Bombay High Court
Rasool Saheb Hussainasaheb ... vs Osmansaheb Hussainsaheb Inamdar ... on 3 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
939 SECOND APPEAL NO.747 OF 2012
WITH
CIVIL APPLICATION NO.12903 OF 2012
in SA/747/2012
RASOOL SAHEB S/O HUSSAINSAHEB INAMDAR
VERSUS
OSMANSAHEB S/O HUSSAINSAHEB INAMDAR DIED THR LRS AND
OTHERS
...
Mrs. A.N. Ansari, Advocate for the appellant
Mr. H.T. Gaikwad, Advocate for the respondent No.1 - absent
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 03rd AUGUST, 2021
ORDER :
1 Present appeal has been filed by the original plaintiff challenging
the concurrent part of the Judgment and Decree, which has gone against
him. He had filed Regular Civil Suit No.50/2005 (old No.293/1997) for
partition and separate possession as well as mesne profit, in respect of
agricultural land and house property before Civil Judge Senior Division,
Omerga, Dist. Osmanabad. The suit was partly decreed on 02.12.2006. It
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was held that the plaintiff is having 2/9 th share in agricultural lands bearing
Sy.No.202/3, 202/1 and 202/6 as well as Grampanchayat House No.150
situated at village Tugaon, Tq. Omerga, Dist. Osmanabad. The claim of the
plaintiff in respect of other properties was rejected. The said suit was
challenged by the plaintiff in Regular Civil Suit No.5/2007 before Additional
District Court, Omerga, in which the respondent No.1 therein had also filed
cross objection. Learned District Judge-1, Omerga partly allowed the appeal
and modified the share. It was held that plaintiff, defendant Nos.1 and 2 are
having 1/4th share each and defendant Nos.3 and 4 have 1/8 th share each in
suit lands bearing Sy.No.202/1, 202/3, 202/6 and Grampanchayat House
No.150 of village Tugaon, Tq. Omerga, Dist. Osmanabad. The claim of the
plaintiff in respect of other properties was rejected. The cross objection filed
by the defendant No.1 was dismissed. Now, the original plaintiff has come in
appeal challenging the part of the decree which has gone against him in
respect of other properties. It is to be noted that the other properties are Gat
No.202/5 admeasuring 00 H 90 R, Gat No.202/7 admeasuring 02 H 05 R,
Gat No.202/4 admeasuring 00 H 91 R, Gat No.199/A admeasuring 01 H 72
R, Gat No.196/1 admeasuring 09 H 29 R and C.T.S. No.886 (old
Grampanchayat No.151) admeasuring 75-02 sq.ft. situated in the same
village and also land bearing Gat No.19/B admeasuring 01 H 61 R situated in
village Tapse Chincholi, Tq. Ausa, Dist. Latur.
3 SA_747_2012
2 Heard learned Advocate Mrs. A.N. Ansari for the appellant.
3 At the outset, in view of the decision in Kirparam (since deceased
through LRs) and others vs. Surender Deo Gaur and others, 2021 (3) Mh.L.J.,
250, unless the appellant herein is able to show that there is substantial
question of law arising for determination as contemplated under Section 100
of the Code of Civil Procedure, 1908, it is not necessary that any question of
law should be framed at the time of dismissal of the appeal. The appeal can
be dismissed if no such substantial question of law is arising.
4 The relationship between the parties is not denied. Plaintiff,
defendant Nos.1 and 2 are the real brothers and defendant Nos.3 and 4 are
their real sisters. They are from Hannafi Mohammedan community. One
Hussainsaheb Bandeali Inamdar was their ancestor father, who died in Police
Action. Their mother Lalbee expired on 24.09.1980. It is also not in dispute
that land Block No.202/3 admeasuring 02 H 35 R was the property of
Hussainsaheb. After death of Hussainsaheb, name of his widow came to be
mutated vide Mutation Entry No.898 dated 05.05.1981 in the name of
defendant No.1. It is also not in dispute that Lalbee purchased land Block
No.202/1 admeasuring 00 H 63 R and Block No.202/6 admeasuring 00 H 40
R. After the death of Lalbee, name of defendant No.1 has been shown vide
Mutation Entry No.898. Important point to be noted is that he has been
4 SA_747_2012
shown as a Karta of the family, however, the position of land is very much
clear that for Mohammedans there is no concept of joint family and their
cannot be a Karta. We may take it as that the elder son. Defendant No.1 was
representing the entire family and they were cultivating the lands. Now, the
plaintiff has come with the case that out of the said family income the other
properties have been purchased, but on facts and assessment of law both the
Courts have come to the conclusion that only land Sy. No.202/1 is the part of
legacy left by deceased Hussainsaheb and the other two properties purchased
by Lalbee. They are Matruka properties. All the defendants can be said to be
the tenants-in-common in respect of those properties including the
Grampanchayat House No.150 situated at village Tugaon. The fact, which
has been brought on record further, reveals that defendant No.1 had
purchased Gat No.202/4 in a Court decree bearing Regular Civil Suit
No.163/1982 dated 17.02.1984. However, defendant No.1 has been held to
have proved that he was possessing the said land since 1974-75 as tenant and
he has paid amount of Rs.12,000/-, that is, consideration amount, which was
from his own income. Thereafter, it also appears that in another suit i.e.
Regular Civil Suit No.369/1986 defendant No.1 arrived at a compromise with
the rival party therein and by virtue of compromise decree he got that land.
Both the said compromise decrees passed in Regular Civil Suit No.163/1982
and Regular Civil Suit No.369/1986 have not been got set aside by the
5 SA_747_2012
plaintiff. Further, it is also required to be noted that during the pendency of
the suit it appears that defendant No.1 had sold land Sy.No.196/1 to
defendant No.5.
5 As per the Mohammedan Law, the partition would open upon
the death of the common ancestor. Here, the exact date of death of
Hussainsaheb appears to have not come on record. Even Lalbee expired on
24.09.1980. The right arose for the plaintiff to get his share separated after
death of Lalbee also. But it appears that no such suit was filed prior to 1997.
Plaintiff joined the service in 1970. That means, he could have started
earning only after joining the service. Prior to that even if he would have
cultivated the properties left by the parents; yet, there is no concept of
putting that amount or income in the hotch pot. The learned Trial Judge has
definitely considered all the aspects relating to the inheritance under
Mohammedan Law, and in fact, even the tenants-in-common or co-tenants
cannot be said to be trustees of the co-tenant. Under such circumstance,
except the three agricultural lands and one house property, plaintiff cannot
get any share in other property, as he has failed to prove that it is acquired
from the so called joint family of himself and his brothers.
6 Both the Courts below have considered the oral as well as
documentary evidence properly together with the law point involved. No
6 SA_747_2012
substantial question of law, as contemplated under Section 100 of the Code
of Civil Procedure, 1908, is arising in this case requiring admission. Hence,
the Second Appeal together with Civil Application stands dismissed.
( Smt. Vibha Kankanwadi, J. )
agd
