Mujahidmiya @ Mansabmiya ... vs Yakubmiya @ Nizammiya Jahedmiya ...
2017 Latest Caselaw 1266 Bom

                                    1                     SA - 651 - 2016


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      SECOND APPEAL NO. 651 OF 2016
                                    AND
                    CIVIL APPLICATION NO. 12103 OF 2015

Mujahidmiya @ Mansabmiya
S/o Yakubmiya Deshmukh,
Age : 75 years, Occu. : Agril.,
R/o. Kingaon, Tq. Ahmedpur,
District : Latur                                     .. Appellant
                                                   (Orig. Defendant)
     VS.

Yakubmiya @ Nizammiya S/o.
Jahedmiya Deshmukh,
Age : 50 years, Occu.: Agril.,
R/o. Kingaon, Tq. Ahmedpur,
District : Latur                                       .. Respondent
                                                        (Orig. Plaintiff)

                                ----
Mr. Balaji S. Shinde, Advocate h/f Mr. S.J. Salgare, Advocate for the
appellant

Mrs. A.N. Ansari, Advocate for the respondent
                                 ----

                                  CORAM : SUNIL P. DESHMUKH, J.

DATE : 29-03-2017

ORAL JUDGMENT :

1. Original defendant in regular civil suit no. 127 of 2009, is

before this court in second appeal, challenging judgment and decree

passed by appellate court dated 11-02-2015 in regular civil appeal

no. 277 of 2011 granting decree of declaration that present

respondent (plaintiff in R.C.S. no. 127 of 2009) is owner and

possessor of 1 Hectare, 14 Are land from survey no. 148(1), situated

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at village Kingaon, Tq. Ahmedpur, Dist. Latur and restraining present

appellant - defendant from obstructing and interfering with plaintiff's

possession over aforesaid property, in the process, reversing and

setting aside dismissal of suit under the judgment and decree of trial

court dated 31-10-2009 in regular civil suit no. 127 of 2009.

2. Primary thrust of submissions on behalf of the appellant

is on that, appellant - defendant had been deprived of opportunity

to appear before the courts hitherto as suit summons had not been

properly served on two occasions. In the first place in the suit, and,

secondly, in the appeal at the plaintiff's instance. As a matter of

fact, during trial, suit summons had not been served and the

signature appearing of him, purportedly showing service on him, is

not his signature. He further submits that even during the appeal,

the defendant - appellant had, in-fact, not been served and only a

spurious report came to be made about him having shown

unwillingness to accept the summons when he was tried to be

served. Plaintiff's regular civil suit no. 127 of 2009 had been

dismissed by trial court. According to learned counsel, the record

depicting service on him is not proper and genuine.

3. Learned counsel for the appellant - defendant submits

that had an opportunity come the way of defendant, he could have

cross-examined the witnesses who have ostensibly proceeded to

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give deposition in favour of the plaintiff, and, that opportunity has

been lost under dubious record of service of summons in the suit on

the defendant. According to learned counsel, opportunity of

appearing in appeal has also been lost due to creation of record

which apparently is not proper and reliable. He submits that in the

wake of aforesaid, it would be expedient that the matter be

remanded for retrial enabling the appellant to appear and defend the

case.

4. Learned counsel for the appellant submits that although

it is the contention of the plaintiff - respondent that 1/3 rd share each

went to brothers of deceased Gulam Maheboob, yet, there is no

evidence on record depicting the same, since despite direction by

the trial court to produce certified copy of the settlement, the

certified copy had not been produced before the trial court and only

a photocopy had been produced which could not be taken into

account as evidence. Trial court, as such, rightly declined to take

the same into account. He further refers to that trial court has

observed in paragraph no.11, that, although the plaint of regular

civil suit no. 75 of 2005 depicts survey no. 148(1) had been orally

partitioned among the brothers, the same is inconsistent with the

evidence given by plaintiff in the present matter. Trial court has

further referred to that land survey no. 252/A : 252/2 had been

contended to have been acquired from the income of other

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properties and had been purchased in the name of Gulam Maheboob

and after his death, it had been given to plaintiff in regular civil suit

no. 374 of 1998 viz. Ezaz Deshmukh and that the contentions in the

suit were not denied by plaintiff in the present matter by written

statement or in any other way. Trial court had further considered

that there is no corroboration to the theory of hiba either by

Mujahidmiya or for that matter by Ikbalmiya and, as such, had

dismissed the suit.

5. Learned counsel submits that the appellate court has

erroneously considered that there is evidence led by plaintiff about

hiba, and, only thing is that, it was not effected in record of right. He

submits that the evidence in respect of hiba had been discussed by

the trial court and trial court had disbelieved the same, however,

such a discussion does not find place in the judgment of the

appellate court, nor does it refer to as to how the same depicts hiba

having been proved. The statement of Khayyum being inconsistent

and incompatible with the pleadings filed by him, could not have

been believed at all. Appellate court has failed to appreciate the

same.

6. Learned counsel submits that it cannot be said that in

absence of appearance on behalf of the defendant that hiba has been

held to be proved, and, further that the plaintiff had failed to

5 SA - 651 - 2016

produce certified copy of the settlement in regular civil suit no. 75 of

2005. As such, no material can be said to be available entitling

plaintiff to the grant of decree nor do the order of appellate court

depicts according to learned counsel, the application of Muslim

personal law. He further refers to that the trial court has found it

difficult to consider that revenue record would depict deceased

Gulam Maheboob to be absolute owner of suit land. All these

material aspects impinging upon, will affect the entitlement claimed

by the respondent - plaintiff.

7. Mrs. Ansari, learned counsel appearing for the

respondent - plaintiff contends that the appellant - defendant had

chosen to abstain from the proceedings in the suit, and, further

during the appeal, and, as such, does not deserve any indulgence

into his request for remanding the matter.

8. Although learned counsel for respondent has opposed

the second appeal, yet, learned counsel for the respondent - plaintiff

is not in a position to dispute veracity of the contention on behalf of

the appellant about there being doubtful service.

9. The question thus emerges;

" Whether the matter deserves to be remanded for retrial, letting opportunity to the defendant, to defend the case ? "

                                         6                    SA - 651 - 2016

10             It appears that it is the case of the plaintiff - respondent

that Gulam Maheboob alias Hannamiya was owner of land admeasuring

3 Hectare, 22 Are of survey no. 148(1) and 3 Hectare, 50 Are of

survey no. 252/A. He had three brothers, namely, Ikbalmiya,

Jahidmiya and Mujahidmiya. He had granted suit property by oral gift

(Hiba) to him, Ikbalmiya and Mujahidmiya in presence of witnesses.

Each of the three brothers of Gulam Maheboob received 1 Hectare, 14

Are land from survey no. 148(1), and, accordingly, the three

brothers were cultivating their shares of the lands. However,

appellant - defendant got entered his name to entire 3 Hectare, 42

Are, with reference to which defendant - appellant is trying to

interfere with and obstruct cultivation of 1/3 rd share of plaintiff from

survey no. 148(1), and, as such, suit had been filed seeking

declaration and injunction.

11. After death of Gulam Maheboob, One Ezazmiya

Deshmukh had instituted regular civil suit no. 374 of 1998 against

Ikbalmiya and others.

12. Son of Ikbalmiya, namely, Khayyum had instituted regular

civil suit no. 75 of 2005 against Mujahidmiya - present appellant and

others in respect of land survey no. 148(1), seeking declaration of

ownership and injunction which culminated into a settlement

accepting 1/3rd share each of brothers of deceased Gulam. Copy had

7 SA - 651 - 2016

been produced thereof albeit certified copy is not produced. With

reference to the same, the trial court had dismissed the suit of the

plaintiff, whereas the appellate court had considered certified copy

may not be necessary.

13. In the present case, it appears that there had been a

direction by trial court for production of certified copy of decision in

Regular Civil Suit No. 75 of 2005, and yet same had not been filed.

While trial court has considered that pleadings of plaintiff, who had

appeared in the present proceedings, is apart from his evidence in

present matter, which aspect appears to have skipped attention of

appellate court. According to appellate court, there has been

evidence with regard to Hiba, however, only for the reason that

there is no corresponding record, evidence in respect of the same

cannot be disbelieved in the absence of challenge to such evidence.

14. Defendant has been consistently claiming that he has not

been properly served on two occasions, in the suit and in the appeal

preferred by the plaintiff from decree of dismissal of suit. According

to him, record maintained in respect of service raises doubts about

service. The report submitted upon service in appeal about him

unwilling is a got up report and ought not to be relied on.

15. In aforesaid scenario, it appears to be expedient, in order to

make available an opportunity to the appellant - defendant, as well

8 SA - 651 - 2016

as to the parties concerned to meet out the case being submitted on

their sides. In the process, it may cause some inconvenience to

respondent - plaintiff, however, that can be mended by awarding

costs. This appears to be expedient in the face of contentions of the

appellants.

16. As such, the question is answered accordingly. The

judgment and decree passed by trial court dated 31-10-2009 in

regular civil suit no.127 of 2009, and, judgment and decree of

appellate court dated 11-02-2015 in regular civil appeal no.277 of

2011, are set aside, and, second appeal is allowed. The matter is

remanded to the trial court from the stage of filing of written

statement, and, the suit is restored, to be proceeded with

accordingly, and, disposed of expeditiously within a period of one

year from today, subject to payment of costs of Rs.15,000/-

(Rs. Fifteen Thousand), to be paid to the respondent - plaintiff.

17. The costs be deposited in the trial court within a period

of twenty (20) weeks from today for onward disbursal to the

respondent - plaintiff.

18. Parties to the suit to appear before the trial court on 17 th

July, 2017 obviating notice after remand to the parties.

19. Second appeal accordingly stands disposed of.

9 SA - 651 - 2016

20. Consequently, civil application no. 12103 of 2015 also

stands disposed of.

[SUNIL P. DESHMUKH] JUDGE

arp/JUD-651-2016