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2024 Supreme(Online)(KAR) 28142
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF SEPTEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 588 OF 2024 (DEC/PAR)
BETWEEN:
1. SMT SHAKEELA W/O IMAM, AGED ABOUT 50 YEARS, R/AT INDIRANAGARA, MADHUGIRI TOWN, MADHUGIRI TALUK, TUMKUAR DISTRICT, PIN 572132.
2. FATHIMA, W/O ABDUL SUBHAN KHAN, AGED ABOUT 54 YEARS, R/AT MELYA VILLAGE, NAGARAGERE HOBLI, KOLAR TALUK AND DISTRICT.
PIN 563102.
3. AMINABHI, W/O SUBHAN, Digitally signed by AGED ABOUT 60 YEARS, SHARMA ANAND R/AT GORANTA VILLAGE, CHAYA Location: High PUTTAPARTHI MANDALAM, Court of Karnataka ANANTHAPURA DISTRICT.
ANDHRA PRADESH, PIN 515134.
4. HASEENA W/O ABDUL REHAMAN, SINCE DEAD BY HIS LRS, 4(a) RAMEEJA, W/O JIYAULLA, AGED ABOUT 36 YEARS, 4(b) IDAYATH, S/O REHMAN PASHA, AGED ABOUT 34 YEARS, 4(c) SHABANABANU, S/O REHMAN PASHA, AGED ABOUT 34 YEARS, 4(d) HASEEF PASHA, S/O REHMAN PASHA, AGED ABOUT 29 YEARS.
APPELLANTS NO.4(a) to 4(d)
ARE RESIDING AT C.B.A COLONY, HINDUPURA, ANANTHAPURA DISTRICT, ANDHRA PRADESH, PIN:515201.
4(e) RESHMA W/O MEHABOOB PASHA, AGED ABOUT 38 YEARS, R/AT BASAVANAHALLI, SPINNING MILL, HINDUPURA, ANANTHAPURA DISTRICT, ANDHRA PRADESH, PIN 515201.
4(f) SABEHABANU, W/O MONNA, AGED ABOUT 32 YEARS, R/AT MARUVEKERE VILLAGE, KASABA HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT, PIN: 5721321.
5. ABBAS, S/O ISMAIL SAB, AGED ABOUT 56 YEARS, 6. AJEEM PASHA, S/O ISMAIL SAB, AGED ABOUT 44 YEARS.
7. KALANDAR, S/O ISMAIL SAB, AGED ABOUT 44 YEARS, 8. SADIQ, S/O ISMAIL SAB, AGED ABOUT 42 YEARS, APPELLANTS NO.5 TO 8 ARE RESIDING AT BEHIND YARKOTAL MASJID, REHAMATHPURA,HINDPURA, ANDHRA PRADESH, PIN 515201.
…APPELLANTS (BY SRI VENKATESHA, ADVOCATE)
AND:
1. KHURSHID UNNISA, W/O LATE ABBARSAB, AGED ABOUT 82 YEARS.
2. MEHABOOB UNNISA, W/O LATE ALIYAS BEIG, AGED ABOUT 64 YEARS.
3. NAJAR HUSSAIN, S/O ISMAIL SAB, AGED ABOUT 62 YEARS.
4. NAYAZ, S/O MASTHAN SAB, AGED ABOUT 57 YEARS
5. SANAULLA, S/O MASTHAN SAB, AGE ABOUT 47 YEARS, 6. YELAGOVINDAPPA, S/O NARASAIAH, AGED ABOUT 62 YEARS, RESPONDENTS NO.1 TO 6 ARE RESIDING AT GONDHIHALLI VILLAGE, PURAVARA HOBLI, MADHUGIRI TALUK, TUMKURU DISTRICT, PIN 572132.
7. ABDUL, S/O MASTHAN SAB, AGED ABOUT 42 YEARS, R/AT HOLAVANAHALLI VILLAGE, HOLAVANAHALLI HOBLI, KORATAGERE TALUK, TUMKURU DISTRICT,PIN 572129.
8. KHALEEL SAB SINCE DEAD BY HIS LRS
8(a) HAFEEZA, W/O LATE KHALEEL SAB, AGED ABOUT 73 YEARS.
8(b) AMBRIN, D/O LTE KHALEEL SAB, AGED ABOUT 33 YEARS.
8(c) NOORI, D/O LATE KHALEEL SAB, AGED ABOUT 27 YEARS.
8(d) AFSAN, D/O LATE KHALEEL SAB, AGED ABOUT 26 YEARS
8(e) RUKSAN, D/O LATE KHALEEL SAB, AGEDA BOUT 24 YEARS, RESPONDENT 8(a) to 8(e)
ARE RESIDING AT DARGA ROAD, MADHUGIRI TOWN, TUMKUR DISTRICT, PIN: 572132.
…RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.01.2024 PASSED IN RA NO.48/2018 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.03.2018 PASSED IN OS NO.523/2012 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, AT MADHUGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the plaintiffs challenging the judgment and decree dated 29.01.2024 in R.A. No.48/2018 on the file of Additional Senior Civil Judge and J.M.F.C., Madhugiri dismissing the appeal and confirming the judgment and decree dated 16.03.2018 in O.S No.523/2012 on the file of the Principal Civil Judge &
J.M.F.C., Madhugiri dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.
3. It is the case of the plaintiff that one Husman Khan was the owner of the schedule property and he had two children namely, Ismail Sab and Ibrahim Sab. Both the aforementioned sons are no more. It is stated in the plaint that the plaintiffs and defendant No.3 are the sons of late Ismail Sab and defendants No.1 and 2 are the daughters of Ibrahim Sab. It is further stated in the plaint that both the plaintiffs and defendants are the grand children of Husman Khan and therefore, as the grand father of Husman Khan gifted the suit schedule property in favour of defendant No.1 and 2 as per registered gift deed dated 15.01.1975, and in furtherance of the same, the defendants No.1 and 2 and the plaintiffs' father and defendant No.3 have no right over the suit schedule property and as they have sold the schedule property in favour of defendants No.4 to 8 as per registered sale deed dated 10.02.1975 and therefore, the plaintiffs have filed a suit seeking relief of declaration, partition and permanent injunction against the defendants.
4. After service of notice, the defendants entered appearance and filed written statement except defendant No.4, who placed Ex-Parte. The defendants contended that, the suit is barred by limitation as the father of the defendant No.6 had purchased the suit schedule property on 10.06.1975 and accordingly, sought for dismissal of the suit.
5. The Trial Court based on the pleadings on record framed the issues for its consideration. In order to establish their case, the plaintiffs have examined two witnesses as P.W-1 and 2 and got marked 7 documents and same were marked as Ex.P1 to Ex.P7. The defendants have examined two witnesses as D.W-1 and D.W-2 and got marked 27 documents and same were marked as Ex.D-1 to D-27. The Trial Court after considering the materials on record by its judgment and decree dated 16.03.2018 dismissed the suit and feeling aggrieved by the same, the plaintiffs have preferred R.A. No.48/2018 before the First Appellate Court and the same was resisted by the defendants. The First Appellate Court after re- appreciating the materials on record, by its judgment and decree dated 29.01.2024, dismissed the appeal, consequently, confirmed the judgment and decree in O.S. No.523/2012. Feeling aggrieved by the same, the plaintiffs have preferred this appeal.
6. Sri Venkatesha, learned counsel appearing for the appellants contended that though the Gift Deed dated 15.01.1975 said to have been executed by the grand father of the plaintiffs-Husman Khan in favour of defendants No.1 and 2 and therefore, the defendants No.1 and 2 have no right to alienate the suit schedule property in favour of the defendants No.4 to 8 and as such, both the judgment and decree passed by the Courts below requires to be interfered in this appeal.
7. Having taken note of the submission made by the learned counsel appearing for the parties, it is not in dispute that the property in question belongs to grand father of the plaintiffs and the defendant No.3-Husman Khan. It is also forthcoming from the finding recorded by both the Courts below that the said Husman Khan had gifted the suit schedule property in favour of defendants No.1 and 2 as per registered gift deed dated 15.01.1975 and thereafter, the said gift deed was cancelled on
11.12.1975 (Ex.P1).
8. Having taken note of the findings recorded by both the Courts below, it is not in dispute that defendants No.1 to 3 though appeared before the Court have not chosen to file written s
