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2024 DIGILAW 109 (KAR)

Mohd. Mustafa v. Abdul Samad

2024-02-05

E.S.INDIRESH

body2024
JUDGMENT 1. This appeal is filed by the plaintiff/appellant challenging the judgment and decree dated 21.09.2019 passed in RA.No.29 of 2017 on the file of the II Additional District and Sessions, Judge, Bidar, Sitting at Humnabad, dismissing the appeal and confirming the judgment and decree dated 31.01.2017 passed in OS.No.17 of 2011 on the Court of Senior Civil Judge and JMFC, Humnabad, dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that, the plaintiff and defendant No.1 are brothers and children of one Mohammed Khasim and defendant No.2 is their real sister. The suit schedule property was originally belonged to mother of the plaintiff, defendant Nos. 1 and 3, namely, Mahaboobee, wife of Mohammed Kasim Sab, who had given oral gift to the extent of 01 acre, 29 guntas in Sy.No.207/3B, of Chimanchod village Chincholi Taluk. It is the case of the plaintiff that, the plaintiff is the absolute owner in possession of the land in question and as such, filed OS No.17 of 2011 before the Trial Court seeking, relief of declaration with consequential relief of possession. 4. After service of summons, defendants filed written statement denying the plaint averments. It is the case of the defendant Nos.1 and 2 that, the defendant No.1 is the owner of 5 acres, 11 gutnas out of 8 acres in Sy.No.207/3b, as gifted by his mother-Mahaboobbee, and to an extent of 3 acres, 15 guntas, in favour of defendant Nos.2 by way of Mehar and accordingly, sought for dismissal of the suit. 5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In order to establish their case, plaintiff examined four witnesses as PW1 and PW4 and got marked 23 documents as Exs.P1 to P23. On the other hand, defendant examined four witnesses as DW1 to DW4 and produced 20 documents as Exs.D1 to D20. 7. The trial Court, after considering the material on record, by its judgment and decree dated 31.01.2017 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA.No.29 of 2017 on the file of First Appellate Court and the said appeal was resisted by the defendants. 7. The trial Court, after considering the material on record, by its judgment and decree dated 31.01.2017 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA.No.29 of 2017 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 21.09.2019 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.17 of 2011. Being aggrieved same, the appellant/plaintiff has preferred this Regular Second Appeal under Section 100 of CPC. 8. Heard the Sri Nitesh Padiyal, learned counsel appearing for the appellant and perused the material on record. 9. Sri Nitesh Padiyal, learned counsel for the appellant submits that both the Courts below have not properly appreciated the material on record and the he further submitted that, the both the Courts below have not properly appreciated the endorsement issued by the Taluk Surveyor, Chincholi, and there is no phodi in respect of the land in question and accordingly, he sought for interference of this court. 10. Having heard the learned counsel appearing for the appellant, the core question to be answered in this appeal is with regard to claim made by the plaintiff insofar as declaratory relief is concerned. It is the case of the plaintiff that, the plaintiff is the owner of the land bearing Sy.No. 207/3b measuring to an extent of 01 acre, 25 gutnas of Chimanchod village, Chincholi Taluk. On careful examination of the material on record would indicate that, the total extent of the land bearing Sy.No.207 is to an extent of 8 acres, in which, the mother of the plaintiff and defendant Nos.1 and 2 has made oral gift in favour of the defendant. Nos. 1 and 2. On careful examination of the material on record would indicate that, the total extent of the land bearing Sy.No.207 is to an extent of 8 acres, in which, the mother of the plaintiff and defendant Nos.1 and 2 has made oral gift in favour of the defendant. Nos. 1 and 2. Taking into consideration the fact that, the plaintiff has already filed suit in OS No.86 of 2004, in respect of the subject land which came to be dismissed and thereafter, the plaintiff has preferred RA No.5 of 2007 which also came to be dismissed, however, the matter was remanded to the Trial Court for considering the oral gift made in favour of the defendant No.2, and further, taking into consideration the finding recorded by the Trial Court at paragraph No.22 of the judgment and decree would makes it clear that, the plaintiff has failed to produce the documents to establish the fact that, the oral gift made by his mother in favour of the defendant No.2 is contrary to the succession rule provided under Mohammedan law. In that view of the matter, the Trial Court was justified in dismissing the suit and same was confirmed by the First Appellate Court after reappreciating the material on record as per Order XLI Rule 31 of CPC. It is also to be noted that, the plaintiff places his right over the suit schedule property on the revenue document and same cannot confer any title to the property in question. In that view of the matter, finding recorded by the First Appellate Court at paragraph No.18 is just and proper and therefore, I do not find material irregularity or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed. Since, the plaintiff/appellant has not made out ground for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, the Regular Second Appeal is dismissed at the Admission stage itself.