRI. S. SADIQ PASHA
S/O LATE ABDUL SATTAR
AGED ABOUT 49 YEARS
RESIDING AT SILK MERCHANT
ANANDA NAGAR, POLICE STATION ROAD,
VIJAYAPURA TOWN - 562 110.
2. SRI. S. WAZID
S/O LATE ABDUL SATTAR
AGED ABOUT 47 YEARS
RESDIING AT OPP: QUBA MASJID,
VIJAYAPURA - 562 110.
BANGALORE RURAL DISTRICT.
3. SMT. RIHANA
W/O ZAMEER AHMED
AGED ABOUT 58 YEARS
RESIDING AT NO.38, 12TH MAIN
BELL CITY COMPOUND
OLD GUDADAHALLY (PADARAYANPURA)
MYSORE ROAD, BANGALORE - 560 026.
4. SMT. SHAHEENA
W/O LATE B.S. SAMIULLA
AGED ABOUT 55 YEARS
RESIDING AT MAHABOOB NAGAR
VIJAYAPURA - 562 110.
BANGALORE RURAL DISTRICT.
2
5. SMT. NASEEMA
W/O CHAND PASHA
AGED ABOUT 52 YEARS
RESIDING AT NO.38, 12TH CROSS,
BELL CITY COMPOUND
OLD GUDADAHALLY (PADARAYANAPURA)
MYSORE ROAD, BANGALORE - 560 026.
6. SMT. SALEEMA
W/O IQBAL KHAN
AGED ABOUT 44 YEARS
RESIDING AT NEW MEENA MOSQUE
II CROSS, NEW GURAPPANNAPALYA,
BANNERGHATTA ROAD, BANGALORE - 560 029.
7. SMT. RIZWANA
S/O MOHABOOB ALIK
AGED ABOUT 40 YEARS
RESIDING AT NEW MEENA MOSQUE
II CROSS, NEW GURAPPANAPALYA,
BANNERGHATTA ROAD, BANGAORE - 560 029.
...APPELLANTS
(BY SRI. RAVINDRANATH K., ADVOCATE)
AND:
1. SMT. RAHAMATHBI
W/O LATE ABDUL SATHAR
AGED ABOUT 77 YEARS
RESIDING AT 1ST MAIN, ANANDA NAGAR, OPP:
POLICE STATION, VIJAYAPURA,
DEVANAHALLI TALUK - 562 110.
BANGALORE RURAL DISTRICT.
2. SRI. MOHAMED HUSSEIN
S/O LATE ABDUL SATHAR
AGED ABOUT 61 YEARS
RESIDING AT MADIBELE ROAD,
ISLAM NAGAR, VIJAYAPURA,
DEVENAHALLY TALUK - 562 110.
BANGALORE RURAL DISTRICT.
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3. SRI. ABDUL FAROOQ
S/O LATE ABDUL SATHAR
AGED ABOUT 57 YEARS
RESIDING AT NO.109,
II MAIN ROAD, FAROOKMI MANZIL,
MUNICIPAL LAYOUT,
CHIKKABALLAPUR - 562 101.
4. SRI. H.B. SHIVARAM
S/O H.K. BACHANNA
AGED ABOUT 62 YEARS
RESIDING AT NO.172, II MAIN ROAD,
BYRAWESWARA NILAYA - 560 024.
HEBBAL, BANGALORE.
...RESPONDENTS
(BY SRI. A. RAMAKRISHNA, ADVOCATE FOR R4;
R1 & R2 ARE SERVED, BUT UNREPRESENTED;
SRI. R.V. TAJPEOR SAB, ADVOCATE FOR R3;
VIDE ORDER DATED:25-04-2024;
A1 TO A6 AND R2 & R3 ARE THE LRS OF DECEASED R1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 7.1.2017 PASSED IN RA NO.12/2010 ON
THE FILE OF THE II ADDL. DISTRICT AND SESSIONS
JUDGE, CHICKBALLAPUR (SITTING AT CHINTAMANI)
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 25.1.2010 PASSED IN OS
NO.73/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN)
AND JMFC., CHINTAMANI.
THIS REGULAR SECOND APPEAL HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 11.07.2024 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
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RESERVED FOR ORDERS ON: 11.07.2024
PRONOUNCED ON : 26.07.2024
CAV JUDGMENT
This appeal is filed by the appellants/plaintiffs under Section 100 of CPC for setting aside the judgment and decree passed by the II Addl. District and Session Judge Chikkaballapur sitting at Chintamani.1 in R.A.No.12/2010 for having allowing the appeal and also to dismissing the suit filed by the plaintiffs in O.S.No.73/2017 on the file of Civil Judge Senior Division and JMFC, Chintamani dated 25.10.2010.
2. The appellants are plaintiffs and the respondents were the defendants before the Trial court. The ranks of the parties before the trial court is retained for the sake of convenience. 1 Herein after referred as first appellate court 5
3. Heard the arguments of learned counsel for the parties.
4. The case of the plaintiff before the trial court is that the plaintiff had filed the suit for partition and separate possession of the plaintiff legitimate share and for declaration that the sale deed dated 24.02.1995 is void and not binding on the share of the plaintiffs.
5. It is alleged that the plaintiffs and defendant No.2 and 3 are the children of late Abdul sathar. The said Abdul sathar died in the year 1973 and he was a K.S.R.T.C driver working in Kolar division. The defendant No.1 is his wife. The said Abdul sathar died intestate. The plaintiffs and defendant Nos.1 to 3 are the nearest legal heirs of deceased Abdul sathar, who have succeeded to the estate of deceased Abdul sathar. During his lifetime, he had not transferred the suit schedule property by way of sale, gift etc., to anybody. 6 The suit schedule property was purchased by the Abdul sathar in the year 1954. The said family did not own any other property except the suit schedule property. All the family members were depend upon the small income from the said suit schedule property. After the death of the Abdul sathar the plaintiffs and defendant Nos.1 to 3 were succeeded and they are in joint possession of suit schedule property. Due to the lack of rains no agricultural operation was done and defendant Nos.1 to 3 have become hostile towards the plaintiffs. Hence, the plaintiffs thought for seeking partition of their respective shares. The plaintiffs have approached the defendant Nos.1 to 3 for partition, but they postponed the same and they also threatened the plaintiffs that they will not give the share of the plaintiffs. The Plaintiffs obtained the RTC extract, after that they came to know that the said property was sold in favour of the defendant No.4, vide sale deed dated 7 24.02.1995 by the defendant No.3. The said defendant No.3 had no right to sell the suit schedule property. Inspite of alleged sale, the plaintiffs and defendant Nos.1 to 3 are the continuous possession of the suit schedule property. The defendant No.4 taking advantage of the absence of the plaintiffs and defendant No.1 in the village has misused his possession and got changed the katha illegally in his name. Hence, the plaintiffs constrained to file the suit.
6. Upon service of summons, The defendant Nos.1 to 3 did not appear and placed exparte. The defendant No.4 has appeared through his counsel and filed written statement and denied all the plaint averments further contended that he is a bonafide purchaser of the suit schedule property from the defendant No.3 under the registered sale deed dated 24.02.1995, for valuable consideration of Rs.1,23,000/-. He is in actual possession and 8 enjoyment of the suit schedule property. The defendant Nos.1 and 2 have put their signature in the sale deed as consenting witness along with the other members of the family. The defendant No.4 by furnishing all the documents to the revenue authorities has got mutated his name and defendant No.4 has paying taxes to the Government. The plaintiffs are not entitled to any share in the suit schedule property. They have not included their other family properties and suit for partial partition is not maintainable. The only intension of the plaintiffs is to see that the money has to be extracted from the defendant No.4 for their illegal and unlawful gain. All the parties have colluded each other against the defendant No.4. The defendant No.4 has raised eucalyptus trees in the entire extent of the suit schedule property. Hence, prayed for dismissing of the suit.
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7. After filing the written statement, the plaintiffs have filed rejoinder to the written statement denying the fact that the defendant No.4 is the bonafide purchaser of the suit schedule property. It is also denied that the defendant Nos.1 to 2 have put their signature in the sale deed as consenting witnesses. The plea taken by the defendant No.4 that suit is not maintainable for partial partition is untenable as these plaintiffs not aware of the any property belonging to the late Abdul Sathar and there are no other property available to the partition. The defendant No.4 ought to have give particulars of the alleged family properties which are liable for partition. Hence, the defendant No.4 is not entitled to take such plea. Hence prayed for rejecting the plea of the 4th defendant.
8. Based upon the pleadings, the trial court framed 6 issues, 10
1. Whether the plaintiffs prove that the plaintiffs and defendants No.1 to 3 are in joint possession and enjoyment of the schedule property.
2. Whether the 4th defendant proves that he is the bonafide purchaser of the suit schedule property from the 3rd defendant for valuable consideration?
3. Whether the suit is notmaintainable for non-inclusion of the other properties belonging to the family of the plaintiffs and defendants No.1 to 3?
4. Whether the suit is bad for non-
joinder of the legal heirs of the remaining members of the family?
5. Whether the plaintiffs are entitled for the relief claimed in the plaint?
6. What order or decree?"
9. To substantiate the claim, the plaintiff No.1 has examined himself as PW1 and marked 5 documents as Ex.P.1 to P.5, on the other hand defendant No.4 got examined himself as DW1 and got marked 1 document as Ex.D.1. After hearing the arguments, the Trial court decreed the suit holding that the plaintiffs are entitled for 1/6th share each in the suit schedule property and separate possession thereof. 11
10. Being aggrieved with the judgment and decree the defendant No.4 has filed appeal before first appellate court in R.A.12/2010. The First appellate Court after hearing the arguments, allowed the appeal filed by the defendant No.4, by setting aside judgment decree passed by the Trail Court in O.S.No.73/2007. Hence, the plaintiffs have filed this second appeal.
11. The learned counsel for the appellants has vehemently contended that the first appellant Court has committed error in holding that the partial partition in not maintainable and also contended even though there is no pleading in the written statement regarding the limitation and even there is no grounds regarding the delay in filing the suit. The first appellate Court frames own motion point that the suit is barred by limitation, accordingly, appeal was allowed merely on the ground that the suit is barred by the limitation, which is not correct and further contended that in Mohammedans 12 Law propositus dies, the property of the Abdul sathar was succeeded by the plaintiff Nos.1 to 7 and defendant Nos.1 to 3 by inheriting by tenants as common. It is not undivided share as available in the Hindu Law. Therefore, it is contended that the property was inherited by them they become independent owner of the their share, such being the case, the defendant Nos.1 to 3 do not have any right to alienating the share of the plaintiffs. It is also contended that even otherwise the suit schedule property was alienated in February 1995 and plaintiffs are not aware about the alienation to the defendant No.4. When they obtained RTC for filing suit, then they came to know about the alienation of the suit schedule property. Therefore, the suit is within the limitation from the date of their knowledge as per the article 144 of limitation Act.
12. Learned counsel for the appellants also contended that as regards to the partial partition, there 13 is no other property belongs to Abudul Sathar for including the partition suit, only house property belonging to the defendant No.1 the mother of the plaintiffs, the plaintiffs cannot claim any share as is her own property, as it was sold by them subsequent to the filing of the suit that is nothing to do with the property of their mother as the plaintiffs and defendant Nos.1 to 3 are tenants in common. During the pendency of the this appeal appellant No.1 Rahamathabi has died. In support of their contention they submitted various Judgments of the Hon'ble Supreme Court. Therefore, prayed for allowed the appeal.
13. Per contra, the learned counsel for the respondent/defendant No.4 supported the judgment passed by the first appellate court and contented that the there was house property belongs to the plaintiffs family, which was sold by the plaintiffs along with the defendant Nos.1 to 3 subsequent to the suit. Therefore, 14 contention of the plaintiffs cannot be acceptable and the suit for partial partition is not maintainable. It is also contend by the respondent/defendant No.4 counsel that the suit schedule property was sold in February 1995, but suit was filed in the year 2007, after laps of 12 years. which is barred by limitation and further contended that the limitation is point of law, therefore he need not be pleaded in the written statement or in the appeal grounds more than 12 years of the sale deed when the suit was filed. Therefore, suit was barred by limitation. Hence prayed for dismissing the appeal.
14. Based upon the arguments addressed by the counsel for the parties, the appeal was admitted on the following substantial questions of law;
(i) Whether the first appellate Court has committed any serious legal error in dismissing the suit one the ground of limitation that there is no pleading and evidence to that effect.?15
(ii) Whether the lower Appellate Court has committed any serious legal error, in holding that the sale deed executed by the deceased Mohamed Hussein's father is valid even against the other legal heirs when there is no specific pleading with regard to any bonafide purchase and legal necessity by the purchaser [[[ 15. Having heard the arguments and perusal of the records, which reveals that plaintiffs have filed a suit for partition and separate possession in respect of suit schedule property which was purchased by Adbul Sathar in the year 1954 and he was died in the year 1973 by intestate. It is also admitted fact that plaintiffs and defendant Nos.1 to 3 are governed by Mohammedans law.
16. The main contention raised by the appellants in the first substantial question of law is that the first appellate court committed error by dismissing the suit on the ground of limitation, when there is no pleadings and evidence to that effect. Learned counsel for the 16 appellants has contended that there is no pleading in the written statement made by the 4th defendant that the suit is barred by the limitation and also there is no evidence adduced before the Trial Court. The said ground also not urged in the appeal memo and even in the arguments. Such being the case, the first appellate court suo motu taken the point of limitation and allowed the appeal by dismissing the suit is not correct.
Per contra, learned counsel for the respondent/defendant No.4 has contended that the limitation is question of law which is need not be pleaded and adduced in evidence, since the property was sold in February 1995, whereas, the suit was filed in March 2007. Therefore, the suit is barred by limitation of 12 years as per the article 144 of the Limitation Act. In this regard, respondent counsel has relied upon the judgment of the coordinate Bench held in the case of the Rangahanumaiah by LRs. and 17 others Vs Devaraju in RSA No.209 of 2007 (PAR) dated 02.06.2023 in para No.27 of the judgment, the coordinate Bench has held that the specific finding of the appellate Court in respect of the suit is barred by time is maintainable, the same is question of law even though no ground is urged in first appellate Court ought have considered the same while exercising the power under Section 100 of CPC, High Court can consider the point of limitation.
17. Admittedly, there is no ground urged by defendant No.4 in the written statement that this suit is barred by limitation and there is no issue framed by the Trial Court. Even in the appeal memo the ground of limitation was not urged by the defendant No.4. But the first appellate Court by sue motu raised the point for consideration in respect of limitation. It is well settled principal law that the fact should be urged in the pleadings but not law. Therefore, the first appellate 18 Court has rightly considered the limitation point. Though the appellants Counsel relied upon the judgment of the Hon'ble supreme Court in the case of C Haridasan vs Annappath Parakattu Vasudeva Kurup and others2 was held, no amount of evidence looked into without any pleadings the Court cannot decide the subject matter which is not in issue. There is no second thought in respect of the principal relied by Hon'ble Apex Court in the said case, that point in respect of pleadings on the issue in respect of the disputed facts, but the point of law cannot be pleaded by the parties, as per the order VI of the CPC.
18. However, the first appellate Court committed error by not properly appreciating evidence on record and pleadings of the plaintiffs, wherein, it is specifically pleaded by the plaintiffs that after the death of their father Abdul sathar the property was succeeded by 2 Civil appeal No.4072 of 2022 19 them as tenants in common and they enjoying their respective share as the owners of their share and plaintiffs are not aware about the alienation made by the defendant No.3 and consented by the defendant Nos.1 and 2, they went on postponing the matter without giving their share. In order to file civil suit, they obtained RTC from the Revenue department at that time they came know that the defendant Nos.1 to 3 had alienated the suit schedule property. Therefore they specifically pleaded that the cause of action arose for filing the suit in February 2007 and suit was filed in March 2007 itself. When RTC were transferred in the name of the defendant No.4 there is no notice were issued to the plaintiffs, who are the owners of the suit schedule property, as on the date transferring in the name of the defendant No.4, which were transferred only subsequent to the June 1995. As per the Ex.P3 the mutation register extract produced, the objection was 20 called by the Revenue authority for transferring the Khata from 08.05.1995 till 09.06.1995 and thereafter Khatha has been transferred. Which reveals the without issuing the notice to the appellants/plaintiffs who are the owners and tenants in common but the property has been muted in the name of defendant No.4 that is the entry gives the cause of action. The plaintiffs are not aware the transfer of the property and Khata in the name of the defendant No.4 the same was came to their knowledge only February 2007. As per Article 144 of the Limitation Act, 12 years prescribed for filing the suit, when the possession of the defendant becomes adverse to the plaintiffs. That apart the plaintiff No.1 himself produced document that they are in physical possession of the suit schedule property. The learned counsel for the appellants relied upon judgment of the Supreme Court in case of the Syed Shah Gulam Ghouse Mohiuddin and others Vs. Syed Shah 21 Ahmad Mohiuddin Kamisul Qadri by his LRs. and others3 as held that in heirs of the deceased Mohammeden hold the estate of deceased as tenants in common and denial of title article 144 of the Limitation Act is applicable. Therefore, I hold that the suit is not barred by limitation and same is within the time. Therefore, the appellate Court committed error in holding the suit is barred by limitation. Hence, I answer 1st substantial question of law in favour for the plaintiffs/appellants and as against the respondent/defendant No.4.
19. As regards to the second substantial question of law, in respect of law prevails for the Mohammedans that the learned counsel for the respondent has relied upon judgment of the this coordinate bench in the case of Usman Sab vs Dastagir sab4, where this coordinate Bench held in respect of the property 3 AIR 1971 Supreme Court 2184 4 ILR 1996-KAR 484 22 devolves by succession in Mohammedans law, in paragraph No.10 has held as under;
10. I have applied my mind to the contentions made by the learned Counsel for the appellants and I find there is substance in the contention of the learned Counsel for the appellants. It is well settled principle of law that under the Mohammadan Law, there is no such thing as Joint Hindu Family nor the concept of Joint Hindu Family property applicable to Hindu Law is applicable to the parties of the case like the present case, where they are Muslims. So also, nor there is any concept of treating the properties, obtained through acquisitions of an individual in his own individual name, to be joint family properties, as being acquired representing the family. When I so hold, I find support for the view by the Madras High Court in the case MAIMOON BIVI v. O.A. KHAJEE MOHIDEEN, as well as in the case of MOHAMMED IBRAHIM v. SYED MUHAMMAD ABUBAKKER, AIR 1976 Madras 84 and by this Court in C.K. KRISHNAMURTHY SETTY v.ABDULKHADER, AIR 1956 Mysore 14.
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20. In another judgment of this Division Bench of this Court in case of Mrs.Mehrunnissa and another Vs Mr.Buddan Sharief in RFA No.142/2019 dated 19.14.2023, the division Bench has held in para Nos.16, 17 and 18 as under.
16. A member of the family may not be a heir, and vice versa, the owner has exclusive ownership of all properties with full powers of alienation. Joint family property not being recognized and the principle of survivorship is also not known to Muslim Law. When a Muslim dies, his properties devolve on his heirs in definite share of which each heir becomes absolute owner on subsequent death of such heirs, the property passes on to the further subsequent heirs and the process continues. Heirs are entitled to hold the property as tenants in common i.e. meaning group of individuals living and messing together each having definite share and title to the property unless partition of property of deceased according to pre-defined shares. There is no right by birth to any heir and comes into existence for the first time on the 24 death of the ancestor i.e. the estate devolves at the moment of death itself. There is no doctrine of representation.
17. If the above principle is applied to the present facts of the case, the properties were purchased by Ibrahim Sharieff as per the assertions made in the plaint in the name of his wife Kulsumbi and as per the pleadings, it is Kulsumbi during her lifetime sold the schedule property under registered sale deed dated 16.3.1994. That means, when the property was the exclusive property of Ibrahim sharieff and Kulsumbi either the plaintiffs or defendants No.1 to 17 had no right over the suit schedule property as the property was already sold on 16.03.1994 and it was their exclusive property.
18. The only grievance of the plaintiffs is that, after completion of pleadings and after recording of evidence, the said I.A.No.5 came to be filed. It is settled that an application to reject the plaint can be filed at any stage of the proceedings. When it appears from the pleadings in the plaint that claim of the plaintiffs is barred by Muslim Law as there is no concept of joint family or ancestral property, the learned trial Court is justified in rejecting the plaint. We do 25 not find any legal infirmity or factual error in rejecting the plaint. No grounds have been made out by the plaintiffs to interfere with the order of rejection of the plaint passed by the learned trial Court. Hence, we record our findings on Point No.1 in the affirmative.
21. In another judgment High Court of Judicature at Bombay Bench at Aurangabad in the case of Iliahkhan S/o Younuskhan vs Talayarkhan S/o Sherkhan in Second appeal No.4 of 1989 taken similar view at para Nos.11 and 17 held as under:
11. As per Section 52 of the Mahomedan Law (Mulla's Principles of Mahomedan Law, 19th edition), there is no recognition of right by birth in property held by father or forefather.
There could be right either by inheritance or by bequest as per Section 53 of the said Act. Unlike Hindu Law, there is no concept of co-parcenery property under the Mahomedan Law. Therefore, it cannot be said that Younuskhan, the minor son of Respondent No. 4 Sherkhan, had any right or interest in the property of Sherkhan during life time 26 of Sherkhan. It cannot be said that the trial court and the first appellate court committed any error in holding that Younuskhan could not get any title on the basis of alleged partition. Partition could be between co-sharers or persons having interest in joint property. Respondent No. 4 in his evidence deposed that with a view to avoid the suit land coming under the clutches of the Tenancy Act, he had orally told talathi to enter the suit land in the name of Younuskhan. It is pointed out to me that in the written statement, defendants have stated that the name of Younuskhan was entered by Respondent No.4 only to avoid the land being taken by the government under the Ceiling Act. But, neither of these statements help the plaintiffs in proving their case of Hiba. Thus, there is no oral or documentary evidence regarding Hiba (oral gift) and the circumstances do not indicate that there must be Hiba.
17. In the present case, in view of peculiar position under the Mahomedan Law, where there is absence of right by birth in a property, the theory of partition cannot be accepted. For partition, a person must have some interest or share in the property. Moreover, except the mutation of 1954, there is no document on record to show how Younuskhan 27 obtained title to the suit property. As stated earlier, there is no oral or documentary evidence on record regarding Hiba.
22. On careful reading of the judgments relied by the learned counsel for the respondent, where it is clear, unlike in Hindu law, the property devolves and undivided share in the immovable property, whereas, in the Mohammedans Law when the deceased died left behind the property without intestate, the members of the family may not be a owner as exclusive ownership of all the property with full powers of alienation and property devolves in heirs as definite share of each heirs are became tenants in common and there is life time right by birth any heirs come into existence. Therefore, when Abdul sathar died in the year 1973, the plaintiffs and defendant Nos.1 to 3 as legal heirs are become tenants in common and they are entitled for their share and enjoy as absolute owner of the their share. Therefore, the defendant No.3 have no 28 independent right to sell the share of the plaintiffs to defendant No.4, and defendant Nos.1 and 2 also do not have any right over the share of the plaintiffs to give consent to the sale deed. Therefore, defendant Nos.1 to 3 have absolutely there is no ownership over the share of the plaintiffs to sale the property to defendant No.4 without consent of the plaintiffs. Therefore, the sale deed made by the defendant No.3 in favour of the defendant No.4 is not binding on the share of the plaintiffs.
23. The counsel for the respondent also taken contention that the suit for the partial partition is not maintainable and it is contended that the plaintiffs have filed a suit for partition only one landed property and they have not included the property of the deceased, therefore the suit is not maintainable for partial partition. On other hand, appellants counsel has contended the plaintiffs have filed rejoinder to the 29 written statement stating that there is no other property belongs to the father of the plaintiffs in order to add in the schedule also contended according to their knowledge except the suit schedule property there is no other property and also contended that respondent also not adduced any evidence to show that the father of the plaintiffs and defendant Nos.1 to 3 have any other property. Admittedly, there is no properties stands in the name of decease Abdul Stathar. However, it is brought in the evidence that the house property stands in the name of the 1st defendant Smt.Rahamathabi which was sold by the plaintiffs and defendant Nos.1 to 3 together. In this regard, the plaintiffs and defendant Nos.1 to 3 was admitted that there was a house property belonging to Smt.Rahamathabi mother of the plaintiffs. The said property is belongs to her property it is nothing but estate of the women. Therefore, that 30 property cannot be included in the suit for partition filed by plaintiffs.
24. The respondent not produced any documents to show the house property sold by the plaintiffs and defendant Nos.1 to 3 was belonging to Abdul sathar. On the other hand, the said property was belong to 1st defendant and mother of the plaintiffs and defendants. Therefore, the contention of the respondent cannot be acceptable that the suit filed by the plaintiffs is for partial partition. Therefore, the grounds urged by the defendant No.4 in the written statement and in the arguments is not sustainable, on other hand suit for partition is maintainable.
25. In view of the findings above when the deceased Abdul sathar died intestate and the plaintiffs and defendant Nos.1 to 3 are hold the suit schedule property as estate of the deceased by tenants in 31 common and used to enjoy the property as owner of their share. Therefore, the other defendant Nos.1 to 3 have no right to alienate the suit schedule property without their consent to any other person much less to the defendant No.4. Therefore, the sale deed of the defendant No.4 executed by the defendant No.3 on 24.02.1995 is not biding on the plaintiffs. Therefore, the question of bonafide purchase by the defendant No.4 in respect of suit schedule property regarding the share of the plaintiffs is not sustainable. Considering the same, the Trial Court by appreciating the evidence on record rightly decreed the suit. But the first appellate Court committed error in dismissing the suit only on the ground of limitation point is not correct. In view of answering the first substantial question of law already held the first appellate Court not correct in dismissing suit by allowing the appeal. Hence 32 judgement of the first appellant Court is deserve to be set aside.
26. Hence, the following order.
ORDER
(i) Accordingly, this appeal is allowed.
(ii) The judgment and decree passed by II Addl. District and Session Judge Chickballapur sitting at Chintamani in R.A.No.12/2010 is hereby set aside and Judgment and decree dated 25.01.2010 in O.S.No.73/2007 on the file of Civil Judge Senior division and JMFC Chintamani, is hereby confirmed.
(iii) Draw decree accordingly.
(iv) No order as to the costs.
Sd/-
(K.NATARAJAN) JUDGE ASN CT:SK