Karnataka High Court
Mohd. Mustafa vs Abdul Samad And Ors on 5 February, 2024
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RSA No. 200433 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200433 OF 2019 (DEC)
BETWEEN:
MOHD. MUSTAFA
S/O MOHD. KHASIM,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O CHIMANCHUR,
TQ:CHINCHOLI AND MUSTARI,
TQ:HUMANABAD-585330.
...APPELLANT
(BY SRI. NITESH PADIYAL, ADVOCATE)
AND:
1. ABDUL SAMAD
S/O MOHD. KHASIM,
Digitally
signed by
AGE: 52 YEARS, OCC: AGRICULTURE,
SACHIN R/O CHIMANCHOD, TQ:HUMNABAD-585330.
Location:
HIGH
COURT OF
KARNATAKA 2. MAHMOODA BEE S/O ABDUL LATIF
D/O KHASIMSAB,
AGE: 68 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD,
R/O CHIMANCHOD, TQ:HUMNABAD-585330.
MOHD. ABDUL SATTAR
S/O ABDUL JABBAR,
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O MUSTURI, TQ:HUMNABAD.
DIED BY HIS LRS
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RSA No. 200433 of 2019
3. JAHAN AARA INAYAT BEGUM,
W/O MOHD. ABDUL SATTAR SAHED,
AGE: 78 YEARS, OCC: AGRI.
4 ABDUL JABAR
S/O ABDUL SATAR,
AGE: 50 YEARS, OCC: AGRI.
5. EHASAN MIYAN
S/O ABDUL SATAR,
AGE: 50 YEARS, OCC: AGRI.
6. JAFFAR SADIQ
S/O ABDUL SATAR,
AGE: 48 YEARS, OCC: AGRI.
7. NOOR MOHAMMAD
S/O ABDUL SATAR,
AGE: 40 YEARS,
OCC: AGRI.
8. ATIYA BEGUM
D/O ABDUL SATAR,
W/O IQBAL AHMED,
AGE: 54 YEARS,
OCC: HOUSEHOLD.
9. SABIHA SULTHANA
D/O ABDUL SATAR,
W/O MOHD. MUSTAFA,
AGE: 52 YEARS,
OCC: AGRI.
10. QAMAR SULTHANA
D/O ABDUL SATAR
W/O BASHER MIYAN,
AGE: 43 YEARS,
OCC:HOUSEHOLD.
11. HAJARA BEGUM
D/O ABDUL SATAR
W/O BABA JANI,
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RSA No. 200433 of 2019
AGE: 41 YEARS,
OCC: HOUSEHOLD.
12. FATHIMA BEGUM
D/O ABDUL SATAR
W/O SARAJ PATEL,
AGE: 34 YEARS,
OCC: HOUSEHOLD.
13. FAISAL S/O SHAKEEL MIYAN,
(GRAND SON OF ABDUL SATTARSAB),
AGE: 25 YEARS,
OCC:AGRI.
14. ASMA D/O SHAKEEL MIYAN,
(GRAND DAUGHTER OF ABDUL SATTAR SAHEB),
AGE: 21 YEARS, OCC:HOUSEHOLD,
ALL ARE R/O MUSTARI,
TQ:HUMNABAD-585330.
15. AHMED MOHINUDDIN S/O ABDUL JABBAR,
AGE: 52 YEARS, OCC: AGRI,
R/O MUSTARI TQ:HUMNABAD-585330.
16. SHANKAR S/O KOMLA,
AGE: 35 YEARS OCC: AGRI,
R/O CHIMANCHUD TQ:CHINCHOLI,
DIST: KALABURAGI-585101.
17. GOVIND S/O KOMLA,
AGE: 30 YEARS, OCC: AGRI,
R/O CHIMANCHUD, TQ:CHINCHOLI,
DIST: KALABURAGI-585101.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL THEREBY SETTING ASIDE
THE JUDGMENT AND DECREE PASSED BY THE II ADDL. DIST.
AND SESSIONS JUDGE BIDAR, SITTING AT HUMNABAD, IN
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RSA No. 200433 of 2019
R.A.NO.29/2017, DATED 21.09.2019, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE PASSED BY
SENIOR CIVIL JUDGE AND JMFC, HUMNABAD, IN O.S.NO.
17/2011 DATED 31.01.2017 AND DECREE THE SUIT IN O.S
NO.17/2011.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the plaintiff/appellant
challenging the judgment and decree dated 21.09.2019
passed in RA.No.29 of 2017 on the file of the II
Additional District and Sessions, Judge, Bidar, Sitting at
Humnabad, dismissing the appeal and confirming the
judgment and decree dated 31.01.2017 passed in
OS.No.17 of 2011 on the Court of Senior Civil Judge and
JMFC, Humnabad, dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
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3. The plaint averments are that, the plaintiff and
defendant No.1 are brothers and children of one
Mohammed Khasim and defendant No.2 is their real
sister. The suit schedule property was originally
belonged to mother of the plaintiff, defendant Nos. 1
and 3, namely, Mahaboobee, wife of Mohammed Kasim
Sab, who had given oral gift to the extent of 01 acre, 29
guntas in Sy.No.207/3B, of Chimanchod village Chincholi
Taluk. It is the case of the plaintiff that, the plaintiff is
the absolute owner in possession of the land in question
and as such, filed OS No.17 of 2011 before the Trial
Court seeking, relief of declaration with consequential
relief of possession.
4. After service of summons, defendants filed written
statement denying the plaint averments. It is the case
of the defendant Nos.1 and 2 that, the defendant No.1 is
the owner of 5 acres, 11 gutnas out of 8 acres in
Sy.No.207/3b, as gifted by his mother-Mahaboobbee,
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and to an extent of 3 acres, 15 guntas, in favour of
defendant Nos.2 by way of Mehar and accordingly,
sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court
has formulated issues for its consideration.
6. In order to establish their case, plaintiff examined
four witnesses as PW1 and PW4 and got marked 23
documents as Exs.P1 to P23. On the other hand,
defendant examined four witnesses as DW1 to DW4 and
produced 20 documents as Exs.D1 to D20.
7. The trial Court, after considering the material on
record, by its judgment and decree dated 31.01.2017
dismissed the suit of the plaintiff and being aggrieved by
the same, the plaintiff has preferred Regular Appeal in
RA.No.29 of 2017 on the file of First Appellate Court and
the said appeal was resisted by the defendants. The
First Appellate Court, after re-appreciating the facts on
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record, by its judgment and decree dated 21.09.2019
dismissed the appeal and confirmed the judgment and
decree passed by the trial Court in OS.No.17 of 2011.
Being aggrieved same, the appellant/plaintiff has
preferred this Regular Second Appeal under Section 100
of CPC.
8. Heard the Sri Nitesh Padiyal, learned counsel
appearing for the appellant and perused the material on
record.
9. Sri Nitesh Padiyal, learned counsel for the appellant
submits that both the Courts below have not properly
appreciated the material on record and the he further
submitted that, the both the Courts below have not
properly appreciated the endorsement issued by the
Taluk Surveyor, Chincholi, and there is no phodi in
respect of the land in question and accordingly, he
sought for interference of this court.
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10. Having heard the learned counsel appearing for the
appellant, the core question to be answered in this
appeal is with regard to claim made by the plaintiff
insofar as declaratory relief is concerned. It is the case
of the plaintiff that, the plaintiff is the owner of the land
bearing Sy.No. 207/3b measuring to an extent of 01
acre, 25 gutnas of Chimanchod village, Chincholi Taluk.
On careful examination of the material on record would
indicate that, the total extent of the land bearing
Sy.No.207 is to an extent of 8 acres, in which, the
mother of the plaintiff and defendant Nos.1 and 2 has
made oral gift in favour of the defendant. Nos. 1 and 2.
Taking into consideration the fact that, the plaintiff has
already filed suit in OS No.86 of 2004, in respect of the
subject land which came to be dismissed and thereafter,
the plaintiff has preferred RA No.5 of 2007 which also
came to be dismissed, however, the matter was
remanded to the Trial Court for considering the oral gift
made in favour of the defendant No.2, and further,
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taking into consideration the finding recorded by the
Trial Court at paragraph No.22 of the judgment and
decree would makes it clear that, the plaintiff has failed
to produce the documents to establish the fact that, the
oral gift made by his mother in favour of the defendant
No.2 is contrary to the succession rule provided under
Mohammedan law. In that view of the matter, the Trial
Court was justified in dismissing the suit and same was
confirmed by the First Appellate Court after re-
appreciating the material on record as per Order XLI
Rule 31 of CPC. It is also to be noted that, the plaintiff
places his right over the suit schedule property on the
revenue document and same cannot confer any title to
the property in question. In that view of the matter,
finding recorded by the First Appellate Court at
paragraph No.18 is just and proper and therefore, I do
not find material irregularity or perversity in the
judgments and decree passed by the Courts below and
accordingly, the Regular Second Appeal is liable to be
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dismissed. Since, the plaintiff/appellant has not made
out ground for formulation of substantial question of law
as required under Section 100 of Code of Civil
Procedure, the Regular Second Appeal is dismissed at
the Admission stage itself.
Sd/-
JUDGE
SB
