The concept of joint family property is not recognized under Mohammedan Law; mere presence in revenue records does not negate co-heir status.

JUDGMENT :

K.MANMADHA RAO, J.

The present Regular Second Appeal is filed by the plaintiffs to set aside the judgment and decree dated 08.03.2016, in R.A.No.41/2012 passed by the I Additional District Judge at Chikmagalur (hereinafter referred to as ‘the first appellate Court’) and the judgment and decree dated 05.01.2012, in O.S.128/1997, passed by the Additional Senior Civil Judge at Chikmagalur (hereinafter referred to as ‘the trial Court’).

2. The appellants herein are the plaintiffs/appellants before the Courts below and the respondents herein are the defendant/respondent before the Courts below.

3. For convenience of reference, the parties herein are referred to as per the rankings before the trial Court.

4. The plaintiffs filed O.S.No.128/1997 against the defendants on the file of the Additional Senior Civil Judge, Chikmagalur for the relief of partition and separate possession of their 2/5^th share over the suit schedule properties and also for accounts and mesne profits.

5. The brief facts of the case are that:-

It is the specific case of the plaintiffs that the suit schedule properties comprise two landed properties at Indavara Village and two house properties at Chikmagalur City, originally belonging to late Chabumiya, a Police Daffedar. After his and his wife’s demise, they were succeeded by three sons—late Hayath Hussain, late Buden Sab, and late Moideen Sab—and a daughter, late Smt. Hurmathbi. Since late Moideen Sab died unmarried, under Mohammedan Law, late Hayath Hussain and late Buden Sab each became entitled to 2/5^th share, and late Smt. Hurmathbi to 1/5^th share. On Buden Sab’s death in 1970, his 2/5^th share devolved upon the plaintiffs, who are now co-heirs and co-owners along with the defendants, in joint and constructive possession of the suit properties. After Chabumiya’s death, the katha was first mutated in the name of Hayath Hussain and later in the name of his wife, Smt. Zaheerabi.

6. On 18.07.1997, the plaintiffs demanded partition and allotment of their 2/5^th share, but defendant No.1 gave evasive replies. Upon obtaining certified copies, the plaintiffs revealed that the katha had been transferred to defendant No.1 based on an alleged Land Tribunal grant. The plaintiffs contend that defendant No.1 was never a tenant of the lands, and the Land Tribunal proceedings, to which they were not parties, are neither valid nor binding on them. The plaintiffs further submit that late Hayath Hussain and Smt. Zaheerabi could not have leased the entire property, as their entitlement extended only to an undivided 2/5^th share. As the suit properties are situated near Chikmagalur City with potential for non-agricultural conversion, the plaintiffs seek a decree for partition and separate possession of their 2/5^th share, along with accounts and mesne profits.

7. Per contra the defendant No.1, in his written statement admitted the relationship between the parties and asserted that suit items No.1 and 2 originally belonged to his father and were mortgaged to the PLD Bank, Chikmagalur, in 1965. He contended that he and his mother have been in continuous possession and enjoyment of these properties. After the death of Hayath Hussain, his wife and children were unable to cultivate the lands, which were thereafter managed by one Manjappa, who later made an unsuccessful ownership claim over suit items No.1 and 2.

8. The defendant No.1, denied the possession or enjoyment of the said properties by the plaintiffs and other defendants. He further stated that he had no knowledge of suit item No.3, while suit item No.4 belonged to Hay