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2023 DIGILAW 156 (KAR)

Shamshuddin v. Syed Akthar

2023-01-30

H.P.SANDESH

body2023
JUDGMENT 1. This matter is listed for admission today. Heard the learned counsel for the appellant. 2. This appeal is filed challenging the judgment and decree dtd. 8/8/2019, passed in R.A.No.165/2011, on the file of the Principal District Judge, Shivamogga. 3. The factual matrix of the case of the plaintiff before the Trial Court in O.S.No.139/2007 (Old No.101/2004) is that one K. Shamshuddin was the grandfather of the plaintiff and the defendants. He had three sons and four daughters. The plaintiff has got one sister by name Toha Begum and she has taken her share and hence she is not made as party to the proceedings. The suit schedule property belongs to K. Shamshuddin i.e., grandfather of the plaintiff and defendant Nos.1 to 5. After his death, his sons and daughters have succeeded to the properties. After the death of three sons and four daughters of Shamshuddin, the plaintiff and defendant Nos.1 to 5 succeeded the suit properties as they are the only legal heirs to the properties left behind by Shamshuddin. The plaintiff and defendant Nos.1 to 5 are the joint owners in possession of the suit schedule property and the plaintiff has got half share. 4. It is the case of the plaintiff that in the year 1980, temporary arrangement was made with reference to item No.1 of the suit schedule property. As per the said arrangement, the plaintiff had been in use and occupation of the western portion of the house. The defendants have been in use and occupation of eastern portion of the house. In the year 1984, the plaintiff shifted his residence to Shivamogga and entered into an agreement with reference to western portion with defendant No.6. As per the oral agreement to sell the said portion of the house for Rs.25, 000.00, he has delivered his possession of the western portion to defendant No.6 and he received Rs.10, 000.00 as advance and thereafter Rs.9, 000.00 from defendant No.6. It is also his case that in the Town Municipal Council, Shikaripura, house property was standing in the name of the grandfather Shamshuddin. By taking advantage of name of defendant No.1 as Shamshuddin, he has added his father's name by giving application. Defendant Nos.7 to 9 are the grand children of Gori Bi and defendant Nos.10 to 15 are issues of Kabura Bi. Defendant Nos.7 to 15 are included as LRs of late Shamshuddin. By taking advantage of name of defendant No.1 as Shamshuddin, he has added his father's name by giving application. Defendant Nos.7 to 9 are the grand children of Gori Bi and defendant Nos.10 to 15 are issues of Kabura Bi. Defendant Nos.7 to 15 are included as LRs of late Shamshuddin. Even though, the plaintiff and the defendants have been in joint possession of the suit lands, defendant Nos.1 and 2 alone have been taking the profits from the landed property. In the month of June 2004, the plaintiff demanded for partition and separate possession, but defendant Nos.1 and 2 have failed to divide the property and denied the partition and separate possession and hence without any alternative, filed the suit. 5. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement and defendant Nos.2 to 5 adopted the statement of defendant No.1. It is admitted that the suit schedule property belongs to Shamshuddin and other averments in the plaint are denied. Defendant Nos.1 to 5 have taken the specific contention that in between defendant Nos.1 to 5's father and Abdul Ravoof has divided from the family about 50-55 years back and since then he had been residing separately. There was an oral partition in between plaintiff's father Abdul Majeed and defendant Nos.1 to 5's father Abdul Ravoof. In terms of the oral partition, two brothers have been in possession and enjoyment of the respective properties allotted to them. Item Nos.1 and 2 properties were allotted to the defendants' father. The plaintiff or his father never in joint possession and enjoyment of the suit schedule property. As per the oral partition, 2 acres 18 1/2 guntas of western portion in 4 acres 37 guntas of land was allotted to the share of plaintiff's father. As plaintiff's father wanted to sell the said property, the partition deed was effected with reference to Sy.No.20/1 as prior to that, there was an oral partition in respect of other joint family properties and there is a recital in the registered partition deed that all the properties are denied. 6. It is contended that suit item No.1 house property, after the death of defendants' father, defendant Nos.1 and 2 have become joint owners of the same. About 18-20 years back, portion of the property was leased out to defendant No.6. After lease period, he continued in possession of the property. 6. It is contended that suit item No.1 house property, after the death of defendants' father, defendant Nos.1 and 2 have become joint owners of the same. About 18-20 years back, portion of the property was leased out to defendant No.6. After lease period, he continued in possession of the property. Therefore, defendant No.1 has filed a rent petition for eviction of defendant No.6 from the portion of item No.1 property. Item No.3 of the suit schedule property is the self-acquired property of the defendant's father as in the year 1937, it was transferred to the defendants' father by grandfather of the defendants under 'Raaji Kabooli'. The plaintiff has no right, title over the same. Suit schedule item No.2 property was purchased by Abdul Ravoof, father of defendants in the year 1939 and it was standing in the name of defendant No.1 and he is in possession of the same. The suit is barred by limitation. The Trial Court after considering plaint averments and also the defence taken in the written statement, framed the issues and additional issues. The plaintiff in order to prove his case examined himself as P.W.1 and examined P.W.2 and got marked the documents at Exs.P.1 to 10. On the contrary, defendant No.1 is examined as D.W.1 and one witness is examined as D.W.2 and got marked the documents at Exs.D.1 to 105. The Trial Court after considering both oral and documentary evidence placed on record and also considering the pleadings and the admission made in the written statement and taking note of the admission given by D.W.1 in the cross-examination and considering the document of Exs.P.8 and 9 and documents of recital in Ex.D.105, comes to the conclusion that the property belongs to Shamshuddin and the plaintiff is the legal heir of one of the son of Shamshuddin and other defendants are the legal heirs of son of Shamshuddin and hence they are entitled for share in the property and decreed the suit. 7. 7. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.165/2011, wherein it is specifically contended that the Trial Court committed an error in decreeing the suit and not applied judicious mind and having considered the grounds urged in the appeal, the First Appellate Court also formulated the point whether the Trial Court has committed an error of law or facts and whether it requires interference of the Court. On re-appreciation of both oral and documentary evidence placed on record, the First Appellate Court dismissed the appeal and hence the present appeal is filed by defendant No.1. 8. The main contention of the learned counsel for the appellant is that no document is placed before the Court that the property was standing in the name of Shamshuddin. There is no dispute with regard to the fact that Shamshuddin was the grandfather of the plaintiff and defendant Nos.1 to 5. But in the absence of documentary proof, the Trial Court and the First Appellate Court committed an error in granting the share. The document Ex.D.5 registered sale deed, is clear that item No.2 was purchased by the father of defendant No.1, but the Trial Court and the First Appellate Court, on the basis of stray admission in the written statement, granted the judgment and decree in favour of the plaintiff and hence committed an error. The learned counsel would contend that both the Courts committed an error in granting decree in favour of the plaintiff even though the plaintiff failed to establish that the suit schedule property belongs to his grandfather and failed to take note of Ex.D.105 and in terms of Ex.D.5, it is clear that item No.2 is purchased by the father of defendant Nos.1 to 5. Inspite of it, the Trial Court comes to the conclusion that the property belongs to the joint family. The learned counsel would contend that under the Muslim law, there is no any concept of joint family and hence the Trial Court erroneous proceeded to pass order in granting share in respect of suit schedule property. 9. Having heard the learned counsel for the appellant and the grounds urged in the appeal and also considering the factual aspect of claim of the plaintiff, it is clear that the suit property belongs to the grandfather Shamshuddin. 9. Having heard the learned counsel for the appellant and the grounds urged in the appeal and also considering the factual aspect of claim of the plaintiff, it is clear that the suit property belongs to the grandfather Shamshuddin. There was a family arrangement between the brothers of the plaintiff's father and defendant's father and there was no any partition. The eastern portion and western portion was occupied by the legal heirs of the father of the plaintiff and defendants' father. Having perused the material available on record, particularly the admission in the written statement filed by defendant No.1 and defendant Nos.2 to 5 who adopted the written statement filed by defendant No.1, they have categorically admitted that the property belongs to the grandfather Shamshuddin and Shamshuddin was having other sons and daughters and they are no more and after the death of other legal heirs of Shamshuddin, the plaintiff's father and the defendants' father have continued enjoyment of the suit schedule property and there is no dispute to that effect also. However, they contend that already there was a partition and also non-joinder of necessary parties. With regard to nonjoinder of necessary parties is concerned, when the sister of the plaintiff was not arraigned as party, it is the case of the plaintiff that the sister had already taken the share and also affidavit is filed to that effect and the Trial Court taken note of the said fact and comes to the conclusion that the suit is not bad for non-joinder of necessary party. 10. Having considered the material available on record, the Trial Court particularly considering the admission while answering issue Nos.1 and 2 in paragraph No.22 discussed regarding nature of the property, which have been claimed and in paragraph No.23 taken note of the entitlement of the share by the plaintiff and granted decree. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, particularly in paragraph No.20 considering the grounds urged in the appeal while answering point No.1, which is formulated, taken note of the recitals of document Ex.D.105 and Exs.P.8 and 9, which have been relied upon by the plaintiff, wherein recital is clear that all of them joined together in executing the document of sale deed in terms of Exs.P.8 and 9 and also document of Ex.D.105 dtd. 1/2/1971 and the recitals of those documents are also taken note that the plaintiff's father and the defendants' father succeeded to the estate of Shamshuddin. The First Appellate Court also taken note of the answers elicited from the mouth of D.W.1, who has clearly admitted that at the time of alleged oral partition, he was not born and he has no documentary evidence to substantiate the claim of partition what he has claimed. In paragraph Nos.22, 23 and 29 taking note of the property belongs to Shamshuddin, grandfather of the parties, and also considering the recitals in Exs.P8 and 9, wherein they have stated that they represent the interest of father of the plaintiff and the defendants, dismissed the appeal. 11. Having considered the grounds urged in the appeal memo, the main contention is that the substantial question of law is that no property is standing in the name of Shamshuddin and the said contention cannot be accepted when there is an admission on the part of the defendants in the written statement itself and admitted fact need not be proved under Sec. 58 of the Evidence Act and no need to consider the issue with regard to existence of the property in the name of Shamshuddin. There is no dispute with regard to the relationship between the parties and also no dispute with regard to the fact that some of the children of Shamshuddin are no more. Having considered the material available on record, the very contention that the Trial Court has not considered Ex.D.5 in respect of item No.2 of the schedule property cannot be accepted when the grandfather left the property without executing any testamentary document in favour of any other children. There is no dispute with regard to the fact that defendant Nos.1 to 5 are the children of Abdul Ravoof and the plaintiff is the son of Abdul Majeed and these aspects are taken note by the Trial Court and the First Appellate Court and there is no any perversity in coming to such a conclusion that the plaintiff is entitled for share in the property left by Shamshuddin through his father. Hence, there is no merit in the appeal to admit and frame substantial question of law to decide the issue between the parties. 12. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. Hence, there is no merit in the appeal to admit and frame substantial question of law to decide the issue between the parties. 12. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. Consequently, the pending I.A.s are also dismissed.