Insufficient evidence to prove plaintiffs' relationship and rights over inherited property led to dismissal of the partition suit, affirming that ownership under Mohammedan Law arises only post-death of the ancestor.

ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE VENKATESH NAIK T.)

This appeal is filed challenging the judgment and decree dated 20-8-2016 passed by the Court of Principal Senior Civil Judge, Kolar, in Original Suit No.356 of 2014.

2. For the sake of convenience, the parties are hereinafter referred to as per their rankings before the trial Court. The appellants are the plaintiffs and the respondents are the defendants.

3. Plaintiffs filed a suit against the defendants for partition and separate possession in respect of the suit schedule property. It is the case of the plaintiffs that, the plaintiffs and the first defendant are the children of Late Abdul Azeez.

4. Late Abdul Azeez had two wives, namely Kairunnissa and Rahamathunnisa. The first wife, Kairunnissa, had only one son, i.e., the first defendant, whereas, the second wife, Rahamathunnisa, had three sons and two daughters, i.e., the plaintiffs. Plaintiffs and the first defendant are the owners in possession of the suit schedule property bearing Survey No.21 measuring 7.05 acre situate at Boyi Nachapalli Village, Kasaba Hobli, Srinivasapur Taluk, as tenants in common. The suit schedule property was acquired by the father of the plaintiffs and the first defendant i.e., Late Abdul Azeez, under a registered sale deed dated 1-11-1961 from its previous owner/vendor, Mohammed Ghouse @ Sabusab. Since then, the property is in possession of the father of the plaintiffs and the first defendant, and all revenue records entries are in his name. The suit schedule property was acquired by the plaintiffs and the first defendant under Pavathivarsu from their father, Late Abdul Azeez, and katha was transferred in the name of the first defendant with the consent of the plaintiffs.

5. It is the contention of the plaintiffs that the first wife of Late Abdul Azeez, i.e. Kairunnissa died in the year 1949, the father of the plaintiffs and the first defendant, Abdul Azeez, died in the year 1979 and the second wife of Late Abdul Azeez i.e. Smt. Rahamathunnisa died in the year 2000. The plaintiffs and the first defendant are the only legal heirs to Late Abdul Azeez and thus, they succeeded to the schedule property. Plaintiff Nos.4 and 5 are the married sisters of plaintiff Nos.1 to 3 and the first defendant. Plaintiffs and the first defendant are residing separately. However, they are enjoying the schedule property as tenants in common. Late Abdul Azeez, the father of the plaintiffs and the first defendant, did not sell the schedule property to any person. Hence, it is liable to be divided among the plaintiffs and the first defendant equally. Prior to the initiation of the suit, the plaintiffs requested the first defendant to make partition. However, the first defendant obstructed the plaintiffs in entering the schedule property and joint possession and enjoyment over the schedule property. Further, the second defendant obstructed joint possession and enjoyment of the plaintiffs and the first defendant, the plaintiffs resisted the same and at that time, the second defendant disclosed the execution of the sale deed dated 8-2-2007 in his favour by the first defendant. In this regard, the plaintiffs questioned the act of the first defendant. However, the first defendant gave an evasive reply. Therefore, the plaintiffs constrained to file the suit for partition and separate possession in respect of the schedule property.

6. After initiation of the suit, the first defendant was placed ex parte and the second defendant filed his written statement denying the claim of the plaintiffs as false and has taken the contention that the first defendant conveyed his absolute right, title and interest over the schedule property in his favour under the sale deed dated 8-2-2007 for valuable consideration. Further, the suit is barred by law of limitation. Hence, defendant No.2 prayed for dismissal of the suit.

7. The trial Court, based on the pleadings of the parties, framed the following issues:

1. Whether the plaintiffs prove tha