Gafoor Sab S/O Rahman Sab Fakeer Vs Naseema Begum and Ors.

Digitally signed by 1. NASEEMA BEGUM BASALINGAPPA SHIVARAJ W/O KHAJA KHAN, DHUTTARGAON AGED 57 YEARS, Location: HIGH COURT OF OCC: HOUSEHOLD, KARNATAKA R/O:# 964/3316 GUNJ ROAD, NEAR JAWAHARE-E-HIND SCHOOL, GESUDARAZ COLONY, KALABURAGI – 585 101.

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SHAMEEM BEE W/O MOHD AFZAL AGE 52 YEARS, OCC: HOUSEHOLD, R/O: #1-1288 BOYAPATA VILLAGE, TQ: PENUKONTA,

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DIST: ANANTPUR, ANDHRA PRADESH – 515 110.

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QAMAR BEGUM W/O HAJI KHAN AGE 47 YEARS, OCC: HOUSEHOLD, R/O:#37 BULAND DARWAZA COLONY, KALABURAGI – 585 101.

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GOUSIYA BEGUM W/O MOHD NASEER AGE 44 YEARS, OCC: HOUSEHOLD, R/O:#37 BULAND DARWAZA COLONY, KALABURAGI – 585 101.

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NAYEEMA BEGUM W/O MOHD KHAJA AGE: 35 YEARS, OCC: HOUSEHOLD, R/O:#19-5-32/17/A/3/80, KISHAN BAGH, ASADBABA NAGAR, HYDERABAD – 500 059.

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MAHEBOOB BEE W/O MOHD RAHMAN AGE: 34 YEARS, OCC: HOUSEHOLD, R/O:#E-8-1590/28, TAJ NAGAR, MUSLIM SANGH, KALABURAGI – 585 101.

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SYEDA SHAHNAZ BEGUM W/O SYED FAKRUDDIN AGE: 32 YEARS, OCC: HOUSEHOLD, R/O:#E-8-1590/28, TAJ NAGAR, MUSLIM SANGH, KALABURAGI – 585 101.

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MOHD ISMAIL S/O GAFOOR SAB FAKER AGED 46 YEARS,

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OCC: AGRICULTURE, R/O: MUSTARI-WADI, TQ: CHITGUPPA, DIST: BIDAR 585 330.

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MOHD RASOOL S/O GAFOOR SAB FAKEER AGED 37 YEARS, R/O: MUSTARI-WADI, TQ: CHITGUPPA, DIST: BIDAR 585 330.

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HAJI MIYAN S/O GAFOOR SAB AGE 42 YEARS, OCC: AGRICULTURE, R/O: MUSTARI-WADI, TQ: CHITGUPPA, DIST: BIDAR 585 330.

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…RESPONDENTS

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(BY SRI SANTOSH KUMAR B. METRI, ADVOCATE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 07.10.2021 PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C., HUMNABAD, IN O.S.NO.8/2020, AND FURTHER DECREE THE SUIT OF THE PLAINTIFF AND ETC.

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THIS REGULAR FIRST APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

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This first appeal is arising from judgment and decree in O.S.No.8/2020 on the file of Senior Civil Judge, Humnabad. The suit for declaration of title and injunction is dismissed. The plaintiff is before this Court challenging the aforementioned judgment and decree.

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Plaintiff is the father of defendants No.1 to 10. The suit is filed in respect of property bearing Sy.No.134/1 measuring 9 acres 14 guntas in Mustari Village, Taluk Chitagoppa. The plaintiff contended that he is the absolute owner of the suit property referred to above. The plaintiff claimed that the property initially belonged to himself and his brother (cousin) and the property is allotted to his share in the partition between himself and his cousin. It is further stated that to claim the benefits available to the small holders, the plaintiff got his daughter, i.e. 1^st defendant’s name entered in the property records to the extent of 4 acres 27 guntas and remaining 4 acres 27 guntas was entered in his name and later it was transferred in the name of his wife - Tahira Bi.

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The suit is filed after the demise of Tahirabi on the premise that 1^st defendant daughter is claiming exclusive ownership over 4 acres 27 guntas and interfering in the possession in respect of remaining 4 acres 27 guntas which earlier stood in the name of his wife - Tahirabi.

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Defendant No.1 contested the suit in respect of 4 acres 27 guntas contending that the said property is originally gifted to 1^st defendant by her uncle and in respect of remaining 4 acres 27 guntas, the 1^st defendant claimed that she is also the shareholder after the demise of her mother.

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The Trial Court held that the plaintiff did not prove his title and possession over the suit property and consequently, dismissed the suit. At the same time, the Trial Court also held that 1^st defendant did not prove her contention relating to oral gift in respect of 4 acres 27 guntas by her uncle Usman sab.

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Aggrieved by the aforementioned judgment and

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decree, the plaintiff is before this Court.

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Defendant No.1 though served has remained absent. Remaining defendants are before this Court and have supported the claim of the plaintiff before the Trial Court.

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Learned counsel appearing for the plaintiff would contend that even if the plaintiff is unable to establish the title over 4 acres 27 guntas, in the remaining 4 acres 27 guntas in Sy.No.134/1 which stood in the name of his wife Tahirabi, decree for partition should have been granted by moulding the relief, as Tahirbi had died prior to the suit.

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It is his further contention that the Trial Court has given a finding that oral gift claimed by 1^st defendant is not established and in that event, since there is no other claim by any other person in respect of 4 acres 27 guntas, the decree for declaration of title should have been granted in favour of the plaintiff.

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Learned counsel appearing for defendants 2 to 10 would support the case of the plaintiff.

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This Court has considered the contentions raised at

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the bar and perused the records.

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The following points arise for consideration:

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(i) Whether the Trial Court erred in dismissing the suit despite noticing the fact that the property measuring 4 acres 27 guntas in Sy.No.134/1 was originally standing in the name of Tahirabi - wife of the plaintiff and mother of defendants 1 to 10?

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(ii) Whether the plaintiff establishes his title in respect of remaining 4 acres 27 guntas which stood in the name of 1^st defendant when the Trial Court has given a finding that oral gift in favour of 1^st defendant is not established?

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As can be noticed from Ex.P.1, the property originally stood in the name of Usman Sab, who is said to be the uncle of the 1^st defendant. The said mutation would reveal that from said Usman Sab 4 acres 27 guntas were transferred in the name of 1^st defendant and remaining 4 acres 27 guntas were transferred in the name of the plaintiff and later it is transferred in the name of Tahirabi. From Ex.P.1, it is noticed that property measuring 4 acres 27 guntas was transferred in the name of the plaintiff and later under Ex.P.2, 4 acres 32 guntas is transferred in the name of plaintiff's wife Tahirabi. Admittedly, Tahirabi is no more. The mutations have been certified in the year 1988. There are no materials to hold that property was not given to Tahirabi and it was retained by the plaintiff. The mutations have not been questioned for several years. Under these circumstances, this Court is of the view that the plaintiff though not able to establish exclusive ownership over 4 acres 27 guntas transferred in the name of Tahirabi, is able to establish that he is one of the successors to the property along with defendants 1 to 10 to the extent of 4 acres 27

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guntas standing in the name of Tahirabi. This being the position, the Trial Court ought to have moulded the relief in respect of 4 acres 27 guntas standing in the name of Tahira Bi.

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As far as remaining 4 acres 27 guntas standing in the name of 1^st defendant is concerned, it is noticed that the Trial Court has given a finding that oral gift claimed by 1^st defendant in respect of 4 acres 27 guntas from her uncle Usman Sab is not established. Defendant No.1 though served has remained absent before this Court and has not questioned the finding that the oral gift is invalid. This being the position, this Court is of the view that oral gift claimed by defendant No.1 is not established.

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Now the plaintiff is claiming that the property once belonged to him and did not belong to his uncle Usman Sab. It is his contention that the property is allotted to his share in the partition. The said plea cannot be adjudicated without making Usman Sab or his descendants as parties to the proceeding. To that extent the suit is defective. Hence, this Court is of the view that an opportunity should be given to the plaintiff to establish his claim over the property bearing Sy.No.134/1 measuring 4 acres 27 guntas standing in the name of 1^st defendant by impleading all descendants of Usman Sab as parties to the proceeding.

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16. Hence the following:

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ORDER

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(i) Appeal is allowed-in-part .

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(ii) The judgment and decree dated 07.10.2021 in O.S.No.8/2020 on the file of the Civil Judge, Humnabad are set-aside in part.

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iii) The suit of the plaintiff is decreed in part. Plaintiff is entitled to 1/4 share in Sy.No.134/1 measuring 4 acres 27 guntas.

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iv) Each of defendants 8, 9 and 10 of them is entitled to 3/26^th share in Sy.No.134/1 measuring 4 acres 27 guntas.

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v) Each of defendants 1 to 7 is entitled to 3/52^nd share in the property bearing Sy.No.134/1 measuring 4 acres 27 guntas.

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vi) Insofar as remaining 4 acres 27 guntas in Sy.No.134/1 standing in the name of 1^st defendant, plaintiff is at liberty to file a fresh suit impleading Usman Sab or his descendants as parties to the proceeding.

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(vii) It is made clear that findings relating to the alleged gift in favour of 1^st defendant which is negatived by the Trial Court is affirmed.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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BRN List No.: 1 Sl No.: 51

Gafoor Sab S/O Rahman Sab Fakeer v. Naseema Begum and Ors.

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Gafoor Sab S/O Rahman Sab Fakeer v. Naseema Begum and Ors.

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