Madras High Court
I.Nazeer Ahamed vs A.Ersadh Ahamed on 3 February, 2022
S.A(MD)No.158 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.158 of 2020
and
C.M.P(MD)No.2305 of 2020
1.I.Nazeer Ahamed
Sulaiha Beevi (died)
2.I.Kaja Najubudeen
3.H.Mahabur Rowther
4.Rabick Nisha
5.Bayaus Banu
6.Aasadh Ussain
7.Asharudeen
8.Rizaana Begam ... Appellants/Appellants/Plaintiffs
Vs.
1.A.Ersadh Ahamed
2.K.Thajiba Begam
3.S.Bismiya Begam
4.S.A.Ahamed
1/14
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S.A(MD)No.158 of 2020
5.M.S.Tharwaz
6.S.M.Syed Mustafa
7.I.Sannachi
8.M.K.Marimuthu
9.M.Fathima Sarmila
10.M.Arumugam ... Respondents/ Respondents/Defendants
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 18.09.2019 passed in
A.S.No.50 of 2014, on the file of the Subordinate Court,
Ramanathapuram, confirming the judgment and decree dated 23.09.2014
passed in O.S.No.5 of 2011 on the file of the District Munsif - Cum -
Judicial Magistrate Court, Rameswaram.
For Appellants : Mr.A.Arumugam
for M/s.Ajmal Associates
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated 18.09.2019 passed in A.S.No.50 of 2014, by the learned
Subordinate Judge, Ramanathapuram, in confirming the Judgment and
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S.A(MD)No.158 of 2020
Decree dated 23.09.2014 passed in O.S.No.5 of 2011 by the learned
District Munsif - Cum - Judicial Magistrate, Rameswaram.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking as before the Trial Court.
3.The case of the plaintiffs, as per the averments made in the
plaint, in short, is as follows :
The suit property originally belonged to S.P.Kasim Rowther
and he died during the year 1980 leaving behind his son Allah Pitchai
and daughters, Kamar Sachena Beevi, Savarmathi Beevi and Sanmjum
Kameela Beevi as his legal heirs and the above said legal heirs have
inherited the suit schedule property after the death of S.P.Kasim Rowther
and that the male legal heir was entitled to 2/5th shares and the female
legal heirs are entitled to 3/5th shares and that Allah Pitchai did not have
any issues and that Kamar Sachena Beevi married Habeeb Mohammed
and both of them died leaving behind the fourth plaintiff as the only legal
heir and that Savarmathi Beevi married Ibrahim Sahib and they did not
have any issues and thereafter, Ibrahim Sahib married Samjun Kameela
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S.A(MD)No.158 of 2020
Beevi and they did leaving behind the plaintiffs 1 to 3 as legal heirs and
that the plaintiffs and Allah Pitchai are in joint possession over the suit
schedule property and while being so, Allah Pitchai had executed a
general power of attorney deed in favour of eighth defendant who in turn
had executed sale deeds in respect of suit schedule property in favour of
other defendants, as power agent of Allah Pitchai and that the plaintiffs
are entitled to 3/5th shares over the plaint schedule property and they
have orally demanded the defendants for amicable partition and they are
not amenable for the same and hence, from 20.01.2011, the defendants
are attempting to alienate and encumber the suit schedule property and
hence, constrained to file the suit seeking preliminary decree for partition
of plaintiffs 3/5th shares over the suit schedule property and for
permanent injunction restraining the defendants from encumbering the
suit schedule property and for costs.
4.The defendants 4 and 6 have filed a written statement
contending that the suit property belonged to Allah Pitchai and he was in
possession by having patta No.327 correlated to new patta No.55 and
1366 and that Allah Pitchai had executed a registered general power of
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S.A(MD)No.158 of 2020
attorney deed No.340, dated 13.09.2000 in favour of the eighth
defendant and he had sold 84 cents of punja lands, out of 1 acre 90 cents
of land comprised in Survey No.123/1 in favour of one Kalidoss by
virtue of a sale deed, dated 25.05.2005 and that the witness Kalidoss had
sold it to the fourth defendant by virtue of a registered sale deed dated
02.06.2006, who in turn had sold it to the sixth defendant by virtue of a
registered sale deed, dated 05.11.2009 and handed over the absolute
possession and enjoyment and that the rest of the portion of the property
was sold to other defendants and that the property purchased by the sixth
defendant was sub-divided as Survey No.123/1b and he is in possession
over the same and that Allah Pitchai died issueless on 07.08.2007 and
that the cause of action is illusory and that the Court fee paid under
Section 37(2) of Tamil Nadu Court Fees and Suit Valuation Act is not
correct and prays for dismissal of the suit with costs.
5. Before the trial Court, on the side of the plaintiffs, P.W.1
and P.W.2 were examined and Exs.A1 to A8 were marked. On the side
of the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.9
were marked.
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S.A(MD)No.158 of 2020
6. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has dismissed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiffs, as appellants, had filed an Appeal Suit in A.S.No.50
of 2014, on the file of the Subordinate Court, Ramanathapuram. The
first appellate Court, after hearing both sides and upon reappraising the
evidence available on record, had dismissed the appeal and confirmed
the Judgment and decree passed by the trial Court. Challenging the said
concurrent Judgments and decrees passed by the Courts below, the
plaintiffs preferred this Second Appeal.
8. Heard the learned counsel for the appellants / plaintiffs
and also perused the materials available on record.
9.The learned counsel for the appellants/plaintiffs would
submit that the Courts below have failed to consider the admission made
by D.W.1 regarding the ancestral nature of suit schedule property and the
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S.A(MD)No.158 of 2020
judgments and decrees of the Courts below are completely contrary to
law and the present Second Appeal has got several substantial questions
of law. The Courts below ought to have held that Allapitchai, vendor of
Ex.A.5 was only a co-owner and he was not entitled to encumber or
alienate the entire property and the said sale deed is valid only in respect
of his 2/5th share. The Courts below ought to have seen that in the
written statement of the contesting defendant have not chosen to state
that Allah Pitchai was not having any sisters. Only during the evidence
it was stated by the defendants that Allah Pitchai was not having any
sisters. That piece of evidence should have been disregarded on the
ground that there was no pleading to that effect in the written statement.
When the plaintiff categorically stated that the said Allah Pitchai had
sisters and that was not denied in the written statement and it should be
taken that the said averment in the plaint was accepted by the contesting
defendant and that a specific question was put to D.W.2 that the suit
property belonged to S.P.Kasmil Mohamed Rowther and that the same
was accepted by D.W.2. The Courts below ought to have accepted the
entire evidence both oral and documentary on the side of the appellants
and rejected that of the respondents. The judgment and decree of the
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S.A(MD)No.158 of 2020
Courts below were based on surmises and conjectures, which is un-
sustainable in law and the same is liable to be set aside and hence,
prayed to allow the Second Appeal.
10. On going through the averments, it is seen that the suit
schedule property measuring to an extent of 2.90.0 hectares comprised in
Survey No.117/3 and 0.77.0 hectares comprised in Survey No.123/1
measuring a total extent of 9 acres and 6 cents. There is no dispute over
the suit schedule property and that the Genealogy starts with one
S.P.Kasim Rowther and Allah Pitchai is his son. Kamar Sachena Beevi,
Savarmathi Beevi and Sanmjum Kameela Beevi are his daughters.
11. The suit schedule property originally belonged to one
S.P.Kasim Rowther and he died intestate in the year 1980 and hence his
property was inherited by his son and daughters namely, Allah Pitchai,
Kamar Sachena Beevi, Savarmathi Beevi and Sanmjum Kameela Beevi.
The male heir Allah Pitchai was entitled to 2/5th share and three
daughters each were entitled to 3/5th share and the legal heirs of the
daughters, the plaintiffs herein are entitled to the above said 3/5th share
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S.A(MD)No.158 of 2020
and hence, they have claimed the 3/5th share over the suit schedule
property. However, the defendants contended that the said Allah Pitchai,
during his life time, had executed a registered general power of attorney
deed dated 13.09.2000 in favour of the eighth defendant/
M.K.Marimuthu and the said Marimuthu as the power agent of Allah
Pitchai, has sold the suit schedule property in favour of other defendants.
12. If the suit schedule property exclusively belongs to
Allah Pitchai, the same was sold to the other defendants and hence the
plaintiffs cannot claim any share over the suit schedule property.
However, the burden of proof is on the plaintiffs who have come filed
the suit seeking the relief of partition. The plaintiffs have not produced
any document to show their title or possession of S.P.Kasim Rowther.
13. Further in Ex.A.2 to A.6 it has been mentioned that the
properties described in the sale deeds are part and parcel of suit schedule
properties which belonged to Allah Pitchai ancestrally. The plaintiffs are
Islam by birth and so they are governed by personal Mohammedan Law.
Further under Mohammedan Law the concept of ancestral and self-
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S.A(MD)No.158 of 2020
acquired property is not recognised. As long as a person is alive, the
property owned by him is his absolute property. Further the recitals
found in the document would not prove the nature of the property.
Further the recitals found in Exs.A.2 to A.6 also will not prove the title
of S.P.Kasim Rowther. Further the plaintiffs have produced Ex.A.8
certified copy of the settlement deed dated 30.11.1972 executed by his
mother Beevi Ammal to his son one Sharfudeen. In the said document,
northern boundary has been shown as the property of C.P.Kasim
Mohammed Rowther. Further the plaintiffs have failed to produce the
field map to show the lie of the properties in Survey Nos.117/3 and
123/1 which is the suit schedule property and in the absence of any
document is unable to find out that the suit property lies on the northern
boundary of Ex.A.8 as referred to supra. Further in the suit schedule
property, the southern boundary is shown as the property of one
S.O.M.Abdul Samathu and sharers. Further Ex.A.8 Settlement Deed
dated 30.11.1972 will not help the case of the plaintiffs and no further
document has been produced on the side of the plaintiffs to show the lie
of the suit schedule property.
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S.A(MD)No.158 of 2020
14. Further in Ex.B.1 document refers to one Allah Pitchai
son of Kasim Rowther. But the plaintiffs have not produced any
documents to show that father of Kasim Rowther is the said Allah
Pitchai. If the father of Kasim Rowther is Allah Pitchai then in his initial
'A' would have been included, but nowhere, Kasim Rowther has been
referred with the initial 'A'. If the suit schedule property belonged to the
father of Kasim Rowther then it is for the plaintiffs to furnish necessary
documents regarding his legal heirs and about their inheritance. But it is
not the case of the plaintiffs that the suit schedule property originally
belonged to the father of Kasim Rowther and the same was inherited by
Kasim Rowther subsequently. Ex.B.1 document has been prepared in the
year 1959. However, Kasim Rowther died during the year 1980 and
under Mohammedan Law the concept of ancestral and self-acquired
property is not recognised and as long as a person is alive, the property
owned by him is termed to be his absolute property and no right of any
legal heir accrued until his death. If the said Kasim Rowther alive till
1980, he would have been in possession and enjoyment over the suit
schedule property and his name would have been entered in the revenue
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S.A(MD)No.158 of 2020
records. But in Ex.B.1 settlement deed a name of Allah Pitchai has been
shown as the holder of the land.
15. In view of the above this Court is of the view that the
plaintiffs have failed to prove that the suit schedule property originally
belonged to S.P.Kasim Rowther and as per the entries made in Ex.B.1
settlement deed and the subsequent conduct of Allah Pitchai, this Court
comes to the conclusion that the suit schedule property exclusively
belongs to Allah Pitchai. During his life time, Allah Pitchai had
executed Ex.A.2 power deed and had sold the suit schedule property in
favour of the defendants. Hence, no property is available for partition as
sought for by the plaintiffs in the suit that has been filed for preliminary
decree for partition and for permanent injunction. Therefore, the
plaintiffs are not entitled for any relief as sought for in the suit and hence
the Courts below have rightly rejected the claim of the plaintiffs and this
Court finds no reason to interfere with the well reasoned judgment of the
Courts below. That being the case, this Court is not inclined to interfere
with the concurrent findings of the Courts below and also there is no
question of law much less substantial question of law involved in this
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S.A(MD)No.158 of 2020
Second Appeal that has to be decided by this Court and hence, the
Second Appeal is devoid of merits and the same fails.
16. In fine, the Second Appeal is dismissed. However, there
shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
03.02.2022
Index : Yes/No
Internet : Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Subordinate Court,
Ramanathapuram.
2.The District Munsif - Cum - Judicial Magistrate Court,
Rameswaram.
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S.A(MD)No.158 of 2020
V.BHAVANI SUBBAROYAN, J.
rm
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.158 of 2020
03.02.2022
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