Halima Begum v. Unanahesliwar & Ors

(By Sri: Veeresh B. Path Adv for R- 1 to R-3, R-5 & R-6; R-4 sd: appeal stands dismissed against R-7 V/o dated 18/12/2008: R-8 is minor) This RFA is filed under Section 96 r/w Order 41 Rule 1 & 2 and Order 21 Rule 103 of CPC against the judgement and decree dated: 21-06-2006 passed in Misc.No.40 and 48/1995 on the of the file of the II Addi. Civil Judge (Sr.Dn) Gulbarga, allowing the petition filed u/o 21 rule 97 of CPC. IN RFA 2002/2006 Halima Begum W/o Mohammed Ibrahirn Khan Represented b her GPA Holder, Syed Khursheed Hussain, S/o Syed Ahmed Hussain, H.No.4-5-25/ 1. Sangtrashwadi, Dargah Road, Gulbarga- 585103. (By S.S. Sajjanshetty, Sri: Yeshwant Rao Bahalad, Sri: K.G. Davanarida. and Sri: Sampat Anand Shetty Advs) AND

1. Subhadrabai W/o Somashekhar Bilgundi Aged about 70 years, Appellant 4 0cc: Household, R/o Maqdoojpura. H.No. 4-663. Gulbarga.

2. Sridevi D/o Somashekhar, W/o Basawaraj Inginshettv. Aged about 50 years. R/o Gunj. Shahabaci. G ulbarga.

3. Suryakant S/o Somashekar Bilgundi, Aged about 49 years, 0cc: business, R/o MSK Mills area. Gulbarga.

4. Basawaraj Sb Somashekhar Bilgundi, Aged about 46 years, 0cc: Nil R/o Basaveshwar colony, Gulbarga.

5. Parwati W/o Urnakant Niggudgi. Aged about 44 years. 0cc: House hold, R/o Asif Gunj. Gulbarga.

6. Lalitahai W/o Revansiddappa. Aged about 35 years. Gulbarga

7. Rajani D/o late Revansiddappa Bilgundi. Aged about 12 years Gulbarga

8. Rakesh S / o Revan siddappa Bilgundi. Aged about 9 years No.7 and 8 are minors Under guardianship of their, Mother Srnt. Lalitabai, All R/o Rajapur Gulbarga, and No.6 to 8 are the legal Representatives of deceased. Revansiddappa the son of Deceased Somashekhar, R/o Rajapur. Gulbarga.

9. Sharnappa S/o Somashekhar Bilgundi, Aged about 40 years, R/o H.No. 4-663, Maktampura, Gulbarga. Respondents By Sri: Veeresh B. Patil Adv for R- 1 to R-4. R-6 & R-9; R-7 & R-8 are minors rep by R-6 and R-5 sd) This PEA is filed under Section 96 r/w Order 41 Rule 1 & 2 and Order 21 Rule 103 of CPC against the udgeinent and decree dated: 21-06-2006 passed in Misc,No.42 and 46/1995 on the of the file of the II Addi. Civil Judge (Sr.Dn) Gulbarga, allowing the petition filed u/o 21 rule 97 of CPC. These PEAs coming on for Admission this day. the Court delivered the following: a 6 JUDGMENT These two appeals are filed against the common order passed In Misc. Nos. 42/1995. 40/1995. 46/1995 and 48/1995 allowing the applications ified by the respondents-claimants under Order 21 Rule 97 CPC and holding that they are in possession and enjoyment of the property in their indMdual capacity and delivery warrant issued in FDP No. 8/1978 shall not be executed against them.

2. For the purpose of convenience, the parties are referred to as they referred to in the Miscellaneous Petitions.

3. The claimant in Misc. Nos. 46/1995 and 42/1995 contended that he is the owner in possession of premises bearing No. 8-1302. The said building is constructed on the plot purchased in the name of his brother Sri Chandrashekar under registered sale deed dated 23.2.1959 from one Haji Yousuffuddin Bandukwale s/o Rabimoddin Bandukwale. There was an error in the property number. Therefore, a suit came to 7 be filed in O.S. No. 278/1 of 1960 for correction. The said suit was decreed and correction was ordered. They are in possession of the property from 23.2.1959 along with his brother. In a family partition the said building has fallen to his share. Prior to their getting- into possessior Haji Yousuffuddin Bandukwale was in exclusive possession of the space sold by him under a sale deed. Neither he nor his brothers nor their vendors are parties to the suit in O.S. No. 17/i of 1956 and FDP 8/78. Therefore, the said decree does not bind them.

4. The said applications were opposed by filing objections denying all the averments and contending that the documents which are relied are all fabricated,

5. In the other Misc. 40/1995 and 48/1995, obstructors contended that, Sidramappa Chandrashekar and their brothers were members of the Hindu undivided family. Premises bearing old No.7-5-238 and 7-5-239 were purchased in the name of Chandrashekar Bilgundi from Haji Yousuffuddin Bandukwale under a registered sale deed dated 23.3. 1959. There was a mistake in the said sale deed. S For its correction. O.S, No. 298/1 of 1960 was tiled which was decreed. They are in possession of the said property as owner from the date of the sale deed. A ground nut decorticating factory is established. Prior to that the property was in the possession of the vendor Flaji Yousuffuddin. The said premises is numbered 8-1301 and 8-1302. in the partition property bearing No. 8-1302 has fallen to the share of Somashekar and 8-1301 has fallen to the share of Sidramappa Bilgundi, After the death of Sidramappa his sons got divided the premises among themselves. The obstructor No. 1 was shown as owner in possession of property bearing No. 8-1301/A which consists of 2 shops and gate. Likewise obstructor No.2 was shown as owner and possessor of 8-1301/B consisting of 3 shops and obstructor Nos. 3 and 4 were shown as owner and possessor of 8-130 1 consisting of 2 RCC shops and space. They submit they are in possession and enjoyment of their respective porlions which have fallen to their share. They are not parties to O.S. No. 17/i of 1956 and FDP No. 8/78. Their predecessors in title are also not parties to the said suit. Therefore, the decree passed in the said suit is not binding on them. e. 9

6. In evidence to substantiate their claim Somashekar was examined and he has stated that Haji Yousuflhddin Bandukwale purchased the said property from one Sri Rahamatulla in 1937 Fasli. It is from HaJI Yousuffuddin Bandukwale, Chandrakant Bilgundi purchased under a registered sale deed dated 23.2.1959 whIch is marked as Ex.P1 which is in Urdu. Translated copy Is marked as Ex.P1(b). There was a mistake in the property number. For rectification suit came to be filed in O.S. No. 298/1 of 1960 which was decreed directing rectification. The sale deed executed by Rahamatulla in favour of Haji Yousuffuddln Bandukwale Is also produced at Ex.P3, which is dated 21.5. 1957, which is also in Urdu and translated copy of the same is marked as Ex.P3(a). The extract of the City Survey Register marked as Ex.P4 and P8 are also produced which shows the correction of the property and the title. Assessment extracts Exs.P5 and P6 are produced. Extract of the property reglster-Ex.P9 is also produced.

7. Sri Uma Maheshwar-the claimant in the other petition was also examined. In addition to that they have also examined three witnesses who are the owners of the properties 10 adjoining these properties. The contents of the sale deed, the decree for rectillcation passed, the municipal records, evidence of adjoining owners coupled with the evidence of Abdul Shukur. the son of Haji Yousuffuddin Bandukwale who was examined as PW4 dearly establishes the execution of registered sale deed Ex.PI and also Ex.P3. the original title deed and also gives clear location of the property. In 1ct a sketch is annexed to the document marked as Ex.P3 which gives the measurement, location and the boundaries of the property which is not in dispute. As against this, alter filing the statement of objections defendants did not step into the witness box to substantiate their claim. Under these circumstances. the trial Court on careful appreciation of the oral evidence on record categorically held that. as the claimants are not parties the proceedings initiated by the plaintiffs nor predecessors are parties to the said proceedings and as they are not claiming title to the properties to any one of the parties to the proceedings, the decree obtained by them is not binding on the claimants and it cannot he executed against them. In that view of the matter, the order passed by the trial Court 11 unexceptionable. There is no merit in these appeals and they are accordingly dismissed. saI UDGE ckl / -