Dismissed

Smt Ameedabiyamma @ Ameeda Bi v. Smt Parveen Fatima W/O MD Areef Saheb

Karnataka HC29 Aug 2023RSA/1419/2007

Case brief

AI extract

What is this about?

Regular Second Appeal filed by plaintiffs challenging dismissal of suit for declaration and injunction regarding suit properties. Court held that substantial question of law was not made out as lower courts correctly appreciated evidence.

What did the court decide?

Regular Second Appeal dismissed; impugned judgment and decree of the Civil Judge and the Munsiff affirmed.

Smt Ameedabiyamma @ Ameeda Bi Vs Smt Parveen Fatima W/O MD Areef… — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:30889 RSA No. 1419 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.1419 OF 2007 (DEC)

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BETWEEN:

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SMT AMEEDABIYAMMA @ AMEEDA BI W/O LT RASOOL KHAN AGED ABOUT 70 YEARS R/O SY.NO.12/3 & 12/4 KODIHALLI VILLAGE NALABANDAVADI RD TIPTUR TALUK ] TUMKURU DISTRICT - 572 201

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SINCE DEAD BY HER LRS

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

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SHANAZ BEGUM W/O.MOHAMMED HAYATH AGED ABOUT 57 YEARS R/AT NO.1878, 6^TH CROSS CHAMUNDI BADAVANE GANDHI NAGAR, TIPTUR POST TUMKURU DISTRICT

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ASHRAFF KHANUM W/O.MAQBOOL AHAMED AGED ABOUT 56 YEARS EGG MERCHANT MUSLIM STREET ARAKALAGUD AND POST HASSAN DISTRICT

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SHAZAMA KHANUM W/O AHAMMED SHARIFF AGED ABOUT 54 YEARS R/AT NO.03371

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2 - NC: 2023:KHC:30889 RSA No. 1419 of 2007

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BASTHI GUDI, FIRST CROSS ARASIKERE

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HASSAN DISTRICT

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SHAHEENA KHANUM W/O.RAMATHULLA KHAN AGED ABOUT 52 YEARS R/AT NO.11, AZEEZ SAIT BUILDING RCC WATER TANK ROAD GANDHINAGAR, TIPTUR TUMAKURU DISTRICT

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SHAHADA KHANUM 5. W/O.SARDAR BAIG AGED ABOUT 49 YEARS R/AT NEW NO.145(OLD NO.54) NAL BAND WADEY ROAD TIPTUR, TUMAKURU DISTRICT

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[[[[6. SHANOOR KHANUM W/O.MOHAMMED GHOUSE AGED ABOUT 47 YEARS R/AT BHOVI COLONY 5^TH CROSS, GANDHINAGAR TIPTUR, TUMAKURU DISTRICT

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GHOSE KHAN S/O.LATE RASOOL KHAN AGED ABOUT 45 YEARS R/AT NO.145 (OLD NO.54) NAL BAND WADEY ROAD TIPTUR TUMAKURU DISTRICT

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R.NAFEEZ KHAN S/O.LATE RASOOL KHAN AGED ABOUT 42 YEARS R/AT NO.119, FIRST CROSS FIRST MAIN, AMRUTHAHALLI

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3 - NC: 2023:KHC:30889 RSA No. 1419 of 2007

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SAHAKARANAGAR POST BENGALURU -92

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… APPELLANTS

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(BY SRI.N.HARIPRASAD, ADVOCATE)

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AND:

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SMT.PARVEEN FATIMA W/O MD. AREEF SAHEB AGED ABOUT 55 YEARS C/O CLOTH PARADISE B.H.ROAD

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HASSAN CITY - 573 201

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SMT NAZRATH FATHIMA W/O RAHAMATULLA AGED 55 YEARS NO.3042,SALKARA MAHAL CONVENT ROAD] MYSURU CITY - 570 001

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SRI ANSAR SHARIFF S/O MUNAF SHARIFF AGED 41 YEARS R/O RTO OFFICERS HOUSE BELGAUM - 590 002

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SRI ASGAR SHARIFF S/O HUSAR SHARIFF SAHEB R/O RTO OFFICERS HOUSE BELAGAVI - 590 002

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… RESPONDENTS

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(BY SRI D.L.SURESH., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 27.01.1996 PASSED BY THE MUNSIFF & JMFC, TIPTUR IN O.S.NO.319/1977 AND ALSO THE JUDGMENT & DECREE PASSED BY THE CIVIL JUDGE (SENIOR DIVISION) & JMFC, TIPTUR IN RA NO.18/1996 DATED 24.02.2007.

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

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JUDGMENT

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This Regular Second Appeal is preferred by the

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appellants/plaintiffs being aggrieved by the judgment & decree passed by the learned Civil Judge (Sr.Dn.) & JMFC, Tiptur, in R.A. No.18/1996 dated 24.2.2007 confirming the judgment & decree dated 27.1.1996 passed by the learned Munsiff, Tiptur, in O.S. No.319/1977.

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The parties shall be referred to as per their status before the trial Court.

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Brief facts of the case are as under:-

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It is the case of the plaintiff/Smt.Ameedabiyamma that

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her husband by name late Rasool Khan, who was the owner in possession and enjoyment of the suit schedule properties bearing Sy.Nos.12/3 and 12/4, together measuring 10 acres situated at Kodihalli village, Kasaba Holbi, Tiptur taluk executed a nominal sale deed dated 3.6.1967 in favour of father of Respondent/defendant Nos.1 to 4 for a sum of Rs.1,000/- with a condition to re-convey the same after payment of Rs.1,000/-. It is further case of the plaintiff that after execution of the nominal sale deed, her husband - Rasool

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Khan died and thereafter she discharged the loan amount and requested the father of defendant Nos.1 to 4 to re-convey the suit schedule property by executing the sale deed, but father of defendant Nos.1 to 4 did not re-convey the property by executing the sale deed. Hence, the plaintiff filed the suit for declaration and consequential relief of injunction to declare that the sale deed executed by her husband in favour of father of defendant Nos.1 to 4 on 3.6.1967 for the sale consideration of Rs.1,000/- is only a nominal sale deed and further direct the defendants to re-convey the suit schedule property by executing sale deed in her favour.

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3.1 On service of notice, the defendants filed written statement denying the averments made by the plaintiff in the plaint and totally rejected the claim of the plaintiff with regard to the sale deed of the year 1967 being a mortgage deed or the condition to re-convey the property in favour of the plaintiff. The defendants also took up the plea that the suit is not maintainable and sought for dismissal of the suit.

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3.2 On the basis of the pleadings, the trial Court framed the following issues for consideration:

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"1. Whether the Plaintiff proves that she is the owner in possession of the suit property?

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2. Whether the Plaintiff proves that her husband has executed a nominal sale deed dated 03.06.67 in favour of the father of Defendant nos.1 to 4?

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3. Whether the Plaintiff proves that the father of Defendants agreed to reconvey the suit properties to the Plaintiff's husband?

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4. Whether this suit is not maintainable?

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5. Whether the Plaintiff proves that she was in possession of the suit properties on the date of suit?

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6. Whether the Plaintiff proves that the Defendants interfered with the suit properties?

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7. What relief are the parties entitled to?

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8. Whether the Plaintiff proves the sale deed dated 03.06.67 is liable to be cancelled?

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9. Whether the Plaintiff proves that the document dated 03.06.67 executed by her husband is mortgage deed?"

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3.3 In order to substantiate the issues and establish the

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case, the plaintiff got examined herself as PW.4 and three other witnesses as PWs.1 to 3 and got marked Ex.P1 to Ex.P30, whereas the defendants examined one Mr. Khaleed Sheriff as DW.1 and got marked Ex.D1 and D2.

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3.4 The trial court, on appreciation of the material evidence, both oral and documentary, and after hearing the learned counsel for both the parties, dismissed the suit of the plaintiff by its judgment dated 27.1.1996.

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3.5 Aggrieved by the dismissal of the suit, plaintiff preferred Regular Appeal No.18/1996 before the Civil Judge (Sr.Dn.) & JMFC, Tiptur in R.A. No.18/1996. The first appellate court after going through the material on record, both oral and documentary and after hearing learned counsel for the parties, formulated the following points for consideration:

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"1. Whether the Rasool Khan has executed nominal sale deed under the condition to execute re-conveyance deed, after receiving the amount ?

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2. Whether the judgment and decree under this appeal is sustainable ?"

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3.6 After hearing both the plaintiff and the defendants and on re-appreciation and re-analyzation of both the oral and documentary evidence, the first appellate Court did not find any material in favour of the plaintiff with regard to contentions taken by her in respect of mortgage and re-conveyance and consequently dismissed the appeal and confirmed the judgment & decree passed by the trial Court.

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3.7 The appellants/plaintiffs being aggrieved by the concurrent finding of dismissal by both the Courts, are before this Court, questioning the legality and correctness of the judgment and decree passed by both the Courts by raising substantial questions of law.

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On hearing the appellants/plaintiffs and the respondents/defendants, this Court vide order dated 22.7.2008 formulated the following substantial question of law for consideration in this appeal:

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"Whether in the facts and circumstances of the case, the Courts below were justified in dismissing the suit of the plaintiff without considering Exhibits P1 to P30 in proper perspective ?"

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5. I have heard Sri N. Hariprasad, learned counsel for the appellants/plaintiffs and so also Sri D.L. Suresh, learned counsel for respondents/defendants.

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It is the vehement contention of learned counsel for the appellants/plaintiffs that both the trial Court and the first appellate Court have not appreciated the oral and documentary evidence in the proper perspective and has ignored Ex.P1 to P30 and the evidence adduced by the parties. It is also the contention of learned counsel for the appellants/plaintiffs that the document executed as sale deed by the husband of the plaintiff viz., Rasool Khan in favour of father of defendant Nos.1 to 4 is a nominal sale deed for a meager consideration of Rs.1,000/- with an understanding that father of defendant Nos.1 to 4 would have to re-convey the suit schedule property by executing the sale deed after receiving the said amount of Rs.1,000/- alongwith interest, which has been conveniently ignored by the trial Court as well as the first appellate Court. It is also vehement contention of learned counsel for the appellants/plaintiffs that inspite of the sale deed dated 3.6.1967, the revenue entries and the khatha continued in the name of husband of the plaintiff and thereafter in the name of

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the plaintiff and the property has not been transferred in the name of father of defendant Nos.1 to 4. Therefore, the ownership of the property was not transferred in the name of defendant Nos.1 to 4. This aspect also has been ignored by the trial Court as well as the first appellate Court.

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Learned counsel further contends that prior to the property standing in the name of the plaintiff, the property stood in the name of her husband despite the sale deed dated 3.6.1967. Under these circumstances, learned counsel contends that the documents though styled as sale deed dated 3.6.1967, it was in effect the mortgage deed between the husband of the plaintiff i.e, Rasool khan and father of defendant Nos.1 to 4. Both the Courts having ignored these aspects and having not considered the same, the substantial question of law arises for consideration as to whether in the facts and circumstances of the case, the Courts below were justified in dismissing the suit of the plaintiff without considering Ex.P1 to Ex.P30 in the proper perspective. On these grounds, learned counsel for the appellants/plaintiffs contends that the judgment & decree passed by the trial Court as well as the first appellate Court are perverse, illegal and the

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same deserve to be set aside and the substantial question of law raised in the appeal to be answered in favour of the appellants/plaintiffs by allowing the appeal.

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Per contra, learned counsel representing respondents/defendant Nos.1 to 4 vehemently contends that absolutely there is no reason to interfere with the impugned judgments passed by the trial Court as well as the first appellate court for the reason that there is no substantial question of law that arises for consideration in this appeal. Learned counsel further contends that the sale deed dated 3.6.1967 which is marked as Ex.P1 is the certified copy and the document which is marked as Ex.D1 is its original and both are one and the same and absolutely there is no averment or covenant in the said sale deed with regard to re-conveyance or mortgage and that the covenants in the sale deed describe the document to be absolute sale deed made in favour of father of defendant Nos.1 to 4 by the husband of the plaintiff on 3.6.1967. Though the plaintiff has taken the plea that it is a mortgage deed and there is an understanding between the plaintiff's husband and father of defendant Nos.1 to 4 with regard to reconveyance, nothing in support of the same is

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forthcoming in the document/Ex.D1 and hence it cannot be assumed by the plaintiff or by the Court what is contrary to the document because the document would speak for itself and the witnesses may lie, but the document would not lie.

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It is also vehement contention of the learned counsel for the respondents/defendants that the plaintiff has deliberately described the sale deed in the form of mortgage deed for the reason that a suit otherwise filed by the plaintiff for any other relief would be barred by law of limitation. Even otherwise, the suit is clearly barred by law of limitation for the reason that the sale deed is dated 3.6.1967 and the suit is filed on 7.10.1977 after a period of 10 years. Under the circumstances, learned counsel contends that there is absolutely no perversity, illegality or arbitrariness in the judgment and decree passed by the trial Court, which is rightly affirmed by the first appellate Court. He also contends that there is no substantial question of law that arises for consideration in this appeal and all issues have been rightly decided and the evidence adduced by the parties has been properly re-appreciated and re-analyzed by the first appellate

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Court. Under these circumstances, he seeks for dismissal of the appeal with exemplary costs.

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I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties.

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Admittedly, the suit is preferred for the relief of declaration to declare the plaintiff to be the owner of the suit schedule property and to declare that the sale deed dated 3.6.1967 to be mortgage deed and for the relief of Permanent Injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff. It is not in dispute that prior to the sale deed dated 3.6.1967, the husband of the plaintiff was the absolute owner of the suit schedule property. He executed a registered sale deed dated 3.6.1967 in favour of father of defendant Nos.1 to 4 and handed over possession of the suit schedule property. In order to decide as to whether the document is a sale deed or a mortgage deed, the document will speak for itself. Ex.P1 is the certified copy of the sale deed dated 3.6.1967 and Ex.D1 is its original and both are one and the same and there is no ambiguity in the said documents.

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The said documents clearly prove the fact that absolute sale deed executed by husband of the plaintiff viz., Rasool Khan in favour of father of defendant Nos.1 to 4 on 3.6.1967.

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It is seen from the impugned judgment passed by the trial Court that initially, O.S. No.319/1977 preferred by the plaintiff came to be dismissed by the trial Court on 27.6.1979 and Regular Appeal came to be filed by the plaintiff in R.A. No.33/79 and the first appellate Court allowed the appeal and remanded the case back to the trial Court. Thereafter, the trial Court decreed the suit in favour of the plaintiff by the judgment & decree dated 17.2.1987, which was taken up in appeal by the defendants in R.A. No.16/1987. The matter came to be remanded to the trial Court for consideration once again and the trial Court dismissed the suit by the judgment & decree dated 27.1.1996 and the same was confirmed by the first appellate Court by the impugned judgment & decree dated 24.2.2007. It could be possible that during the period of decree having been granted in favour of the plaintiff, the entries in the revenue records got changed in favour of the plaintiff and that continued till the suit was dismissed by the trial Court vide judgment & decree dated 27.1.1996.

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NC: 2023:KHC:30889 RSA No. 1419 of 2007

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At this stage, it is relevant to refer to Section 100 of

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the Code of Civil Procedure, which reads as under:

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"100. Second appeal:

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(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

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(2) An appeal may lie under this section from an appellate decree passed ex-parte.

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(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

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(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

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(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.

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Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

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The Courts below having considered both oral and documentary evidence on record has dismissed the suit. Section 100 of the Code of Civil Procedure has got limited and narrow scope for consideration. This Court sitting in the second appeal to consider the substantial question of law under Section 100 of the CPC, has got limited narrow scope to decide substantial question of law and will have to be very circumspect and careful in not venturing into re-analyzing or re-appreciating the question of fact which has already been decided by the first appellate Court, which is the last Court for appreciation of question of facts and analysation of the evidence and unless there is a grave error committed by the first appellate Court in

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not appreciating any evidentiary matter which is placed on record causing miscarriage of justice, this Court would not

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interfere in the judgment passed by the Court below on the question of fact.

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In the present case on hand, the substantial question of law raised by this Court is as to whether the Courts below were justified in dismissing the suit of the plaintiff without considering Ex.P1 to Ex.P30 in the proper perspective. On perusal of the impugned judgments passed by the trial Court and the first appellate Court, this Court is of the opinion that both the Courts have extensively considered the evidentiary matter, both oral and documentary of both the plaintiff and the defendants and adverted to Ex.P1 to Ex.P30 and Ex.D1 and Ex.D2 and so also the evidence of PWs.1 to 4 and DW.1 and the trial Court dismissed the suit and on re-appreciation and re-analyzation of the entire material evidence, both oral and documentary, the first appellate Court has rightly come to the conclusion that the judgment and decree passed by the trial Court is just and proper and there being no flaw would not call for interference and dismissed the appeal and confirmed the judgment and decree passed by the trial Court.

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The only point for consideration before this Court is as to whether both the Courts have taken into consideration the material evidence of witnesses and considered Ex.P1 to Ex.P30. I do not find any lacuna or material irregularity with regard to non-considering the evidentiary material, both oral and documentary, in the impugned judgments rendered by the trial Court as well as the first appellate Court. It is a fundamental rule of law in civil jurisprudence that in second appeal the factual aspects are not considered. The first appellate Court is the last Court for consideration of the factual aspects of matter and if both the Courts have not adverted to the material evidence which are placed on record causing miscarriage of justice, only in such circumstances, this Court will consider the evidence not being considered by the trial Court and the first appellate Court.

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In the present case on hand though it is claimed by the learned counsel for the appellants/plaintiffs that the evidence has not been considered by the trial Court as well as the first appellate Court, on perusal of the entire material on record including the evidence adduced by the parties, this Court is of the opinion that the evidentiary matter, both oral

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and documentary has been elaborately considered by the trial Court, re-analysed and re-appreciated by the first appellate Court and the issue as to whether Ex.P1/Ex.D1 is a mortgage deed or a sale deed has been rightly considered by the trial Court as well as the first appellate Court, which does not call for interference by this Court.

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In view of the discussion made hereinabove, this Court is of the opinion that the substantial question of law framed by this Court would not enure to the benefit of the appellants/plaintiffs as the appellants/plaintiffs have not made out any reason to interfere with the well reasoned judgment of the trial Court as well as the first appellate court. The reasons assigned and the conclusion arrived at by both the Courts are just and proper. Accordingly, substantial question of law is answered against the appellants/plaintiffs and in favour of Respondnet/defendant Nos.1 to 4.

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In view of the above, I proceed to pass the

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following:

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NC: 2023:KHC:30889 RSA No. 1419 of 2007

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O R D E R

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i) Regular Second Appeal is dismissed ;

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ii) The impugned judgment & decree passed by the learned Civil Judge (Sr.Dn.) & JMFC, Tiptur, in R.A. No.18/1996 dated 24.2.2007 dismissing the suit and confirming the judgment & decree dated 27.1.1996 passed in O.S. No.319/1977

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by the learned Munsiff, Tiptur, is hereby

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affirmed.

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iii) In view of disposal of this Regular Second Appeal, pending interlocutory applications, if any do not survive for consideration and the

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same pales into insignificance.

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Sd/JUDGE

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GSS List No.: 1 Sl No.: 47

Smt Ameedabiyamma @ Ameeda Bi v. Smt Parveen Fatima W/O MD Areef Saheb

Case brief

What is this about?

What did the court decide?

Smt Ameedabiyamma @ Ameeda Bi v. Smt Parveen Fatima W/O MD Areef Saheb

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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