Shoukath Ali vs Rajiya Begum
2022 Latest Caselaw 519 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY 2022

                       BEFORE

         THE HON'BLE MR.JUSTICE M G S KAMAL

        REGULAR SECOND APPEAL No.1307/2014

BETWEEN:

SHOUKATH ALI
S/O LATE SAABJI SAB
AGED ABOUT 51 YEARS
RESIDENT OF 197/A
HOSA ANANDUR VILLAGE
BELAGOLA HOBLI
SRIRANGAPATNA TALUK - 571438
MANDYA DISTRICT.                    ..APPELLANT

(BY SRI CHETHAN B, ADV.)

AND:

1. RAJIYA BEGUM
D/O LATE SAABJI SAB
AGED ABOUT 63 YEARS
RESIDING AT NO.34, 5TH MAIN,
B G ROAD, N G PALYA
BANGALORE.

2. CHANDA PASHA
S/O LATE SAABJI SAB
AGED ABOUT 61 YEARS
RESIDENT OF NO.16
HOSA ANANDUR VILLAGE
BELAGOLA HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT.
                          2




3.   DISHAB BEGUM
     D/O. LATE SAABJI SAB
     AGED ABOUT 55 YEARS
     RESIDENT OF NO.175, 8TH CROSS
     A.J. BLOCK, N.R. MOHALLA
     MYSORE-570 001.

4.   RAFEEQ PASHA
     S/O. LATE SAABJI SAB
     AGED ABOUT 55 YEARS
     RESIDENT OF 197/B
     HOSA ANANDUR VILLAGE
     BELAGOLA HOBLI
     SRIRANGAPATNA TALUK
     MANDYA DISTRICT.

5.   ZEENATH
     D/O. LATE SAABJI SAB
     W/O. LATE SAMIULLA
     AGED ABOUT 53 YEARS
     RESIDENT OF NO.112, 12TH CROSS
     SHANTHINAGAR
     MYSORE-570 001.

6.   NOORJAN BEGUM
     D/O. LATE SAABJI SAB
     W/O. MAKBUL SAB
     AGED ABOUT 57 YEARS
     RESIDENT OF NO.158, 4TH CROSS
     2ND STAGE, RAJEEVNAGARM
     MYSORE-570 001.               ..RESPONDENT

     THIS APPEAL IS FILED UNDER SECTION 100 OF
CIVIL PROCEEDURE CODE AGAINST THE JUDGMENT AND
DECREE DATED 14.07.2014 PASSED IN R.A.NO.14/2013
ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE,
SRIRANGAPATNA,     DISMISSING   THE   APPEAL   AND
CONFIRMING THE JUDGMENT AND DECREE DATED
31.01.2013 PASSED IN O.S.NO.328/2010 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE, SRIRANGAPATANA.
                                 3




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


                              JUDGMENT

The present appeal is filed by the

appellant/defendant No.1 aggrieved by the judgment and

decree dated 14.07.2014 passed in R.A. No.14/2013 on

the file of the Additional Senior Civil Judge MACT,

Srirangapatna (Hereinafter referred to as 'First Appellate

Court') in and by which the First Appellate Court while

dismissing the appeal filed by the appellant/defendant

No.1 herein has confirmed the judgment and decree dated

31.01.2013 passed by the Principal Civil Judge,

Srirangapatna in O.S. No.328/2010 which was filed by the

respondents/plaintiffs for partition and separate

possession.

2. Plaintiffs and defendants are admittedly the

children of one late Saabji Sab and Smt Wajeerbi. That

the suit schedule properties consisting of a Mangalore Tiled

house, a vacant site, three coconut trees bearing katha

Nos.197/A, 195/A situated at "F" Block, Hosa Anandur

Village, Belagola Hobli, Srirangapatna Taluk belonged to

the said late Saabji Sab. Both the said late Saabji Sab and

his wife Smt Wajeerbi expired long back leaving behind

their children viz., plaintiffs and defendants as their legal

heirs. Plaintiffs demanding the share in the suit property

filed the suit for partition by metes and bounds and for

mesne profits.

3. Defendant No.1 appeared and filed written

statement. Defendant No.2 was placed exparte.

Defendant No.1 admitted relationship of the parties and

also the ownership of the property being that of their

father. He further contended that property bearing Katha

No.51 i.e., R.C.C. house situated in Hosa Anandur village is

standing in the name of plaintiff No.2 and a house property

bearing No.139 situated at Sathgalli in Mysore City

standing in the name of plaintiff No.4 are also joint family

properties and plaintiffs not having included the said

properties, a suit for partial partition was not maintainable.

Hence, sought for dismissal of the said suit.

4. The Trial Court based on the pleadings of the

parties had framed the following issues and recorded

evidence:

1 Whether the plaintiffs prove that, suit schedule property belonged to Saabji Sab, hence, plaintiffs and defendants are tenants in common?

2. Whether the plaintiffs are entitled for partition and separate possession of suit schedule property as sought for?

3. Whether 1st defendant proves that, suit is bad for partial partition, as all joint properties are not included in the suit?

4. What order or decree?

Plaintiff No.4 examined himself as PW-1 and got marked

one document as Ex.P1. Four witnesses were examined on

behalf of defendants as DW-1 to DW-4 and got marked 8

documents as Ex.D1 to Ex.D8. On appreciation of the

evidence, the Trial Court partly decreed the suit declaring

plaintiff No.2/Chand Pasha, plaintiff No.4/Rafeeq Pasha

and defendant No.1/Shoukath Ali being sons of Late Saabji

Sab would get each 2/10th share in the suit schedule

property while the other plaintiffs and defendant No.2

being daughters of Late Saabji Sab would get 1/10th share

in the suit schedule property and directed for separate

enquiry with respect to mense profits and to draw

preliminary decree accordingly. Being aggrieved by the

same, the appellant/defendant No.1 filed R.A.No.14/2013

before the First Appellate Court and the First Appellate

Court framed the following points for consideration:

1 Whether the appellant/1st defendant prove that the, properties mentioned in his written statement are the joint family properties belonging to him and the plaintiffs/respondents?

2. Whether the findings and reasoning recorded by the trial Court on issue No.1 to 3 which resulted in decreeing the suit of the plaintiffs are perverse, capricious and thereby required to be interfered by this Court exercising its appellate jurisdiction?

3. What decree or order?

On re-appreciation of the evidence, the First Appellate

Court dismissed the appeal confirming the judgment and

decree of the Trial Court. Being aggrieved by the same,

appellant/defendant No.1 before this Court.

5. The learned counsel for the appellant re-

iterating the grounds urged in the memorandum of appeal

submits that despite specific contentions raised by the

appellant/defendant No.1 with regard to two other

properties bearing Khata No.51, Anandur Village and

Property bearing No.139, Sathgalli standing in the name of

plaintiff Nos.2 and 4 being the joint family property, the

plaintiffs did not take any steps to bring the said properties

on record for partition. Thus the suit for partial partition

was not maintainable. On this sole ground present appeal

is filed. Thus, he submits that this aspect of the matter

gives rise to substantial question of law requiring

consideration.

6. Heard the learned counsel for the parties.

7. Relationship of the plaintiffs and the

defendants being children of Saabji Sab is admitted.

However, the appellant/defendant No.1 though had

contended that property bearing katha No.51 being a

RCC house situated at Hosa Anandur village standing in

the name of plaintiff No.2 and another property bearing Sy

No.139 situated at Sathagahalli, Mysore City standing in

the name of plaintiff No.4 are the joint family properties,

has not produced any iota of evidence to substantiate his

contention as the same being the joint family properties

being entitled for partition. As rightly taken note of by the

Trial Court and confirmed by the First Appellate Court

there is no concept of the joint family property amongst

the persons governed under the Muslim Personal Law. The

suit schedule property admittedly being the property of

late Saabji Sab, father of the plaintiffs and the defendant

alone was available for partition and that the other two

properties mentioned by defendant No.1 as the family

properties, were not belonging to late Saabji Sab. This

aspect of the matter is taken note of by the Trial Court and

the First Appellate Court and have rightly decreed the suit

holding entitlement of the parties therein. In that view of

the matter, no substantial question of law arises for

consideration in this appeal requiring consideration.

Hence, the following:

ORDER

Regular Second Appeal 1307/2014 is dismissed.

The judgment and decree dated 14.07.2014 passed by the

Additional Senior Civil Judge MACT, Srirangapatna in

Regular Appeal No.14/2013 and the judgment and decree

dated: 31.01.2013 passed by Principal Civil Judge,

Srirangapatna in O.S.No.328/2010 is confirmed. In the

circumstances, parties to bear their own costs.

Sd/-

JUDGE

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