Ahmed Sayed Andanr vs Shekh Mohd Jahid And Ors
2022 Latest Caselaw 2522 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Civil First Appeal No. 455/2006

1. Ahmed Sayed Son of Mohd. Sayed alias Kale Miya, Resident of
Mohalla Guljar Bagh, Tonk (Raj.) (Since Deceased)
1/1. Saydunissa alias Saida Khan
1/2. Sarwar Jahan W/o Mohd. Sayeed aged about 78 years
Both residents of Guljar Bagh, Tonk (Raj.) (Since Deceased)
2. Sabatinussia D/o Mohd. Sayeed alia Kale Miya, Mohalla Guljar
Bagh, Tonk (Raj.)
                                                       ----Plaintiffs-Appellants
                                    Versus
1. Shekh Mohd. Jahid son of Mohd. Sayeed alias kale Miya, R/o
Mohalla Guljar Bagh, Tonk (Raj.)
2. Mohd. Sadik son of Mohd. Sayeed alia Kale Miya
3. Jarena D/o Mohd. Sayeed alias Kale Miya (Deleted)
4. Jakiya D/o Mohd. Sayed alias Kaley Miya, P.S. Mohalla Guljar
Bagh, Tonk (Raj.) (Deleted)
5. Abdul Hai son of Abdul Rashid, Resident of Mohalla Shargid
Pesha, Tonk (Raj.)
6. Abdul Gani son of Abdul Rashid, resident of Tonk (Raj.)
7. Abdul Hameed son of Abdul Rashid, resident of Tonk (Raj.)
8. Rajiya D/o Abdul Rashid, resident of Tonk (Raj.)
9. Rukhsana D/o Abdul Rashid, resident of Tonk (Raj.)
                                                 ----Defendants-Respondent


For Appellant(s)          :     Mr. Praveen Jain
For Respondent(s)         :     Mr. Z.A.Naqvi Sr. Adv. assisted by
                                Mr. Sehban Naqvi
                                Mr. S.S. Hasan with Mr. S.Kashif
                                Hussain


         HON'BLE MR. JUSTICE SUDESH BANSAL
                        Order
REPORTABLE
Reserved on                      :   March 8th, 2022
Pronounced on                                           :        March 24th, 2022
BY THE COURT:-

1. This first appeal has been filed, assailing judgment and final

decree of partition dated 27.05.2006 passed by Additional District

Judge (Fast Track) No.4, Tonk in Civil Suit No.58/2005 titled as

(2 of 11) [CFA-455/2006]

Ahmed Sayed & Ors. Vs. Shekh Mohd. & Ors. The property in

question comprises residential house and five shops situated at

Guljar Bagh, Tonk. Parties are muslim and governed by muslim

personal law of succession.

2. The relevant facts, required to be noticed for purpose of

present first appeal are that property in question belongs to one

Shri. Mohd. Sayeed @ Kale Miya. After his death, he was survived

by his three sons namely Ahmed Sayed (herein appellant No.1),

Shekh Modh. Jahid (herein respondent No.1) and Mohd. Sadik

(herein respondent No.2) and four daughters namely Sabatinussia

(herein appellant No.2), Jarena and Jakiya (herein respondent

Nos.3 and 4) and Jamilunissa (now deceased and represented

through respondent Nos.5 to 9). It is undisputed and rather

admitted position between parties that out of properties of father,

one shop No.1 had been given to waqf during life time of father

and as such this shop is not available for partition between

parties. It is also not in dispute that one another shop No.5 was

given to respondent defendant No.2- Mohd. Sadik with consent of

all the heirs and in lieu thereof, he relinquished his claim of share

in properties of father. Thus, factual position as emerged with

regard to properties for partition and family members is that the

suit property comprising house and three shops were to be divided

among two sons and four daughters of Shri. Mohd. Sayeed @

Kale Miya.

3. According to law of succession in muslims, son gets double

share to the share of daughter. The properties were equally

divided in eight shares, 2/8th-2/8th share goes to two sons and

1/8th-1/8th share goes to four daughters. Since two daughters

respondent-defendant Nos.3 and 4 relinquished their 1/8th-1/8th

(3 of 11) [CFA-455/2006]

share to respondent-defendant No.1 son, therefore, he got 4/8th

share. The 1/8th share of daughter Jamilunissa (represented

through respondent-defendant Nos.5 to 9) was relinquished to

appellant-plaintiff No.1, hence, appellant-plaintiff No.1 got 3/8th

share and appellant-plaintiff No.2 got 1/8th share. Accordingly,

the trial Court declared share of parties in suit property by way of

passing of preliminary decree for partition dated 08.02.2006 in the

manner that appellant-plaintiff No.1 would get 3/8th share;

Appellant-plaintiff No.2 would get 1/8th share and respondent-

defendant No.1 would get 4/8th share.

4. The judgment and preliminary decree for partition dated

08.02.2006 was accepted by all parties and same was not

challenged by either of parties as such same has attained finality

and there is no dispute between the parties about getting shares

in suit property as allocated under the preliminary decree for

partition.

5. In suit for partition or separation of share, prayer is not only

for declaration of plaintiffs share in suit properties but also division

of his share by metes and bounds. In suit for partition, Court at

first stage decides the share of plaintiffs in suit property and

resultantly, in first stage "preliminary decree", declaring shares of

parties is passed under Order 20 Rule 18 CPC. The process of

preparing final decree, is a consequential division of suit property

by metes and bounds, in furtherance to shares declared in

preliminary decree. After passing preliminary decree for partition,

as per Order 26 Rule 13 CPC, the Court appoints a Commissioner

to make actual and final partition of immovable property. Order 26

Rule 14 CPC provides a procedure of Commissioner that

Commissioner shall, after holding an enquiry as may be necessary,

(4 of 11) [CFA-455/2006]

divide the property into as many as shares as may be directed by

preliminary decree under which Commission was issued and shall

allot such shares to parties. The Commissioner prepares his report

and transmit same to the Court. The Court after hearing any

objection which parties may make to the report of Commissioner,

shall confirm, vary or set aside the report of Commissioner. The

Court after placing reliance upon report of Commissioner as it is or

with modification, passes final decree for partition accordingly. The

perception of law is that the endeavour of Court should be, while

passing final decree for partition by metes and bounds, to protect,

preserve and respect possession of parties as far as possible.

While so protecting the possession of parties, there has to be

equalization of shares which has been recognized in law "by

making a provision for payment of owelty". The aforementioned

procedure of partition of immovable properties is provided in law

stands substantiated by judgments of Hon'ble Supreme Court in

case of Shub Karan Bubna @ Shub Karan Vs. Sita Saran

Bubna & Ors. [(2009) 9 SCC 689] and M.L.Subbaraya Setty

(Dead) & Ors. Vs. M.L.Nagappa Setty (Dead) & Ors. [(2002)

4 SCC 743].

6. In present case, since both parties agreed to the preliminary

decree for partition dated 08.02.2006, the trial Court appointed

Court Commissioner to prepare a report of final partition of

property in question according to the shares declared in

preliminary decree for partition. Both appellants-plaintiffs gave

their consent and agreed before the Court Commissioner to have a

joint share i.e. 3/8th + 1/8th = 4/8th. Thus, both the parties

agreed that the property was required to be divided in two equal

shares, it means 4/8th share to both appellants-plaintiffs and

(5 of 11) [CFA-455/2006]

4/8th share to respondent-defendant No.1 The Commissioner,

after giving notice for inspection to both parties, made inspection

and prepared a report dated 06.03.2006 of partition with a site

map. Report of Commissioner was placed on record before the

trial Court to pass a final decree of partition.

7. Appellants-plaintiffs submitted objections dated 22.03.2006

against report of Commissioner. Respondents-defendants

submitted their reply to objections. The trial Court heard counsel

for both parties on the objections and after considering the report

of Court Commissioner, the trial Court passed judgment dated

27.05.2006 and thereby final decree for partition as per metes

and bounds has been passed. The trial Court has slightly differed

from report of Commissioner and in order to give equalization of

share, gave some additional portion to plaintiffs, alongwith the

portion as suggested by Commissioner in his report. As per final

decree for partition dated 27.05.2006, the house and three shops

have been order to be divided by metes and bounds in following

manner:-

"oknhx.k rFkk izfroknh uEcj 1 ds e/; vfUre fMØh fuEu izdkj ikfjr dh tkrh gS%& okn i= dh en uEcj 1 esa of.kZr fookfnr edku] ftls dfe'uj ds }kjk cukdj izLrqr fd, x, utjh uD'kk CywfizUV esa of.kZr fd;k x;k gS] mlesa ls iwohZ rjQ dk fuEu fgLlk oknhx.k dks caVokjs esa fn;k tkrk gS%& 1- edku ds vUnj iwohZ&nf{k.kh rjQ cus gq, nks iV~Vhiks'k iq[rk dejs ,oa mlds vkxs Vhu'ksM] iDdk pcwrjkA 2- edku ds eq[; mRrjh jkLrs ls vUnj ?kqlus ij iwoZ dh rjQ okyh [kkyh tehu] jlksbZ] ySfVªax & ckFk:e rFkk edku ds ckgj cuk gqvk nqdkuuqek iq[rk dejk ¼ftls dfe'uj us oknh uEcj 2 dks nsuk izLrkfor fd;k gS½ 3- edku ds eq[; mRrjh jkLrs ls iwoZ dh rjQ fLFkr nqdku uEcj ,dA dfe'uj ds }kjk izLrqr utjh uD'kk esa of.kZr if'peh fgLlk fuEu izdkj izfroknh uEcj ,d dks fn;k tkrk gS%& 1- edku ds vUnj if'peh rjQ cuk gqvk dPpk dejk ,oa dPpk cjk.MkA

(6 of 11) [CFA-455/2006]

2- bl dPps dejs o dPps cjk.Ms ds lkeus fLFkr [kkyh tehu fdUrq blesa [kqys pkSd dh og tehu 'kkfey ugha gS] tks iwoZ dh rjQ cus gq, iDds iV~Vhiks'k dejs ds lkeus iM+rh gSA 3- mRrjh rjQ okys eq[; jkLrs ls if'peh rjQ fLFkr nqdku uEcj nksA dfe'uj ds }kjk izLrqr utjh uD'kk esa fuEufyf[kr ifjlj mHk; i{k dk 'kkeykrh jgsxk %& 1- bl edku dk mRrjh eq[; jkLrk tks pkj QhV pkSM+k gS rFkk mRrjh jkLrs ls iwoZ dh rjQ yxk gqvk thukA 2- mRrjh jkLrs ,oa thus ds ihNs nf{k.k esa fLFkr [kkyh tehu tks nqdku uEcj ,d dh if'peh fnokj dh lh/k ls nf{k.k dh rjQ cus gq, iDdk pcwrjk rd tk;sxh rFkk blh pcwrjk ds lkFk&lkFk if'pe dh rjQ pyus ij tgka rd pcwrjk tkrk gS ;kuh pcwrjs ds if'peh fdukjs dh lh/k ls ysdj mRrj dh rjQ pkyus ij nqdku uEcj nks dh nf{k.kh fnokj rdA ¼bl [kqyh tehu dks mHk; i{k 'kkeykrh pkSd ds :i esa dke esa ysaxs rFkk bl [kqys pkSd ij fdlh Hkh i{k dks fuekZ.k djus dk vf/kdkj ugha gksxkA½ 3- bl edku ds eq[; mRrjh jkLrs ls if'pe esa fLFkr nqdku uEcj rhu dk LokfeRo mHk;i{k dk 'kkeykrh jgsxkA bl nqdku dk izkIr gksus okyk fdjk;k mHk;i{k vk/kk&vk/kk izkIr djsaxsA dksbZ Hkh i{k vius fgLls dk LFkkukUrj.k nwljs i{k dks dj ldrk gS fdUrq dksbZ Hkh i{k vius vk/ks fgLls dk LFkkukUrj.k nwljs i{k dh Loh--fr ds fcuk vU; fdlh O;fDr dks ugha djsxk fdUrq mHk;i{k feydj iwjh nqdku dk LFkkukUrj.k fdlh dks Hkh dj ldrs gSaA edku ds mRrjh eq[; jkLrs ls iwoZ dh rjQ iwohZ dksus esa fLFkr vfUre nqdku dh vkenuh oDQ esa nh tk;sxhA mHk; i{k viuk&viuk [kpkZ eqdnek ogu djsaxsA vfUre fMØh ipkZ cuk;k tkosA dfe'uj dk uD'kk fMØh dk Hkkx gksxkA "

According to the final decree for partition, the house has

been divided in equal two shares i.e. 4/8th-4/8th ratio.

Appellants-plaintiffs have got two patti posh room, one tin sheded

chabutra, kitchen, W.C., B.T. and one room like shop in eastern

side portion and along with shop No.1 and half share in shop No.3.

The appellants-plaintiffs have been given exclusive access for

ingress and egress to their portion from eastern side as also given

a common right to access from northern side through main

entrance. The Respondent No.1 has got western side portion

comprising two kutcha room with front open chowk, having right

to access through main entrance from northern side and along

with shop No.2 and half share in shop No.3. Since the main

(7 of 11) [CFA-455/2006]

entrance from northern side, has been left common so the portion

of chowk behind the main entrance is also common. To better

understand the final partition by metes and bounds, map

appended with report of Court Commissioner may be seen. Since

the trial Court has not accepted the report of Court Commissioner

as it is but varied with the Commissioner's report in the mannter

that both patti posh room have been given in share of appellants-

plainiffs whereas Commissioner proposed only one patti posh

room and half share of patti posh room in share of plaintiffs. The

division of shares as prescribed in judgment and final decree for

partition stands much more clear and ocular with support of site

map appended with report of Court Commissioner and site map is

part and parcel of the judgment and final decree for partition.

8. Appellants-plaintiffs have preferred this first appeal, assailing

judgment and final decree for partition dated 27.05.2006 passed

by Additional District Judge (Fast Track) No.4, Tonk in Civil Suit

No.58/2005.

9. During pendency of appeal, respondent-defendant No.1

proposes to exchange his 4/8th share with 4/8th share of

appellants-plaintiffs and parties explored the possibility of

compromise, but later on, appellants-plaintiffs declined to accept

the exchange offer. Since parties could not amicably settled

dispute of final partition despite of the fact that both parties have

accepted the decree for preliminary partition, hence, this Court

heard counsel for both parties on merits in relation to final decree

for partition.

10. Appellants-plaintiffs have placed certain additional

documents along with application under Order 41 Rule 27 CPC.

This Court, vide order dated 08.03.2022 observed that relevancy

(8 of 11) [CFA-455/2006]

of additional documents shall be considered while deciding first

appeal on merits.

11. Learned counsel for appellants-plaintiffs has produced

additional documents, in order to put an offer to respondents-

defendants, on the basis of certain subsequent events occurred

after passing final decree for partition dated 27.05.2006.

12. It may be noted that during pendency of this appeal, there

was no interim stay on alienation/transfer of properties which

came in respective shares of parties vide impugned final decree. It

appears that respondent-defendant No.1 has entered into an

agreement to sale with one Mohd. Alsam in relation to one shop

came in his share and one separate civil suit for specific

performance was filed by Mohd. Alsam against respondent No.1.

The civil suit for specific performance was decreed vide judgment

dated 07.04.2016 in the manner that decree for specific

performance shall remain operative subject to decision of first

appeal against final decree for partition. If shop remains in share

of respondent No.1, decree for specific performance can be

executed albeit purchasers would be entitled to get refund of their

sale amount along with interest. Learned counsel for appellants-

plaintiffs has placed a copy of judgment dated 07.04.2016 on

record to make an offer that appellant is ready and willing to

purchase the shop of respondent No.1 but in the opinion of this

Court, such offer has no relevance with the issue of partition,

hence, need not be considered.

13. Appellant-plaintiff has produced another additional document

of sale deed dated 04.05.2011 through which respondent No.1 has

sold his half share in shop No.3 to one Javed Mosad. Counsel for

appellants-plaintiffs offered that plaintiffs are ready to purchase

(9 of 11) [CFA-455/2006]

the half share of shop No.3 as remaining half share of shop No.3

already has come to their share. In this regard, it may be noted

that appellants-plaintiffs have already filed a civil suit against

respondent No.1, claiming preferential right to purchase half

undivided share of shop No.3, which is pending before the trial

Court. A certified copy of civil suit filed on 10.07.2017 has been

placed on record as additional document. In civil suit, the trial

Court has passed an injunction order dated 13.09.2019 and copy

of injunction order has also been placed on record as additional

document. Therefore, the offer to purchase half share of shop

No.3, is also not required to be considered in this appeal.

14. Thus, as far as additional documents of sale deed dated

04.05.2011, civil suit filed on 10.07.2017 and injunction order

dated 13.09.2019 are concerned, same have no relevance with

the issue of partition. If, plaintiffs would succeed in their civil suit

claiming preferential right to purchase half undivided share of

shop No.3, the trial Court would pass appropriate orders and

therefore, offer given by counsel for appellants-plaintiffs is not

required to be considered in present appeal. That apart, the offer

proposed by counsel for appellants, firstly to purchase shop No.2

which came in share of respondent No.1 and secondly to have

preferential right to purchase half share of shop No.3 have arisen

out of subsequent events does not affect the merits of the

impugned final decree for partition in any manner. It is for the

parties, to consider, out of Court either to accept or to not accept

the offers given by appellants-plaintiffs.

15. In such view of matter, additional documents produced by

appellants do not have any relevance to challenge the impugned

decree for partition. This Court, in present first appeal is

(10 of 11) [CFA-455/2006]

examining the legality, validity and equalization of distribution of

shares by metes and bounds between parties through the

impugned decree for partition.

16. Learned counsel for appellants fairly submits that at the time

of filing of this first appeal, appellants were interested in pressing

their objections filed before the trial Court against the report of

Commissioner. At that time, appellants took a stand that they

reside in the western side portion of house in kutcha rooms, so

claimed share in western portion also. Secondly, appellants were

interested in taking shop No.2, which has been given in the share

of respondent No.1 by the trial Court and in lieu of shop No.2,

appellants were ready to handover the possession of shop No.1 to

respondent No.1. At that time, appellant No.2 was not satisfied

with the portion of room marked as EFGH given in her share.

However, after filing of present appeal and having passed near

about 15 years, now appellants are not interested in pressing their

objections raised either before the trial Court or in present first

appeal, assailing final judgment and decree for partition. It so, for

reasons that during pendency of appeal when respondent No.1

offered to exchange his share with share of appellants, appellants

declined to accept such exchange offer. Thus, now during course

of final hearing of this appeal, counsel for appellants submits on

instructions of appellants that they have no objection to maintain

allocation of shares in suit property as granted by the trial Court

by way of impugned judgment and final decree for partition dated

27.05.2006.

17. That apart, this Court examined the merits of impugned

judgment and final decree, it reveals that the trial Court has dealt

with each and every objection of appellants on merits. Thus, even

(11 of 11) [CFA-455/2006]

if impugned judgment is tested on anvil of merits, same do not

suffer from any illegality, infirmity, perversity and any kind of

jurisdictional error. Moreover, now, when counsel for appellants

has also accepted the impugned judgment and final decree for

partition, there is no issue to either modify or vary or to make any

change in final decree for partition, as such same deserves to be

affirmed as it is.

18. Having considered submissions of counsel for both parties

and after appreciation of impugned judgment and material on

record, this Court do not find any factual or legal error in

judgment and final decree for partition dated 27.05.2006 as such

the same is hereby affirmed. The first appeal is found to be devoid

of merits and same is accordingly dismissed. Decree be framed

accordingly.

19. All pending application(s), if any, also stand(s) disposed of.

20. Parties shall bear their own cost and expenses of litigation.

21. Record of the trial Court be returned back forthwith.

(SUDESH BANSAL),J

NITIN /80

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