Karnataka High Court
Imam Saheb S/O Bibi vs Abu Hussain on 23 January, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:3113
RSA No. 1606 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1606 OF 2012 (PAR)
BETWEEN:
IMAM SAHEB
S/O BIBI,
AGE;MAJOR,
R/O HALEGERI, KAMBADAKONE P.O.
KUNDAPURA TALUK,
UDUPI DISTRICT-576 201.
...APPELLANT
(BY SRI. A ANAND SHETTY , ADVOCATE)
AND:
1. ABU HUSSAIN,
S/O LATE HAFIZA,
AGED ABOUT 63 YEARS,
Digitally signed R/O HALGERI, KAMBADAKONE POST,
by SHARANYA T KUNDAPURA TALUK,
Location: HIGH UDUPI DISTRICT-576 201.
COURT OF
KARNATAKA 2. ABDUL RAZAK ,
AGED ABOUT 43 YEARS,
S/O SALIMABI,
R/O VARAHI ROAD CROSS,
HOSANGADI POST,
KUNDAPURA TALUK-576 201.,
3. MEHARUNNISA ,
AGED ABOUT 40 YEARS,
D/O LATE SALIMBADI,
R/O HAIKADI OF HILIYANA VILLAGE,
POST HAIKADI, UDUPI TALUK-576 201.
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NC: 2024:KHC:3113
RSA No. 1606 of 2012
4. ASHRAF,
AGED ABOUT 47 YEARS,
S/O BIBI AISHA,
5. DILSHAD,
AGED ABOUT 43 YEARS,
S/O BIBI AISHA,
6. MOHAMMED GHOUSE,
AGED ABOUT 41 YEARS,
S/O BIBI AISHA,
7. HANIFA,
AGED ABOUT 39 YEARS,
D/O BIBI AISHA,
RESPONDENTS 4 TO 7 ARE RESIDING AT C/O
LATE KAVRADI ALLI SAHEB, NEAR MASZID ,
BASROOR VILLAGE & POST,
KUNDAPURA TALUK-576 201.
8. MOHIDDIN,
AGED ABOUT 50 YEARS,
S/O ABOO SAHED,
9. IBRAHIM,
AGED ABOUT 48 YEARS,
S/O ABOO SAHED,
10. HASSAN,
AGED ABOUT 44 YEARS,
S/O ABOO SAHEB,
RESPONDENTS 8 TO 10 ARE R/O
HALGERI, KAMBADAKONE POST,
KUNDAPURA TALUK-576 201.
...RESPONDENTS
(BY SRI. VYASA RAO K.S, ADVOCATE FOR R8;
R1, R3, R6, R7, R9 & R10 SERVED
VIDE ORDER DATED 16.03.2016 NOTICE H/S IN R/O R4, R5;
VIDE ORDER DATED 25.07.2019 APPEAL AGAINST R2 IS
DISMISSED FOR DEFAULT)
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NC: 2024:KHC:3113
RSA No. 1606 of 2012
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 30.1.2012 PASSED BY THE FAST
TRACK COURT AT KUNDAPURA IN R.A. 16/2003 DATED
30.1.2012 IN CONFIRMING THE JUDGMENT AND DECREE
PASSESD BY THE PRINCIPAL MUNSIFF AT KUNDAPURA IN
O.S.NO. 117/82 DATED 26.7.1998 WITH ANY OTHER RELIEFS
AS DEEMS FIT UNDER THE CIRCUMSTANCES OF THE CASE, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned counsel for the respondents.
2. The factual matrix of the case of the plaintiff before the Trial Court is that she is the second wife of Aboo Saheb and her marriage was performed with Aboo Saheb after the death of his first wife namely Sheik Bi Mabi and she had only two daughters i.e., defendant Nos.1 and 2. The plaintiff begotten five children through Aboo Saheb and they are defendant Nos.3 to 7 and the said Aboo Saheb died interstate. The said Aboo Saheb held the plaint mentioned 'A' schedule property as a moolgeni tenant under one Krishnamma Sedthi and Chandamma Sedthi. He applied for occupancy right in respect of 'A' schedule property and in TRI.No.319/1997-78, by an order dated 24.06.1977, the Land Tribunal of Kundapura Taluk -4- NC: 2024:KHC:3113 RSA No. 1606 of 2012 conferred occupancy right over the plaint mentioned 'A' schedule property in favour of Aboo Saheb. The said Aboo Saheb had also constructed 3 buildings in the 'A' schedule property out of which, two are tiled ones and one is thatched one. In one of the tiled buildings, defendant Nos.1 and 2 are staying and in another tiled building, the plaintiff and defendant Nos.5 to 7 are residing as defendant Nos.1 and 2 desired to reside separately from the plaintiff. The said Aboo Saheb, during his life time, constructed the building wherein, defendant Nos.1 and 2 now resides. So also, as defendant No.4 desired to reside separately from the plaintiff. The said Aboo Saheb constructed another thatched building for the residence of defendant No.4. There are altogether 8 coconut trees in the 'A' schedule property and the net annual income thereof is not less than 200 coconuts. It is also their case that Aboo Saheb owned the plaint mentioned 'B' schedule immovable property on mooli right and he has been in actual possession of the same till the date of his death. After the death of Aboo Saheb, the plaintiff and defendants have been in joint possession of the suit schedule property. Hence, claimed share in respect of both 'A' and 'B' schedule properties and also claim is made in respect of 'C' schedule property.
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3. The defendants appeared and filed their written statement disputing the relationship between the plaintiff and Aboo Saheb and contended that the suit is misconceived, speculative in nature and not maintainable in law. The claim of the plaintiff is that she is the first wife and she is entitled for partition cannot be accepted and she is not having any right in suit schedule property.
4. The Trial Court, having considered the grievance of the parties, framed the issues and allowed the parties to lead evidence and by considering both oral and documentary evidence available on record, granted the relief in favour of the plaintiff granting the partition. Being aggrieved by the said order, the appeal in R.A.No.16/2003 was filed by the mother of the appellant herein.
5. The main contention in the regular appeal also is that the Trial Court has committed an error in granting the relief accepting the case of the plaintiff inspite of no proof of marriage as well as the relationship between the parties. The First Appellate Court also formulated the points whether the Trial Court committed an error in granting the relief and -6- NC: 2024:KHC:3113 RSA No. 1606 of 2012 whether the same requires interference and answered the points framed in the appeal memo in coming to the conclusion that the plaintiff and the defendants have got right to claim partition in 'A' and 'B' suit schedule properties and the judgment passed by the Trial Court is not perverse, capricious and illegal and dismissed the first appeal. Hence, the present second appeal is filed before the Court.
6. The main contention of the learned counsel for the appellant is that both the Courts committed an error in not accepting the case of the defendants since they have denied the very relationship and right claimed by the plaintiff. There cannot be presumption of marriage between Kulusumbi and Aboo Saheb as per Section 268 of the Mohammedan Law as the condition under Section 344 of the Mohammedan Law is not fulfilled. The counsel also vehemently contend that this Court has to frame substantial question of law that whether the Courts below could have decreed the suit in the absence of proof that there is a valid marriage between Kulsumbi and Aboo Saheb and in the absence of any documentary evidence ought not to have relied upon the presumption under Section 268 and also failed to consider the deposition of 3 Khazis examined as -7- NC: 2024:KHC:3113 RSA No. 1606 of 2012 PW.2 to PW.4 where they have clearly stated that the marriage of Aboo Saheb is not recorded in any of the register maintained and in the absence of reporting the marriage to the Revenue Authority.
7. The counsel appearing for the respondents would submit that the Trial Court as well as the First Appellate Court, having considered both oral and documentary evidence available on record particularly public document Ex.P2-Voter List, have not committed any error in decreeing the suit and graining share in respect of 'A' and 'B' suit schedule properties and it does not require any interference and no substantial question of law arises for consideration.
8. Having heard the learned counsel for the appellant as well as learned counsel for the respondents and also considering the material on record, it is a specific case of plaintiff that she is the second wife of Aboo Saheb and after the death of first wife, she married Aboo Saheb and she begotten five children and material also taken note of by the Trial Court particularly, Ex.P2-voter list for the year 1980, Ex.P2(a)-portion of Ex.P2 i.e., voter list and Exs.P7 to 9-House tax receipts and also taken note that all of them are residing together and also -8- NC: 2024:KHC:3113 RSA No. 1606 of 2012 there is no any evidence to the effect that the defendants or plaintiff do hold any other property in the area of village Panchayath and Exs.P7 to 9 are the documents pertaining to that property.
9. The Trial Court, considering both oral and documentary evidence available on record, granted the relief of partition and the First Appellate Court also in detail discussed the same particularly, in paragraph No.19 with regard to the pleadings as well as the evidence led by the plaintiff to substantiate her claim and also in paragraph No.20 also taken note in respect of the defence which have been taken by the defendants particularly, the evidence of PW.4 and also the evidence of PW.2, who is the Khaji of Jamia Masjid of Halgeri of Kambadakone Village, Kundapura Taluk and he has stated about the marriage of Ibrahim Saheb S/o. Aboo Saheb i.e., defendant No.6 in whose marriage also the Aboo Saheb has participated and also he has produced register and deposed about some entries in the said register. Both the Courts have taken note of the evidence adduced by the plaintiff to substantiate her claim. The First Appellate Court also on formulation of points, in view of the grounds urged in the -9- NC: 2024:KHC:3113 RSA No. 1606 of 2012 appeal memo, considered both oral and documentary evidence and fact finding is given by the Trial Court and the same is appreciated by the First Appellate Court both on question of facts and question of law.
10. Though the counsel appearing for the appellant would vehemently contend that both the Courts have committed an error of finding perverse, I do not find any such perversity in considering both question of facts and question of law. Section 268 r/w Section 344 of the Mohammedan Law also considered by both the Trial Court as well as the First Appellate Court and also considered the evidence of witnesses with regard to the proof of marriage and also public document i.e., voter list. When such finding is given based on material on record and unless perversity is pointed out in the finding of the Trial Court as well as First Appellate Court, I do not find any error in the order to invoke Section 100 of CPC. The Court can invoke Section 100 of CPC only when perversity is find and no such prima facie perversity is made out by the appellant to frame substantial question of law for consideration. Hence, I do not find any merit in the appeal to admit and frame substantial question of law.
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NC: 2024:KHC:3113 RSA No. 1606 of 2012
11. In view of the discussion made above, I pass the following:
ORDER
i) The appeal is dismissed.
.
Sd/-
JUDGE VM List No.: 1 Sl No.: 24