Sri. S Sadiq Pasha vs Smt. Rahamathbi
2024 Latest Caselaw 18673 Kant

Karnataka High Court

Sri. S Sadiq Pasha vs Smt. Rahamathbi on 26 July, 2024

Author: K.Natarajan

Bench: K.Natarajan

                         1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 26TH DAY OF JULY, 2024

                      BEFORE

      THE HON'BLE MR. JUSTICE K. NATARAJAN

    REGULAR SECOND APPEAL NO.471 OF 2017
BETWEEN:
1.   SRI. S. SADIQ PASHA
     S/O LATE ABDUL SATTAR
     AGED ABOUT 49 YEARS
     RESIDING AT SILK MERCHANT
     ANANDA NAGAR, POLICE STATION ROAD,
     VIJAYAPURA TOWN - 562 110.

2.   SRI. S. WAZID
     S/O LATE ABDUL SATTAR
     AGED ABOUT 47 YEARS
     RESDIING AT OPP: QUBA MASJID,
     VIJAYAPURA - 562 110.
     BANGALORE RURAL DISTRICT.

3.   SMT. RIHANA
     W/O ZAMEER AHMED
     AGED ABOUT 58 YEARS
     RESIDING AT NO.38, 12TH MAIN
     BELL CITY COMPOUND
     OLD GUDADAHALLY (PADARAYANPURA)
     MYSORE ROAD, BANGALORE - 560 026.

4.   SMT. SHAHEENA
     W/O LATE B.S. SAMIULLA
     AGED ABOUT 55 YEARS
     RESIDING AT MAHABOOB NAGAR
     VIJAYAPURA - 562 110.
     BANGALORE RURAL DISTRICT.
                          2




5.   SMT. NASEEMA
     W/O CHAND PASHA
     AGED ABOUT 52 YEARS
     RESIDING AT NO.38, 12TH CROSS,
     BELL CITY COMPOUND
     OLD GUDADAHALLY (PADARAYANAPURA)
     MYSORE ROAD, BANGALORE - 560 026.

6.   SMT. SALEEMA
     W/O IQBAL KHAN
     AGED ABOUT 44 YEARS
     RESIDING AT NEW MEENA MOSQUE
     II CROSS, NEW GURAPPANNAPALYA,
     BANNERGHATTA ROAD, BANGALORE - 560 029.

7.   SMT. RIZWANA
     S/O MOHABOOB ALIK
     AGED ABOUT 40 YEARS
     RESIDING AT NEW MEENA MOSQUE
     II CROSS, NEW GURAPPANAPALYA,
     BANNERGHATTA ROAD, BANGAORE - 560 029.
                                     ...APPELLANTS
(BY SRI. RAVINDRANATH K., ADVOCATE)
AND:
1.   SMT. RAHAMATHBI
     W/O LATE ABDUL SATHAR
     AGED ABOUT 77 YEARS
     RESIDING AT 1ST MAIN, ANANDA NAGAR, OPP:
     POLICE STATION, VIJAYAPURA,
     DEVANAHALLI TALUK - 562 110.
     BANGALORE RURAL DISTRICT.

2.   SRI. MOHAMED HUSSEIN
     S/O LATE ABDUL SATHAR
     AGED ABOUT 61 YEARS
     RESIDING AT MADIBELE ROAD,
     ISLAM NAGAR, VIJAYAPURA,
     DEVENAHALLY TALUK - 562 110.
     BANGALORE RURAL DISTRICT.
                          3




3.   SRI. ABDUL FAROOQ
     S/O LATE ABDUL SATHAR
     AGED ABOUT 57 YEARS
     RESIDING AT NO.109,
     II MAIN ROAD, FAROOKMI MANZIL,
     MUNICIPAL LAYOUT,
     CHIKKABALLAPUR - 562 101.

4.   SRI. H.B. SHIVARAM
     S/O H.K. BACHANNA
     AGED ABOUT 62 YEARS
     RESIDING AT NO.172, II MAIN ROAD,
     BYRAWESWARA NILAYA - 560 024.
     HEBBAL, BANGALORE.
                                      ...RESPONDENTS

(BY SRI. A. RAMAKRISHNA, ADVOCATE FOR R4;
    R1 & R2 ARE SERVED, BUT UNREPRESENTED;
    SRI. R.V. TAJPEOR SAB, ADVOCATE FOR R3;
    VIDE ORDER DATED:25-04-2024;
   A1 TO A6 AND R2 & R3 ARE THE LRS OF DECEASED R1)


     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 7.1.2017 PASSED IN RA NO.12/2010 ON
THE FILE OF THE II ADDL. DISTRICT AND SESSIONS
JUDGE, CHICKBALLAPUR (SITTING AT CHINTAMANI)
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 25.1.2010 PASSED IN OS
NO.73/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN)
AND JMFC., CHINTAMANI.

     THIS REGULAR SECOND APPEAL HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 11.07.2024 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM:   HON'BLE MR JUSTICE K.NATARAJAN
                                           4




    RESERVED FOR ORDERS ON: 11.07.2024
    PRONOUNCED ON          : 26.07.2024




                                 CAV JUDGMENT

This appeal is filed by the appellants/plaintiffs

under Section 100 of CPC for setting aside the

judgment and decree passed by the II Addl. District

and Session Judge Chikkaballapur sitting at

Chintamani.1 in R.A.No.12/2010 for having allowing the

appeal and also to dismissing the suit filed by the

plaintiffs in O.S.No.73/2017 on the file of Civil Judge

Senior Division and JMFC, Chintamani dated

25.10.2010.

2. The appellants are plaintiffs and the

respondents were the defendants before the Trial

court. The ranks of the parties before the trial court is

retained for the sake of convenience.

Herein after referred as first appellate court

3. Heard the arguments of learned counsel for

the parties.

4. The case of the plaintiff before the trial court is

that the plaintiff had filed the suit for partition and

separate possession of the plaintiff legitimate share and

for declaration that the sale deed dated 24.02.1995 is

void and not binding on the share of the plaintiffs.

5. It is alleged that the plaintiffs and defendant

No.2 and 3 are the children of late Abdul sathar. The

said Abdul sathar died in the year 1973 and he was a

K.S.R.T.C driver working in Kolar division. The

defendant No.1 is his wife. The said Abdul sathar died

intestate. The plaintiffs and defendant Nos.1 to 3 are

the nearest legal heirs of deceased Abdul sathar, who

have succeeded to the estate of deceased Abdul sathar.

During his lifetime, he had not transferred the suit

schedule property by way of sale, gift etc., to anybody.

The suit schedule property was purchased by the Abdul

sathar in the year 1954. The said family did not own

any other property except the suit schedule property.

All the family members were depend upon the small

income from the said suit schedule property. After the

death of the Abdul sathar the plaintiffs and defendant

Nos.1 to 3 were succeeded and they are in joint

possession of suit schedule property. Due to the lack of

rains no agricultural operation was done and defendant

Nos.1 to 3 have become hostile towards the plaintiffs.

Hence, the plaintiffs thought for seeking partition of

their respective shares. The plaintiffs have approached

the defendant Nos.1 to 3 for partition, but they

postponed the same and they also threatened the

plaintiffs that they will not give the share of the

plaintiffs. The Plaintiffs obtained the RTC extract, after

that they came to know that the said property was sold

in favour of the defendant No.4, vide sale deed dated

24.02.1995 by the defendant No.3. The said defendant

No.3 had no right to sell the suit schedule property.

Inspite of alleged sale, the plaintiffs and defendant

Nos.1 to 3 are the continuous possession of the suit

schedule property. The defendant No.4 taking

advantage of the absence of the plaintiffs and

defendant No.1 in the village has misused his

possession and got changed the katha illegally in his

name. Hence, the plaintiffs constrained to file the suit.

6. Upon service of summons, The defendant

Nos.1 to 3 did not appear and placed exparte. The

defendant No.4 has appeared through his counsel and

filed written statement and denied all the plaint

averments further contended that he is a bonafide

purchaser of the suit schedule property from the

defendant No.3 under the registered sale deed dated

24.02.1995, for valuable consideration of

Rs.1,23,000/-. He is in actual possession and

enjoyment of the suit schedule property. The defendant

Nos.1 and 2 have put their signature in the sale deed

as consenting witness along with the other members of

the family. The defendant No.4 by furnishing all the

documents to the revenue authorities has got mutated

his name and defendant No.4 has paying taxes to the

Government. The plaintiffs are not entitled to any share

in the suit schedule property. They have not included

their other family properties and suit for partial

partition is not maintainable. The only intension of the

plaintiffs is to see that the money has to be extracted

from the defendant No.4 for their illegal and unlawful

gain. All the parties have colluded each other against

the defendant No.4. The defendant No.4 has raised

eucalyptus trees in the entire extent of the suit

schedule property. Hence, prayed for dismissing of the

suit.

7. After filing the written statement, the plaintiffs

have filed rejoinder to the written statement denying

the fact that the defendant No.4 is the bonafide

purchaser of the suit schedule property. It is also

denied that the defendant Nos.1 to 2 have put their

signature in the sale deed as consenting witnesses. The

plea taken by the defendant No.4 that suit is not

maintainable for partial partition is untenable as these

plaintiffs not aware of the any property belonging to the

late Abdul Sathar and there are no other property

available to the partition. The defendant No.4 ought to

have give particulars of the alleged family properties

which are liable for partition. Hence, the defendant

No.4 is not entitled to take such plea. Hence prayed for

rejecting the plea of the 4th defendant.

8. Based upon the pleadings, the trial court

framed 6 issues,

1. Whether the plaintiffs prove that the plaintiffs and defendants No.1 to 3 are in joint possession and enjoyment of the schedule property.

2. Whether the 4th defendant proves that he is the bonafide purchaser of the suit schedule property from the 3rd defendant for valuable consideration?

3. Whether the suit is notmaintainable for non-inclusion of the other properties belonging to the family of the plaintiffs and defendants No.1 to 3?

4. Whether the suit is bad for non-

joinder of the legal heirs of the remaining members of the family?

5. Whether the plaintiffs are entitled for the relief claimed in the plaint?

6. What order or decree?"

9. To substantiate the claim, the plaintiff No.1

has examined himself as PW1 and marked 5

documents as Ex.P.1 to P.5, on the other hand

defendant No.4 got examined himself as DW1 and got

marked 1 document as Ex.D.1. After hearing the

arguments, the Trial court decreed the suit holding that

the plaintiffs are entitled for 1/6th share each in the suit

schedule property and separate possession thereof.

10. Being aggrieved with the judgment and

decree the defendant No.4 has filed appeal before first

appellate court in R.A.12/2010. The First appellate

Court after hearing the arguments, allowed the appeal

filed by the defendant No.4, by setting aside judgment

decree passed by the Trail Court in O.S.No.73/2007.

Hence, the plaintiffs have filed this second appeal.

11. The learned counsel for the appellants has

vehemently contended that the first appellant Court has

committed error in holding that the partial partition in

not maintainable and also contended even though there

is no pleading in the written statement regarding the

limitation and even there is no grounds regarding the

delay in filing the suit. The first appellate Court frames

own motion point that the suit is barred by limitation,

accordingly, appeal was allowed merely on the ground

that the suit is barred by the limitation, which is not

correct and further contended that in Mohammedans

Law propositus dies, the property of the Abdul sathar

was succeeded by the plaintiff Nos.1 to 7 and

defendant Nos.1 to 3 by inheriting by tenants as

common. It is not undivided share as available in the

Hindu Law. Therefore, it is contended that the property

was inherited by them they become independent owner

of the their share, such being the case, the defendant

Nos.1 to 3 do not have any right to alienating the share

of the plaintiffs. It is also contended that even

otherwise the suit schedule property was alienated in

February 1995 and plaintiffs are not aware about the

alienation to the defendant No.4. When they obtained

RTC for filing suit, then they came to know about the

alienation of the suit schedule property. Therefore, the

suit is within the limitation from the date of their

knowledge as per the article 144 of limitation Act.

12. Learned counsel for the appellants also

contended that as regards to the partial partition, there

is no other property belongs to Abudul Sathar for

including the partition suit, only house property

belonging to the defendant No.1 the mother of the

plaintiffs, the plaintiffs cannot claim any share as is her

own property, as it was sold by them subsequent to the

filing of the suit that is nothing to do with the property

of their mother as the plaintiffs and defendant Nos.1 to

3 are tenants in common. During the pendency of the

this appeal appellant No.1 Rahamathabi has died. In

support of their contention they submitted various

Judgments of the Hon'ble Supreme Court. Therefore,

prayed for allowed the appeal.

13. Per contra, the learned counsel for the

respondent/defendant No.4 supported the judgment

passed by the first appellate court and contented that

the there was house property belongs to the plaintiffs

family, which was sold by the plaintiffs along with the

defendant Nos.1 to 3 subsequent to the suit. Therefore,

contention of the plaintiffs cannot be acceptable and

the suit for partial partition is not maintainable. It is

also contend by the respondent/defendant No.4 counsel

that the suit schedule property was sold in February

1995, but suit was filed in the year 2007, after laps of

12 years. which is barred by limitation and further

contended that the limitation is point of law, therefore

he need not be pleaded in the written statement or in

the appeal grounds more than 12 years of the sale

deed when the suit was filed. Therefore, suit was

barred by limitation. Hence prayed for dismissing the

appeal.

14. Based upon the arguments addressed by the

counsel for the parties, the appeal was admitted on the

following substantial questions of law;

(i) Whether the first appellate Court has committed any serious legal error in dismissing the suit one the ground of limitation that there is no pleading and evidence to that effect.?

(ii) Whether the lower Appellate Court has committed any serious legal error, in holding that the sale deed executed by the deceased Mohamed Hussein's father is valid even against the other legal heirs when there is no specific pleading with regard to any bonafide purchase and legal necessity by the purchaser

[[[ 15. Having heard the arguments and perusal of

the records, which reveals that plaintiffs have filed a

suit for partition and separate possession in respect of

suit schedule property which was purchased by Adbul

Sathar in the year 1954 and he was died in the year

1973 by intestate. It is also admitted fact that plaintiffs

and defendant Nos.1 to 3 are governed by

Mohammedans law.

16. The main contention raised by the appellants

in the first substantial question of law is that the first

appellate court committed error by dismissing the suit

on the ground of limitation, when there is no pleadings

and evidence to that effect. Learned counsel for the

appellants has contended that there is no pleading in

the written statement made by the 4th defendant that

the suit is barred by the limitation and also there is no

evidence adduced before the Trial Court. The said

ground also not urged in the appeal memo and even in

the arguments. Such being the case, the first appellate

court suo motu taken the point of limitation and

allowed the appeal by dismissing the suit is not correct.

Per contra, learned counsel for the

respondent/defendant No.4 has contended that the

limitation is question of law which is need not be

pleaded and adduced in evidence, since the property

was sold in February 1995, whereas, the suit was filed

in March 2007. Therefore, the suit is barred by

limitation of 12 years as per the article 144 of the

Limitation Act. In this regard, respondent counsel has

relied upon the judgment of the coordinate Bench held

in the case of the Rangahanumaiah by LRs. and

others Vs Devaraju in RSA No.209 of 2007 (PAR)

dated 02.06.2023 in para No.27 of the judgment, the

coordinate Bench has held that the specific finding of

the appellate Court in respect of the suit is barred by

time is maintainable, the same is question of law even

though no ground is urged in first appellate Court ought

have considered the same while exercising the power

under Section 100 of CPC, High Court can consider the

point of limitation.

17. Admittedly, there is no ground urged by

defendant No.4 in the written statement that this suit is

barred by limitation and there is no issue framed by the

Trial Court. Even in the appeal memo the ground of

limitation was not urged by the defendant No.4. But the

first appellate Court by sue motu raised the point for

consideration in respect of limitation. It is well settled

principal law that the fact should be urged in the

pleadings but not law. Therefore, the first appellate

Court has rightly considered the limitation point.

Though the appellants Counsel relied upon the

judgment of the Hon'ble supreme Court in the case of C

Haridasan vs Annappath Parakattu Vasudeva

Kurup and others2 was held, no amount of evidence

looked into without any pleadings the Court cannot

decide the subject matter which is not in issue. There is

no second thought in respect of the principal relied by

Hon'ble Apex Court in the said case, that point in

respect of pleadings on the issue in respect of the

disputed facts, but the point of law cannot be pleaded

by the parties, as per the order VI of the CPC.

18. However, the first appellate Court committed

error by not properly appreciating evidence on record

and pleadings of the plaintiffs, wherein, it is specifically

pleaded by the plaintiffs that after the death of their

father Abdul sathar the property was succeeded by

them as tenants in common and they enjoying their

respective share as the owners of their share and

plaintiffs are not aware about the alienation made by

the defendant No.3 and consented by the defendant

Nos.1 and 2, they went on postponing the matter

without giving their share. In order to file civil suit, they

obtained RTC from the Revenue department at that

time they came know that the defendant Nos.1 to 3

had alienated the suit schedule property. Therefore

they specifically pleaded that the cause of action arose

for filing the suit in February 2007 and suit was filed in

March 2007 itself. When RTC were transferred in the

name of the defendant No.4 there is no notice were

issued to the plaintiffs, who are the owners of the suit

schedule property, as on the date transferring in the

name of the defendant No.4, which were transferred

only subsequent to the June 1995. As per the Ex.P3 the

mutation register extract produced, the objection was

called by the Revenue authority for transferring the

Khata from 08.05.1995 till 09.06.1995 and thereafter

Khatha has been transferred. Which reveals the without

issuing the notice to the appellants/plaintiffs who are

the owners and tenants in common but the property

has been muted in the name of defendant No.4 that is

the entry gives the cause of action. The plaintiffs are

not aware the transfer of the property and Khata in the

name of the defendant No.4 the same was came to

their knowledge only February 2007. As per Article 144

of the Limitation Act, 12 years prescribed for filing the

suit, when the possession of the defendant becomes

adverse to the plaintiffs. That apart the plaintiff No.1

himself produced document that they are in physical

possession of the suit schedule property. The learned

counsel for the appellants relied upon judgment of the

Supreme Court in case of the Syed Shah Gulam

Ghouse Mohiuddin and others Vs. Syed Shah

Ahmad Mohiuddin Kamisul Qadri by his LRs. and

others3 as held that in heirs of the deceased

Mohammeden hold the estate of deceased as tenants in

common and denial of title article 144 of the Limitation

Act is applicable. Therefore, I hold that the suit is not

barred by limitation and same is within the time.

Therefore, the appellate Court committed error in

holding the suit is barred by limitation. Hence, I answer

1st substantial question of law in favour for the

plaintiffs/appellants and as against the

respondent/defendant No.4.

19. As regards to the second substantial question

of law, in respect of law prevails for the Mohammedans

that the learned counsel for the respondent has relied

upon judgment of the this coordinate bench in the case

of Usman Sab vs Dastagir sab4, where this

coordinate Bench held in respect of the property

AIR 1971 Supreme Court 2184

ILR 1996-KAR 484

devolves by succession in Mohammedans law, in

paragraph No.10 has held as under;

10. I have applied my mind to the contentions made by the learned Counsel for the appellants and I find there is substance in the contention of the learned Counsel for the appellants. It is well settled principle of law that under the Mohammadan Law, there is no such thing as Joint Hindu Family nor the concept of Joint Hindu Family property applicable to Hindu Law is applicable to the parties of the case like the present case, where they are Muslims. So also, nor there is any concept of treating the properties, obtained through acquisitions of an individual in his own individual name, to be joint family properties, as being acquired representing the family. When I so hold, I find support for the view by the Madras High Court in the case MAIMOON BIVI v. O.A. KHAJEE MOHIDEEN, as well as in the case of MOHAMMED IBRAHIM v. SYED MUHAMMAD ABUBAKKER, AIR 1976 Madras 84 and by this Court in C.K. KRISHNAMURTHY SETTY v.ABDULKHADER, AIR 1956 Mysore 14.

20. In another judgment of this Division Bench of

this Court in case of Mrs.Mehrunnissa and another

Vs Mr.Buddan Sharief in RFA No.142/2019 dated

19.14.2023, the division Bench has held in para

Nos.16, 17 and 18 as under.

16. A member of the family may not be a heir, and vice versa, the owner has exclusive ownership of all properties with full powers of alienation. Joint family property not being recognized and the principle of survivorship is also not known to Muslim Law. When a Muslim dies, his properties devolve on his heirs in definite share of which each heir becomes absolute owner on subsequent death of such heirs, the property passes on to the further subsequent heirs and the process continues. Heirs are entitled to hold the property as tenants in common i.e. meaning group of individuals living and messing together each having definite share and title to the property unless partition of property of deceased according to pre-defined shares. There is no right by birth to any heir and comes into existence for the first time on the

death of the ancestor i.e. the estate devolves at the moment of death itself. There is no doctrine of representation.

17. If the above principle is applied to the present facts of the case, the properties were purchased by Ibrahim Sharieff as per the assertions made in the plaint in the name of his wife Kulsumbi and as per the pleadings, it is Kulsumbi during her lifetime sold the schedule property under registered sale deed dated 16.3.1994. That means, when the property was the exclusive property of Ibrahim sharieff and Kulsumbi either the plaintiffs or defendants No.1 to 17 had no right over the suit schedule property as the property was already sold on 16.03.1994 and it was their exclusive property.

18. The only grievance of the plaintiffs is that, after completion of pleadings and after recording of evidence, the said I.A.No.5 came to be filed. It is settled that an application to reject the plaint can be filed at any stage of the proceedings. When it appears from the pleadings in the plaint that claim of the plaintiffs is barred by Muslim Law as there is no concept of joint family or ancestral property, the learned trial Court is justified in rejecting the plaint. We do

not find any legal infirmity or factual error in rejecting the plaint. No grounds have been made out by the plaintiffs to interfere with the order of rejection of the plaint passed by the learned trial Court. Hence, we record our findings on Point No.1 in the affirmative.

21. In another judgment High Court of Judicature

at Bombay Bench at Aurangabad in the case of

Iliahkhan S/o Younuskhan vs Talayarkhan S/o

Sherkhan in Second appeal No.4 of 1989 taken

similar view at para Nos.11 and 17 held as under:

11. As per Section 52 of the Mahomedan Law (Mulla's Principles of Mahomedan Law, 19th edition), there is no recognition of right by birth in property held by father or forefather.

There could be right either by inheritance or by bequest as per Section 53 of the said Act. Unlike Hindu Law, there is no concept of co-parcenery property under the Mahomedan Law. Therefore, it cannot be said that Younuskhan, the minor son of Respondent No. 4 Sherkhan, had any right or interest in the property of Sherkhan during life time

of Sherkhan. It cannot be said that the trial court and the first appellate court committed any error in holding that Younuskhan could not get any title on the basis of alleged partition. Partition could be between co-sharers or persons having interest in joint property. Respondent No. 4 in his evidence deposed that with a view to avoid the suit land coming under the clutches of the Tenancy Act, he had orally told talathi to enter the suit land in the name of Younuskhan. It is pointed out to me that in the written statement, defendants have stated that the name of Younuskhan was entered by Respondent No.4 only to avoid the land being taken by the government under the Ceiling Act. But, neither of these statements help the plaintiffs in proving their case of Hiba. Thus, there is no oral or documentary evidence regarding Hiba (oral gift) and the circumstances do not indicate that there must be Hiba.

17. In the present case, in view of peculiar position under the Mahomedan Law, where there is absence of right by birth in a property, the theory of partition cannot be accepted. For partition, a person must have some interest or share in the property. Moreover, except the mutation of 1954, there is no document on record to show how Younuskhan

obtained title to the suit property. As stated earlier, there is no oral or documentary evidence on record regarding Hiba.

22. On careful reading of the judgments relied by

the learned counsel for the respondent, where it is

clear, unlike in Hindu law, the property devolves and

undivided share in the immovable property, whereas, in

the Mohammedans Law when the deceased died left

behind the property without intestate, the members of

the family may not be a owner as exclusive ownership

of all the property with full powers of alienation and

property devolves in heirs as definite share of each

heirs are became tenants in common and there is life

time right by birth any heirs come into existence.

Therefore, when Abdul sathar died in the year 1973,

the plaintiffs and defendant Nos.1 to 3 as legal heirs

are become tenants in common and they are entitled

for their share and enjoy as absolute owner of the their

share. Therefore, the defendant No.3 have no

independent right to sell the share of the plaintiffs to

defendant No.4, and defendant Nos.1 and 2 also do not

have any right over the share of the plaintiffs to give

consent to the sale deed. Therefore, defendant Nos.1 to

3 have absolutely there is no ownership over the share

of the plaintiffs to sale the property to defendant No.4

without consent of the plaintiffs. Therefore, the sale

deed made by the defendant No.3 in favour of the

defendant No.4 is not binding on the share of the

plaintiffs.

23. The counsel for the respondent also taken

contention that the suit for the partial partition is not

maintainable and it is contended that the plaintiffs have

filed a suit for partition only one landed property and

they have not included the property of the deceased,

therefore the suit is not maintainable for partial

partition. On other hand, appellants counsel has

contended the plaintiffs have filed rejoinder to the

written statement stating that there is no other

property belongs to the father of the plaintiffs in order

to add in the schedule also contended according to their

knowledge except the suit schedule property there is no

other property and also contended that respondent also

not adduced any evidence to show that the father of

the plaintiffs and defendant Nos.1 to 3 have any other

property. Admittedly, there is no properties stands in

the name of decease Abdul Stathar. However, it is

brought in the evidence that the house property stands

in the name of the 1st defendant Smt.Rahamathabi

which was sold by the plaintiffs and defendant Nos.1 to

3 together. In this regard, the plaintiffs and defendant

Nos.1 to 3 was admitted that there was a house

property belonging to Smt.Rahamathabi mother of the

plaintiffs. The said property is belongs to her property it

is nothing but estate of the women. Therefore, that

property cannot be included in the suit for partition filed

by plaintiffs.

24. The respondent not produced any documents

to show the house property sold by the plaintiffs and

defendant Nos.1 to 3 was belonging to Abdul sathar. On

the other hand, the said property was belong to 1st

defendant and mother of the plaintiffs and defendants.

Therefore, the contention of the respondent cannot be

acceptable that the suit filed by the plaintiffs is for

partial partition. Therefore, the grounds urged by the

defendant No.4 in the written statement and in the

arguments is not sustainable, on other hand suit for

partition is maintainable.

25. In view of the findings above when the

deceased Abdul sathar died intestate and the plaintiffs

and defendant Nos.1 to 3 are hold the suit schedule

property as estate of the deceased by tenants in

common and used to enjoy the property as owner of

their share. Therefore, the other defendant Nos.1 to 3

have no right to alienate the suit schedule property

without their consent to any other person much less to

the defendant No.4. Therefore, the sale deed of the

defendant No.4 executed by the defendant No.3 on

24.02.1995 is not biding on the plaintiffs. Therefore,

the question of bonafide purchase by the defendant

No.4 in respect of suit schedule property regarding the

share of the plaintiffs is not sustainable. Considering

the same, the Trial Court by appreciating the evidence

on record rightly decreed the suit. But the first

appellate Court committed error in dismissing the suit

only on the ground of limitation point is not correct. In

view of answering the first substantial question of law

already held the first appellate Court not correct in

dismissing suit by allowing the appeal. Hence

judgement of the first appellant Court is deserve to be

set aside.

26. Hence, the following order.

ORDER

(i) Accordingly, this appeal is allowed.

(ii) The judgment and decree passed by II Addl. District and Session Judge Chickballapur sitting at Chintamani in R.A.No.12/2010 is hereby set aside and Judgment and decree dated 25.01.2010 in O.S.No.73/2007 on the file of Civil Judge Senior division and JMFC Chintamani, is hereby confirmed.

(iii) Draw decree accordingly.

(iv) No order as to the costs.

Sd/-

(K.NATARAJAN) JUDGE

ASN CT:SK