Back
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
N. KUMAR, J.
MASTAQ AHAMED MEHABOOB JAMADAR AND OTHERS —Appellant
Vs.
SABJAN SARDARBEG JAMADAR (DECD) SINCE DEAD. BY LRS. AND ANOTHER —Respondent
Regular Second Appeal No. 1024 of 2002
Decided on : 26-07-2013
partition - property dispute - CTS No. 2385 and CTS No. 2385/1 - Indian Evidence Act, 1872 - Mohammedan law
Fact of the Case:
The suit involved a dispute over the partition and separate possession of properties CTS No. 2385 and CTS No. 2385/1. The plaintiff claimed equal portion in the properties, while the defendants asserted that a family partition had already taken place, and the properties had fallen to their respective shares.
Finding of the Court:
The trial Court dismissed the plaintiff's suit, holding that the plaintiff failed to prove entitlement to half share in the property, and that the defendants had proved their case of partition. The lower appellate Court, however, allowed the plaintiff's appeal in part, granting the plaintiff a 1/3rd share in CTS No. 2385, excluding the subject matter of a previous suit and sale deed.
Issues: The main issues included the entitlement to partition, correctness of property description, proof of family partition, transfer of shares, limitation of the suit, and proper court fee payment.
Ratio Decidendi: The court found that a family partition had indeed taken place, and the properties had fallen to the respective shares of the parties. It also held that the plaintiff was entitled to a 1/3rd share in CTS No. 2385, excluding the subject matter of a previous suit and sale deed.
Final Decision: The appeal was partly allowed, and the judgment and decree of both the Courts were set aside. The plaintiff was declared entitled to a 1/3rd share in CTS No. 2385, excluding the subject matter of the previous suit and sale deed.
N. KUMAR, J.-This is defendants' appeal challenging the judgment and decree of the lower appellate Court which has decreed the suit of the plaintiff for partition and separate possession.
2. For the purpose of convenience, the parties are referred to as they are referred to in the suit.
3. The subject matter of the suit is CTS No. 2385 and CTS No. 2385/1 situate at Azad Galli Belgaum.
4. According to the plaintiff, suit properties are independent and are easily identifiable. Hence, no boundaries are given. The plaintiff's name is shown in CTS No. 2385/1 as owner and he is in possession of the same. Defendant No. 1 is the brother of the plaintiff and defendant No. 2 is his brother's son and their names have been shown in CTS No. 2385 as holders Nos. 1 and 2.
5. Suit properties originally owned by Sardarbeg-father of the plaintiff and defendant No. 1. He died in the year 1948. After his death, names of his 4 sons had been recorded in the CTS records as heirs in the year 1953. After the death of their father, 4 sons held the properties together in common and as tenants in common under the Mohamadan law. Thereafter the other brothers have given wardi-statement and got deleted their names and gave up their share in favour of the plaintiff and lastly only two names were shown in the suit property. But however name of defendant No. 2 is shown in records in CTS No. 2385 in the year 1966 without having any title or transfer deed in favour of defendant No. 2. Hence, defendant No. 2 is in no way concerned to the suit property and the entry is illegal and void and the same is not binding on the plaintiff. The suit properties have been measured and boundaries have been fixed in the year 1986 at the time of fixing the boundaries and deleting the names of the plaintiff in the year 1977 it has not been taken the equal portion of the plaintiff and the defendant No. 1 but it has been divided unequally. Deletion of the name from the entire CTS No. 2385 is illegal and not binding on the plaintiff. He is having equal area in CTS Nos. 2385 and 2385/1 but while it is not considered at the time of making equal portion and making entries in the records. Therefore, the revenue proceedings are not proper and correct and not binding. CTS No. 2385 is more in area when compared to CTS 2385/1 but while making division, it is not done equally. Therefore, the entire proceedings taken by the revenue officer from 1966 to 1991 and change of the entries in revenue records is not proper and correct one. Though the plaintiff has brought to the notice of the officer, the revenue records are not corrected. There was no actual partition and separate possession of the suit property. Therefore, the plaintiff is constrained to file a suit for a decree of partition effecting equal portion in the suit properties and the plaintiff's name be entered in the revenue records accordingly.
6. After service of summons, defendants entered appearance. The relationship between the parties was admitted. The entries in the revenue records showing plaintiff is the owner of CTS No. 2385/1 and defendant No. 1 is the owner of CTS No. 2385 is admitted. Originally these two properties were part of CTS No. 2384 and after gift in favour of the plaintiff's father, these two houses are given different CTS Nos. as CTS No. 2385 and 2385/1. Even after the gift in respect of the suit properties, there remained many of the houses and open space in CTS No. 2384. Plaintiff and defendant No. 1's father died on 21/09/1950. After his death, names of four sons of the deceased Sardarbeg were recorded. Jamalsaheb the eldest brother of the plaintiff had given up his share to defendant No. 2 and he intimated well in advance and accordingly submitted a wardi in the year 1966 personally and got entered the name of defendant No. 2 to his respective share. Therefore, the name of defendant No. 2 is validly entered. It is the specific case of the defendant that the family partition has taken place earlier to 1966
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
