IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE HON BLE MR. JUSTICE PRADEEP D. WAINGANKAR REGULAR SECOND APPEAL NO.3219 OF 2006

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 31 ST DAY OF JANUARY 2014 BEFORE HON BLE MR. JUSTICE PRADEEP D. WAINGANKAR BETWEEN REGULAR SECOND APPEAL NO.3219 OF SRI ABDUL GHANI S/O ABBU SAB AGED ABOUT 60 YEARS. 2. SRI ABDUL KHALEEF S/O ABBU SAB AGED ABOUT 58 YEARS BOTH ARE RESIDENTS OF: SREE VENKATARAMANASWAMY TEMPLE ROAD, Y.N. HOSKOTE TUMKUR DISTRICT APPELLANTS (BY SRI: N. HARIPRASAD, ADV., FOR A. GOPALAIAH, ADV.) AND 1. SMT. KHAMHRUNNISA W/O K.S. BASHEER SAB AGED ABOUT 40 YEARS R/O HINDUPUR, ANANTHAPUR DISTRICT ANDHRA PRADESH SRI. MUDDANNA S/O DODDA HANUMANTHAPPA MAJOR, R/O RUDRAIHANAROPA VILLAGE Y.N. HOSKOTE HOBLI PAVAGADA TALUK

2 2 TUMKUR DISTRICT RESPONDENTS (BY SRI: H.C. SHIVARAMU, ADV. FOR R1 & R2 SERVED & UNREPRESENTED) *-*-*-*-*-*-* THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED PASSED IN R.A. NO.120/1998 ON THE FILE OF THE CIVIL JUDGE, (SR.DN.), MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED PASSED IN OS.NO.97/1992 ON THE FILE OF THE ADDL. CIVIL JUDGE, (JR.DN.) & JMFC, PAVAGADA. THIS RSA HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING: J U D G M E N T This regular second appeal is filed to set-aside the judgment and decree dated in O.S.No.97/1992 on the file of Addl. Civil Judge(Jr.Dn.) & JMFC, Pavagada and to set-aside the judgment and decree in R.A.No.120/1998 dated on the file of Civil Judge(Sr.Dn.), Madhugiri. 2. The appellants were the defendants in O.S.No.97/1992 on the file of Civil Judge(Jr.Dn.) & JMFC, Pavagada and respondent No.1 was the plaintiff. The

3 3 plaintiff filed a suit for partition and separate possession of her 1/6 th share in the suit schedule properties. It is the case of the plaintiff that plaintiff and defendants are sunni muslims governed by Mohammedan Law. The suit schedule properties originally belonged to the father of the plaintiff and defendant Nos.1 and 2. The plaintiff and defendants are tenants in common and they are in common enjoyment and possession of the suit schedule properties. After the death of their father, plaintiff and defendant Nos.1 and 2 succeeded to the properties of their father Abu Sab, who died about 8 to 9 years prior to the filing of the suit. The liabilities fixed under the suit schedule properties have been discharged fully from out of the estate of the deceased. On such being the case, when the plaintiff demanded her share in the suit schedule properties from defendant Nos.1 and 2, left behind by her father, defendants assured to allot her share in her favour. But, ultimately, they declined. Therefore, the plaintiff filed a suit for partition and separate possession of her 1/6 th share in the suit

4 4 schedule properties. It was resisted by the defendants by filing their written statement. It was contended in the written statement that plaintiff and the defendants are enjoying the properties as tenants in common, though they have admitted that the plaintiff is their sister and that there were properties belonging to their father Abu Sab and that they are governed by Mahommedan Law, the defendants have denied that the plaintiff is entitled for share in the suit schedule properties left behind by Abu Sab. They have contended that their father died in the year 1981, they are in exclusive possession and enjoyment of the suit schedule properties. Further, they contended that there was division by way of Palupatti dated , under which the suit schedule properties were fallen to the share of the defendants and that at the time of partition, plaintiff never claimed any share, if any. On the other hand, she relinquished her right and now she cannot claim any right in the suit schedule properties. It was further contended that the claim of the plaintiff is barred by law of limitation, apart

5 5 from contending that they have perfected their right to the suit schedule properties by adverse possession since they are in enjoyment of suit schedule properties openly, peacefully to the knowledge of the plaintiff and all persons of the locality adverse to the interest of the plaintiff. For all these reasons, defendants sought for dismissal of the suit. 3. Pleadings gave rise to the following issues:- Whether the plaintiff proves that she had got right of residuary share in the suit schedule properties? Whether the plaintiff proves that she is entitled for partition and separate possession of her 1/7 th share in the suit schedule properties by metes and bounds? Whether the suit claim is barred by law of limitation? Whether the defendants prove that they have acquired their title to the suit schedule properties by way of adverse possession?

6 6 Whether the plaintiff is entitled for a decree as prayed for? What order of decree? After framing of the issues, the plaintiff to prove her case examined one K.S. Basheer Sab as PW-1 and relied upon eight documents marked as Exs-P1 to P8. On behalf of the defendants, first defendant is examined as DW-1, one Bommaiah as DW-2, one Ismail Sab as DW-3 and one Mudanna DW-4 purchaser of the suit schedule properties from DW-1 and they relied upon a sale deed marked as Ex-D1. The learned Civil Judge upon hearing the arguments and upon going through the entire material placed on record, by his judgment and decree dated decreed the suit granting 1/6 th share to the plaintiff in the suit schedule properties and for possession of the same by metes and bounds.

7 7 4. Aggrieved by the judgment and decree, the defendants have preferred R.A.No.120/1998. The learned appellate Judge upon hearing the arguments and upon consideration of the entire material on record framed the following points for his consideration:- Whether the plaintiff proves that she got right of residuary share in the suit schedule properties? Whether the plaintiff proves that she is entitled to the relief of partition and separate possession of her 1/6 th share in the suit schedule property by metes and bounds? Whether the defendants prove that they have acquired right over the suit schedule property by way of adverse possession as contended? Whether the judgment and decree of the Court below are opposed to law and facts as contended?

8 8 Whether there are any grounds for this Court to interfere in the impugned judgment and decree under appeal? Whether the plaintiff was not entitled for any of the reliefs as sought before the Court below as contended? What order? The appellate Court on re-appreciation of the evidence by judgment and decree dated dismissed the appeal while confirming the judgment and decree passed by the trial Court. Against the dismissal of regular appeal by judgment and decree dated , this regular second appeal is preferred by the defendants contending that the following substantial questions of law arises for consideration:- 1. Whether the Courts below are justified in granting decree in favour of the plaintiff/respondent No.1 in respect of suit schedule properties, which are exclusively allotted to the share of the appellants-

9 9 defendant Nos.1 and 2 under Ex-P8 registered partition deed effected between the appellants and their father Abu Sab?; 2. Whether the Courts below are justified in granting the decree in favour of the plaintiff in respect of the suit schedule properties, which were allotted to the share of the appellants in the partition effected between the appellants and their father, which are shown as B suit schedule properties? ; 3. Whether the Courts below are justified in granting the decree in favour of the plaintiffrespondent No.1, inspite of admitted document Ex-P8 relied upon by the plaintiff? 4. Whether the suit for partition in respect of properties exclusively allotted towards the share of the plaintiff in a partition between the appellants and their father is maintainable by daughter? 5. Whether the plaintiff-respondent No.1 is justified in filing a suit in respect of suit

10 10 schedule properties, which are exclusively allotted to the share of her bothers in the partition effected between the appellants and their father?. 5. I have heard learned counsel for the appellants and learned counsel for respondent No.1. Though respondent No.2 is served, he remained unrepresented. 6. Admittedly, the parties are Sunnis governed by Mohammedan law. Simple case of the plaintiff is that defendant Nos.1 and 2 are the sons and she is the daughter of one Abu Sab, who died somewhere in the year 1981 intestate. It is her further case that the suit schedule properties are the properties of her father Abu Sab. These facts are not disputed by defendant Nos.1 and 2. The defence of the defendants is that during the life time of their father, the properties were partitioned by way of palu patti dated , copy of which is marked as Ex-P8, which is stated to be in between Abu Sab and defendant Nos.1 and 2-his sons. Thus one thing

11 11 is evident from Ex-P8 that the plaintiff the daughter of Abu Sab was not a party to the said document. She has also not admitted the execution of the said document. Even otherwise, the concept of partition is unknown to Mohammedan Law. Be that as it may, succession opens in case of Mohammedans upon a death of a person, that means to say, the sons or daughter whosoever living at the time of death of the father are only entitled to share in the property of father. They become tenants in common. The father of plaintiff and defendants Abu Sab died in the year 1981 and since at the time of death of father, the plaintiff and defendant Nos.1 and 2 were alive, they are entitled for share in the property. The socalled palu patti set-up by the defendants will not take away the right of the plaintiff being the daughter, who was alive at the time of death of her father. The palu patti has no evidentiary value in the eye of Law. 7. The second contention urged by the appellantsdefendants is that the plaintiff at the time of execution of

12 12 palu patti has waived or relinquished her right. Admittedly, the properties are immovable properties in acres. The plaintiff has categorically denied for having relinquished her share in the suit schedule properties at any point of time. The defendants have failed to produce any such relinquishment deed for plaintiff having relinquished her share in the suit schedule properties. Therefore, the contention of the defendants appellants that the plaintiff relinquished her share does not hold water. The plaintiff got right in the property upon the death of father in the year 1981 and therefore waiver on relinquishment of her right at the time of execution of palu patti in the year 1977 does not arise. Needless to say succession opens on the death of the father. A right by birth is unknown to Muslim Law. Before his death nobody can claim any right in the property of the father Abu Sab. 8. Yet another contention taken by the defendants is that they have perfected their right by

13 13 adverse possession as they are in possession and enjoyment of the suit schedule properties openly, peacefully with the knowledge of the plaintiff and all other people in the locality adverse to the interest of the plaintiff for more than 12 years. It is needless to say except taking such a contention in the written statement, they have not placed on record any evidence oral or documentary, not even a scrap of paper to show that they have perfected their right over the share of the plaintiff over schedule property by adverse possession. The plaintiff and the defendants are the tenants in common and therefore possession of one tenant is the possession of other tenants. I have already stated that she got her right in year 1981 on the death of her father. Suit came to be filed in 1992, even before 11 years from the date of death of father. The question of defendants acquiring the share of plaintiff by adverse possession also does not arise. By taking a plea of adverse possession in a way admitted the ownership right of the Plaintiff.

14 14 9. Learned counsel appearing for the defendants- appellants made a futile attempt during the course of his arguments that the plaintiff failed to implead all the necessary parties to the suit and also not included other properties and therefore suit is bad in law. The defendants have not disclosed which are those other properties left out by the plaintiff and who are the other persons entitle for share. Even if it is presumed for a while that she has not included other properties in the suit, she may loose her interest in those properties. Be that as it may, defendants have also not taken any steps to include those properties except taking a contention that the suit for partial partition is not maintainable. Thus both the Courts below have appreciated the oral and documentary evidence placed on record by both the parties and question of law involved in its right perspective and held that the plaintiff is entitled to

15 15 1/6 th share in all the suit schedule properties. There is no merit in this second appeal. Hence, Regular Second Appeal is dismissed. Sd/- JUDGE *mn/-

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