Karnataka High Court
Shri Abdul Raheem vs Shri Abdul Ajeem on 9 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:26345
RSA No. 844 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 844 OF 2021 (PAR/POS)
BETWEEN:
SHRI ABDUL RAHEEM
S/O R.PAKEERA AHAMMED,
SINCE DEAD BY LRS,
SMT. SHABANA NAZMEEN,
1.
W/O KHADAR BHASHA MULLA,
AGED ABOUT 38 YEARS,
R/O DARGA ONI,
HANGAL TOWN,
HAVERI DISTRICT-581110.
2. SHRI. ABDUL MATHIN
S/O LATE R.ABDUL RAHEEM,
Digitally signed AGED ABOUT 36 YEARS,
by DEVIKA M
Location: HIGH 3. SHRI. MUDASSIN AHMED SAB
COURT OF S/O LATE R.ABDUL RAHEEM,
KARNATAKA
AGED ABOUT 28 YEARS,
APPELLANT NOS.2 AND 3 ARE
R/O KANKERI, SORABA TOWN,
SHIVAMOGGA DISTRICT-577429.
...APPELLANTS
(BY SRI. SAPPANNAVAR BASAVARAJ SHIVAPPA, ADVOCATE
[THROUGH VC])
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RSA No. 844 of 2021
AND:
1. SHRI ABDUL AJEEM
S/O R PAKEER AHMED,
AGED ABOUT 67 YEARS,
R/O HALESORABA,
HOSAPETE HAKKALU,
SORABA TALUK,
SHIVAMOGGA DISTRICT-577429.
2. SMT. HASAHAMATTUNNISSA
W/O NAZEER AHAMMED KHAJI,
AGED ABOUT 65 YEARS,
R/O TAJ NAGAR, HUBBALLI,
HUBBALLI TALUK,
DHARWAD DISTRICT-580009.
3. SMT. KHUSATARUNNISSA
W/O ASDUL REHAMAN GULAMALISHA,
AGED ABOUT 63 YEARS,
R/O DARGA ONI,
HANGAL, HANGAL TALUK,
HAVERI DISTRICT-581110.
4. SMT. SADIKHUNNISSA
W/O ABDUL SATTAR GULAMALISHA,
AGED ABOUT 52 YEARS,
R/O DARGA ONI,
HANGAL, HANGAL TALUK,
HAVERI DISTRICT-581110.
5. SMT. SALEEMUNNISA
W/O HAYATH KHAN,
AGED ABOUT 56 YEARS,
R/O CHIKKAJAMBOORU VILKLAGE,
SHIKARIPURA TALUK,
SHIVAMOGGA DISTRICT-577427.
6. SMT. FAHIMUNNISA
W/O MUSTAFA,
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RSA No. 844 of 2021
AGED ABOUT 50 YEARS,
R/O BHOVI COLONY,
1ST CROSS, SHIRALKOPPA,
SHIKARIPURA TALUK,
SHIVAMOGGA DISTRICT-577427.
7. SHRI. R. ABDULLAH ALEEM
S/O PAKEERA AHAMED,
AGED ABOUT 54 YEARS,
R/O HOSAPETE HAKKALU,
HALESORABA, SORAB TALUK,
SHIVAMOGGA DISTRICT-577429.
8. SMT AKTHARUNNISA
W/O NAZARULLAKHAL KHAN,
AGED ABOUT 58 YEARS,
R/O BYANDMOHALLAF,
SHIRALKOPPA,
SHIKARIPAURA TALUK,
SHIVAMOGGA DISTRICT-577427.
...RESPONDENTS
(BY SRI. S.R.HEGDE HUDLAMANE, ADVOCATE FOR
C/R1 TO R6 AND R8)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 23.07.2021
PASSED IN R.A.NO.10006/2019 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA,
SITTING AT SAGAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.12.2018
PASSED IN O.S.NO.23/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SORABA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 844 of 2021
JUDGMENT
1. This matter is listed for admission. Heard the learned counsel for the appellants and also the learned counsel for the respondents.
2. The factual matrix of case of plaintiff before the Trial Court in O.S.No.24/2013 that the plaintiffs and defendants are tenants in common and suit schedule properties are their common property and hence the same has to be divided. It is also contended that parties to the suit are Muslims and both of them are legal heirs of propositus R.Fakir Ahammad who died on 15.02.2012. The wife of propositus Smt.Khamarunnisha died on 02.10.2012. The suit schedule properties are stated to the family properties of plaintiffs and defendants. After the death of the propositus of the plaintiff and defendants have become tenants in common and they are common owners of the suit schedule properties. It is also contended that after the death of the propositus, behind the back of -5- NC: 2024:KHC:26345 RSA No. 844 of 2021 the plaintiffs and defendants, the defendant No.2 in coolusino with revenue authorities got mutated the revenue records of the suit schedule property in favour of the mother Khamarunnissa. As soon as the plaintiff learnt about the mutation they filed revision petition under Section 136(3) of Karnataka Land Revenue Act, 1964. the dispute is still pending. Since, Khamarunnissa died on 02.10.2012, the parties to the suit are having rights over the suit schedule property as per Section 65 Table No.54(A) of Mohammedan Law. Therefore, all the plaintiffs and defendants are having shares in the suit schedule properties. When the plaintiffs demanded defendant Nos.2 and 3 for their share in the suit schedule properties, the same has been denied. Hence, the plaintiffs filed the suit for the relief of partition.
3. In pursuance of suit summons, the defendants have appeared and defendant No.2 has filed written statement. The defendant Nos.1 and 3 adopted the written statement filed by the defendant No.2. The defendant -6- NC: 2024:KHC:26345 RSA No. 844 of 2021 No.2 in the written statement admitted the relationship interse and also genealogy and also admitted that the father and mother are no more. However, they denied that mutation in the name of mother was fraudulent and denied the rights alleged by the plaintiffs. However, it is contended by the defendants that after the death of Propositus R.Fakhir Ahammad, the mutation is effected in the name of his widow-Kamarunnisa, the said mother Kamarunnisa had gifted the share available to her in favour of defendant No.2 under gift deed dated 05.05.2012.
4. It is also the contention of the defendants that at the time of gift, the defendant No.3 as well as Abdul Aleem were present and the gift deed was reduced into writing. The defendant No.2 is enjoying the property as owner in respect of his own share as well as the share available to his mother. It is the specific case of the defendants that during the life time of Fakhir Ahammad, the suit schedule properties in Sy.No.175/1 and -7- NC: 2024:KHC:26345 RSA No. 844 of 2021 Sy.No.175/2 were used which had some income and using the income from these two properties and also from his teaching profession salary he had purchased Sy.No. 30 measuring 3 acres 30 guntas. The said Sy.No.30 was granted to him by Government and saguvali chit was also issued in the name of plaintiff No.1. Thus even this property is a property belonging to the father Fakhir Ahammad and all the legal heirs are having right over even in Sy.No.30. Further, the property at Basavapatna was purchased by the father during his life time in the name of the plaintiff No.1 and also got constructed a residential house where stationary shop is being run. To put up this stationary shop the father of plaintiff had financially helped the plaintiff No.1 This property is a gram panchayath property No.18. Therefore, Sy.No.30 of Maruru village measuring 3 acres 30 guntas, house of Basavapattan are also the common properties where all the parties have got right. It is also contended that excluding the property gifted by the mother and other properties including Sy.No.30 and the house of -8- NC: 2024:KHC:26345 RSA No. 844 of 2021 Basavapatan has to be divided between the plaintiffs and the defendants. Therefore, prayed for division of the suit properties. Subsequently, the defendant No.1 came up with separate written statement by filing I.A No.VIII and the same was allowed since others have not objected the same. In the written statement he contended that no cause of action to file the suit. He is having ½ share over the suit schedule properties. It is contended that suit schedule properties in Sy.No.175/1 and Sy.No.175/2 were purchased from the income of the defendant No.1. But, at that time, father was alive and therefore, those two properties were purchased in the name of the father since he was eldest person. During the lifetime of his father - Fakshir Ahammad had orally informed that the house property at 'C' schedule has to be shared in half between defendant Nos.1 and 2 and also at house at Basavakalyana is also sought to be divided.
5. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to -9- NC: 2024:KHC:26345 RSA No. 844 of 2021 lead evidence. The plaintiff No.1 got examined himself as PW1 and got marked Ex.P1 to Ex.P3. On the other hand, defendant No.2 got examined himself as DW1 and defendant No.1 has also examined as DW2 and got marked Ex.D1 to Ex.D3. The Trial Court having considered both oral and documentary evidence available on record, comes to the conclusion that plaintiffs and defendants are tenants in common and properties are liable to be divided and also comes to the conclusion that suit schedule properties were gifted by Khamarunnisa to defendant No.2 under the gift deed dated 05.05.2012 but answered other two Issues as negative with regard to the claim made by defendant No.1 as well as defendant No.2 and granted the relief of partition allotting 7/48th shares in the suit schedule properties in favour of plaintiff No.1 and 7/96th shares each in favour of plaintiff Nos.2 to 6 and defendant No.3 and 7/48th shares in favour of defendant No.1 in the suit schedule properties and also an observation is made that there was a compromise between the plaintiffs and
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NC: 2024:KHC:26345 RSA No. 844 of 2021 defendant No.2 and 3, the shares of these parties shall also be allotted to defendant No.2.
6. Being aggrieved by the said judgment and decree of the Trial Court, an appeal was preferred by defendant No.1 in R.A.No.10006/2019. The First Appellate Court having considered the grounds urged in the appeal memo and also considering both oral and documentary evidence placed on record framed the points for consideration and on re-appreciation of both oral and documentary evidence placed on record the First Appellate Court comes to the conclusion that it is not in dispute that the suit schedule properties belong to the father of the plaintiffs and defendants who died intestate. It is also taken note of the fact that there is no dispute with regard to the relationship between the parties and their father left behind his wife, plaintiffs and defendants as his legal heirs and hence, the property belongs to the plaintiffs and defendants as they are the common tenants. The First Appellate Court also comes to the conclusion that the
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NC: 2024:KHC:26345 RSA No. 844 of 2021 parties are entitled for the relief of partition. With regard to the claim of defendant No.2 is concerned that is the other properties are also available for division, the Trial Court comes to the conclusion that no counter claim is made in respect of the said contention and though it is contended by the defendants in the written statement but not exclusively made any claim by making the counter claim in respect of the share. Hence, confirmed the judgment and decree of the Trial Court. Thus, the present second appeal is filed before this Court.
7. The main contention of the counsel for the appellants before this Court that the Trial Court has not justified in not giving any finding on Issue No.3 which is left without being answered. The counsel would vehemently contend that both the Courts have not decided with regard to claim made by the defendants in respect of land bearing Sy.No.30, measuring 3 acres 30 guntas situated at Maruru village, Soraba Taluk and hence, the suit for partial partition is not maintainable. Thus, this
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NC: 2024:KHC:26345 RSA No. 844 of 2021 Court has to admit the appeal and frame the substantial questions of law.
8. The learned counsel appearing for the respondents would vehemently contend that though it is missed in considering Issue Nos.2 and 3, the Trial Court while answering Issue Nos.1 and 4 discussed the issues involved between the parties in keeping the Issues framed by the Trial Court and the counsel brought to notice of this Court paragraphs 35 and 36 of the judgment of the Trial Court wherein discussion was made in respect of the claim made by the appellant No.1/defendant No.1 and also an observation is made that there is no counter claim by defendant No.1 and thus being the case, there is no need to allot any share. Further defendant No.3 says that said property is in the name of the plaintiffs and also the counsel would vehemently contend that in this case, earlier, neither he had challenged the said gift deed since he sailed with defendant No.2 earlier and said admission is not withdrawn and also taken note of document at Ex.D1
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NC: 2024:KHC:26345 RSA No. 844 of 2021 which is a gift deed and discussed in paragraph 39 in respect of gift deed is concerned. Hence, no error is committed by both the Courts.
9. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it discloses that the main contention of the appellants that not discussed with regard to Issue Nos.2 and 3. But the fact that the Trial Court while considering the Issues involved between the parties, in paragraph 35 taken note of the fact that DW2 admitted that records of the suit schedule property in Sy.No.175/1 and 175/2 and sale deed is in the name of his father and admittedly all the suit schedule properties joint properties and all legal heirs have shares in respect of the property is concerned. It is also an observation made by the Trial Court regarding claim made by defendant No.1 in respect of RS No.30. The Trial Court held that no doubt, a claim is made by defendant No.1 that the said property is also entitled for division but mere making the claim in the
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NC: 2024:KHC:26345 RSA No. 844 of 2021 written statement is not enough since the defendant ought to have made the same in his counter claim but no such material is placed before the Court to show that he made the payment of Court fee and made the counter claim in respect of the property which is not the property shown in the suit schedule property. Hence, the Trial Court also in paragraph 36 made an observation that no counter claim made by defendant No.1. When such finding is given, when defendant No.1 also not made any effort in bringing the property on record claiming counter claim before the Trial Court, now in the second appeal he cannot contend that no share is allotted and same has not been discussed. When the issue has been raised by the Trial Court with regard to the said fact, mere framing of issue is not enough to allot the share, there must be counter claim in respect of said property and he now cannot contend that the suit is barred under Order II Rule 2 of CPC and not maintainable for partial partition and ought to have been placed the material before the Court stating that the said property is also amenable for division. Admittedly the
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NC: 2024:KHC:26345 RSA No. 844 of 2021 document at Ex.D3 shows that the said property stands in the name of the plaintiffs and same has been observed by the Trial Court. Though defendant No.1 contended that the said property is also a family property, the burden is on him to prove the same. But no such effort has been made filing any counter claim and droving the same. When such being the case, I do not find any error committed by both the Courts in considering both oral and documentary evidence placed on record. Hence, the very contention of the counsel for the appellants that in the absence of other property, suit for partial partition is not maintainable cannot be accepted since there is no any counter claim made by the defendants and mere contention taken in the written statement is not enough and ought to have been placed the material before the Court with regard to the contention that the property is also entitled for division as contended in the written statement but no such efforts are made by the appellants. Hence, I do not find any ground to admit the appeal and to frame substantial questions of law invoking Section 100 of CPC.
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NC: 2024:KHC:26345 RSA No. 844 of 2021
10. In view of the discussions made above, I pass the following:
ORDER
i) The Regular Second Appeal is dismissed.
ii) In view of disposal of the main appeal, I.A. if any, does not survive for consideration and the same stands disposed of.
Sd/-
JUDGE RHS, SN List No.: 1 Sl No.: 98