Karnataka High Court
H S Nazeer Ahmed vs H S Basheer Ahmed Dead By Lrs on 21 October, 2024
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NC: 2024:KHC:42102
RSA No. 1346 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1346 OF 2021 (PAR)
BETWEEN:
H.S. NAZEER AHMED,
S/O LATE C.H.SHAIK HYDER SAB,
AGED ABOUT 65 YEARS,
R/AT C/O. MECHANIC BABU,
NOORANI MASJID ROAD,
VENKATAGIRI CHINTAMANI 563 125.
SRI. INAYATH PASHA,
S/O LATE C.H. SHAIK HYDER SAB,
AGED ABOUT 60 YEARS,
R/AT NO 72/1, BEHIND RAMESH,
FOOD FARE DEPOT, T G TANK ROAD,
CHICKBALLAPUR-563 121.
Digitally ...APPELLANTS
signed by
KAVYA R
Location: (BY SRI. SYED ZAHEERUDDIN BAREED, ADVOCATE)
High Court of
Karnataka
AND:
SRI. H S BASHEER AHMED,
DEAD BY LR's
1. SMT. KOUSAR,
W/O. LATE H.S. BASHEER AHMED,
AGED ABOUT 55 YEARS.
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RSA No. 1346 of 2021
2. SMT. HAJIRA D/O LATE H.S. BASHEER AHMED,
AGED ABOUT 24 YEARS
3. SRI. SHOAIB S/O LATE H S BASHEER AHMED,
AGED ABOUT 30 YEARS
4. SRI. MUSHAIB S/O LATE H S BASHEER AHMED,
AGED ABOUT 32 YEARS
THE RESPONDENT NO.1 TO 4 ARE
R/AT OPP. TO SILK MERCHANT,
NAZEER AHMED'S HOUSE, WARD NO.27,
KURUBARABEEDI, DODDABAJANEMANE ROAD,
CHICKBALLAPUR-562 101.
...RESPONDENTS
(BY SRI. SUBRAMANYA P., ADVOCATE FOR C/R1 TO R4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC 1908,
AGAINST THE JUDGMENT AND DECREE DATED 12.08.2020
PASSED IN RA.NO. 16/2016 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC.,
CHICKBALLAPUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.11.2015 PASSED IN
OS.NO. 177/2011 ON THE FILE OF THE II ADDITIONAL
CIVIL JUDGE AND JMFC., CHICBALLAPUR AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
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RSA No. 1346 of 2021
ORAL JUDGMENT
This Regular Second Appeal is filed challenging the
judgment and decree dated 12.8.2020 passed in
R.A.No.16/2016 by the learned I Additional Senior Civil
Judge and JMFC, Chickballapur and judgment and decree
dated 30.11.2015 passed in O.S.No.177/2011 by the
learned II Additional Civil Judge and JMFC, Chickballapur.
2. For convenience, parties are referred to as per
their ranking before the trial Court. The appellants are
plaintiffs, and respondents are the legal representatives of
the defendant.
3. The brief facts leading rise to the filing of this
appeal are as follows:
Plaintiffs have filed a suit for partition and separate
possession regarding suit schedule properties. It is the
case of the plaintiffs, the suit schedule properties originally
belonged to one Abdul Rehaman Sab, who bequeathed the
same in favour of his daughter Bibi Jan @ Pyarima, who is
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none other than the mother of the plaintiffs and
defendant. After the death of Abdul Rehaman Sab, under
a registered Will dated 17.01.1983, the said Bibi Jan @
Pyarima was in peaceful possession and enjoyment of the
suit schedule properties. She died on 17.05.2006, leaving
behind plaintiffs and defendant. After the demise of Bibi
Jan @ Pyarima, the plaintiffs and defendant were in
peaceful possession and enjoyment of the suit schedule
properties, and they inherited the suit schedule properties
from their mother, and the plaintiffs have a share in the
suit schedule properties.
4. The defendant filed a written statement denying
a relationship with the plaintiffs. It is contended that the
defendant is the only Son of late Bibi Jan @ Pyarima, and
it is contended that there was a prior partition between
the plaintiffs and defendant, and plaintiffs have sold their
property fallen to their respective shares and plaintiffs are
not entitled to claim any partition in the suit schedule
properties. It is contended that the suit filed by the
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plaintiffs is not maintainable. Hence, prays to dismiss
the suit.
5. The trial Court, based on the pleadings of the
parties, framed the issues. To substantiate their case, the
plaintiffs examined plaintiff No.1 as PW.1 and marked 23
documents as Exs.P1 to P23. The defendant has not
entered the witness box nor marked any documents. The
trial Court, after recording evidence, hearing on both
sides, and assessing oral and documentary evidence,
partly decreed the suit of the plaintiffs vide judgment
dated 30.11.2015.
6. The plaintiffs, aggrieved by the judgment and
decree passed by the trial Court in O.S.No.177/2011, filed
a Regular Appeal in R.A.No.16/2016 on the file of the
I Additional Senior Civil Judge and JMFC, Chickballapura.
The Appellate Court, on re-assessing oral and
documentary evidence, dismissed the appeal vide
judgment and decree dated 12.8.2020 and confirmed the
judgment and decree passed in O.S.No.177/2011. The
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plaintiffs, aggrieved by the impugned judgments, filed this
Regular Second Appeal.
7. Heard the learned counsel for the
appellants/plaintiffs.
8. Learned counsel for the plaintiffs submit that
the suit schedule properties originally belonged to Abdul
Rehaman Sab, and he bequeathed the same in favour of
his daughter, Bibi Jan @ Pyarima. After the demise of Bibi
Jan @ Pyarima, the plaintiffs and defendant have inherited
the suit schedule properties. He submits that the plaintiffs
and defendant are tenants in common, and partition is
affected. He submits that the Courts below committed an
error in recording a finding that there was a prior partition
between plaintiffs and defendant. Hence, the Courts below
have not properly appreciated the material on record. On
these grounds, he prays to allow the appeal.
9. Perused the records and considered the
submission of the learned counsel for the plaintiffs.
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10. To establish the case of the plaintiffs, plaintiff
No.1 examined himself as PW.1. He has reiterated the
plaint averments in examination-in-chief and to prove that
the suit schedule properties were owned and possessed by
Abdul Rehaman Sab. He bequeathed the suit schedule
properties in favour of his daughter, namely Bibi Jan @
Pyarima, and produced the Will marked as Ex.P1. Further,
the plaintiffs have also produced the revenue records to
establish that the suit schedule properties were originally
owned and possessed by Abdul Rehaman Sab and
thereafter by Bibi Jan @ Pyarima and to establish the
relationship between the plaintiffs and defendant,
produced a voter list marked as Exs.P10 and P11.
11. During cross-examination, plaintiff No.1 as
PW.1 has categorically admitted that there was a partition
between the plaintiffs and defendant and admitted that
the properties fallen to the share of plaintiffs and
defendant had been sold, and the said properties were not
included in the suit schedule properties. Though the
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defendant has not led any oral or documentary evidence,
the trial Court considered the admission of PW.1, who has
categorically admitted that there was a partition between
plaintiffs and defendant and that they were residing
separately and not tenants in common, dismissed the suit.
12. The Appellate Court, on re-assessment of oral
and documentary evidence, has recorded a finding that
there was a partition between plaintiffs and defendant and
considered the admission of PW.1, who admitted that
there was a partition between the parties to the suit. They
have sold the properties which were fallen to their share.
When there was a prior partition between the plaintiffs and
defendant, question of filing a suit for partition and
separate possession regarding the suit schedule properties
is not maintainable. Both the Courts below have rightly
passed the impugned judgments, I do not find any error in
the judgments or any substantial question of law that
arises for consideration in this appeal. Accordingly, I
proceed to pass the following:
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ORDER
(i) Appeal is dismissed.
(ii) The judgment and decree dated 12.8.2020 in
R.A.No.16/2016 on the file of I Additional Senior
Civil Judge and JMFC, Chickballapur and judgment
and decree dated 30.11.2015 in O.S.No.177/2011
on the file of II Additional Civil Judge and JMFC,
Chickballapur are hereby confirmed.
(iii) No order as to the cost.
(iv) In view of dismissal of the appeal, I.A.Nos.1 and
2/2020 do not survive for consideration.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SMJ
