Dismissed

Mr Kazi Meer Ahmed Ali v. Kazi Meer Mazahar Ali

Karnataka HC3 Dec 2024RFA/1455/2007

Case brief

AI extract

What is this about?

Two appeals challenging a trial court decree for partition are dismissed. The High Court held that an occupancy grant in favor of one co-heir benefits all descendants when the property was inherited jointly, rejecting claims of exclusive ownership or adverse possession.

What did the court decide?

Both appeals are dismissed; the judgment and decree of the trial court granting partition are upheld.

Mr Kazi Meer Ahmed Ali Vs Kazi Meer Mazahar Ali — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:17853 RFA No.1455 of 2007 C/W RFA No.100162 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO.1455 OF 2007 (DEC-) C/W

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REGULAR FIRST APPEAL NO.100162 OF 2022

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IN RFA NO.1455/2007 BETWEEN:

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MR KAZI MEER AHMED ALI SINCE DECEASED BY HIS LRS

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KAZI MEER MOHAMMED ALI @ BABU S/O. MR. KHAZI MEER AHMED ALI, AGED ABOUT 53 YEARS, OCC: AGRICULTURE & PAINTER.

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GIRIJA A BYAHATTI

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Location: HIGH COURT OF KARNATAKA

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KAZI MEER MUSTAFA ALI @ MUNNA S/O MR. KHAZI MEER AHMED ALI, AGED ABOURT 50 YEARS,

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OCC: AGRICULTURE & PAINTER.

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KAZI MEER FATEH ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 47 YEARS, OCC: AGRICULTURE & ELECTRICAL & PLUMBING WORK,

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AZNATH JAHAN BEGUM @ RAHANA BEGUM D/O. MR. KHAZI MEER AHMED ALI AND W/O. MOHAMMED MUSTHAQ AHMED, AGED ABOUT 46 YEARS, OCC: HOUSEHOLD WORK,

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KAZI MEER HASHIM ALI S/O. MR. KHAZI MEER AHMED ALI, AGED ABOUT 45 YEARS,

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OCC: AGRICULTURE & PRIVATE WORK,

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KAZI MEER BARKATH ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 43 YEARS, OCC: AGRICULTURE & BUSINESS,

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ALL ARE RESIDENT OF H.NO.5-1-, AALIYAMAHAL, BUS DEPT CROSS, HOSALLI ROAD, GANGAVATHI – 583227.

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…APPELLANTS

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

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AND:

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KAZI MEER MAZAHAR ALI S/O. KAZI MEER, AHMED ALI, AGE: MAJOR, OCC: AGRICULTURE, AND PRIVATE WORK, R/O. KAZIPURA STREET, GANGAVATHI-583227. DIST: KOPPAL

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MEER MAZAHA ALI, S/O. MEER MAHMOOD ALI, SINCE DECEASED BY HIS LRS.

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2(A) MEER SAJID ALI S/O. MEER MAZAR ALI KHAZII, SINCE DECEASED BY HIS LRS.

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2(A)(i) SMT. NIJMA W/O. MEER SAJID ALI KHAZI, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O. NO.231/2, 5^TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032.

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2(B)(ii) SAYED ZEESHAN ALI S/O. MEER SAJID ALI KHAZI, AGE: 25 YEARS, OCC: PRIVATE SERVICE, R/O. NO.231/2, 5^TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR,

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BENGALURU- 560032.

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2(C)(iii) SMT. TAHMENA NAAZ C/O. MEER MOHAMMED ALI, AGE: 23 YEARS, OCC: HOUSEHOLD, R/O. 17-6-647/4, DABEERPURA, CHARMINAR, HYDERABAD – 500023, TELANGANA. 2(D)(iv) SMT. SYED. ARSHIYA MAHEK D/O. MEER SAJID ALI KHAZI, AGE: HOUSEHOLD, R/O. NO.231/2, 5^TH CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032. 2(B) MEER KHLID ALI S/O. MEER MAZAR ALI KHAZII, AGED 57 YEARS, OCC: BUSINESS, R/O. KAMPLI ROAD, JULAI NAGAR, GANGAVATHI – 583 227, DIST: KOPPAL. 2(C) MEER MUJIBUR REHIMAN S/O. MEER MAZAR ALI KHAZII, AGED ABOUT 54 YEARS, OCC: PRIVATE SERVICE, R/O. NO.4/937, 3^RD FLOOR, KRISHNAPPA LAYOUT, BUVANESHWARI NAGAR, R.T. NAGAR, BENGALURU – 560 032. 2(D) MEER MUSHTAK ALI S/O. MEER MAZAR ALI KHAZII AGED 52 YEARS, OCC: PRIVATE SERVICE, R/O. NO.321/2, 5^TH CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, BENGALURU- 560032. 2(E) MEER AZAM ALI. KHAZI, S/O. MEER MAZAR ALI KHAZI, AGED 49 YEARS, OCC: PRIVATE SERVICE, R/O. NO.62/1, NANDI DUIRGA ROAD,

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J.C.NAGAR, BENGALURU – 560032.

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2(F) SMT. HABIBUNNISA BEGAUM, W/O. MEER MAZAR ALI KHAZII, AGED 79 YEARS, OCC: HOUSEHOLD, R/O. NO.62/1, 3^RD CROSS, DINNUR MAIN ROAD, R.T.NAGAR, BENGALURU – 560032.

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…RESPONDENTS

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(BY SRI. K. ANANDKUMAR FOR R1, ADVOCATE; SRI. RAVI S. BALIKAI, ADVOCATE FOR R2(A - F)

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THIS RFA FILED U/S.96 R/W O 41 R 1 OF CPC., SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE GANGAWATHI BY HIS JUDGMENT DATED 09.03.2007 IN O.S.NO.120/2001 BY ALLOWING THIS APPEAL AND AWARD COSTS.

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IN RFA NO.100162/2022 BETWEEN:

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MR. KAZI MEER AHMED ALI, SINCE DECEASED BY HIS LR’S

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KAZI MEER MOHAMMED ALI @ BABU, S/O. MR. KHAZI, MEER AHMED ALI, AGED ABOUT 53 YEARS,

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KAZI MEER MUSTAFA ALI @ MUNNA S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 50 YEARS, OCC: AGRICULTURE AND PAINTER.

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KAZI MEER FATEH ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 47 YEARS, OCC: AGRICULTURE & ELECTICAL AND PLUMBLING WORK,

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AZATH JAHAN BEGUM REHANA BEGUM D/O MR. KHAZI MEER AHMED ALI AND W/O. MOHAMMED MUSTHAQ AHMED, AGED ABOUT 46, OCC: HOUSEHOLD WORK,

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KAZI MEER HASHIM ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 45 YEARS, OCC: AGRICULTURE & PRIVATE WORK,

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KAZI MEER BARKATH ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 45 YEARS, OCC: AGRICULTURE & BUSINEES,

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(ALL ARE RESIDENT OF H.NO.5-1-1, ALIYAMAHAL, BUS DEPOT CROSS, HOSALLI ROAD, GANGAVATHI – 583227.

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…APPELLANTS

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(BY SRI. B. SHARANABASAWA, ADVOCATE)

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AND:

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KAZI MEER MAZAHAR ALI S/O MEER MAHAMOOD ALI SINCE DECEASED REP. BY HER LRS

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1a. SMT. HABIBUNNISA BEGAUM, W/O. MEER MAZAR ALI KHAZII, AGED 79 YEARS, OCC: HOUSEHOLD, R/O. NO.62/1, 3^RD CROSS, DINNUR MAIN ROAD, R.T.NAGAR, BENGALURU – 560 032.

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1b. MEER SAJID ALI S/O. MEER MAZAR ALI KHAZII, SINCE DECEASED BY HIS LRS

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1(b)(i) SMT. NIJMA W/O. MEER SAJID ALI KAHZI, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O. NO.231/2 5^TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032. 1(b)(ii) SYED ZEESHAN ALI S/O. MEER SAJID ALI KHAZI, AGE: 25 YEARS, OCC: PRIVATE SERVICE, R/O. NO.231/2 5^TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032. 1(b)(iii) SMT. TAHMENA NAAZ C/O. MEER MOHAMMED ALI, AGE: 23 YEARS, OCC: HOUSEHOLD R/O. 17-6-647/4, DABEERPURA, CHARMINAR, HYDERABAD – 500023, TELANGANA. 1(b)(iv) SMT. SYED ARSHIYA MAHEK, D/O. MEER SAJID ALI KHAZI, AGE: 20 YEARS, OCC: HOUSEHOLD, R/O. NO.231/2, 5^TH CROSS, R/O. NO.231/2 5^TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032. 1(c) MEER KHLID ALI, S/O. MEER MAZAR ALI KHAZII, AGED 57 YEARS, OCC: BUSINESS, R/O. KAMPLI ROAD, JULAI NAGAR, GANGAVATHI – 583 227 DIST: KOPPAL. 1(d) MEER MUJIBUR REHIMA, S/O. MEER MAZAR ALI KHAZII, AGED 54 YEARS, OCC: PRIVATE SERVICE, R/O. NO.4/937, 3^RD FLOOR,

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KRISHNAPPA LAYOUT, BUVANESHWARI NAGAR, R.T.NAGAR, BENGALURU – 560 032.

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1(e) MEER MUSHTAK ALI S/O. MEER MAZAR ALI KHAZII, AGED 52 YEARS, OCC: PRIVATE SERVICE, R/O NO. 321/2, 5^TH CROSS, R/O. NO.231/2 5^TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, BENGALURU- 560032.

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1(f) MEER AZAM ALI S/O. MEER MAZAR ALI KHAZII, AGED 49 YEARS, OCC: PRIVATE SERVICE, R/O. NO.62/1, NANDI DURGA ROAD, J.C. NAGAR, BENGALURU -560 0302.

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1. KAZI MEER MAHBOOB ALI S/O MEER MAHAMOOD ALI, SINCE DECEASED REP. BY HER LR’S

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2a. MEER USMAN ALI, S/O. MEHABBOB ALI KHAZII, AGED 54 YEARS, OCC: BUSINESS, R/O.NO.62, YAKALPURA, CHARMINAR, HYDARABAD – 500 023 STATE – TELANGANA.

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2b. MEERA SADAT ALI, S/O. MEER MEHABOOB ALI KHAZII, AGED 51 YEARS, OCC: BUSINESS, R/O. NO.62, YAKALPURA, CHARMINAR, HYDARBAD – 500 023.

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1. KAZI MEER ABDUL ALI S/O MEER MAHAMOOD ALI SINCE DECEASED REP. BY HER LRS

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3a. MEER MEHAMOOD ALI S/O. ABDUL ALI KHAZII, AGED 54 YEARS, OCC: BUSINEES, R/O. NO.18/8/104, SANTOSH NAGAR, SAIDABAD, HYDARABAD – 500 056.

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STATE TELANGANA.

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3b. MEER GHOUSE PASHA, S/O. ABDUL ALI KHAZII, AGED 50 YEARS, OCC: BUSINESS, R/O. NO.18/8/145A, YAKUTAPURA, HYDARABAD – 500023.

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3c. MEER YSUF PASHA, S/O. ABDUL ALI KHAZII, AGED 46 YEARS, OCC: BUSINESS, R/O. NO.18/8/126A, P.N.NAGAR, EDI BAZAR, HYDARABAD – 500 023, STATE TELANGANA.

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3d. MEER SYED SHARIF PASHA S/O. ABDUL ALI KHAZII, AGED 45 YEARS, OCC: BUSINESS, R/O. NO.18/8/123A, P.N.NAGAR, EDI BAZAR, HYDARABAD – 500 023, STATE TELANGANA.

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KAZI MEER MUMTAZ ALI S/O MEER MAHAMOOD ALI SINCE DECEASED REP. BY HER LR’S.

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4a. SMT. SYEDA KHAJA BEGAUM, W/O. MEER MAMTAZ ALI KHAZII, AGED 57 YEARS, OCC: HOUSEHOLD WORK, R/O.NO.18/8/104/126A, P.N.NAGAR, EDI BAZAR, HYDARABAD – 500 023, STATE TELANGANA.

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4b. MEER AIJAZ ALI, S/O. MEER MAMTAZ ALI KHAZII, AGED 31 YEARS, OCC: BUSINESS, R/O.NO.18/8/124/95, GROUND FLOOR, FATHESHAH NAGAR, MOIN BAGH CHARMINAR, HYDARABAD – 500 023. STATE TELANGANA.

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KAZI MEER ISMAIL ALI S/O. MEER YUSUF ALI, SINCE DECEASED BY LRS

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5a. ZAHEER BEGAUM W/O. LATE MEER ISMAIL ALI, AGED MAJOR 42 YEARS R/AT SHIVARAMPALLI, HYDERABAD.

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5b. MEER SADIQ ALI S/O. LATE MEER ISMAIL ALI, AGED ABOUT 37 YEARS, R/AT SHIVARAMPALLI, HYDERABAD.

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6 NOOR JAHAN BEGUM W/O. LATE SYED GULAMJEELANI, SINCE DECEASED BY HER LR’S

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6a. SHABANA NIKHAT AGED ABOUT 42 YEARS, R/O. PLOT NO.318, SECTOR NO.2, NEAR JAINMANDIR, SHIRBASAV NAGAR, BELGAM – 590010 KARNATAKA.

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6b. TABASSUMNAZIA W/O. KAREEMULLAH HUSSAINI, AGED ABOUT 39 YEARS,

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6c. SADIA NAAZ D/O. LATE SYED GULAM JEELANI, AGED ABOUT 36 YEARS,

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6d. SYED MASARATH JAHAN D/O. LATE SAYED GHULAM JEELANI, AGED ABOUT 34 YEARS, RESSPONDENT NO.6(b)(c) and (d) are R/O. H.NO.-23-2-311, MOGHALPARA, NEAR WATER TANK HYDERABAD – 500002 TELANGANA.

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IBRAHIM PASHA AGED ABOUT 55 YEARS, R/AT.H.NO 5/1/1 AALIYA MAHAL, BUS DEPOT CROSS, HOSALLI ROAD,

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10 -

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GANGAVATHI, DIST: KOPPAL.

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QAMAR JAHAN BEGUM AGED ABOUT 52 YEARS, R/AT.H.NO 5/1/1 AALIYA MAHAL, BUS DEPOT CROSS, HOSALLI ROAD, GANGAVATHI, DIST: KOPPAL.

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…RESPONDENTS

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(BY SRI. RAVI. S. BALIKAI, ADVOCATE FOR R1(A – F), R2(A&B, R3(A-D) AND R4 (A&B); SRI. I.A.MULLA, ADVOCATE FOR R6 (A-D); SMT. P.R. BENTUR, ADVOCATE FOR R-7; R5 (A &B) ARE SERVED BUT UNREPRESENTED; R8- ABATED)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, PRAYING TO SET-ASIDE THE JUDGMENT AND PRELIMINARY DECREE PASSED BY THE CIVIL JUDGE, GANGAVATHI DATED 09.03.2007 IN O.S.NO.119/2001 BY ALLOWING THIS APPEAL AND DISMISSING THE SUIT O.S.NO.119/2001 AND AWARD COSTS.

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

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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RFA No.1455/2007 is arising from decree in O.S.No.120/2001. The said suit is one for declaration and injunction. Initially this suit was registered as O.S.No.30/1992, on the file of Senior Civil Judge, Koppal

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and on transfer to Senior Civil Judge Court at Gangavathi, the same is renumbered as O.S.No.120/2001.

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One more suit is filed in O.S.No.60/1992 on the file of Senior Civil Judge, Koppal and on transfer to Court at Gangavathi, same is renumbered as O.S.No.119/2001. O.S.No.119/2001 suit is one for partition and separate possession. The subject matter in both the suits is one and the same.

¶100

The suit in OS No.120/2001 for declaration and injunction is dismissed. The suit in OS No.119/2001 for partition and separate possession is decreed.

¶101

The plaintiff in O.S.No.120/2001, who is defendant in O.S.No.119/2001 is the appellant in both the appeals. These two appeals are filed as both the suits are disposed of by common judgment and two separate decrees.

¶102

The genealogy tree is not furnished by the parties before the trial Court. Learned counsel appearing

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for the respondents has furnished the genealogy before this Court and learned counsel appearing for the appellant has not disputed the said genealogy. The same is as under;

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Mir Fathe Ali

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Mir Ahmad Ali (Propositous)
Mir Mazahar Ali
[Pre-deceased his father]
Mir Hashim Ali Khazi Meer Mahmood Ali Meer Yusuf Ali
Died in 1968 Shikmedar Shikmedar
Died during 1973 Died during 1980
Mir Mazahar Ali Mir Mahaboob Ali Mir Abdul Ali Mir Mumtaz Ali
Plff.1 Plff.2 Plff.3 Plff.4
Mir Ahamad Ali Mir Ismail Ali
(Only Son) – Deft. (Died)
=Zehara
Begum
Plff.-5(A)
1 st Wife 2 nd Wife
Meer Sadiq Ali
Khazi Meer Noor Quinar Plff.-5(B)
Ibrahim Ali Jahan Jahan(No issues)
(D-1)=R-1
Meer Meer Meer Aznath Meer Meer
Mohammad Mustafa Fathe Jahan Hashim Baskat
Ali Ali Ali Begum Ali Ali
(Applt.-1) (Applt.-2) (Applt.-3) (Applt.-4) (Applt.-5) (Applt.-6)

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The grievance of the appellant (original

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appellant) now represented by his legal heirs, is that the property was earlier Inam land and the property was held by Meer Fathe Ali-the great grandfather of the plaintiff as service inamdar. After the Inam Abolition Act, occupancy was claimed in respect of those properties by the children of Kazi Meer Mahmood Ali. Kazi Meer Mahmood Ali is none other than the uncle (father's brother of Meer Ahmed Ali, the plaintiff).

¶111

The Land Tribunal, rejected all the applications including the application filed by the plaintiff-Meer Ahmed Ali. The said order rejecting the application is not questioned by the children of Kazi Meer Ahmed Ali, the respondents in these appeals.

¶112

However, Meer Ahmed Ali, the original appellant in these appeals, filed appeal challenging the order passed by the Land Tribunal rejecting the application seeking grant of occupancy. The appeal was allowed and occupancy is granted in favour of Meer Ahmed Ali. This

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order has attained finality. Since occupancy is granted in favour of Meer Ahmed Ali, he filed a suit for declaration and injunction contending that he is the exclusive owner of the property.

¶115

The defendants in the said suit, who are children of Kazi Meer Mahmood Ali and also the children of Mir Yusuf Ali filed O.S.No.119/2001 seeking partition of the properties.

¶116

The suit for partition is filed on the premise that the property was a service inam land in the hands of propositus Meer Fathe Ali and thereafter, property is inherited by the descendants of Meer Fathe Ali.

¶117

The respondents contend that property being inherited from the ancestors, Kazi Meer Ahmed Ali the original appellant cannot claim exclusive possession of the property based on the order of the Land Tribunal.

¶118

In the said suit for partition filed by respondents, Kazi Meer Ahmed Ali, the original appellant in

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this appeal filed written statement and took a stand that the property exclusively belonging to him by reason of the order of the Land Tribunal. In addition, he also raised a plea of adverse possession.

¶121

The Trial Court held that suit for declaration and injunction is not maintainable as the property is the joint property of plaintiffs and defendants. The Trial Court did not accept the play of adverse possession and decreed the suit for partition.

¶122

Learned counsel appearing for the appellants Sri D.L.Ladkhan, would contend that respondents have accepted the order of the Land Tribunal rejecting the application seeking occupancy. The order rejecting their application seeking occupancy has attained finality. It is only the original appellant Meer Ahmed Ali who filed an appeal before the Karnataka Land Tribunal Appellate Authority challenging the order of Land Tribunal. The Appellate Authority has allowed the appeal and granted occupancy only in favour of Meer Ahmed Ali. Thus, grant

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of occupancy should be treated exclusive grant and parties being Mohammedan’s, the respondents cannot claim that the property is granted to the joint family.

¶125

It is also his contention that the respondents having accepted the order of the Land Tribunal cannot make a claim that grant made in favour of Meer Ahmed Ali should be construed as the grant on behalf of the respondents.

¶126

In the alternative, it is urged that the defendants have raised a plea of adverse possession and trial Court should have noted that the property records stand in the name of Meer Ahmed Ali the original appellant, and that would establish the exclusive possession. Thus, he would urged that appeals are to be allowed and suit for declaration and injunction is to be decreed and suit for partition and separate possession is to be dismissed.

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Sri Ravi S.Balikai., learned counsel for

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respondents would contend that merely because an application filed by the respondents before the Land Tribunal seeking occupancy rights is rejected and merely because the Appellate Authority has granted occupancy right in favour of the original appellant, it cannot be construed that the grant of occupancy is exclusive grant in favour of the original appellant.

¶130

It is his contention that the property being the service inam land originally belonged to Meer Fathe Ali and thereafter, it is inherited by the lineal descendants of Meer Fathe Ali and the family members of Meer Fathe Ali and his lineal descendants where carrying on the service of Kazi and in recognition of service, this property was in the hands of the family members and the grant of occupancy in favour of original appellant should be construed as a grant in favour of contesting respondents as well.

¶131

He would also contend that the property records from 1953 onwards would disclose the names of

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the contesting respondents or their predecessors as shikmidar’s, which would indicate there right to cultivate the property. He would also contend that in the crossexamination, the original appellant Meer Ahmad Ali has clearly admitted that the property is inherited from the ancestors and it is not his exclusive property.

¶134

He would also contend that the plea of adverse possession is not maintainable as the ingredients of adverse possession are not forthcoming either in the pleading or in the evidence. Thus, he would urge that both appeals are to be dismissed confirming the judgment and decree passed by the trial Court.

¶135

This Court has considered the contentions raised at the bar and perused the records. The following points arise for consideration:

¶136

i) Whether appellants establish that grant of occupancy in favour of Meer Ahmed Ali is the exclusive grant in favour of Meer Ahmed Ali and respondents have no share in the said properties?

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ii) Whether the appellants establish the plea of adverse possession?

¶139

iii) Whether the contesting respondents establish that notwithstanding the grant of occupancy in favour of Meer Ahmed Ali, the respondents also acquire right in the property?

¶140

The law relating to grant of occupancy is well settled. Merely because the occupancy is granted in the name of an individual, it does not mean that in all such cases, the property granted to an individual is the exclusive property of the granty. Whether the grant of occupancy is exclusive to an individual or for the benefit of family is a matter of evidence. Depending upon the evidence, the Court has to decide whether it is an individual grant or the joint grant or the grant fro the benefit of other members not named in the grant order.

¶141

In this behalf it is necessary to refer to the cross-examination of appellant-PW.1. The relevant portion

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of the cross-examination is extracted in Para No.11 of the

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impugned judgment.

¶145

On going through the aforementioned crossexamination, it is evident that appellant has categorically admitted that the property over which the occupancy is granted once belonged to Meer Ahmed’s grandfather. Thereafter, the descendants of his grandfather have inherited said property. The contesting respondents are also the descendants of the original inamdar, the grand father of PW-1.

¶146

No doubt it is true that some of the respondents filed Form No.1 seeking grant of occupancy and same was rejected. It is also true that original appellant Meer Ahamed Ali also filled Form No.1 and it was rejected by the Tribunal. Thereafter, the original appellant filed an appeal before the Karnataka Appellate Authority and said appeal was allowed.

¶147

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¶148

Both the counsel jointly submit that earlier applications seeking grant of occupancy in Form No.1 were rejected on the premise that the properties were Waqf properties. When the appeal before the Karnataka Land Reforms Appellate Authority filed by Meer Ahmed was allowed, the question whether it is joint family property or the self-acquired property was not gone into by the Appellate Tribunal. Even when the application was rejected earlier by the Tribunal, same was rejected only on the premise that the property is a Waqf property. As a result, whether the property is granted individually or for the benefit of others as well is a question that has to be looked into. The rejection of application filed by the respondents or their predecessors by the Land Tribunal does not come in the way of respondents claiming right over the property as the Tribunal had dismissed the application on the premise that the property cannot be a subject matter of Form No.1 application on the premise that it is a Waqf property.

¶149

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¶150

It is settled position of law that even after the grant of occupancy right the civil Courts power to decide whether the property is the joint grant or individual grant is not taken away. This question has to be decided only by the civil Court. On appreciation of the evidence in the cross-examination of the original appellant- Meer Ahmed Ali, it is explicit that the property did belong to the Meer Mazahar Ali, who was the predecessor of the appellant and respondents.

¶151

It is also noticed that the property records since 1953 would reveal names of the respondents’ predecessors as shikmidar’s. Since their names also appeared in the property records from 1953, this Court has to hold that the grant in favour of Meer Ahmed Ali is not the exclusive grant in favour of Meer Ahmed Ali and it also enure to the benefit of the respondents as Meer Ahmed Ali did not possess the rights of the inamdar exclusively. In fact, he inherited said right from his ancestors along with respondents.

¶152

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¶153

The Trial Court has noticed these aspects and has concluded that the property is the joint property (not joint family) of plaintiff and defendants and granted a decree for partition and refused to grant a declaration of exclusive ownership in favour of the original appellant, who was the plaintiff in O.S.No.120/2001.

¶154

Sri D.L.Ladkhan, learned counsel appearing for the appellants would contend that, it is established that there was a partition in the family in the year 1953 and once there was a partition and the land is granted to Meer Ahmed Ali, after the partition, the grant should not be construed as a grant in favor of the respondents.

¶155

It is relevant to note that, in the crossexamination, P.W.1 has admitted that, in the partition of 1953, the suit properties were not the subject matter of partition. Said properties were not partitioned as the properties were not yet granted. It is also relevant to note that, there is no evidence on record to show that, in the

¶156

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¶157

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¶158

partition of 1953, the suit properties were allotted to the share of the original appellant, Meer Ahmed Ali.

¶159

This being the position, notwithstanding the fact that a partition occurred in the year 1953 in respect of other properties, it cannot be construed that the properties which were not partitioned in the year 1953 and which were later granted by the Tribunal in favour of Meer Ahmed Ali, are to be treated as the exclusive properties of the original appellant.

¶160

For the reasons already discussed and recorded, the properties granted in favour of Meer Ahmed Ali should also enure to the benefit of the respondents, for the simple reason that the properties originally belonged to the great-grandfather Khazi Meer Ahamedali. This fact was clearly admitted during the cross-examination of Meer Ahmed Ali.

¶161

Exhibit D-22, is the statement made by the father of the present appellant, Khazi Meer Hashim Ali. In

¶162

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¶163

this statement, Meer Hashim Ali recognized the rights of his brothers’ sons, who were minors at the time. The father of the appellant acknowledged two additional heirs namely, his minor brothers, Khazi Meer Mohmood Ali and Meer Yusuf Ali who are the predecessors in title of the respondents.

¶164

As far as the contention relating to adverse possession is concerned, it is noticed that the plea is not in conformity with the requirement of plea for adverse possession and the evidence is also lacking. The appellants did not specify from which date or year the possession became adverse. Even if the appellant is found to be in exclusive possession of the property, that possession is not adverse possession. Hence, the Trial Court rightly rejected the claim based on adverse possession.

¶165

For the aforementioned reasons, this Court does not find any reason to interfere with the impugned judgment and decree.

¶166

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¶167

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¶168

Hence, both appeals are dismissed.

¶169

Sd/(ANANT RAMANATH HEGDE) JUDGE

¶170

AM – up to 28 gab - Para 29 to end List No.: 1 Sl No.: 31

Mr Kazi Meer Ahmed Ali v. Kazi Meer Mazahar Ali

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Mr Kazi Meer Ahmed Ali v. Kazi Meer Mazahar Ali

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