Bombay High Court
Salamtullah Farjad Ali Deceased ... vs Sultana Farjad Ali And Ors on 11 January, 2022
Bench: Mangesh S. Patil
1 SA / 619 / 2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
915 SECOND APPEAL NO.619 OF 2021
WITH CA/13774/2021 IN SA/619/2021
SALAMTULLAH FARJAD ALI DECEASED THROUGH LRS.
AKHTARUNISA SALAMTULLA KIDWAI AND ORS.
VERSUS
SULTANA FARJAD ALI AND OTHERS
...
Advocate for Appellants : Mr. N.K. Kakade h/f. Mr. A.N. Kakade
AGP for Respondents : Mr. B.V. Virdhe
...
CORAM : MANGESH S. PATIL, J.
DATE : 11 JANUARY 2022
ORAL ORDER :
This is a second appeal filed by the legal representatives of
original defendant no. 3 against the concurrent findings of the two courts
below holding that the suit property was given by a common ancestor
Farjad Ali to the mother of the respondents/plaintiffs as a Mehr and the
original defendant no. 3 being her step son was not entitled to lay any
claim to the property.
2. The learned Advocate Mr. Kakade would submit that both
the courts below have not considered the fact that an opportunity of
leading evidence ought to have been extended to the appellants. Only
a certified copy of deposition of original defendant no. 3 - Salamtullah
was allowed to be admitted and it was read in evidence. It would have
been appropriate for the appellate court to have considered this aspect
and should have remanded the matter, giving an opportunity to the
appellants to lead the evidence. He submits that it has resulted in
2 SA / 619 / 2021
failure of justice. A substantial question of law commensurate with the
stand of the appellants regarding there being oral partition was not
considered and allowed to be established.
3. I have carefully considered the judgments of both the
courts.
4. As is mentioned earlier cursorily, the contesting
respondents filed a suit with a specific stand that the suit property was
owned by their father - Farjad Ali. It was given by him to their mother
as a Mehr. There is no dispute, rather the facts stand admitted that the
predecessor of the appellants - the original defendant no. 3 was the step
son of the mother of the original plaintiffs - respondents. In the process,
the trial court as also the first appellate court have considered the
survey record of the year 1957, wherein, a statement of the original
owner as also the mother of the respondents - plaintiffs was recorded
before recording her name to the suit property evidencing such fact of
the property having been given as a Mehr. Such long standing record
certainly carries a heavy evidentiary value and has been rightly referred
to and relied upon by both the courts below while concluding the source
of the title of respondents - plaintiffs' mother to the suit property.
5. Bearing in mind the fact that the parties are Mohammedan,
governed by Hanafi law, it would be a separate property of the mother of
the respondents - plaintiffs and the original defendant no.3 i.e. the
predecessor of the appellants being her step son, could not have laid
3 SA / 619 / 2021
any claim. All these facts, circumstances and evidence has been rightly
appreciated by the two courts below while drawing a plausible
conclusion on facts.
6. This being an appeal under section 100 of the Code of Civil
Procedure, there is very little room to cause any interference when such
findings are clearly based on the available evidence.
7. Apart from the above state-of-affairs, though the two courts
below have permitted the original defendant no. 3 to produce a certified
copy of his testimony recorded in some other proceeding and has read it
in evidence, without there being any opportunity to the respondent -
plaintiff to cross-examine him, still, in the net result, that error though
substantial, would not enure to the benefit of the appellants.
8. No substantial question of law arises in this second appeal.
It is dismissed in limine.
9. Civil Application no. 13774 of 2021 is disposed of.
[ MANGESH S. PATIL ]
JUDGE
arp/
