Dismissed

Sri Husane Sab v. Smt Hasmat Bee

Karnataka HC7 Sept 2022RSA/1818/2015

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal by defendants challenging the decrees below. The court held that defendants, who benefited from additional evidence admitted post-remand within the Appellate Court's jurisdiction, cannot now complain about that jurisdiction. No substantial question of law arose as defendants failed to prove oral partition despite the additional evidence.

What did the court decide?

The second appeal was dismissed upholding the concurrent findings of the Civil Courts below.

Sri Husane Sab Vs Smt Hasmat Bee — Partition | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 7^TH DAY OF SEPTEMBER, 2022

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

¶6

R.S.A NO. 1818 OF 2015(PAR)

¶7

BETWEEN:

¶8

SRI HUSANE SAB S/O MOHAMED KASIM SAB, AGED ABOUT 64 YEARS, R/AT DODDALAGATTA VILLAGE, CHITRADURGA TALUK AND DISTRICT.

¶9

SMT.NAHEEME BANU W/O AKBARALI, AGED ABOUT 52 YEARS, R/O KURUBARAHALLI, CHITRADURGA TALUK AND DISTRICT.

¶10

SMT.JAMSHEERA BANU W/O N.S. BASHA, AGED ABOUT 50 YEARS, R/O NEAR TB CIRCLE, HIRIYUR, CHITRADURGA DISTRICT.

¶11

SMT.MUBEENA BANU W/O NAZIR, AGED ABOUT 49 YEARS, R/AT DODDALAGATTA VILLAGE, CHITRADURGA TALUK AND DISTRICT.

¶12

SMT.NAZEEMA BANU @ NAZEEMUNNISA W/O S.AREEF SHAVALI, AGED ABOUT 47 YEARS,

¶13

¶14

R/O KURUBARAHALLI, CHITRADURGA TALUK AND DISTRICT.

¶15

SMT.RATHNAMMA W/O LATE SIDDAPPA, AGED ABOUT 64 YEARS

¶16

SRI NAGAPPA W/O LATE SIDDAPPA, AGED ABOUT 44 YEARS

¶17

SRI VARADARAJ S/O LATE SIDDAPPA, AGED ABOUT 34 YEARS

¶18

APPELLANTS 6 TO 8 ARE R/O DODDALAGATTA VILLAGE, CHITRADURGA TALUK AND DIST.

¶19

SRI.V.C. DEVENDRAPPA @ D.C.DEVENDRAPPA, S/O ESHWARAPPA, AGED ABOUT 55 YEARS

¶20

SRI CHENNAPPA S/O SIDDAPPA, AGED ABOUT 50 YEARS

¶21

SRI.V.S.SIDDAPPA S/O SIDDALINGAPPA, AGED ABOUT 58 YEARS

¶22

SMT.SUMITRAMMA W/O SHADAKSHARAPPA, AGED ABOUT 45 YEARS

¶23

SMT.SIDDAMMA

¶24

W/O THIPPESWAMY @ THIPPANNA (WRONGLY SHOWN AS RUDRAMMA

¶25

¶26

BEFORE THE TRIAL COURT) AGED ABOUT 55 YEARS

¶27

SRI.RAJU S/O THIPPESWAMY @ THIPPANNA (WRONGLY SHOWN AS GOVINDARAJU BEFORE THE TRIAL COURT) AGED ABOUT 27 YEARS 15. SRI.D.NAGESHAPPA S/O DURGAPPA, (WRONGLY SHOWN AS SURAPPA BEFORE THE TRIAL COURT) AGED ABOUT 54 YEARS APPELLANTS 9 TO 15 ARE R/O DODDALAGATTA VILLAGE, CHITRADURGA TALUK AND DIST.

¶28

...APPELLANTS

¶29

(BY SRI.SIDDAPPA B M, ADVOCATE)

¶30

AND:

¶31

SMT HASMAT BEE D/O MOHAMED KASIM SAB, AGED ABOUT 65 YEARS, R/AT NO.212, RAJAULLA MUSTAP NASGAR, MAGANAHALLI ROAD, DAVANAGERE.

¶32

…RESPONDENT

¶33

(BY SRI.R GOPALA, ADVOCATE FOR C/R1)

¶34

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.09.2015 PASSED IN R.A NO.71/2011 ON THE FILE OF THE PRL.

¶35

¶36

DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.08.2011 PASSED IN O.S NO.35/2005 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA.

¶37

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

¶38

JUDGMENT

¶39

The captioned second appeal is filed by unsuccessful defendants questioning the concurrent findings of the Courts below in decreeing the suit filed by the plaintiff seeking partition and separate possession.

¶40

For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

¶41

The plaintiff who is the sister of defendants 1 and 2 instituted a suit for partition and separate possession by alleging that they are tenants in common and they have inherited the properties left behind by their father.

¶42

¶43

3(a) Defendant No.1 on receipt of summons

¶44

tendered appearance and filed written statement. Defendant No.1 has admitted that items 1 to 4 were originally owned by their father Mohamed Khasim Sab. However, by way of defence, defendant No.1 claimed that there was a oral partition in the year 1985. Defendant No.1 claimed that during the life time of plaintiff and defendants' father, marriage of plaintiff was solemnized in 1967 by spending Rs.50,000/-. Defendant No.1 further contended that after the death of their father Mohamed Khasim Sab, there was oral partition between plaintiff, defendants 1 and 2 and their mother. Defendant No.1 claims that in the said partition, land bearing Survey No.132 measuring 5 acres 4 guntas was jointly allotted to the share of plaintiff and her mother and this land was sold by them in the year 1985. Defendant No.1 also claimed that plaintiff received Rs.50,000/- in cash, 12

¶45

¶46

tolas of gold and house-hold articles worth Rs.50,000/- in a family partition.

¶47

3(b) The plaintiff to substantiate her claim

¶48

examined herself as P.W.1 and one independent witness as P.W.2 and relied on documentary evidence vide EXs.P1 to 11, while defendant No.1 examined herself as D.W.1 and two witnesses as DWs.2 and 3 and produced four documents vide Exs.D1 to D4.

¶49

3(c) The Trial Court having assessed oral and

¶50

documentary evidence decreed the suit in part granting 1/4th share in only two items i.e. Survey No.121/1P1 measuring 5 acres 10 guntas and Survey No.142/4P to an extent of 2 acres.

¶51

3(d) Feeling aggrieved by the judgment and decree of the Trial Court, defendants preferred an appeal in R.A.No.71/2011.

¶52

3(e) The Appellate Court on re-appreciation of

¶53

the oral and documentary evidence set aside the

¶54

¶55

judgment and decree of the Trial Court and remanded the matter by framing two additional issues. The said remand order was questioned by the plaintiff in MSA.No.66/2012. By the time the said appeal was decided by this Court, pursuant to the remand order, the Trial Court had already permitted the defendants to lead further evidence and evidence was received by the Trial Court. This Court allowed the MSA with a direction to the Appellate Court to consider the appeal afresh. On receipt of additional evidence, though plaintiff had succeeded in MSA, however, consented to consider the additional evidence let in by the present defendants herein. The Appellate Court on reappreciation of the oral and documentary evidence has also come to the conclusion that defendants having set up oral partition have not adduced any evidence indicating that there was severance in the family based on the oral partition. The Appellate

¶56

¶57

Court was of the view that the defendants having claimed that there was a oral partition have not lead any evidence to substantiate their defence. Therefore, the Appellate Court proceeded to concur with the findings recorded by the Trial Court. Consequently, the Appellate Court dismissed the appeal.

¶58

Hence, the present second appeal by the defendants questioning the concurrent judgments and decrees of the Courts below.

¶59

The learned counsel for the defendants would vehemently argue and contend that the judgment and decree of the Appellate Court in considering the additional evidence runs contrary to Rule 26 of Order XLI of CPC and therefore, the judgment and decree rendered by the Appellate Court is not at all sustainable and the same is liable to be set aside. The grievance of the defendants before this

¶60

¶61

Court is that when the MSA.No.66/2012 filed by the plaintiff was allowed, the Appellate Court had no jurisdiction to consider the additional evidence recorded by the Trial Court post remand order. Therefore, he would contend that the judgment and decree of the Appellate Court suffers from serious infirmity.

¶62

Per contra, the learned counsel appearing

¶63

for the plaintiff would contend that the remand order was passed to enable the defendants to lead further evidence. Post remand order, it is the defendants who have let in evidence and it is defendants 4, 7, 9, 8(b) and 3(b) who have lead evidence post remand and have examined D.Ws.5, 6, 7, 8 and 9 and further documents are marked at Exs.D12 to 16. This additional evidence even otherwise is in further aid of the defence set up by the defendants. Therefore, he would contend that the counsel appearing for

¶64

¶65

defendants having consented to consider the

¶66

additional evidence now cannot turn around and question the judgment and decree on the premise that the Appellate Court lacked jurisdiction to take congnizance of additional evidence that was let in post remand order. On these set of defence, he would contend that the present captioned second appeal does not involve any substantial question of law to be dealt by this Court and therefore, would requests this Court to dismiss the appeal.

¶67

Heard the learned counsel for the

¶68

defendants and the learned counsel for the plaintiff.

¶69

The defendants have set up the plea of partition. Defendants 1 and 2 have claimed that there was oral partition in 1985. The plaintiff and her mother were allotted Survey No.132 and the same was disposed of by them. The defendants have also

¶70

¶71

contended that plaintiff was given Rs.50,000/- in cash and two tolas of gold and house-hold articles of Rs.50,000/- as her share. Therefore, they have prayed for dismissal of the suit. The defendants having admitted that suit schedule properties are joint family properties were required to lead rebuttal evidence and establish the factum of partition set up. Before the Trial Court except producing the property extracts and revenue records, no documents are produced to demonstrate that there was oral partition in the family in the year 1985.

¶72

Feeling aggrieved by the judgment and decree passed by the Trial Court in O.S.35/2005, it is the defendants who have preferred an appeal. At the instance of the defendants, the judgment and decree passed by the Trial Court was set aside and the matter was remanded by framing two additional issues relating to the defence set up in regard to oral

¶73

¶74

partition after the death of Mohammed Khasim Sab and as to whether defendant No.1 further proves that Rs.50,000/- was paid by way of cash and two tolas of gold and other house-hold articles worth Rs.50,000/was given to plaintiff towards her legitimate share. Post remand, the defendants have let in oral evidence exhaustively. Thereafter, produced further documents which are marked at Exs.D12 to 16. By the time, this Court allowed the MSA.No.66/2012 and the remand order passed by the Appellate Court was set aside, the Appellate Court had already received the additional evidence. It is quite strange to note that it is the defendants who are benefited by the remand order. On the strength of the remand order, defendants have let in evidence as D.Ws.5 to 9 and they have produced additional documents vide Exs.D12 to D16. This evidence was already placed before the Appellate Court. It is also interesting to note that though

¶75

¶76

plaintiff succeeded in the MSA and the remand order was set aside, the plaintiff was still fair enough to consent to consider the additional evidence let in by the defendants. The said aspect is forthcoming from paragraph 9 of the judgment of the Appellate Court. The Appellate Court has recorded this aspect indicating that both the counsel have consented to proceed in the matter by considering the evidence already adduced before the Trial Court. Now the defendants having suffered a decree at the hands of the Appellate Court wants to turn around and contend that the Appellate Court lacked jurisdiction to take congnizance of the additional evidence let in by them. Even from the additional evidence, the defendants are found to be on a very weak footing. There is absolutely no evidence indicating that there was oral partition in the year 1985. Therefore, this Court is unable to understand that as to how the additional

¶77

¶78

evidence let in by the defendants, inspite of plaintiff succeeding in MSA and having consented before the Appellate Court to assess the additional evidence let in by the defendants, could cause injustice to the defendants. The defendants cannot approbate and reprobate and change their stand at various stage of the proceedings. It is not the additional evidence which had the bearing on the conclusion arrived at by the Appellate Court. The Appellate Court while assessing the oral and documentary evidence found that defendants have failed to substantiate and prove the factum of oral partition pleaded in the written statement. Therefore, no substantial question of law arises for consideration in this appeal.

¶79

Accordingly, the appeal is dismissed.

¶80

At this juncture, the learned counsel for the plaintiff submits that an error has crept in the judgment and decree passed by the Trial Court in

¶81

¶82

respect of item No.1. If there is any error in the decree, it is always open for the plaintiff to seek correction in O.S.No.35/2005.

¶83

Sd/JUDGE

¶84

*alb/-

Sri Husane Sab v. Smt Hasmat Bee

Case brief

What is this about?

What did the court decide?

Sri Husane Sab v. Smt Hasmat Bee

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Partharajeurs Vs Savithrammanni

Govindaraje Urs Vs Jayammanni Dead by Lrs Parvathammanni

Sri. Shiva Reddyyappa Vs S.R Bogesh

Bangalore Electricity Supply Company Limited Vs M/S Surya Electricals

Sri. Gangarevanna Vs Sri. Revanasiddappa

Bangalore Electricity Supply Company Limited Vs M/S Zam Zam Enterprises