Basheer Ahmed Vs Nazeer Ahamed

K. KRISHNAPPA, S/O MADA, AGED ABOUT 45 YEARS, R/AT KAVERI CONDIMENTS AND TEA STALL, NEAR TALUK PANCHAYATH OFFICE, B.T. ROAD, KADUR, CHIKKAMAGALUR DISTRICT - 577 548.

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…APPELLANTS

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(BY SRI. VAGEESH N, ADVOCATE)

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AND:

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NAZEER AHAMED,

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S/O LATE MOHAMMED HAYATH, AGED ABOUT 53 YEARS, R/AT NEAR JAMIYA MASJID, MAYASANDRA, TURUVEKERE TALUK, TUMKUR DISTRICT - 572 221.

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KHALANDAR SAB

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S/O LATE MOHAMMED HAYATH, AGED ABOUT 58 YEARS, MARAVANJI ROAD, (OPPOSITE TO SHANIDEVARA TEMPLE) KADUR - 577 548.

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NAZMUNNISSA

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W/O LATE MOHYDDIN SAB, AGED ABOUT 50 YEARS, R/AT K. BIDARA VILLAGE, SINGATAGARE HOBLI, KADUR TALUK,

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CHIKAMANGALORE - 577 138.

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INAYATH

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S/O LATE MOHYDDIN SAB, AGED ABOUT 30 YEARS, R/AT K.B. DARA VILLAGE, SINGATAGARE HOBLI, KADUR TALUK,

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CHIKAMANGALORE - 577 138.

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BABAJAN @ PARAJAN

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S/O LATE MOHAMMED HAYATH, AGED ABOUT 44 YEARS, RESIDING AT RAILWAY GATE, MAHABOOB NAGARA, RAMANAGARA TOWN - 572 221.

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…RESPONDENTS

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(BY SRI. R.B. SADASIVAPPA, ADVOCATE FOR C/R1; R3 AND R4 SERVED;

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VIDE ORDER DATED 17.07.2023, APPEAL AGAINST R2 IS DISMISSED AS ABATED ON 15.03.2017; VIDE ORDER DATED 17.07.2023, APPEAL AGAINST R5 IS DISMISSED ON 06.06.2022)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 17.9.2013 PASSED IN R.A.NO.4/2008 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 23.11.2007 PASSED IN OS.NO.1/2005 ON THE FILE OF CIVIL JUDGE (SR.DN.) AND JMFC, KADUR.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 17.09.2013 passed in R.A.No.04/2008 by the First Additional District Judge, Chikkamagaluru.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos.4 and 6, respondent No.1 was the plaintiff and the other respondents were the other defendants.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that his father, Mohammed Hayath Sab had acquired the property by way of grant. The plaintiff and defendant Nos.1 to 5 are the legal representatives of the deceased Mohammed Hayath Sab. It is contended that after the death of the Mohammed Hayath Sab and Fathima Bi, plaintiff and defendant Nos.1 to 5 succeeded as legal heirs and are enjoying suit schedule property as tenants in common. It is further contended that defendant Nos.1 to 5 are trying to alienate the suit schedule property in favour of defendant No.6 vide sale deed dated 14.10.2003. It is contended that the plaintiff is entitled to a share in the suit schedule property and no partition is effected between the plaintiff and defendant Nos.1 to 5. It is contended that the plaintiff's father, Mohammed Hayath Sab died on 04.02.1995 and as on the date of the execution of the alleged registered sale deed dated 18.04.1995, in favour of defendant No.4. Mohammed Hayath Sab was not alive.

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Therefore, defendant No.4 has no right or title of the suit property by virtue of said sale deed and hence, is not eligible to sell the suit property in favour of defendant No.6. Hence, prays to decree the suit.

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Defendant No.4 filed a written statement

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admitting the relationship between the parties to the suit. It is contended that the suit schedule property was acquired by Mohammed Hayath Sab and he died on 04.02.1995, leaving behind his widow Fathima Bi, his sons

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plaintiff and defendant Nos.1, 4 and 5 and late Mohiyuddin Sab, who died leaving behind defendant Nos.2 and 3. It is contended that, Mohammed Hayath Sab died intestate, after the demise of Mohammed Hayath Sab, Fathima Bi, the plaintiff and defendant Nos.1 to 5 succeeded as the legal representatives and are enjoying the suit schedule properties as tenants in common. The plaintiff is now residing at Mayasandra, Turuvekere Taluk, Tumkur District and working at Jamia Maszid, Mayasandra,

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while carrying out a flower decoration business through his

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hard work.

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It is contended that, defendant No.4 had

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purchased a portion of the suit schedule property from his father, Mohammed Hayath Sab, under a registered sale deed dated 18.04.1996 and the remaining portion of the suit property was purchased by 1^st defendant from Mohammed Hayath Sab. It is further contended that the plaintiff has relinquished his right of share in defendant No.4's property, under an agreement alleged to have been executed by him, dated 07.01.1988 in favour of defendant No.4. It is further contended that the plaintiff executed the "Hakkukulase Kararu Pathra" in favour of his father and defendant No.4 on 03.07.1989, relinquishing his right and share in the suit property. The plaintiff has no right, title or interest over the suit schedule property and therefore, prays to dismiss the suit against defendant No.4.

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Defendant No.6 filed a memo adopting the

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written statement filed by defendant No.4. Defendant No.5 filed a written statement denying the averments made in the plaint and prays to dismiss the suit. Defendant Nos.2 and 3 filed a memo, adopting the written statement filed by defendant No.5. Defendant No.4 filed an additional written statement denying the date of death of Mohammed Hayath i.e., 04.02.1995. It is stated that, he died in 1996. He had executed a registered sale deed in favour of defendant No.4. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the following issues.

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1. Whether the plaintiff proves that he and the defendants are the legal heirs and are enjoying the suit properties as tenants in common after the death of Mohammed Hayath Sab and Fathima Bi?

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2.Whether he further proves that he and the defendants 1, 4 and 5 have put up some construction to the suit schedule property and in his absence the defendants have occupied the

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house under construction and are denying plaintiff's share?

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3. Whether he proves that D-1 to 5 are trying to alienate the property in favour of defendant No.6?

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4. Whether the defendants prove that the plaintiff has executed the Hakku Kulase Patra in favour of his father on 03.07.1989 by receiving Rs.3,000/- and has relinquished his share in the suit property?

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5. Whether the plaintiff is entitled to any share in the suit property, of so to what share is he entitled?

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6. What decree or order?

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ADDITIONAL ISSUES:

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1. Whether the defendant No.5 proves that the suit is not maintainable, since the plaintiff has not stated to which class of Mohammedan he belongs?

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2. Whether he proves that the plaintiff has created sham documents in collusion with defendant No.4?

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8. The plaintiff to substantiate his case, examined

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himself as PW1, examined one witness as PW2 and marked 11 documents as Ex.P1 to Ex.P11. On the other

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hand, defendant No.4 was examined as DW1, defendant No.3 was examined as DW2, Defendant No.1 was examined as DW4. Defendant No.6 was examined as DW3 and marked 17 documents as Ex.D1 to Ex.D17.

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The trial Court, after recording the evidence,

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hearing on both sides and assessing the oral and documentary evidence, answered issued Nos.1 to 5 and additional issue Nos.1 and 2 in the negative, issue No.6 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 23.11.2007. The plaintiff, aggrieved by the judgment and preliminary decree passed in O.S.No.01/2005, preferred an appeal in R.A.No.04/2008 on the file of the first Additional District Judge, Chikkamagalur.

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The First Appellate Court, after hearing the learned counsel for the parties framed the following points for consideration.

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1. Whether the appellant/plaintiff has made out valid grounds to set aside the judgment and decree passed in O.S.No.01/2005 dated 23.11.2007 on the file of Senior Civil Judge, Kadur?

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2. Whether the appellant has made out valid grounds to set aside the judgment and decree passed by the Trial court?

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3. What Order?

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The appellate Court, after re-assessing the verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative, point No.3 as per the final order. The appeal was allowed. The judgment and decree passed in O.S.No.01/2005 dated 23.11.2007 on the file of Senior Civil Judge, Kadur was set aside and the suit of the plaintiff was decreed. It is ordered and declared that the plaintiff is entitled to a 1/5^th share in the suit schedule property bearing No.5278/5142, assessment No.5275, measuring 35X47 feet situated at Maravanji road, Shanidevara temple, Kadur town. It is ordered and declared that defendant Nos.1 to 4 are also entitled for each 1/5^th share in the suit schedule property by metes

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and bounds. It is also declared that sale deed executed by defendant No.4 - Basheer Ahamed, in favour of defendant No.6 - K.Krishnappa, to the extent of 4/5^th share, is not binding on the rights of the plaintiff, defendant Nos.1 to 3.

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The sale deed executed in favour of defendant No.6 - Krishnappa dated 14.10.2003 holds good to the extent of 1/5^th share of defendant No.4 - Basheer Ahamed. Defendant Nos.4 and 6, aggrieved by the judgment and decree passed in R.A.No.04/2008, preferred this regular second appeal.

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Heard the arguments of the learned counsel for the defendant Nos.4, 6 and the plaintiff.

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Learned counsel for the defendant Nos.4 and 6 submits that, Mohammed Hayath Sab i.e., defendant No.4's father executed a registered sale deed in regard to the portion of the suit schedule property in favour of defendant No.4 on 18.04.1996 and he submits that the

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father was alive as on the date of execution of the registered sale deed.

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He submits that behind the back of the plaintiff, defendant Nos.4 and 6, obtained the death certificate of Mohammed Hayath Sab, disclosing the death as 04.02.1995, but infact he died in 1996. He submits that the order obtained by the plaintiff from the Magistrate regarding the death certificate is incorrect. He also submits that there is a presumption regarding the execution of a sale agreement. The first appellate Court has not drawn a presumption regarding the execution of the sale deed. He submits that, the plaintiff filed a petition before the Magistrate, not immediately, but after 7 years from the year of death of Mohammed Hayath Sab.

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He submits that, during the cross examination, learned counsel for the plaintiff has suggested to DW1 that Mohammed Hayath Sab died on 04.11.1996. The said suggestion itself is sufficient to hold that the father died in

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Hence, the trial Court considering the suggestion during the cross examination of DW1, has rightly dismissed the suit, holding that the father of defendant No.4 died in 1996 and during his lifetime, he had executed a registered sale deed in favour of defendant No.4.

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The First Appellate Court has not properly reappreciated the entire evidence on record and without considering the additional written statement filed, considered the admissions made in the written statement initially. Therefore, the first appellate Court committed an error in passing the impugned judgment. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that the plaintiff has pleaded in the plaint regarding the death of Mohammed Hayath Sab is on 04.02.1995 and the said aspect was admitted by defendant No.4 in the written statement and examinationin-chief of DW1. Subsequently, after concluding the

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evidence, defendant No.4 filed an application for amendment to the written statement. By way of the amendment, defendant No.4 withdrawn the admission of date of death, of their father, on 04.02.1995. He submits that even after amending the written statement, neither defendant No.4 nor defendant No.6 has led any evidence regarding the date of death of Mohammed Hayath Sab as 04.11.1996. He also submits that the burden is on defendant No.4 to demonstrate that the father, Mohammed Hayath Sab had executed a registered sale deed in favour of defendant No.4.

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Defendant No.4 has not examined any attesting witnesses and has also not taken any steps to refer the disputed documents to the handwriting/thumb impression experts. He also submits that the order passed by the Magistrate regarding the registration of the date of death of Mohammed Hayath Sab was not challenged by defendant Nos.4 and 6. Hence, he submits that, first appellate Court was justified in passing the impugned

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judgment. The impugned judgment is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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This Court vide order dated 05.09.2014, framed the following substantial question of law.

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"Whether the First Appellate Court is justified in decreeing the suit of the plaintiff/respondent No.1 for partition of the suit schedule property on the basis of the admission said to have been made by the 4^th defendant/appellant in the written statement without noticing the subsequent amendment made to the written statement and the explanation offered for the mistake committed in the original written statement?"

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Regarding substantial question of law:

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The plaintiff filed a suit for partition and separate possession claiming that the plaintiffs and defendant Nos.1 to 5 are the tenants in common and plaintiff's father i.e, Mohammed Hayath Sab acquired the suit schedule property and died intestate leaving behind the plaintiff and defendant Nos.1 to 5. No partition is

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effected between the plaintiff and defendant Nos.1 to 5. The plaintiff, to substantiate his case, examined himself as PW1 and he reiterated the plaint averments in the examination-in-chief and further to prove that the suit schedule property was acquired by Mohammed Hayath Sab, he produced the documents.

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Ex.P1 is the property assessment of the

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Property bearing No.5278/5142.

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Ex.P2 is the Genealogical tree of the family of

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the Mohammed Hayath Sab.

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Ex.P3 is the death certificate of Mohammed

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Hayath, which discloses that he died on 04.02.1995.

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Ex.P4 is the Tax Assessment Register Extract, which discloses the name of Mohammed Hayath Sab in respect of the suit schedule property for 2003-2004.

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Ex.P5 to Ex.P7 are the self assessment tax paid

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receipts which disclose that the plaintiff had paid the tax on behalf of Mohammed Hayath Sab.

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Ex.P8 is the New encumbrance certificate.

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Ex.P9 to Ex.P11 are the receipts.

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During the cross examination it was suggested to PW1 that Mohammed Hayath Sab had executed a registered sale deed in favour of defendant No.4 regarding the portion of the suit schedule property and the plaintiff had executed a relinquishment deed in favour of the plaintiff's father and defendant No.4 and based on the registered sale deed executed by Mohammed Hayath Sab, in favour of defendant No.4, defendant No.4 became the absolute owner of the suit schedule property. The said suggestions were denied by PW1.

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PW1 deposed that, though it is the contention of defendant No.4 that his father died on 04.11.1996, not

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on 04.02.1995, he did not produce the documents to prove his contention. Defendants have suggested to PW1, Mohammed Hayath Sab died on 04.11.1996 and said suggestion was denied. Further, the plaintiff also examined one witness as PW2, who has also deposed that the suit schedule property was acquired by Mohammed Hayath Sab and died intestate leaving behind the plaintiff and defendant Nos.1 to 5 and the plaintiff and defendant Nos.1 to 5 have succeeded to the suit schedule property. The plaintiff and defendant Nos.1 to 5 are the tenants in common and no partition has been effected between the plaintiff and defendant Nos.1 to 5. Nothing has been elicited from the mouth of these witnesses to disbelieve the evidence.

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On the other hand, defendant No.4 was examined as DW1 who reiterated the written statement averments in the examination-in-chief. In para 2 of the examination-in-chief, DW1 has clearly admitted as follows.

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"I submit that, myself, Plaintiff and the Defendants No.1, 5 and father of the defendant No.3 are the sons of Late.Mohammed Hayath Sab and Late Fathima Bee, the suit schedule property belong to Late Mohammed Hayath Sab, S/o.Nabi Sab, who died on 04.02.1995 , leaving behind his widow Fathima Bee and his sons, i.e., the Plaintiff, myself, Defendants No.1 and 5 and Late.Mohiyuddin Sab, who died leaving behind the Defendant No.2 and 3, are true and correct."

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The perusal of cross examination of DW1 discloses that, a stray suggestion was made to DW1, stating that his father died on 04.11.1996 and the same was admitted, however, DW1 has clearly admitted that he has not produced any records to establish that his father died on 04.11.1996. The plaintiff has also suggested that Mohammed Hayath Sab did not execute a registered sale deed in favour of defendant No.4 in 1996. The said suggestion was denied.

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Defendant No.3 was examined as DW2, who supported the case of the plaintiff and sought a share in

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the suit schedule property and turned hostile. Defendant No.6 was examined as DW3. He has stated that, defendant No.4 executed a registered sale deed in favour of defendant No.6 and he is a bonafide purchaser for valuable consideration and he deposed that, he had purchased the suit schedule property after verifying the records. Defendant No.1 was examined as DW4.

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In support of the defence, the defendants had produced the documents.

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Ex.D1 is the Kararu Patra which discloses that, the plaintiff has executed an agreement relinquishing his right regarding the property bearing assessment No.759/692 in favour of defendant No.4 by receiving Rs.2,000/-.

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Ex.D2 is the hakku kulase kararu Patra dated 03.07.1989, executed by the plaintiff, relinquishing the right regarding suit property in favour of defendant No.4 and plaintiff's father.

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Ex.D3 is the grant certificate, which discloses that

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the suit schedule property was granted in favour of Mohammed Hayath Sab.

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Ex.D4 is the registered sale deed dated 18.04.1996, executed by Mohammed Hayath Sab in favour of Defendant No.4.

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Ex.D5 is the Tax assessment list

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Ex.D6 is the original registered sale deed dated

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14.10.2003, executed by defendant No.4 in favour of defendant No.6.

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Ex.D7 is the assessment extract

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Ex.D8 is the property register extract

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Ex.D9 and Ex.D10 are the two tax paid receipts

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Ex.D11 to Ex.D13 are the three receipts

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Ex.D14 is the encumbrance certificate

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Ex.D15 is the permission letter

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Ex.D16 is the blue print

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Ex.D17 is the permission letter to tap work.

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From the perusal of the entire evidence on record, it is not in dispute that, Mohammed Hayath Sab was acquired the suit schedule property, as the same was granted by the government in favour of Mohammed Hayath Sab as per Ex.D3.

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It is the case of defendant No.4, that Mohammed Hayath Sab, during his life time, sold the portion of the suit schedule property in favour of defendant No.4 on 18.04.1996 as per Ex.D4. However, the plaintiff has denied the execution of a registered sale deed by Mohammed Hayath Sab in favour of defendant No.4 and also contended that Mohammed Hayath Sab died on 04.02.1995 and not on 04.11.1996. The plaintiff has produced the death certificate of Mohammed Hayath Sab

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as Ex.P3, which discloses that, the plaintiff filed a petition before the Civil Judge under the provisions of the Registration of Births and Deaths Act 1969. The death certificate was issued as per the order passed by the JMFC, Kadur in proceedings O.S.No.326/2004 which discloses that, Mohammed Hayath Sab died on 04.02.1995. The said death certificate was not challenged by defendant No.4. It was issued by the Chief Registrar of births and deaths. It has attended a finality and further defendant No.4 has not taken any steps to refer Ex.D.4 to the handwriting expert/thumb impression, to verify the admitted thumb impression/signature of Mohammed Hayath Sab with a disputed signature/thumb impression of Ex.D4. Further, DW1 in the examination-in-chief has clearly admitted that Mohammed Hayath Sab died on 04.02.1995. After the conclusion of evidence, defendant No.4 filed an application to amend the written statement. The said application was allowed by the trial Court. Thereafter, defendant No.4 filed an additional written

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statement contending that the father died on 04.11.1996. After filing the additional written statement, defendant No.4 has not entered the witness box. In a suit for partition and separate possession, the initial burden is on the plaintiff to establish the relationship and nature of the suit schedule property. Once, the burden is discharged, it shifts to the defendants who contend that the property was self acquired property.

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The plaintiff, by virtue of the admission of defendant No.4 in the written statement that the property was acquired by Mohammed Hayath Sab, is sufficient to hold that the property was acquired by Mohammed Hayath Sab and he died intestate. Hence, the burden is on the defendants to establish that as on the date of execution of the alleged registered sale deed i.e. at Ex.D4, Mohammed Hayath Sab was alive and the defendants, except for oral evidence, have not produced any records to establish that the father was alive as on the date of Ex.D4 execution and died on 04.11.1996. The crux of the case is whether

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Mohammed Hayath Sab died on 04.02.1995 or on 04.11.1996?

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As observed above, the burden is on the defendants to establish that the father died on 04.11.1996. As, DW1 in the cross examination, has clearly admitted that he has not produced any records to establish that his father died on 04.11.1996, in the absence of evidence regarding the death of Mohammed Hayath Sab, the first appellate Court was justified in passing the impugned judgment by placing reliance on Ex.P3 i.e., the Death certificate of Mohammed Hayath Sab who died on 04.02.1995. The first Appellate Court considering the entire evidence on record has rightly held that the plaintiff and defendant Nos.1, 4 and 5 and Late late Mohiyuddin Sab are the legal heirs of Mohammed Hayath Sab and are tenants in common and no partition was/is effected in the suit schedule property and rightly held that the plaintiff is entitled to a share in the suit schedule property.

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Defendant No.4 has amended the written statement but has not led any evidence to disprove that the father died on 04.02.1995. The First Appellate Court has considered the entire evidence on record and also the subsequent amendment to the written statement in Para No.16. The first appellate Court considered the additional written statement filed by the defendant No.4 which reads as under:

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"Infact, in the written statement defendant No.4 - Basheer Ahamed clearly admitted the fact of death as 04.02.1995, later is has been corrected by way of amendment."

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Further learned counsel for the plaintiff submits that, based on Ex.D4 the name of defendant No.4 was not entered in the revenue records and from the perusal of the records, defendant No.4 has not produced any records to show that based on Ex.D4 the name of defendant No.4 was entered in the revenue records. The said act of

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defendant No.4 discloses that, he had not acted upon the registered sale deed, ExD4.

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Further, defendant No.4 is also claiming to be the owner of suit property based on the agreement dated 03.07.1989, the relinquishment deed. The First Appellate Court has negated the claim of defendant No.4 regarding the agreement dated 03.07.1989. Defendant No.4 has not produced the agreement dated 03.07.1989. The first appellate Court has re-appreciated the entire evidence on record and has rightly passed the impugned judgment. I do not find any error in the impugned judgment. In view of the above discussions, I answer the substantial question of law in the affirmative. Accordingly, I proceed to pass the following order:

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ORDER

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1. The Appeal is dismissed.

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