Dismissed

Rahamathullah v. H.Safara Bi

Madras HC24 Jan 2018SA/845/2003

Case brief

AI extract

What is this about?

Second Appeal where the High Court upheld the dismissal of the suit claiming right in a common pathway, kalam, old well, and bore. The court found the plaintiffs failed to establish that the kalam and borewell were earmarked as common property during oral partition or were located in the defendants' share.

What did the court decide?

Second appeal dismissed with costs; reliefs regarding pathway upheld; reliefs regarding kalam and borewell dismissed.

Rahamathullah Vs H.Safara Bi — Partition | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 11.01.2018 PRONOUNCED ON :24.01.2018

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CORAM:

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THE HON'BLE MR.JUSTICE T.RAVINDRAN

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S.A. No.845 of 2003

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Rahamathullah ...Appellant/1 st Plaintiff
Vs.
1.H.Safara Bi (died)
2.Shah-in-sha
3.Salim
4.Liaquat Ali
5.Ahasam Ali
6.Riatz Ali
7.Farouk Ali
8.Yasin Khan
[Recorded RR2 to 8 as L.R's
of the deceased R1 vide
order of Court dated 27.01.2010
in Memo USR.No.723 of 2004]

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...Respondents/ Defendants 1 to 5 & 2^nd plaintiff Prayer:

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Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 08.01.2003 in A.S.No.34 of 2001 and Cross objections on the file of the Sub Court, Panruti, partly reversing the judgment and the decree dated 31.07.2001 in O.S.No.11 of 1994 before the District Munsif's Court, Panruti.

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For Appellant : Ms.A.Nilaphar for M/s.R.Meenal

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For Respondents : Ms.V.C.Thaarini for M/s.V.Raghavachari *****

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J U D G M E N T

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This second appeal is directed against the Judgment and Decree dated 08.01.2003 passed in A.S.No.34 of 2001 and cross objections on the file of the Sub Court, Panruti, partly reversing the judgment and decree dated 31.07.2001 passed in O.S.No.11 of 1994 on the file of the District Munsif Court, Panruti.

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The parties are referred to as per the rankings in the trial court.

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Suit for declaration and permanent injunction.

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4.The case of the plaintiffs in brief is that the suit properties originally belonged to Ismail Khan, the father of the plaintiffs, father-in-law of the first defendant and grandfather of the defendants 2 to 8. Though the lands were divided during the lifetime of Ismail Khan orally, the suit properties were kept in common and no division has taken place in respect of the same. Accordingly, for accessing the properties of the various sharers, the suit pathway was kept in common and used as such till date and in this connection, the first plaintiff's wife levied the suit in O.S.No.525 of 1986 for declaration of her right in this path way and after contest, the said suit was decreed. The plaintiffs, as sharers, are also entitled to the suit path way. However, the defendants had prevented the plaintiffs from using the pathway without any basis. To the west of common pathway, there is a kalam and in the said kalam, the first plaintiff and his wife have got a 5HP motor of their own and service connection No.398 with the starter and common tubs and in the said kalam the plaintiffs have got a right and the defendants have no authority to dispute the plaintiffs' right in the common kalam, there is also an old well with bore and though it is not functioning, the plaintiffs are also entitled to share in the same and the defendants are unlawfully denying the plaintiffs' right with reference to the same and hence the suit for appropriate reliefs.

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5.The case of the defendants in brief is that the suit is not maintainable either in law or on facts. The said suit is barred by res judicata, as the first plaintiff had earlier directed his wife to prefer the suit in O.S.No.525 of 1986 against the defendants and the second plaintiff herein and in the said suit, only the first plaintiff was examined as P.W.1 and in respect of the same subject matter, the present suit has come to be levied by the plaintiffs and the allegations that the suit properties were kept in common and no division has taken place with reference to the same are false and there is no such kalam and well referred to in the plaint and the old survey number for the suit property is 546/3 and the new survey number is 25/2, which is measuring 0.80 cents and the first plaintiff's wife levied the suit in O.S.No.525 of 1986, quoting the old survey number and the pathway claimed in the said suit was declared to be a common pathway and the plaintiffs' plan is misleading and there is no kalam, as such, shown in the plaint plan. No common kalam was left out at the time of oral partition. The first plaintiff has purchased the shares of Basheer and Ghouse khan and attempting to grab the properties belonging to the defendants and though in O.S.No.525 of 1986, the first plaintiff through his wife, claimed right in the kalam and electrical service connection, however, later did not claim and press the said right and with a view to harass the defendants, the plaintiffs have come forwarded with the present suit without any cause of action and hence the plaintiffs are not entitled to the reliefs sought for and the suit is liable to be dismissed with exemplary costs.

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6.In support of the plaintiffs' case, P.W.1 was examined. Exs.A1 to A9 were marked. On the side of the defendants', D.W.1 and 2 were examined. Exs.B1 to B9 were marked.

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7.On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to grant the reliefs in favour of the plaintiffs as prayed for in respect of the items 1 and 3 of the suit properties and dismissed the suit as regards the second item of the suit properties. On appeal and cross objections preferred by the respective parties, the first appellate court, on a re-appreciation of the material was pleased to set aside the judgment and decree of the trial court and by way of allowing the cross objections and dismissing the first appeal, dismissed the suit as regards the third item of the suit properties also and granted the relief only as regards the pathway as determined by it and accordingly, disposed the first appeal and the cross objections. Aggrieved over the same, the present second appeal has come to be laid.

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8.At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration.

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(a) Whether in law the Courts below are right in dismissing the suit with regard to the kalam and the borewell when Exs. A4 to A8 admitted to be valid documents, speak of common enjoyment of these two items by all the sharers?

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(b)Whether in law the Lower appellate Court is right in reversing the decree of the trial Court with regard to the appellant's right in the common well, merely because it was made unusable by the respondents pending suit?

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9.The oral and documentary evidence projected in the matter would go to unfold that the plaintiffs, Hanif khan and Ghouse khan and Basheer are the sons of Ismayil khan. The defendants are legal representatives of the deceased Hanif khan. It is further found that in respect of the lands belonging to Ismayil khan of an extent of 11 acres and 93 cents, an oral partition took place during the life time of Ismayil khan amongst him and abovesaid 5 sons and accordingly six shares were divided allotting one share each to Ismayil khan and his five sons.

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10.The suit properties are described as pathway (first item), and kalam (second item) and old well and bore (third item), situated in new T.S.25/2, Block 3, Ward “C” the path way measuring an extent of about 8 cents shown as ECGF in the plaint plan, the kalam measuring an extent of 16 cents shown as ABCD in the plaint plan. Now, according to the plaintiffs', as above described the suit pathway, kalam, old well and bore were left in common to all the sharers, when the oral partition took place in the family of Ismayil Khan above referred to and as the plaintiffs being the sharers are also entitled to use the above said suit properties and as the defendants attempted to interfere with their right and enjoyment of the same, according to the plaintiffs, they had been necessitated to levy the suit against the defendants for appropriate reliefs. The defendants have contested the claim of the plaintiffs that the suit properties as described in the plaint were left in common to be enjoyed by all the sharers at the time when the oral partition took place and on the other hand, according to them, no such pathway, kalam and well and bore were left in common and therefore, according to them, the suit levied by the plaintiffs is devoid of any cause of action and liable to be dismissed. Further, according to them, the first plaintiff, through his wife had already levied the suit in O.S.No.525 of 1986 against the defendants and the second plaintiff in respect of the same

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subject matter and thereafter did not press the said suit as regards the kalam and well and electrical service connection and in the said suit only the pathway has been determined to be common and in such view of the matter, according to the defendants, the plaintiffs in the guise of the present suit are not entitled to contend that the kalam and other suit properties are left in common to be enjoyed by all the sharers and hence the suit is liable to be dismissed.

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11.It is the specific defence of the defendants that during the oral partition, no property has been earmarked as kalam for the enjoyment of the sharers and in such view of the matter, the plaintiffs cannot lay any claim in respect of the second item of the suit properties namely, the kalam. Despite the above defence of the defendants, no material as such has been placed by the plaintiffs, through independent witnesses that at the time of oral partition, the kalam had been earmarked and kept in common for the enjoyment of the various sharers. Other than the first plaintiff examined as P.W.1, the persons who had been associated with the oral partition have not been examined in support of the plaintiffs' case to hold that a separate portion in the properties belonging to Ismayil khan was earmarked as common kalam for the enjoyment of all the sharers. As regards the above position, there is no proper explanation adduced on the part of the plaintiffs as to why no independent witness has been examined with reference to the above said issue. Further, as rightly found by the first appellate court, the documents relied upon by the plaintiffs marked Exs.A2 to A8 by itself would not lead to the conclusion that the kalam has been left in common for the enjoyment of all the sharers as described in item No.2 of the suit properties. The plaintiff has filed the plan along with plaint and in the plaint plan, the kalam portion is shown as ABCD and it is stated to be located in the property allotted to Hanif khan i.e., the property of the defendants. In this connection, the first plaintiff examined as P.W1, during the course of cross examination would state that the family was possessed of 11 acres and 93 cents and the same had been orally divided amongst the father and five sons into six shares and further according to P.W.1 , in the plan filed by the defendant along with the written statement which has come to be marked as Ex.B2, the portion shown as “B” was allotted to Hanif khan and in the said portion, kalam, pathway and pump set are located and further according to him, excluding the pathway and kalam, each sharer was allotted 80 cents and therefore, it is seen that, according to the plaintiffs, the pathway and kalam are stated to be left in common and located in the share allotted to Hanif khan. However, the said aspect of the plaintiffs' case is seriously contested by the defendants and in the documents relied upon by the plaintiffs, marked as Ex.A2 to

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A8, which are sale transactions and bokiyam transactions effected amongst the parties and it is seen that third parties had purchased the properties of the sharers and the first plaintiff and his wife had purchased the properties of other sharers and also the properties from third parties , who had purchased the shares of the other sharers and accordingly, it is seen that in some of the above said documents marked as Exs.A2 to A8, there is a reference above common kalam in the boundaries. However, as rightly found by the first appellate court, from the above said boundary recitals, it cannot be determined that the common kalam is located in the property/share of Hanif khan and the same measures an extent of about 16 cents as put forth by the plaintiffs. When the plaint does not provide any linear measurements of the pathway, kalam portions etc., as rightly determined from the boundary recitals found in the above said documents Exs.A2 to A8, we cannot hold that the kalam portion has been left in common measuring an area of about 16 cents in the share alloted to Hanif khan as projected by the plaintiffs.

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12.As rightly found by the first appellate court, the plaintiffs have not come out clearly as to what is actual extent of the kalam portion and where it is located and all that they would state is that the kalam portion as described as ABCD in the plaint plan and the ABCD portion is stated to be located in the share of the defendants. However, the said kalam portion has not been described by giving any linear measurements and accordingly as rightly determined by the first appellate court as well as the trial court, the plaintiff should have endeavoured to localize as to where exactly and to what extent the kalam and the pathway portions are available on ground and with reference to the same, it is found that the Commission inspection would have served an useful purpose. However, the plaintiffs, for the reasons best known to them, have not taken out a Commission to inspect the properties of the parties to localize as to where and to what extent the above said pathway and kalam portions are available on ground. In such view of the matter, the mere reference of the common kalam in the boundary recitals of some documents marked as Exs.A2 to A8 by itself would not lead to the conclusion that the pathway and the kalam portions occupy the area as described in the plaint and that they are located in the share allotted to the defendants as such.

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13.In this connection, it is to be noted that in respect of the same subject matter, the first plaintiff's wife had laid a suit O.S.No.525 of 1986 against the defendants and the second plaintiff. It is further found that in the said suit, a decree has been awarded in favour of the first plaintiff's wife only as regards the pathway and as regards the other subject matters, the suit has been dismissed as not pressed. This could be seen

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from the documents marked as Exs.A1 and B6 and B7. It is further found that in support of the said case, it is only the first plaintiff who had tendered evidence as P.W.1, on behalf of his wife and though it is sated that the first plaintiff's wife had laid a claim in the subject matter based on purchases, however, as regards the subject matters, namely kalam and common well etc., the said suit has come to be not pressed and only the right over the pathway has been declared in favour of the first plaintiff's wife in the said suit. Accordingly, it is found that thereafter, the first plaintiff along with second plaintiff have come forwarded with the present suit seeking the reliefs as against the subject matter contending that they are entitled to the subject matter as the sharers of the same.

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14.However, as above discussed and as rightly determined by the first appellate court, when the plaintiffs have failed to establish that a separate portion had been earmarked as kalam during the oral partition for the enjoyment of all the sharers and further, when the plaintiffs have failed to establish that the said kalam portion is located in the share allotted to Hanif khan and when it is further found that Exs.A2 to A8 do not lend support to the above case of the plaintiffs as the boundary recitals found in the documents above referred to not serving the purpose as such, as above discussed, it is seen that the plaintiffs have miserably failed to establish that the kalam portion measuring an extent of about 16 cents shown as ABCD in the plaint plan was left in common for the enjoyment of the sharers as such. The contention is put forth by the plaintiffs' counsel that though they had taken out a Commission application, as the same had come to be rejected by this Court in CRP.No.1730 of 1999, the same could not be adversely held against the plaintiffs. However when the said order has become final and no further challenge is made to the same by the plaintiffs in the manner known to law, the plaintiffs have to suffer the consequences thereof. It is thus found that the Courts below had rightly rejected the plaintiffs alleged right to the kalam portion, when it is found that the plaintiffs have miserably failed to establish that such a kalam portion has been really earmarked and left in common for the enjoyment of the sharers at the time of oral partition.

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15.With reference to the old well and bore, even as per the plaint averments, the said well and bore are not functioning and they had become defunct. This fact also been admitted by the first plaintiff examined as P.W.1 and clearly admitted that the old well and bore erected during the time of his father had become old and dilapidated and not in use and it is thus found that the third item of the suit properties namely old well and bore, which were in enjoyment of the parties concerned during life time of Ismayil khan are not in use and it has become

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defunct and therefore when the third time of the suit properties is found to be not available as such, as rightly determined by the first appellate court, the trial court had erred in granting the reliefs in respect of the same, in favour of the plaintiffs. That apart, when the plaintiffs have not established that the portion shown as ABCD in the plaint plan had been earmarked as common kalam for the enjoyment of the sharers and when according to the plaintiffs', the old well and bore are located in the kalam portion, as rightly determined by the first appellate court, when the alleged common kalam portion itself shown to be left in common has not been established by the plaintiffs, their case, that the old well and bore are also left in common in the kalam portion to be enjoyed by the sharers, as such, cannot be believed and accepted. It is found that, inasmuch as the old well and bore had become dilapidated and not in use even during life time of Ismayil khan, accordingly, it is found that the same had not been the subject matter of the oral partition and in any event, as the plaintiffs have miserably failed to establish the same are located in the alleged kalam portion as pleaded by them, accordingly, when it is found that the parties had thereafter erected new bore well and had obtained service connections and accordingly are in the enjoyment of the same respectively and in this connection, it is found that the parties had effected an arrangement amongst themselves under Ex.A9 and therefore, it is seen that the first appellate court has rightly found that the plaintiffs are not entitled to any relief as such as regards the third item of the suit properties as described in the plaint, which are found to be not in use and in existence as such.

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16.As regards the pathway, it is found that the pathway was found to be in existence as an access for reaching the shares of the various parties and accordingly, the first plaintiff's wife was granted the reliefs with reference to the same in O.S.No.525 of 1986. Pursunat to the same, it is found that the pathway has come to be localized and situated in survey number 25/2B as seen from the proceeding of the Tahsildar marked as Ex.B8 and Ex.B8 coupled with Ex.B9 would go to disclose that the pathway as described in Ex.B8 in is existence following the decree passed in O.S.No.525 of 1986 and accordingly, it is seen that the first appellate court has granted the reliefs as regards the pathway located in survey number 25/2B as depicted in Ex.8 r/w Ex.B9.

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17.In support of her contentions, the counsel for the respondents placed reliance upon the decision reported in (1987) 2 MLJ 296 [K.Palaniappa Gounder Vs. Valliammal]. The principles of law outlined in the above decision are taken into consideration and followed as applicable to the case at hand.

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In the light of the above discussions, it is found that the first appellate court has rightly dismissed the suit laid by the plaintiffs, with reference to the kalam and old well and bore described in items 2 and 3 of the suit properties, when it is found that merely from the boundary recitals found in Exs.A2 to A8, we cannot infer and determine that the same are located in the portion shown as ABCD in the plaint plan. In particular, when it is found that the plaintiffs have miserably failed to establish that kalam portion and old well with bore were left in common at the time of oral partition for the enjoyment of the sharers particularly, when it is noted that the old well and bore which were in use at the time of Ismayil khan had become old and dilapidated and defunct and not in use by the sharers concerned and accordingly, when it is found that the sharers have erected new bore well and installed separate electric connections for the enjoyment of the respective shares, in such view of the matter, when no material has been placed to show that only on account of the acts of the defendants, the old well and bore had been rendered unuseful by the sharers concerned and when no exception could be taken to the determination of the first appellate court for negativing the reliefs sought for by the plaintiffs as regards the item 2 and 3 of the suit properties and further when it is found that the first appellate court has also rightly determined that the plaintiffs are entitled to the pathway portion only as depicted in Ex.B8 r/w Ex.B9 shown to be located in survey number 25/2B, the substantial questions of law formulated in the second appeal are accordingly answered against the plaintiffs and in favour of the defendants.

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In conclusion, the second appeal fails and is accordingly dismissed with costs. Connected miscellaneous petition, if any, is closed. Sd/-

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Assistant Registrar(CS-II)

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//True Copy//

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Sub Assistant Registrar

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mfa To

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1.The Sub Court, Panruti.

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2.The District Munsif's Court, Panruti.

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+1cc to Mr.V.RAGHAVACHARI, Advocate, S.R.No. 5310 +1cc to Mr.R.SUBRAMANIAN, Advocate, S.R.No. 5748

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Pre-delivery judgment made in S.A. No.845 of 2003

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RSI(CO) TR(23/03/2018)

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Rahamathullah v. H.Safara Bi

Case brief

What is this about?

What did the court decide?

Rahamathullah v. H.Safara Bi

Case brief

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