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2003 DIGILAW 243 (KAR)

Shaik Usman v. Jainabi (deceased) by L. Rs.

2003-03-07

K.SREEDHAR RAO

body2003
JUDGMENT K. Sreedhar Rao, J.--This second appeal arises out of the Judgment and decree passed by the Civil Judge, (Sr. Divn.) Mangalore in R.A. No. 24/95 arising out of Judgment and decree in O.S. No. 249/03 on the file of Prl. Munsiff, Mangalore. 2. The Defendant in the suit is the appellant. The suit was originally filed by Husainabi and Jainabi, who are the cousin sisters through the power of attorney by name Shaik lsmail Sab for mandatory injunction. The plaint averments and the valuation of the properties clearly indicate that it was one for delivery of possession. It is the contention of the Plaintiff that the suit property originally belonged to Fakir Babanna Sab, who is the grand father of Plaintiffs 1 and 2. After the demise of Fakir Babanna Sab, disputes arose between his children and a suit was filed in O.S. 296 of 1907 on the file of Court of District Munsiff, Mangalore, which ended in compromise in the year 1945. According to the terms of compromise, the properties of Fakir Babanna Sab were to be kept as indivisible unit and the property to be managed by the eldest male member of the family for the benefit of entire members of the family of Fakir Babanna Sab. The Plaintiffs 1 and 2 claim that they are sole surviving heirs and are the daughters of two sons of Fakir Babanna Sab as such, claimed that they are managing the properties by terms of compromise. It is stated that the Defendant was put in permissive possession in the suit schedule property. On account of disputes between the parties, the permission granted to stay in the premises is revoked and the suit is filed for ejectment and delivery of possession. 3. Few months after filing of the suit, first Plaintiff died. The second Plaintiff submitted that she was sole surviving heir and as legal representative of the first Plaintiff, continued the proceedings. Subsequent to the demise of the first Plaintiff, the Defendant filed written statement contending, that he is the son of the first Plaintiff. Besides him, he has a sister by name Shatabdi, who is the daughter of the first Plaintiff, claims that after the demise of the first Plaintiff as legal-heir of first Plaintiff is in occupation of the premises in his own right. Further set up the plea of adverse possession. Besides him, he has a sister by name Shatabdi, who is the daughter of the first Plaintiff, claims that after the demise of the first Plaintiff as legal-heir of first Plaintiff is in occupation of the premises in his own right. Further set up the plea of adverse possession. The issue with regard to adverse possession has been answered in negative against the Defendant. The trial Court held that the Plaintiffs are owners of the properties in view of the compromise of trial in the suit O.S. No. 296 of 1907. The Appellate Court reversed the findings of the trial Court holding that the Defendant has failed to prove that he is the son of the first Plaintiff. The Appellate Court did not notice the fact that there was no issue framed in that behalf. But on the basis of evidence of DW. 1 holds that the Defendant has failed to produce documentary evidence available in that regard to prove the fact that he is the son of the first Plaintiff. In that view comes to the conclusion that the Defendant is not the son of the first Plaintiff. Accordingly allowed the appeal and decreed the suit of the Plaintiffs, granting decree for mandatory injunction for ejecting the Defendant. Aggrieved by the said Judgment, present appeal is filed. 4. The following substantial questions of law are formulated for consideration. 1) Whether the Judgment and decree passed by the appellate Court is vitiated for non-consideration of material evidence on record and also pleadings of the parties? 2) Whether appellate Court is justified in reversing well considered Judgment of the trial Court that the suit is barred by limitation and acquiesence and the issue relating to licence and adverse possession does not survive for consideration? 5. The Courts below have upheld the validity of the terms of compromise in O.S. No. 296 of 1907. Under the terms of compromise, the properties are not open to succession to the heirs obviously, the said terms are contrary to Muslim law, which militate against the rule of succession under shariat. The claim of the Plaintiffs indicates that they have legally succeeded to the estate through their father Plaintiffs are the second-generation heirs of Fakir Babanna Sab. In view of the mutual consent between the parties, the Appellate Court, however comes to the conclusion that the terms will bind the parties. The claim of the Plaintiffs indicates that they have legally succeeded to the estate through their father Plaintiffs are the second-generation heirs of Fakir Babanna Sab. In view of the mutual consent between the parties, the Appellate Court, however comes to the conclusion that the terms will bind the parties. l find the said view is untenable. Under Muslim personal law, Upon the death of a person, the sharers and residuaries will succeed to the estate as per the dictates of Sheriat any cloy to prevent succession is totally illegal. Therefore, the Plaintiffs 1 and 2 will become absolute owners of the properties to the extent they succeed to their shares along with other heirs if any. 6. After the demise of first Plaintiff, it appears that a false representation is made to the Court that there are no legal- heirs of first Plaintiff and that the second Plaintiff is the sole legal-heir. This fact is evident from the admission of PW-1, in the cross examination that one Shatabdi is the daughter of the first Plaintiff. It is the case of the Defendants that Shatabdi and the Defendant are the daughter and son of the first Plaintiff PW-1 clearly admits the case of the Defendant to the extent that Shatabdi is daughter, however disputes the relationship of Defendant with the first Plaintiff. PW-1 has given oral evidence denying the relationship. 7. The Defendant is examined himself as DW-1 and one witness as DW-2 who is the cousin of the Defendant DW-2 is mutually related to DW-1 and PW-1. DW-2 supports the case of DW-1. In his evidence he states that Shatabdi and the Defendant are the children of the first Plaintiff. It is suggested to DW-2 in the cross-examination that a criminal case is filed against him by Plaintiff No. 2 Therefore bearing grouse, he is deposing falsely. May be that criminal case might have been filed. There may be differences between second Plaintiff and DW-2. Nonetheless the version of DW-1 that Shatabdi is the daughter of the first Plaintiff is admitted by PW-1 but denies the relationship of the Defendant with the first Plaintiff as her son. Merely because the relationship is strained the evidence of DW-2 cannot be rejected as false. 8. There may be differences between second Plaintiff and DW-2. Nonetheless the version of DW-1 that Shatabdi is the daughter of the first Plaintiff is admitted by PW-1 but denies the relationship of the Defendant with the first Plaintiff as her son. Merely because the relationship is strained the evidence of DW-2 cannot be rejected as false. 8. The Counsel for the Respondent submits that DW-1 in his evidence admits that there are school records to prove that he is son of the first Plaintiff but has failed to produce documentary evidence to substantiate his contention. Therefore contends that the Defendant has failed to establish that he is son of first Plaintiff and that he become co-owner of the property after the demise. This contention is accepted by the Appellate Court. 9. Even in the absence of a necessary issue regarding relationship, the parties to the case have clearly understood their pleadings and let in evidence completely on the disputed contentions including the question of relationship to the extent possible on their part. On behalf of Plaintiff DW-1 partially admits the contention of the Defendant that Shatabdi is the daughter of the first Plaintiff. However denies the relationship of Defendant with the first Plaintiff as her son. The Plaintiffs have controverted the contention of the Defendant only by oral evidence through PW-1 and there is no corroboration by any other independent oral evidence. On the other hand, the Defendant has examined himself and one witness as DW-2 who is a close relative to both the families. The fact that a criminal case is filed by the Plaintiff is not a ground to discard his veracity and to assume that he is deposing falsely on account of ill-will and spite. Non-production of the documentary evidence by DW-1 cannot be a ground to discard or impeach the veracity of the evidence of DW-1 and DW-2. 10. The second Plaintiff died during the pendency of the appeal. The power of attorney is none other than the son of the second Plaintiff has come on record as legal representative along with other brothers and sisters. 10. The second Plaintiff died during the pendency of the appeal. The power of attorney is none other than the son of the second Plaintiff has come on record as legal representative along with other brothers and sisters. As noticed above, the power of attorney, who is prosecuting the case on behalf of the Plaintiffs has obviously made a false representation to the Court after the death of the first Plaintiff that there are no other legal representatives of the first Plaintiff and that 2nd Plaintiff is a sole legal-heir. The said conduct exposes the veracity of evidence of PW-1 to a serious doubt. 11. As against such doubtful evidence of PW-1, the Defendant has placed a convincing evidence to establish his relation as the son of the first Plaintiff. Non-formulation of an issue by the trial Court has not resulted in any miscarriage of justice nor misdirected the parties. The parties have fully understood the disputed facts and let in evidence. Therefore at this stage the absence of specific issue in this regard need not be viewed too seriously to allow unnecessary second round of litigation. On the basis of evidence adduced, it is clearly established by the Defendant that he is the son of the first Plaintiff as such he becomes co-owner. Therefore, The appellate Court has committed grave error in setting aside the Judgment and decree of the trial Court ignoring the oral evidence tendered by the parties. Accordingly point No. 1 is answered in affirmative. Point No. 2 does not arise for consideration. Accordingly, the Judgment and decree of the appellate Court is set aside and the Judgment and decree of the trial Court is confirmed. 12. Accordingly, the appeal is allowed with costs.