This civil revision petition challenged an order permitting the petitioner to lead evidence to prove his claim of absolute ownership over a disputed property. The High Court upheld the trial court's decision, ruling that the petitioner bearing the burden of proof to establish his claim. The revision petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE GHULAM MOHAMMED
Civil Revision Petition No : 5487 of 2010
ORDER:
This Civil Revision Petition is directed against the order dated 6th October, 2010 on the file of the learned Chief Judge, City Civil Court, Hyderabad in I.A No.622 of 2005 in O.S. No.262 of 2004.
The facts in brief are that the respondents 1 to 9, who are the plaintiffs filed the aforementioned Suit for partition and separate possession. A preliminary decree was passed in the said suit. Pursuant to which, they filed I.A. No. 622 of 2005 before the trial Court under Order 20 Rule 18 read with Order 16 Rule 13 of the C.P.C. seeking to pass final decree by appointing an Advocate Commissioner to partition the suit schedule A,B and C properties by division and for separate possession and rendition of accounts of their respective shares.
In the said application, the petitioner, who is not a party to the preliminary decree, got himself impleaded as party to the said proceedings and while opposing the application, he filed a counter affidavit stating that the one M.A. Mukheem was the sole and absolute owner of “C’ Schedule property having purchased the same under a registered sale deed. The said M.A. Mukheem was a bachelor and on 24.4.970, he executed a registered will in favour of one Janab Ghulam Fakhruddin Pasha bequeathing his movable and immovable properties. Upon the death of M.A. Mukheem, his step brother Mohammed Abdul Azeem sought to lay a claim stating that as per Islamic Law, he is entitled to succeed to the property. Subsequently, a settlement was arrived at between the
legatee of the will and Mohd. Abdul Azeem and as per the said settlement, the legatee agreed to execute a release deed in his favour, pursuant to which, the legatee executed a release deed on 15.3.1979. However, on 31.3.1986, Janab Ghulam Fakhruddin Pasha sold the ‘C’ Schedule property to one Mr. D.L. Rodrigues and Mrs.Winfred Rodrigues under a registered sale deed, who in turn sold the same to one Dr. M. Yathindranath Rai on 28.3.1992 and subsequently the said Yathindranath Rai also sold the ’C’ schedule property to the petitioner. Hence, the petitioner claimed that he is the absolute owner and possessor of the suit schedule property. Since the respondents-plaintiffs obtained the preliminary decree by suppressing the aforesaid facts in respect of ‘C’ Schedule property, the said property is liable to be deleted from the plaint schedule properties as well as from the preliminary decree.
The trial Court on a perusal of the material on record, while taking into account the claim of the petitioner that he is the absolute owner and possessor of the ‘C’ schedule property, allowed the petitioner to lead evidence to prove the same and adjourned the matter for recording evidence of the petitioner. Aggrieved by the same, the petitioner filed the present revision.
Learned counsel for the petitioner contended that when the respondents-plaintiffs are disputing the ownership of the petitioner, the burden totally lies on the respondents-plaintiffs to prove the same and the trial Court has committed a serious error in asking him to lead evidence to prove his claim.
On the other hand, learned counsel for the respondentsplaintiffs contended that when the petitioner is asserting that he is the owner of the ‘C’ Schedule property, the burden totally lies on the petitioner to prove the same.
Perused the impugned order. Admittedly, when the petitioner is claiming that he is the absolute owner and possessor of ‘C’ schedule property, the petitioner has to establish the same by leading appropriate documentary evidence and the burden totally lies upon him. The trail Court has rightly permitted the petitioner to lead evidence to prove the same.
Hence, I do not find any illegality or irregularity in the order under revision warranting interference.
The revision petition fails and it is accordingly dismissed. No costs.
________________________ GHULAM MOHAMMED,J DATE: 17th June, 2011 pnb
2 issues framed by the court
Whether the burden of proof to establish absolute ownership as an absolute owner lies on the claimant or the opponents when ownership is disputed.
Whether the trial court committed any illegality or irregularity in permitting the petitioner to lead evidence to prove his claim of absolute ownership.
2 provisions across 2 enactments
Petitioner
Respondents 1 to 9
GHULAM MOHAMMED
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
