Dismissed

K. Sulaiman v. Mrs. Saramma

Karnataka HC18 Mar 2024RSA/691/2018

Case brief

AI extract

What is this about?

Second appeal by defendant in a daughters' partition suit challenging concurrent decrees granting them a share. The court refused admission of additional documents under Order 41 Rule 27 CPC for want of due diligence, found no substantial question of law, and dismissed the appeal.

What did the court decide?

Appeal dismissed; liberty left to prosecute pending miscellaneous proceedings before the trial court.

K. Sulaiman Vs Mrs. Saramma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:11569 RSA No. 691 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 691 OF 2018 (PAR)

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BETWEEN:

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K. SULAIMAN, S/O. LATE MOIDIN BEARY, AGED ABOUT 57 YEARS, NEAR KORANTIKATTE HOUSE, POST KALATHUR, VIA KAUP, UDUPI DISTRICT - 576 101.

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WORKING ABROAD DOHA QATAR, REPRESENTED BY HIS WIFE AND G.P.A. HOLDER,

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

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SMT. MUMTHAZ, W/O. K. SULAIMAN, AGED ABOUT 50 YEARS, R/AT NEAR KORANTIKATTE HOUSE, POST KALATTHUR, VIA KAUP, UDUPI DISTRICT - 576 101.

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…APPELLANT

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(BY SRI. VASANTH KUMAR, ADVOCATE)

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AND:

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MRS. SARAMMA, W/O. B.K. ZUBAIR. AGED ABOUT 57 YEARS.

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MRS. JAMEELA, W/O. ISMAIL AHMED, AGED ABOUT 50 YEARS.

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MRS. KHATIZA, W/O. SAYYED HUSSAIN, AGED ABOUT 48 YEARS.

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MRS. ALEEMA, W/O. MOHAMMED FAROOQ, AGED ABOUT 45 YEARS,

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NO.1 TO 4 ARE R/A "SHAHIN MANZIL", NEAR OLD BICC, ULIYARGOLI VILLAGE, UDUPI TALUK AND DISTRICT - 576 101.

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M K. ABDULLA BEARY, S/O. K. MOIDIN BEARY,

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E AGED ABOUT 70 YEARS.

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MRS. ZOHARA, W/O. LATE MOHAMMED, AGED ABOUT 56 YEARS.

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MRS. MOIDINABBA, AGED ABOUT 41 YEARS.

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MR. ABDUL RAZAK, AGED ABOUT 36 YEARS.

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MRS. REHANA, AGED ABOUT 31 YEARS, NO.7 TO 9 ARE THE CHILDREN OF LATE MOHAMMED.

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NC: 2024:KHC:11569 RSA No. 691 of 2018

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MRS. BIFATHIMA, W/O. MOHAMMED YUSUF, AGED ABOUT 64 YEARS.

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MRS. ALEESHA @ ISAMMA, W/O. K. MOHAMMED, AGED ABOUT 61 YEARS.

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MR. UMARABBA, AGED ABOUT 60 YEARS, S/O. LATE MOIDINI BEARY, NO.5 TO 12 ARE R/NEAR KORANTHIKATTE HOUSE, POST KALATHUR, VIA KAUP, UDUPI DISTRICT - 576 101.

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…RESPONDENTS

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(BY SRI. NATARAJ BALLAL, ADVOCATE FOR R1 TO R4, R10 & R11; SMT. VEENA T.N., ADVOCATE FOR R5 TO R9; NOTICE TO R12 SERVED AND UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.12.2017 PASSED IN R.A.NO.5/2012 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.11.2011 PASSED IN O.S.NO.12/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI AND ETC.,

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

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NC: 2024:KHC:11569 RSA No. 691 of 2018

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JUDGMENT

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This appeal is filed by the defendant No.5 aggrieved by the judgment and decree dated 29.11.2011 passed in O.S.No.12/2011 on the file of Additional Senior Civil Judge, Udupi (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 16.12.2017 passed in R.A.No.5/2012 on the file of Prl. District Judge, Udupi (hereinafter 'the First Appellate Court').

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The above suit is filed for partition and separate possession of the suit schedule properties by the daughters of one K.Moiddin Byari against the defendants who are their brothers and grand children of said K.Moiddin Byari. The case of the plaintiffs is that the suit schedule property was the self acquired property of said K.Moiddin Byari and that upon his demise they are entitle for 2/14^th share in the suit schedule property.

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Despite service of notice, defendant Nos.2 to 4 and 6 to 9 remained absent and they were placed ex-parte. Defendant Nos.1 and 5 appeared through their counsel but did not file their written statement. The Trial Court having framed

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the points for consideration with regard to entitlement of the plaintiffs, decreed the suit holding plaintiffs together are entitled for 4/14^th share to the 'A' schedule properties. Aggrieved by the same present appellant who was defendant No.5 along with his brother one K.Abdulla Byari-defendant No.1 filed appeal in R.A.No.5/2012.

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Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1. Whether plaintiffs proved their father purchased suit schedule properties under Registered Sale Deed dated: 30-04-1965, therefore, all the sharers and residuaries are entitled for share?

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2. Whether the judgment and decree of trial Court is perverse, capricious, improper and not on application of law and on facts, and thus, deserves to be set aside?

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3. What order?"

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On re-appreciation of the evidence, the First Appellate Court answered point No.1 in the affirmative, point No.2 in the

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negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same appellant/defendant No.5 is before this

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NC: 2024:KHC:11569 RSA No. 691 of 2018

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Court along with an application under Order 41 Rule 27 of CPC is also filed seeking to produce certain documents.

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Sri.Vasanth Kumar, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that there was already a partition amongst children of deceased K.Moiddin Byari in terms of registered deed of partition dated 12.11.1990. He further submits that thereafter the plaintiffs and defendant Nos.2 and 3, the daughters of K.Moiddin Byari have executed a registered release deed dated 22.01.2022 confirming the execution of the earlier partition. He submits that the plaintiffs have deliberately not produced these two registered documents before the Trial Court and have thus obtained preliminary decree. It is his further submission that the appellant herein who is defendant No.5 before the Trial Court was not in a position to bring on record the aforesaid documents as he was residing in abroad at the relevant point of time. In justification of this, he produces copy of the passport. He further submits that a petition in Miscellaneous No.12/2021 is filed by one of

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the defendants namely Umarabba-defendant No.4 against the judgment and decree passed by the Trial Court which is

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NC: 2024:KHC:11569 RSA No. 691 of 2018

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pending consideration before the Trial Court. In support of his submission, learned counsel for the appellant relied upon the following Judgments:

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Wadi Vs. Amilal reported in (2015) 1 SCC 677 .

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K.Venkataramiah Vs. A.Seetharama Reddy and others reported in AIR 1963 S.C 1526.

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Corporation of Madras and Another Vs. M.Parthasarathy and Others reported in AIR 2018 S.C 3777 .

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Per contra, Sri.Nataraj Ballal, learned counsel for the respondent submits that the appellant who was represented before the Trial Court by an advocate neither chose to file written statement nor lead evidence by bringing on record purported deed of partition and the deed of release. He further submits that the appeal before the First Appellate Court is filed by none other than the appellant herein along with his another brother. Even there he did not choose to bring on record the documents which he is seeking to bring on record now. He further submits that no satisfactory material was brought on record to show his absence at relevant point of time from India. Thus he submits that appellant has not made out any case

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either for production of additional documents or for

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consideration of the same in this appeal.

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Heard. Perused the records.

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Along with appeal, an application under Order 41 Rule 27 is filed by the appellant seeking to produce certified copies of deed of partition dated 12.11.1990 and deed of release dated 22.01.2022. It is seen from the records of the plaintiff/defendant No.5 who had appeared through his counsel before the Trial Court had neither filed written statement nor contested the suit. It is the present appellant/defendant No.5 along with defendant No.1 who filed the regular appeal. There

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is no whisper even in the regular appeal about he making any attempt to bring on record the purported deed of partition and registered deed of release purportedly executed by the plaintiffs in favour appellant and other defendants. No satisfactory explanation is given for the reason which prevented him from producing the purported documents. On a query by this Court learned counsel for the appellant submits that the original of the said documents are with defendant No.4 who has

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produced the same before the Trial Court in Miscellaneous petition as noted hereinabove.

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Order 41 rule 27 of CPC makes provision to production of the document, provided the conditions specified thereunder are fulfilled. The said provisions reads as under:

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"27. Production of additional evidence in Appellate Court:- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -

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(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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(a.a) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

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(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission."

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Since the appellant was represented before the Trial

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Court through his counsel and appellant himself had filed regular appeal before the First Appellate Court, he cannot be

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heard to say that he did not have an opportunity to produce the documents. The reason for non production the said documents is that the appellant was residing abroad and that the original of the said documents were with the defendant No.4. Appellant admittedly represented by his Counsel before the Trial Court. Since the documents were with defendant No.4 absence of appellant from India would not make any difference, since appellant himself filed the appeal and made no mention in the appeal either. In that view of the matter, no grounds are made out for production of additional documents.

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Since no other grounds are made out, no substantial question of law is involved in this matter. Accordingly, appeal stands dismissed .

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At this juncture, learned counsel for the appellant submits that in the proceedings which are pending in Miscellaneous petition before the Trial Court initiated by defendant No.4, appellant be permitted to prosecute the same. Since the said Miscellaneous petition proceedings are still pending which is initiated by the defendant No.4 who also stated to be the beneficiary of the registered deed of partition

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NC: 2024:KHC:11569 RSA No. 691 of 2018

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and deed of release and also stated to have been in possession of the original document, it is for the appellant to avail such remedies as may be available under law.

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Sd/JUDGE

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K. Sulaiman v. Mrs. Saramma

Case brief

What is this about?

What did the court decide?

K. Sulaiman v. Mrs. Saramma

Case brief

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