Karnataka High Court
Gori Bee @ Khairunnisa Begum vs Abdul Gaffar S/O Sultan Sab ... on 4 July, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 04TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA. No.7193/2012 (PAR)
BETWEEN:
GORI BEE @ KHAIRUNNISA BEGUM,
D/O SULTAN SAB SIKANDAR &
W/O AHMED SHAIK SAB,
AGE: 55 YEARS, OCC: HOUSEHOLD,,
R/O YADGIR NOW RESIDING
AT DOUND (MAHARASHTRA).
...APPELLANT
(BY SRI.LIYAQAT FAREED USTAD, ADVOCATE)
AND:
1. ABDUL GAFFAR S/O SULTAN SAB SIKANDAR,
AGE ABOUT 60 YEARS, OCC: AGRICULTURE,
R/O H.NO.3-4-120, MOHALLA ASAR SHAREEF,
YADGIR, TQ. & DIST. YADGIR-585201.
2. MARRIAM BEE D/O SULTAN SAB SIKANDAR
& W/O: ABDUL GAFFAR SAB,
AGE ABOUT YEARS, OCC: HOUSEHOLD,
R/O MOHALLA HUSSAINI ALAM, NEAR ASHUR KHANA,
YADGIR, TOWN TQ. & DIST. YADGIR-585201.
... RESPONDENTS
(NOTICE TO R1 & R2 ARE SERVED)
2
This Regular Second Appeal is filed under Section
100 of CPC, praying to call for the records and set aside
the judgment Order dated 21.03.2012 passed by the
Senior Civil Judge at Yadgir in R.A.No.11/2011.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
This second appeal is filed by the
plaintiff/appellant challenging the judgment and
decree dated 21.03.2012 passed in R.A.No.11/2011
by the Senior Civil Judge Yadgiri, whereby the appeal
filed by the defendants/respondents herein came to be
allowed.
2. For the sake of convenience, the parties
herein are referred with the original ranks occupied by
them before the Trial Court.
3. The brief factual matrix leading to the case
are that the plaintiff being the sister of defendant
Nos.1 and 2 filed a suit for partition and separate
possession of her legitimate share in the suit schedule
properties. The trial Court decreed the suit granting
1/4th share to plaintiff in item Nos.1 to 3, 5 and 6.
Against this judgment and decree, the respondents
herein have filed appeal in R.A.No.11/2011, while
plaintiff has filed appeal in R.A.No.16/2011.
R.A.No.16/2011 came to be dismissed, while
R.A.No.11/2011 is allowed, wherein the decree was
modified by granting 1/4th share to plaintiff only in
item Nos.2 and 6, while the claim of plaintiff regarding
other properties was rejected by allowing the
R.A.No.11/2011 in part.
4. Being aggrieved by this judgment and
decree, the plaintiff has filed this appeal.
5. Heard the arguments advanced by the
learned counsel for the appellant.
6. The First Appellate Court has considered
the claim of the plaintiff and defendants and further
specifically observed that item No.1 in Sy.No.92 does
not belong to defendants and 24 guntas of this land is
allotted to one Mohd. Moinuddin S/o Nabisab Sikandar
who is uncle of defendant No.1 and remaining land 01
acre 2 guntas is sold to one Zafarunnisa Begum, who
are not parties to the suit. It is further observed that
the suit properties are no way concerned to the family
of plaintiff and defendants and rejected the claim. No
illegality is found with the said order as it is based on
material on record.
7. As regards item No.2, the Appellate Court
has held that this is Inam land and it is not re-granted
to the family of plaintiff and defendants. Hence, the
Appellate Court has rejected the claim of plaintiff
without there being re-grant and when the matter is
pending, the right will accrue only after re-grant of the
property in the name of the family. Under these
circumstances, the rejection of claim regarding item
No.2 is also just and proper.
8. Further, the Appellate Court has clearly
observed that item No.4 bearing Sy.No.723 measuring
2 acres 7 guntas is purchased by defendant No.1
under the registered sale deed. No assertion is made
in the entire plaint that the plaintiff has contributed
anything towards purchase of this land. Hence, this
property being a separate property of the defendant
No.1, question of claiming partition in this land does
not arise at all. Accordingly, the First Appellate Court
has rightly appreciating the oral and documentary
evidence has rejected the claim of the plaintiff in this
regard.
9. Further, the First Appellate Court has
clearly observed that item No.5 bearing Sy.No.314/2
measuring 3 acres 20 guntas does not belongs to
family but it belongs to one Iqbal Ahmed S/o:
Mohammed. Further, it is observed that the dispute is
also pending before the land tribunal for grant of
occupancy right, which is admitted by the plaintiff in
cross objection. Hence, it is evident that the property
is not yet available for partition and the Appellate
Court has rightly rejected the claim of the plaintiff in
this regard. The trial Court has failed to consider
these aspects and blindly decreed the suit in respect
of item Nos.1 to 3, 5 and 6 except item No.4. When
item No.1 does not belong to the family and
occupancy rights are not yet granted, question of
claiming any partition does not arise at all. Hence,
the First Appellate Court has restricted the claim of
the plaintiff in respect of item Nos.3 and 6 only and no
illegality or infirmity is found with judgment of the
First Appellate Court. The First Appellate Court has
appreciated the oral and documentary evidence in
proper perspective and considering the fact that one
property does not belong to the family and other two
properties pending with the issue of re-grant and
occupancy right is not yet concluded has refused to
grant relief in favour of the plaintiff as the rights were
not yet quantified. Under these circumstances, the
judgment and decree passed by the First Appellate
Court does not call for any interference and hence the
appeal being devoid of any merits needs to be
rejected.
10. Accordingly, I proceed to pass the
following;
ORDER
The appeal is dismissed.
In view of the disposal of appeal, IA.No.1/2012
does not survive for consideration.
Sd/-
JUDGE
msr
