Kote v. P.O. & P.S
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.572 of 2017 ------ 1. Shamim Khalifa 2. Gulam Rashul 3. Yasim Khalifa @ Yasin Kalifa All sons of late Nazim Khalifa, resident of Village-Kote, P.O. & P.S.- Lesliganj, Dist.-Palamau 4. Saidun Bibi, wife of Md. Ushman & daughter of Late Nazim Khalifa, resident of Village-Ranka, P.O. & P.S.-Ranka, Dist.-Garhwa 5. Hazrun Bibi, wife of Md. Mrituza & daughter of Late Nazim Khalifa, resident of Village-Hariharganj, P.O. & P.S.-Hariharganj, Dist.- Palamau .... .... …. Appellants 1. Saidullah Khalifa, son of late Qutub Khalifa, resident of Village-Kote, Versus P.O. & P.S.-Lesliganj, Dist.-Palamau 2. Batulan Khatoon, wife of Md. Rasid Khalifa, resident of Village- Lesliganj, P.O. & P.S.-Lesliganj, Dist.-Palamau For the Appellant ... .... …. Respondents ------ : Mr. Sudhir Kr. Sharma, Advocate : Mr. Manoj Kr. No.2, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellants. 2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 26.07.2017 passed by the learned District Judge-VIII, Palamau at Daltonganj in Partition Appeal No.13 of 2015 whereby and where
Legal Reasoning
under, the learned first appellate court in a judgment of concurrence has affirmed the judgment and decree of dismissal of Partition Suit No. 76 of 2003 dated 29.04.2015 passed by the Senior Civil Judge-IV [the correct designation is Civil Judge (Senior Division)], Palamau at Daltonganj by which the learned Senior Civil Judge-IV, Palamau at Daltonganj has dismissed the suit of the 1 Second Appeal No. 572 of 2017 plaintiffs on contest. 3. The brief fact of the case is that the plaintiff filed the partition suit for a preliminary decree to be awarded in favour of the plaintiff for 73/96th share in suit property and further the takhta of the plaintiff’s share be carved out after appointment of survey knowing pleader commissioner and further for any other relief or reliefs to which the plaintiff is entitled to. 4. The case of the plaintiffs in brief is that the recorded raiyat of the suit namely Idu Khalifa died leaving behind his six sons namely Khaderan Khalifa, Nabijan Khalifa, Moti Khalifa, Hanif Khalifa, Kanu Khalifa and Ghughani Khalifa out of whom Kanu Khalifa and Ghughani Khalifa died issueless. The surviving four sons inherited 1/4th share each in the suit property. The three sons of recorded raiyat Khaderan Khalifa, Nabijan Khalifa and Moti Khalifa have, in June 1956, orally gifted 1/4th share to the donee being the original plaintiff, who after her death has been substituted by her sons. The donee accepted the same and came in possession and is having 3/4th share in the suit land and in order to avoid any complication later on a written agreement called ‘Wasika Ekrar Nama’ was also executed on 16.10.1956. The gifted land was not mutated in the revenue record. The only surviving son of original raiyat Hanif Khalifa having 1/4th share was survived by three sons Nazim Khalifa, Qutub Khalifa and Shamsuddin Khalifa. Qutab was survived by Saidulla who is the defendant no.4, Nazim Khalifa was survived by his widow donee- Fatima Bibi- the original plaintiff and his four sons Hakim Khalifa, 2 Second Appeal No. 572 of 2017 Shamim Khalifa-defendant no.1, Gulam Khalifa- defendant no.2 and Yasin Khalifa-defendant no.3. It is stated that Nazim Khalifa inherited 1/12th share from his father Hanif Khalifa and on his death his widow-donee inherited 1/96th share and his four sons Hakim and defendant nos.1 to 3 Shamim, Gulam and Yasin each inherited 7/384th share out of the said 1/12th share Nazim Khalifa. Thus, the original plaintiff being the donee has inherited share from deceased husband as her share got enhanced over and above her gifted 3/4th to 73/96th share with the defendant nos.1 to 3 getting 7/384th share. The total share of Shamsuddin Khalifa is 39/384th share. 5. The defendant nos.1 to 3 in their written statement supported the case of the plaintiffs and did not dispute the averments. 6. In his written statement the defendant no. 4 besides raising the technical ground, pleaded that Idu Khalifa died leaving behind his four sons instead of six as pleaded by the plaintiffs. 7. In her written statement, the defendant no.5 resisted the claim of the original plaintiff, besides taking technical grounds and specifically pleaded that Khaderan Khalifa and Moti Khalifa died during the lifetime of his father hence they did not inherit any share in the suit property thus, they had no entitlement for gifting any property. 8. On the basis of rival pleadings of the parties, the learned trial court settled the following eight issues:- (I) Whether the suit is maintainable in its present form? (II) Whether the plaintiff has got valid cause of action to Second Appeal No. 572 of 2017 3 bring this suit? (III) Whether the suit is barred by the principle of waiver, estoppel and acquiescence? (IV) Whether the suit is barred by non-joinder of parties? (V) Whether there exist unity of title and possession over the suit land with respect to the parties? (VI) Whether the oral gift made in favour of original plaintiff Fatima Bibi by the three sons of Idu Khalifa namely Khaderan Khalifa, Nabijan Khalifa & Moti Khalifa is valid legal and has been acted upon? (VII) Whether the original plaintiff is entitled for 73/96th share in the suit land? (VIII) Whether the plaintiff is entitled for any other relief or reliefs as claimed in this suit? 9. In support of their case, the plaintiffs examined altogether seven witnesses and proved documents which have been marked Ext. 1 to Ext. 4. On the other hand, from the side of the defendants also, fourteen witnesses were examined and the defendants proved the documents which have been marked Ext. A to Ext. F. 10. The learned trial court first took up issue no. V and after considering the evidence in the record came to the conclusion that the plaintiffs have failed to prove unity of title and possession. The learned trial court next took up issue no. VI and relying upon the judgment of Hon’ble Supreme Court of India in the case of Mahboob Sahab vs. Syed Ismail & Ors. reported in (1995) 3 SCC 693 came to the conclusion that the Hiba made in favour of the plaintiffs was never acted upon and the third ingredients of Hiba that is, the transfer in possession was not effected and the Hiba was never acted upon hence, the purported hiba made in favour of the plaintiffs does not confer title or possession to the plaintiffs, over the donated land. The learned trial court next took up issue no. IV and considering the fact, that several descendants of Idu Khalifa, the recorded raiyat have not been made party and none of the 4 Second Appeal No. 572 of 2017 female members has been made party came to the conclusion that the suit is bad for non-joinder of necessary party. The learned trial court next took up issue nos. I and II and decided the same against the plaintiffs. The learned trial court then took up issue no. III and decided the same in favour of the plaintiffs. Lastly the learned trial court took up issue no. VII and came to the conclusion that the plaintiffs are not entitled to any of the relief claimed and dismissed the suit. 11. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs-appellants filed Partition Appeal No.13 of 2015 in the court of District Judge, Palamau at Daltonganj which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 12. The learned first appellate court formulated the following sole point for determination :- “Whether the learned court below failed to appreciate the evidence on record and erred in its findings in dismissing the suit?” 13. The learned first appellate court made independent appreciation of evidence in the record and first took up issue no. V and after considering the evidence in the record came to the conclusion that the defendants by their evidence have uprooted the case of the appellants and went on to hold that there is no unity of title and possession in between the parties with regard to the suit land and answered the issue no. V in negative and against the plaintiffs-appellants. The learned first appellate court next took up 5 Second Appeal No. 572 of 2017 issue no. VI as to whether the oral gift is valid and acted upon. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Hafeeza Bibi & Ors. vs. Shaikh Farid (Dead) by Lrs. & Ors. reported in 2011 (3) Supreme 608 wherein the Hon’ble Supreme Court of India reiterated the three conditions necessary for a valid gift by a Muslim being (a) manifestation of the wish to give on the part of the donor, (b) the acceptance by the donee whether implied or expressly and (c) taking into possession of the subject matter of the gift by donee, either actually and constructively; the learned first appellate court considered the fact that since Khaderan Khalifa predeceased Idu Khalifa hence, Khaderan Khalifa has not inherited anything so there was no question of making any gift by him. The learned first appellate court further observed that otherwise also there was nothing in the record to show that oral gift was acted upon and in view of answer to the issue no. V, it cannot be said that the plaintiffs could have ever came in possession since the three sons of Hanif Khalifa which includes the deceased husband of the original plaintiff and her four sons, partitioned the suit land 1/3rd share each and as none of the three ingredients or Hiba or oral gift is established, the issue no. VI was answered in the negative. The learned first appellate court then took up issue no. VII and answered the same in negative. In respect to issue no. IV the learned first appellate court held that the suit is bad for non-joinder of necessary party. The issue nos. I to III were disposed of as not pressed and ultimately the learned first appellate court considered the issue no. 6 Second Appeal No. 572 of 2017 VIII and held that the appellants is not entitled to the relief claimed in the suit and dismissed the appeal and affirmed the judgment and decree of the trial court. 14.
Legal Reasoning
It is submitted by the learned counsel for the appellants that both the courts below erred in holding that oral Hibba followed by Wasika Ekranama (Ext.4) and the delivery of possession made by Khaderan Khalifa, Nabjan Khalifa and Moti Khalifa sons of Idu Khalifa in favour of the original plaintiff-Fatima Bibi, who accepted the same does not amount to acceptance of the gift. It is next submitted by the learned counsel for the appellants that both the courts below have erred in holding that there is no unity of title and possession of the suit amongst the parties and such finding of fact, is in violation of the settled principle of law, that mutation and separation of their demand does not confer title on them. It is then submitted by the learned counsel for the appellants that both the courts below have committed grave illegality in holding that the suit is bad for non-joinder of necessary party. Hence, it is submitted that the impugned judgment and decree of both the courts below be set aside and the suit of the plaintiffs be decreed after formulating appropriate substantial question of law. 15. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that concurrent findings of fact can be interfered by the High Court in exercise of the jurisdiction under Section 100 and 104 of the Code of Civil Procedure, if such finding of fact is perverse. Perversity so far as it 7 Second Appeal No. 572 of 2017 relates to interfering with the finding of facts is that if a finding of fact is arrived at by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material or if the finding, so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law or if the finding of the court is based on no evidence or evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person, would have arrived at those findings then the findings may be said to be perverse, as has been held by the Hon’ble Supreme Court of India in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Ors. reported in 2010 (13) SCC 216, para 28 of which reads as under :- “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and from the additional surmises, the infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685].“ judgment suffers and the same has been reiterated by the Hon’ble Supreme Court of India in the case of Bharatha Matha and Another vs R.Vijaya Renganathan and Others reported 2010 (11) SCC 483 and which has also been reiterated by the Hon’ble Supreme Court 8 Second Appeal No. 572 of 2017 of India in the case of K.N. Nagarajappa and Others vs. H. Narasimha Reddy reported in 2021 SCC Online SC 694. 16. Now coming to the facts of the case so far as the contention of the appellants that both the courts below have erred in holding that acceptance of Hiba has not been established is concerned, learned counsel for the appellants at the time of making submission placed before this Court the deposition of D.W.1- Mohim Khalifa and drawing attention of this Court to paragraph no.21 of the cross-examination submits that in paragraph no.21 of his cross-examination, he has stated that in the affidavit which was filed as examination-in-chief; he has not mentioned that “Khaderan and Moti died before death of their father” which amounts to contradiction because the D.W.1 has mentioned as such in paragraph no.21. It is then submitted that the learned first appellate court ought not have mentioned that Khaderan predeceased Idu Khalifa. But it is pertinent to mention here that in paragraph no.4 of deposition of D.W.1, it has been categorically mentioned that “Khaderan Khalifa and Moti Khalifa died during the lifetime of Idu Khalifa” and the said testimony of the D.W.1 has not been challenged in his cross-examination by the plaintiffs and the consequence of such non cross-examination is that the same is to be accepted. 17. It is pertinent to mention here that nowhere in this second appeal memo such finding of the learned first appellate court has been specifically questioned. It is common knowledge of one and all that in cross-examination the adversary wanting to draw the 9 Second Appeal No. 572 of 2017 attention of the witness, to the statement made in the examination in chief, has to ask specific questions with the same verbatim appearing in the examination in chief and when the verbatim of the statement made in the examination-in-chief is different from the question which is asked in the cross-examination, the answer has to come in the negative. Now the verbatim in paragraph no.4 of examination-in-chief is that “Khaderan Khalifa and Moti Khalifa died during the lifetime of his father”. In the cross-examination, the question was asked whether the D.W.1 has mentioned in his affidavit filed in shape of examination-in-chief that “Khaderan and Moti died before the death of their father”. So there is a difference in the verbatim between the said portion of paragraph 4 and paragraph 21 of the deposition of D.W.1. Therefore, the verbatim in the cross-examination of D.W.1, being different from the verbatim of the examination-in-chief such denial of a different statement; will in the considered opinion of this Court, not amount to contradiction nor the same will amount to the meaning that D.W.1 expressed ignorance that in paragraph no.4 he has stated that “Khaderan Khalifa and Moti Khalifa died during the lifetime of Idu Khalifa their“ because in paragraph no.4 D.W.1 has not made any statement that “Khaderan and Moti died before the death of their father” but in paragraph no.21 it was asked whether he has stated in his affidavit that “Khaderan and Moti died before the death of their father”. 18. Now coming to the facts of the case, this Court finds that both the courts below have discussed in detail the evidence in the 10 Second Appeal No. 572 of 2017 record to arrive at the specific finding that evidence in the record put forth by the plaintiffs vis-(cid:224)-vis evidence in the record put forth by the defendants when weighed in the scale of preponderance of probability, the scale tilted in favour of the defendants and thus the plaintiffs have failed to establish the third ingredients of acceptance of Hiba and this Court does not find any perversity in such finding of fact arrived at by both the courts below. The same is the case regarding finding of facts arrived at by both the courts below that the plaintiffs failed to establish unity of title and possession of the suit land. 19. So far as the contention of the appellants regarding non- joinder of necessary party is concerned, as rightly held by both the courts below that the suit being a partition suit all the descendants of Idu Khalifa, the recorded raiyat ought to have been made party including the female members but undisputedly, the same has not been done, as the female descendants of Idu Khalifa, have not been made, parties to the suit, as has been discussed in detail in the judgment of the trial court in paragraph no.14; wherein, the trial court has quoted the deposition of the relevant witnesses; where the witnesses have stated about the female descendants of Idu Khalifa, having not been made parties to the suit. Hence, this Court does not find any illegality on this score, having been committed by either of the courts below. 20. In view of the discussion made above, this Court does not find any substantial questions of law involved in this appeal. 21. Accordingly, this second appeal being without any merit 11 Second Appeal No. 572 of 2017 is dismissed but in the circumstances without any costs. 22. Let the copy of the Judgment be sent to the learned court below forthwith. High Court of Jharkhand, Ranchi Dated the 12th July, 2024 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 12 Second Appeal No. 572 of 2017