Mehboobbi And Anr vs Ibrahim And Ors
2022 Latest Caselaw 3368 Kant

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          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                          BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


                  RSA No.200354/2019

Between:

1.     Mehboobbi W/o Badasha Mandewali,
       Age: 63 Years, Occ: H.H.Work,

2.     Hussaini @ Hasansa
       S/o Badasha Mandewali,
       Age: 42 Years, Occ: Agriculture,

       Both are R/o Nagavi K.D., Tq. Sindagi,
       Dist. Vijayapur
                                                ... Appellants

(By Sri G.G.Chagashetti &
 Sri I.R.Biradar, Advocates)

And:

1.     Ibrahim S/o Chandsa Mandewali,
       Age: 57 Years, Occ: Coolie,

2.     Kashimsab S/o Chandasab Mandewali,
       Age: 61 Years, Occ: Agriculture,

3.     Mehboobsab S/o Kashimsab Mandewali,
       Age: 32 Years, Occ: Agriculture,
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4      Badasha S/o Kashimsab Mandewali,
       Age: 26 Years, Occ: Agriculture,

5.     Khadir S/o Kashimsab Mandewali,
       Age: 21 Years, Occ: Agriculture,

       All are R/o Nagavi K.D., Tq. Sindagi,
       Dist. Vijayapur.
                                            ... Respondents

       This Regular Second Appeal is filed under Section
100 of CPC, praying to allow this Regular Second Appeal
and    to    set   aside   the   judgment   and   decree   dated
21.08.2019 passed by the learned Additional Senior Civil
Judge and JMFC at Sindagi in R.A.No.16/2012, dismissing
the appeal and confirming the judgment and decree dated
07.02.2012 passed by the learned Civil Judge and JMFC,
Sindagi in O.S.No.52/2010, by dismissing the suit of the
plaintiff.


       This appeal coming on for Admission this day, the
Court delivered the following:-


                           JUDGMENT

This second appeal is filed challenging the

judgment and decree dated 07.02.2012 passed in

O.S.No.52/2010 by the Civil Judge and JMFC, Sindagi,

and also the judgment and decree dated 21.08.2019

passed in R.A.No.16/2012 by the Additional Senior

Civil Judge and JMFC, Sindagi.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

3. Brief facts giving rise to filing of this appeal

are as under:

Plaintiff filed suit for partition and separate

possession in respect of the suit schedule properties.

The suit properties were fallen to the share of

ancestors of Chandasa except the land bearing

R.S.No.33/2B. Said Chandasa had purchased the land

from the income of other suit properties fallen to his

share in the partition. Chandasa died leaving behind

the husband of defendant No.1, defendant No.3 and

plaintiff. Defendant No.2 is the son of Badasha.

Plaintiff gone to Maharashtra about forty years back

for his livelihood at Chipaloon giving all the lands to

his elder brother Badasha. Said Badasha died leaving

behind defendant Nos.1 and 2. Defendant Nos.1 and 2

had no share in the suit properties because plaintiff

and defendant No.3 survived during the lifetime of

Badasha as per Mohammedan Law. Defendant Nos.1

and 2 taking undue advantage of the plaintiff's

absence created documents and got entered their

names stating that partition has been effected in

respect of the suit properties. Said partition is illegal

and not sustainable in the eye of law. Plaintiff

requested defendant Nos.2 and 4 to give his half

share in the suit properties however, they denied it.

Hence, plaintiff filed suit for partition and separate

possession.

3.1 Defendant Nos.1 and 2 filed written

statement denying the averments made in the plaint.

It is contended that defendant Nos.1 and 2 have

admitted genealogy produced along with plaint and

Chandasa died leaving behind his three sons by name

Badasha, Kashimsa and Ibrahimsa. It is contended

that the plaintiff is also residing in Nagavi B.K., village

and all three sons of Chandasa were cultivating the

lands jointly till the death of Badashasab who is the

father of defendant No.2 and husband of defendant

No.1. It is contended that Badashasab S/o Chandasa

died on 12.09.1957. It is also contended that the

plaintiff never left Nagavi B.K. It is also contended

that there was no partition till the year 1993 and in

the year 1993, all co-tenants decided to effect

partition and accordingly, partition was effected with

consent of all co-tenants. In the said partition, a land

bearing R.S.No.33/2B measuring 4 acres 9 guntas

fallen to the share of Kashimsab who insisted to allot

his share to his son defendant No.4 and accordingly,

said land bearing R.S.No.33/2 measuring 4 acres 4

guntas was allotted to defendant No.4. It is

contended that the lands bearing R.S.No.31/1

measuring 5 acres 9 guntas and R.S.No.19/2

measuring 3 acres were allotted to the share of

defendant No.2 and accordingly, a vardi was given to

the village accountant of Nagavi K.D. village on

25.05.1993 which was signed by the plaintiff,

defendant Nos.2 to 4 and after vardi, Village

Accountant had issued notice calling for objections

from the interested persons, none of them filed

objections to the said notice. Accordingly, the

revenue authorities passed an order of mutation in

M.E.No.1837 dated 25.05.1993. Hence, suit for

partition and separate possession is not maintainable

and prayed to dismiss the suit.

3.2. Defendant Nos.3 to 6 have not filed written

statement.

3.3. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether plaintiff proves that, he and defendants are tenants in common and suit properties are joint properties?

2. Whether plaintiff proves that, he and defendants are in joint possession and enjoyment of suit properties?

3. Whether plaintiff proves that, defendants have created M.E.No.1010 and 1837 without his knowledge and consent and in his absence and they are not binding upon him?

4. Whether defendants prove that, partition has been taken place on 25.5.1993 in between plaintiff and defendants in respect of suit properties and as per partition, they are in possession and enjoyment of their respective shares?

5. Is there cause of action?

6. Whether plaintiff is entitled to the relief's as prayed in the plaint?

7. What order or decree?

3.4. Plaintiff in order to prove his case, examined

the power of attorney of the plaintiff as PW-1 and got

marked Ex.P1 to P11. On the other hand, defendant

No.2 was examined as DW-1 and got examined two

witnesses as DWs.2 and 3 and got marked Ex.D1 to

D12. As defendant Nos.3 to 6 did not lead evidence,

evidence of defendant Nos.3 to 6 was taken as nil.

The Trial Court, after recording evidence and

considering the material on record, held that the

plaintiff has proved that he and defendants are

tenants in common and the suit properties are the

joint family properties and further plaintiff has proved

that the defendants are in joint possession and

enjoyment of the suit properties and further held that

the plaintiff has proved that the defendants have

created M.E.No.1010 and 1837 without his knowledge

and consent and in his absence and they are not

binding on the plaintiff. Further, the trial Court held

that the defendants have failed to prove the partition

that has taken place on 25.05.1993 in between the

plaintiff and defendants in respect of the suit schedule

properties and as per the partition, they are in

possession and enjoyment of their respective shares

and consequently, decreed the suit of the plaintiff.

3.5. Defendant Nos.1 and 2 aggrieved by the

judgment and decree passed by the Trial Court

preferred appeal in R.A.No.16/2012 before the

Additional Senior Civil Judge and JMFC, Sindagi. The

First Appellate Court framed the following points for

consideration:

1. Whether the respondent-1/plaintiff proved that, he is enjoying the properties as tenants in common and he is having 1/3rd share in the suit properties?

2. Whether the findings recorded by the Hon'ble trial Court are erroneous, unjust etc.,?

3. Whether the judgment of Hon'ble trial Court calls for any interference by this Court?

4. What order or decree?

3.6. The First Appellate Court, after re-

appreciation of the evidence on record, answered the

points for consideration holding that the plaintiff has

proved that he is in enjoyment of the property as

tenant in common and he is having 1/3rd share in the

suit properties and further held that defendant Nos.1

and 2 have failed to prove that the findings recorded

by the Trial Court are perverse, erroneous and further

the First Appellate Court has declined to interfere with

the judgment and decree passed by the Trial Court

and consequently dismissed the appeal. Hence,

defendant Nos.1 and 2 have filed the instant appeal.

        4.     Heard       learned        counsel         for    the

appellants/defendant Nos.1 and 2.


        5.     Learned     counsel        for     the     appellants/

defendant Nos.1 and 2 submits that in the year 1993

there was partition and in the said partition,

properties were allotted to the share of respective

parties. On the basis of the partition, joint vardi was

submitted to the revenue authorities. The revenue

authorities issued notice calling upon the interested

persons to file objections. None of them filed

objections. The revenue authorities passed an order

transferring the properties in the name of respective

parties. He further submitted that both the Courts

below have committed an error in not properly

appreciating the evidence of the defendants and on

these grounds, he prays to allow the appeal.

6. Perused the records and considered the

submissions made by learned counsel for the

appellants/defendant Nos.1 and 2. Plaintiff filed suit

for partition and separate possession. It is not in

dispute that the plaintiff and defendants are tenants in

common and suit schedule properties are the joint

family properties. It is the specific case of defendant

Nos.1 and 2 that there was partition in the year 1993

and in the said partition, suit properties were divided

and accordingly, mutation was effected in

M.E.No.1010 and 1837. In order to establish that

there was partition between the plaintiff and

defendants, the defendants have produced Ex.D1 i.e.,

vardi which was made to the revenue authorities.

From perusal of Ex.P11 it would disclose that there is

no such vardi available in the records. Further, it is

the contention of defendant Nos.1 and 2 that they

submitted joint vardi to the Village Accountant. In

order to establish that the parties have submitted

joint vardi to the Village accountant, defendant Nos.1

and 2 have not produced any other records to

establish the said fact. Further, in a suit for partition

and separate possession, when the plaintiffs have

specifically contended that there was no partition,

burden lies on the defendants to prove that there was

partition in the family. In fact, the defendants have

not produced any other records to show that there

was partition in the family of plaintiff and defendant

Nos.1 and 2 except producing M.E.Nos.1010 and

1837. The plaintiff has produced Ex.P11 which was

issued by the Tahsildar. Ex.P11 would indicate that

there is no such document available. Under such

circumstances, the Trial Court has recorded finding

that the defendants have failed to establish the

factum of partition. In order to establish the factum of

partition, the defendants examined two witnesses as

DWs.2 and 3. Age of defendant Nos.2 and 3 as on the

date of giving their evidence was 45 years and at the

time of alleged partition in the year 1993, they were

aged between 18-19 years. They are not panchas or

elders of the village. Further, from the evidence of

these witnesses, it is clearly seen that they have no

knowledge about the alleged partition in the family of

parties to the suit. Therefore, the Trial Court, on

examining the records, is justified in decreeing the

suit of the plaintiff and the First Appellate Court on re-

appreciation of the material available on record was

justified in confirming the judgment and decree

passed by the Trial Court. I do not find any

substantial question of law in this appeal.

7. In view of the above discussion, the appeal

is dismissed.

In view of disposal of the appeal, I.A.No.1/2019

does not survive for consideration.

Sd/-

JUDGE NB*