Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK RSA No. 82 OF 2015 [In the matter of appeal under Section 100 of the Code of Civil Procedure, 1908. --------------- Naseer Khan ...… Appellant -Versus- Samsun Bibi and others ….. Respondents Advocate(s) appeared in this case :- _________________________________________________________ : M/s. A.R. Dash, S.K. Nanda-1, B. Mohapatra, S.N. Sahoo, Advocates For Appellant For Respondents : M/s. Ramakanta Mohanty, D. Mohanty, S. Mohanty, A. Mohanty, D. Varadwaj & S. Mohanty, Advocates [for R-1 to R-7] M/s. K.K. Mohapatra, Adv. [for R-10] M/s. B.K. Ghadei, H.P. Dash, D.P.K. Bhuyan, S. Lenka, D. Panigrahi, Advocates. [ for R-11] __________________________________________________________ Mr. Rajjeet Ray, Advocate CORAM JUSTICE SASHIKANTA MISHRA ORDER 22nd June, 2023 SASHIKANTA MISHRA, J.
Legal Reasoning
The defendant No.2 in C.S. No.256 of 2006 of the Court of Civil Judge (Sr. Division), First Court, Page 1 of 12 Cuttack is the appellant in the present Second Appeal who seeks to challenge the judgment and decree passed by learned District Judge, Cuttack on 13.10.2014 and 25.10.2014 respectively in RFA No. 116 of 2013 confirming the judgment and decree passed by the aforementioned trial Court on 02.08.2013 and 08.08.2013 respectively, whereby the suit filed by the plaintiff for partition was decreed preliminarily with shares being allotted to the co- sharers. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The present appeal was admitted on the following substantial questions of law. “1. Whether the answer against Issue No.3 as given by both the learned courts below that Razak Khan was the son of Kaniz Amina through Noor khan and entitled to get a share from out of the suit properties are sustainable on the face of the evidence on record that the properties are of the first wife of Noor Khan, namely Samsun Nisa Bibi, who had filed the Title Suit bearing T.S. No. 105 of 1970 which was decreed on compromise to the extent that right was created in favour of the defendant nos. 1 to 4 and defendant no.6 which the present appellant excluding the right of the original plaintiff Razak Khan and his mother Kaniz Amina and the properties involved in the present suit were also the suit properties in T.S. No. 105 of 1970? include Page 2 of 12 2. Whether in view of the ban contained in Article 84 of Mohammedan Law, the properties of Samsun Nisa Bibi could be claimed by her admitted son Razak Khan and in view of the law decided in 2008 (Supp.I) OLR -349 (Aziza Ekbal Khatun –vrs- Hasina Akhatar) that the step relation have no right of inheritance, the admitted step son, Razak Khan could maintain a suit for partition of the properties left behind by Samsun Nisa Bibi, the 1st wife of Noor Khan?” 4. In order to appreciate the relationship between the parties, it would be apposite to refer to the genealogy as claimed by the plaintiff. Noor Khan (dead) Samsun Nisa Bibi (died issueless) Kaniza Amina (dead) Razak Khan Nazeer Khan Naseer Khan Sabir Khan Budini Bibi Kulsun Bibi (Plaintiff) (D-4) (D-3) (D-2) (D-6) (D-1) =Wife- Samsun Bibi (Pl.1(a) Firoz Khan Siraj Khan Riyaz Khan Majid Khan Amjad Khan Faiyaz Khan Pl.1(g) Pl.1(b) Pl. 1(d) Pl.1(f) Pl. 1(e) Pl.1(c) The suit for partition was filed by Razak Khan, the original plaintiff, who having expired, has since been substituted by his legal heirs. His case is that Noor Khan had two wives, namely, Samsun Nisa Bibi, who died issueless and Kaniza Amina, who died leaving behind the original plaintiff and defendant Nos. 1 to 4 and 6. Hal Suit Khata No. 946 was Page 3 of 12 recorded in the name of Samsun Nisa Bibi, whereas Hal Suit Khata No. 947 stands recorded jointly in the names of both the wives of Noor Khan and his sons and daughters. Samsun Nisa Bibi predeceased Kaniza Amina, while the latter died on 17.07.1988. Noor Khan had died before the death of Samsun Nisa Bibi. After death of Kaniza Amina, the sons and daughters of Noor Khan along with the original plaintiff succeeded to the suit properties. The plaintiff was paying rent and tax to the Government. Since his brothers and sisters did not allow him to enjoy his share in the suit property, which was held joint, he filed the suit for partition. 5. Of all the defendants, only defendant No.2 contested the suit by filing written statement. Defendant No.6 adopted the said written statement. Their stand was that Razak Khan was not the son of Noor Khan but was the son of Kaniza Amina, begotten from her marriage with another person prior to her marriage with Noor Khan. It is their further case that Razak Khan had no right to succeed to the properties of Samsun Nisa Bibi and Noor Khan. Moreover, Samsun Nisa Bibi had filed T.S. No. 105 of 1970 in the Court of 1st Munsif, Cuttack for cancellation of deed Page 4 of 12 of declaration, which was decreed on compromise on 15.10.1973, whereby the right, title, interest and possession was declared in her favour and of the minor defendants debarring Kaniza Amina and Razak Khan from any right. It is stated that the property involved in the said suit corresponds to that of the present suit. 6. The trial Court framed several issues for determination. On the basis of the evidence adduced, trial Court held that Razak Khan is the son of Kaniza Amina through Noor Khan and is entitled to a share in the suit property and that as it is joint family property, the sons and daughters of Kaniza Amina and Noor Khan, i.e., original plaintiff and defendant Nos. 1 to 4 and 6 are entitled to shares. It was further held that even though Lot-1 of the suit schedule „A‟ property stands recorded in the name of Samsun Nisa Bibi, the plaintiff and defendants are in possession over the same as she died issueless and there is no other claimant in respect of the suit property. On such findings, the suit was decreed by allotting appropriate shares to the parties. 7. Feeling aggrieved, defendant No.2 carried the matter in appeal. Learned District Judge took into Page 5 of 12 consideration the oral and documentary evidence on record including the documents adduced as additional evidence and found no reason to interfere with the judgment and decree passed by the trial Court. The appeal was thus, dismissed. Feeling further aggrieved, defendant No.2 preferred the present Second Appeal. 8.
Legal Reasoning
Heard Mr. A.R. Dash, learned counsel for the appellant and Mr. Rajjeet Roy, learned counsel appearing for the contesting respondents (legal representatives of the original plaintiff) 9. Assailing the impugned judgment and decree passed by the trial Court as well as the First Appellate Court, Mr. A.R. Dash contends that both the courts below have failed to appreciate that the suit filed by the original plaintiff is not maintainable as he is not the son of Noor Khan through any of his wives but of Kaniza Amina through previous marriage. It is further contended that the suit is also barred by res judicata in view of the compromise decree passed in T.S. No. 105 of 1970. Mr. Dash further contends that even otherwise Article 84 of the Mulla‟s Principles of Mahomedan Law prohibits the step children Page 6 of 12 from inheriting any property of their step parents and vice versa. 10. Per contra, Mr. Ray contends that the appellant seeks to challenge concurrent findings of fact, which is not permissible as there is no legality or infirmity whatsoever in such findings. He further submits that despite claiming that Razak Khan was not the son of Noor Khan through his wife Kaniza Amina, the defendants could not prove the same to the satisfaction of the courts below. It is further submitted that there being no other claimants to the property recorded in the name of Samsun Nisa Bibi, who died issueless, the plaintiff and other defendants being her step children and being in possession, are entitled to shares thereof. Mr. Ray finally contends that reliance placed on Article 84 of the Mulla‟s Principles of Mahomedan Law is misconceived as there is neither any pleading nor evidence to show that the parties belonged to Hanafi School of Mahomedan Law. 11. It would be proper at the outset to examine the scope of interference by this Court in Second Appeal on concurrent findings of fact. Law is well settled in this regard that even findings of facts can give rise to substantial Page 7 of 12 questions of law in the following circumstances as referred to by the Apex Court in the case of Vijay Kumar Talwar vs. Commissioner of Income Tax, Delhi, reported in (2011) 1 SCC 673. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.” 12. Again examining the scope of interference in respect of a concurrent finding, the Apex Court in the case of State of Rajasthan v. Shiv Dayal, reported in (2019) 8 SCC 637 held as follows: “13. We do not agree with the aforementioned reasoning and the conclusion arrived at by the High Court. It is not the principle of law that where the High Court finds that there is a concurrent finding of two courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal. 14. True it is as has been laid down by this Court in several decisions that “concurrent finding of fact” is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”). However, this rule of law is subject to certain well-known exceptions mentioned infra. 15. It is a trite law that in order to record any finding on the facts, the trial court is required to appreciate (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the to appellate court also has jurisdiction evidence entire the the Page 8 of 12 appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the trial court or reverse it. If the appellate court affirms the finding, it is called “concurrent finding of fact” whereas if the finding is reversed, it is called “reversing finding”. These expressions are well known in the legal parlance. 16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached.” The impugned judgment shall now be examined in the light of legal principles referred hereinabove. 13. As already stated, the original plaintiff, Razak Khan claimed to be the son of Noor Khan and his second wife, Kaniza Amina. The trial Court took into consideration the oral and documentary evidence adduced by the parties to hold that Razak Khan was indeed the son of Noor Khan. The trial Court placed reliance and, according to this Court rightly so, on certain undisputed documents such as, income certificate, residential certificate, voter identity card, ration card etc., wherein Razak Khan is described as the son of Noor Khan. Moreover, in the written statement filed by Kaniza Amina in the earlier suit, there is a clear admission that Razak Khan is her legitimate son through Page 9 of 12 her husband Noor Khan. Such claim was never refuted. On such basis, the trial Court concluded that Razak Khan is the son of Noor Khan through Kaniza Amina. The claim of defendant No.2 that Razak Khan is the son of Kaniza Amina through another person, namely Mami of Jatni prior to her marriage with Noor Khan was never proved by any oral or documentary evidence. The trial Court, therefore, rightly disbelieved such plea. The first Appellate Court took note of the aforementioned evidence and accordingly concurred with the finding of the trial Court. Thus, this Court finds that the finding of the both the Courts below as regards the parentage of Razak Khan is entirely based on clear and cogent oral and documentary evidence on record. There is therefore, no scope or occasion for this Court to interfere. 14. As regards the applicability of Article-84 of Mulla‟s Principles of Mahomedan Law, the trial Court found that the original plaintiff and defendants were in possession over the „A‟ schedule property, which is exclusively recorded in the name of Samsun Nisa Bibi. It is undisputed that said Samsun Nisa Bibi died issueless and that there was no other claimant in respect of the suit property. The first Page 10 of 12 appellate Court took note of the principle of “Meherum Niriaz” according to which, the blood relations of Samsun Nisa Bibi, who are “distant kindred” would succeed to her properties as per Hanafi Law of inheritance. But it was held that there being no proof of any other blood relation of Samsun Nisa Bibi or any claimant to her property, the trial Court had rightly decided the issue. Thus, notwithstanding the so called compromise decree passed in the earlier suit filed by Samsun Nisa Bibi, the parties would still be entitled to share in her property as she died issueless. 15. Thus, this Court finds that the above issue was also decided basing on the oral and documentary evidence adduced by the parties. 16. From the foregoing discussion, it is evident that the challenge made by defendant No.2 to the concurrent findings of fact recorded by both the Courts below cannot succeed as this Court has found no factual or legal infirmity therein so as to be persuaded to interfere therewith. The appeal must, therefore, fail. Page 11 of 12 17.
Decision
In the result, the appeal is found devoid of merit and is therefore, dismissed but in the facts and circumstances, without any cost. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 22nd June, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Jun-2023 17:56:24 Page 12 of 12