Basherahmed S/O Usansab Londewale Vs Shajadabi W/O Usmansab Londewale

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100163 OF 2016 (DEC/INJ)

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BETWEEN:

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BASHERAHMED

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S/O. USANSAB LONDEWALE, AGE: 44 YEARS, OCC: MECHANIC, R/O: JANATA AUTO WORKS, OPP: SWIMMING POOL COMPLEX, P.B. ROAD, HUBBALLI-580020.

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TAJUDDIN S/O. USANSAB LONDEWALE, AGE: 42 YEARS, OCC: MOTOR MECHANIC, R/O: JANATA AUTO WORKS, OPP: SWIMMING POOL COMPLEX, P.B. ROAD, HUBBALLI-580020.

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…APPELLANTS

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(BY SRI SURAJ M.KATAGI, ADVOCATE FOR SRI V.G. BHAT, ADVOCATE) AND:

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA

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SHAJADABI W/O. USMANSAB LONDEWALE, AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O: ARAVIND NAGAR, OLD HUBBALLI, HUBBALLI-580024.

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NIZAMUDDIN S/O. USMANSAB LONDEWALE, AGE: 39 YEARS, OCC: BUSINESS, R/O: ARAVIND NAGAR, OLD HUBBALLI, HUBBALLI-580024.

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SRI ASLAM S/O. USMANSAB LONDEWALE, AGE: 34 YEARS, OCC: BUSINESS,

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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R/O: ARAVIND NAGAR, OLD HUBBALLI, HUBBALLI-580024.

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SRI SALEEM S/O. USMANSAB LONDEWALE, AGE: 33 YEARS, OCC: BUSINESS, R/O: ARAVIND NAGAR, OLD HUBBALLI, HUBBALLI-580024.

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KUM. SABIRABANU D/O. USMANSAB LONDEWALE, AGE: 30 YEARS, OCC: STUDENT, R/O: ARAVIND NAGAR, OLD HUBBALLI, HUBBALLI-580024.

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SRI ASHEESH S/O. SHHAGIRI NAYAK, AGE: 39 YEARS, OCC: BUSINESS, R/O: H.NO.48, ADARSH NAGAR, HUBBALLI-580029.

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SRI NARESH S/O. SHESHAGIRI NAYAK, AGE: 44 YEARS, OCC: BUSINESS, R/O: H.NO.27, ADARSH NAGAR, HUBBALLI-580029.

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…RESPONDENTS

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(BY SRI SURESH N.KINI, ADV. FOR R6 AND R7 (THROUGH VC); NOTICE TO R1 IS SERVED; R2, R3, R4 AND R5 ARE HELD SUFFICIENT)

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THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 OF CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT & DECREE PASSED IN O.S. NO.31/2012 DATED 10.03.2016 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, AND BE PLEASED TO DECREE THE SUIT OF THE PLAINTIFFS BY ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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THIS REGULAR FIRST APPEAL, COMING ON FOR DISMISSAL, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This Regular First Appeal is filed by the plaintiffs challenging the judgment and decree dated 10.03.2016, passed in O.S No.31/2012, on the file of III Additional Senior Civil Judge, Hubballi (hereinafter referred to as the ‘Trial Court’), thereby, the suit filed for declaration, partition and separate possession is dismissed by the Trial Court.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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The plaintiffs have filed the suit for declaration that to declare that the Rectification Deed dated 01.08.2007 and Sale Deed dated 23.11.2007 are illegal and not binding on the plaintiffs in respect of suit property and for the relief of permanent injunction restraining the defendants from alienating, changing the nature of the suit property in any manner and for a decree for partition and separate possession by awarding 1/4^th share each in the property described in

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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schedule ‘B’ and ‘C’ of the plaint and for order of enquiry to quantify the mesne profits.

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It is the case of the plaintiffs that the plaintiffs and defendant Nos.2 to 5 are brothers and sisters. Defendant No.1 is their mother. Father of the plaintiffs i.e., Usmansab Londewale expired on 11.03.2005 by leaving behind the plaintiffs and defendants as their legal heirs. The plaintiffs are running garage and maintaining their respective families. The defendants also doing the independent work for their livelihood. It is submitted that the plaintiffs and defendant Nos.2 to 5 have succeeded to ‘B’ and ‘C’ schedule properties as tenants in common and in joint possession. Therefore, they are claiming their share over the suit properties. It is pleaded that defendant Nos.1 to 5 have sold ‘A’ schedule property in favour of defendant Nos.6 and 7 under the registered Sale Deed dated 23.11.2007. Before execution of the Sale Deed, defendant Nos.1 to 5 behind their back entered into the Rectification Deed dated 01.08.2007 and then sold ‘A’ schedule property in favour of the defendant Nos.6 and 7 under the registered Sale Deed dated 23.11.2007. It is pleaded that Rectification Deed and Sale Deed are illegal, null and void and not binding upon the

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plaintiffs. Further, the defendants have created story of partition alleged to have been executed on 30.05.2006. Therefore, the said partition deed is not at all fair, equitable and justifiable and contrary to the interest and knowledge of the plaintiffs. Hence, prayed this Court for awarding 1/4^th share each in the suit schedule properties and for order of enquiry to quantify the mesne profits.

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Defendant Nos.1 to 6 have filed their written statement. Defendant No.7 filed written statement that was adopted by defendant No.6. It is pleaded in the written statement that the plaintiffs have approached the conciliators (Jamat) and the matter was settled there on 14.12.2005 and accordingly the registered partition was entered into on 30.05.2006. It was agreed that ‘A’ schedule property and sale proceeds thereof were to be utilized for clearing hand loans and other liabilities, which is raised during the lifetime of father Usmansab. Therefore, the transaction relating to ‘A’ schedule property is binding on the plaintiffs as per the settlement before the Jamat. The ‘B’ schedule property was given to defendant Nos.1 to 5 and the ‘C’ schedule property was given to the plaintiffs. Accordingly, the properties were divided and

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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for this, the plaintiffs have approached the conciliators with all their consciousness and participated in Jamat and given signatures and thereafter appeared before the office of SubRegistrar and given their signatures and affixed their photographs. Hence, the matter was settled for partition before the Jamat on 14.12.2005 and the registration was made on 30.05.2006. Therefore, prayed the Court to dismiss the suit.

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Based on the pleadings of the parties, the Trial

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Court has framed the following issues and additional issues:

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i. Whether the plaintiffs prove that they are entitled for the declaration that the rectification deed dated 01.08.207 and the sale deed dated 23.11.2007 are illegal, void and binding upon them in respect of suit ‘A’ property?

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ii. Whether the plaintiff prove that they are entitled for the permanent injunction restraining the defendants their servants, agents or any persons claiming thorough them from alienating, changing the nature of the suit properties in any manner either creating, mortgaging or constructing upon the suit properties?

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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iii. Whether the plaintiffs are entitled for the partition and separate possession of their 1/4^th share in the ‘B’ and ‘C’ schedule properties by metes and bounds?

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iv. Whether the plaintiffs are entitled for the mesne profits?

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v. Whether the defendants No.1 to 5 proves that already there was a registered partition deed dated 3.05.2006 by metes and bounds?

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vi. What order or decree?

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Additional issues:

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i. Whether the defendant Nos.6 and 7 prove that they are the bonafide purchaser of ‘A’ schedule property for valid consideration?

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ii. Whether defendant Nos.6 and 7 prove that the suit is barred by limitation?

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iii. Whether defendant Nos.6 and 7 prove that the court fee paid is insufficient?

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In order to prove the case, plaintiff No.2 is examined as PW-1 and got marked documentary evidence as Exs.P-1 to P-6. Defendant No.3 is examined as DW-1 and defendant No.6 is examined as DW-4 and five other witnesses

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as DWs-2, 3, 5, 6 and 7 and got marked documentary evidence as Exs.D-1 to D-25.

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The Trial Court, after appreciating the evidence on record, has dismissed the suit of the plaintiffs by assigning reasons that the plaintiffs have admitted in the crossexamination that they appeared before the conciliators (Jamat) on 14.12.2005, and this was registered in the office of the Sub Registrar on 30.05.2006. The plaintiffs have put their signatures before Jamat and there was also a letter/Ex.D-17 dated 10.12.2005, in which the plaintiffs have accepted the settlement made by the Jamat. DW-5 was the arbitrator/conciliator between the plaintiffs and defendant Nos.1 to 5, this is admitted by the plaintiffs. Therefore, since there was already partition as per Ex.D-1 and Ex.D-17 and based on the evidence of DWs-2 to 7, there were no properties to be partitioned between the plaintiffs and defendant Nos.1 to 5. Thus, the suit was dismissed.

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Being aggrieved by it, the plaintiffs have preferred an appeal by raising various grounds in the appeal memorandum. The learned counsel for the appellants/plaintiffs

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submitted in support of the grounds raised that the plaintiffs were not parties to the Rectification Deed; therefore, the said Rectification Deed is not binding on the plaintiffs. Further, submitted that there was no settlement before the Jamat and DW-5 did not act as a conciliator between the plaintiffs and defendant Nos.1 to 5. Additionally, the said settlement partition was not registered in the office of Sub Registrar. Therefore, whatever the settlement and registered partition deeds are, fraud and collusive, hence not binding on the plaintiffs. In this regard, the Trial Court has not appreciated evidence on record correctly, resulting into dismissal of the suit. Hence, prayed to allow the appeal and decree the suit as prayed for.

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On the other hand, defendant Nos.1 to 5 submitted that by pledging the ‘A’ schedule property during lifetime of Usmansab, loans and liabilities raised. To clear the said loans and liabilities the ‘A’ schedule property was sold to defendant Nos.1 to 5, with an obligation on their part to perform the marriage of their sisters. The ‘B’ schedule property is considered additional property that was given to defendant Nos.1 to 5, while the entire schedule properties were given to the share of plaintiffs. In this regard, an equitable partition was

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effected and the plaintiffs have admitted to the settlement made before Jamat along with the consequential registration of the settlement in the office of Sub Registrar. Therefore, the plaintiffs are estopped from contending that there was no partition earlier. This observation was correctly made by the Trial Court and accordingly dismissed the suit, which needs no intervention by this Court. Therefore, prayed to dismiss the appeal.

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Upon hearing the submissions of both the learned

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counsels and perusal of material placed on records, the points that would arise consideration:

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i. Whether, under the facts and circumstances involved in the case, the plaintiffs prove that all the properties remain as tenants in common and thus are partible between the plaintiffs and defendant Nos.1 to 5, and are entitled to a share in the suit schedule properties?

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ii. Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the Trial Court requires any interference by this Court?

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It is contention of the plaintiffs that they being tenants in common along with defendant Nos.1 to 5, claim that all the suit schedule properties ‘A’ to ‘C’ are not partitioned; therefore, the plaintiffs are entitled 1/5^th share in the suit schedule properties. However, upon considering Ex.D-1/Vatni Patra dated 30.05.2006, it is proved that there was settlement between the plaintiffs and defendant Nos.1 to 5 before the Jamat. DW-5 is a senior Advocate, acted as a conciliator between the plaintiffs and defendant Nos.1 to 5 as per direction given by the Jamat. DW-5 had given evidence that he acted as a conciliator and accordingly settlement deed was prepared and got registered in the office of Sub Registrar on 30.05.2006. Also, the plaintiffs have consented to the terms and conditions of the Jamat by signing a letter.

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Upon considering cross examination of PW-1, he admitted that during the lifetime of his father, the ‘A’ schedule property was mortgaged to the Corporation Bank and Sirsi Urban Co-operative Bank. Therefore, it was a condition that in order to clear the loan, the ‘A’ schedule property was given to the share of defendant Nos.1 to 5. Subsequently, defendant Nos.1 to 5 sold the ‘A’ schedule property in favour of defendant

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No.6 and cleared the loan. Besides this, by giving the ‘A’ schedule property to the share of defendant Nos.1 to 5, the responsibility was placed on them to perform their sisters’ marriage in the family. The plaintiffs, in cross-examination, admitted that on 14.12.2005, a partition deed prepared and registered on 30.05.2006 before the office of the Sub Registrar. The plaintiffs have stated that they do not know the contents in the terms and conditions executed before the Jamat and registered before the Sub Registrar, but they admitted that they signed the settlement deed executed before the Jamat. Further, admitted that both parties went to the office of Sub Registrar and put their signatures. This will prove that there was partition completed validly by getting it registered on 30.05.2006.

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Further, the plaintiffs have admitted in the crossexamination that they have purchased the Pulsur bike and for purchase of the said bike, they had given the said partition deed as a pledge to raise loan. Therefore, it is proved that the plaintiffs have acknowledged the partition effected on 30.05.2006. The plaintiffs have admitted that they went to the office of Sub Registrar and participated in the registration

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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process by providing their photographs, thumb impressions and put signatures. Therefore, all these proved the fact that there was a partition between in the family of plaintiffs and defendant Nos.1 to 5.

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Further, in the course of cross examination, PW-1 being plaintiff No.2, admitted that the entire ‘C’ schedule property was given to the share of plaintiffs. This was correctly observed by the Trial Court while appreciating evidence on record. Further, admitted that they have made renovations of the ‘C’ schedule property and rented it out to tenants. Therefore, upon re-appreciating the evidence on record in this regard, it is proved that there was an earlier partition in the family and plaintiffs and defendant Nos.1 to 5 before the Jamat on 14.12.2005, which was later registered in the office of Sub Registrar.

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Therefore, upon re-appreciating evidence of PW-1 including cross examination and Exs.D-1, D-17 and D-18, along with the evidence of DW-5, who acted as a conciliator before the Jamat and other witnesses as DWs-2 to 4, 6 and 7, it is established that there was partition among the plaintiff and

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NC: 2025:KHC-D:2112 RFA No. 100163 of 2016

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defendant Nos.1 to 5. Therefore, there was prior partition, and hence, the plaintiffs failed to prove that there was partition earlier and acted upon it. Accordingly, I answer point Nos.1

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and 2 in the Negative . Therefore, the appeal is liable to be dismissed.

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Accordingly, the appeal is dismissed.

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Send back the Trial Court Records along with

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certified copy of this judgment.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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PMP para 1 to 5 SRA para 6 to end List No.: 1 Sl No.: 19

Basherahmed S/O Usansab Londewale v. Shajadabi W/O Usmansab Londewale

Case brief

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Basherahmed S/O Usansab Londewale v. Shajadabi W/O Usmansab Londewale

Case brief

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