Karnataka High Court
Smt Jaheeda Begaum vs Sri Abdul Gafoor Baig on 16 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1836/2017 (PAR)
BETWEEN:
SMT. JAHEEDA BEGAUM
W/O ABDUL HANEEF
AGED ABOUT 45 YEARS
R/AT 1ST WARD
BAGEPALLI TOWN-561207
CHIKKABALLAPURA DISTRICT. ... APPELLANT
[BY SMT.SUNANDA SARKAR, ADVOCATE]
AND:
1. SRI ABDUL GAFOOR BAIG
S/O LATE HAMMED BAIG
AGED ABOUT 58 YEARS
AGRICULTURIST
R/AT NEAR ZAMIYA MAZEED
BAJANE MANE ROAD,
BAGEPALLI TOWN-561207
2. SRI YASEEN BAIG
S/O LATE HAMMED BAIG
AGED ABOUT 51 YEARS
R/AT NEAR H.M.S. ROAD
LINE BAJANE MANE ROAD,
BAGEPALLI TOWN-561207
2
3. SMT. SAJEEDA BAIGUM
SINCE DEAD BY LRs
3(a) SRI FAYAZ ALI BAI
S/O SAJEEDA BEIGUM
AGED ABOUT 36 YEARS,
3(b) SMT. TAHEERA BEGUM
W/O INTHIYAZ ALI BAIG
AGED ABOUT 33 YEARS
3(c) MASTER YOUSUF BAIG
S/O INTHIYAZ BAIG
AGED ABOUT 9 YEARS
3(d) MASTER YOUNUES BAIG
S/O INTHIYAZ BAIG
AGED ABOUT 4 YEARS
SINCE THE RESPONDENT NOS.5 AND 6
ARE MINOR, REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER
RESPONDENT NO.4.
ALL ARE R/AT NALA ROAD
SHIVAJI NAGAR
BENGALURU-560 051
4. SMT. FAHAMEED BAIGUM
W/O LATE ABDUL GAFOOR
AGED ABOUT 49 YEARS
R/AT 170/6, NEW 97, 25TH MAIN,
MARISWAMY LAYOUT, AGRA
BENGALURU-560102
5. SMT. ABEEDA BAIGUM
W/O ABDUL REHAMAN
AGED ABOUT 45 YEARS
3
R/AT 170/6, NEW 97, 25TH MAIN,
MARISWAMY LAYOUT, AGRA
BENGALURU-560102
6. SMT. SHAHEENA BAIGUM
SINCE DEAD BY LRS
6(a) SRI B.SADIQ ALI
S/O SHAHEEDA BEIGUM
AGED ABOUT 24 YEARS
6(b) SRI B.NAWAZ
S/O SHAHEEDA BEIGUM
AGED ABOUT 23 YEARS
6(c) SRI B. SHABEER
S/O SHAHEEDA BEIGUM
AGED ABOUT 22 YEARS
THE RESPONDENTS NO.6(a) TO 6(d) ARE
R/AT: BEHIND GOVERNMENT HOSPITAL
TADAPARTHI
ANDRA PRADESH-515411
6(d) SMT. NAZIYA SULTHANA
S/O SHAHEED BEIGUM
AGED ABOUT 27 YEARS
R/AT HINDUPUR TOWN
ANDRAPRADESH-515201
7. SMT. RAHEEDA BAIGUM
W/O FAIYAZULLA KHAN
AGED ABPIT 38 UEARS
R/AT MODERN COLONY
HINDUPURA TOWN
ANANTHAPUR DISTRICT
ANDHRA PRADESH-515201
4
8. SRI P H RAMACHANDRAPPA
S/O PATEL HANUMANTHEGOWDA
AGED ABOUT 58 YEARS
AGRICULTURIST
R/AT PARAMANAHALLI VILLAGE,
JADIGENAHALLI HOBLI
HOSAKOTE TALUK
BENGALURU-562114
9. SRI P H YASHODAMMA
D/O PATEL HANUMANTHE GOWDA
AGED ABOUT 48 YEARS
HOUSE WIFE
R/AT PARAMANAHALLI VILLAGE
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK
BENGALURU-562114
... RESPONDENTS
[BY SRI N.RAMAKRISHNA, ADVOCATE FOR
SRI RAGHAVENDRA N., ADVOCATE FOR
CAVEATOR R9 & R9]
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.06.2017
PASSED IN R.A.NO.157/2014 ON THE FILE OF THE II ADDL.
SENIOR CIVIL JUDGE AND JMFC, CHICKBALLAPUR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 5.7.2014 PASSED IN OS NO.165/2011 ON THE FILE OF
THE CIVIL JUDGE AND JMFC, BAGEPALLI AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the parties.
2. This appeal is filed challenging the judgment and
decree dated 12.06.2017 passed in R.A.No.157/2014 on the file
of the II Additional Senior Civil Judge and JMFC, Chickballapur.
3. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of partition and separate
possession that suit schedule property is enjoyed by the plaintiff
and defendant Nos.1 to 7 as tenants in common and in
pursuance of the suit claim, notice was ordered against the
defendants and the defendants appeared through their counsel
and filed the written statement particularly defendant Nos.8 and
9 contended that defendant No.8 has purchased the suit
schedule property vide registered sale deed dated 13.01.1983
and transferred his right in favour of defendant No.9 in the year
2002 and thereafter, defendant No.9 is the absolute owner of
the suit schedule property. The Trial Court after considering
both the oral and documentary evidence dismissed the suit in
coming to the conclusion that the plaintiff is not entitled for any
relief of partition since the property was already sold by the
father in favour of defendant No.8 during his lifetime along with
other defendants hence, an appeal was filed in R.A.No.157/2014
by the plaintiff. The First Appellate Court on re-appreciation of
both oral and documentary evidence, formulated the point that
whether the plaintiff has established that sale deed date
12.01.1983 executed by Abdul Hameed Baig in favour of
defendant No.8 is created and fabricated and same is void
document and whether the Trial Court has committed an error in
dismissing the suit and the First Appellate Court answered point
No.1 as negative in coming to the conclusion that the contention
of the plaintiff/appellant cannot be accepted on the ground that
the father of the plaintiff/appellant had sold the suit schedule
property during his life and dismissed the appeal and confirmed
the judgment of the Trial Court. Hence, the present appeal is
filed.
4. The main contention of the counsel appearing for the
appellant that both the Courts have failed to appreciate the
contention of the plaintiff as well as defendant Nos.1 to 7 that
sale deed dated 13.01.1983 is created by defendant No.8 who in
turn sold the same in favour of defendant No.9 with malafide
intention and substantive question of law raised by the appellant
counsel that the Courts below are not justified in dismissing the
suit of the plaintiff and also committed an error that there was a
delay in filing the suit and suit is also barred by limitation.
5. The very contention of the appellant counsel that the
Trial Court has committed an error in dismissing the suit and the
First Appellate Court also not considered the material on record
and committed an error in confirming the judgment of the Trial
Court. The counsel also vehemently contend that the document
is created by defendant No.8 in the year 1983 and the same has
not been considered by both the Courts hence, it requires
interference. The counsel for the caveator/respondent No.8 also
submits that when the property was sold in the year 1983, this
appellant was aged about 11 years and immediately after
attaining majority also, she has not questioned the same and
apart from that the father of the plaintiff and defendant Nos.1 to
7 have sold the property under Mohammedan Law under which
the children won't get any right when their father was alive and
they get right only after the death of their father. Hence, to
frame substantive question of law does not arise.
6. Having heard the respective counsel appearing for
the parties and also on perusal of the material on record, it is
not in dispute that the parties are found under Mohammedan
Law and it is also not in dispute that father had sold the property
along with other children in favour of defendant No.8 on
13.01.1983 and this suit was filed in the year 2011 i.e., almost
after 28 years and though it is contended by the plaintiff that the
said sale deed is created document, in order to substantiate the
said contention, not placed any material and defendant Nos.1 to
7 have also not filed any written statement denying the
contention of the plaintiff. But the fact that defendant Nos.1 to 7
are also parties to the sale deed and they have not denied the
signature by contesting the matter and having taken note of the
very contention of the plaintiff in the plaint that the plaintiff and
the defendant Nos.1 to 7 are enjoying the suit schedule property
as tenants in common but the fact that after the property was
sold in favour of defendant No.8, all the properties stand in the
name of defendant No.8 thereafter the property was transferred
in favour of defendant No.9. It is not in dispute that the
property was sold by the father of the plaintiff along with
defendant Nos.1 to 7 during his lifetime in favour of defendant
No.8 and under the Mohammedan Law, the children are not
having any right to question the sale deed executed by the
father during his lifetime and only the contention of the plaintiff
that the said sale deed was created one and in order prove the
same, nothing was placed on record. Hence, the Trial Court
taking note of the documents produced before the Court, rightly
comes to the conclusion that the plaintiff is not entitled for
decree since under the Mohammedan Law, the children are not
having any right to question the sale deed executed by the
father during his lifetime and dismissed the suit of the plaintiff
and the First Appellate Court also on re-appreciating the
evidence available on record, dismissed the appeal filed by the
appellant/plaintiff and confirmed the judgment of the Trial Court.
Thus, I do not find any grounds to admit the second appeal and
to frame the substantive question of law invoking Section 100 of
CPC.
7. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
