Karnataka High Court
Syed Javeed vs Mohd. Khamruddin on 28 February, 2025
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RFA No. 200174 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
REGULAR FIRST APPEAL NO. 200174 OF 2023 (PAR/POS)
BETWEEN:
1. SYED JAVEED
S/O SYED GOUS NIZAMI,
AGED ABOUT 44 YEARS,
OCC: BUSINESS,
R/O KHAZI GALLI, BASAVAKALYAN,
DISTRICT BIDAR -585327.
...APPELLANT
(BY SRI. R. J. BHUSARE, ADVOCATE)
Digitally
signed by AND:
SHIVALEELA
DATTATRAYA 1. MOHD. KHAMRUDDIN
UDAGI
S/O MOHS. KHAJAMIYAN PATANGWALE,
Location:
HIGH COURT AGED ABOUT 43 YEARS,
OF
KARNATAKA OCC: BUSINESS,
R/O SHAH HUSSAIN LOCALITY,
BASAVAKALYAN,
DISTRICT BIDAR -585327.
...RESPONDENT
(BY SRI. SACHIN M. MAHAJAN, ADVOCATE)
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RFA No. 200174 of 2023
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 43 RULE 1 OF THE CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC, BASAVAKALYAN IN O.S. NO.
63/2019 DATED 17.09.2021 AND CONSEQUENTLY DISMISS
O.S.NO.63/2019, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
ORAL JUDGMENT
filed under Section 5 of the Limitation Act
(PER: HON'BLE MS JUSTICE J.M.KHAZI)
In this appeal filed under Section 96 read with Order
43 Rule 1 CPC, defendant has challenged the judgment
and decree passed by the Trial Court granting plaintiff half
share in the suit schedule property by metes and bounds
with a provision for space for common staircase in
between.
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2. For the sake of convenience, the parties are
referred to by their ranks before the Trial Court.
3. It is the case of the plaintiff that he and
defendant are co-owners of suit schedule property
consisting of constructed shops with space for staircase.
Originally plaintiff, defendant and one Mohammad Khan
jointly purchased vacant site, wherein suit shops are
constructed and other open space from its previous
owners Mohd. Nasrullah and others through registered
sale deed dated 05.08.2010. After the purchase, they
have sold open space on the western and southern side of
suit shops under registered sale deeds dated 16.09.2011
in favour of Nayeemuddin and others and Mahiboob Pasha
and others.
4. On 16.09.2011 itself Mohammad Khan the
other co-owner has relinquished his share in the suit
property by receiving a sum of Rs.20,000/- from plaintiff
and defendant and executed registered replenishment
deed. Since then plaintiff and defendant are the co-owners
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in joint possession and enjoyment of open space
measuring 30x26 feet. Khata was made out in their joint
names. They have constructed two shops with staircase
after obtaining licence and approved plan.
5. Since, recently defendant has turned hostile
and trying to transfer suit schedule property by way of
lease in favour of others without consent of the plaintiff.
He has also denied right of the plaintiff over suit schedule
property and hence, the suit.
6. After due service of summons, defendant has
appeared before the Trial Court. However, he failed to file
written statement.
7. At the trial plaintiff is examined PW.1. He has
relied upon Exs.P1 to 16.
8. Defendant has not led any evidence on his
behalf.
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9. Vide the impugned judgment and decree, the
Trial Court decreed the suit granting half share in suit
schedule property.
10. Aggrieved by the same, defendant has filed this
appeal contending that, the order under appeal is illegal
and contrary to the evidence on record. Though defendant
appeared through Advocate, due to COVID pandemic, he
could not file written statement. Without looking into the
documents produced by the plaintiff and on the ground
that defendant has not entered into the witness box, the
Trial Court has decreed the suit. The plaintiff is required to
prove his case on the strength of his own and not on the
weakness of defendant. Suit for partition and separate
possession is not maintainable since the parties are not
members of the same family.
10.1. In none of the documents, the specific share
of the plaintiff is specified and therefore the Trial Court is
not justified in holding that plaintiff is entitled for half
share. In the absence of seeking relief of declaration suit
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for partition is not maintainable. The entire investment is
made by the defendant for construction of shops. He has
let out the shops and collecting rent since 5 years. Plaintiff
is not entitled for any share in the suit schedule property.
Defendant requires reasonable opportunity to prove his
defence and pray to set aside the impugned judgment and
decree and remand the case for fresh trial.
11. Defendant has filed I.A.No.1/2023 under
Section 5 of the Limitation Act.
12. On the other hand learned counsel for plaintiff
supported the impugned judgment and decree. He would
submit that despite providing reasonable opportunity,
defendant has not chosen to file written statement. He has
not challenged the order passed by the Trial Court refusing
to extend time for filing written statement. He has also not
led any defence evidence. Consequently, the entire case
of the plaintiff remained unchallenged. Considering the
uncontraverted oral and documentary evidence placed on
record, the Trial Court has rightly decreed the suit. The
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defendant has also not explained inordinate delay of 500
days in filing this appeal and pray to dismiss the appeal as
well as I.A.No.1/2023.
13. Heard arguments and perused the record.
14. Thus, plaintiff and defendant who are not
related, but friends, purchased a vacant site along with
one Mohammad Khan. Consequently, they became the
joint owners of the said property. Out of the same, all the
three have sold two separate portions through sale deeds
of even date 16.09.2011. On that day Mohammad Khan
has relinquished his right over the remaining extent
retained by them. As a result of which, plaintiff and
defendant remained the joint owners in possession and
enjoyment of the remaining extent.
15. Plaintiff claimed that he and defendant invested
and constructed shop premises in the property retained by
them which is the suit schedule property. Alleging that
oflate defendant has became to hostile to him and trying
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to lease the shop premises situated in the suit schedule
property to his adverse interest plaintiff has sought for
partition of half share in the suit schedule property. Since
the suit schedule property and the remaining extent which
was alienated was jointly purchased by plaintiff, defendant
and Mohammad Khan and after the said Mohammad Khan
relinquished his right over the said property, it is plaintiff
and defendant who became the joint owners of suit
schedule property. Therefore, suit for partition is certainly
maintainable. In order to claim partition it is not necessary
that parties should be related as claimed by the defendant
in the appeal memo.
16. The claim of the plaintiff that he and defendant
are entitled for half share each is not disputed by the
defendant by filing written statement examining plaintiff
and also leading defence evidence. It is pertinent to note
that, vide order dated 21.08.2019 Trial Court granted ex-
parte temporary injunction against the defendant
restraining him from alienating the suit schedule property.
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17. As evident from the order sheet, after due
service of summons defendant has appeared on
19.10.2019. From that day the case was posted to
12.12.2019 for filing written statement. On that day
learned counsel for the defendant has filed application
under Section 148 of CPC to extend the time for filing the
written statement. The said application was allowed with
an observation that 90 days time has not elapsed and time
was extended till the next date and case was adjourned to
13.02.2020. On that day once again time was sought on
behalf of defendant for filing written statement. Observing
that already statutory period is over, the Trial Court has
refused to grant further adjournment and noted that
written statement is not filed.
18. Admittedly defendant has not challenged the
said order. Defendant has claimed that due to COVID
pandemic he could not file written statement. However, as
per the Circular No.HCLC 59/2020 dated 19.01.2022,
which is based on the decision of the Hon'ble Supreme
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Court in Miscellaneous Application No.665/2021 in SMW
(C)No.3/2020, the period from 15.03.2020 to 28.02.2022
is to be excluded from calculation of period of calculation.
Since by 13.02.2020 the time for filing written statement
was over, which is before 15.03.2020, the defendant
cannot claim that due to COVID he could not file the
written statement.
19. Thereafter the case was posted for plaintiff's
evidence. In the light of the fact that defendant has not
filed written statement, the Trial Court has taken the cross
examination of plaintiff as nil and by recording that
defendant's evidence is also nil, the Trial Court has
proceeded to pronounce the judgment by decreeing the
suit.
20. Now coming to I.A.No.1/2023, it is also relevant
to note that there is a delay of 500 days in filing the
present appeal. The reasons assigned by the defendant for
the delay is that there was COVID pandemic and the wife
of his brother was admitted to hospital due to COVID and
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for this reason, he could not attend the Court and know
about the decree being passed in favour of the plaintiff.
However, the defendant has not produced any evidence to
establish that his sister-in-law who was admitted to
hospital and that was the reason for him to challenge the
decree in time.
21. The date of judgment is 17.09.2021. As per the
Circular dated 19.01.2022 referred to supra, the period
exempted is 15.03.2020 to 28.02.2022. The defendant
has applied for certified copy of the judgment 22.09.2023
and received the copy on 04.10.2023. Appeal is filed on
11.08.2023. Therefore, out of the above period, the
defendant is entitled for benefit of the Circular from
17.09.2021 to 28.02.2022 and from 22.09.2023 to
04.10.2023 which comes to 177 days. There is delay of
500 days in filing the appeal. If the benefit of 177 days is
given to the defendant, he has no explanation for the
delay of remaining 323 days in filing the appeal.
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Therefore, the defendant is not entitled for condonation of
323 days out of delay of 500 days.
22. The oral testimony of plaintiff coupled with the
documents relied upon by him clearly establish the fact
that he is co-owner of suit schedule property and on
account of strained relationship between him and the
defendant, he is seeking partition of half share in the suit
schedule property. In the sale deed dated 23.07.2010,
there is no specific averments as to the amount invested
by plaintiff, defendant and Mohammad Khan for acquiring
the property in question. Of course they have sold two bits
out of the said property through two separate sale deeds
dated 14.09.2011 for Rs.8,97,000/- and Rs.5,28,000/-
and retained the suit schedule vacant site. On the same
day i.e. 14.09.2011 Mohammad Khan has relinquished his
right over suit schedule property by receiving Rs.20,000/-.
23. Thereafter, plaintiff and defendant have
constructed the suit schedule shops. In the absence of
specific evidence by the defendant, the Court is left with
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no other alternative, but to accept the contention of the
plaintiff that both of them are entitled for equal share in
the schedule property. Despite getting reasonable
opportunity to come up with any specific defence, the
defendant has failed to file written statement and also lead
evidence. The conduct of the defendant clearly indicates
that he is interested in dragging on the matter rather than
defend himself with concrete defence.
24. Thus, both on merit as well as on delay, the
appeal is liable to be dismissed and accordingly the
following:
ORDER
(i) I.A.No.1/2023 filed under Section 5 of
the Limitation Act, is rejected.
(ii) Consequently, the appeal is dismissed
both on the ground of delay and on
merits.
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In view of the disposal of main appeal, pending IAs, if
any, do not survive for consideration and same shall be
disposed of.
Sd/-
(J.M.KHAZI)
JUDGE
SDU
