Appellants challenged a decree declaring them owners of suit properties based on an alleged misdescription in a 1948 partition deed. The High Court held courts below misread the deed, reversed the findings, and dismissed the suit.
Judgment and decree of the courts below set aside; suit of the plaintiff dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.1462 OF 2017 (DEC/INJ)
BETWEEN:
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
ALL ARE RESIDENTS OF NO.11, KATTIGANAHALLI, JADAGANAHALLI POST, HOSKOTE TALUK – 562 104.
... APPELLANTS
(BY SRI SIDDHARTHA H.M., ADVOCATE FOR A-1 & A-2; SMT. IRFANA NAZEER, ADVOCATE FOR A-3)
AND:
S/O. LATE ABDUL MAJID KHAN @ ARIFULL KHAN, SINCE DECEASED
REPRESENTED BY HIS LR’s.
ALL ARE RESIDENTS OF NO.661, 1ST CROSS, MASJID ROAD, TILAK NAGAR, BENGALURU – 560 041.
(AMENDED CARRIED OUT
PURSUANT TO THE ORDER OF THIS HON’BLE COURT VIDE ORDER DATED 17.01.2022)
(AMENDED CARRIED OUT PURSUANT TO VIDE ORDER DATED 22.04.2022)
... RESPONDENTS
(BY SRI S.A. KHADRI, ADVOCATE FOR C/R-1 (A TO E); SRI P.N. RAJESHWARA, ADVOCATE FOR R-2 & R-3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.01.2017 PASSED IN R.A.NO.13/2016 ON THE FILE OF THE I ADDITIONAL DISTRICT SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE SUIT AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.12.2015 PASSED IN O.S.NO.591/2009 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Being aggrieved by the judgment and decree dated 05.01.2017 in R.A. No.13/2016 passed by the I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as the ‘First Appellate Court’ for short), confirming the judgment and decree dated 17.12.2015 in O.S.No.591/2009 passed by the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to the ‘Trial Court’ for short), the defendants are before this Court in the regular second appeal.
before the Trial Court for the sake of convenience.
3. Plaint averments:
NC: 2024:KHC:39671 RSA No. 1462 of 2017
iii. After the death of plaintiff’s grand father-Amir Khan, his two sons and daughter have divided all the family properties under registered partition deed dated 17.07.1948 as ‘A’, ‘B’ and ‘C’ schedule properties and in the partition, ‘A’ schedule properties which is the plaint schedule property bearing Sy. No.80 measuring 2 acres 28 guntas was allotted to the share of the plaintiff’s father, ‘B’ schedule properties were allotted to the share of Jubeda Begum and ‘C; schedule properties were allotted to the share of Abudl Wajid Khan.
the ‘C’ schedule properties were allotted and ‘B’ schedule properties were allotted to the daughter Jubeda Begum.
vi. That the cause of action for filing the suit arose in the month of March, 2009, when the defendants in collusion with some agents attempted to alienate the schedule properties, taking the advantage of illegal revenue entries in their name, and based on the “mis-description” under the registered partition deed.
4. Averments in the written statement:
On notice, the defendants appeared and filed their written statement, inter alia, contending as under:
inherited by his two sons and one daughter, namely, Abdul Majid Khan @ Arifulla Khan, Abdul Wajid Khan and Jubeda Begum.
ii. That the family properties were partitioned among themselves vide registered partition deed dated 17.07.1948 and as per the partition deed, the properties were partitioned in the following manner:
his only son Shafiulla Khan, i.e., the father of the defendants inherited the properties of Abdul Wajid Khan, which included the suit schedule property.
iii. That the suit schedule property was allotted to the share of grand-father of the defendants-Abdul Wajid Khan, after partition, the katha continued to remain in the plaintiff’s father name i.e., Abdul Majid Khan until 19921993 and in the year 1992-1993, the defendants father made an application to the revenue authorities to transfer the katha in his name with respect to the suit schedule property.
iv. Objections were called for transfer of katha, at that time, neither the plaintiff nor any other person raised objections for the said transfer of katha with regard to the suit schedule property.
v. Shafiulla Khan, the son of Abdul Wajid Khan was cultivating and is in possession of the suit schedule property until his demise on 24.03.1997 and the suit schedule property is bequeathed by way of Will in favour of the defendants under the registered Will dated
NC: 2024:KHC:39671 RSA No. 1462 of 2017
09.10.1996 and after the demise of Shafiulla Khan, the defendants are in lawful in peaceful possession of the suit property.
“1. ªÁ¢ zÁªÁ ¸ÀéwÛUÉ ªÀiÁ°PÀ£ÁV ±ÁAwAiÀÄÄvÀ ¸Áé¢üãÁ£ÀĨsÀªÀ ºÉÆA¢gÀÄvÉÛÃ£É JA§ CA±ÀªÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?
6. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?”
oral and documentary evidence, arrived at a conclusion that:
ii. by judgment and decree, decreed the suit declaring that the plaintiff is the successor in interest of Abdul Majid Khan and owner in possession of the suit schedule property and restrained the defendants by an order of permanent injunction from interfering with the plaintiff’s possession over the suit property.
7. Aggrieved, the defendants preferred the appeal
before the First Appellate Court, the First Appellate Court, concurred with the judgment and decree of the Trial Court. Aggrieved, the defendants are before this Court.
NC: 2024:KHC:39671 RSA No. 1462 of 2017
23.10.2018, framed the following substantial questions of
law:
appellant Nos.1 and 2, Smt. Irfana Nazeer, learned counsel for appellant No.3, Sri S.A. Khadri, learned counsel for caveator/respondent No.1 and Sri P.N. Rajeshwara, learned counsel for respondent Nos.2 and and perused the judgment and decree of the Courts below and the original records.
NC: 2024:KHC:39671 RSA No. 1462 of 2017
the following grounds:
ii. That the Courts below have failed to appreciate the partition deed at Ex.P.1 dated 17.07.1948 and misdirected itself in misconstruing Ex.P.1 and arriving at a conclusion that the suit schedule property was allotted to Abdul Majid Khan @ Arifulla Khan, the father of the plaintiff, when the document at Ex.P.1 clearly indicates that the suit schedule property along with Sy. No.122/2 was allotted to Abdul Wajid Khan, the grand father of the defendants.
iii. That the Courts below have failed to appreciate the mother deed, which is paramount in granting the relief of declaratory suit and wrongly proceeded on an assumption and misconstrued
Ex.P.1 to arrive at a conclusion that the plaintiff’s
father Abdul Majid Khan @ Arifulla Khan was allotted the suit schedule property under the partition deed dated 17.07.1948 at Ex.P.1.
i. That the father of the plaintiff, Abdul Majid Khan, being the elder son of Amir Khan, was allotted ‘A’ schedule property in the partition, ‘B’ schedule property was allotted to the daughter, Jubeda Begum and ‘C’ schedule property was to be allotted to Abdul Wajid Khan- grandfather of the defendants, and that in the registered partition deed, there was a ‘mis-description’ indicating the name of Abdul Wajid Khan instead of Abdul Majid Khan, the father of the plaintiff.
ii. That the Courts below concurrently have held and perused Ex.P1 and rightly arrived at a conclusion that the suit schedule property was allotted to the father of the
NC: 2024:KHC:39671 RSA No. 1462 of 2017
plaintiff and there is no misconstruing of Ex.P.1 as contended by the appellant.
iii. That the concurrent findings of facts recorded by the Courts below does not warrant any interference and the substantial questions of law need to be answered against the appellants.
Maharashtra1 the phrase ‘substantial question of law’ as occurring in amended Section 100 is not defined in the Code, the word substantial, means – of having substance, essential, real, worth, important or considerable, where the Courts did not consider the material documents in a proper perceptive, it is incumbent upon the Appellate Court to re-appreciate the entire oral and documentary evidence.
1 (2009) 11 SCC 141
NC: 2024:KHC:39671 RSA No. 1462 of 2017
“8. It is submitted that plaintiff nor his family members have no occasion to know the transfer of katha in the names of defendant father in view of the fact that plaintiff have believed the defendants father and after his death defendants as an after thought based on illegal transfer of katha the defendants attempted to alienate the schedule property in the 1st week of March 2009, on enquiry to the shock and surprise the plaintiff marked the illegal transfer of katha and also they have notice in the registered partition deed there is a
misdescription in respect of “A” schedule property was allotted to the plaintiff father Abdul Majid Khan who being the 1st son of Ameer Khan wrongly written as Abdul Wajid Khan, though the Abdul Wajid Khan was the second son of Ameer Khan and towards the share of Abdul Wajid Khan the “C” schedule property was allotted and he was in possession of the said property and “b” schedule property was allotted to daughter Zubida Begum. The defendants knowing fully well as an after thought they are claiming right over the schedule property. Hence, this suit for declaration.”
2023 (‘the BSA’) [(Section 58 of the Indian Evidence Act, 1872)] clearly postulates that the things admitted need not be proved, though proviso to Section 53 of BSA (Section 58 of the Evidence Act) gives full discretion to the Court to require the facts admitted to prove otherwise by such admission.
Few sentences or few admissions in the written statement or in the cross-examination of the defendants cannot be an advantageous to the plaintiff to have a decree in his favour, when there was categorical pleadings in corroboration with Ex.P.1, which clearly indicate that the suit schedule property was allotted to the defendants’ grand-father Abdul Wajid Khan, the Courts below have misdirected itself in perusing Ex.P.1 and the pleadings of the parties. When the plaintiffs own averments are to the effect about allotting of the suit schedule property to the father of the defendants, the Trial Court and the First Appellate Court would not have arrived at a conclusion that the suit schedule property was allotted to the share of the plaintiff’s father.
Appellate Court, must therefore, reflect its conscious application of mind and record finding supported by the reasons, on all the issues, arising along with the contention put forth and pressed by the parties for the decision of the Appellate Court.
Courts below were not right in arriving at a conclusion that the suit schedule property was allotted to the share of Abdul Wajid Khan under Ex.P.1 and the substantial questions of law framed by this Court is answered in favour of the plaintiff and this Court pass the following:
ORDER
ii. Judgment and decree of the Courts below are setaside , suit of the plaintiff is dismissed.
In light of the disposal of the second appeal, consideration of interlocutory application would not arise.
Sd/(K.S. HEMALEKHA) JUDGE
MBM
List No.: 2 Sl No.: 1
3 issues framed by the court
Whether the courts below were right in concluding that the suit schedule properties were allotted to the share of Abdul Majid Khan under the partition deed dated 17.07.1948.
Whether the courts below erred in interpreting the partition deed Ex.P.1 and consequently decreing the suit in favor of the plaintiff.
Whether the findings of the First Appellate Court and Trial Court warrant interference as they are perverse and not supported by the evidence.
Colour shows how this judgement treated each authority
Mahesh Dattatray Thirthkar Vs. State of MaharashtraExplained¶13
Mahesh Dattatray Thirthkar Vs. State of Maharashtra
Smt. Razika Begum
Smt. Shahanaz Begum
Smt. Rafeeka Begum
Mr. Abdul Hameed Baig
Mr. Abdul Sadiz Baig
K.S. HEMALEKHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
