Karnataka High Court
Abdul Rahman S/O Mahaboobsab Since ... vs Sayeeduddin S/O Shaikh Nohiuddin ... on 5 January, 2024
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 05TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7106 OF 2012 (MOR)
C/W
REGULAR SECOND APPEAL NO.7105 OF 2012 (MOR)
IN R.S.A. NO.7106/2012
BETWEEN:
ABDUL REHMAN S/O. MAHABOOBSAB
SINCE DECEASED BY HIS LR's.
RAHIMABEE W/O. ABDUL RAHIMAN,
SINCE DECEASED THROUGH HER LR's.
1. AZIMODDIN S/O. ABDUL RAHEMAN
SINCE DECEASED BY HIS LR's
i.e., APPELLANT No.2, 3, 4(a) to 4(g)
WHO ARE ALREADY ON RECORD.
Digitally signed
by
KHAJAAMEEN L (AMENDED AS PER ORDER DATED 24.03.2022)
MALAGHAN
Location: High 2. SALIMODDIN S/O. ABDUL RAHEMAN
Court of
Karnataka SINCE DECEASED BY HIS LR's.
i.e., APPELLANT No.3(a) TO 3(e) & 4(a) to 4(g)
WHO ARE ALREADY ON RECORD.
3. AZIZUDDIN S/O. ABDUL RAHEMAN
SINCE DECEASED BY HIS LR's.
3(a) TASNEEM BEGUM W/O. AZIZUDDIN,
AGE: 54 YEARS, OCC: HOUSEHOLD,
3(b) ABDUL RAHMAN S/O. AZIZUDDIN
AGE: 27 YEARS, OCC: PRIVATE SERVICE,
3(c) MD. UZMAN S/O AZIZUDDIN
AGE: 22 YEARS, OCC: STUDENT,
3(d) NEHA FATIMA D/O. AZIZUDDIN
AGE: 18 YEARS, OCC: STUDENT,
3(e) MADIHA SULTANA D/O. AZIZUDDIN
AGE: 18 YEARS,
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ALL ARE R/O H.NO.E-5-3665/2,
RING ROAD, HAGARGA ROAD,
RAHMAN COLONY,
NEAR MILAN FUNCTION HALL,
KALABURAGI-585104.
(AMENDED AS PER ORDER DATED 13.02.2023)
4. FAZAL MIYAN S/O. ABDUL RAHEMAN
SINCE DECEASED BY HIS LR's.
4(a) HASEENA BEGUM W/O LATE FAZAL AHMED
AGE: 50 YEARS, OCC: HOUSEHOLD
4(b) MD. MUJAHEED S/O LATE FAZAL AHMED
AGE: 34 YEARS, OCC: BUSINESS
4(c) SHOAIB AHMED S/O LATE FAZAL AHMED
AGE: 31 YEARS, OCC: BUSINESS
4(d) NASEERUDDIN S/O LATE FAZAL AHMED
AGE: 27 YEARS, OCC: BUSINESS
4(e) MD. SOHAIL S/O LATE FAZAL AHMED
AGE: 20 YEARS, OCC: STUDENT
4(f) MD. TOUQID AHMED S/O. LATE FAZAL AHMED
AGE: 18 YEARS, OCC: BUSINESS
4(g) ZOHA TABASSUM D/O LATE FAZAL AHMED
W/O AKHEEL JAFFAR
AGE: 30 YEARS, OCC: HOUSEHOLD
ALL R/O. RAHAMAN COLONY
HAGARGA ROAD, NEAR MILAN FUNCTION HALL
KALABURAGI-585104.
... APPELLANTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. GANESH S. KALBURGI, ADVOCATE)
AND
SAYEEDUDDIN S/O. SHAIKH MOHIUDDIN MANIYAR
SINCE DECEASED BY HIS LR's.
1(a) BILQUIS BEGUM
W/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR, OCC: HOUSEHOLD
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1(b) SHAIK MOHIUDDIN
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR OCC: BUSINESS
1(c) MOHAMMED SAJID ANWAR
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR OCC: BUSINESS
1(d) MD. RAFEEDUDDIN
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR OCC: BUSINESS
1(e) MOHAMMED MUNEERUDDING
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR OCC: BUSINESS
1(f) MOHAMMED MERAJUDDIN
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR OCC: BUSINESS
1(g) MOHD. SIRAJUDDN
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR OCC: BUSINESS
1(h) MOHAMMED AFROZ
D/O. LATE SAYEEDUDDIN MANIYAR
W/O MOHAMMED ILIYAS NOORI
AGE: MAJOR OCC: HOUSEHOLD
1(i) SUMERA FIRDOUSE
D/O LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR OCC: HOUSEHOLD
ALL ARE R/O. 5-992/26/1, SIRAJ HOUSE,
YADULLA COLONY, KALABURAGI-585 104.
(AMENDED AS PER ORDER DATED 15.02.2021)
2. TAQIUDDIN S/O. SHAIKHAMOHIUDDIN MANIYAR
SINCE DECEASED BY HIS LR's.
2(a) SHAMSHAD BEGUM
W/O MOHAMMED TAQIUDDIN MANIYAR,
AGE: 70 YEARS, OCC: HOUSEHOLD
2(b) MOHD. MOINUDDIN
S/O MOHAMMED TAQIUDDIN MANIYAR,
AGE: 52 YEARS, OCC: BUSINESS
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2(c) MOHAMMED MOHIUDDIN
S/O MOHAMMED TAQIUDDIN MANIYAR,
AGE: 51 YEARS, OCC: BUSINESS
2(d) MOHAMMED NAJMUDDIN
S/O MOHAMMED TAQIUDDIN MANIYAR,
AGE: 40 YEARS, OCC: BUSINESS
2(e) ASMA PARVEEN
D/O MOHAMMED TAQIUDDIN MANIYAR,
AGE: 49 YEARS, OCC: HOUSEHOLD
2(f) SALMA PARVEEN
D/O MOHAMMED TAQIUDDIN MANIYAR,
W/O MOHD. SALEEMUDDIN
AGE: 47 YEARS, OCC: HOUSEHOLD
2(g) RESHMA PARVEEN
D/O MOHAMMED TAQIUDDIN MANIYAR,
AGE: 44 YEARS, OCC: HOUSEHOLD
2(h) NAZIMA PARVEEN
D/O MOHAMMED TAQIUDDIN MANIYAR,
AGE: 36 YEARS, OCC: HOUSEHOLD
ALL ARE R/O. AKBER BAGH
NEAR FAIZAL MUBEEN MASJID
RING ROAD, TIPPU SULTAN CHOWK,
KALABURAGI-585104.
(AMENDED AS PER ORDER DATED 24.03.2022)
SHEIKH RAHEEMUDDIN
S/O. SHAIKH MOHIUDDIN MANIYAR
SINCE DECEASED THROUGH LR's ARE R-3 TO R-5
3. BAQAR MOHIUDDIN
S/O. SHAIK RAHEEMUDDIN MANIYAR
SINCE DECEASED BY HIS LR's.
3(A) M.A. RAHEEM S/O. BAQAR MOHIUDDIN
AGE: MAJOR, OCC: NIL
3(B) SEEMA BEGUM D/O BAQAR MOHIUDDIN
AGE: MAJOR, OCC: NIL
3(C) NAZIYA BEGUM D/O BAQAR MOHIUDDIN
AGE: MAJOR, OCC: NIL
3(D) RAZIYA BEGUM W/O BAQAR MOHIUDDIN
AGE: MAJOR, OCC: NIL
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ALL ARE R/O H.NO.6-338, BATLIWALA, MOMINPURA
TQ. AND DIST. KALABURAGI-585102.
(AMENDED AS PER ORDER DATED 30.08.2021)
4. IJAZ MANIYAR
S/O. SHAIK RAHEEMUDDIN MANIYAR
AGE: 47 YEARS, OCC: BUSINESS
5. RASHEEDA BEGUM
W/O. SALAUDDIN MANIYAR
SINCE DECEASED BY HER LR's.
5(A) SALAUDDIN MANIYAR
AGE: MAJOR OCC: NIL
5(B) MOHAMMED MOINUDDIN
S/O. SALAUDDIN MANIYAR
AGE: MAJOR OCC: NIL
5(C) SAYERA BEGUM D/O. SALAUDDIN MANIYAR
AGE: MAJOR OCC: NIL
ALL ARE R/O H.NO. 6-338/A,
BATLIWALA, MOMINPURA,
TQ. AND DIST. KALABURAGI-585102.
(AMENDED AS PER ORDER DATED 30.08.2021)
KHAJABEE W/O. MOHAMMED YAKUB ALI
SINCE DECEASED THROUGH LR'S
ALREADY ON RECORDS AS R-6 TO R-10
HAFIZUDDIN S/O. YAKUB ALI MANIYAR
SINCE DECEASED THROUGH LR's.
ALREADY ON RECORDS AS R-6 TO R-10
6. MAHEBOOBBEE W/O. HAFEEZUDDIN
AGE: 93 YEARS, OCC: HOUSEHOLD
R/O. BANGALORE ROAD, KHAJA COLONY,
BELLARY-583101.
7. KAISAR JAFFERY S/O. HAFIZUDDIN
AGE: 70 YEARS, OCC: HOUSEHOLD
R/O. BANGALORE ROAD, KHAJA COLONY,
BELLARY-583101.
8. MUMTAZ BEGUM D/O HAFIZUDDIN
AGE: 73 YEARS, OCC: HOUSEHOLD
R/O. AMARCHINTA POST,
ATMAKUR DISTRICT, MAHEBOOB NAGAR,
ANDHRA PRADESH STATE.
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MD. IBRAIM S/O. YAKUB ALI MANIYAR
SINCE DECEASED LR's ALREADY ON RECORD.
9. WAHEEDUDDIN S/O. YAKUB ALI MANIYAR
AGE: 73 YEARS, OCC: BUSINESS,
R/O. SOMVARPETH RAICHUR-584101.
10. SAMSUNNISA D/O. YAKUB ALI MANIYAR,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O. SOMVARPETH RAICHUR-584101.
11. QAMARUNNISA W/O. AMJAD HUSSAIN
AGE: 68 YEARS, OCC: HOUSEHOLD
R/O SULTAN BAZAR AREA GOULIGUDA,
HYDERABAD ANDHRA PRADESH.
HAJIRABEE W/O AMEERUDDIN MANIYAR
DIED ISSUELESS.
12. SATTRMIYAN S/O. ABDUL RHIMAN
AGE: 32 YEARS,
R/O. MAKTAMPUR, KALABURAGI.
13. GHOUSIA BEGUM W/O. ABDUL RAHEMAN
AGE: MAJOR,
R/O. MOMINPUR, KALABURAGI-585103.
... RESPONDENTS
(BY SRI PRAMOD N. KATHAVI, SENIOR COUNSEL FOR
SRI N.B. DIWANJI, ADV. FOR R1(A) TO (I), R-2(A) TO (H);
NOTICE TO R-3 (A) TO (D) AND R-5(A) TO (C) ARE HELD
SUFFICIENT, VIDE ORDER DATED 11.03.2022;
APPEAL AGAINST R-4 ABATED, VIDE ORDER DATED 05.07.2019;
SERVICE OF NOTICE TO R-6 TO R-11 ARE HELD SUFFICIENT,
VIDE ORDER DATED 05.07.2019;
SERVICE OF NOTICE TO R-12 AND R-13 ARE HELD SUFFICIENT,
VIDE ORDER DATED 20.08.2019)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO ALLOW
THIS APPEAL AND TO SET ASIDE THE JUDGMENT AND DECREE
DATED 08.11.2011 PASSED IN R.A. NO.239/2006 BY THE LEARNED I
ADDL. CIVIL JUDGE (SR.DN.) AT GULBARGA MODIFYING THE
JUDGMENT AND DECREE DATED 30.09.1999 PASSED IN O.S.
NO.5/1977 BY THE PRINCIPAL CIVIL JUDGE (JR.DN.) AT GULBARGA,
AND TO PASS ANY OTHER APPROPRIATE ORDER, IN THE INTEREST
OF JUSTICE.
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IN R.S.A. NO.7105/2012
BETWEEN:
RAHIMABEE W/O. ABDUL RAHIMAN,
SINCE DECEASED THROUGH LR's.
1. AZIMODDIN S/O. ABDUL RAHEMAN
SINCE DECEASED BY HIS LR's.
i.e., APPELLANT No.2, 3, 4(a) to 4(g)
WHO ARE ALREADY ON RECORD
2. SALIMODDIN S/O. ABDUL RAHEMAN,
SINCE DECEASED BY HIS LR's
i.e., APPELLANT No.3(a) TO 3(e) and 4(a) to 4(g)
WHO ARE ALREADY ON RECORD.
(AMENDED AS PER ORDER DATED 13.02.2023)
3. AZIZUDDIN S/O. ABDUL RAHEMAN
SINCE DECEASED BY HIS LR's.
3(a) TASNEEM BEGUM W/O. AZIZUDDIN,
AGE: 54 YEARS, OCC: HOUSEHOLD,
3(b) ABDUL RAHMAN S/O. AZIZUDDIN
AGE: 27 YEARS, OCC: PRIVATE SERVICE,
3(c) MD. UZMAN S/O AZIZUDDIN
AGE: 22 YEARS, OCC: STUDENT,
3(d) NEHA FATIMA D/O. AZIZUDDIN
AGE: 23 YEARS, OCC: STUDENT,
3(e) MADIHA SULTANA D/O. AZIZUDDIN
AGE: 18 YEARS, OCC: STUDENT,
ALL ARE R/O. H.NO.E-5-3665/2,
RING ROAD, HAGARGA ROAD,
RAHMAN COLONY,
NEAR MILAN FUNCTION HALL,
KALABURAGI-585104.
(AMENDED AS PER ORDER DATED 13.02.2023)
4. FAZAL MIYAN S/O. ABDUL RAHEMAN,
SINCE DECEASED BY HIS LR's.
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4(a) HASEENA BEGUM W/O. LATE FAZAL AHMED,
AGE: 50 YEARS, OCC: HOUSEHOLD.
4(b) MD. MUJAHEED S/O. LATE FAZAL AHMED,
AGE: 34 YEARS, OCC: BUSINESS,
4(c) SHOAIB AHMED S/O. LATE FAZAL AHMED,
AGE: 31 YEARS, OCC: BUSINESS,
4(d) NASEERUDDIN S/O. LATE FAZAL AHMED,
AGE: 27 YEARS, OCC: BUSINESS,
4(e) MD. SOHAIL S/O. LATE FAZAL AHMED,
AGE: 20 YEARS, OCC: STUDENT,
4(f) MD. TOUQID AHMED S/O. LATE FAZAL AHMED,
AGE: 18 YEARS, OCC: STUDENT,
4(g) ZOHA TABASSUM D/O. LATE FAZAL AHMED,
W/O. AKHEEL JAFFAR,
AGE: 30 YEARS, OCC: HOUSEHOLD,
ALL R/O. RAHAMAN COLONY
HAGARGA ROAD, NEAR MILAN FUNCTION HALL,
KALABURAGI-585104.
... APPELLANTS
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
SRI. GANESH S. KALBURGI, ADVOCATE)
AND:
SAYEEDUDDIN S/O. SHAIKH MOHIUDDIN MANIYAR,
SINCE DECEASED BY HIS LR's.
1(a) BILQUIS BEGUM
W/O. LATE SAYEEDUDDIN MANIYAR,
AGE: MAJOR, OCC: HOUSEHOLD,
1(b) SHAIK MOHIUDDIN
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR, OCC: BUSINESS,
1(c) MOHAMMED SAJID ANWAR
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR, OCC: BUSINESS,
1(d) MD. RAFEEDUDDIN
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR, OCC: BUSINESS,
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1(e) MOHAMMED MUNEERUDDIN
S/O. LATE SAYEEDUDDIN MANIYAR,
AGE: MAJOR, OCC: BUSINESS,
1(f) MOHAMMED MERAJUDDIN
S/O. LATE SAYEEDUDDIN MANIYAR,
AGE: MAJOR, OCC: BUSINESS,
1(g) MOHD. SIRAJUDDN
S/O. LATE SAYEEDUDDIN MANIYAR
AGE: MAJOR, OCC: BUSINESS,
1(h) MOHAMMED AFROZ
D/O. LATE SAYEEDUDDIN MANIYAR
W/O. MOHAMMED ILIYAS NOORI,
AGE: MAJOR, OCC: HOUSEHOLD,
1(i) SUMERA FIRDOUSE
D/O. LATE SAYEEDUDDIN MANIYAR,
AGE: MAJOR, OCC: HOUSEHOLD,
ALL ARE R/O. 5-992/26/1,
SIRAJ HOUSE, YADULLA COLONY,
KALABURAGI-585 104.
(AMENDED AS PER ORDER DATED 15.02.2021)
2. TAQIUDDIN S/O. SHAIKH AMOHIUDDIN MANIYAR,
SINCE DECEASED BY HIS LR's
2(a) SHAMSHAD BEGUM
W/O. MOHAMMED TAQIUDDIN MANIYAR,
AGE: 70 YEARS, OCC: HOUSEHOLD,
2(b) MOHD. MOINUDDIN
S/O. MOHAMMED TAQIUDDIN MANIYAR,
AGE: 52 YEARS, OCC: BUSINESS,
2(c) MOHAMMED MOHIUDDIN
S/O. MOHAMMED TAQIUDDIN MANIYAR,
AGE: 51 YEARS, OCC: BUSINESS,
2(d) MOHAMMED NAJMUDDIN
S/O. MOHAMMED TAQIUDDIN MANIYAR,
AGE: 40 YEARS, OCC: BUSINESS,
2(e) ASMA PARVEEN
D/O. MOHAMMED TAQIUDDIN MANIYAR,
AGE: 49 YEARS, OCC: HOUSEHOLD,
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2(f) SALMA PARVEEN
D/O. MOHAMMED TAQIUDDIN MANIYAR,
W/O. MOHD. SALEEMUDDIN,
AGE: 47 YEARS, OCC: HOUSEHOLD,
2(g) RESHMA PARVEEN
D/O. MOHAMMED TAQIUDDIN MANIYAR,
AGE: 44 YEARS, OCC: HOUSEHOLD,
2(h) NAZIMA PARVEEN
D/O. MOHAMMED TAQIUDDIN MANIYAR,
AGE: 36 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O. AKBER BAGH,
NEAR FAIZAL MUBEEN MASJID,
RING ROAD, TIPPU SULTAN CHOWK,
KALABURAGI-585104.
(AMENDED AS PER ORDER DATED 24.03.2022)
SHEIKH RAHEEMUDDIN
S/O. SHAIKH MOHIUDDIN MANIYAR,
SINCE DECEASED BY HIS LR's.
3. MAHEBOOBBEE W/O. HAFEEZUDDIN,
AGE: 93 YEARS, OCC: HOUSEHOLD,
R/O. BANGALORE ROAD, KHAJA COLONY,
BELLARY-583101.
4. KAISAR JAFFERY S/O. HAFIZUDDIN
AGE: 70 YEARS, OCC: HOUSEHOLD,
R/O. BANGALORE ROAD, KHAJA COLONY,
BELLARY-583101.
5. MUMTAZ BEGUM D/O. HAFIZUDDIN
AGE: 73 YEARS, OCC: HOUSEHOLD,
R/O. AMARCHINTA POST: ATMAKUR,
DIST: MAHEBBOB NAGAR,
ANDHRA PRADESH STATE.
MD. IBRAIM S/O YAKUB ALI MANIYAR
SINCE DECEASED LR's ALREADY ON RECORD.
6. WAHEEDUDDIN S/O. YAKUB ALI MANIYAR
AGE: 73 YEARS, OCC: BUSINESS,
R/O. SOMVAR PETH RAICHUR-584101.
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7. SAMSUNNISA D/O YAKUB ALI MANIYAR,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O. SOMVAR PETH RAICHUR-584101.
8. QAMARUNNISA W/O. AMJAD HUSSAIN
AGE: 68 YEARS, OCC: HOUSEHOLD,
R/O. SULTAN BAZAR AREA GOULIGUDA,
HYDERABAD, ANDHRA PRADESH STATE.
HAJIRABEE W/O. AMEERUDDIN MANIYAR,
DIED ISSUELESS.
9. SATTARMIYAN S/O. ABDUL RAHIMAN,
AGE: 32 YEARS,
R/O. MAKTAMPUR, KALABURAGI.
10. GHOUSIA BEGUM W/O. ABDUL RAHEMAN,
AGE: MAJOR,
R/O. MOMINPUR, KALABURAGI-585103.
... RESPONDENTS
(BY SRI PRAMOD N. KATHAVI, SENIOR COUNSEL FOR
SRI N.B. DIWANJI, ADV. FOR R-1(A) TO (I) AND R-2 (A) TO (H);
SERVICE TO NOTICE TO R-3 TO R-8 ARE HELD SUFFICIENT,
VIDE ORDER DATED 05.07.2019;
SERVICE OF NOTICE TO R-9 TO R-10 ARE HELD SUFFICIENT,
VIDE ORDER DATED 20.08.2019)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO, ALLOW
THIS APPEAL TO SET ASIDE THE JUDGMENT AND DECREE DATED
08.11.2011 PASSED IN R.A. NO.240/2006 BY THE LEARNED I ADDL.
CIVIL JUDGE (SR.DN.) AT GULBARGA CONFIRMING THE JUDGMENT
AND DECREE DATED 30.09.1999 PASSED IN O.S. NO.5/1977 BY THE
PRINCIPAL CIVIL JUDGE (JR.DN.) AT GULBARGA, AND TO PASS ANY
OTHER APPROPRIATE ORDER, IN THE INTEREST OF JUSTICE.
THESE REGULAR SECOND APPEALS COMING ON FOR ORDERS
AND HAVING BEEN HEARD AND RESERVED ON 10.10.2023, COMING
ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The present regular second appeal by defendant
Nos.1 (b) to (d) and 1 (f) assailing the judgment and
decree dated 08.11.2011 in R.A.No.239/2006 on the file of
the I Additional Civil Judge (Sr. Dn.) at Gulbarga,
modifying, the judgment and decree dated 30.09.1999 in
O.S.No.5/1977 on the file of the Principal Civil Judge (Jr.
Dn.) at Gulbarga.
2. This Court while admitting the appeal on
26.04.2019 has framed the following substantial questions
of law:
"1. Whether the cancellation of the decree in
O.S.No.58/1/1952 to the extent of the claim of
the plaintiffs herein is justified in the facts and
circumstances of the case?
2. Whether the courts below are justified in
assuming without support of any evidence on
record that the plaintiffs guardian acted
detrimental to their interest in
O.S.No.58/1/1952?
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3. Whether suit is liable to be dismissed as
barred by time?
4. Whether the courts below have not properly
construed the effect of Ex.D41?"
3. Sri Ameet Kumar Deshpande, learned Senior
counsel for Sri Ganesh S.Kalburagi, learned counsel
appearing for the appellants and Sri. Pramod N. Kathavi,
learned senior counsel for Sri. N.B. Diwanji, learned
counsel for respondent Nos.1(a) to (i) and respondent
Nos.(A) to (H) have been heard on the substantial
questions of law framed by this Court.
4. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
5. Suit schedule property is land bearing Sy.
No.32 measuring 21 acres 18 guntas and Sy. No.37
measuring 32 acres 02 guntas both called as "Kala
Chabutra" situated at village Badepur, a hamlet of
Gulbarga City, Gulbarga District.
6. The family pedigree is as stated below:
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Sheikh Dawood
______________________________________________
Sheikh Mohiuddin (Dead) Jamaluddin
_______________________ ___________________
*Wife= *=Wife Ameenabi= *=Wife
___________ ________________________
Yakub Rahimuddin Sayeeduddin Taqiuddin Qamarunissa
=Khajabi (D2) (P1) (P2) (D8)
(D3) _____________________
Ameeruddin Aishabi Hameedabi
=Hajirabi
(D9)
_____________________________________
Hafizuddin Md.Ibrahim Wahiduddin Shamsunissa
(D4) (D5) (D6) (D7) Sirajuddin
*Name not forthcoming from the records.
7. The plaint avers that, one Ameeruddin had
become the owner of the suit properties along with other
properties in a partition in the year 1341 Fasli that took
place between Ameeruddin and Shaikh Mohiuddin (father
of the plaintiffs herein). Further, it is stated that in 1343
Fasli, Ameeruddin died and after the death of Ameeruddin,
his son Sirajuddin got the patta of the properties of
Ameeruddin. It is further stated that, Aminabi, Aishabi
and Hameedabi have relinquished their shares in favour of
Ameeruddin as per the written statement of Hajirabi
(defendant No.9) filed in O.S.No.6/1/1346 Fasli. It is
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further stated that the plaintiffs herein after the death of
Sirajuddin, Hajirabi, and Shaikh Mohiuddin, plaintiffs
succeeded to the suit properties as heirs and successors.
It is further stated that the deceased Aminabi had no title,
possession or right over the suit schedule properties as
she had relinquished her share in favour of Ameeruddin
and hence, the mortgage of the suit properties by Aminabi
is void in effect and not binding on the plaintiffs herein. It
is further contended that the character of the property left
behind by Ameeruddin was Milk-e-Musha and that Aminabi
took the administration of the properties in her
management being the eldest member of the family after
the death of Ameeruddin and mortgaged the properties
and also sold some non-suit houses.
8. It is averred that O.S.No.58/1/1952 was filed
for cancellation of mortgage of the suit schedule properties
and for cancellation of the sale of non-suit houses, plaintiff
herein were plaintiff Nos.3 and 4 in O.S.No.58/1/1952 and
were minors. It is stated that Rahimuddin-defendant No.2
herein acted as the next friend of the minor plaintiffs in
- 16 -
O.S.No.58/1/1952, though under Mohammedan Law,
defendant No.2 was not competent to enter into a
compromise on behalf of the minor plaintiffs and the
compromise entered into by defendant No.2 on behalf of
the minors was against the interest of the plaintiffs. It is
stated that there is no valid and legal permission to
compromise the suit and hence, the compromise does not
confer any title to defendant No.1. It is further stated that
in the month of June, 1970, when the plaintiffs herein
demanded possession from defendant No.1 on the pretext
that the mortgage for 20 years ended in the year 1969,
defendant No.1-Abdul Rehaman refused to handover the
possession and it is only in the month of January 1970 the
plaintiffs got the knowledge of the decree, when they
investigated about the exact nature of the title of
defendant No.1 when defendant No.1 was negotiating with
the NGO Housing Co-Operative Society for sale of some
portion of the land and therefore, the present suit came to
be instituted.
- 17 -
9. The suit was resisted by defendant No.1 and
defendant No.2 by filing written statement.
10. Defendant No.1 inter alia, contended that the
suit schedule properties had fallen to the share of
Ameeruddin in the partition and was not Milk-e-Musha, but
an exclusive property upon allotment as his share. It is
further contended that the only heir of Ameeruddin was
defendant No.9, namely, Hajirabi, the widow and Aminabi
was in possession of the suit land and other properties
claiming herself to be the exclusive owner and in that
capacity, Aminabi mortgaged the suit lands with
possession for consideration in favour of defendant No.1.
It is further contended that compromise was entered on
28.06.1955 in O.S.No.58/1/1952, and by way of
compromise the suit lands which were in possession of
defendant No.1 herein was declared to be the absolute
owner and possessor.
11. It is further contended that the claim of the
plaintiffs herein and defendant No.2, who were plaintiffs in
the earlier suit in O.S.No.58/1/1952, were not adverse to
- 18 -
each other, but they were identical and defendant No.2
was competent to act as a next friend and has entered
into a compromise being in the interest of the minor. It is
contended that the Court, before whom the compromise
was effected considering the interest of the plaintiffs
herein who were minors then, allowed the compromise
and accordingly, the terms of the compromise was
recorded and a decree was passed. It is contended that
the plaintiffs were aware about the mortgage of the suit
lands by Aminabi and decree from the very beginning itself
and in the year 1967, the plaintiffs gave notice by a
registered post through his advocate to the Secretary of
NGO Housing Co-Operative Society, which according to the
defendant reveals that even prior to August 1967, the
plaintiffs had knowledge of the mortgage and the
compromise decree. It is contended that the plaintiffs
cannot claim the suit properties as heirs of Ameeruddin
and the suit for cancellation of only a part of decree is not
permissible and the suit is not maintainable.
- 19 -
12. By way of additional written statement, it is
contended that the compromise in O.S.No.58/1/1952 was
acted upon by the plaintiffs and the plaintiffs have sold
and gifted the properties that fell in the compromise. It is
also contended that the plaintiffs herein had attained
majority when the suit in O.S.No.167/1964 was pending
and chose to elect to proceed with the suit and had
engaged Sri V.P. Kothari as their advocate and in the
appeal filed by Peersab, the plaintiffs have been shown as
major and the notices in the said appeals were served on
the plaintiffs, and the plaintiffs filed execution petition
No.75/1956 seeking for execution of the decree, the
obstructions made by sons of Peersab to the execution
was opposed by the plaintiffs and the matter had been
taken upto this Court. With all these facts, defendant No.1
sought to dismiss the suit.
13. Defendant No.2-Rahimuddin, who represented
the plaintiffs herein in O.S.No.58/1/1952 filed written
statement contending that in the year 1952, there was a
partition between the plaintiffs and defendant Nos.2 and
- 20 -
his brothers Yakub Ali and other sisters. The suit
properties and other family properties were in illegal
occupation of unconcerned persons and therefore, they
were not included in the partition. It was settled that
whoever bears the expenses of the litigation and if
succeeds will be entitled exclusively to those properties.
At the time of settlement, plaintiffs were minors and under
the care and protection of their maternal uncle - Abid
Hussain, who agreed to the settlement on behalf of the
minor plaintiffs and accordingly, defendant No.2 entered
into settlement in O.S.No.58/1/1952 on behalf of the
minor plaintiffs. It is further contended that Aminabi had
not only executed the mortgage of the suit lands, but also
had executed the sale deeds in respect of few houses.
Defendant No.2 herein contended that as he was unable to
bear the litigation expenses, had compromised with
defendant No.1 on 31.01.1955 and since then, defendant
No.2 is in possession of the house given up by defendant
No.1.
- 21 -
14. In order to substantiate their claim, plaintiff
No.1 examined himself as P.W.1, one Mohammed Ibrahim,
son of Mehaboob Sab examined himself as P.W.2 and got
marked documents at Exs.P.1 to P.21. On the other hand,
defendant No.1 examined himself as D.W.1, advocate Sri
Valchand son of Premchand Kothari, aged about 90 years
was examined as D.W.2, Advocate M.A. Hakeem, son of
Abdul Kareem was examined as D.W.3.
15. The Trial Court on basis of the pleadings
framed the following issues:
"1. Whether plaintiffs prove that they acquired
right or interest in the equity of redemption of suit
properties ?
2. Do they further prove that the compromise
decree passedin O.S.NO.58/1/52 is not binding on
them for the reasons set out in paras 12 and 13 of
the plaint?
3a. Do they further prove that deft.No.1 is liable
to render accounts of the pro its received in the
years 1979-70 to 1971-72 at the rate of Rs.1000/-
per year ?
- 22 -
3b. Do they further prove that deft.No.1 is also
liable to render account for the subsequent years
till they are to be in possession ?
4a. Does deft. No.1 prove that he became the full
owner and absolute owner of suit properties by
virtue of compromise decree ?
4b. In the alterative, does deft. No.1 prove that
he has become the owner of suit properties by
virtue of adverse possession, as asserted by him, in
para 24 of W.S?
5. Does deft. 1 prove that the suit is barred by
law of limitation ?
6a. Does deft.1 prove that L.Rs. of the parties to
the previous suit (O.S.No.58/1/52) are necessary
parties ?
6b. If so, whether the suit is bad for non-joinder
of necessary parties ?
7. Does deft.1 prove that the suit in the present
form is untenable, for the reasons set out in paras
21 and 22 of W.S. ?
8. Is deft. 1 entitled to claim as compensatory
costs ?
9. Reliefs for which plaintiff is entitled to ?
- 23 -
Additional Issues.
1. Whether the plaintiffs are the heirs and
successors of Hajrabee and their father to suit
property ?
2. Whether the plaintiff to prove that second
deft. did not protect of interest who were minors?"
16. The Trial Court on basis of the pleadings, oral
and documentary evidence decreed the suit in part,
declaring that the compromise decree recorded to the
extent of claim of the plaintiffs by defendant No.2 on
28.06.1955 stands cancelled without granting any other
reliefs.
17. Regular Appeal in R.A. No.239/2006 was
preferred by the plaintiffs assailing the rejection of other
prayers by the Trial Court and regular appeal in
R.A.No.240/2006 was preferred by the legal
representatives of defendant No.1 assailing the part of the
decree in favour of the plaintiffs.
18. The First Appellate Court considered and
passed a common judgment by allowing the appeal filed
- 24 -
by the plaintiffs and the appeal filed by defendant No.1
came to be dismissed and consequently decreed the suit in
entirety. Aggrieved by the judgment and decree of the
Courts below, the present second appeals by the legal
representatives of defendant No.1.
19. Learned Senior counsel Sri Ameetkumar
Deshpande for the appellants would urge the following
grounds:
(i) The present suit is not maintainable as the
necessary prayer for declaration of alleged title of the
plaintiffs is not sought for and places reliance on the
judgment of the Apex Court in the case of Anathula
Sudhakar Vs. P. Buchi Reddy1 (Anathula Sudhakar).
(ii) The suit for a prayer of cancellation of the
compromise decree only to the extent of the alleged claim
of the plaintiffs is not maintainable, as the averments in
the plaint are not clear as to what is their extent of alleged
right in the suit property or in the compromise decree.
AIR 2008 SC 2033
- 25 -
(iii) The plaintiffs claim their right over the suit
schedule property upon the death of Sirajuddin son of
Ameeruddin, after the death of Hajirabi wife of Sirajuddin
and after the death of Shaikh Mohiuddin, the father of the
plaintiffs and the "table of Sharers" and list of
"Residuaries" under the Mohammedan Law does not
include the children of the brother of the father or the
grand-father and in the absence of the right to succeed to
the property of Sirajudddin or Ameeruddin, the claim of
the plaintiffs is totally untenable.
(iv) The plaintiffs have failed to establish as to how
the compromise has been detrimental to the interest of
the plaintiffs and that the material on record evidence that
the interest of defendant No.2 and the plaintiffs are one
and the same and identical.
(v) That the plaintiffs attained the age of majority
during the pendency of the suit in O.S.No.167/1964 and
elected to contest the suit and it was recorded in the order
sheet of the said suit that the plaintiffs have no objections
to continue the suit.
- 26 -
(vi) When the plaintiffs have attained majority,
during the pendency of the suit as is evident from
R.A.No.525/4/1964 and having elected to contest the suit,
the suit to cancel the decree or any transfer of property
made by a guardian had to be filed within three years
from the date of attaining the age of majority and the
plaintiffs having participated in the suit and thereafter, in
the appeal arising from O.S.No.167/1964, the plaintiffs
cannot contend and seek for relief of cancellation of the
compromise decree on the ground that the plaintiffs were
minors, when the compromise was entered into and their
next friend had allegedly not safeguarded their interest,
cannot be entertained beyond three years from the date of
plaintiffs' attaining the age of majority and the suit of the
plaintiffs' is hopelessly time barred.
(vii) Having elected to prosecute after attaining
majority, the present suit could not have been entertained
and Ex.D.41-the order sheet of O.S.No.167/1964 indicates
that suit in O.S.No.58/1/1952 was continued in respect of
- 27 -
the subject matter and the parties, other than what was
compromised.
20. Per contra, Sri Pramod Kathavi, learned senior
counsel appearing for the respondents-plaintiffs would
urge the following grounds:
(i) That the plaintiffs are entitled to claim share in
the suit land as successors of Hajirabi, defendant No.9,
who was the wife of Ameeruddin and who had only one
son by name, Sirajuddin and that after the death of
Sirajuddin, the family of Ameeruddin was survived by his
only wife with no male issues and the suit properties have
fallen to the hands of Shaikh Mohiuddin, as residuary, and
after his death, the suit properties becomes the self-
acquired properties of the plaintiffs and the plaintiffs have
rightly challenged the mortgage effected by Aminabi wife
of Jamalauddin as she has already relinquished her share
and right over the suit properties in favour of her son
Ameeruddin as per Ex.P.15(a).
(ii) Defendant No.2-Rahimuddin cannot act as a
guardian under the Mohammedan Law as defendant No.2
- 28 -
is a step brother of the plaintiffs and the brother is not a
lawful guardian under the Mohammedan law and placed
reliance on the decision of the Apex Court in the case of
Syed Shah Ghulm Ghouse Mohiuddin and Others Vs.
Syed Shah Ahmed Mohiuddin Kamisul Quadri (died)
by LRs and others2 (Syed Shah Ghulm Ghouse
Mohiuddin).
(iii) Defendant No.1 under the compromise decree
got the suit properties and defendant No.2 got the house
property in the compromise decree and the minor plaintiffs
were not allotted any share in the properties in the
compromise decree.
(iv) That the Trial Court and the First Appellate
Court have rightly held that the guardian of the minor-
plaintiffs, acted against the interest of the minor-plaintiffs
and placed reliance on the decision of the Division Bench
of this Court in C.R. Narasimha Murthy and Others Vs.
K. Saroja and others3 (C.R. Narasimha Murthy).
AIR 1971 SC 2184
1991 (3) Kar LJ 30
- 29 -
(v) No evidence and materials were placed by
defendant No.1 that the plaintiffs had any knowledge of
compromise decree or the continuation of the suit as is
evident from Ex.D-41-the order sheet in
O.S.No.167/1964.
(vi) Defendant No.2 who acted as guardian of the
minor plaintiffs has not chosen to enter into witness box
and an adverse inference has to be drawn against
defendant No.2 and placed reliance upon the dictum of the
Apex Court in the case of Vidhyadhar Vs. Manikrao and
another4 (Vidhyadhar).
(vii) The Trial Court and First Appellate Court have
rightly arrived at a conclusion that the suit was within
limitation, since the compromise decree was not known to
the plaintiffs in the year 1964.
21. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties
and perused the entire material on record to answer the
substantial questions of law.
AIR 1999 SC 1441
- 30 -
22. The appellants have filed application-
I.A.No.1/2022 under Order 41 Rule 27 seeking to produce
the additional documents, contending that during the
pendency of the original suit, defendant No.1 has sold 14
acres of the suit property under the registered sale deeds
in the year 1985 to 1996 to various persons. The
respondents-plaintiffs have filed their objections to the
said application contending that the appellants though
were aware of these documents has intentionally failed to
produce the documents before the trial Court and the
documents are not at all relevant for adjudicating the
second appeal. The application filed seeking to produce
additional documents are the documents, which are
executed during the pendency of the suit and the
additional documents sought to be produced are not
relevant for adjudication of the present second appeal and
accordingly, I.A.No.1/2022 is rejected.
23. Before adverting to the substantial questions of
law framed by this Court, the principles relating to Section
100 CPC needs to be considered and whether in the
- 31 -
present circumstances, the judgment and decree of the
Courts below warrants interference by this Court under
Section 100 CPC. The Apex Court, in the case of Hero
Vinoth (minor) Vs. Seshamma5 at paragraph No.24
held as under:
"24. The principles relating to Section 100 CPC
relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents
of a document is a question of fact. But the legal
effect of the terms of a document is a question of
law. Construction of a document involving the
application of any principle of law, is also a
question of law. Therefore, when there is
misconstruction of a document or wrong application
of a principle of law in construing a document, it
gives rise to a question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that
is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of
law, if it is not covered by any specific provisions of
law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. A
AIR 2006 SC 2234
- 32 -
substantial question of law will also arise in a
contrary situation, where the legal position is clear,
either on account of express provisions of law or
binding precedents, but the court below has
decided the matter, either ignoring or acting
contrary to such legal principle. In the second type
of cases, the substantial question of law arises not
because the law is still debatable, but because the
decision rendered on a material question, violates
the settled position of law.
(iii) The general rule is that High Court will not
interfere with the concurrent findings of the courts
below. But it is not an absolute rule. Some of the
well-recognised exceptions are where (i) the courts
below have ignored material evidence or acted on
no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast
the burden of proof. When we refer to 'decision
based on no evidence', it not only refers to cases
where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a
whole, is not reasonably capable of supporting the
finding."
24. In a similar line, the Apex Court in the case of
Rajastan State Road Transport Corporation &
- 33 -
another VS. Bajarang Lal6 at paragraph Nos.18, 19 and
20 held as under:
"18. The appellate court committed a grave
error by declaring the enquiry as non est. The
termination order as a consequence thereof stood
vitiated though there is no reference to any
material fact on the basis of which such a
conclusion was reached. The finding that copy of
the documents was not supplied to the respondent-
plaintiff, though there is nothing on record to show
that how the documents were relied upon and how
they were relevant to the controversy involved,
whether those documents had been relied upon by
the enquiry officer and how any prejudice had been
caused by non-supply of those documents, is
therefore without any basis or evidence. When the
matter reached the High Court in second appeal,
the High Court refused to examine the issue at all
by merely observing that no substantial question of
law was involved and the findings of fact, however
erroneous, cannot be disturbed in second appeal.
19. With all respect, we do not agree with such a
conclusion reached by the High Court, as second
appeal, in exceptional circumstances, can be
entertained on pure questions of fact. There is no
prohibition for the High Court to entertain the
(2014) 4 SCC 693
- 34 -
second appeal even on question of fact where
factual findings are found to be perverse.
20. In Ibrahim Uddin this Court held : (SCC pp.
175-76, paras 65 & 67-68)
"65. In Suwalal Chhogalal v. CIT the Court held
as under : (ITR p. 277)
'... A fact is a fact irrespective of the evidence by
which it is proved. The only time a question of law
can arise in such a case is when it is alleged that
there is no material on which the conclusion can be
based or no sufficient material.'
***
67. There is no prohibition to entertain a second
appeal even on question of fact provided the Court
is satisfied that the findings of the courts below
were vitiated by non-consideration of relevant
evidence or by showing erroneous approach to the
matter and findings recorded in the court below are
perverse. [Vide Jagdish Singh v. Natthu
Singh, Prativa Devi v. T.V. Krishnan, Satya
Gupta v. Brijesh Kumar, Ragavendra
Kumar v. Prem Machinery & Co., Molar Mal v. Kay
Iron Works (P) Ltd, Bharatha Matha v. R. Vijaya
Renganathan and Dinesh Kumar v. Yusuf Ali.]
68. In Jai Singh v. Shakuntala this Court held
that (SCC p. 638, para 6) it is permissible to
interfere even on question of fact but it may be
only in
- 35 -
'very exceptional cases and on extreme perversity
that the authority to examine the same in extenso
stands permissible--it is a rarity rather than a
regularity and thus in fine it can be safely
concluded that while there is no prohibition as
such, but the power to scrutiny can only be had in
very exceptional circumstances and upon proper
circumspection'.
Similar view has been taken in Kashmir
Singh v. Harnam Singh "
(emphasis in original)"
25. Similar observations were made in the case of
D.R. Ratnamurthy Vs. Ramappa7 and at paragraph
No.9, the Apex Court held as under:
"9. Undoubtedly, the High Court can interfere
with the findings of fact even in the second appeal,
provided the findings recorded by the courts below
are found to be perverse i.e. not being based on
the evidence or contrary to the evidence on record
or reasoning is based on surmises and misreading
of the evidence on record or where the core issue is
not decided. There is no absolute bar on the
reappreciation of evidence in those proceedings,
however, such a course is permissible in
exceptional circumstances. (Vide Rajappa
2011 (1) SCC 158
- 36 -
Hanamantha Ranoji v. Mahadev Channabasappa,
Hafazat Hussain v. Abdul Majeed and Bharatha
Matha v. R. Vijaya Renganathan.)"
26. The general rule is that, the High Court will not
interfere with the concurrent findings of the courts below,
however, the said rule is not an absolute rule and certain
exceptions are well recognized where the Court can
interfere when the Courts below have ignored the material
evidence or acted on no evidence and arrives at the wrong
inferences from the proved facts. The High Court could
interfere when it is satisfied that the judgment and decree
of the Courts below suffers from perversity and illegality
warranting interference by this Court. Keeping in view the
above principles, this Court has considered the substantial
questions of law framed by this Court in these second
appeals.
27. Undisputed facts are that:
(i) Aminabi wife of Jamaluddin executed a
registered mortgage deed (Ex.P-1) dated 2nd Amardad
1358 Fasli corresponding to 2nd June 1949 in favour of
defendant No.1-Abdul Rehaman in respect of the suit
- 37 -
schedule properties for a period of 20 years under an
usufructuary mortgage;
(ii) O.S.No.58/1/1952 was filed by Rahimuddin and
others i.e., defendant Nos.2 to 8, and the plaintiffs herein
for cancellation of the mortgage of the suit lands and also
for cancellation of the sale of non-suit houses and for
recovery of possession;
(iii) Suit O.S.No.58/1/1952 insofar as the suit
properties herein are concerned was compromised
between defendant No.1-Abdul Rahiman and the plaintiffs
and defendant Nos.2 to 8 herein on 28.06.1955 at Ex.P-2;
(iv) As per Ex.P.2-the compromise decree, the suit
properties herein were given up in favour of defendant
No.1 and he was declared as the absolute owner in
possession of the suit lands;
(v) After recording of the compromise in respect of
the suit schedule properties, suit O.S.No.58/1/1952 was
continued in respect of the other properties therein as
- 38 -
against the parties thereto and the suit was renumbered
as O.S.No.167/1964;
(vi) O.S.No.167/1964 continued in respect of other
properties and by judgment and decree dated 08.10.1964,
O.S.No.167/1964 was decreed.
(vii) Challenging the judgment and decree dated
08.10.1964 in O.S.No.167/1964, Mohammed Peer @
Dadoo Miyan filed appeal in C.A. No.525/1964 before the
Court of the Civil Judge at Gulbarga.
(viii) Civil appeal was allowed and remanded,
plaintiffs attained majority and contested the suit without
any objections.
(ix) The present suit praying for a decree for
recovery of possession of the suit lands, recovery of
possession of the original mortgage and for a decree to
cancel the compromise decree passed in
O.S.No.58/1/1952 between Mohammed Yakoob Ali and
Abdul Rehman and for consequential benefits.
- 39 -
28. Re: Substantial Question of Law Nos.1 & 2:
The plaintiffs' claim is that, in the partition between
the fathers of the plaintiffs Shaikh Mohiuddin and
Ameeruddin, the suit properties and other properties fell
to the share of Ameeruddin and the stepmother of
Ameeruddin and sisters of Ameeruddin had given up their
rights in the properties, in favour of Ameeruddin and after
the death of Ameeruddin, the properties were succeeded
by his son Sirajuddin, on death of Sirajuddin,
Ameeruddin's wife and mother of Sirajuddin, namely,
Hajirabi and the father of the plaintiff's were alive and
they have succeeded as heirs. Aminabi and others have
stood excluded and after the death of the father of the
plaintiffs and death of Hajirabi, the plaintiffs are entitled to
the suit properties as heirs and successors.
29. The plaintiffs contended that Aminabi had no
right or title over the suit schedule properties, the said
contention was denied by the defendants. As per Section
34 of the Specific Relief Act, 1963, wherever the
entitlement to any legal character, or to any right as to
- 40 -
any property, may institute a suit against any person
denying, or interested to deny, his title to such character
or right, and the Court may in its discretion, make therein
a declaration that he is so entitle, and the plaintiff need
not ask for further relief in such suit. Wherever the
entitlement is been denied, such person needs to seek for
declaration about one's legal character or right or title
along with any further relief which he may be able to seek.
The plaintiffs have sought only such relief which can be
classified as further reliefs, but has conveniently omitted
to seek for declaration for their right over the suit
schedule properties. The Apex Court, in the case of
Anathulla Sudhakar stated supra, has elaborately dealt
with the law relating to the reliefs that are required to be
sought for by the parties and at paragraph No.17 has held
as under:
"17. There is some confusion as to in what
circumstances the question of title will be directly
and substantially in issue, and in what
circumstances the question of title will be
collaterally and incidentally in issue, in a suit for
injunction simpliciter. In Vanagiri Sri Selliamman
- 41 -
Ayyanar Uthirasomasundareswarar Temple vs.
Rajanga Asari, the Madras High Court considered
an appeal arising from a suit for possession and
injunction. The defendant contended that the
plaintiff had filed an earlier suit for injunction which
was dismissed, and therefore the plaintiff was
precluded from agitating the issue of title in the
subsequent suit, being barred by the principle of
res judicata. It was held that the earlier suit was
only for an injunction (to protect the standing crop
on the land) and the averments in the plaint did not
give rise to any question necessitating denial of
plaintiff's title by the defendant; and as the earlier
suit was concerned only with a possessory right
and not title, the subsequent suit was not barred.
There are several decisions taking a similar view
that in a suit for injunction, the question of title
does not arise or would arise only incidentally or
collaterally, and therefore a subsequent suit for
declaration of title would not be barred."
30. The Apex Court has held that where a cloud is
raised to plaintiff's title and he does not have possession,
a suit for declaration of possession with or without
consequential injunction is the remedy. In the present
case, the plaintiffs are not only out of possession, but also
there is a serious cloud cast on the title and right of the
- 42 -
plaintiffs about the succeeding of the properties after the
death of Sirajudddin and in the absence of any relief of
declaration, the suit of the plaintiff was not maintainable.
31. Learned senior counsel appearing for the
respondents placed reliance on the findings given in the
judgment in O.S.No.167/1964 at Ex.D.28, which reads as
under:
"(7) It is admitted that Jamaluddin was
survived by Saik Mohiuddin, the father of the
Plaintiffs and Amena bi who is the wife of
Jamaluddin and executants of the sale deed and
the mortgage deed. Her son Ameeruddin had died
later and her two daughters Aishabi and Hamida Bi
have also died in a short interval in the year about
1948. Under the personal law applicable to the
parties, on the death of Jmanaluddin, his wife and
daughters would take as sharers and the remaining
property would go to Shaik Mohiuddin who was the
full brother and who take as residuary. The son was
though alive when the succession opened has died
later without issues and therefore there could be no
question of allotting any share on the doctrine of
representation."
32. According to the learned senior counsel, the
findings in O.S.No.167/1964 has been confirmed by this
- 43 -
Court and as per the findings, the father of the plaintiffs is
a residuary and the plaintiffs are entitled to claim share in
the suit lands after the death of their father Shaikh
Mohiuddin. It is the contention of the plaintiffs that the
daughters of Jamaluddin i.e., Aishabi, Hameedabi and
wife-Aminabi have relinquished their share in favour of
Ameeruddin and as such, they are excluded from claiming
their share in the property of deceased Ameeruddin and at
the time of death of Sirajuddin, Shaikh Mohiuddin, the
father of the plaintiffs was alive and in the statement of
Aminabi at Ex.D.5 in O.S.No.6/1/1346, Aminabi has
admitted the ownership of Ameeruddin over the suit
properties and other properties and as per Mohammedan
Law, on death of Sirajuddin, the family of Ameeruddin was
only survived by his wife and no male issues and the suit
properties have fallen to the hands of Shaikh Mohiuddin as
residuary.
33. Under Mohammedan Law, there are two types
of heirs - the Sharers and the Residuary. Firstly, the
sharers are the ones who are entitled to a certain share in
- 44 -
the property of the deceased and, secondly, the residuary
(as the word "Residuary" itself say) are the ones who
would take up the share in the property that is left over
after the Sharers have taken their part from the property.
As per the "table of Sharers" and list of "Residuaries", the
plaintiffs in relation to the deceased Sirajuddin or in
relation to deceased Ameeruddin would be children of the
brother of the father of Ameeruddin or the children of
brother of the grand-father of Sirajuddin, children of the
brother of the father or the grand-father are not listed as
"Sharers or Residuaries" under Mohammedan Law. In the
absence of the right to succeed to the properties of
Sirajuddin or Ameeruddin, the claim of the plaintiffs is
totally untenable. It is also relevant to note that Shaikh
Mohiuddin had challenged the agreement of settlement
between Ameeruddin and Shaikh Mohiuddin in
O.S.No.32/1/1341 Fasli which is at Ex.P.18, wherein the
Court held that Shaikh Mohiuddin-plaintiff therein had no
right to sue and after the death of Ameeruddin, his sisters-
Hameedabi and Aishabi also instituted several suits in
respect of the family properties owned by Jamaluddin and
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Shaikh Mohiuddin indicating their right over the family
properties including the suit properties and thus, the
contention by the plaintiffs their sisters and widow-
Ameenabi have given up their shares fails.
34. The other borne of argument by the plaintiffs
by amending the plaint is that deceased Aminabi had no
right and possession over the suit schedule properties and
therefore, defendant No.1 who claimed right, title and
interest through Aminabi is not binding on the plaintiffs
and further, contended that defendant No.2, who acted as
a guardian to the plaintiffs in the earlier suit entered into a
collusive compromise, which was adverse to the interest of
the minor plaintiffs and that the compromise cannot confer
any title upon defendant No.1. The
settlement/compromise at Ex.P.2 was between the branch
of Shaikh Mohiuddin on one hand and branch of
Jamaluddin where Ameenabi, wife of Jamaluddin had
entered into a compromise in O.S.No.58/1/1952 and later
on, the suit was continued in respect of the other
properties in O.S.No.167/1964 (renumbered). The said
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suit was decreed against Peersab, who preferred
R.A.No.525/1964, which was allowed and the matter was
remanded and the plaintiffs herein, who were plaintiffs in
O.S.No.58/1/1952, had attained majority when
O.S.No.167/1964 was pending and the plaintiffs chose to
elect to proceed with the suit and engaged one Sri V.P.
Kothari, advocate on their behalf and in all the appeals
filed by Peersab, the plaintiffs were shown as major,
appeal notices were served upon them and the plaintiffs
filed execution No.75/1976 seeking to execute the decree
and accompanied the bailiff to execute the warrant.
Obstruction made by the sons of Peersab in the execution
was opposed by the plaintiffs by their advocate V.P.
Kothari.
35. P.W.1 in his cross-examination, has given
evasive answers to the questions posed regarding filing of
vakalath by his counsel Sri V.P. Kothari and about
attaining the age of majority during the pendency of the
suit in O.S.No.167/1964. The defendants on their behalf
examined the advocate Sri V.P. Kothari as D.W.1 who was
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aged about 90 years, categorically in unequivocal terms
mentions about the plaintiffs attaining the majority and
plaintiffs elected to prosecute their suit after allowing of
the application by the Court.
36. D.W.3 is the advocate appeared for defendant
No.2 in the suit in O.S.No.167/1964 and in appeal in
R.A.No.525/1964 and the appeal memorandum, which
was marked as Ex.D.31, the plaintiffs have been shown as
majors. The evidence of DW.3 has remained unchallenged
since the plaintiffs did not cross-examine D.W.3.
37. It is further alleged by the plaintiffs that
defendant No.2 cannot act as a guardian under the
Mohammedan Law. The successors of Shaikh Mohiuddin
are plaintiff Nos.1 and 2, defendant Nos.2, 3 and 8, it is
the contention of the plaintiffs herein that the plaintiffs are
the successors to Shaikh Mohiuddin. Defendant No.2
though is a step brother of the plaintiffs, it is not in
dispute that defendant No.2 is also successor of Shaikh
Mohiuddin. All the three sons are children of Shaikh
Mohiduddin and it is the very contention of the plaintiffs
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that the Shaikh Mohiuddin had succeeded to Ameerudidn,
Sirajudddin and Hajirabee, making it very clear that the
interest of defendant No.2 and the plaintiffs are one and
the same and identical and the compromise cannot
therefore, sought to be declared as cancelled only insofar
as plaintiffs, when in respect of other properties under the
compromise and in respect of other parties, with regard to
the suit also, compromise continues to be valid, lawful and
binding.
38. The plaintiffs except stating and making a bald
statement that the compromise made by the defendant
No.2 by the guardian was detrimental to their interest,
without any indications given by the plaintiffs as to how
the compromise has been detrimental to the interest of
the plaintiffs. Therefore, the Courts below were not
justified in decreeing the suit of the plaintiffs by canceling
the decree passed in O.S.No.58/1/1952.
39. The plea by the plaintiffs, that defendant No.2
could not have acted as a next friend of the minor
plaintiffs being the step brother is incorrect and does not
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stand the test of law, as defendant No.2 who has acted as
next friend continued till the plaintiffs attain majority and
thereafter, when the suit was continued, the plaintiffs who
have attained majority chose to prosecute the suit and did
not make any complaint against the compromise entered
into, the compromise was entered in the year 1955 and
the suit was continued till 1967, thereafter appeal was
preferred, execution was filed, where the very plaintiffs
were shown as parties and they have acted and
participated actively. The material placed at Exs.D.29, 31
and 41 evidence that the plaintiffs attained majority
during the pendency of the suit and elected to contest the
suit, and only on having bestowed their attention, on
technical plea of step brother acting as a next friend
without the plaintiffs' proving, as to how the compromise
is detrimental to the interest of the plaintiffs, the courts
below have erred in granting the decree in favour of the
plaintiffs. The judgment relied by the learned senior
counsel appearing for the respondents in the case of Syed
Shah Ghulm Ghouse Mohiuddin is not applicable to the
present facts and circumstances of this case and it is
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highly distinguishable. Accordingly, the substantial
questions of law Nos.1 and 2 are answered in favour of the
appellant-defendant No.1.
40. Re: Substantial Question of Law Nos.2 & 3:
The compromise was entered on 31.01.1955 and the
compromise decree was passed on 28.06.1955, the cross-
examination of P.W.1 evidences that the plaintiff was born
in the year 1938 or 1940 and if that is so, plaintiff had
attained the age of majority in 1956 or 1958. Article 60 of
the Limitation Act, 1963 reads as under:
"Description of Suit Period of Time from which
Limitation period begins to run
PART IV-SUITS RELATING TO DECREES AND INSTRUMENTS
60. To set aside a
transfer of property
made by the
guardian of a word-
(a) by the ward who Three years When the ward
has attained attains majority.
majority;
(b) by the ward's
legal representative-
(i)When the ward dies Three years When the ward
within three years attains majority.
from the date of
attaining majority.
(ii)When the ward Three years When the ward
dies before dies."
attaining majority.
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Article 60 specifies that a suit to set-aside the decree
or any transfer of property made by the guardian of the
ward can be filed within three years after the ward attains
age of majority.
41. Article 59 of the Limitation Act, 1963 reads as
under:
Description of Suit Period of Time from which
Limitation period begins to run
PART IV-SUITS RELATING TO DECREES AND INSTRUMENTS
59. To cancel or set Three years When the facts
aside an instrument entitling the
or decree or for the plaintiff to have the
rescission of a instrument or the
contract. contract rescinded
first become known
to him.
Articles 59 mandates that the suit to cancel or set-
aside a decree, is to be filed within three years when the
facts entitling the plaintiffs to have a decree cancelled or
set-aside first becomes known to him.
42. Ex.D.28 relied on both sides would indicate that
the suit in O.S.No.58/1/1952 continued after the
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compromise between the plaintiffs and defendant No.1
and the continuation was in respect of other properties
and parties, which is evident from reading of the entire
judgment at Ex.D.28 and 29, the fact remains that the
plaintiffs virtually admit the continuation of the suit and
the appeal preferred thereafter.
43. Ex.D-31 is the appeal memo in C.A.
No.525/1964, this document evidences that the plaintiffs
attained the age of majority during the pendency of the
appeal and elected to contest and recorded their no
objection to continue the suit. In C.A. No.525/1967
against the judgment and decree in O.S.No.167/1964 it
was mentioned that a compromise was entered into
between the plaintiffs and defendant No.1, 3 and 4 and
the cause-title of the judgment is at Ex.D.29 shows that
the plaintiffs are majors and represent by themselves.
44. Ex.D.32-report of the bailiff in execution case,
Ex.D.33-copy of the statement given by the bailiff in the
execution case, Ex.D.41-order sheet in O.S.No.167/1964,
Ex.D.28-judgment rendered in O.S.No.167/1964, Ex.D.29-
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judgment passed in C.A. No.525/1967 clearly indicate the
participation of the plaintiffs in the earlier suit proceedings
and the appellate proceedings, through their advocate Sri
V.P. Kothari-D.W.2 after the plaintiffs have attained
majority. The plaintiffs were well aware about the
compromise and have continued to participate in the
proceedings of the said suit, pursuant to the compromise
and the plaintiffs being acknowledged by the Court while
disposing the entire suit in O.S.No.167/1964, the present
suit for relief of cancellation of the compromise decree on
the ground, that the plaintiffs were minors when the
compromise was entered into and their next friend has
allegedly not safe guarded the interest cannot be
entertained beyond three years from the date of plaintiffs
attained majority and the suit of the plaintiffs is hopelessly
time barred. The Trial Court and the First Appellate Court
fell in error in not considering the material on record and
have erroneously arrived at a wrong conclusion holding
that the suit is well within time.
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45. The order sheet in O.S.No.167/1964 at Ex.D-41
evidences that the suit in O.S.No.58/1/1952 continued in
respect of the other subject matter and the parties other
than what was compromised and it also indicates that the
advocate on behalf of the plaintiffs had filed application
and the plaintiffs after attaining the age of majority have
chosen to prosecute the proceedings. Accordingly, the
substantial questions of law Nos.3 and 4 are answered in
favour of the appellant-defendant No.1 and against the
plaintiffs holding that the suit is barred by time and the
Courts below have not properly construed Ex.D-41 in a
proper perspective leading to perversity and illegality
warranting interference by this Court.
46. The cancellation of the compromise decree
sought by the plaintiffs to which the plaintiffs were
undisputedly parties to the compromise decree through
their minor guardian, and if such cancellation is permitted,
it would lead to hypothetical situation, the materials
placed before the Court clearly indicate that the present
suit could not have been entertained for the reliefs that
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are claimed by the plaintiffs herein, since the plaintiffs
having continued to prosecute the suit in O.S.No.167/1964
after compromise with defendant No.1 regarding the suit
properties, the plaintiffs are unable to substantiate their
right and their entitlement of the relief as prayed for.
47. For the foregoing reasons stated supra, this
Court pass the following:
ORDER
i. The regular second appeals are hereby allowed.
ii. The judgment and decree of the Courts below are
hereby set-aside and suit of the plaintiffs is hereby
dismissed.
Sd/-
JUDGE
MBM
