Allowed

Mr Irshad Khaliq v. Mr. Suleman Shariff

Karnataka HC3 Oct 2023RFA/1808/2017

Case brief

AI extract

What is this about?

The court allowed the appeal, setting aside the trial court's dismissal of a suit for partition and injunction. It held that evidence, including a partition deed and additional documents, proved the plaintiff's entitlement to the northern half of a mango garden, and decreed the suit with a permanent injunction against interference.

What did the court decide?

Judgment and decree of the trial court set aside. Suit decreed. Declaration that northern half portion of the mango garden under the suit schedule property was allotted to the plaintiff's father. Perm

Mr Irshad Khaliq Vs Mr. Suleman Shariff — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE K. NATARAJAN

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REGULAR FIRST APPEAL NO.1808 OF 2017

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BETWEEN:

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MR IRSHAD KHALIQ S/O LATE MOHAMMED KHALIQ SHARIFF, AGED ABOUT 59 YEARS NO.27, J.K. FARM DUBASIPALYA, R.V.C.E. POST, MYSORE ROAD, BANGALORE - 560 059

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... APPELLANT

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(BY SRI B.M. HALASWAMY, ADVOCATE)

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AND:

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MR. SULEMAN SHARIFF S/O LATE MOHAMMED IBRHAIM SHARIFF SINCE DECEASED BY LRs.

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1(a). SMT. ALMAS SULEMAN W/O. LATE SULEMAN SHARIFF SINCE DECEASED BY LRs.

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1(b). SRI. SAYEED SULEMAN S/O. LATE SULEMAN SHARIFF AGED ABOUT 53 YEARS

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1(c). SRI. HAMEED SULEMAN S/O. LATE SULAIMAN SHARIFF AGED ABOUT 50 YEARS

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R1(b) AND R1(c) ARE R/AT NO 1, 4TH CROSS, HUTCHINS ROAD, V CROSS, ST. THOMAS TOWN BANGALORE - 560 084

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1(d). SMT. AFSHAN SULEMAN MECCAI D/O. LATE SULEMAN SHARIFF AGED ABOUT 41 YEARS R/AT NO.49, KHAZI STREET BASAVANAGUDI BENGALURU - 560 004.

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... RESPONDENTS

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(BY SRI S.G. BHAGAVAN, ADVOCTE AND MS. S.B. SUMAN, ADVOCATE FOR R1(b) SRI ZAMEER PASHA, ADVOCATE FOR R1 (c AND d) VIDE ORDER DATED 25.07.2023 R1 (b, c, d) ARE L.Rs. OF DECEASED R1(a) R1(c) HAMEED SULEMAN, PARTY IN PERSON)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.07.2017 PASSED IN O.S.NO.3057/2015 ON THE FILE OF THE XXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR PARTITION, POSSESSION AND INJUNCTION.

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THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.8.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the appellant-plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') for setting aside the judgment and decree passed by the XXXI Additional City Civil and Sessions Judge in O.S.No.3057/2015 dated 25.07.2017 for having dismissed the suit of the plaintiff.

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Heard the arguments of learned counsel for the appellant, learned counsel for the legal heirs of the deceased-respondents and respondent No.1(c)-party in person.

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The appellant was the plaintiff and the deceased-respondent was the defendant before the Trial Court (Now LRs of the defendant are before the Court). The rank of the parties before the Trial Court are retained for the sake of convenience.

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The case of the plaintiff before the Trial Court is that the plaintiff filed a suit for partition and demarcation

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of the Northern half share in the property bearing Survey No.48 (Mango Garden) situated at Valagerahalli, Kengeri Hobli, Bangalore South Taluk, Bangalore (hereinafter referred as 'suit schedule property') and for declaration that registered partition deed dated 10.06.1944 allotted Northern half share of the suit schedule property to the plaintiff's father Mohammed Khaliq Shariff and for consequential injunction.

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The further case of the plaintiff is that one Mohammed Umar Saheb was the grand father of the plaintiff and the defendant and the said Mohammed Umar Saheb had two wives namely Rabiyabi and Aziz Unnisa. After the marriage of first wife, one Mohammed Ibrahim Shariff was born and from the second wife, the plaintiff's father Mohammed Khaliq Shariff was born. It is further stated that their grand fathers are having several properties. The plaintiff's father and the defendant's father have partitioned the properties on 10.06.1944. Out of the said partition, the portion of the suit schedule property fall

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into the share of the fathers of the plaintiff and defendant. It is further contended that the defendant's father Mohammed Ibrahim Shariff and three daughters of Mohammed Umar Saheb were allotted 'A' Schedule property in the said partition and the children of second wife Mohammed Khaliq Shariff and two daughters were entitled for 'B' schedule property in the said partition deed.

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It is further contended that except the suit schedule property, there is no dispute in respect of any other properties under the said partition held in the year 1944. The suit schedule property was one of the item in the said partition. schedule 'A' was allotted to the defendant's father and schedule 'B' was allotted to the plaintiff's father. The land in Sy.No.48 was totally measuring 9 acres, out of the same, 2½ acres was mango garden which was divided into between the plaintiff's father and defendant's father equally. The same is reflected at Item No.12 of schedule 'A' wherein, the Northern half portion of the mango garden was allotted to

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plaintiff's father and schedule item No.12 reflects towards northern side of the mango garden in the same survey belonging to the schedule 'B', thus mango garden on the northern side allotted to the plaintiff's father as schedule 'B'. Similarly, schedule 'B' properties allotted to Mohammed Khaliq Shariff-the father of the plaintiff. Item No.9 of the 'B' schedule property allotted to the plaintiff's father reveals that out of 9 acres of land in Sy.No.48, leaving an extent of southern half portion of the mango garden to the 'A' schedule, the northern half portion of the mango garden and also dry land belongs to the schedule 'B', thus plaintiff's father became an absolute owner of the half of the mango garden towards the northern side. In a further family partition by way of gift, Mohammed Khaliq Shariff had allotted northern half share of suit schedule property to plaintiff including dry land in Sy.No.48. The plaintiff's father was in peaceful possession and enjoyment of the suit schedule property and sisters of the plaintiff's father have released their rights to the plaintiff's father

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and his father died in the year 1980 and plaintiff is in possession of the mango garden and in the year 2014, the defendant cut and removed the mango trees. The defendant is the son of the Mohammed Ibrahim Shariff who is the party to the partition dated 10.06.1944. Subsequent to the death of the Mohammed Ibrahim Shariff, the defendant have succeeded the properties and the defendant is in possession of half share in the mango garden total measuring 2 acres 20 guntas. Thus, 1 acre 10 guntas of mango garden fall into the share of the defendant on the southern side and 1 acre 10 guntas on the northern side is succeeded by the plaintiff.

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The defendant without knowledge of the plaintiff had cut and removed the mango trees by entering into a joint development agreement and thereby, deprived the right of the plaintiff, hence, the plaintiff constrained to file the suit.

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The defendant appeared in pursuance of the summons and filed written statement admitting the relationship of the father of the plaintiff and defendant and the partition dated 10.06.1944 and further contended what was allotted in the partition is the southern portion measuring 2½ acres to the defendant, thereby, the defendant become absolute owner of half portion of mango garden towards the northern side to the extent of 2½ acres and dry land, out of total extent of 9 acres as true and it is stated that the schedule 'A' property is exclusively belongs to the defendant.

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The defendant has contended that under the 1944 partition, an extent of 2½ acres of mango garden being southern portion has fallen to the share of the father of the defendant and the defendant was in possession of the property. The said 2½ acres land in the said partition described as 'A' schedule and remaining 6½ acres and 2½ acres of mango garden and remaining dry land was fallen into the share of the plaintiff's father and after the death of

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the father of the defendant on 14.04.1972, the sisters of the defendant executed release deed on 19.11.1999 which is registered in the Sub-Registrar Office at Kengeri, Bengaluru. The name of the defendant is mutated in the revenue records and he was in possession of 2 acres 2 guntas in the schedule property and after survey, it was found actually 2 acres 2 guntas which is suit schedule property. It is further contended that he has obtained the order of conversion from the Deputy Commissioner for non agricultural residential purpose which was granted on 25.05.2012 and a khata was also issued along with the khata certificate in the name of the defendant. The BBMP, Kengeri has issued the show cause notice and he has paid the taxes and improvement charges to the BBMP.

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He further contended that the plaintiff along with his brother prepared an R.A(s) No.9/1999-2000 before the Assistant Commissioner, South Sub Division, Bengaluru under Section 136(2) of Karnataka Land Revenue Act, by challenging the mutation effected in the

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name of defendant where it was held that the said property fall into the share of the defendant and the appeal was dismissed on 16.08.1999 which attained finality. The defendant approached the survey authorities to survey his land, demarcate the boundaries which was not done hence, he has filed writ petition No.24345/2000 and direction was issued, then, they conducted the survey and demarcated the land. Accordingly, the entries were affected in the revenue records.

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The defendant further contended that the he in order to develop the schedule property has put up barbed fencing, dug 5 borewels and also constructed a watchman shed and he is in the possession. The plaintiff has no right titled over the property and he is trying to knock out the suit schedule property and further contended that the order passed by the revenue authorities was on 16.08.1999 and the plaintiff could have approached the Court for filing the suit immediately, but suit was filed in the year 2014, thereby the suit was barred by limitation

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and suit was barred by non-joinder of necessary parties. The plaintiff filed suit in O.S.No.738/2014 before the Civil Judge Rural Court for injunction against the defendant which came to be dismissed as not pressed and he also filed one more suit in O.S.No.845/2014 and also another suit in O.S.No.738/2014 which are all pending for disposal. The court fee paid by the plaintiff is insufficient and denied all other allegations. Hence, prayed for dismissing the suit.

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Based upon the pleadings, the Trial Court

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framed the following issues and additional issues:

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"1. Whether the plaintiff proves that northern half share of the suit property was allotted to his father as per the registered partition deed dated 10.06.1944?

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2. Whether the defendant proves that as per the partition deed dated 10.06.1944 (an extent of 2½ acres of mango garden being the southern portion of land bearing Sy.No.48, now assigned as

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Sy.No.48/2) has been allotted to his father?

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3. Whether the plaintiff proves that he is in lawful possession of the suit property as on the date of filing the suit?

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4. Whether the plaintiff proves that alleged obstruction caused by the defendant?

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5. Whether the plaintiff proves that he is entitle for the decree as prayed for?

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6. What order or decree?

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Additional Issues

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1. Whether the suit is barred by limitation ?

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2. Whether the suit is hit by non-joinder of necessary parties ?

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3. Whether the plaintiff has paid the proper court fee ?"

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In order to prove the contention of the plaintiff, the plaintiff himself has examined as PW.1, also examined 4 other witnesses as PWs.2 to 5 and got marked

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36 documents and on behalf of the defendant, he himself examined as DW.1 and got marked 40 documents as per Exs.D.1 to D.40. After hearing the argument, the Trial Court answered issue Nos.1, 3 to 5 in the 'Negative' and issue No.2 in the 'Affirmative', additional issue No.1 in the 'Affirmative', additional issue Nos.2 and 3 in the 'Negative' and finally dismissed the suit. Being aggrieved by the dismissal of the suit, the plaintiff is before this Court.

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The learned counsel for the appellant has strenuously contended that the judgment of the Trial Court is illegal, arbitrary or contrary to the materials on record. It has failed to appreciate the evidence and pleadings and there is no dispute in respect of partition of the property in the year 1944 and division of the lands and there is no dispute regarding mango garden which has been divided equally. The plaintiff got the total extent of mango garden i.e., 2 acres 20 guntas and hence, partition between the plaintiff and defendant was 1 acre 10 guntas each whereas the defendant has contended 2½ acres each allotted to his

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father. The dispute was only in respect of ascertaining the extent of mango garden in Sy.No.48. The Court below has not appreciated the evidence of PWs.2 to 4 and the plaintiff. The evidence of the defendant reveals the land was extent of not more than 2 acres 20 guntas. There is no storm water drain divided at Sy.No.48. On the western side of the drain, the mango garden is situated, it is available in the sketch-Ex.P.24. The same was admitted by DW.1 in the cross examination and the same was not appreciated properly. Ex.P.23-Gazette Notification shows that there was coconut garden for the extent of only 3 acres 32 guntas. Hence, the defendant in respect of 2½ acres cannot be acceptable. The evidence of PW.4Watchman of the mango garden has been disbelieved. The defendant also admitted that PW.4 was doing scrap business and dumped the materials in 2 acres 2 guntas of land and after rejection of injunction application, the builder moved Amanulla-PW.4 from suit schedule property. The Trial Court erroneously interpreted the recitals in

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partition deed. It has also not properly interpreted the documents and wrongly has come to the conclusion that 2 acres 20 guntas allotted to the defendant's father. It is further contended that the Trial Court wrongly directed the plaintiff to pay the court fee of Rs.33,180/- holding that plaintiff is not in possession of the suit schedule property. Hence, prayed for allowing the appeal.

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During the pendency of the appeal, the appellant also filed I.A.No.2/2020 under Order 41 Rule 27 of CPC seeking permission to produce the additional evidence.

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It is stated in the affidavit and he has taken contention in the Trial Court that during the partition, northern half share of the property fallen into the share of plaintiff's father measuring 2 acres 20 guntas earlier mango garden. The defendant denied the same and claimed the entire suit schedule property belong to him. The plaintiff also led evidence to show the actual extent of

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mango garden was only 2 acres 20 guntas and there is no extent of 5 acres to allot 2½ acres each. The BDA Notification-Ex.P.23 reveals, Coconut trees to the extent of 3 acres 32 guntas. The plaintiff was under the impression that the land of 1 acre 10 guntas continued in the name of the defendant, but the defendant suppressed several sale deeds, release deeds and mortgage deeds from the year 1957 to 1963 by his father, but the same was deliberately suppressed. Subsequently, a release deed was executed in favour of the defendant's father in the year 1957 to the extent of 1 acre 20 guntas. They were entitled to release 1 acre 10 guntas but not 1 acre 20 guntas. A sale deed was executed by Mohammed Ibrahim Sharrif in favour of Syed Naziruddin Mohammed in respect of 1½ acre where the northern boundaries shows it is belongs to the plaintiff's father and the same was purchased by defendant's father in the year 1958 where the boundary reflects northern side mango garden belong to the plaintiff's father. Once again the father of the defendant

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executed the sale deed on 25.08.1958 in favour of one Abdul Razak measuring 1 acre 20 guntas. The boundary reveals the northern side is the property of plaintiff 's father and the said Abdul Razak executed the sale deed on 29.08.1963, the boundary reveals the same. All the above transactions reveals the defendant's father had exercised the ownership only in respect of half of mango garden and these documents were not within the knowledge of the plaintiff during the trial. Therefore, he wants to produce the same as additional evidence. If these documents were considered, the Court can come to the right conclusion. Hence, prayed for allowing the application.

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The respondent has filed the statement of objections contending that the suit was dismissed after the serious contest. The plaintiff was directed to pay deficit court fee which is not paid and in order to produce the additional evidence, the appeal should be established not withstanding the excise of due diligence. The said documents were not within the knowledge and could not

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exercise to be produced before the Trial Court. The documents relied by the appellant had full knowledge during the time of trial which was not produced. There is no explanation for producing the additional documents in the appeal. The contention in the affidavit had denied as false. The production of documents in the appeal stage does not help the appellant and to assist the court for adjudication, the dispute between the parties. Hence, prayed for dismissing the application.

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The learned counsel for the respondent has supported the judgment of the Trial Court and strenuously contended that in the said partition held in the year 1944, item No.12 of the said schedule 9 acres of land, 2½ acres of garden land on the northern side fallen in the plaintiff's father share. The evidence of PWs.2 to 4 was not believable. The plaintiff has not in possession of suit schedule property. The land was converted into non agricultural land. The defendant fenced the same and the plaintiff trying to knock out the property of the defendant

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and the Trial Court rightly dismissed the suit. Hence, prayed for dismissing the appeal.

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The respondent counsel also objected the application under Order XLI Rule 27 of CPC stating that it is not a matter of right for production of additional document in the appellate stage. The plaintiff is not in lawful possession. The appellant has made omnibus ground in the appeal, the suit was barred by law. Hence, prayed for dismissing the interlocutory application.

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The deceased respondent No.1(c)-party in person also supported the judgment of the Trial Court and contended that the plaintiff also filed one more suit in Mayo Hall which is pending. The plaintiff was not produced any documents to show that he is in joint ownership and the oral evidence cannot be relied. The evidence of PWs.3 and 4 cannot be believed and various suits filed by the plaintiff has been withdrawn. Hence, prayed for dismissing the application.

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Having heard the arguments and perused the

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records, the points that arise for my consideration are:

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"1) Whether the plaintiff proves the half portion of northern side of the suit schedule property allotted to his father under partition deed dated 10.06.1944 which is 1½ acre out of 2½ acres of mango garden in Sy.No.48 ?

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2) Whether the plaintiff is in lawful possession and enjoyment of suit schedule property and the defendant trying to interfere ?

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3) Whether the suit is barred by the limitation ?

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4) Whether the appellant made out sufficient ground to allow the I.A. under Order XLI Rule 27 of CPC for producing the additional documents in this appeal?

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5) Whether the judgment and decree passed by the Trial Court calls for interference ? "

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On perusal of the pleadings and evidence of the parties before the Trial Court is that it is an admitted fact that on Mohammed Umar was the absolute owner of the land in Sy.No.48, measuring 9 acres situated in Valagerahalli, Kengeri Hobli and the said Mohammed Umar had two wives namely Rabiyabi and Aziz Unnisa. The said Umar also had two sons namely Mohammed Ibrahim Shariff and Mohammed Khaliq Shariff. Mohammed Ibrahim Shariff was the son of the first wife Rabiyabi and Mohammed Khaliq Shariff was the son of second wife Aziz Unnisa and there was partition between both the sons i.e., plaintiff's father and defendant's father vide partition deed dated 10.06.1944. The suit schedule property in Sy.No.48 was the portion of the property which were divided in the said partition deed. The defendant's father-Mohammed Ibrahim Shariff and three daughters of Mohammed Umar were allotted 'A' schedule property under the partition. Similarly, the children of second wife Mohammed Khaliq Shariff and two daughters were entitled for 'B' schedule

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properties. Under the Item No.12 of 'A' schedule property partition deed reveals that out of 9 acres, 2½ acres consisting of half portion of Mango Garden was allotted to Mohammed Ibrahim Shariff who is the father of the defendant. The Item No.12 also reflects the Northern portion of mango garden in the same survey belongs to Schedule 'B'. The mango garden on the northern side was allotted to the plaintiff's father as 'B' Schedule. The southern half portion of the mango garden of 2½ acres belongs to 'A' Schedule and northern half portion of mango garden and remaining dry land belongs to 'B' Schedule. In a further family partition by way of gift, Mohammed Khaliq Shariff had allotted northern half portion of the suit schedule property including the dry land and plaintiff's father was in peaceful possession and enjoyment of the suit schedule property. There was a mango tree garden maintained by the father of the plaintiff and he died in the year 1980. Thereafter, the plaintiff was continuously in possession till June 2014.

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23. The defendant is the son of the Mohammed

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Ibrahim Shariff who was in possession of half of share in mango garden to the extent of 1 acre 10 guntas. Thus, 1 acre 10 guntas of mango garden fallen to the share of the defendant on the southern side and 1 acre 10 guntas fallen to the share of the plaintiff who succeeded his father. But the defendant recently trying to encroach the plaintiff's half share by removing the mango trees and also tried to alienate the same to the third parties. The plaintiff himself examined as PW.1 and also got examined 4 more witnesses on his behalf. PW.1 reiterated the averments made in the plaint and also got marked 36 documents.

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Ex.P.1 is the genealogical tree; Ex.P.2 is the certified copy of the partition deed dated 10.06.1944; Exs.P.3 to P.5 are the RTCs; Exs.P.6 to 11 are the photographs; Ex.P.12-copy of record of rights; Exs.P.13 and P.14 are also copy of pahani; Ex.P.15-copy of Index of land; Exs.P.16 and P.17 are the Mutation extract; Exs.P.18

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to P.20 are the copies of pahani; Ex.P.21 copy of release deed; Ex.P.22 is declaration affidavit; Ex.P.23 is the copy of Notification of the Government; Ex.P.24 is the Mutation copy; Exs.P.25 to P.34 are photos; Ex.P.35 is notice dated 01.10.2016; Ex.P.36 is reply notice.

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On the other hand, the defendant though admitted the partition deed dated 10.06.1944, but contended that 2½ acres of mango garden fallen to the share of the defendants father, therefore, defendant was in enjoyment of 2½ acres of land as stated in the Schedule 'A' of partition deed and remaining 6½ acres i.e., 2½ acres of mango garden and remaining dry land on the northern side fallen to the share of father of the plaintiff. Since then the defendant is in possession of the schedule property as sisters of the defendant executed the release deed in his favour on 19.11.1999. He further contended that the father of the plaintiff was in possession of 7 acres 30 guntas including the kharab land and now it has already sold to various persons. The plaintiff's family have not

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retained any portion of the land and further contended the plaintiff along with his brother filed RA(s)9/1999-2000 before the Assistant Commissioner challenging the name of the defendant effected by the Tahsildar. The Assistant Commissioner dismissed their appeal on 16.08.1999 which reveals 2 acres 2 guntas fallen into the share of the defendant's father which was inherited by the defendant. The defendant also approached the survey authority to conduct survey but they have not conducted, hence, he has approached the High Court in W.P.No.24345/2000 and on 17.07.2000, a direction was issued and accordingly, survey was conducted and revenue entries were effected. The defendant put up the barred wire fencing, obtained electrical connection and also constructed a shed. Hence, he has contended suit of the plaintiff is not maintainable. It is further contended that the plaintiff also filed O.S.No.738/2014 which was withdrawn as not pressed and filed one more suit in O.S.No.845/2014 for the same relief sought in the earlier suit which is pending. The plaintiff is

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not in the possession of suit schedule property, therefore he has to value the suit schedule property under Section 35(2) of Karnataka Courts Fees and Suit Valuation Act, 1958, but not under Section 35(1) of the said Act. In support of his contention, the defendant himself examined as DW.1 and also got marked 36 documents. DW.1 reiterated the same in his evidence.

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Ex.D1 is order of the Assistant Commissioner; Ex.D2 is copy of the order in O.S.No.845/2014; Ex.D3 is copy of Mutation; Ex.D4-Order; Exs.D5 and D6 are Pahani; Ex.D7-Notice; Ex.D8-copy of partition deed dated 10.06.1944; Exs.D9 to D11 are the sale deeds dated 02.06.1997 and release deed dated 19.11.1999; Ex.D12copy of the order in writ petition; Exs.D13 to D25 are RTCs; Exs.D26 to D28 are sale deeds; Ex.D29- copy of memorandum of deposit of title deed; Ex.D30-copy of vakalath in O.S.No.845/2014; Ex.D31-order sheet of O.S.No.738/2014; Ex.D32-copy of plaint in O.S.No.738/2014; Ex.D33-order sheet in

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O.S.No.2123/2015; Exs.D34 to D41- Photos; Ex.D42-C.D; Ex.D43 to 45-lease agreements; Ex.D46-official

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memorandum.

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On perusal of the evidence of PW.1 and the pleadings in the plaint, it is the categorical case of plaintiff that Sy.No.48 belongs to his grand father has been divided into two portions in the partition deed as 'A' and 'B' schedule. The 'B' schedule was fallen to the share of the father of plaintiff and the 'A' schedule was fallen to the share of father of defendant. Out of 9 acres of land, 2¹ /2 acres of land was mango garden, out of which, half portion i.e., 1 acre 1 gunta is on the northern side was allotted to the father of plaintiff and half of the southern side of 1¹ /2 acre was fallen to the father of defendant. During cross examination, the defendant's counsel trying to say that there was 5 acres of garden land, out of which, 2¹ /2 acres of land fallen to the share of plaintiff's father and remaining 2¹ /2 acres fallen to share of defendant's father, the same was denied by P.W.1. The plaintiff asserted that

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out of 2¹ /2 acres of the garden land, half of the portion (i.e. 1 acre 10 guntas) fallen to the share of plaintiff's father and he is in possession and enjoyment of the said garden land. In support of his case, he also examined PW.2-Abdul Jabbar and PW.3-Manjunath who are the mango vendors who used to purchase mangoes from the plaintiff from long time. PW.4-Amanulla also deposed that he was employed as Watchman in the said mango garden and early to that, his father Pyare Jan worked as the watchman under the plaintiff. The entire mango garden was maintained by the plaintiff. After demise of his father, he was also doing scrap business and was keeping the scrap material in a portion of schedule property with permission of plaintiff. Though PW.4 has not produced any identity card or ration card, that cannot be a ground to reject his evidence, who is only a watchman looking after the garden and doing a scrap business by using the said land.

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Apart from these witnesses, PW.5-Umar Khalid, who is the brother of plaintiff has supported the case and he has deposed that in the partition held between the plaintiff and himself, 5 acres fallen to the share of the plaintiff and 2 acres 30 guntas fallen to his share and both of them were in possession and enjoyment of the said property. The mutation was effected in M.R. No.14/80-81. He further has deposed that the suit schedule property was allotted to the plaintiff by his father through oral gift/declaration dated 06.02.1977. During cross examination, it was once again tried to assert by defendant's counsel that 2¹ /2 acres of mango garden fallen to the share of defendant, which was denied by him and he has stated that half portion of mango garden, out of which, 2¹ /2 acres fallen to the share of plaintiff's father. This witness also admits that the plaintiff issued notice to produce the gift/declaration made by his father, but he has given reply as per Ex.P.36.

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On perusal of the evidence of these witnesses and the documents, especially Ex.P.2-partition deed dated 10.06.1944 reveals that the boundary mentioned in the 'A' schedule, which was fallen to the defendant's father, indicates that there was 2¹ /2 acres of mango garden bounded East by the land pertaining to same survey number, West by Sy.No.40, North by the mango garden in 'B' schedule of the same survey number and South by the land belongs to Syed Ghouse Sab.

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On perusal of the northern boundary, it reflects that it was fallen to the 'B' schedule share. On perusal of 'B' schedule, it is stated that out of 2¹ /2 acres of garden land, other than southern half portion, which was fallen to 'A' schedule and remaining northern half share garden land and the remaining land fallen to 'B' schedule, which reveals that out of 2¹ /2 acres of mango garden, southern half portion i.e., 1 acre 10 guntas fallen to the share of the defendant's father and northern half portion 1 acre 10 guntas fallen to the share of plaintiff's father based upon

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the said partition. The mutation was effected and it is found in the RTC produced by the plaintiff.

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It is clear from the evidence of PWs.1 to 5 that there was 2¹ /2 acres of mango garden, out of which, half of the mango garden fallen to the share of plaintiff's father and half of the mango garden fallen to the share of defendant's father. It is categorically mentioned in schedule 'A' and 'B' of the partition deed and it is clearly mentioned that half of the mango garden fallen to the 'B' Schedule which is fallen to the share of the plaintiffs father. Even in the cross examination, PW.1 asserted the same.

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That apart, even in Ex.P.23(a), the acquisition Notification issued by the Government reveals that the plaintiff's father was having 5 acres 8 guntas of dry land and 3.32 guntas of garden land. Apart from that, Ex.P.22 is the partition held between the plaintiff's father, plaintiff

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and his brother. It also corroborates with the evidence of PW.1.

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The appellant also produced the documents of the defendant's father along with I.A. under Order XLI Rule 27 of CPC, wherein the first document produced by the appellant is release deed executed by the family members of the father of the defendant in favour of the defendant's father at Item No.3, it was mentioned in respect of Sy.No.48, they released 1¹ /2 acres of land in favour of the father of the defendant which document reveals the half of the mango garden land was granted to the father of the defendant, but not 2¹ /2 acres. If 2¹ /2 acres allotted to the father of the defendant, the release deed must have been shown as 2¹ /2 acres, but not 1¹ /2 acres.

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The second document is certified copy of the sale deed dated 26.09.1957 executed by the father of the defendant-Mohammed Ibrahim Sharrif in favor of Syed Nazaruddin Mohammed and another person Mohammed

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Hussain Shariff in respect of 1½ acres of mango garden for Rs.900/-. The schedule of the document is mentioned as under and the southern side of the Mango garden namely 1¹ /2 acre which is bounded by:

¶131

East by - Mohammed Khaliq Shariff's land pertaining to same survey number (plaintiff's father);

¶132

West by - Muniveerappa and Khane's land;

¶133

North by - Mohammed Khaliq Sharrif's share of the mango garden (i.e., suit schedule property);

¶134

South by - Syed Ghouse children's property.

¶135

The another copy of the sale deed dated 01.09.1958, the father of the defendant repurchased the said property from the above said persons. The boundaries also mentioned that on the northern side of 1¹ /2 acre of mango garden, the name of the plaintiff's father as share of the Mohammed Khaliq Shariff.

¶136

These two documents clearly mentioned that on the northern side, the half share of the plaintiff's father

¶137

¶138

shown as mango garden in the boundaries during the undisputed time in the years 1957 and 1958 sale and repurchase documents. At that time, the father of the defendant was alive and he has consciously executed the documents mentioned as boundary that the half share of the mango garden fallen to the share of the plaintiff's father.

¶139

The another document dated 01.09.1958 wherein the father of the defendant-Mohammed Ibrahim Shariff executed the sale deed in favour of one Abdul Jahir in respect of 1 acre 20 guntas of land in Sy.No.48 where it is mentioned as mango garden. It is stated that the boundary on the northern side is Mohammed Khaliq Sharrif's share which is of mango garden and land which the boundary once again confirms the plaintiff's father half share of the mango garden.

¶140

In another document dated 29.08.1963, the father of the defendant once again repurchased the same

¶141

¶142

property sold under the sale deed dated 01.09.1958 wherein the schedule, it is mentioned as 1 acre 20 guntas of land bounded on the North by Mohammed Khaliq Shariff's mango garden. This document also clearly suggest that on the northern side, the share of the mango garden of the plaintiff was mentioned.

¶143

The another document dated 30.08.1963 where the father of the defendatn entered into mortgage deed with one Syed Abdul Razaq S/o. Syed Abdul Aziz for Rs.500/- in respect of same Sy.No.48, 1 acre 20 guntas of land bounded with northern side, he has categorically stated that his younger brother i.e., Mohammed Khaliq share of mango garden.

¶144

On perusal of all these 4 sale deeds, a release deed and mortgage deed were all clearly reveals that out of 2¹ /2 acres of mango garden, the northern portion of half share was fallen to the share of father of plaintiffMohammed Khaliq Shariff and southern half portion was

¶145

¶146

fallen to the share of the father of the defendantMohammed Ibrahim Shariff. If these documents were produced before the Trial Court, definitely the Trial Court could have decreed the suit. These documents were not within the knowledge of the plaintiff during the pendency of the suit, but the plaintiff able to get the same and produced before this Court in the appeal which is permissible under the law. These documents were suppressed by the defendant in the Trial Court even though these documents were within the knowledge of the defendant.

¶147

Further more, DW.1 also admitted in the cross examination about the boundaries on the western side of the storm water drain that there are mango trees and also admitted that on the eastern side of the storm water drain, there was no any mango trees. Thereby, from the evidence of PWs.1 to 5 and the documents of the plaintiff, he is successful in proving that half share of the mango garden on the northern side fallen to the share of his

¶148

¶149

father. Though there was some discrepancy in respect of selling the half portion of the mango garden and repurchasing the same mentioning as 1 acre 20 guntas, but in fact, it must be 1 acre 10 guntas. Thereby, the plaintiff is successful in proving that he is in possession of half share of mango garden i.e., 1 acre 2 guntas under the partition in favour of his father and he was in possession and enjoyment of the same. But the defendant failed to prove that 2½ acres of mango garden fallen to the share of his father. However, now the property available is only to the extent of 2 acres 2 guntas.

¶150

In the evidence of the plaintiff, his witnesses and documents, the plaintiff able to demonstrate and establish that half portion of the mango garden, out of 2¹ /2 acres belongs to his father and he was continued to be in possession and the defendant trying to interfere in the suit schedule property by causing obstruction. Therefore, the plaintiff is entitled for relief sought in the suit. On the other hand, the defendant by getting an order before the

¶151

¶152

Assistant Commissioner making entry in the revenue records trying to interfere with the possession of the suit schedule property of the plaintiff. Hence, I answered point Nos.1 and 2 in favour of the plaintiff.

¶153

The plaintiff is continued in the possession of

¶154

the suit schedule property i.e., half portion of the mango garden and the PW.2 and 3 were purchasing the mangoes, the PW.4 was watchman and his father also watchman. He has dumped some scrap materials for his business and PW.5-brother of the plaintiff also deposed in the release deed and among the partition between them. These mango garden fallen to the share of the plaintiff. Therefore, on considering the evidence of these witnesses and the contention of the defendant is that 2 acres 2 guntas of mango garden in his land and based upon some revenue entries made by the Deputy Commissioner cannot be acceptable and the contention of the respondent defendant is nothing but interference over the enjoyment of the suit schedule property of the plaintiff. Therefore, it

¶155

¶156

is required to declare that plaintiff was in possession of the half share of the mango garden in Sy.No.48 under the partition deed dated 10.06.1944 and without proper appreciation of the evidence, the Trial Court misread the Ex.P.2 and dismissed the suit which is liable to be set aside.

¶157

As regards to the limitation, the defendant interfering by trying to alienate the same by executing the joint development agreement with third parties, therefore, suit came to be filed. Therefore, there is no delay in order to show that the suit was barred by limitation. Hence, answered point No.3 in the 'Negative'.

¶158

As regards to the Court fee, the learned counsel for the appellant submitted that the deficit Court fee has already been paid by him as per the order of the Trial Court, therefore, no need to discuss on this point.

¶159

As regards to the plaintiff already filed suit for injunction and he has withdrawn, therefore, he has filed

¶160

¶161

comprehensive suit. Though he has not obtained any liberty but suit was filed for declaration and earlier suit was filed for injunction. Therefore, there is no bar for filing the fresh suit.

¶162

For the forgoing reasons, the interlocutory application filed by the appellant under Order XLI Rule 27 of CPC deserves to the allowed.

¶163

Accordingly, I.A.No.2/2020 under Order XLI Rule 27 of CPC is hereby allowed.

¶164

Consequently, the appeal is allowed . The judgment and decree passed by the XXXI Additional City Civil and Sessions Judge in O.S.No.3057/2015 dated 25.07.2017 is hereby set aside. The suit of the plaintiff is decreed.

¶165

It is declared that the northern half portion of the mango garden under the suit schedule property has been allotted to the father of the plaintiff-Mohammed Khaliq Shariff under the partition deed dated 10.06.1944.

¶166

¶167

The defendant/his LRs/agents are hereby permanently restrained from interfering with the possession and enjoyment of the northern half portion of the suit schedule property (i.e., 1 acre 1 gunta out of 2 acres 2 guntas)

¶168

Draw decree accordingly.

¶169

Send the copy of the judgment and Trial Court records to the court concerned.

¶170

Sd/JUDGE

¶171

GBB

¶172

CT-SG

Mr Irshad Khaliq v. Mr. Suleman Shariff

Case brief

What is this about?

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Mr Irshad Khaliq v. Mr. Suleman Shariff

Case brief

What is this about?

What did the court decide?

What the court decided

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