w w w . L a w y e r S e r v i c e s . i n



Phatru Shah v/s Moulana Shah & Others


Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- MOULANA COMPANY LIMITED [Active] CIN = U74999TN1954PLC001521

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

    RSA No. 7529 of 2010

    Decided On, 13 March 2018

    At, High Court of Karnataka Circuit Bench OF Kalaburagi

    By, THE HONOURABLE MR. JUSTICE B. VEERAPPA

    For the Appellant: Sanjeevkumar C. Patil, Advocate. For the Respondents: R2, R3, (a, b & e) & R4, Ratankumar, Venkatesh, Advocate.



Judgment Text

(Prayer: This RSA is filed under Section 100 CPC praying to, call for records and set aside the judgment and decree passed by the presiding officer FTC-I Bidar, in R.A.No. 31/1994 Dated 20.08.2010 and the judgment and decree passed by the Prl. Munsif Bidar in O.S. No. 60/1985 Dated 18.06.1994, further decree the suit of plaintiff.)

1. The unsuccessful plaintiff has filed the present regular second appeal against the judgment and decree dated 20.08.2010 made in R.A.No.25/2004 on the file of the Presiding Officer Fast Track Court-I Bidar, dismissing the appeal, confirming the judgment and decree dated 18.06.1994 made in O.S.No.60/1985 on the file of Prl. Munsif Bidar dismissing the suit of the plaintiff for partition and separate possession.

2. The present appellant who is plaintiff before the Trial Court filed a suit in O.S.No.60/1985 for partition and separate possession in respect of suit schedule property contending that the plaintiff, defendant No.9 and father of defendant Nos.1 to 6 by name Hyder Shah are related as full brothers being the sons of Ismail Shah. The defendant No.7 is the wife of said Hyder Shah. The suit land is known as "Takiya Fakir' is the ancestral property of the plaintiff and defendants belonging to Ismail Shah who expired before the Police Action. The late Hyder Shah being the eldest son was managing the property after the death of Ismail Shah. Therefore, the patta in respect of the suit land was sanctioned in the name of Hyder Shah. But the plaintiff, defendant No.9 and late Hyder Shah were enjoying the suit land as equal shares. However in the Pahani of the suit land the word "others" is shown indicating the plaintiff and defendant No.9 are joint owners along with late Hyder Shah. There was no partition in the joint family. The plaintiff has got 1/3rd share and defendant No.9 got 1/3rd share and Defendant No.1 to 8 have got joint 1/3rd share in the suit schedule property. When the plaintiff and defendant No.9 were out of village serving at different places being Government Servants, taking undue advantage of the same, the defendant No.1 in collusion with Village Accountant and Revenue Inspector has got sanctioned mutation in his name on 18.07.1983 by suppressing the share of the plaintiff and defendant No.9 in the suit land. The plaintiff some days back came to know the said fact. He approached the defendants No.1 to 8 and asked them to give him his 1/3rd share for which they have refused. Accordingly, plaintiff filed a suit for partition and separate possession.

3. Defendant Nos.1 to 6 have filed the written statement and the relationship of the parties as shown in the plaint is admitted. The allegations made in the plaint were denied and contended that the ancestral properties including of lands other than the suit land, the plaintiff and defendant No.9 were allotted their share by late Ismail Shah. The plaintiff and defendant No.9 have disposed of those lands long back. In the same manner, late Hydar Shah, the father of defendant Nos.1 to 6 was allotted the suit land by Ismail Shah, which they have kept preserved till today and which are in their exclusive possession and enjoyment as owners thereof. The plaintiff having disposed of lands fallen to his share has got a greedy eye upon the suit land and he tried to make a false claim. Therefore, sought for dismissal of the suit.

4. Based on the above pleadings of the parties, the Trial Court framed the following issues:

1. Does plaintiff show that himself, defendant No.9 and defendants No.1 to 8, through said Hyder shah are joint owners of suit land, as asserted?

2. Does he further show that they have been in joint possession of the suit land?

3. a) Does he further show that he is entitled to share in the suit land?

b) If so, what is the extent share of each including plaintiff?

4. Do defendants No.1 to 8 show that suit is barred by limitation?

(as contended in para-4 of written statement)?

5. a) Do they further prove that the court-fee paid is insufficient?

b) If so, what is the court-fee payable?

6. Do they further prove that the suit is bad for;

1) Mis-Joinder of parties?

2) Non-Joinder of parties?

(as contended in para-10 of the Written Statement)

7. Reliefs?

5. In order to establish the case of the plaintiff, the plaintiff examined as PW.1 and one witness as PW.2 and got marked documents as per Exs.P1 to P12. The defendants have examined defendant No.1 as DW.1 and other two witnesses as DWs.2 and 3 and got marked documents Exs.D1 to D6.

6. The Trial Court considering the oral and documentary evidence on record recorded a finding that the plaintiff failed to prove that himself, defendant No.9 and defendant Nos.1 to 8 through Hyder Shah are joint owners of the suit land. Further, the plaintiff failed to prove that they are in joint possession of the suit land and he is not entitled to any share in the suit land. The defendant Nos. 1 to 8 proved that the suit is barred by limitation as contended in paragraph No.4 of the written statement. Accordingly, the Trial Court by the impugned judgment and decree dated 18.06.1994 dismissed the suit holding that there was earlier partition.

7. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff filed an appeal in R.A.25/2004 (R.A.31/1994) before the Presiding Officer, FTC-I Bidar, who after hearing both the parties by the impugned judgment and decree dated 20.08.2010 dismissed the appeal. Aggrieved by the concurrent finding on facts by both the Courts below, present second appeal is filed as a last ditch attempt.

8. I have heard the learned counsel for the parties to the lis.

9. Sri Sanjeevkumar C. Patil, learned counsel for the appellant vehemently contended that the impugned judgment and award passed by the Courts below dismissing the suit for partition is erroneous and contrary to the material on record. He further contended that both the Courts below have not considered the record of rights produced by the plaintiff, which clearly depicts that the name of defendant No.1 'Wagere' other has been shown. Hence, the plaintiff and defendant No.9 have got share in the suit property. He would further contend that the material on record clearly depicts that there was no partition. Therefore, he sought for allowing the appeal by setting aside the impugned judgment and decree.

10. Sri Ratnakar & Sri Venkatesh, learned counsels for respondent Nos.2, 3 (a), 3(b), 3(e) and 4 sought to justify the impugned judgment and decree of the Courts below.

11. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.

12. It is the specific case of the plaintiff that he, defendant No.9 and father of defendant Nos.1 to 6 are related as full brothers being sons of Ismail Shah and they are entitled for 1/3rd share in the suit property and there was no partition. The defendants denied the same by filing written statement and contended that there was partition and the suit filed by the plaintiff is not maintainable. The Trial Court mainly relying upon Ex.P11 - Sale Deed executed by the plaintiff on 21.03.1985 and Ex.P12 - Sale Deed executed by defendant Nos.1 to 6 on 27.03.1985 held that there was earlier partition and therefore, the plaintiff and defendants have sold their respective shares under the said registered sale deeds. Ex.D1, the notice issued to defendant No.1 by the Deputy Commissioner clearly indicates that there was partition in the joint family property. The Trial Court considering the entire material on record recorded a finding that the plaintiff has sold the land bearing Sy.No.94 measuring 1 acre 3 guntas under the sale deed as per Ex.P11. In the same manner, defendant Nos.1 to 6 also sold the land bearing Sy.No.96/B measuring 1 acre 18 guntas under the sale deed as per Ex.P12. The plaintiff in the cross- examination admitted that there are ancestral lands belonging to his father Ismail Shah but he has not whispered anything about the sale deeds in his plaint. Therefore, he suppressed the fact of other lands belonging to his father, which have been disposed off by him and defendant Nos.1 to 6 separately. After his cross-examination, he has produced the sale deeds as per Exs.P11 and 12 by seeking the permission of the Court for further examination in chief stating that he himself and defendants have jointly executed the sale deeds on different dates of their respective shares. But, on perusal of the said sale deeds, it is noted that they were executed on different dates i.e., Ex.P11 on 21.03.1985 and Ex.P12 on 23.03.1985. Moreover, the defendants were not parties in the sale deed at Ex.P12. Hence, it is difficult to say that sale deeds were jointly executed by the plaintiff and defendant Nos.1 to 6. Therefore, the contention of the plaintiff cannot be accepted.

13. The records goes to show that some lands belonging to Ismail Shah the original propositor were held by the plaintiff, defendant Nos.1 to 6 and defendant No.9. Further, it goes to show that the parties were enjoying these lands as their separate property. Ex.D1 is the notice issued by the Deputy Commissioner on 27.10.1972 in respect of acquiring 3 guntas of land in suit land bearing Sy.No.151. The said notice was issued in the name of Moulan Shah - defendant No.1 calling for the objections. The plaintiff in his cross-examination admits about the acquisition of portion of the suit land but has stated that the said acquisition was earlier to 1947 and that the compensation was paid to Hyder Shah. Further, he stated that he has not taken any action for taking his share in respect of the compensation to defendant No.1 for the said acquisition. The record also goes to show that in the year 1972 another acquisition proceeding was held in the name of Moulan Shah.

14. On re-appreciation of the entire material on record as contemplated under the provisions of Order 41 Rule 31 of CPC, the appellate Court held that the evidence of both the parties clearly indicates that in the RORs for the year 1951-52 to 1983-85, the name of Hyder Shah was shown as Pattedar and cultivator of the suit land. Ex.P9 is mutation in the name of defendant No.1 in respect of the suit land dated 16.07.1983. The said Hyder Shah died in the year 1971 or 1972 but his death certificate was not produced. The appellate Court further recorded a finding that that plaintiff sold land Sy.No.94 under Ex.P11 sale deed dated 21.03.1985 in favour of one Gurushantappa Swamy. It is the contention of the plaintiff that all three brothers sold different family properties jointly in the name of one Swamy in the year 1985 and the lands sold were also joint family properties of all the three brothers. But, on perusal of Ex.P11, it is clear that defendant Nos.1 to 6 and defendant No.9 are not parties to the said sale deed. The said document is exclusively executed in the name of Gurushantappa Swamy. It is pertinent to note that the purchaser took the signature of sons of the plaintiff by name Abdul Hameed and Abdul Jabbar as consenting witnesses for the sale deed and the wife of the plaintiff Rahamat Bi signed the sale deed as witness. This fact again goes to show that the plaintiff and his successors were exclusive owners of the said land and therefore, the vendee has taken precaution to get the signature of sons of and wife of plaintiff to the said sale deed. If the land was joint property of the plaintiff and his brothers, the vendee would have certainly obtained signatures of defendant Nos.1 to 6 and defendant No.9 to avoid future litigation. It is also pertinent to note that Ex.P12 is the sale deed

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executed by defendant No.1 on 27.03.1985 in favour of one Manikappa Hatkar. This sale deed goes to falsify the contention of the plaintiff that joint properties were sold by all the three brothers jointly in favour of same person on same day. Thus, it is clear that the vendee Manikappa has taken signatures of brothers of defendant No.1 to avoid future litigation. Hence, the appellate Court held that apart form entries in revenue records there are other corroborative evidence to dismiss the suit of the plaintiff and accordingly, dismissed the appeal. 15. The entire material on record i.e., oral evidence of PWs.1 and 2, DWs.1 to 3 material documents as per Exs.P1 to P12 and Exs.D1 to D6(A) clearly depict that there was partition in the joint family. Therefore, the suit filed for partition, three months after alienation was not maintainable. The Courts below considering the entire oral and documentary evidence on record rightly dismissed the suit and the same is in accordance with law. The appellant has not made out any substantial question of law in the present appeal to interfere with the impugned judgment and decree of the Courts below by exercising the power of this Court under Section 100 of the Civil Procedure Code. Accordingly, the appeal is dismissed at the stage of admission.
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