HUSENSAB BAVARDIN NAGARWALE @ NAGAR v. HASANSAB BASHASAB SHAIKH

#2. SMT. GORIMA W/O. SAHEBLAL SHAIKH AGE. 50 YEARS, OCC. HOUSEHOLD R/O. C/O. NIJAM PATHAN, BARPETH GALLI, JAMAKHANDI 587301, DIST. BAGALKOT.

#3. AKBAR BAVARDIN NAGARWALE @ NAGAR AGE. 45 YEARS, OCC. DRIVER R/O. BARPETH GALLI, JAMAKHANDI 587301, DIST. BAGALKOT. (BY SRI. V.M. KANNUR, ADVOCATE FOR SRI. M.M. KHANNUR ADVOCATE FOR R1; NOTICE TO R2 AND R3 SERVED) …RESPONDENTS THIS RSA FILED U/S. 100 OF CPC. AGAINST THE JUDGEMENT & DECREE DATED: 12/9/2008 PASSED IN R.A.NO:20/2007 ON THE FILE OF THE FAST TRACK COURT, JAMAKHANDI, DISMISSING THE APPEAL, FILED AGAINST THE JUDGEMENT AND DECREE DATED: 19/2/2007 PASSED IN O.S.NO:6/2002 ON THE FILE OF THE PRL. CIVIL JUDGE(JR.DN), JAMKHANDI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION ALONG WITH PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Heard the learned counsel for the appellants.

#2. During the course of the argument, the learned Counsel submits that the appellants are not going to dispute the relationship between the plaintiff and defendants 1 & 2. In view - 3 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR of the submission, the first substantial question of law, i.e. “Whether both the courts have committed a serious error in not noticing that there is no declaration regarding status of plaintiffs and their alleged right over the suit schedule property more particularly in the light of status being seriously disputed?” framed on 25th March 2014, stands deleted.

#3. Defendants 1, 3 & 4 have preferred this Regular Second Appeal against the judgment and decree dated 19th February, 2007 passed in Original Suit No.6 of 2002 by the Principal Civil Judge (Jr. Dn.), Jamakhandi, which is confirmed by the Fast Track Court at Jamakhandi by Judgment dated 12th September, 2008 passed in Regular Appeal No.20 of 2007.

#4. For the sake of convenience, the parties herein are referred to as per the rank before the trial court.

#5. Facts leading to this appeal are that the plaintiffs 1 & 2 have filed suit for partition and separate position of the suit property and the genealogical tree of the plaintiff and defendants is as under. - 4 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR Bavardin (died on 03.04.1998) Wife-shahajadabi (died on 20.11.94) Husensab roshanabi gorima akbar

#6. The propositus Bavardin died on 3rd April 1988, and his wife Shahajada Bi (mother of plaintiffs and defendants) also died on 20th November 1994. The deceased Bavardin was the owner in possession of the property bearing CTS No.208 measuring 76.92 mtrs. at Jamakhandi. After his demise, defendants 1 & 2 applied to the City Survey Office, Jamakhandi on 19 January 2001 for entering their names alone stating that they are the only legal heirs of the deceased parents and thereby the defendants 1 & 2. Accordingly, the names of defendants 1 & 2 alone have been entered by the City Survey Officer to the suit property. The Survey officer has not given public notice and has also not enquired as to other legal heirs to the deceased. Therefore, the entry made by the Taluk Surveyor/City Survey Officer, Jamakhandi, is without knowledge and behind the back of the plaintiffs. Now, the suit property standing in the names of the defendants. The plaintiffs have got the right of partition in the suit property as per the - 5 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR Mohammedan law to the extent of one-third share therein. The plaintiffs approached defendants 1 & 2 for effecting the partition in the Suit property, but the efforts went in vain. Now, the defendants are trying to sell the suit property by taking advantage of the appearance of their names in the record. The entries in the records of the suit property are not binding on the plaintiffs. Hence prayed for decreeing in the suit.

#7. In response to summons, the Power of Attorney Holder of only the defendant No.1 has filed written statement, denying all the averments of the plaint including the relationship of plaintiffs and defendants. Plaintiffs have no right of whatsoever nature in the suit property as sought for. Defendant No.2 has got filed the instant suit through the plaintiffs colluding with them as they are the sisters of defendants, only with a malafide intention to harass defendant No.1. Even otherwise, without admitting the relationship of the plaintiffs, the defendant No.1 has got every right to enjoy suit property at his wish, and the plaintiffs are excluded from the suit property. It is also contended that the suit is barred by law of limitation and further, the suit is not properly valued and the trial Court has no pecuniary jurisdiction, so also, the court fee - 6 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR paid is not correct. It is further stated that the suit, without claiming the relief of declaration of the right of plaintiffs, is not maintainable. The plaintiffs are not in possession of the suit properties and hence the ad-valorem Court fee is required to be paid on the market value of the suit property. Contending thus, it was prayed for dismissing the plaintiffs’ suit.

#8. The defendant No.2 has appeared through his Counsel and contended that the contents of paragraph 2 of the plaint are true and correct. Both the plaintiffs are the sisters of defendants 1 and 2 and accordingly the genealogy shown by the plaintiffs is admitted. It is stated that the defendant No.1 has falsely deposed before the City Survey Officer that the defendants 1 & 2 are the only legal heirs and excluded the names of the plaintiffs from the CTS records for his ulterior motive. The defendant No.2 is ready and willing to give one- third share to the plaintiffs as sought for. The defendant No.2 is not trying to alienate the suit property, but defendant No.1 is negotiating to sell the suit property with a view to deny and deprive the plaintiffs who are also entitled to get their legitimate share. Hence, it was prayed for decreeing the suit of the plaintiffs. - 7 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR

#9. Based on the the rival pleadings, the trial Court has framed the following issues: “1. Whether the plaintiffs prove that, plaintiffs are entitled to 1/3rd share in the suit property?

#2. Whether the defendant No.1 proves that is not the suit without declaration maintainable?

#3. Whether the court fee paid is incorrect, if so what is the correct court fee?

#4. Whether the plaintiffs further prove interference by the defendants?

#5. Whether the plaintiffs are entitled to the relief sought-for?

#6. What Order or Decree?”

#10. To substantiate the case, Plaintiff No.1 herself got examined as PW1 and placed reliance on documents marked as Exhibits P1 to P6. On the other hand, defendant No.3 got examined as DW1 and defendant No.1 got examined as DW2 and defendant No.2 got examined as DW3 and placed reliance on the documents marked at Exhibits D1 and D2. Having heard the arguments on both sides, the trial Court answered the issues framed, as under: “Issue No.1 Issue No.2 Issue No.3 : : : In the affirmative In the Negative In the Negative - 8 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR Issue No.4 Issue No.5 Issue No.6 In the Negative In the Affirmative partly : : : As per the final order”

#11. In view of the abovesaid finding, the trial Court decreed the suit in part declaring that the plaintiffs are entitled for their legitimate one-third joint share in the suit house property. Being aggrieved by this judgment and decree passed by the trial Court, defendants 1, 3 and 4 have preferred appeal in RA No.20 of 2007 which came to be dismissed on 12th September, 2008. Being aggrieved by judgments passed by both the courts, the appellants have preferred this Regular Second Appeal.

#12. Upon hearing the arguments, this Court has framed two substantial questions of law on 25 March 2014: “(a) Whether both the courts have committed a serious error in not noticing that there is no declaration regarding status of plaintiffs and their alleged right over the suit schedule property more particularly in the light of status being seriously disputed? (b) Whether both the Courts have committed a serious error in decreeing the suit by ignoring the material evidence placed on record and - 9 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR thereby judgments are illegal and perverse?”

#13. Today, in view of the submissions made by the learned counsel for the applicants, the substantial question of law framed as per (a), is deleted. Only the substantial question of (b) needs to be addressed.

#14. I have examined the materials placed before me. Though defendants 1, 3 & 4 have denied relationship between the plaintiffs and defendants 1 and 2 at the primary stage, but during the course of arguments, the learned Counsel for the appellants submits that he will not press issue. Additionally, both Courts have properly appreciated the evidence on record in accordance with law and facts and have come to the conclusion that the plaintiffs have proved the relationship between the plaintiffs and defendants 1 & 2. It is not in dispute that the deceased Bavardin owned the suit property and after his death, the legal representatives inherited the same. Defendants 1 and 2, by making Exhibit 3-application before the City Survey Officer stating that they are the only legal heirs, entered their names in the suit operating properties during the year 2001 after thirteen years after the death of - 10 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR their father. The plaintiffs and defendants 1 & 2 have inherited the suit property after the death of Bavardin during 1988. During the course of cross-examination of DW1, she has consistently submitted that even after the death of Bavardin she resided in the suit property along with defendant No.2 till

#1993. Defendant No.1 in his evidence, nowhere whispered that his rights have been ousted or excluded from the enjoyment of the suit property. Defendant No.1 has suggested to the plaintiff that she was not in possession of the suit property along with Defendant No.22 till the year 1993. Both the Courts have held that plaintiffs 1 and 2 are together entitled to joint share in the suit property. In the course of the judgment at paragraph 16, the trial Court has observed as under: “…It is pertinent to note that, the defendants 3 and 4 who are stated to be the purchasers of the portion of the suit property are at liberty to claim the relief in respect of their purchase in the suit house property only from the defendant No.1 who has sold the same, to the extent of his (defendant No. 1) 1/3rd legitimate share and not beyond the same or the defendants 3 and 4 are at liberty to take the proper steps under legal proceedings before appropriate forum if the law permits, to claim the appropriate relief against the defendant No.1 in respect - 11 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR of their purchases of the portion of the suit property from the defendant No.1.”

#15. The learned Counsel for the applicants has fairly submitted that defendants 3 and 4, being purchasers, will work out their remedies in final decree proceedings as observed by the trial Court, which is confirmed by the appellate Court. In view of the submission and also on perusal of entire materials placed before me, I do not find any serious error or legal infirmity in decreeing the suit. Both the courts have properly appreciated the evidence and record and decreed the suit. Hence, I answer the substantial question of law (b), in the negative.

#16. For the foregoing reasons, I proceed to pause the following: O R D E R i) Appeal dismissed; ii) It is made clear that appellants 2 and 3 herein, i.e. Sri Husensab Bavardin Nagarwale and Smt. Hasina w/o. Hasansab Shaik, who are defendants - 12 - NC: 2025:KHC-D:9722 RSA No. 5139 of 2009 HC-KAR 3 & 4 in Original Suit No.6 of 2002 and are stated to be purchasers of the suit property, are at liberty to claim their relief in respect of the property purchased only from defendant No.1 to the extent of his one-third legitimate share and not beyond it, and are also at liberty to take the proper steps under the legal proceedings before the appropriate forum if law permits, to claim appropriate relief against defendant No.1 in respect of the purchases of the portion of the suit property from defendant No.1; iii) Draw decree accordingly; iv) Registry to send the copy of this order and decree along with trial court records to the concerned Court. Sd/- (G BASAVARAJA) JUDGE CT-CMU LIST NO.: 1 SL NO.: 69