Nazeersab Maktumsab Azmatkhan vs Babajan Maktumsab Azmathkhan
2022 Latest Caselaw 1936 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 08TH DAY OF FEBRUARY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.5055/2013 (INJ)

BETWEEN

SHRI NAZEERSAB
MAKTUMSAB AZMATKHAN,
AGE: 61 YEARS, OCC: BUSINESS,
R/O HOSATEGUR,
DHARWAD-581001.
                                          ... APPELLANT
(BY SRI S.G.KADADAKATTI, ADV.)

AND

1.    BABAJAN
      MAKTUMSAB AZMATHKHAN
      AGE: 61 YEARS, OCC: BUSINESS,
      R/O. HOSATEGUR,
      DHARWAD TQ. & DIST.581001.

2.    SMT.JULEKHABI
      W/O. GOUSEMODDIN AZAMATHKHAN
      AGE: MAJOR, OCC: COOLIE,
      R/O. HOSATEGUR,
      DHARWAD TQ. & DIST.581001.

3.    SHRI BABUSAB
      GOUSEMODDIN AZAMATHKHAN
      AGE: MAJOR, OCC: COOLIE,
      R/O. HOSATEGUR,
      DHARWAD TQ. & DIST.581001.

4.    MAHAMMODRAFIQ
      GOUSEMODDIN AZAMATKHAN
      AGE: MAJOR, OCC: COOLIE,
      R/O. HOSATEGUR,
                            2




     DHARWAD TQ. & DIST.-581001.

5.   HAJARATHAJI
     GOUSEMODDIN AZAMATHKHAN
     AGE: MAJOR, OCC: COOLIE
     R/O. HOSATEGUR,
     DHARWAD TQ. & DIST.581001.

6.   HABIBSAB
     GOUSEMODDIN AZAMATHKHAN
     AGE: MAJOR, OCC: COOLIE,
     R/O. HOSATEGUR,
     DHARWAD TQ. & DIST.-581001.

7.   SMT.AMINA
     W/O. NANNESAB DAVALANAVAR
     AGE: MAJOR, OCC: COOLIE,
     R/O. HOSATEGUR,
     DHARWAD TQ. & DIST.-581001.

8.   SMT.MAHABOOBI
     W/O. MAKTUMSAB DALENNAVAR
     AGE: MAJOR, OCC: COOLIE,
     R/O GULEDKOPPA,
     DHARWAD TQ. & DIST.581001.
                                         ...RESPONDENTS

(BY SRI V.N.BHANDIWAD, ADV. FOR R.2, R3, R5, & R6.)
(NOTICE TO RESPONDENT NOS.1 & 4 : HELD SUFFICIENT.)

     THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 20.04.2012 PASSED
IN R.A.NO.157/2006 BY LEARNED III ADDL. SR.CIVIL JUDGE,
DHARWAD BY CONFIRMING THE JUDGMENT AND DECREE
DATED   11.10.2006   PASSED IN   O.S.NO.267/2004 BY   THE
LEARNED II ADDL. CIVIL JUDGE (JR.DN.) & JMFC AND DECREE
THE SUIT OF APPELLANT/PLAINTIFF AS PRAYED FOR BY
ALLOWING HE APPEAL IN THE ENDS OF JUSTICE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                  3




                         : JUDGMENT :

The captioned regular second appeal is filed by

unsuccessful plaintiff whose suit for partition and

permanent injunction claiming sharwe in the property

bearing VPC.No.408 was dismissed and confirmed by

the First Appellate Court.

2. Present appellant-plaintiff filed a suit for

partition and permanent injunction by specifically

contending that the suit schedule property was jointly

purchased by appellant-plaintiff and his brother

Gousemoddin and therefore he claims that he is

entitled for share in the suit property bearing

VPC.No.408.

3. On contest, the widow of Gousemoddin who

was arrayed as the 2nd defendant has filed written

statement and stoutly denied the entire averments

made in the plaint. The 2nd defendant has specifically

contended that the suit schedule property bearing

VPC.No.408 is self acquired property of her deceased

husband Gousemoddin. It was further specifically

denied that the suit schedule property is the joint

family ancestral property. The 2nd defendant

specifically contended that she is in exclusive

possession and enjoyment of the suit schedule

property and that the appellant-plaintiff has no share

in the suit schedule property as it is self acquired

property of her husband.

4. The Trial Court having assessed oral and

documentary evidence has answered issue Nos.1 and

2 in the negative and Issue No.3 in the affirmative.

The Trial Court having meticulously examined the

evidence on record has recorded a categorical finding

that the appellant-plaintiff has failed to prove that the

suit schedule property is the joint family ancestral

property and that the suit property was partitioned in

the family as per Ex.P.1 which is dated 21.04.1976.

The Trial Court having assessed the material on record

has come to the conclusion that the property was

admittedly purchased by husband of the 2nd defendant

way back in the year 1975 and therefore in absence of

clinching evidence indicating that the appellant-

plaintiff had also contributed towards purchase of suit

schedule property, the Trial Court was of the view that

the appellant-plaintiff cannot claim any share in the

suit schedule property.

5. The appellant-plaintiff feeling aggrieved,

preferred regular appeal in R.A.No.157/2006. The First

Appellate Court having appreciated the oral and

documentary evidence independently, has concurred

with the judgment and decree of the Trial Court and

has proceeded to dismiss the appeal.

6. Heard learned counsel appearing for the

appellant. Perused the judgment under challenge.

7. The appellant-plaintiff's specific case is that

the suit schedule property bearing VPC.No.408 along

with property bearing VPC.No.422 are the joint family

ancestral properties of appellant-plaintiff and

defendants. Further contention was taken by the

appellant-plaintiff that there was a partition in the

year 1976 and the present suit schedule property was

jointly allotted to the appellant-plaintiff and husband

of defendant No.2 as well as his mother. The

appellant-plaintiff has also contended that at the time

of purchase of VPC No.408, the present appellant-

plaintiff has also contributed. Therefore, it was

contended that he is entitled for share in VPC.Noo.408

also and it is not the self acquired property of husband

of the 2nd defendant. If the partition deed dated

21.04.1976 is examined, this Court would find that

there are lot of ambiguities as the details of properties

are not at all furnished. The said document is

unregistered document. Though a feeble attempt is

made by the learned counsel appearing for appellant-

plaintiff, that that it is a memorandum of partition,

however, on reading the document, this Court would

find that under the said document, the parties have

resolved to effect partition. Therefore for want of

registration, the document produced at Ex.P.1 is not

at all admissible in evidence. Even otherwise, the

contents of Ex.P.1 does not establish that the present

suit schedule property bearing VPC No.408 is also joint

family ancestral property.

8. Admittedly the parties are governed under

Mohammedan Law and the concept of joint family

among Mohammedan is alien, unless parties plead

that there is a custom to that effect.

9. The claim of appellant-plaintiff that he has

contributed towards sale consideration to purchase

suit schedule property VPC.No.408 is not corroborated

and substantiated by producing clinching evidence on

record. Though the present suit was filed seeking

partition in VPC.Nos.408 and 422, however during trial

the appellant-plaintiff has given up his claim insofar as

property bearing VPC.No.422 is concerned. All the

significant details are taken into consideration by both

the Courts below. Both the Courts below have

concurrently held that the present suit schedule

property is not joint family property of appellant-

plaintiff and defendants. The contention of appellant-

plaintiff is that, the suit property was subject matter of

partition in the year 1976 and the same was jointly

allotted to the present appellant-plaintiff and husband

of the 2nd defendant and his mother is also negatived

by both the Courts below. The concurrent findings

recorded by both the Courts below cannot be

interfered with under Section 100 of CPC. No

substantial question of law arises. The appeal is devoid

of merits and accordingly the same stands dismissed.

SD/-

JUDGE EM