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2024 Supreme(Online)(KAR) 38893
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF DECEMBER, 2024 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO.1455 OF 2007 (DEC-)
C/W REGULAR FIRST APPEAL NO.100162 OF 2022 IN RFA NO.1455/2007 BETWEEN:
MR KAZI MEER AHMED ALI SINCE DECEASED BY HIS LRS
1. KAZI MEER MOHAMMED ALI @ BABU S/O. MR. KHAZI MEER AHMED ALI, AGED ABOUT 53 YEARS, OCC: AGRICULTURE & PAINTER.
2. KAZI MEER MUSTAFA ALI @ MUNNA S/O MR. KHAZI MEER AHMED ALI, G IRIJA A AGED ABOURT 50 YEARS, BYAHATTI OCC: AGRICULTURE & PAINTER.
3. KAZI MEER FATEH ALI S/O MR. KHAZI MEER AHMED ALI, Location: AGED ABOUT 47 YEARS, HIGH COURT OF OCC: AGRICULTURE &
KARNATAKA ELECTRICAL & PLUMBING WORK, 4. AZNATH JAHAN BEGUM @ RAHANA BEGUM D/O. MR. KHAZI MEER AHMED ALI AND W/O. MOHAMMED MUSTHAQ AHMED, AGED ABOUT 46 YEARS, OCC: HOUSEHOLD WORK, 5. KAZI MEER HASHIM ALI S/O. MR. KHAZI MEER AHMED ALI, AGED ABOUT 45 YEARS, OCC: AGRICULTURE & PRIVATE WORK, 6. KAZI MEER BARKATH ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 43 YEARS, OCC: AGRICULTURE & BUSINESS, ALL ARE RESIDENT OF H.NO.5-1-, AALIYAMAHAL, BUS DEPT CROSS, HOSALLI ROAD, GANGAVATHI – 583227.
…APPELLANTS (BY SRI. D.L. KADKHAN, ADVOCATE)
AND:
1. KAZI MEER MAZAHAR ALI S/O. KAZI MEER, AHMED ALI, AGE: MAJOR, OCC: AGRICULTURE, AND PRIVATE WORK, R/O. KAZIPURA STREET, GANGAVATHI-583227.
DIST: KOPPAL
2. MEER MAZAHA ALI, S/O. MEER MAHMOOD ALI, SINCE DECEASED BY HIS LRS.
2(A) MEER SAJID ALI S/O. MEER MAZAR ALI KHAZII, SINCE DECEASED BY HIS LRS.
2(A)(i) SMT. NIJMA W/O. MEER SAJID ALI KHAZI, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O. NO.231/2, 5TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032.
2(B)(ii) SAYED ZEESHAN ALI S/O. MEER SAJID ALI KHAZI, AGE: 25 YEARS, OCC: PRIVATE SERVICE, R/O. NO.231/2, 5TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032.
2(C)(iii) SMT. TAHMENA NAAZ C/O. MEER MOHAMMED ALI, AGE: 23 YEARS, OCC: HOUSEHOLD, R/O. 17-6-647/4, DABEERPURA, CHARMINAR, HYDERABAD – 500023, TELANGANA.
2(D)(iv) SMT. SYED. ARSHIYA MAHEK D/O. MEER SAJID ALI KHAZI, AGE: HOUSEHOLD, R/O. NO.231/2, 5TH CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032.
2(B) MEER KHLID ALI S/O. MEER MAZAR ALI KHAZII, AGED 57 YEARS, OCC: BUSINESS, R/O. KAMPLI ROAD, JULAI NAGAR, GANGAVATHI – 583 227, DIST: KOPPAL.
2(C) MEER MUJIBUR REHIMAN S/O. MEER MAZAR ALI KHAZII, AGED ABOUT 54 YEARS, OCC: PRIVATE SERVICE, R/O. NO.4/937, 3RD FLOOR, KRISHNAPPA LAYOUT, BUVANESHWARI NAGAR, R.T. NAGAR, BENGALURU – 560 032.
2(D) MEER MUSHTAK ALI S/O. MEER MAZAR ALI KHAZII AGED 52 YEARS, OCC: PRIVATE SERVICE, R/O. NO.321/2, 5TH CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, BENGALURU- 560032.
2(E) MEER AZAM ALI. KHAZI, S/O. MEER MAZAR ALI KHAZI, AGED 49 YEARS, OCC: PRIVATE SERVICE, R/O. NO.62/1, NANDI DUIRGA ROAD, J.C.NAGAR, BENGALURU – 560032.
2(F) SMT. HABIBUNNISA BEGAUM, W/O. MEER MAZAR ALI KHAZII, AGED 79 YEARS, OCC: HOUSEHOLD, R/O. NO.62/1, 3RD CROSS, DINNUR MAIN ROAD, R.T.NAGAR, BENGALURU – 560032.
…RESPONDENTS (BY SRI. K. ANANDKUMAR FOR R1, ADVOCATE; SRI. RAVI S. BALIKAI, ADVOCATE FOR R2(A - F)
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THIS RFA FILED U/S.96 R/W O 41 R 1 OF CPC., SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE GANGAWATHI BY HIS JUDGMENT DATED 09.03.2007 IN O.S.NO.120/2001 BY ALLOWING THIS APPEAL AND AWARD COSTS.
IN RFA NO.100162/2022 BETWEEN:
MR. KAZI MEER AHMED ALI, SINCE DECEASED BY HIS LR’S
1. KAZI MEER MOHAMMED ALI @ BABU, S/O. MR. KHAZI, MEER AHMED ALI, AGED ABOUT 53 YEARS, 2. KAZI MEER MUSTAFA ALI @ MUNNA S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 50 YEARS, OCC: AGRICULTURE AND PAINTER.
3. KAZI MEER FATEH ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 47 YEARS, OCC: AGRICULTURE & ELECTICAL AND PLUMBLING WORK, 4. AZATH JAHAN BEGUM REHANA BEGUM D/O MR. KHAZI MEER AHMED ALI AND W/O. MOHAMMED MUSTHAQ AHMED, AGED ABOUT 46, OCC: HOUSEHOLD WORK, 5. KAZI MEER HASHIM ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 45 YEARS, OCC: AGRICULTURE & PRIVATE WORK, 6. KAZI MEER BARKATH ALI S/O MR. KHAZI MEER AHMED ALI, AGED ABOUT 45 YEARS, OCC: AGRICULTURE & BUSINEES, (ALL ARE RESIDENT OF H.NO.5-1-1, ALIYAMAHAL, BUS DEPOT CROSS, HOSALLI ROAD, GANGAVATHI – 583227.
…APPELLANTS (BY SRI. B. SHARANABASAWA, ADVOCATE)
AND:
1. KAZI MEER MAZAHAR ALI S/O MEER MAHAMOOD ALI SINCE DECEASED REP. BY HER LRS
1a. SMT. HABIBUNNISA BEGAUM, W/O. MEER MAZAR ALI KHAZII, AGED 79 YEARS, OCC: HOUSEHOLD, R/O. NO.62/1, 3RD CROSS, DINNUR MAIN ROAD, R.T.NAGAR, BENGALURU – 560 032.
1b. MEER SAJID ALI S/O. MEER MAZAR ALI KHAZII, SINCE DECEASED BY HIS LRS
1(b)(i) SMT. NIJMA W/O. MEER SAJID ALI KAHZI, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O. NO.231/2 5TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032.
1(b)(ii) SYED ZEESHAN ALI S/O. MEER SAJID ALI KHAZI, AGE: 25 YEARS, OCC: PRIVATE SERVICE, R/O. NO.231/2 5TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032.
1(b)(iii) SMT. TAHMENA NAAZ C/O. MEER MOHAMMED ALI, AGE: 23 YEARS, OCC: HOUSEHOLD R/O. 17-6-647/4, DABEERPURA, CHARMINAR, HYDERABAD – 500023, TELANGANA.
1(b)(iv) SMT. SYED ARSHIYA MAHEK, D/O. MEER SAJID ALI KHAZI, AGE: 20 YEARS, OCC: HOUSEHOLD, R/O. NO.231/2, 5TH CROSS, R/O. NO.231/2 5TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, R.T. NAGAR, BENGALURU- 560032.
1(c) MEER KHLID ALI, S/O. MEER MAZAR ALI KHAZII, AGED 57 YEARS, OCC: BUSINESS, R/O. KAMPLI ROAD, JULAI NAGAR, GANGAVATHI – 583 227 DIST: KOPPAL.
1(d) MEER MUJIBUR REHIMA, S/O. MEER MAZAR ALI KHAZII, AGED 54 YEARS, OCC: PRIVATE SERVICE, R/O. NO.4/937, 3RD FLOOR, KRISHNAPPA LAYOUT, BUVANESHWARI NAGAR, R.T.NAGAR, BENGALURU – 560 032.
1(e) MEER MUSHTAK ALI S/O. MEER MAZAR ALI KHAZII, AGED 52 YEARS, OCC: PRIVATE SERVICE, R/O NO. 321/2, 5TH CROSS, R/O. NO.231/2 5TH A CROSS, BEHIND SANJEEVINI CLINIC, CHAMUNDI NAGAR, BENGALURU- 560032.
1(f) MEER AZAM ALI S/O. MEER MAZAR ALI KHAZII, AGED 49 YEARS, OCC: PRIVATE SERVICE, R/O. NO.62/1, NANDI DURGA ROAD, J.C. NAGAR, BENGALURU -560 0302.
2. KAZI MEER MAHBOOB ALI S/O MEER MAHAMOOD ALI, SINCE DECEASED REP. BY HER LR’S
2a. MEER USMAN ALI, S/O. MEHABBOB ALI KHAZII, AGED 54 YEARS, OCC: BUSINESS, R/O.NO.62, YAKALPURA, CHARMINAR, HYDARABAD – 500 023 STATE – TELANGANA.
2b. MEERA SADAT ALI, S/O. MEER MEHABOOB ALI KHAZII, AGED 51 YEARS, OCC: BUSINESS, R/O. NO.62, YAKALPURA, CHARMINAR, HYDARBAD – 500 023.
3. KAZI MEER ABDUL ALI S/O MEER MAHAMOOD ALI SINCE DECEASED REP. BY HER LRS
3a. MEER MEHAMOOD ALI S/O. ABDUL ALI KHAZII, AGED 54 YEARS, OCC: BUSINEES, R/O. NO.18/8/104, SANTOSH NAGAR, SAIDABAD, HYDARABAD – 500 056.
STATE TELANGANA.
3b. MEER GHOUSE PASHA, S/O. ABDUL ALI KHAZII, AGED 50 YEARS, OCC: BUSINESS, R/O. NO.18/8/145A, YAKUTAPURA, HYDARABAD – 500023.
3c. MEER YSUF PASHA, S/O. ABDUL ALI KHAZII, AGED 46 YEARS, OCC: BUSINESS, R/O. NO.18/8/126A, P.N.NAGAR, EDI BAZAR, HYDARABAD – 500 023, STATE TELANGANA.
3d. MEER SYED SHARIF PASHA S/O. ABDUL ALI KHAZII, AGED 45 YEARS, OCC: BUSINESS, R/O. NO.18/8/123A, P.N.NAGAR, EDI BAZAR, HYDARABAD – 500 023, STATE TELANGANA.
4. KAZI MEER MUMTAZ ALI S/O MEER MAHAMOOD ALI SINCE DECEASED REP. BY HER LR’S.
4a. SMT. SYEDA KHAJA BEGAUM, W/O. MEER MAMTAZ ALI KHAZII, AGED 57 YEARS, OCC: HOUSEHOLD WORK, R/O.NO.18/8/104/126A, P.N.NAGAR, EDI BAZAR, HYDARABAD – 500 023, STATE TELANGANA.
4b. MEER AIJAZ ALI, S/O. MEER MAMTAZ ALI KHAZII, AGED 31 YEARS, OCC: BUSINESS, R/O.NO.18/8/124/95, GROUND FLOOR, FATHESHAH NAGAR, MOIN BAGH CHARMINAR, HYDARABAD – 500 023.
STATE TELANGANA.
5. KAZI MEER ISMAIL ALI S/O. MEER YUSUF ALI, SINCE DECEASED BY LRS
5a. ZAHEER BEGAUM W/O. LATE MEER ISMAIL ALI, AGED MAJOR 42 YEARS R/AT SHIVARAMPALLI, HYDERABAD.
5b. MEER SADIQ ALI S/O. LATE MEER ISMAIL ALI, AGED ABOUT 37 YEARS, R/AT SHIVARAMPALLI, HYDERABAD.
6 NOOR JAHAN BEGUM W/O. LATE SYED GULAMJEELANI, SINCE DECEASED BY HER LR’S
6a. SHABANA NIKHAT AGED ABOUT 42 YEARS, R/O. PLOT NO.318, SECTOR NO.2, NEAR JAINMANDIR, SHIRBASAV NAGAR, BELGAM – 590010 KARNATAKA.
6b. TABASSUMNAZIA W/O. KAREEMULLAH HUSSAINI, AGED ABOUT 39 YEARS, 6c. SADIA NAAZ D/O. LATE SYED GULAM JEELANI, AGED ABOUT 36 YEARS, 6d. SYED MASARATH JAHAN D/O. LATE SAYED GHULAM JEELANI, AGED ABOUT 34 YEARS, RESSPONDENT NO.6(b)(c) and (d) are R/O. H.NO.-23-2-311, MOGHALPARA, NEAR WATER TANK HYDERABAD – 500002 TELANGANA.
7. IBRAHIM PASHA AGED ABOUT 55 YEARS, R/AT.H.NO 5/1/1 AALIYA MAHAL, BUS DEPOT CROSS, HOSALLI ROAD, GANGAVATHI, DIST: KOPPAL.
8. QAMAR JAHAN BEGUM AGED ABOUT 52 YEARS, R/AT.H.NO 5/1/1 AALIYA MAHAL, BUS DEPOT CROSS, HOSALLI ROAD, GANGAVATHI, DIST: KOPPAL.
…RESPONDENTS (BY SRI. RAVI. S. BALIKAI, ADVOCATE FOR R1(A – F), R2(A&B, R3(A-D) AND R4 (A&B);
SRI. I.A.MULLA, ADVOCATE FOR R6 (A-D);
SMT. P.R. BENTUR, ADVOCATE FOR R-7;
R5 (A &B) ARE SERVED BUT UNREPRESENTED;
R8- ABATED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, PRAYING TO SET-ASIDE THE JUDGMENT AND PRELIMINARY DECREE PASSED BY THE CIVIL JUDGE, GANGAVATHI DATED 09.03.2007 IN O.S.NO.119/2001 BY ALLOWING THIS APPEAL AND DISMISSING THE SUIT O.S.NO.119/2001 AND AWARD COSTS. THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
RFA No.1455/2007 is arising from decree in O.S.No.120/2001. The said suit is one for declaration and injunction. Initially this suit was registered as O.S.No.30/1992, on the file of Senior Civil Judge, Koppal and on transfer to Senior Civil Judge Court at Gangavathi, the same is renumbered as O.S.No.120/2001.
2. One more suit is filed in O.S.No.60/1992 on the file of Senior Civil Judge, Koppal and on transfer to Court at Gangavathi, same is renumbered as O.S.No.119/2001. O.S.No.119/2001 suit is one for partition and separate possession. The subject matter in both the suits is one and the same.
3. The suit in OS No.120/2001 for declaration and injunction is dismissed. The suit in OS No.119/2001 for partition and separate possession is decreed.
4. The plaintiff in O.S.No.120/2001, who is defendant in O.S.No.119/2001 is the appellant in both the appeals. These two appeals are filed as both the suits are disposed of by common judgment and two separate decrees.
5. The genealogy tree is not furnished by the parties before the trial Court. Learned counsel appearing for the respondents has furnished the genealogy before this Court and learned counsel appearing for the appellant has not disputed the said genealogy. The same is as under;
Mir Fathe Ali Mir Ahmad Ali (Propositous)
Mir Mazahar Ali [Pre-deceased his father]
Mir Hashim Ali Khazi Meer Mahmood Ali Meer Yusuf Ali Died in 1968 Shikmedar Shikmedar Died during 1973 Died during 1980 Mir Mazahar Ali Mir Mahaboob Ali Mir Abdul Ali Mir Mumtaz Ali Plff.1 Plff.2 Plff.3 Plff.4 Mir Ahamad Ali Mir Ismail Ali (Only Son) – Deft. (Died)
=Zehara Begum Plff.-5(A)
1st Wife 2nd Wife Meer Sadiq Ali Khazi Meer Noor Quinar Plff.-5(B)
Ibrahim Ali Jahan Jahan(No issues)
(D-1)=R-1 Meer Meer Meer Aznath Meer Meer Mohammad Mustafa Fathe Jahan Hashim Baskat Ali Ali Ali Begum Ali Ali (Applt.-1) (Applt.-2) (Applt.-3) (Applt.-4) (Applt.-5) (Applt.-6)
6. The grievance of the appellant (original appellant) now represented by his legal heirs, is that the property was earlier Inam land and the property was held by Meer Fathe Ali-the great grandfather of the plaintiff as service inamdar. After the Inam Abolition Act, occupancy was claimed in respect of those properties by the children of Kazi Meer Mahmood Ali. Kazi Meer Mahmood Ali is none other than the uncle (father's brother of Meer Ahmed Ali, the plaintiff).
7. The Land Tribunal, rejected all the applications including the application filed by the plaintiff-Meer Ahmed Ali. The said order rejecting the application is not questioned by the children of Kazi Meer Ahmed Ali, the respondents in these appeals.
8. However, Meer Ahmed Ali, the original appellant in these appeals, filed appeal challenging the order passed by the Land Tribunal rejecting the application seeking grant of occupancy. The appeal was allowed and occupancy is granted in favour of Meer Ahmed Ali. This order has attained finality. Since occupancy is granted in favour of Meer Ahmed Ali, he filed a suit for declaration and injunction contending that he is the exclusive owner of the property.
9. The defendants in the said suit, who are children of Kazi Meer Mahmood Ali and also the children of Mir Yusuf Ali filed O.S.No.119/2001 seeking partition of the properties.
10. The suit for partition is filed on the premise that the property was a service inam land in the hands of propositus Meer Fathe Ali and thereafter, property is inherited by the descendants of Meer Fathe Ali.
11. The respondents contend that property being inherited from the ancestors, Kazi Meer Ahmed Ali the original appellant cannot claim exclusive possession of the property based on the order of the Land Tribunal.
12. In the said suit for partition filed by respondents, Kazi Meer Ahmed Ali, the original appellant in this appeal filed written statement and took a stand that the property exclusively belonging to him by reason of the order of the Land Tribunal. In addition, he also raised a plea of adverse possession.
13. The Trial Court
