Regular Second Appeal dismissed at admission stage as no substantial question of law under Section 100 CPC was raised. Court affirmed shares awarded to plaintiffs and respondents under Muslim Law.
Dismissal of the Regular Second Appeal without a full trial as no substantial question of law was raised.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER 2021
BEFORE
THE HON’BLE MR. JUSTICE E.S.INDIRESH
R.S.A. No.1485/2016
BETWEEN:
SADIQ HUSSAIN, S/O LATE ABDUL WAJID, AGED ABOUT 56 YEARS, AGRICULTURIST, R/AT "KARUNA NILAYA", NEAR HOME OF THE DISABLED CHILDERN, OLD J.D.KATTE, MACHENALLI, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT - 576 101.
... APPELLANT
(BY SRI.ABUBACKER SHAFI, ADVOCATE)
AND:
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... RESPONDENTS
(BY SRI.G.S.BALAGANGADHAR, ADVOCATE FOR R1; SRI.VEERABHADRASWAMY H.P., ADVOCATE FOR R3 AND R4)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.02.2016 PASSED IN R.A.NO.7/2015 ON THE FILE OF I ADDL. DISTRICT COURT, CHIKKAMAGALURU, ALLOWING THE APPEAL AND PARTLY MODIFYING THE JUDGMENT AND DECREE DATED 08.12.2014 PASSED IN O.S.NO.95/2005 ON THE FILE THE SENIOR CIVIL JUDGE AND PRL. J.M.F.C., AT TARIKERE.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
J U D G M E N T
This Regular Second Appeal is filed by defendant No.1(a) challenging the judgment and decree dated 06.02.2016 in R.A.No.7/2015 on the file of the I Additional
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District Court, Chikkamagaluru, confirming the judgment and decree dated 08.12.2014 in O.S.No.95/2005 on the file of the Senior Civil Judge and Principal J.M.F.C., Tarikere, decreeing the suit of the plaintiffs in part.
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appearance and filed written statement. Defendant No.1(a) and (c) appeared through their advocate, defendant No.1(b) did not appear before the Court. Defendant No.1(c) filed the written statement. It is the case of the defendants that they are not disputing the relationship with the plaintiffs. However, it has been contended by the defendants that the defendants got the suit schedule property in open auction from the Government and the plaintiffs have not contributed anything with regard to acquiring item Nos.1, 2 and 4 of the suit schedule properties. As such, item Nos.1, 2 and 4 are self-acquired properties of the defendants. Therefore, the plaintiffs are not entitled for any share in the suit schedule property and as such, sought for dismissal of the suit.
has framed the following issues:
1. Whether the plaintiffs prove that they suit schedule properties stands in the name of the elders of the defendants and after their death the property were mutated in the name of the defendant?
2. Whether the plaintiffs further prove that they are entitled for the partition and separate
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possession of their share in the suit schedule properties by metes and bounds accoridng to Mohammedan Law?
3. Whether the plaintiffs further prove that defendants are attempted to alienate the schedule properties?
4. Whether the plaintiffs further prove that alleged interference of the defendants?
5. Whether the defendants prove that item Nos.1 to 4 of the schedule properties are self acquired properties of the defendants and other members of the family has no right over the suit schedule properties?
6. Whether the defendants further prove that the suit is not property valued?
7. Whether the defendant No.1(c) prove that the plaintiffs are in joint possession of the plaint schedule properties along with defendants?
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documentary evidence, by its judgment and decree dated 08.12.2014, decreed the suit in part against defendant Nos.1(a) to (c) and further held that plaintiff No.1 is entitled for 1/8th share, plaintiff No.2 and defendant Nos.1(c) are entitled for 2/8th share each in the suit schedule property.
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14. Having heard the learned counsel appearing for
the parties, it is not in dispute that S.Abdul Wajid (defendant No.1) was the father of the plaintiffs and defendant No.1(a) who died on 11.12.2005 leaving behind the plaintiffs and the defendants to inherit the suit schedule properties. The defendants, after the demise of their father (defendant No.1), have filed the written statement. However, the perusal of the record would clearly establish the fact that the defendants have neither preferred to adduce evidence before the Court nor produced any documents claiming that the defendants have redeemed the property mortgaged by father of defendant No.1 to substantiate their exclusive right insofar as the suit schedule properties. In that view of the matter, taking into consideration the finding recorded by the trial Court in respect of the issue Nos.1 and 2, I do not find any good ground to interfere with the finding recorded by the First Appellate Court. However, on examination of the finding recorded by the First Appellate Court, it reveals that the First Appellate Court, after considering the genealogical tree produced by the parties and taking into consideration the fact that the suit schedule property was the exclusive property of defendant No.1, i.e., father of the plaintiffs and the
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defendants, so also, taking into consideration that the defendant No.1 had three sons and two daughters and the law of inheritance covered under the Muslim Law, whereunder the son will get twice the share of the sister and accordingly, modified the shares insofar as the plaintiffs and the defendants are concerned.
In that view of the matter, I do not find any perversity or material irregularity in the impugned judgment and decree passed by the First Appellate Court. Accordingly, the appeal
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is dismissed. However, since the appeal has come up for Admission and since the appellant has not made out a case for framing of substantial question of law as required under Section 100 of Code of Civil Procedure, the appeal stands dismissed at the Admission stage itself.
Sd/JUDGE
ssb
2 issues framed by the court
Whether the appeal is maintainable under Section 100 CPC as no substantial question of law was raised
Whether theFirst Appellate Court's finding on shares under Muslim law needs interference
2 provisions across 2 enactments
SADIQ HUSSAIN
AKHTAR JAN
AMJAD HUSSAIN
MRS.AFZAL JAN
ASLAM HUSSAIN
E.S.INDIRESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court