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NC: 2023:KHC:36231
RSA No. 2632 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2632 OF 2017 (PAR)
BETWEEN:
1.
LATE SRI H.ABDUAL SAMADH
S/O LATE SRI T.P.HUSSAIN SAHEB,
REPRESENTED BY LRS.,
SMT. NAJAMMA SAMAD,
W/O. LATE ABDUAL SAMAD,
AGED ABOUT 70 YEARS,
RESIDING AT NO.13/2,
KENCHAPPA ROAD CROSS,
2ND FLOOR,
BANGALORE-560 005.
2.
SRI S. NADEEM AHMED
S/O. LATE ABDUAL SAMAD,
AGED ABOUT 52 YEARS,
RESIDING AT NO.66,
THIMMAIAH ROAD,
SHIVAJI NAGAR,
BANGALORE-560 001.
3.
SRI. SALEEM AHMED
S/O. OF LATE ABDUAL SAMAD,.
SINCE DEAD BY HIS LR
SMT. FATHIMA SALEEM
R/AT.13/2,
KENCHAPPA ROAD CROSS
FRAGER TOWN,
BANGALORE-52.
Digitally signed
by SHARANYA T
Location: HIGH
COURT OF
KARNATAKA
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NC: 2023:KHC:36231
RSA No. 2632 of 2017
4.
SMT. SAMEENA AMEEN
W/O. AMEEDN,
D/O. LATE ABDUAL SAMAD,
AGED ABOUT 50 YEARS,
RESIDING AT NO.13/2,
KENCHAPPA ROAD CROSS,
2ND FLOOR,
BANGALORE-560 005.
5.
SMT. NAZIMA SALEEM
W/O. SALEEM,
D/O. LATE ABDUAL SAMAD,
AGED ABOUT 45 YEARS,
RESIDING AT: NO.13/2,
KENCHAPPA ROAD CROSS,
2ND FLOOR,
BANGALORE-560 005.
6.
SMT. SHAGUFTA PARVEEN
D/O LATE ABDUAL SAMAD
AGED ABOUT 43 YEARS,
RESIDING AT NO.13/2
KENCHAPPA ROAD CROSS
2ND FLOOR, BANGALORE-560 005.
7.
SMT. RIZWAN RAFEEQ
W/O OF RAFEQ
D/O OF LATE ABDUAL SAMAD
ABED ABOUT 42 YEARS
RESIDING AT SUN SHINE APARTMENT,
FLAT NO.202, 2ND FLOOR
NEW GURUPPANAPALYA
BANNERGHATTA ROAD,
BANGALORE-560029.
8.
LATE SRI H.MOHAMMED ASHFAQ
S/O LATE SRI T.P. HUSSAIN SAHEB
REPRESENTED BY HIS LRS
SMT. SHAMSHD BEGUM
W/O LATE H MOHAMMED ASHFAQ
AGED ABOUT 62 YEARS,
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NC: 2023:KHC:36231
RSA No. 2632 of 2017
9.
SRI A. MOHAMMED ANIS
S/O LATE H MOHAMMED ASHFAQ
AGED ABOUT 48 YEARS
10. SMT. SHAHIDA BEGAUM
W/O V K ABDUAL BARIE
D/O LATE H MOHAMMED ASHFAQ
AGED ABOUT 47 YEARS
11. SRI A. NAFEEZ AHMED
S/O LATE H MOHAMMED ASHFAQ
AGED ABOUT 45 YEARS
12. SMT. SHAHINA PARVEEN
W/O A K MOHAMMED UMAR
D/O LATE H MOHAMMED ASHFAQ
AGED ABOUT 38 YEARS
13. SMT. SHEREEN PARVEN
D/O LATE H. MOHAMMED ASHFAQ
AGED ABOUT 32 YEARS
14. SRI A. RAYEES AHMED
S/O LATE H MOHAMMED ASHFAQ
AGED ABOUT 30 YEARS
APPELLANTS NO.8 TO 14 ARE
RESIDING AT NO.163,
H.B.R. LAYOUT, 2ND STAGE,
4TH MAIN, 4TH CROSS,
VENKATESHPURAM
BANGALORE-560 045.
…APPELLANTS
(BY SRI C.N.KAMATH, ADVOCATE)
AND:
SRI H. KHADER PASHA
S/O LATE T.P.HUSSAIN SAHEB
REPRESENTED BY LRS
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NC: 2023:KHC:36231
RSA No. 2632 of 2017
1.
SMT. UZRA BANU
D/O LATE H. KHADER PASHA
AGED ABOUT 56 YEARS,
2.
SMT. UMERA BANU
D/O LATE H. KHADER PASHA
AGED ABOUT 54 YEARS
3.
SRI K. ZUBER PASHA
S/O LATE H KHADER PASHA
AGED ABOUT 52 YEARS
4.
SMT. ASMA BANU
D/O LATE H KHADER PASHA
AGED ABOUT 50 YEARS
5.
SRI JUNAIAD PASHA
S/O LATE H KHADER PASHA
AGED ABOUT 48 YEARS
6.
SRI NAVEED PASHA
S/O LATE H KHADER PASHA
AGED ABOUT 46 YEARS
ALL ARE RESIDING AT
NO.5103/188 218 9TH B MAIN
HRB LAYOUT, KALYAN NAGAR
BANGALORE.
7.
SRI MOHAMMED KHALLEL
S/O LATE SRI T.P. HUSSAIN SAHEB
AGED ABOUT 73 YEARS,
RESIDING AT MUSLIM COLONY
NAGAWARA MAIN ROAD,
BEHIND G.K. ELECTRICALS
AND HARDWARE SHOP
OPPOSITE TO PETROL BUNK
BANGALORE-560045.
LATE SRI H, MOHAMMED JALEEL
S/O LATE T.P. HUSSAIN SAHEB
REPRESENTED BY LRS
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NC: 2023:KHC:36231
RSA No. 2632 of 2017
8.
SMT. SHAGUFTHA
W/O LATE H MOHAMMED JALEEL
AGED ABOUT 55 YEARS
9.
SMT. ZULEKHA NAZ
D/O LT LATE H MOHAMMED JALLEL
AGED ABOUT 30 YEARS
10. SMT. ZOHRA
D/O LATE H.MOHAMMED JALLEL
AGED ABOUT 20 YEARS
RESPONDENTS 8 TO 10 ARE
RESIDING AT ISLAMIYA
HIGH SCHOOL STREET,
PERNAMPET VELLORE DISTRICT
TAMIL NADU-631820.
11. SRI K.M. NARAYANA SWAMY
S/O MUNIYAPPA
AGED ABOUT 48 YEARS,
NO.T 5103/118 21
9TH B MAIN ROAD
H.R.B.R. LAYOUT
KALYAN NAGAR
BANGALORE-560045.
…RESPONDENTS
(BY SRI VIVEK B.N., ADVOCATE FOR
SRI ABHINAV R., ADVOCATE FOR R11;
R1 TO R10 ARE DISPENSED WITH
VIDE ORDER DATED 08.06.2022)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD 22.09.2017 PASSED IN
R.A.NO.59/2015 ON THE FILE OF THE III ADDL.DISTRICT AND
SESSIONS JUDGE, KOLAR [SITTING AT KGF], DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD
23.02.2015 PASSED IN O.S.NO.66/2005 ON THE FILE OF THE
ADDL.SENIOR CIVIL JUDGE AND JMFC., KGF.
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NC: 2023:KHC:36231
RSA No. 2632 of 2017
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
The counsel submits that he has not received any
information regarding settlement. Hence, the matter is heard
on merits.
Heard the appellants’ counsel and also the counsel
appearing for the respondents.
The factual matrix of the case of the plaintiffs
before the Trial Court is that, they are seeking for the relief of
partition and separate possession of the suit schedule property
claiming 2/5th share in the suit schedule property contending
that property belongs to the joint family and they are in joint
possession and the same is acquired out of the joint business
and hence the plaintiffs claims that along with defendants No.1
to 3 they are entitled for 1/5th share and also it is the
contention that defendant No.3 has created the same in his
name in revenue records ignoring the right, title and interest
and joint status of plaintiffs and defendants No.1 and 2.
The defendant No.3 appeared and filed written
statement contending that the father T.P. Hussain Saheb had
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executed a gift deed in his favour on 18.6.1970 in respect of
his share of the property which was jointly purchased by him
and his father and also it is his contention that already there
was a partition of properties in respect of the partition deed
dated 10.10.1983 and also claims that he is the absolute owner
in possession of the suit schedule property over which the
plaintiffs and defendant 1 and 2 have no right, title or interest
over the property and also contend that suit is bad for non
joinder of necessary parties and the defendant No.4 who is the
purchaser of the property from defendant No.3 contend that he
has purchased the property for the valuable consideration and
he had improved the property by constructing the building and
also it is the claim of the plaintiffs that their sister Bhyrunnisa
was given her share in the family properties and that she is not
entitled to claim any share in the suit schedule property.
Trial Court framed issues with regard to the
limitation and answered issue Nos.7, 8, 9 and 10 in the
affirmative and also additional issue No.1 as affirmative in
coming to the conclusion that defendant No.4 had purchased
the property for valuable consideration and answered other
issues as negative and the additional issue of suit is bared by
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limitation is also answered as affirmative in coming to the
conclusion that father had executed the gift deed in the year
1970 and the present suit is filed in 2005 and no concept of
joint family as contended by the plaintiffs under the
Mohammaden Law and when the property is already disposed
of during the life time of father by executing the gift deed in
favor of defendant No.3, question of claiming a share by the
plaintiffs does not arise and dismissed the suit.
Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed and First Appellate Court
considering the grounds urged in the appeal memo and also
considering the material on record formulated the points,
whether the materials on record prove that the suit property
was joint property of appellant T.P. Hussain Saheb and his all
children and as such plaintiffs are entitled for partition as
claimed in the plaint and whether the materials on record prove
that late T.P. Hussain Saheb has ½ right in the suit land and he
gifted to defendant No.3 on 18.6.1970 and the same is a valid
gift and whether the Trial Court has right in holding that suit of
the plaintiffs is barred by limitation and also whether the Trial
Court committed an error in coming to the conclusion that suit
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is bad for non joinder of necessary parties and also framed
point that whether the proper court fee is paid by the plaintiffs
and whether the judgment and decree of the Trial Court
requires interference.
The First Appellate Court on re-appreciation of both
oral and documentary evidence answered point No.1 as
negative in coming to the conclusion that appellants are not
entitled for any share as claimed in the plaint and answered
point Nos
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