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2018 DIGILAW 35 (KAR)

Kumari Sahirabanu, D/o Mahabubsab Toragal @ Malladad v. Kashimabi W/O Rajesab Sunkad

2018-01-04

JOHN MICHAEL CUNHA

body2018
JUDGMENT : This appeal is filed questioning the correctness and legality of the decree passed by the Court below directing partition of the suit schedule properties and declaring 1/3rd share therein to the plaintiff. 2. The sole contention urged by the appellant is that, adequate opportunity was not given to the appellant’s father to cross-examine the plaintiff (PW.1) and to adduce his evidence. Further, it is contended that the appellant had taken up a specific plea of prior partition before the trial Court. Since the father of the appellant was not granted adequate opportunity to adduce evidence, he was unable to substantiate the said plea. On these grounds, the appellant has sought for reversal of the impugned judgments. 3. I have heard the learned counsel appearing for the parties and have perused the records. 4. The suit was filed seeking partition of the schedule mentioned properties on the ground that the suit schedule properties originally belonged to Fakrusab-the father of the original plaintiff and defendants No.1 and 2. Defendant No.3 is the son of defendant No.2. On service of notice, defendants No.1 and 2 admitted the suit claim, whereas defendant No.3, namely, appellant’s father opposed the suit contending that during the year 1984 there was an “Apasat Watni” between the legal heirs of late Fakrusab, wherein, 3 acres of land in ‘A’ schedule property and remaining 3 acres of land was given to the share of defendant No.3. Accordingly their names were mutated in the revenue records. The deceased, namely, Biyama, the mother of the plaintiff and defendants No.1 and 2 had also given Wardi on the basis of the earlier partition and based on the said Apasat Watni, mutation was effected. 5. During the trial, even though sufficient opportunity was granted to the contesting defendant No.3, he did not challenge the oral and documentary evidence produced by the plaintiff. As a result, the evidence of the plaintiff has gone un-controverted. The contesting defendant No.3 also did not produce any material to substantiate his claim of prior partition nor did he let in any oral evidence. Even the plea set up by defendant No.3 is seen to be vague. Except stating that in the year 1984 there was a mutual partition between the plaintiff and defendants, no other details or particulars of the said partition were pleaded in the written statement. Even the plea set up by defendant No.3 is seen to be vague. Except stating that in the year 1984 there was a mutual partition between the plaintiff and defendants, no other details or particulars of the said partition were pleaded in the written statement. Under the said circumstance, both the Courts below have recorded a finding of fact holding that the properties in question were in the joint possession of the plaintiff and defendant Nos.1 and 2 and they were partible as on the date of the institution of the suit only between plaintiff and defendants No.1 and 2. Further it is rightly held that defendant No.3 namely the appellant being the grandson of the propositus is not entitled for any share during the life time of defendant No.2. The appellant has not made out any justifiable ground to interfere with the concurrent findings recorded by the Courts below in this regard. The appellant has also not stated any substantial question of law for determination of this Court. 6. Hence, on considering the findings recorded by the Courts below in the light of the evidence on record and the contentions urged in the appeal, I am of the view that no substantial question of law arises for consideration in this appeal. Consequently, the appeal is liable to be rejected. Accordingly, the appeal is dismissed at the admission stage. In view of disposal of the main appeal, I.A.No.2/2015 is consigned to file.