Dismissed

Mr. Mohammed Aslam Pasha v. Mis. Zaibunnisa

Karnataka HC10 Apr 2024RSA/1380/2022

Case brief

AI extract

What is this about?

Defendants in a partition suit appealed against concurrent decrees granting plaintiffs one-third share, relying on an admitted earlier partition of 20.06.1974. Both courts found the partition was never given effect to and parties remained in joint possession. Respondents offered to convey one-third share of defendants' choice; appeal dismissed confirming decrees.

What the court decided

AI extract

Mr. Mohammed Aslam Pasha Vs Mis. Zaibunnisa — Partition | Karnataka HC (2024)

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NC: 2024:KHC:14875 RSA No. 1380 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1380 OF 2022 (PAR)

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BETWEEN:

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MR. MOHAMMED ASLAM PASHA

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S/O LT ABDUL REHMAN @ BAJI SAB AGED ABOUT 57 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MR. MOHAMMED IQBAL

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S/O LATE ABDUL REHMAN @ BAJI SAB

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AGED ABOUT 55 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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Digitally signed by SUMA B N Location: High Court of Karnataka

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MR. MOHAMMED NOORUDDIN S/O LATE ABDUL REHMAN @ BAJI SAB

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AGED ABOUT 53 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MR. MOHAMMED FAZULUDDIN S/O LATE ABDUL REHMAN @ BAJI SAB

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AGED ABOUT 50 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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NC: 2024:KHC:14875 RSA No. 1380 of 2022

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MR. MOHAMMED UMARUDDIN

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S/O LATE ABDUL REHMAN @ BAJI SAB

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AGED ABOUT 47 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MR. MOHAMMED ASIF PASHA S/O LATE ABDUL REHMAN @ BAJI SAB

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AGED ABOUT 65 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MIS KURSHIDUNNISA D/O LATE ABDUL REHMAN @ BAJI SAB

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AGED ABOUT 65 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MIS. PAVEEN BANU D/O LATE ABDUL REHMAN @ BAJI SAB AGED ABOUT 65 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MIS. NASEEMA BANU S/O LATE ABDUL REHMAN @ BAJI SAB AGED ABOUT 37 YEARS

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R/AT KESARAMADU VILLAGE

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URDIGERE HOBLI

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TUMKURU TQ AND DISTRICT - 572 104.

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…APPELLANTS

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(BY SRI. SIDDAMALLAPPA P M.,ADVOCATE)

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3 - NC: 2024:KHC:14875 RSA No. 1380 of 2022

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AND:

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MIS. ZAIBUNNISA W/O LATE ABDUL LATHEEF AGED ABOUT 68 YEARS R/AT KESARAMADU VILLAGE URDIGERE HOBLI TUMKURU TALUK AND DISTRICT - 572 104.

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MR. MOHAMMED DASATGEER W/O LATE ABDUL LATHEEF AGED ABOUT 35 YEARS R/AT KESARAMADU VILLAGE URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MR. JAVEED PASHA W/O LATE ABDUL LATHEEF AGED ABOUT 32 YEARS R/AT KESARAMADU VILLAGE URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MIS. ZARIANAUNNISA W/O LATE ABDUL LATHEEF AGED ABOUT 45 YEARS R/AT KESARAMADU VILLAGE URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MIS. ZABEENA W/O MOHAMMED RIAZ D/O ABDUL LATHEER S/O LATE ABDUL LATHEER AGED ABOUT 30 YEARS R/AT KESARAMADU VILLAGE

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4 - NC: 2024:KHC:14875 RSA No. 1380 of 2022

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URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MIS. HASEENA W/O MOHAMMED MUSTAF S/O LATE ABDUL LATHEER AGED ABOUT 37 YEARS R/AT KESARAMADU VILLAGE URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MR. MOHAMMED MUNAVAR S/OLT MOHAMMED PEERA AGED ABOUT 66 YEARS S/O LATE ABDUL LATHEER AGED ABOUT 30 YEARS R/AT KESARAMADU VILLAGE URDIGERE HOBLI

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TUMKURU TALUK AND DISTRICT - 572 104.

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MR. MOHAMMED MUNAVAR S/O LATE MOHAMMED PEERA AGED ABOUT 54 YEARS S/O LATE ABDUL LATHEER AGED ABOUT 30 YEARS R/AT KESARAMADU VILLAGE URDIGERE HOBLI TUMKURU TALUK AND DISTRICT - 572 104.

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…RESPONDENTS

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(BY SRI. FAYAZ SAB B G.,ADVOCATE FOR C/R1 TO R8)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.08.2022 PASSED IN RA.NO.11/2020 ON THE FILE OF THE ADDL. SENIRO CIVI JUDGE AND CJM, TUMAKURU DISMISSING THE

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NC: 2024:KHC:14875 RSA No. 1380 of 2022

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APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.12.2019 PASSED IN O.S.NO.235/2003 ON THE FILE OF THE II I ADDL. CIVIL JUDGE AND JMFC., TUMAKURU.

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

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JUDGMENT

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This appeal is filed by the defendants aggrieved by the judgment and decree dated 21.12.2019 passed in O.S.No.235/2003 on the file of III Additional Civil Judge and J.M.F.C, Tumakuru (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 17.08.2022 passed in R.A.No.11/2020 on the file of Additional Senior Civil Judge and C.J.M, Tumakuru (hereinafter 'the First Appellate Court').

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The above suit in O.S.No.235/2003 is filed by the legal representatives of one Bajisab against the defendants for the relief of partition and separate possession of plaintiff's 1/3^rd share in the suit schedule property by metes and bounds.

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The claim of the plaintiff is that said Bajisab was the owner of the suit schedule property and died leaving behind three sons namely (1). Ameerjan-defendant No.1, (2). Late

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NC: 2024:KHC:14875 RSA No. 1380 of 2022

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Mohammed Peera, the husband of the defendant No.2 and father of defendant Nos.3 and 4 and (3). Abdul Latheef-the plaintiff.

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There is no dispute of the fact that the property belonged to Bajisab. Upon his demise, their sons being the only legal heirs became entitled for 1/3^rd equal share. The Trial Court taking note of this factual aspect of the matter decreed the suit granting 1/3^rd share to the legal representatives of the plaintiff and legal representatives of defendant No.1 and defendant Nos.2 to 4 in respect of suit item Nos.1, 2 and 3 of the suit schedule properties.

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Aggrieved by the same defendant preferred an appeal in R.A.No.11/2020 before the First Appellate Court. On a sole ground that there was already a partition in terms of which the parties are in possession and enjoyment of their respective shares and have even effected improvements over the suit schedule properties. The said regular appeal was dismissed confirming the judgment and decree passed by the Trial Court. Aggrieved by the same defendant are before this Court.

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NC: 2024:KHC:14875 RSA No. 1380 of 2022

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Though the judgment and decree passed by the Trial Court has been confirmed by the First Appellate Court, while admitting this appeal on 04.07.2023, the substantial question of law has been incorrectly framed which reads as under:

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''Whether the First Appellate Court is justified in reversing the judgment and decree of the Trial Court ignoring the principles regulating under the law of Muslim regarding succession and inheritance?''

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The substantial question of law is re-framed as under:

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''Whether the Trial Court and the First Appellate Court justified in decreeing the suit for partition despite admission by the plaintiff regarding the earlier partition dated 20.06.1974?"

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Sri.P.M.Siddamallappa, learned counsel for the appellant referring to paragraph No.19 of the judgment of the First Appellate Court, wherein the First Appellate Court taken note of the deposition of PW.1 in the cross-examination recorded on 23.06.2017 admitting the partition that had taken place as contended by the defendants, submits that since there is already a partition even as admitted by PW.1 there is no requirement of further partition and that the Trial Court and the

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8 - NC: 2024:KHC:14875 RSA No. 1380 of 2022

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First Appellate Court failed to appreciate this admission of the plaintiff.

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Sri.Fayaz Sab.B.G, learned counsel for the respondent on the other hand points out paragraph No.20 of the judgment of the First Appellate Court and submits that though there is an admission of the partition, the Trial Court and the First Appellate Court on basis of material evidence have come to the conclusion that the said partition was not given effect to and the parties remained in joint possession of the suit property. He further submits that notwithstanding the above judgment and decree which is under challenge, the plaintiffs are ready to give 1/3^rd share of the defendants determined by the Trial Court and the First Appellate Court as per the choice of the defendants. He further submits that plaintiffs have even filed a memo before the Final Decree Proceedings Court regarding the same and they will abide with the said submission.

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Learned counsel for the appellant emphatically submitted that though a concession is sought to be made by the learned counsel for the respondent offering 1/3^rd share, it will not be the portion which was allotted to the share of the

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NC: 2024:KHC:14875 RSA No. 1380 of 2022

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defendant as per the earlier partition. He further submits that the 1/3^rd portion being offered by the plaintiffs is not the one which was allotted to his share earlier.

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Heard and perused the records.

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Since there is no dispute with regard to the relationship and ownership of the property, the judgment and decree passed by the Trial Court is confirmed by the judgment and order of the First Appellate Court cannot be found fault with. Though, the defendants contended regarding prior partition the Trial Court and the First Appellate Court have found that same has not been given effect to. However, in view of the submission made by the learned counsel for the respondents that they are ready and willing to give 1/3^rd share to the defendants as per their choice, nothing further survives for consideration in this matter.

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Accordingly, this appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.

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Notwithstanding dismissal of this appeal, appellants and the defendants are at liberty to work out their remedies

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NC: 2024:KHC:14875 RSA No. 1380 of 2022

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10 -

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equitably and dismissal of this appeal shall not come in the way of parties amicably resolving the matter working out their equities.

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Sd/JUDGE

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RL List No.: 1 Sl No.: 35

Mr. Mohammed Aslam Pasha v. Mis. Zaibunnisa

Case brief

What is this about?

What the court decided

Mr. Mohammed Aslam Pasha v. Mis. Zaibunnisa

Case brief

What is this about?

What the court decided

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