Smt. Zaheera Bi vs Sri Mohammed Hayath Sab
2022 Latest Caselaw 3681 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 04TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

 REGULAR SECOND APPEAL NO.1250 OF 2011 (DEC)

BETWEEN:

       SMT. ZAHEERA BI
       W/O NISAR AHMED,
       SINCE DEAD BY HER LRs.
       OTHER APPELLANTS

       NISAR AHMED-LR(a)
       SINCE DECEASED BY HIS LRs.

1.     SMT MUSTARI
       AGED ABOUT 58 YEARS,
       W/O LATE NISAR AHAMED,

2.     SRI GULAM HUSSAIN
       AGED ABOUT 57 YEARS,
       S/O LATE MOHD. KHALANDAR SAB,

3.     SRI MOHAMMED SULTHAN
       AGED ABOUT 52 YEARS,
       S/O LATE MOHD. KHALANDAR SAB,

4.     SRI MOHAMMED YUSUF
       AGED ABOUT 46 YEARS,
       S/O LATE MOHD. KHALANDAR SAB,

5.     SRI MOHAMMED FAROOQ
       AGED ABOUT 44 YEARS,
       S/O LATE MOHD. KHALANDAR SAB,

       APPELLANT NOS.1 TO 5 ARE
       R/AT C.T ROAD,
                             2




       KUMBAR STREET,
       CHIKMAGALUR DISTRICT-577101
                                          ...APPELLANTS
(BY SRI.H.C.SHIVARAMU, ADVOCATE)

AND:

1.     SRI MOHAMMED HAYATH SAB
       DEAD BY LRs.

1(a). SMT. NACEEMUNNISA
      AGED ABOUT 70 YEARS,
      W/O LATE MOHAMMED HAYAT SAB

1(b). MOHAMMED HAFEEZ
      AGED ABOUT 50 YEARS,
      S/O LATE MOHAMMED HAYAT SAB

1(c). MOHAMMED ANEES
      AGED ABOUT 48 YEARS,
      S/O LATE MOHAMMED HAYAT SAB

1(d). MOHAMMED SAHEEB
      AGED ABOUT 45 YEARS,
      S/O LATE MOHAMMED HAYAT SAB

1(e). MOHAMMED KHADER
      AGED ABOUT 40 YEARS,
      S/O LATE MOHAMMED HAYAT SAB

       ALL ARE R/O BESIDE YASHODHAMMA NAGATHI
       HIGH SCHOOL, M.G.ROAD, TARIKERE,
       CHICKMAGALUR DISTRICT-522778.

       ABDUL REHMAN
       S/O JONAMMED YUSUF SAB,
       SINCE DECEASED BY HIS LR.

       SMT. AKTHARUNNISA-LR(a)
       W/O LATE ABDUL REHMAN,
       SINCE DEAD BY LR(b)
                             3




       BEING ON RECORD THERE IS SUFFICIENT
       REPRESENTATION FOR THE ESTATE OF
       RESPONDENT No.2

2.     AMANULLA
       AGED ABOUT 46 YEARS,
       S/O LATE ABDUL REHAMAN,
       R/O 10TH CROSS, GOWLIGERE STREET,
       B.H ROAD,BHADRAVATHI,
       SHIMOGA DISTRICT-577201

       MOHAMMED GHOUSE,
       SINCE DECEASED BY HIS LR.

3.     SMT NAJMATHUNNISSA
       AGED ABOUT 71 YEARS,
       W/O LATE MOHAMMED GHOUSE,

4.     MOHAMMED AHAMAD
       AGED ABOUT 54 YEARS,
       S/O LATE MOHAMMED GHOUSE,

5.     MOHAMMED MUNNIR
       AGED ABOUT 51 YEARS,
       S/O LATE MOHAMMED GHOUSE

6.     MOHAMMED FIAZ
       AGED ABOUT 48 YEARS,
       S/O LATE MOHAMMED GHOUSE

7.     MOHAMMED ATHEEK
       AGED ABOUT 44 YEARS,
       S/O LATE MOHAMMED GHOUSE

       RESPONDENT NOS.3 TO 7 ARE
       R/O TALUSI VILLAGE PRIMARY & MIDDLE SCHOOL,
       DAVANAGERE TALUK AND DISTRICT-577001

8.     NAZEER HUSSAIN @ NAZEER AHMED,
       DEAD BY LRs.

8(a)   SMT. SHARFUNNISA,
       AGED ABOUT 60 YEARS,
       W/O LATE NAZEER HUSSAIN,
                             4




8(b)   MOHAMMED SANI
       AGED ABOUT 43 YEARS,
       S/O LATE NAZEER HUSSAIN,

8(c)   MOHAMMED ZABI,
       AGED ABOUT 43 YEARS,
       S/O LATE NAZEER HUSSAIN,

8(d)   MOHAMMED IQBAL
       AGED ABOUT 41 YEARS,
       S/O LATE NAZEER HUSSAIN,

8(e)   MOHAMMED SALEEM,
       AGED ABOUT 38 YEARS,
       S/O LATE NAZEER HUSSAIN,

8(f)   SMT. NAZIMA
       AGED ABOUT 36 YEARS,
       D/O LATE NAZEER HUSSAIN,

       RESPONDENT NO.8(a) TO 8(f)
       ARE R/O OLD SANTE MAIDANA,
       (BUTHANE GUDI), 4TH CROSS,
       BHADRAVATHI TOWN,
       SHIMOGA DISTRICT.

9.     SMT. HAFEEZABI
       DEAD BY LRs.

9(a). FAYAZ AHMED,
      AGED ABOUT 68 YEARS,
      S/O LATE ABDUL HAMEED SAB

9(b). MRS. AFSARI
      AGED ABOUT 50 YEARS,
      D/O LATE ABDUL HAMEED SAB

9(c). MRS.
      AGED ABOUT 45 YEARS,
      D/O LATE ABDUL HAMEED SAB
      W/O PECRUDE
      RESPONDENT NOS.9(a) TO 9(c) ARE
      R/O TARIKERE ROAD,
                             5




       OPP. DURGA HOSPITAL,
       TARIKERE ROAD,
       BHADRAVATHI, SHIMOGA DISTRICT.

10.    SMT RAJAMMA
       DEAD BY LRs.
       RESPONDENT No.10 IS DIED. TREAT R-11 TO R-14
       AS LRs. OF DECEASED R-10,

11 .   LOKANATH
       AGED ABOUT 40 YEARS,
       S/O LATE SWAMIKANNA @ SWAMINATHAN,

12 .   ASHOK
       AGED ABOUT 38 YEARS,
       S/O LATE SWAMIKANNA @ SWAMINATHAN,

13 .   NARAYAN
       AGED ABOUT 36 YEARS,
       S/O LATE SWAMIKANNA @ SWAMINATHAN,

14 .   SRI SHAILESH
       AGED ABOUT 34 YEARS,
       S/O LATE SWAMIKANNA @ SWAMINATHAN

       RESPONDENT NO.11 TO 14 ARE
       R/O GOWLIGERE STREET,
       B.H.ROAD, BHADRAVATHI-577301.

15 .   SMT SUNITHAMMA
       AGED ABOUT 45 YEARS,
       W/O NAGAPPA
       R/O HALE SANTHE MAIDAN OLD TOWN,
       BHADRAVATHI, SHIMOGA DISTRICT - 577 301

16 .   SMT BADAMIBAI
       DEAD BY LRs.
       TREAT R17 TO R19 AS LRs. OF DECEASED R16

17 .   JAVARILAL LONDA
       AGED ABOUT 65 YEARS,
       S/O LATE PUKRAJ LONDA
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18 .   SHANTHILAL LONDA
       AGED ABOUT 65 YEARS,
       S/O LATE PUKRAJ LONDA

19 .   RAJENDRAKUMAR LONDA
       AGED ABOUT 36 YEARS,
       S/O LATE PUKRAJ LONDA

       RESPONDENT NOS.17 TO 19 ARE
       R/O CHANNAGIRI ROAD,
       BHADRAVATHI-577301
       SHIMOGA DISTRICT

20 . SMT SHERFUNNISA
     AGED ABOUT 65 YEARS,
     W/O NAZIR AHAMED,
     R/O S.R.ROAD, RAJU CIRCLE, OLD TOWN,
     BHADRAVATHI-577301
                                        ...RESPONDENTS
  (BY SRI.M.V.HIREMATH, ADVOCATE FOR R2-R7 & R20,
      R1(b),(c),(e)-SERVED;
      R-8(a) to R-8(f)-SERVED;
     VIDE ORDER DATED 30.03.2016 R11 TO R14 ARE
     TREATED AS LRS. OF DECEASED R10 AND R17 TO R19
     ARE TREATED AS LRS. OF DECEASED R16
     SRI.S.V.PRAKASH, ADVOCATE FOR R11 AND R13;
     SRI.K.CHANDRASHEKAR, ADVOCATE FOR R17 TO R19;
     VIDE ORDER DATED 30.08.2016 NOTICE TO R1(a), R12,
     R14, R15 ARE HELD SUFFICIENT;
     R9(a), 9(b), 9(c) SERVED)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 01.04.2011 PASSED IN RA.NO.15/2005 ON THE FILE OF
THE PRINCIPAL DISTRICT JUDGE, CHIKMAGALUR, DISMISSING
THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE
DATED 26.03.2005 PASSED IN O.S.NO.70/1995 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.), TARIKERE.

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

This appeal is filed by the unsuccessful plaintiffs

challenging the decree passed by the trial Court in

O.S.No.70/1995, which was confirmed by the I Appellant

Court in R.A.15/2005, by which, the claim of the plaintiffs

in respect of 'A' schedule property was rejected.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court. The appellants

were the plaintiffs and the respondents were the

defendants.

3. The plaintiffs claim that Mohammed Yusuf Sab

had a wife namely Zakriya Bi and five sons namely,

Khalandar Sab, Mohammed Hayath Sab, Abdul Rehman,

Mohammed Ghouse and Nazir Hussain and a daughter

Hafiza Bi. Plaintiff No.1 is the wife and plaintiff Nos.2 to 6

are the children of Khalandar Sab. Defendant No.2(a) and

2(b) are the legal representatives of Abdul Rehman.

Defendant Nos.1, 3 and 4 are the other sons of

Mohammed Yusuf Sab. It is stated that Mohammed Hayath

Sab filed O.S.No.22/1971 for partition and separate

possession of his share in the suit schedule properties. The

said suit was decreed and it was declared that Mohammed

Yusuf Sab was entitled to 14/88 share in the 'A' and 'B'

schedule properties therein. Later, the decree was

amended on 21.03.1984 declaring that Mohammed Hayath

Sab was entitled to 77/106th share in the suit properties.

This was followed by FDP No.1/1978 to enforce the

preliminary decree passed in O.S.No.22/1971 and that the

same was pending consideration.

4. The plaintiffs allege that they later came to

know that there was a partition deed dated 25.01.1963 in

the family of Mohammed Yusuf Sab to which, Khalandar

Sab was not a party. Nonetheless, Khalandar Sab was

allotted a share in the properties. Likewise, shares were

allotted to all the other sons of Mohammed Yusuf Sab and

to his wife. Defendant No.2 sold his share to defendant

No.6 under a registered sale deed dated 14.07.1975 and

another sale deed dated 26.06.1978. Likewise, the wife of

defendant No.4 sold her share to defendant No.7 on

14.12.1977 and defendant No.7 in turn sold it to the

defendant No.8 on 28.08.1981. The plaintiffs claimed that

this property was not the subject matter of the partition

decree in O.S.No.22/1971 and therefore, filed the present

suit for the following reliefs:

"(a) To declare the decree passed in O.S.No.22/71 dated 12.07.1973 on the file of the Hon'ble Munsiff, Tarikere, as NILL AND VOID and to declare the proceedings in FDP.1/78 before the Munsiff at Tarikere in view of the previous registered partition deed dated 25.01.1963 is also NULL AND VOID.

(b) For partition and separate possession by metes and bounds and to declare that the plaintiffs are entitled to 14/88 share in the property left by late Mohammed Yusuf Sab situated in Old Santhe Maidana, Bhadravathi, scheduled as per the Scheduled-A of the plaint.

(c) For partition and separate possession by metes and bounds and to declare that, the plaintiffs each has got right to an extent of 1/5th share out of the share fallen to deceased Smt.Zakriyabi wife of Mohammed Yusuf Sab in registered partition deed dated 25.01.1963, as described in the suit, in para-12, item No.4(d), which is mentioned as schedule-B.

(d) Declare the sale deeds executed by Smt. Sharfunnisa, wife of Nazeer Ahamed, as NULL AND VOID and not binding on the share of the plaintiffs, and subsequent sale

deeds as NULL AND VOID and not binding on the plaintiffs.

(e) For future and present means profit as determined by this Hon'ble Court with respect to the property of Smt.Zakriyabi i.e., Schedule-B property and the property schedule as 'A'."

5. The suit was contested by the defendant Nos.1

and 8 who contended that the 'A' schedule property was

owned by Mrs.Zakriya Bi in the name of Mohammad Yusuf

sab and that they all had sold the 'A' schedule property to

the defendant No.9 on 13.07.1976 and later she conveyed

it to the defendant No.7 in terms of a sale deed dated

14.12.1977. They contended that Khalandar Sab, the

predecessor of plaintiffs had joined in the execution of the

sale deed dated 13.07.1976 and therefore, the plaintiffs

were not entitled to any share. In so far as 'B' schedule

property is concerned, they claimed that it belonged to the

uncle of the defendant No.1. The defendant Nos.4, 5 and 9

also filed their written statements denying the averments

of the plaint and the entitlement of the plaintiffs for the

suit reliefs.

6. The defendant No.8 contested the suit and

claimed that defendant No.8 had sold the 'A' schedule

property to him by a sale deed dated 31.08.1881 and that

he had constructed a three floor RCC structure thereon.

7. Besides the above, it was contended that the

suit was not maintainable and was barred by the law of

limitation.

8. The trial Court after considering the oral and

documentary evidence held that since the 'A' schedule

property was already disposed off by all the members of

the family by registered deeds, the plaintiffs are not

entitled to any share therein. It however declared that the

plaintiffs jointly were entitled to 2/11th share in the 'B'

schedule property.

9. Being aggrieved by the above, the plaintiffs

filed R.A.No.15/2005.

10. The I Appellate Court also considering the fact

that though Khalandar Sab was not a party to the partition

deed dated 25.01.1963 yet, the 'A' schedule property was

not involved in the partition. It however noticed that

Khalandar Sab along with other members had sold 'A'

schedule property to defendant No.9 on 13.07.1976 and

she later conveyed it to defendant No.7 on 14.12.1977

who in turn sold it to defendant No.8 on 31.08.1981 and

hence, dismissed the appeal.

11. Being aggrieved by the above, the plaintiffs

have filed this Regular Second Appeal. The learned counsel

Sri. H.C. Shivaramu, contended that the Trial Court

committed an error in dismissing the suit in respect of 'A'

schedule property, even after holding that it was the

property of Mohammad Yusuf Sab and was neither the

subject matter of partition in the deed dated 25.01.1963

or in O.S.No.22/1971. The learned counsel contended that

the Trial Court and the First Appellate Court must have

decreed the suit in respect of 'A' schedule property.

12. The learned counsel for the contesting

respondent Nos.17 to 19 submitted that the plaintiffs have

attempted to lay claim to the 'A' schedule property based

on the assertion that their predecessor, Khalandar Sab was

though not a party to the partition deed dated 25.01.1963,

yet was allotted a share. He contended that the 'A'

schedule property was not the subject matter of the deed

dated 25.01.1963 as it was the property of Zakhriya Bi

which was held in the name of Mohammad Yusuf Sab and

that Zakhriya Bi along with her sons including Khalandar

Sab had sold the 'A' schedule property to defendant No.9

on 13.07.1976. Therefore, both the Courts rightly

dismissed the claim in so far as 'A' schedule property is

concerned.

13. I have considered the submission of the

learned counsel for the parties and I have examined the

judgment of the Trial Court as well as the First Appellate

Court.

14. It is seen that the plaintiffs were unaware of

the sale deed dated 13.07.1976 executed by Zakhriya Bi

and her sons including Khalandar Sab in favour of

defendant No.9. Since both the Courts have examined this

aspect and held that the plaintiffs cannot again lay a claim

to the 'A' schedule property as their predecessor had lost

title to the 'A' schedule property long back, this Court does

not consider it appropriate to disturb this finding of fact.

15. In view of the above, there is no substantial

question of law which arises for consideration in this

appeal.

16. Hence, this appeal is dismissed.

Sd/-

JUDGE NR/-