Karnataka High Court
D K Barkathulla vs Sri N G Sadique Ahamed on 29 July, 2024
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RSA No. 37 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.37 OF 2012 (RES)
BETWEEN:
D K BARKATHULLA
S/O SHAID HUSSAIN
AGED ABOUT 55 YEARS
R/AT NO.58/14, D K SHAMIANA
MANDYA ROAD, NAGAMANAGALA TOWN
MANDYA DISTRICT - 571 432.
...APPELLANT
(BY SRI. MOHAMMED SHAMIL, ADVOCATE FOR
SRI. P B AJITH AND THONTADHARYA R.K., ADVOCATES)
AND:
Digitally 1. SRI N G SADIQUE AHAMED
signed by R S/O LATE MOHAMMED GHOUSE
DEEPA
SINCE DECEASED BY LR'S
Location:
HIGH COURT
OF 1(A) SAYEEDA JAMEELA BEGUM
KARNATAKA W/O N G SADIQUE AHAMED
AGED ABOUT 75 YEARS
1(B) AJUMAND BANU
W/O FAYAZ KAHN
AGED ABOUT 58 YEARS
No.23/1, 6TH MAIN, SBM COLONY
OPP:J.P. PARK MAIN GATE
MATHIKERE,
BENGALURU - 560 054.
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RSA No. 37 of 2012
1(C) SAMEERA BANU
W/O SHAFIQ AHAMED
AGED ABOUT 56 YEARS
BID MOHALLA, HOLENARASIPURA
HASSAN DISTRICT.
1(D) SABEEN BANU
W/O FIROZ PASHA
AGED ABOUT 52 YEARS
2ND CROSS, MANDYA ROAD
ABAD MOHALLA
NAGAMANGALA TALUK
MANDYA DISTRICT
1(E) MOHAMED ATHIQUE
S/O N.G. SADIQ AHMED
AGED ABOUT 43 YEARS
R/AT ABAD MOHALLA,
MANDYA ROAD
2ND CROSS, NAGAMANGALA TALUK
MANDYA DISTRICT.
2. N G FAROOK AHAMED
S/O MOHAMED GHOUSE
SINCE DECEASED BY HIS LR'S
2(A) N NAZEER AHAMED
S/O LATE MOHAMMED GHOUSE,
SINCE DECEASED BY HIS LR'S
2(A)1 JAMEELA
W/O LATE NAZEER AHMED
AGED ABOUT 76 YEARS
2(A)2 SHAFI AHMED
S/O LATE NAZEER AHMED
AGED ABOUT 57 YEARS
2(A)3 AFTAB
S/O LATE NAZEER AHMED
AGED ABOUT 50 YEARS
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RSA No. 37 of 2012
2(A)4 FATAH ALI
S/O LATE NAZEER AHMED
AGED ABOUT 52 YEARS
2(A)5 TAHMIN TAJ
W/O ASLAM PASHA
AGED ABOUT 53 YEARS
2(A)6 MAHE JABEEN TAJ
W/O SHAIK AHMED
AGED ABOUT 59 YEARS
2(A)7 TARANUM BANU
D/O LATE NAZEER AHMED
AGED ABOUT 52 YEARS
2(A)1 TO 2(A)7 ARE R/AT
9TH CROSS
SIDDIQUE NAGAR
MYSURU - 570 015.
2(B) SMT NOORUNNISA
W/O LATE ABDUL JABBAR
DECEASED AND REP. BY LR'S
2(B)1 MOHAMMED ANWAR
S/O LATE ABDUL JABBAR
AGED ABOUT 58 YEARS
CHICKEN MERCHANT
HANIF MOHALLA
MANDYA ROAD
NAGAMANGALA - 571 432
2(C) SMT ZAIBUNNISA
W/O RAHAMAN KHAN
DECEASED BY LR'S
2(C)1 BABU
S/O LATE REHMAN KHAN
AGED ABOUT 57 YEARS
2(C)2 WALI AHMED
S/O LATE RAHMAN KHAN
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RSA No. 37 of 2012
AGED ABOUT 55 YEARS
MASTER GOVERNMENT URDU SCHOOL
DHANAGUR VILLAGE, KASABA HOBLI,
MAVALLI,
MANDYA
2(C)3 FARZAN KHANUM
D/O LATE REHMAN KHAN
53 YEARS
2(C)4 RIHANA KHANUM
D/O LATE REHMAN KHAN, 51 YEARS
2(C)5 NASIMA KHANUM
D/O LATE REHMAN KHAN
49 YEARS
2(C)1,2(C)3, 2(C)4 AND 2(C)5 ARE R/AT
NEAR HANIF MASJID
MANDYA MAIN ROAD
NAGAMANGALA.
2(D) SMT SHAMUSUNNISA
W/O LATE N G FAROOK AHAMED
AGED ABOUT 67 YEARS
INDIAN, HOUSE WIFE,
C/O JAFFAR BUDDAN SHARIFF,
JAMIA MASJID CROSS, SHRAVANABELAGOLA,
CHANNARAYAPATNA TQ
HASSAN DIST., KARNATAKA
...RESPONDENTS
(BY SRI. DEVADAS, SR. COUNSEL FOR
SRI. K S ANASUYADEVI., NYAYAMITRA ASSTS FOR
R1(A-E) & P'SD R2(A)(1-7)
R2(A)- SD
V/O DATED 06.03.2013 NOTICE TO R2(C) IS H/S
SRI. VEERABADRAIAH, ADV. FOR R2(B)(1) AND R2(C)(1-5)
V/O DATED 08.04.2019 APPEAL AGAINST R2(D) IS DISMISSED
AS ABATED)
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RSA No. 37 of 2012
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.11.2011 PASSED IN
R.A.NO.6/2007 ON THE FILE OF THE PRL. DISTRICT JUDGE,
MANDYA, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 23.12.2006 PASSED IN
O.S.NO.133/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) &
JMFC., NAGAMANGALA.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellant
challenging the judgment and decree dated 18.11.2011,
passed in R.A.No.6/2007 by the Principal District Judge,
Mandya.
For the sake of convenience, parties are referred to
as per their ranking before the trial Court. The appellant
is defendant No.1, respondent No.1 is the plaintiff.
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2. The brief facts leading rise to filing of this
appeal are as under:
Plaintiff filed a suit for right of pre-emption. It is the
case of the plaintiff that, one Farook Ahamed, brother of
defendant No.2 filed the suit for right of pre-emption in
respect of portion of house property which originally
belongs to himself, his brother Farook Ahamed and
another brother Sri. Nazeer. The suit schedule property
which is adjacent to the plaintiff's property came to be
sold in favour of defendant No.1 under registered sale
deed dated 19.08.1998. The property so sold is mentioned
as 'B' schedule property and the same is a part and parcel
of 'A' schedule which was the single unit earlier. In spite of
his demand, to reconvey the property on the basis of
pre-emption, the defendants did not come forward and
therefore the plaintiff constrained to file the suit for
enforcing the right of pre-emption.
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3. Defendant No.1 filed written statement denying
the averments made in the plaint, but has admitted the
purchase of property from deceased defendant No.2. It is
contended that there was a common door for the entire
house bearing No.58 earlier and that there is no common
door in the said house and a separate door has been fixed
to all three portions. Hence, there is no common right
over the middle door as it does not exists at all. It is
contended that the plaintiff has not at all exercised his
right of pre-emption at any point of time. Hence, he is not
entitled to seek relief and prayed for dismissal of the suit.
4. Defendant No.2 filed the written statement
contending that house bearing No.38 was divided into 3
portions on the basis of a partition deed dated 27.06.1980
entered into between the plaintiff, defendant No.2 and
another brother Sri. Nazeer Ahamad. The portion of the
house property situated towards the eastern side
measuring 8 X 83 feet had fallen to the share of the
defendant No.2. Towards the western side, property
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measuring 11 ½ X 83 feet had fallen to the share of
Nazeer Ahamad. It is contended that, in between these
two portions middle portion measuring 11 ½ feet X 83 feet
was allotted to the share of plaintiff along with other
properties vide partition deed dated 27.06.1980. The
plaintiff constructed the new building in place of it by
demolishing the old house and another building abutting
this new building by purchasing the same from his brother
Nazeer Ahamed. It is contended that, the use of the door
and the wall in the old house does not arise and therefore,
the question of right of exercise of pre-emption does not
arise. Hence, prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
(1) Whether the plaintiffs are entitled for relief
claim in the plaint?
(2) Whether the suit is barred by limitation?
(3) What order or decree?
Additional Issue:
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(1) Whether the plaintiff has got the right of
pre-emption?
(2) Whether the suit is bad for non-joinder of
necessary parties?
6. The plaintiff in order to prove his case
examined two witnesses as PWs.1 and 2 and got marked 2
documents as Ex.P1 and 2. Defendant No.1 was examined
as DW.1 and examined 4 witnesses as DWs.2 to 5 and got
marked 2 documents as Ex.D1 and Ex.D2. The trial Court
after assessing the oral and documentary evidence of the
parties, answered issues No.1 and 2 and additional issues
No.1 and 2 in the negative and issue No.3 as per the final
order. Consequently dismissed the suit.
7. The plaintiff, aggrieved by the dismissal of suit
in O.S.No.133/2006, has filed the appeal in
R.A.No.6/2007.
8. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
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(1) Whether the appellant has made out good
grounds for adducing additional evidence
on the basis of document styled as family
arrangement?
(2) Whether the trial Court is justified in coming
to the conclusion that the plaintiff did not
have a right of preemption in the present
case?
(3) Whether any interference is called for by this
Court and if so to what extent?
9. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point Nos.1 and
2 in the negative and point No.3 in the affirmative and
consequently allowed the appeal and set aside the
judgment and decree passed in O.S.No.133/2006 dated
23.12.2006 on the file of learned Civil Judge (Sr.Dn.,) and
JMFC, Nagamangala and consequently decreed the suit of
the plaintiff.
10. The defendant No.1, aggrieved by the judgment
and decree passed by the first Appellate Court in
R.A.No.6/2007, has filed this second appeal.
11. Heard learned counsel for the parties.
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12. Learned counsel for the defendant No.1 submits
that the first Appellate Court has not framed the points for
determination properly and he has not considered the
evidence of DWs.2 to 5. He submits that the first
Appellate Court being a final last fact finding Court is
required to re-appreciate the entire evidence on record. He
submits that the first Appellate Court except referring the
judgments of Hon'ble Apex Court has not recorded it's
finding independently. Hence, the impugned judgment is
contrary to the Order XLI Rule 31 of CPC and he has also
not properly considered the provisions under sections 231
and 236 of the Mohammaden Law. Hence, he submits
that the matter requires reconsideration by the first
Appellate Court. Hence, on these grounds, he prays to
allow the appeal.
13. Per contra, learned counsel for the plaintiff
supports the impugned judgment and submits that the
first Appellate Court referring to the judgments of the
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Hon'ble Apex Court has rightly passed the impugned
judgment. Hence, prayed to dismiss the appeal.
14. On 09.10.2018, this court admitted the appeal
on the following substantial question of law :
(1) Whether lower appellate Court was justified
in reversing the judgment and decree
passed in O.S.No.133/2006 by arriving at a
conclusion that plaintiff had established
that he has rightly exercised his right of
pre-emption as provided under sections
231 to 236 of the Mohammedan Law?
15. Perused the records and considered the
submissions of the learned counsel for the parties.
16. Substantial question of law: Though it is the
case of the plaintiff that, plaintiff has got a right of
pre-emption in respect of portion of house property which
belongs to himself, his brothers Farook Ahamed and Sri.
Nazeer. The suit schedule property which is adjacent to
the plaintiff's property came to be sold in favour of the
defendant No.1 through registered sale deed dated
19.08.1998. The property sold is mentioned as schedule
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'B' property and same is a part and parcel of A schedule
property which was a single unit earlier. The plaintiff
demanded to reconvey the 'B' schedule property on the
basis of right of pre-emption, but the defendants did not
come forward. The plaintiff examined himself as PW.1 and
he has reiterated the plaint averments in the examination-
in-chief and produced the documents marked as Ex.P1.
Ex.P1 is the certified copy of the registered sale deed
dated 19.08.1998 executed by defendant No.2 in favour of
defendant No.1. Ex.P2 is the registered sale deed and
further also examined two witnesses as PWs.2 and 3.
Defendant No.1 was examined himself as DW.1 and got
marked two documents i.e., Ex.D1 is the photo and Ex.D2
is the registered sale deed. The trial Court considering the
oral evidence of the parties, held that the plaintiff has no
any sort of pre-emption right and moreover the necessary
requirement as required under Mohammaden Law is not
fulfilled.
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17. The first Appellate Court without referring or
considering the evidence of PWs.2, 3 and DWs.2 to 5 and
only referring to the judgments of Hon'ble Apex Court has
passed the impugned judgment. In order to consider the
case in hand, it is necessary to examine Order XLI Rule 31
of CPC, which reads as under:
'31. Contents, date and signature of judgment
The judgment of the Appellate Court shall be in
writing and shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed
or varied, the relief to which the appellant is
entitled,
And shall at the time that it is pronounced be
signed and dated by the judge or by the judges
concurring therein.'
18. The first Appellate Court while passing the
judgment is required to frame the points for
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determination, the decision thereon, the reason for the
decision. From the perusal of the impugned judgment
passed by the first Appellate Court , the first Appellate
Court has not properly framed the points for
determination. The first Appellate Court is required to
answer each issues framed by the trial Court and record
its finding on those issues and thereafter pass the
judgment. Admittedly, the impugned judgment passed by
the first Appellate Court is not in conformity with Order
XLI Rule 31 of CPC. The first Appellate Court being a final
fact finding Court is required to re-appreciate the entire
evidence on record. Admittedly, the first Appellate Court
has not appreciated the entire evidence placed on record.
Hence, the matter requires reconsideration by the first
Appellate Court. Hence on these grounds impugned
judgment passed by the first Appellate Court is arbitrary
and contrary to Order XLI Rule 31 of CPC. Further, the
first Appellate Court without properly considering the
material on record committed an error in reversing the
judgment and decree passed in O.S.No.133/2006. Hence,
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in view of the above discussion, I answer substantial
question in the negative.
19. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is allowed.
The impugned judgment dated
18.11.2011, passed in R.A.No.6/2007 by the
Prl. District Judge, Mandya, is set aside. The
appeal is restored. The first Appellate Court is
directed to consider the evidence and pass the
appropriate judgment in terms of Order XLI
Rule 31 of CPC.
Parties are directed to appear before the
first Appellate Court on 30.09.2024, without
waiting any further notice. Registry is directed
to transmit the records to the first Appellate
Court, forthwith.
All the contentions of the parties are kept
open.
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The order dated 09.10.2018, passed by
this Court, to continue till the disposal of the
appeal by the first Appellate Court.
As the appeal is of the year 2007, the first
Appellate Court is requested to dispose of the
appeal as expeditiously as possible.
In view of disposal of the appeal, pending I.As., if
any, do not survive for consideration and are accordingly
disposed of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS,RD
