Dismissed

Raheem Unissa v. G a Anwar Pasha

Karnataka HC5 Jan 2023RSA/864/2022

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal filed under Section 100 of the CPC challenging the dismissal of a partition suit. The Court held that since the partition and sale were clearly admitted by the plaintiffs' witness, no substantial question of law arose to invoke the limited jurisdiction under Section 100 CPC.

What did the court decide?

The appeal was dismissed, affirming the concurrent judgment and decree of the Trial Court and the First Appellate Court.

Raheem Unissa Vs G a Anwar Pasha — Partition | Karnataka HC (2023)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 5^TH DAY OF JANUARY, 2023

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE H.P. SANDESH

¶6

R.S.A.NO.864/2022 (DEC/PAR)

¶7

BETWEEN:

¶8

RAHEEM UNISSA, SINCE DEAD BY LRS.

¶9

1. RABIYA PARVEEN, W/O MOHAMMED WASEEM, AGED ABOUT 38 YEARS.

¶10

FAREEDA BANU, W/O KAHDER AHAMED, AGED ABOUT 35 YEARS.

¶11

BOTH ARE R/AT GORUR VILLAGE, KATTAYA HOBLI, HASSAN TALUK AND DIST-573201.

¶12

JAMILABAI, W/O AMEER JAN, AGED ABOUT 66 YEARS, R/O BOMMANHALLI VILLAGE, MADINA NAGAR, BILAL MASJID ROAD, BANGALORE-560 068.

¶13

HASSINA, W/O MOHAMMED AIZAZ, R/AT 1 ‘B’ ROAD, GANGA NAGAR STREET, ARAKALGUD, HASSAN-573 201.

¶14

ZARINA BANU, W/O RASHIKD KHAN, AGED ABOUT 53 YEARS,

¶15

¶16

R/AT KATTALI VILLAGE, MEGANAN HALLI POST, HOLENARASIPUR TALUK, HASSAN DISTRICT-573 201.

¶17

MAJAMBI, SINCE DEAD REP BY PLAINTIFF NOS.1 TO 4 AND DEFENDANT NOS.1 AND 2.

¶18

...APPELLANTS

¶19

(BY SRI MOHAMED KHALEELULLA SHARIFF, ADVOCATE)

¶20

AND:

¶21

G.A. ANWAR PASHA, SINCE DEAD BY LRS.

¶22

HAFEEZA BANU, W/O LATE ANWAR PASHA, AGED ABOUT 62 YEARS.

¶23

THAHASINA BANU, W/O SIRAJ, AGED ABOUT 42 YEARS, D/O LATE ANWAR PASHA KHAN, R/AT NEAR YASLUR POLICE STATION, SHANIVARA SANTHE HOBLI, KODAGU DIST-571 201.

¶24

YASMIN BANU, W/O NASIR AHAMED, AGED ABOUT 40 YEARS, D/O LATE ANWAR PASHA KHAN, R/AT GUILANA HALLI VILLAGE, HASSAN TALUK AND DIST-573 201.

¶25

NAJININ BANU, W/O AKRAM PASHA, D/O ANWAR PASHA KHAN, AGED ABOUT 39 YEARS, R/AT NEAR NAVE THODI SATHIYA MASJID NEAR PURIBHATTI, HASSAN-573201.

¶26

¶27

MOSEENA BANU, W/O BALFATH, AGED ABOUT 39 YEARS, D/O LATE ANWAR PASHA KHAN, R/AT MANALWADI NEAR HALLI MYSORE, HOLLENARASIPURA TALUK AND DIST-570 601.

¶28

FAZLULLA KHAN, S/O LATE ANWER PASH KHAN, AGED ABOUT 36 YEARS, R/AT GORUR VILLAGE, KATTAYA HOBLI, HASSAN TALUK AND DIST-573 201.

¶29

INNAYATHULLA KHAN, S/O LATE ANWER PASHA KHAN, AGED ABOUT 35 YEARS, R/AT GORUR VILLAGE, KATTAYA HOBLI, HASSAN TALUK AND DIST-573 201.

¶30

NAZREAN BANU, W/O MUNNA, AGED ABOUT 33 YEARS, D/O LATE ANWER PASH KHAN, R/AT GORUR VILLAGE, KATTAYA HOBLI, HASSAN TALUK AND DIST- 573 201.

¶31

NOORULLA KHAN, S/O LATE ABDUL AZIZ KHAN, AGED ABOUT 71 YEARS, R/AT MAHABOOBIAYA RICE MILL, ESHWAR TEMPLE STREET, GORUR VILLAGE, HASSAN TALUK AND DIST-573 201.

¶32

ASHA, W/O JAGANNATH, AGED ABOUT 55 YEARS, R/AT GORUR VILLAGE, BRAHMIN STREET, KATTAYA HOBLI, HASSAN TALUK-573 201.

¶33

...RESPONDENTS

¶34

¶35

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 08.03.2022 PASSED IN RA.NO.547/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.11.2015 PASSED IN OS NO. 95/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN.

¶36

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶37

J U D G M E N T

¶38

This matter is listed for admission today. Heard the

¶39

learned counsel for the appellants.

¶40

This appeal is filed challenging the judgment and

¶41

decree dated 08.03.2022 passed in R.A.No.547/2015, on the file of the III Additional District and Sessions Judge, Hassan.

¶42

The factual matrix of the case of the

¶43

plaintiffs/appellants before the Trial Court is that plaintiff Nos.1 to 4 have got 1/4^th share and plaintiff No.5 has got 1/8^th share in the suit schedule properties. It is contended that the defendants have sold certain suit schedule properties and the sale transactions are not binding upon them and sought for partition and separate possession. In pursuance of the suit summons issued by the Trial Court, defendant Nos.1 and 2 appeared and contended that already partition was effected during the lifetime

¶44

¶45

of the father and defendant Nos.1 and 2 have sold the portion of the property in favour of defendant No.3 and the defendants are in exclusive possession and enjoyment of their shares in the suit schedule properties and other family properties and the suit is barred by limitation. The plaintiffs in order to prove their case examined one witness as P.W.1 and got marked the documents at Exs.P.1 to 10. On the other hand, the defendants examined four witnesses as D.W.1 to D.W.4 and got marked the documents at Exs.D.1 to 10. The Trial Court after considering both oral and documentary evidence placed on record, dismissed the suit in coming to the conclusion that already there was a partition between the parties in the year 1963 and the same has not been challenged and the plaintiffs had knowledge about the said partition and the sale made by defendant Nos.1 and 2 in favour of defendant No.3 and the suit is barred by limitation and ought to have challenged the same within three years and the same has not been challenged.

¶46

Being aggrieved by the judgment and decree of the Trial Court, the plaintiffs filed an appeal before the First Appellate Court and the First Appellate Court on re-appreciation of the material available on record and considering the evidence

¶47

¶48

of P.W.1 and D.W.1 to D.W.4, comes to the conclusion that the Trial Court has considered the material available on record and the defendants have substantiated their contention that already there was a partition in the year 1963 itself and the same is admitted by the plaintiffs during the course of crossexamination. It is also admitted with regard to the sale made by defendant Nos.1 and 2 in favour of defendant No.3 and hence dismissed the appeal. Hence, the present appeal is filed by the plaintiffs challenging the concurrent finding of the Trial Court and the First Appellate Court.

¶49

The main contention of the learned counsel for the appellants is that the Trial Court committed an error in not considering the Mohammedan Law of Inheritance and not properly applied the same and unregistered partition is also a ground for family partition of the properties and the same has not been considered. The Trial Court committed an error in accepting the evidence of the defendants and committed an error and the finding given by the Trial Court as well as First Appellate Court is perverse and hence it requires interference of this Court and hence this Court has to admit the appeal and frame the substantial question of law.

¶50

¶51

Having heard the learned counsel for the appellants

¶52

and also on perusal of the material available on record, the very claim of the plaintiffs before the Trial Court is that they are having the right in respect of the suit schedule properties. It is also the contention of the defendants before the Trial Court that already there was a partition in the year 1963 during the lifetime of the father and they have been in possession of the suit schedule properties in terms of the partition and defendant Nos.1 and 2 have sold the property in favour of defendant No.3 and defendant No.3 is the bonafide purchaser of the property. The Trial Court considered the evidence of P.W.1 and D.W.1 to D.W.4 and the documents at Exs.P.1 to 10 and Exs.D.1 to 10 and taken note of Ex.P.3 to 7 five RTCs, three M.R. extracts at Exs.P.8 to 10 and certified copy of the RTCs i.e., Exs.D.1 to 3 and also mutation register of the year 1982-83 Ex.D.4 which corroborates that there was a partition among the family members during the lifetime of the father and the certified copy of the sale deed dated 15.11.1976 executed by Aziz Khan and Mehaboob Khan in favour of Lakshmamma in terms of Ex.D.9.

¶53

Both the Courts have taken note of oral evidence available on record and in the cross-examination of P.W.1, she categorically

¶54

¶55

admitted that there was a partition during the lifetime of the father and also admitted that defendant Nos.1 and 2 have sold the property in favour of defendant No.3, 16 to 18 years ago and the same was not challenged by the plaintiffs and filed the suit in the year 2009. There was an admission on the part of P.W.1 that when there was a hissa patra dated 22.03.1963 between the father and also children, who are parties to the said documents and the parties have acted upon in terms of the partition taken place during the lifetime of the father and all these material are considered by the Trial Court and the First Appellate Court. When such being the material available on record and when there is a clear admission on the part of the P.W.1 regarding partition as well as parties have acted upon, the question of granting share in respect of suit schedule property in favour of the appellants does not arise. I do not find any error committed by the Trial Court and the First Appellate Court in confirming the judgment of the Trial Court and this Court can invoke the jurisdiction of Section 100 of CPC to frame the substantial question of law when there is a perverse finding ignoring the evidence of the parties and hence I do not find any ground to frame the substantial question of law and not found

¶56

¶57

any perversity and hence in the absence of any substantial question of law, the question of invoking Section 100 of CPC does not arise.

¶58

In view of the discussions made above, I pass the

¶59

following:

¶60

ORDER

¶61

The appeal is dismissed.

¶62

Sd/JUDGE

¶63

Raheem Unissa v. G a Anwar Pasha

Case brief

What is this about?

What did the court decide?

Raheem Unissa v. G a Anwar Pasha

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

Coram

Case details

Similar cases

Narasimhaiah @ Raju Dead by Lrs Vs B N Ramaiah

Boregowda Vs Siddegowda

The Oriental Insurance Co. Ltd. Vs Sri H R Nataraju

G Jeevanraj Vs Balasubramanya

L R Gangadharaiah Vs Kolluramma

Mr. Hariram Shenoy Vs P Kamala Padiyar