That this Appeal challenges the Judgment and Order dated 17.03.2009, passed by Hon’ble High Court of Karnataka at Bangalore, in Regular Second Appeal No. 160 of 1995, which allowed the Appeal of the Respondents herein.
A suit for partition was filed by Plaintiff No. 1 to 8 (herein referred as “Respondents”) before the court of Prl. Munshiff at Kolar (herein referred as “Trial Court”) for partition and separation of suit properties.
That on 11.09.1987, the Trial Court passed a decree, declaring ownership of 7/24th to Plaintiff No.2, and ownership 1/8th share to Plaintiff No.3 in the suit properties,. It was further added that the Plaintiffs were not entitled to any share in suit properties in suit item no. 7 to 9 and 22. The said Judgment also directed Defendant No.1(herein referred as “Appellant”) to render accounts in respect of receipts and expenditure of money incurred by him in the suit properties. Further a direction was passed on the Appellant, making him liable to divide the profits earned from the suit properties in favour of Defendant No.2 and 3.
Being aggrieved by the Order of the Trial Court, Appellant (through LR’s) filed a Regular Appeal No, 60 of 1988 before the Ld. Civil Judge. The said Appeal was allowed by Judgment dated 23.11.1994, thereby setting aside the Judgment passed by the Trial Court dated 11.09.1987.
Thereafter the Judgment passed by the First Appellant Court, came to be challenged before the Karnataka High Court by filing of Regular Second Appeal No, 160 of 1995. The High Court vide its judgment dated 18.03.1998, allowed the said Appeal restoring the Judgment of Trial Court dated 11.09.1987.
Aggrieved by the Order of the High Court, a Civil Appeal No. 6478 of 1998 was filed before the Hon’ble Supreme Court of India. That vide Order dated 17.08.2004, the Supreme Court found that, the High Court had allowed the Appeal without framing the questions of law, as required under Section 100 of Code of Civil Procedure 1908, and set aside the Order of High Court and remanded the case back to High Court for disposal afresh in accordance with law.
When the Regular Second Appeal was heard afresh before the High Court it framed the following questions:
- Whether the Plaintiffs No. 1 and 2 are entitled to a share in the suit properties particularly when Rehaman Barid through whom Plaintiffs No. 1 and 2 claim partition predeceased his father Mohiyuddin Pasha- the propositus?
- Whether the First Appellate Court is justified in negativing the case of Plaintiffs No. 3 to 8 for partition and separate possession after having found that documents Exs.P-1 to P-7 disclosing the paternity of Plaintiffs No. 4 to 8?
- Whether the First Appellant Court is justified in dismissing the suit filed by Plaintiffs No. 3 to 8 mainly on ground that the Nikhanam evidencing the marriage of Plaintiffs No. 3 with Mohiyuddin Pasha is not produced?
- Whether the properties found in Mehar Deed Ex.D-1 executed by Mohiyuddin Pasha in favour of first wife Noorabi was liable to be divided among the parties to the present suit?
After gaining all the answers of aforesaid questions of law, the High Court vide its Judgment held that, all suit properties were to be divided amongst Appellant and Plaintiffs No. 3 to 8.The Order also stated that Plaintiffs No. 1 and 2 were not entitled to any share in suit properties as Rehaman Barbid, husband, of Plaintiff No.1, and father, of Plaintiff No.2, predeceased the propositus i.e Mohiyuddin Pasha.
Being aggrieved thereby, Appellant filed the present Appeal through LR’s. The counsel for Appellant submitted that, as per the Order of Trial Court, the suit was decreed in favour of Plaintiffs No. 2 and 3 and Plaintiffs No. 4 to 8 were not entitled to any share in the suit properties and the same was not challenged by the Plaintiffs No. 4 to 8. Though the same was challenged by Appellant, so the Second Appeal Plaintiffs No. 4 to 8 was not tenable and thus this Appeal deserves to be allowed. He also submitted that the questions framed by the High Court was more pertaining to appreciation of evidence rather than being questions of law.
The parties claimed that Mohiyuddin Pasha earlier married Noorbi who died in 1944. They had 2 sons namely Rahaman and Azgar (herein referred as Appellant). Rahaman married Plaintiff No.1. They had a daughter i.e Plainitff No.2. Rahaman predeceased in 1945 i.e prior to Mohiyuddin Pasha who died in 1964. Soon after the death of 1st wife of Mohiyuddin, he married Plaintiff No.3 and subsequently they had 5 children i.e Plaintiffs No. 4 to 8. The Appellant contended that the Plaintiffs No. 2 and 3 were not entitled to any share in suit properties as Rahaman predeceased Mohiyuddin Pasha. He also denied that Plaintiff No.3 married Mohiyuddin and Plaintiffs No. 4 to 8 were children of Mohiyuddin.
Appellant submitted that Mohiyuddin executed a Mehar Deed in favour of his 1st wife Noorbi dated 30.07.1936 and as such, the said properties ceased to be the properties of Mohiyuddin Pasha. The Trial Court came to a specific finding after duly recording all the evidences that, Plaintiff No.3 was married to Mohiyuddin Pasha and Plaintiffs No. 4 to 8 were their children. But the First Appellant Court reversed the decision of Trial court as Plaintiff No.3 failed to provide any documentary evidence in support of the same. It also came to a finding that neither Plaintiffs No. 3 nor Plaintiffs No. 4 to 8 were entitled to any share in the suit properties.
Syed Ahmed Ali (PW-1), brother of Noorbi and also the maternal uncle of Appellant, deposed that Mohiyuddin had 2 wives namely Noorbi and Plaintiff No.3. He also deposed that he had attended the wedding of Mohiyuddin Pasha and Plaintiff no.3. It was also supported by independent witness Nabi Sab (PW-2) and Appenna (PW-3).
High Court found the documentary evidence i.e birth certificates of Plaintiff No. 4 to 8, establishing that they were the children of Mohiyuddin and Plaintiff No.3.
Supreme Court held that, High Court rightly interfered and reversed the findings of First Appellant Court, as the finding of First Appellant Court was not based on proper appreciation of evidence. High Court also found that the Mehar Deed in favour of Deceased Noorbi was a nominal one and was not acted upon and reversal of finding of Trial Court by First Appellant Court was erroneous.
The Supreme Court held that it is clear, that the First Appellant Court had reversed the findings recorded by Trial Court which was based on correct appreciation of evidence.
Supreme Court also found that, the First Appellant Court has failed to take into consideration the oral as well as the documentary evidence, on basis of which the Trial Court had recorded its findings. It also stated that First Appellant Court’s findings were based on conjectures and surmises.
Thus the Supreme Court was of a view, that the findings recorded by the High Court were just and also based on proper appreciation of evidence, and thus they dismiss the Appeal as they did not find any merit.
The Indian Lawyer