Dismissed

Shoukath Ali v. Rajiya Begum

Karnataka HC12 Jan 2022RSA/1307/2014

Case brief

AI extract

What is this about?

In this second appeal against a partition suit, the High Court of Karnataka dismissed the appellant's challenge to the lower courts' decree. The court held that no substantial question of law arose since the appellant failed to produce evidence of the alleged joint family properties, which stand outside the scope of the Muslim Personal Law concept of joint family property in this context.

What did the court decide?

Appellant/Defendant No.1's appeal was dismissed; lower court judgments and decree confirmed.

Shoukath Ali Vs Rajiya Begum — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M G S KAMAL REGULAR SECOND APPEAL No.1307/2014

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BETWEEN:

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SHOUKATH ALI S/O LATE SAABJI SAB AGED ABOUT 51 YEARS RESIDENT OF 197/A HOSA ANANDUR VILLAGE BELAGOLA HOBLI SRIRANGAPATNA TALUK - 571438 MANDYA DISTRICT. ..APPELLANT

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(BY SRI CHETHAN B, ADV.)

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AND:

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RAJIYA BEGUM D/O LATE SAABJI SAB AGED ABOUT 63 YEARS RESIDING AT NO.34, 5^TH MAIN, B G ROAD, N G PALYA BANGALORE.

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CHANDA PASHA S/O LATE SAABJI SAB AGED ABOUT 61 YEARS RESIDENT OF NO.16 HOSA ANANDUR VILLAGE BELAGOLA HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT.

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DISHAB BEGUM D/O. LATE SAABJI SAB AGED ABOUT 55 YEARS RESIDENT OF NO.175, 8^TH CROSS A.J. BLOCK, N.R. MOHALLA MYSORE-570 001.

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RAFEEQ PASHA S/O. LATE SAABJI SAB AGED ABOUT 55 YEARS RESIDENT OF 197/B HOSA ANANDUR VILLAGE BELAGOLA HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT.

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ZEENATH D/O. LATE SAABJI SAB W/O. LATE SAMIULLA AGED ABOUT 53 YEARS RESIDENT OF NO.112, 12^TH CROSS SHANTHINAGAR MYSORE-570 001.

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NOORJAN BEGUM D/O. LATE SAABJI SAB W/O. MAKBUL SAB AGED ABOUT 57 YEARS RESIDENT OF NO.158, 4^TH CROSS 2ND STAGE, RAJEEVNAGARM MYSORE-570 001. ..RESPONDENT

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THIS APPEAL IS FILED UNDER SECTION 100 OF CIVIL PROCEEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 14.07.2014 PASSED IN R.A.NO.14/2013 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.01.2013 PASSED IN O.S.NO.328/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, SRIRANGAPATANA.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appeal is filed by the

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appellant/defendant No.1 aggrieved by the judgment and decree dated 14.07.2014 passed in R.A. No.14/2013 on the file of the Additional Senior Civil Judge MACT, Srirangapatna (Hereinafter referred to as 'First Appellate Court') in and by which the First Appellate Court while dismissing the appeal filed by the appellant/defendant No.1 herein has confirmed the judgment and decree dated 31.01.2013 passed by the Principal Civil Judge, Srirangapatna in O.S. No.328/2010 which was filed by the respondents/plaintiffs for partition and separate possession.

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Plaintiffs and defendants are admittedly the children of one late Saabji Sab and Smt Wajeerbi. That the suit schedule properties consisting of a Mangalore Tiled house, a vacant site, three coconut trees bearing katha Nos.197/A, 195/A situated at "F" Block, Hosa Anandur

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Village, Belagola Hobli, Srirangapatna Taluk belonged to the said late Saabji Sab. Both the said late Saabji Sab and his wife Smt Wajeerbi expired long back leaving behind their children viz., plaintiffs and defendants as their legal heirs. Plaintiffs demanding the share in the suit property filed the suit for partition by metes and bounds and for mesne profits.

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Defendant No.1 appeared and filed written statement. Defendant No.2 was placed exparte. Defendant No.1 admitted relationship of the parties and also the ownership of the property being that of their father. He further contended that property bearing Katha No.51 i.e., R.C.C. house situated in Hosa Anandur village is standing in the name of plaintiff No.2 and a house property bearing No.139 situated at Sathgalli in Mysore City standing in the name of plaintiff No.4 are also joint family properties and plaintiffs not having included the said properties, a suit for partial partition was not maintainable. Hence, sought for dismissal of the said suit.

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The Trial Court based on the pleadings of the

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parties had framed the following issues and recorded evidence:

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1 Whether the plaintiffs prove that, suit schedule property belonged to Saabji Sab, hence, plaintiffs and defendants are tenants in common?

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Whether the plaintiffs are entitled for partition and separate possession of suit schedule property as sought for?

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Whether 1^st defendant proves that, suit is bad for partial partition, as all joint properties are not included in the suit?

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What order or decree?

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Plaintiff No.4 examined himself as PW-1 and got marked one document as Ex.P1. Four witnesses were examined on behalf of defendants as DW-1 to DW-4 and got marked 8 documents as Ex.D1 to Ex.D8. On appreciation of the evidence, the Trial Court partly decreed the suit declaring plaintiff No.2/Chand Pasha, plaintiff No.4/Rafeeq Pasha and defendant No.1/Shoukath Ali being sons of Late Saabji Sab would get each 2/10th share in the suit schedule property while the other plaintiffs and defendant No.2

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being daughters of Late Saabji Sab would get 1/10th share in the suit schedule property and directed for separate enquiry with respect to mense profits and to draw preliminary decree accordingly. Being aggrieved by the same, the appellant/defendant No.1 filed R.A.No.14/2013 before the First Appellate Court and the First Appellate Court framed the following points for consideration:

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1 Whether the appellant/1^st defendant prove that the, properties mentioned in his written statement are the joint family properties belonging to him and the plaintiffs/respondents?

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Whether the findings and reasoning recorded by the trial Court on issue No.1 to 3 which resulted in decreeing the suit of the plaintiffs are perverse, capricious and thereby required to be interfered by this Court exercising its appellate jurisdiction?

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What decree or order?

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On re-appreciation of the evidence, the First Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court. Being aggrieved by the same, appellant/defendant No.1 before this Court.

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The learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submits that despite specific contentions raised by the appellant/defendant No.1 with regard to two other properties bearing Khata No.51, Anandur Village and Property bearing No.139, Sathgalli standing in the name of plaintiff Nos.2 and 4 being the joint family property, the plaintiffs did not take any steps to bring the said properties on record for partition. Thus the suit for partial partition was not maintainable. On this sole ground present appeal is filed. Thus, he submits that this aspect of the matter gives rise to substantial question of law requiring consideration.

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Heard the learned counsel for the parties.

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Relationship of the plaintiffs and the

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defendants being children of Saabji Sab is admitted. However, the appellant/defendant No.1 though had contended that property bearing katha No.51 being a RCC house situated at Hosa Anandur village standing in the name of plaintiff No.2 and another property bearing Sy

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No.139 situated at Sathagahalli, Mysore City standing in the name of plaintiff No.4 are the joint family properties, has not produced any iota of evidence to substantiate his contention as the same being the joint family properties being entitled for partition. As rightly taken note of by the Trial Court and confirmed by the First Appellate Court there is no concept of the joint family property amongst the persons governed under the Muslim Personal Law. The suit schedule property admittedly being the property of late Saabji Sab, father of the plaintiffs and the defendant alone was available for partition and that the other two properties mentioned by defendant No.1 as the family properties, were not belonging to late Saabji Sab. This aspect of the matter is taken note of by the Trial Court and the First Appellate Court and have rightly decreed the suit holding entitlement of the parties therein. In that view of the matter, no substantial question of law arises for consideration in this appeal requiring consideration. Hence, the following:

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ORDER

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Regular Second Appeal 1307/2014 is dismissed. The judgment and decree dated 14.07.2014 passed by the Additional Senior Civil Judge MACT, Srirangapatna in Regular Appeal No.14/2013 and the judgment and decree dated: 31.01.2013 passed by Principal Civil Judge, Srirangapatna in O.S.No.328/2010 is confirmed. In the circumstances, parties to bear their own costs.

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Sd/JUDGE

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brn/hd

Shoukath Ali v. Rajiya Begum

Case brief

What is this about?

What did the court decide?

Shoukath Ali v. Rajiya Begum

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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