Karnataka High Court
Nazrulla Khan vs Bifathima on 11 August, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:28576
RSA No. 1844 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1844 OF 2017 (DEC/INJ)
BETWEEN:
1. NAZRULLA KHAN
S/O MAHAMMAD KHAN
R/O VILLAGE YADEHALLI
ANANDAPURA HOBLI
TALUKA SAGAR-577401
...APPELLANT
(BY SRI ABHISHEK K., ADVOCATE)
AND:
1. BIFATHIMA
W/O ISMAIL SAB
AGED ABOUT 69 YEARS
2. NAZEER
S/O ISMAIL SAB
Digitally signed
by SHARANYA T AGED ABOUT 48 YEARS
Location: HIGH
COURT OF 3. SIRAJ
KARNATAKA
S/O ISMAIL SAB
AGED ABOUT 41 YEARS
4. RAZIYA
W/O ABDULLA
AGED ABOUT 43 YEARS
RESPONDENTS 1 TO 4 ARE
AGRICULTURISTS AND BUSINESSMEN
R/O NEAR BATTARAKERE MASJID
PERMADE POST,
TALUKA MANGALORE-575001.
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RSA No. 1844 of 2017
ASHIBI
W/O ISMIAL SAB
DEAD HER LRS RESPONDENTS NO.5 AND 6
5. GOUSE SAB
S/O ISMAIL SAB
AGED ABOUT 40 YEARS
6. BASAHA SAB
S/O ISMAIL SAB
AGED ABOUT 38 YEARS
RESPONDENTS 5 TO 6 BOTH ARE
R/AT 9TH CROSS. MAAKE SCHOOL
NEAR DARGA, MATHADA GADDE
SHIRALAKOPPA,
SHIKARIPRA TAKUK-577427
7. PRESIDENT OF JUMMA MASJID
R/O MURUGAMUTT VILLAGE
ACHAPURA POST
ANANDAPURA HOBLI,
TALUKA SAGAR-577412.
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908,
AGAINST THE JUDGMENT AND DECREE DATED 01.06.2017
PASSED IN R.A.NO.10001/2017 ON THE FILE OF THE
V.ADDL.DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA
(SITTING AT SAGAR) DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 14.11.2016
PASSED IN O.S.NO.18/2012 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE AND JMFC, SAGAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1844 of 2017
JUDGMENT
This matter is listed for admission.
2. Heard the learned counsel for appellant.
3. Learned counsel for appellant would vehemently
contend that both the Trial Court as well as First Appellate
Courts have committed an error in giving finding with regard to
the plaintiff Nos.1 to 3 are the legal heirs of deceased Ismail
Sab and also committed an error in coming to the conclusion
that defendant Nos.1 to 3 have no relationship whatsoever
nature in Ismail Sab.
4. The counsel for appellant also contend that the
appellant is in possession of the property more than 12 years
and they are perfected the title by adverse possession and also
counsel submits that this Court has to frame substantive
question of law since both the Trial Court as well as the
Appellate Court has misdirected itself in appreciating the
substantive question of law and onus is placed on the appellant,
without enquiring into that onus is on the respondents and it
requires interference, hence frame the substantive question of
law.
5. Having heard the learned counsel for appellant
and also on perusal of materials on record, the
plaintiffs/respondents have filed the suit seeking the relief of
declaration that they are the wife and children of Ismail Sab
and also contended that plaintiff No.1 is legally wedded wife
and plaintiff Nos.2 and 3 are the children of the deceased
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RSA No. 1844 of 2017
M.H.Ismail Sab. There is no blood relation between the
defendant Nos.1 to 3 and the deceased M.H.Ismail Sab and
also sought for the relief that the gift deed executed by
defendant Nos.1 to 3 in favour defendant No.5 to an extent of
30 guntas of land in the plaint schedule property and alleged
sale of 3 acres of land in the plaint schedule property on
23.01.2001 to the defendant No.4 by the defendant Nos.1 to 3
are not binding on their right, title or interest over the plaint
schedule property. Having considered the material on record,
Trial Court has answered the Issue Nos.1 to 3 in the
affirmative, Issue No.4 and Additional Issue No.1 in the
Negative in coming to the conclusion that plaintiff Nos.1 to 3
are the wife and children of the said M.H.Ismail Sab and no
relationship between the defendant Nos.1 to 3 and Ismail Sab
and comes to the conclusion that defendant Nos.1 to 3 are not
having any right either to gift or to execute the sale deed and
also comes to the conclusion that the suit is barred by law of
limitation. Hence, the Trial Court has decreed the suit.
6. Being aggrieved the order of the Trial Court, the
defendants have challenged the same before the appellate
Court in R.A No.10001/2017 and the First Appellate Court on
re-appreciation of both oral and documentary evidence and on
the grounds urged in the appeal memo by the counsel for
appellants has formulated the following points for
consideration-
1) Whether there is any error framing of
issues?
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RSA No. 1844 of 2017
2) Whether Trial Court committed error in
holding that plaint schedule property was granted
to M.H.Ismail predecessor?
3) Whether the Trial Court committed any
error in holding that defendants had no right to
alienate suit schedule property in favour of
defendant Nos.4 and 5?
4) Whether the Trial Court justified in
decreeing the suit?
5) Whether the appellant has made out any
grounds for this Court to interfere with the
impugned Judgment and Decree passed by the Trial
Court?
7. The appellate Court having re-appreciating both
the oral and documentary evidence, answered the point Nos.1
to 3 and 5 in the Negative and point No.4 in the Affirmative by
coming to the conclusion that the Trial Court has not committed
any error in granting the decree.
8. Being aggrieved by the said order of the First
Appellate Court, the counsel appellant has filed the present
R.S.A. The Trial Court as well as the First Appellate Courts have
given the concurrent finding with regard to the relationship
between the parties i.e., plaintiff Nos.1 to 3 and the M.H.Ismail
Sab and also given finding with regard to the fact that
defendant Nos.1 to 3 are nowhere connected to said M.H.Ismail
Sab and on consequent upon the same, both the Courts come
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RSA No. 1844 of 2017
to the conclusion that defendant Nos.1 to 3 are not having any
right to execute either gift or sale deed in favour of defendant
Nos.4 and 5 and when such finding is given, no substantive
question of law arises before this Court and fact finding is very
clear by both the Courts that the plaintiff Nos.1 to 3 are the
wife and children of said M.H.Ismail Sab and also defendant
Nos.1 to 3 were not having any relationship with the said
M.H.Ismail Sab and when such finding is given, I do not find
any substantive question of law as contended by the counsel
appearing for the appellant to invoke Section 100 of Code of
Civil Procedure. This Court by exercising the power under
Section 100 of Code of Civil Procedure can frame substantive
question of law only if the fact finding of the Trial Court as well
as First Appellate Court are ignored the material on record and
no substantive question of law is made out and hence, no
ground is made out to frame substantive question of law.
9. In view of discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RHS
