Karnataka High Court
Ahmed Pasha S/O Dastagir Saheb ... vs Smt.Firoja Begum W/O Dadesab Salotagi @ ... on 29 May, 2024
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RSA No. 7069 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO. 7069 OF 2011 (POS)
BETWEEN:
1. AHMED PASHA S/O DASTAGIR SAHEB MUTAWALLI
SINCE DECEASED BY LR'S.
1(a) SHAHEDA BANU MUTAWALLI
W/O AHMED PASHA
AGED: 77 YEARS, OCC: HOUSEHOLD
R/O: WARD NO.30, KKGS ROAD,
ALIKA ROZA, VIJAYAPUR-586101.
1(b) AKHTAR HUSSAIN MUTAWALLI
S/O AHMED PASHA
AGE: 54 YEARS, OCC: BUSINESS,
R/O: WARD NO.30, KKGS ROAD,
ALIKA ROZA, VIJAYAPUR-586101.
Digitally signed
by SWETA
KULKARNI 1(c) HUSNA NOOR KUDSI
Location: High AGED: 40 YEARS, OCC: HOUSEHOLD
Court of R/O: S.NO.29 ANAND NAGAR SOCIETY,
Karnataka
PLOT NO.15, MANJRI ROAD, KESHWANAGAR
KRB WORKSHOP, PUNE CITY, PUNE
MAHARASTRA-411036.
...APPELLANTS
(BY SRI SANTOSH KUMAR B. BIRADAR, ADVOCATE)
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RSA No. 7069 of 2011
AND:
1. SMT. FIROJA BEGUM
W/O DADESAB SALOTAGI @ BILAGI
AGE: 58 YEARS, OCC: TEACHER
R/O: JUMMA MASJID ROAD,
NEAR ZENDA KATTA,
BIJAPUR-586101.
2. MUNEERAHMED S/O MOULASAHEB BEELAGI
SINCE DECEASED BY HIS LR'S.
2(a) MAHERUNNISA
W/O LATE MUNEERAHMED BEELAGI,
AGE: 45 YEARS, OCC: HOUSEHOLD
2(b) AHATESHAM
S/O LATE MUNNERAHMED BEELAGI,
AGE: 20 YEARS, OCC: STUDENT,
BOTH R/O: C/O SAYED RASOOL KOLAR
NEAR DATARI MASJID BIJAPUR-586101.
...RESPONDENTS
[BY SRI BASAVAKIRAN G.R., ADV. FOR
SRI D P AMBEKAR, ADV. FOR R1;
R2(a) AND R2(b) ARE SERVED]
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY
THE II ADDL. DIST. JUDGE, BIJAPUR IN R.A. NO.27 OF 2008,
DATED: 25TH NOVEMBER 2010, AND ALLOW THIS APPEAL.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7069 of 2011
JUDGMENT
The plaintiff is in second appeal assailing the judgment
and decree dated 25.11.2010 in R.A.No.27/2008 on the file of
the II Additional District Judge, Vijayapura [for short, 'the first
appellate Court'] reversing the judgment and decree dated
10.01.2008 in O.S.No.59/2002 on the file of the Principal Civil
Judge (Sr.Dn.), Vijayapura at Vijayapura [for short, 'the trial
Court'] dismissing the suit of the plaintiff seeking possession
against the defendants.
2. The parties herein are referred to as per their
ranking before the trial Court for the sake of convenience.
3. Plaintiff instituted suit for possession contending
that he is the owner of the suit property which he has received
in an oral family partition between himself and his brothers
which took place in the year 1972. It is further averred that as
the property was in dilapidated condition, he has re-constructed
the suit property as he was serving at Vijayapur. His sister
defendant No.1 who had lost her husband during the year 1964
and her son defendant No.2 requested for residing in the suit
house and the plaintiff handed over the possession of the suit
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house to the defendants and that they are in permissive
possession.
4. Defendants appeared and filed their written
statement inter alia contending that the suit property is the
property of Dastagirsaheb Mutawalli who is the father of
plaintiff and defendant No.1 and it is further averred that the
husband of defendant No.1, who was serving in the Indian
Army, died in the year 1964. So the Government has
sanctioned monetary benefits to defendant No.1 and out of the
said benefits she has constructed the building and started to
reside there. It is averred that the plaintiff and his brothers
have not allotted share to defendant No.1 at the time of alleged
partition in the year 1972 even though she had right over the
property and sought for dismissal of the suit.
5. On the basis of the above pleadings, the trial Court
framed the following issues:
"ISSUES
1. Whether plaintiff proves that he is owner of suit
property?
2. Whether plaintiff proves that defendants are in
permissive possession of the suit property?
3. Whether cause of action arose to file this suit?
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4. Whether this Court has no jurisdiction to try the suit?
5. Whether the Court fee paid is improper?
6. Whether defendants are entitled for the compensatory
costs?
7. Whether plaintiff is entitled for the relief sought for?
8. What order or decree? "
6. The trial Court, on the basis of the pleadings, oral
and documentary evidence, held that the plaintiff was the
owner of the property and the defendants were in permissive
possession of the suit property and by the judgment and
decree, decreed the suit declaring the plaintiff as owner of the
suit property and directed the defendants to hand over the
possession of the suit property to the plaintiff. Aggrieved, the
defendants preferred an appeal before the first appellate Court.
The first appellate Court, after re-appreciating the entire oral
and documentary evidence, arrived at the conclusion that the
defendants are in possession of the suit property and defendant
No.1 being a legal heir of deceased owner Dastagirsaheb
Mutawalli, is also a co-sharer of the suit property and that
plaintiff is not an exclusive owner and dismissed the suit of the
plaintiff for possession. Aggrieved, the plaintiff is before this
Court.
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7. The undisputed fact is that the plaintiff and
defendant No.1 are brother and sister. It is also undisputed
that the suit schedule property originally belonged to the father
of the plaintiff and defendant No.1 namely Dastagirsaheb
Mutawalli. It is also not in dispute that after the death of
Dastagirsaheb Mutawalli, the plaintiff and defendant No.1 being
the legal heirs are entitled for share in the property of their
father. It is the contention of the plaintiff that he has received
the suit property in a family partition between himself and his
brothers. The family partition as contended by the plaintiff is
not evidenced by any deed and admittedly defendant No.1 -
sister of the plaintiff is not a party to the said partition even
assuming that there was a partition between the plaintiff and
his brother.
8. The plaintiff's suit for possession is based on a
mutation entry to contend that his name finds place in the
revenue records and he is the absolute owner of the suit
property. It is well settled principle that mere entry in the
record of right does not create any exclusive right over the
property. The heavy burden was on the plaintiff to prove that
he was the absolute owner of the property and that he was
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entitled for possession. Neither any title deed nor any
materials are placed by the plaintiff to establish as to how a
simple suit for possession without any title by the plaintiff is
maintainable. The plaintiff has also contended that he has
constructed a house in the suit property and he has permitted
defendants to reside in the suit property. The fact remains that
defendant No.1 is the co-sharer along with the plaintiff and his
brothers. The plaintiff cannot claim exclusive right over the
suit property and for him to seek possession of the suit
schedule property. The documents placed by the plaintiff are
not sufficient to establish that he is entitled for possession of
the suit schedule property from defendant No.1. The first
appellate Court being the last fact finding Court, has rightly re-
appreciated and re-analysed the entire oral and documentary
evidence and there arise no substantial question of law for
consideration in the present second appeal. The approach of
the first appellate Court is justified and it warrants no
interference by this Court. Accordingly, this Court pass the
following:
ORDER
The Regular Second Appeal is hereby dismissed.
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The judgment and decree passed by the first appellate
Court stands confirmed.
Sd/-
JUDGE
SWK
CT: VD
