Karnataka High Court
Dawar Ali S/O Basheeruddin Died By Lrs ... vs Ramesh And Ors on 21 February, 2024
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RSA No. 200108 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200108 OF 2018 (DEC)
BETWEEN:
DAWAR ALI S/O BASHEERUDDIN
DIED BY LRS
BASHEERA BEGUM
W/O LATE DAWAR ALI
DIED BY LRS
1. MAQSOOD ALI
S/O LATE DAWAR ALI,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
Digitally
signed by 2. RAHMAT ALI S/O BASEERUDDIN
LUCYGRACE
Location:
DEAD BY LRS
HIGH
COURT OF
KARNATAKA 2A) ZAIBUNNISA BEGUM
W/O RAHMAT ALI,
AGED ABOUT 65 YEARS,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
2B) SHAIK AHMED ALI
S/O RAHMAT ALI,
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
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RSA No. 200108 of 2018
2C) SHAIK MOHD ALI
S/O RAHMAT ALI,
AGED ABOUT 44 YEARS,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
2D) SABER ALI
S/O RAHMAT ALI,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
2E) HABEEBUNNISA
D/O RAHMAT ALI,
AGED ABOUT 42 YEARS,
OCC: HOUSEHOLD,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
3. FASIL ALI
S/O MOHD. BASEERUDDIN,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
4. MOHD. IBRAHIM
S/O MOHD. BASEERUDDIN,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR.
...APPELLANTS
(BY SRI. SANJEEVKUMAR C. PATIL, ADVOCATE)
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RSA No. 200108 of 2018
AND:
1. RAMESH S/O GUNDAPPA,
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR-585 401.
2. HANAMANTH S/O GUNDAPPA,
AGED ABOUT 67 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR-585 401.
3. VEERSHETTY S/O NAGSHETTY,
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR-585 401.
4. SURESH S/O NAGSHETTY,
AGED ABOUT 57 YEARS,
OCC: AGRICULTURE,
R/O CHIDRI,
TQ. AND DIST. BIDAR-585 401.
...RESPONDENTS
(BY SRI. RAVI B. PATIL, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
30.03.2017 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE AT BIDAR IN R.A.NO.43/2012 AND
JUDGMENT AND DECREE DATED 21.04.2012 PASSED BY THE
ADDL. SENIOR CIVIL JUDGE, BIDAR IN O.S.NO.209/2006 AND
DECREE THE SUIT OF THE PLAINTIFFS BY ALLOWING THE
APPEAL.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200108 of 2018
JUDGMENT
This appeal is preferred by the plaintiffs/appellants,
challenging the judgment and decree dated 30.03.2017 in
R.A. No.43/2012 on the file of Additional District and
Sessions Judge at Bidar (for short 'First Appellate Court'),
confirming the judgment and decree dated 21.04.2012 in
O.S. No.209/2006 on the file of Additional Senior Civil
Judge, Bidar (for short 'Trial Court'), dismissing the suit of
the plaintiffs.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiffs that, plaintiffs are
the brothers and their grandfather Shaik Maheboob Sab
and Ibrahim Sab are the children of Multani Sab. It is
stated that, the schedule properties are belong to their
grandfather Shaik Maheboob Sab and Ibrahim Sab. The
Ibrahim Sab died leaving behind two wives namely,
Ghasibee and Multanibee and in their wedlock, no issues
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born. It is also stated that, the wives of Ibrahim Sab
namely, Ghasibee and Multanibee are no more. Hence, it
is the case of the plaintiffs that, they are the owners in
possession of the land bearing Sy.No.263 measuring 28
acres 26 guntas, land bearing Sy.No.266 measuring 25
acres 4 guntas and land bearing Sy.No.267 measuring 25
acres 26 guntas of Chidri village. It is stated in the plaint
that, the defendants are interfering with the schedule
properties and fraudulently got their names entered in the
revenue records. Hence, plaintiffs filed suit in O.S.
No.209/2006 before the Trial Court, seeking relief of
declaration with perpetual injunction.
4. On service of notice, the defendants entered
appearance and filed detailed written statement and took
up a specific contention that, the defendants have
purchased the schedule properties from Ghasibee as per
registered sale deed dated 23.08.1955 and accordingly,
the defendants are in possession of the schedule
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properties in question and as such, sought for dismissal of
the suit.
5. Based on the rival pleadings, the Trial Court
framed the issues for its consideration.
6. In order to substantiate their case, plaintiffs
have examined three witnesses as PW.1 to PW.3 and got
marked 55 documents as Exs.P1 to P55. On the other
hand, defendants have examined two witnesses as DW.1
and DW.2 and got marked 33 documents as Exs.D1 to
D33.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 21.04.2012,
dismissed the suit of the plaintiffs. Feeling aggrieved by
the same, the plaintiffs have filed R.A. No.43/2012 before
the First Appellate Court and the appeal was resisted by
the defendants.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
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30.03.2017, dismissed the appeal and as such, confirmed
the judgment and decree passed by the Trial Court.
Feeling aggrieved by the same, the plaintiffs have filed this
Regular Second Appeal.
9. This Court, by order dated 30.03.2023,
formulated the following substantial questions of law for
consideration:
"1. Whether the Courts below are justified in
denying the claim of the plaintiff in respect of
the properties which were left after the sale
deeds executed by the deceased Ghasibee?
2. Whether the Courts below are holding that
the suit is barred by limitation though there
was no such issue?"
10. I have heard Sri Sanjeev Kumar C. Patil,
learned counsel appearing for the appellants and Sri Ravi
B. Patil, learned counsel appearing for the respondents.
11. Sri Sanjeev Kumar C. Patil, learned counsel
appearing for the appellants contended that, the schedule
properties are belong to the great grandfather of the
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appellants - Multani Sab and after his death, properties
were devolved to his children - Shaik Maheboob Sab and
Ibrahim Sab. Shaik Maheboob Sab is the grandfather of
the plaintiffs. Ibrahim Sab died issueless and therefore,
the plaintiffs are entitled for share in the property, as the
wives of Ibrahim Sab are entitled for 1/4th share together
and accordingly submitted that, both the Courts below
have not considered the same and as such, sought for
interference of this Court.
12. Per contra, Sri Ravi B. Patil, learned counsel
appearing for the respondents sought to justify the
impugned judgment and decree passed by the Courts
below and argued that, Ghasibee had sold the schedule
properties in favour of the defendants as per registered
sale deed dated 23.08.1955 and after five decades, the
plaintiffs are seeking declaratory relief, which is
impermissible in law and accordingly, sought for dismissal
of the appeal.
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13. Having heard the learned counsel appearing for
the parties, in order to understand the relationship
between the parties, it is expedient to extract the
genealogical tree, which is as under:
MULTANI SAB(died)
Shaik Maheboob (died) Ibrahim Sab @ Mirzasab(died)
Basiruddin (died) Ghasibee Multanibee
(wife) (wife)
Dawar Rahmat Fasil Md.Ibrahim
Ali Ali Ali
(P-1) (P-2) (P-3) (P-4)
14. Perusal of the same would indicate that, the
schedule properties namely, Sy.No.263, Sy.No.266 and
Sy.No.267 are sold by Ghasibee in favour of the
defendants as per registered sale deed dated 23.08.1955
(Ex.P54). Perusal of the sale deed demonstrates that, the
defendants have purchased land bearing Sy.No.263/2 to
an extent of 5 acres 26 guntas, land bearing Sy.No.266/2
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to an extent of 11 acres 16 guntas and land bearing
Sy.No.267 to an extent of 9 acres 14 guntas. It is to be
noted that, portion of the land has been acquired by the
Government for the benefit of the Air Force and
compensation has been received by the defendants.
Though the contention has been raised by the learned
counsel appearing for the appellants that, the wives of
Ibrahim Sab namely, Ghasibee and Multanbee are entitled
for 1/4th share together, the said submission cannot be
accepted on the ground that, Ibrahim Sab died leaving
behind these two wives and no children. In that view of
the matter, the wives of deceased Ibrahim Sab alone
entitle for share in the schedule property and that apart,
as the entire extent of land in Sy.No.263, Sy.No.266 and
Sy.No.267 has been sold by Ghasibee in favour of the
defendants as per registered sale deed dated 23.08.1955
and the challenge has been made after five decades, the
findings recorded by both the Courts below are just and
proper and no interference is called for in this appeal. It is
also to be noted that, suit is barred by limitation. Hence,
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the substantial questions of law favours the defendants
and there is no perversity in the judgment and decree
passed by the Courts below.
Accordingly, the appeal fails and is dismissed.
Sd/-
JUDGE
LG
