Karnataka High Court
Mohammed Shareef S/O Late Raj Mohammed vs Mohammed Nazeer Ahmed on 8 January, 2024
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RSA No. 1998 of 2006
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 1998 OF 2006 (PAR)
BETWEEN:
1 MOHAMMED SHAREEF
S/O LATE RAJ MOHAMMED,
DECEASED BY LRS.
1(A) SMT KAREEM BEE
W/O MOHAMMED SHAREEF,
AGE: 80 YEARS, OCC: HOUSEHOLD
1.(B) MOHAMMED MANSOOR
S/O MOHAMMED SHAREEF,
AGE : 60 YEARS, OCC: BUSINESS
1(C) NAWAB
S/O MOHAMMED SHAREEF
Digitally signed AGE: 56 YEARS, OCC: BUSINESS
by SACHIN
Location: HIGH
COURT OF
KARNATAKA 1(D) MOHAMMED ASGAR
S/O MOHAMMED SHAREEF
AGE: 54 YEARS, OCC: BUSINESS
1(E) BABU
S/O MOHAMMED SHAREEF
AGE: 52 YEARS, OCC: BUSINESS
1(F) MEHRUNNISA
W/O MOHAMMED SHAH
AGE: 50 YEARS, OCC: BUSINESS
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RSA No. 1998 of 2006
ALL R/O H.NO:2-6-11 TIPUSULTAN ROAD,
ANDEROON QUILA, RAICHUR-584101.
...APPELLANTS
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. MOHAMMED NAZEER AHMED
S/O MOHAMMED MAQBOO HUSSAINR
2. RAHAMATUNNISA BEGUM
W/O MAQBOOL HUSSAIN,DEAD BY HER LRS
RESPONDENT 1 & 3 TO 5
3. MOHAMMED SHAFI
S/O MOHAMMED MAQBOOL HUSSAIN
4. MOHAMMED RAFI
S/O MOHAMMED MAQBOOL HUSSAIN.
5. AISHA BEGUM
D/O MOHAMMED MAQBOOL HUSSAIN
ALL R/O ANDROON QUILA,RAICHUR-584101.
6. SHAIK HUSSAIN DEAD BY HIS LRS
6(A) MD.ABID ALI S/O SHAIK HUSSAIN
6(B) WAHID ALI S/O ALI SHAIK HUSSAIN
6(C) MOHAMMED NAYEEMUDDIN S/O SHAIK HUSSAIN
6(D) GULAM MOHAMMED S/O SHAIK HUSSAIN
6(E) SUFIYA BEGUM D/O SHAIK HUSSAIN
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RSA No. 1998 of 2006
7) BEGUM BEE
W/O KHURSHEED HUSSAIN
ALL ARE R/O ANDOOR QUILA
RAICHUR,
DEAD BY LRS
7(A) MOHAMMED IFTEQAR S/O KHURSHID HUSSAIN
AGED ABOUT: 42 YEARS, OCC: CYCLE REPAIRER
R/O BABA HERO HONDA MECHANIC
NEAR MOTI MASJID TIPPU SULTAN ROAD,
RAICHUR.
7(B) MOHAMMED AKTAR S/O KHURSHID HUSSAIN
DEAD BY LRS
7B(I) MOHAMMED IYUB S/O MOHAMMED IFTEQAR
AGE ABOUT: 28 YEARS, C/O BABA HERO HONDA
MECHANIC R/O NEAR MOTI MASJID, TIPPU SULTAN
ROAD, RAICHUR.
7B(II) MOYHAMMED AKBAR S/O MOHAMMED IFTEQAR
AGED ABOUT: 26 YEARS, C/O BABA HERO HONDA
MECHANIC R/O NEAR MOTI MASJID, TIPPU SULTAN
ROAD, RAICHUR.
7 (C) ADAM HUSSAIN S/O LATE KHURSHID HUSSAIN
AGE: 48 YEARS, OCC: MECHANIC
R/O H.NO.5-8-74, NETAJI NAGAR,
ZHANI MOHALLA, JANDA KATTA,
RAICHUR.
7(D) NOOR HUSSAIN S/O HURSHID HUSSAIN
AGE: 45 YEARS, OCC: NIL
R/O ANDROONI QUILLA, RAICHUR.
7(E) ROSHAN ARA W/O MOHAMMED MANSOOR ALI
AGE ABOUT: 40 YEARS, OCC: HOUSEWIFE
R/O H.NO:2-6-12, TIPPU SULTAN ROAD,
ANDROON QUILA, RAICHUR.
7(F) FUROZA BEGUM W/O MOHD. IFTEQAR
AGED: MAJOR, OCC: HOUSEWIFE
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RSA No. 1998 of 2006
R/O C/O BABA HERO HONDA MECHANIC R/O NEAR
MOTI MASJID, TIPPU SULTAN ROAD, RAICHUR.
7(G) FATIMA BEGUM W/O MOHD.SHAH AHMED
SINCE DECEASED BY LRS
7G(I) MOHD. SHABEER HUSSAIN S/O MOHD. SHAH
AHMED(SHAMID HUSSAIN)
AGE: MAJOR, OCC: BUSINESS
R/O H.NO.132/24, BAROON QUILLA RAICHUR
7G(II) MOHD. SHABIR HUSSAIN S/O MOHD. SHAH AHMED
(SHAMID HUSSAIN)
AGE: 27 YEARS, OCC: BUSINESS
R/O H.NO.132/24, BAROON QUILLA
RAICHUR.
7G(III) MOHD. KHADE HUSSAIN S/O MOHD.SHAH AHMED
(SHAMID HUSSAIN)
AGE: 23 YEARS, OCC: BUSINESS
R/O H.NO.132/24, BROON QUILLA
RAICHUR.
...RESPONDENTS
(BY SRI. PRAKASH YELI,ADVOCATE)
THIS RSA FILED UNDER SECTION 100 OF CPC PRAYING
TO ALLOW ABOVE REGULAR SECOND APPEAL AND SET ASIDE
IMPUGNED JUDGEMENT AND DECREE DATED 18.04.06 IN
RA No.94/2006 PASSED BY ADDL.DISTRICT JUDGE(FTC-III) AT
RAICHUR AND ALSO SET ASIDE THE IMPUGNED JUDGEMENT
DECREE DATED 12.1.2005 PASSED BY ADDL.CIVIL JUDGE
(JR.DN) RAICHUR IN OS.NO.195/1990 AND DISMISS SUIT
OS.NO.195/1990 FILED BY RESPONDENTS IN THE ENDS OF
JUSTICE.
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RSA No. 1998 of 2006
THIS APPEAL, COMING ON FOR DICTATING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the legal representatives
of defendant No.1, challenging the judgment and decree
dated 18.04.2006 in R.A.No.94/2006 on the file of Addl.
District Judge (FTC-III), Raichur, confirming the judgment
and decree dated 12.01.2005 in O.S.No.195/1990 on the
file of Addl. Civil Judge (Jr.Dn.), Raichur, decreeing the
suit of the plaintiffs, holding that the plaintiffs are entitled
for 2/7th share in the suit schedule properties.
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 plaintiffs that one Raj
Mohammed was owner in possession of residential houses
bearing Nos.2-6-12 and 2-6-13 situate at Androon Quilla,
Raichur. It is stated in the plaint that the said original
propositus - Raj Mohammed died leaving behind defendant
Nos.1 to 3 and one Mohammad Maqbool Hussain (father of
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plaintiff No.1 and 3 to 5 and husband of plaintiff No.2). It
is the contention of plaintiffs that except these legal heirs,
deceased Raj Mohammed has no other legal heirs.
Defendant Nos.1 and 2 are the paternal uncles and
defendant No.3 is the paternal aunt of plaintiff No.1 and 3
to 5.
4. It is the grievance of the plaintiffs that the suit
properties are the properties of deceased Raj Mohammed
and as such, the plaintiffs have share in the schedule
properties after the death of their father - Mohammad
Muqbool Hussain and accordingly, sought for share in the
property to an extent of 2/7th share in O.S.No.195/1990
before the Trial Court.
5. After service of notice, defendants entered
appearance through their counsel. Defendant No.1 filed
written statement stating that the suit schedule properties
belong to one Mardan Ali - great grandfather of the parties
to the suit and as such, denied the averment made by the
plaintiffs that the properties belonging to Raj Mohammed.
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6. It is further stated by the defendant No.1 that
the defendant Nos.1 and 2 are the paternal uncle and
paternal aunt of the plaintiffs. It is stated in the written
statement that the original propositus - Mardan Ali had
three sons namely, 1) Raj Mohammed, 2) Abdul Razak and
3) Alla Bakash. Defendant No.1 is the son of Raj
Mohammed and the suit properties are fallen to the share
of Abdul Razak and Alla Bakash - paternal uncles of
defendant No.1 and accordingly, denied the averments
relating to relationship between the parties and disputed
the genealogical tree furnished by the plaintiffs.
7. Defendant No.2 has filed separate written
statement stating that one of the houses in the suit
schedule property was purchased by defendant No.2 and
he is the owner in possession of the property in question
and as such, stated that the plaintiffs and other
defendants have no right over the property in question
and accordingly sought for dismissal of the suit.
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8. The defendant No.3 died without filing written
statement and thereafter, the legal heirs of the deceased
defendant No.3 filed separate written statement
contending that they do not have any share in the suit
properties.
9. The trial Court on the basis of the pleadings
framed the issues for its consideration.
10. In order to establish their case, plaintiffs have
examined plaintiff No.1 as PW.1 and marked four
documents as Ex.P.1 to Ex.P.4. Defendants have examined
four witnesses as DW.1 to DW.4 and marked 10
documents as Ex.D1 to Ex.D10. The trial Court on
considering the material on record, by its judgment and
decree dated 12.01.2005, decreed the suit of the plaintiffs
holding that the plaintiffs entitled to have 2/7th share in
the suit properties.
11. Being aggrieved by the same, the legal heirs of
defendant No.1 have preferred an appeal in
R.A.No.94/2006 before the First Appellate Court and the
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appeal was resisted by the plaintiffs. The First Appellate
Court after considering the material on record, dismissed
the appeal by the judgment and decree dated 18.04.2006
and as such confirmed the judgment and decree dated
12.01.2005 in O.S.No.195/1990. Being aggrieved by the
same, the legal heirs of defendant No.1 have preferred the
present second appeal.
12. This Court by order dated 28.08.2008 framed
the following substantial questions of law for its
consideration:-
i) Whether in the facts and circumstances of
the case, the courts below were justified
in granting 2/7th share to the plaintiffs ?
ii) Whether in the facts and circumstances of
the case, the First Appellate Court was
justified in rejecting I.A.No.II for
production of additional evidence ?
13. I have heard the learned counsel appearing for
the parties and perused the original records.
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14. Sri Shivakumar Kalloor, learned counsel
appearing for the appellants contended that the defendant
No.1 has disputed the relationship between the parties and
in this regard the trial Court ought to have framed the
issue relating to the same and in absence of the same, the
finding recorded by the trial Court as well as confirmed by
the First Appellate Court is required to be interfered with
in this appeal and as such, sought for interference of this
Court.
15. Per contra, Sri R.S.Sidhapurkar learned counsel
appearing for the respondent Nos.1, 3 to 5 contended that
the entire trial before the trial Court was based on the
averments made by defendant No.1 in the written
statement and therefore, contended that the issues and
the additional issues framed by the trial Court would
answer the substantial questions of law framed by this
Court and accordingly, sought for dismissal of the appeal.
16. In the light of the submissions made by the
learned counsel appearing for the parties, the relationship
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between the parties as per the contentions raised by the
learned counsel appearing for the appellants/defendant
No.1 is as follows :-
Mardan Ali
Raj Mohammed Abdul Razak Allabaksh Roukiya
Bee
Md.Shareef Shaik Hussain Md.Maqbool Hussain Begum Bee
[D1(1) to (6)] [D2(a) to (e)] (D3)
Md.Nazeer Rahematunnisa Md.Shaif Md.Rafi Ayesha
Ahmed Begum Begum
(P1) (P2) (P3) (P4) (P5)
17. The Genealogical Tree relied upon by the legal
heirs of the plaintiff/respondent Nos.1 to 3 is as follows :-
FAMILY PEDIGREE ACCORDING TO PLAINTIFF
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Mardan Sab (Common Ancestor)
Raj Mohammed (Son)
Son Son Daughter Son
Shaik Hussain Md.Shareef Begum Bee Md.Maqbool Hussain
(D2) (D1) (D3) Father of the plaintiff
(Deceased) (Deceased) (Deceased)
18. On careful examination of the contentions
raised by the parties and to resolve the dispute between
the parties, it is not in dispute that one Raj Mohammed
S/o Mardan Ali was the owner of the property in question
and died leaving behind the father of the plaintiff Nos.1, 3
to 5 and defendant Nos.1 to 3. Defendant Nos.1 and 2 are
the paternal uncles and defendant No.3 is the paternal
aunt.
19. It is the case of defendant No.1/appellant that
the house belongs to Mardan Ali and not Raj Mohammed.
As the said Mardan Ali had three sons namely 1) Raj
Mohammed, 2) Abdul Razak, and 3) Alla Baksh and further
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the defendant No.1 is the son of Raj Mohammed. It is the
case of the defendant No.1 that the remaining two sons of
Abdul Razak and Allabaksh of Mardan Ali had gifted the
house properties in favour of defendant No.1 and as such,
defendant No.1 is owner in possession of the said
properties and also a claim has been made by defendant
No.1 through adverse possession. Undisputably, since, the
relief sought for by the parties is based on the partition in
respect of the immovable properties, the plea of adverse
possession cannot be accepted.
20. On examination of the deposition of DW.2
(defendant No.3) supports the contention of plaintiffs and
though DW.1 deposed about the partition between his
father and uncle, however DW.1 was not born as on the
date of partition said to have been effected between the
father of DW.1 and his uncle-DW.4. Defendant No.2(b)
deposed about the partition between father of plaintiffs
and his brothers, however he depose that he has no
personal knowledge about the parties. Both DW.2 and
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DW.4 have categorically stated about the partition deed.
The entire case of the defendant No.1 relied on Ex.D4(a) -
Nikhanama which shows that the daughter of Abdul Razak
S/o Mardan Ali was given in marriage to one Mohammad
Azam and the said document cannot establish the rights
and contentions of defendant No.1. It is not disputed by
defendant No.1 that the said Raj Mohammed was the son
of Mardan Ali, however, the defendant No.1 fails to
establish before the trial Court that the said Abdul Razak
and Alla Baksh were the sons of Mardan Ali. In the
absence of such proof, ought to have been proved by the
defendant No.1, I am of the view that, the finding
recorded by the trial Court is just and proper. On careful
examination of substantial questions of law framed by this
Court, the trial Court was justified in granting 2/7th share
to the plaintiffs.
21. Nextly, insofar as the rejection of an application
filed by the appellants herein before the First Appellate
Court filed under Order 41 Rule 27 of CPC is concerned, on
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careful examination of the records, I am of the view that,
the First Appellate Court had given a finding that the
appellants therein have not made out a case for accepting
the said application as per finding recorded at paragraph
No.29 of the judgment of the First Appellate Court. Taking
into account that both the courts below have concurrently
held that the defendant No.1 failed to establish the
relationship as contended by them that the said Mardan Ali
had three sons and therefore, I am of the view that, no
interference is called for in this appeal. The finding
recorded by both the courts below is based on the oral and
documentary evidence supported with reasons, and
therefore there is no perversity or illegality in the
impugned judgment and decree passed by the courts
below. Needless to say that the argument advanced by the
appellants cannot be accepted at this stage, after lapse of
33 years, that the trial Court has not properly framed the
issues relating to relationship between the parties. In this
regard, though a feable argument was advanced by the
learned counsel appearing for the appellants, however,
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looking into the additional issues framed thereunder, the
additional Issue Nos.2 and 3 would cover the arguments
advanced by the learned counsel appearing for the
appellants with regard to relationship between the parties.
In the result, the Regular Second Appeal is dismissed and
as such, the substantial questions of law framed by this
Court favours the legal heirs of deceased original plaintiff.
Sd/-
JUDGE
SB
