Raheem Unissa vs G A Anwar Pasha
2023 Latest Caselaw 332 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

               R.S.A.NO.864/2022 (DEC/PAR)

BETWEEN:

RAHEEM UNISSA,
SINCE DEAD BY LRS.

1.   RABIYA PARVEEN,
     W/O MOHAMMED WASEEM,
     AGED ABOUT 38 YEARS.

2.   FAREEDA BANU,
     W/O KAHDER AHAMED,
     AGED ABOUT 35 YEARS.

     BOTH ARE R/AT GORUR VILLAGE,
     KATTAYA HOBLI,
     HASSAN TALUK AND DIST-573201.

3.   JAMILABAI,
     W/O AMEER JAN,
     AGED ABOUT 66 YEARS,
     R/O BOMMANHALLI VILLAGE,
     MADINA NAGAR, BILAL MASJID ROAD,
     BANGALORE-560 068.

4.   HASSINA,
     W/O MOHAMMED AIZAZ,
     R/AT 1 'B' ROAD,
     GANGA NAGAR STREET,
     ARAKALGUD, HASSAN-573 201.

5.   ZARINA BANU,
     W/O RASHIKD KHAN,
     AGED ABOUT 53 YEARS,
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       R/AT KATTALI VILLAGE,
       MEGANAN HALLI POST,
       HOLENARASIPUR TALUK,
       HASSAN DISTRICT-573 201.

6.     MAJAMBI,
       SINCE DEAD REP BY
       PLAINTIFF NOS.1 TO 4 AND
       DEFENDANT NOS.1 AND 2.
                                             ...APPELLANTS

       (BY SRI MOHAMED KHALEELULLA SHARIFF, ADVOCATE)

AND:

G.A. ANWAR PASHA,
SINCE DEAD BY LRS.

1.     HAFEEZA BANU,
       W/O LATE ANWAR PASHA,
       AGED ABOUT 62 YEARS.

2.     THAHASINA BANU,
       W/O SIRAJ,
       AGED ABOUT 42 YEARS,
       D/O LATE ANWAR PASHA KHAN,
       R/AT NEAR YASLUR POLICE STATION,
       SHANIVARA SANTHE HOBLI,
       KODAGU DIST-571 201.

3.     YASMIN BANU,
       W/O NASIR AHAMED,
       AGED ABOUT 40 YEARS,
       D/O LATE ANWAR PASHA KHAN,
       R/AT GUILANA HALLI VILLAGE,
       HASSAN TALUK AND DIST-573 201.

4.     NAJININ BANU,
       W/O AKRAM PASHA,
       D/O ANWAR PASHA KHAN,
       AGED ABOUT 39 YEARS,
       R/AT NEAR NAVE THODI SATHIYA MASJID
       NEAR PURIBHATTI,
       HASSAN-573201.
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5.    MOSEENA BANU,
      W/O BALFATH,
      AGED ABOUT 39 YEARS,
      D/O LATE ANWAR PASHA KHAN,
      R/AT MANALWADI NEAR HALLI MYSORE,
      HOLLENARASIPURA TALUK AND DIST-570 601.

6.    FAZLULLA KHAN,
      S/O LATE ANWER PASH KHAN,
      AGED ABOUT 36 YEARS,
      R/AT GORUR VILLAGE,
      KATTAYA HOBLI,
      HASSAN TALUK AND DIST-573 201.

7.    INNAYATHULLA KHAN,
      S/O LATE ANWER PASHA KHAN,
      AGED ABOUT 35 YEARS,
      R/AT GORUR VILLAGE,
      KATTAYA HOBLI,
      HASSAN TALUK AND DIST-573 201.

8.    NAZREAN BANU,
      W/O MUNNA,
      AGED ABOUT 33 YEARS,
      D/O LATE ANWER PASH KHAN,
      R/AT GORUR VILLAGE,
      KATTAYA HOBLI,
      HASSAN TALUK AND DIST- 573 201.

9.    NOORULLA KHAN,
      S/O LATE ABDUL AZIZ KHAN,
      AGED ABOUT 71 YEARS,
      R/AT MAHABOOBIAYA RICE MILL,
      ESHWAR TEMPLE STREET,
      GORUR VILLAGE,
      HASSAN TALUK AND DIST-573 201.

10.   ASHA,
      W/O JAGANNATH,
      AGED ABOUT 55 YEARS,
      R/AT GORUR VILLAGE,
      BRAHMIN STREET,
      KATTAYA HOBLI,
      HASSAN TALUK-573 201.               ...RESPONDENTS
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     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 08.03.2022 PASSED IN
RA.NO.547/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT
JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 02.11.2015 PASSED IN OS NO.
95/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE
AND JMFC, HASSAN.

    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellants.

2. This appeal is filed challenging the judgment and

decree dated 08.03.2022 passed in R.A.No.547/2015, on the file

of the III Additional District and Sessions Judge, Hassan.

3. The factual matrix of the case of the

plaintiffs/appellants before the Trial Court is that plaintiff Nos.1

to 4 have got 1/4th share and plaintiff No.5 has got 1/8th share in

the suit schedule properties. It is contended that the defendants

have sold certain suit schedule properties and the sale

transactions are not binding upon them and sought for partition

and separate possession. In pursuance of the suit summons

issued by the Trial Court, defendant Nos.1 and 2 appeared and

contended that already partition was effected during the lifetime

of the father and defendant Nos.1 and 2 have sold the portion of

the property in favour of defendant No.3 and the defendants are

in exclusive possession and enjoyment of their shares in the suit

schedule properties and other family properties and the suit is

barred by limitation. The plaintiffs in order to prove their case

examined one witness as P.W.1 and got marked the documents

at Exs.P.1 to 10. On the other hand, the defendants examined

four witnesses as D.W.1 to D.W.4 and got marked the

documents at Exs.D.1 to 10. The Trial Court after considering

both oral and documentary evidence placed on record, dismissed

the suit in coming to the conclusion that already there was a

partition between the parties in the year 1963 and the same has

not been challenged and the plaintiffs had knowledge about the

said partition and the sale made by defendant Nos.1 and 2 in

favour of defendant No.3 and the suit is barred by limitation and

ought to have challenged the same within three years and the

same has not been challenged.

4. Being aggrieved by the judgment and decree of the

Trial Court, the plaintiffs filed an appeal before the First

Appellate Court and the First Appellate Court on re-appreciation

of the material available on record and considering the evidence

of P.W.1 and D.W.1 to D.W.4, comes to the conclusion that the

Trial Court has considered the material available on record and

the defendants have substantiated their contention that already

there was a partition in the year 1963 itself and the same is

admitted by the plaintiffs during the course of cross-

examination. It is also admitted with regard to the sale made by

defendant Nos.1 and 2 in favour of defendant No.3 and hence

dismissed the appeal. Hence, the present appeal is filed by the

plaintiffs challenging the concurrent finding of the Trial Court and

the First Appellate Court.

5. The main contention of the learned counsel for the

appellants is that the Trial Court committed an error in not

considering the Mohammedan Law of Inheritance and not

properly applied the same and unregistered partition is also a

ground for family partition of the properties and the same has

not been considered. The Trial Court committed an error in

accepting the evidence of the defendants and committed an

error and the finding given by the Trial Court as well as First

Appellate Court is perverse and hence it requires interference of

this Court and hence this Court has to admit the appeal and

frame the substantial question of law.

6. Having heard the learned counsel for the appellants

and also on perusal of the material available on record, the very

claim of the plaintiffs before the Trial Court is that they are

having the right in respect of the suit schedule properties. It is

also the contention of the defendants before the Trial Court that

already there was a partition in the year 1963 during the lifetime

of the father and they have been in possession of the suit

schedule properties in terms of the partition and defendant

Nos.1 and 2 have sold the property in favour of defendant No.3

and defendant No.3 is the bonafide purchaser of the property.

The Trial Court considered the evidence of P.W.1 and D.W.1 to

D.W.4 and the documents at Exs.P.1 to 10 and Exs.D.1 to 10

and taken note of Ex.P.3 to 7 five RTCs, three M.R. extracts at

Exs.P.8 to 10 and certified copy of the RTCs i.e., Exs.D.1 to 3

and also mutation register of the year 1982-83 Ex.D.4 which

corroborates that there was a partition among the family

members during the lifetime of the father and the certified copy

of the sale deed dated 15.11.1976 executed by Aziz Khan and

Mehaboob Khan in favour of Lakshmamma in terms of Ex.D.9.

Both the Courts have taken note of oral evidence available on

record and in the cross-examination of P.W.1, she categorically

admitted that there was a partition during the lifetime of the

father and also admitted that defendant Nos.1 and 2 have sold

the property in favour of defendant No.3, 16 to 18 years ago and

the same was not challenged by the plaintiffs and filed the suit in

the year 2009. There was an admission on the part of P.W.1

that when there was a hissa patra dated 22.03.1963 between

the father and also children, who are parties to the said

documents and the parties have acted upon in terms of the

partition taken place during the lifetime of the father and all

these material are considered by the Trial Court and the First

Appellate Court. When such being the material available on

record and when there is a clear admission on the part of the

P.W.1 regarding partition as well as parties have acted upon, the

question of granting share in respect of suit schedule property in

favour of the appellants does not arise. I do not find any error

committed by the Trial Court and the First Appellate Court in

confirming the judgment of the Trial Court and this Court can

invoke the jurisdiction of Section 100 of CPC to frame the

substantial question of law when there is a perverse finding

ignoring the evidence of the parties and hence I do not find any

ground to frame the substantial question of law and not found

any perversity and hence in the absence of any substantial

question of law, the question of invoking Section 100 of CPC

does not arise.

7. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD