IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.137 OF 2016 BETWEEN:
Babu Sahab Since deceased by his L.R.s 1a. Imambi Aged about 65 years.
1b. Jaleel Sahb Aged about 45 years.
1c. Karim Saheb Aged about 40 years.
1d. Mumtaz Aged about 37 years.
1e. Shahida Aged about 35 years 1f. Zeenat Aged about 33 years.
1g. Akbar Aged about 30 eyars.
No.1(a) is the wife; No.1(b) to 1(g) are the Children of late Babu Saheb All are R/o.Light House road, Padu Village, Kaup Post, Udupi Taluk, Udupi District. 576 106.
2. Mrs. Aminabi Aged about 73 years D/o. Late Imam Saheb R/o. Imam House, Light House Road, Padu Village, Post Kaup, Udupi Taluk Udupi District.
(By Mr. Narayan Mayyar for Sri. S.R. Hegde Hudlamane, Advocate) AND:
1. Mr. Matha Imam Saheb Age about 70 years, S/o. Late Imam Saheb Sai Manzil Near Prashanth Hospital, Koppalangady, Padu Village, Post Kaup, Udupi Taluk, Udupi district. 576 106.
2. Mr. Chand Saheb Aged about 67 years, S/o. Late Imam Saheb C/o. B.T. Bar & Restaurant Bhavani Building, Kishan Nagar, Manipal, Udupi Taluk, …Appellants Udupi District. 576 106.
3. Mrs. Shirin Peer Mohammed Aged about 63 years, D/o. late Imam Saheb Kannadbettu, Post Kalathur, Udupi Taluk, Udupi District. 576 106. (by Sri. Vyasa Rao K.S., Advocate) **** …Respondents This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated:28-09-2015 passed in O.S.No.60/2010 on the file of the Additional Senior Civil Judge at Udupi, decreeing the suit of the plaintiffs for partition and separate possession.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:
J U D G M E N T This is a defendants’ appeal. The present respondents had instituted a suit against the present appellants in the Court of the learned Additional Senior Civil Judge at Udupi in O.S.No.60/2010 (hereinafter for brevity referred to as the “Trial Court”) for the relief of partition, directing the division of plaint ‘A‘ schedule property and also for a direction to keep the ‘B’ Schedule property for the benefit of all the sharers for the purpose of agriculture.
2. The summary of the case of the plaintiffs in the Trial Court was that, the parties to the suit are Mohammedans belonging to Hanafi Subsect in Sunni sect of Mohammedan law. They are the co–owners in joint possession and enjoyment of the suit properties. One Imam Saheb who was the father of the plaintiffs and defendants had vast immovable properties at Padu Village of Udupi Taluk. He had acquired under the Deed of Partition and also through grant of occupancy rights under the Karnataka Land Reforms Act, 1974. The said Imam Saheb died intestate on 17-05-1986. His wife Sajanabi also died subsequently somewhere in the year 1996. Imam Saheb died intestate leaving behind the plaintiffs and defendants as the sole surviving legal heirs. Hence the plaintiffs and defendants are having undivided right, title, and interest over the suit schedule properties left by deceased Imam Saheb.
The plaintiffs further contended in their plaint that, as per the Partition Deed dated 02-10-1944, under ‘B’ Schedule of Partition Deed, Survey No.86/2 measuring 08 cents and Survey No.86/3 measuring 53 cents of Padu village were allotted to the share of their father Imam Saheb. Survey No.86/2 measuring 08 cents is completely comprised with a ‘nagasthaana’ which is being worshipped by the family and the villagers. Hence, the same is not available for partition. Whereas in Survey No.86/3B, measuring 53 cents, Imam Saheb constructed a thatched residential house, where the plaintiffs and defendants were born and brought up.
It is also the case of the plaintiffs that their father Imam Saheb was granted occupancy rights in respect of Survey No.85/1, measuring 01 acre 07 cents of land in Padu village of Udupi Taluk as per the order passed by the Land Tribunal, Udupi. Pursuant to the said order of grant by the Tahsildar, an Occupancy Certificate in Form No.10 was also issued in the name of Imam Saheb. The agricultural activities are being carried out in the said land since then till now. Adjacent to item No.3 of suit schedule ‘A’ property, there is a Government Kumki land, measuring 15 cents in Survey No.116/1A1, which is meant for the benefit of Nanja fields of item No.1 of the plaint ‘A’ schedule property for the purpose of agriculture. The said kumki land is shown in detail in ‘B’ schedule to the plaint.
The plaintiffs further contended that plaintiff No.1 was working in Mumbai and earning a handful income and that he was helping the family for the last over forty years in improving the property as well as performing the marriage of his sister, i.e. plaintiff No.3. He had spent huge amount for the improvement of the property by putting up the house construction and also for the marriage of his sister.
The plaintiffs further stated that they have been in joint possession of the property and they are co- sharers of the said joint property along with the defendants. Though they had been demanding with the defendants for the partition of the properties, however, the defendants did not oblige to do the same, which constrained the plaintiffs to institute the present suit. With this, they have prayed for partition in the suit schedule properties as per the share they have claimed in the suit.
3. In response to the summons served upon them, it is only the defendant No.1, who contested the matter by filing his Written Statement. In his Written Statement, the legal relationship between the parties and the date of death of Imam Saheb on 17-05-1986 and also the date of death of the mother of the parties were all admitted.
However, they contended that it is the first defendant who has been in continuous possession and enjoyment including the cultivation of plaint ‘A’ schedule property. The right of the plaintiffs, if any, have been lost by adverse possession, prescription, limitation and ouster. Further, the defendant No.1 contended that, thereafter Imam Saheb had executed a Will dated 04-05-1984 where under, he had bequeathed the property bearing Survey No.85/1, measuring 01 acre 07 cents situate in Padu village, in favour of the defendant No.1. In this way, the said defendant has acquired the absolute right, title and interest over the said property and has been in possession and enjoyment of the same. It is also stated that, this defendant had made lot of improvements in the suit schedule properties. With this, he prayed for the dismissal of the suit.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-
“1] Do the plaintiffs prove that the plaint ‘A’ schedule and ‘B’ schedule properties are family properties and liable to be partitioned?
2] Do the plaintiff prove that 1st plaintiff has effected vast and valuable improvements in the plaint ‘a’ schedule property?
3] Does the 1st defendant prove that by virtue of the alleged will dated 4.5.1984 his father has bequeathed Sy.No.85/11, measuring 1.07 acres of Padu village in his favour?
4] Does the 1st defendant prove that he has perfected his title over the suit properties by adverse possession, prescription and limitation?
5] Do the plaintiffs prove that defendant No.1 and 2 are liable to pay measne profits? If so at what rate?
6] what order or decree”
5. In order to prove their case, the first plaintiff got himself examined as PW-1 and examined one Shekara Salian as PW-2 and got produced and marked documents from Exhibits P-1 to P-13. Since during the pendency of the suit, defendant No.1 died and the legal representatives came on record as defendants No.1(a) to 1(g), the defendant No.1(b) Jaleel Saheb S/o. Babu Saheb the original defendant No.1 in it, himself examined as DW-1. No documents were marked as exhibits from their side.
6. The Trial Court, after hearing both side, by its impugned judgment and decree dated 28-09-2015 while answering issue No.1 in the affirmative, issues No.2, 3 and 4 in the negative and observing that issue No.5 does not survive for consideration, decreed the suit of the plaintiffs, ordering that the plaintiffs are together entitled to 5/8th share in the suit schedule properties by metes and bounds. It is challenging the said preliminary decree, the defendants in the Court below have preferred this appeal.
7. In response to the notice served upon them, the respondents appeared through their counsel.
8. The Lower Court records were called for and the same are placed before this Court.
9. Heard the arguments of the learned counsel for appellants/defendants, learned counsel for respondents/plaintiffs and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
10. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
11. Learned counsel for the appellants in his argument mainly canvassed only on the point that, item No.3 in suit schedule ‘A’ property was granted to Imam Saheb considering his ‘vaadya seva’ (performance of instrumental musical seva to the god) in Sri Janardhana Temple at Kaupu. Admittedly, the said seva was continued by the original defendant No.1 - Babu Saheb, Son of Imam Saheb and thereafter by his son Jaleel Saheb who is defendant No.1(b). As such, the said grant being granted for ‘service’, is not amenable for partition with the other members of the family of Imam Saheb.
Learned counsel further submitted that the availability of item No.1 for the partition is not disputed by the appellants, however, Item No.2 being ‘Nagasthaana’ is not amenable for partition since it is a place of worship by all.
With respect to suit schedule ‘B’ property, learned counsel for the appellants submitted that it is a Kumki land for the benefit of its adjoining lands. With the said submission, he once again reiterated that the appellants are only concerned about their exclusive entitlement upon item No.3 in the suit schedule ‘A’ property measuring 01 acre 07 cents.
Though learned counsel also submitted that the defendants also rely upon a Will executed by their father Imam Saheb on 04-07-1984, however, he fairly conceded that neither the said Will was marked as an exhibit nor the attesting witnesses to the alleged Will were examined from the defendants’ side.
12. Learned counsel for the respondent in his brief argument, canvassed a point on the Will as confined only to the pleading of the defendants and that there is neither any evidence on the said aspect nor any proof of the Will in view of the fact that, admittedly, the said document is not marked in the evidence and it is not proved by examining any of the attesting witnesses, though required under law.
13. With respect to the contention of the appellants that, the grant of 01 acre 07 cents was a ‘service’ grant made to Imam Saheb considering his instrumental music performance (clarionet) in the Temple, as such, the same has to be continued to the defendant and his sons who continued the said service in the Temple, learned counsel submitted that in the absence of iota of pleading in that regard, any amount of evidence would not carry any weightage.
In support of his contention, he relied upon a judgment of the Division Bench of this Court reported in the case of Rudrawwa Vs. Balawwa and another reported in 1967 (1) Mysore Law Journal 71.
Learned counsel for the respondent also submitted that with respect to item No.2 of suit schedule ‘A’ property, on the lines of the submission made by the learned counsel for the appellants that, the same being a ‘Nagasthaana’ under worship from all, the same is not amenable for partition. He also submitted that the suit schedule ‘B’ property is a Kumki land. With this, he submitted that since the grant of item No.3 of the suit schedule ‘A’ property admittedly having been made in the name of Imam Saheb, after his death, the same is amenable for partition for all the eligible shareholders of Imam Saheb who are undisputedly the parties to the original suit.
Learned counsel also submitted that the grant was made by considering the Form No.7 filed by Imam Saheb in his individual capacity and considering him that he was a tenant in the said land as on 01-03-1974. As such, the contention of the appellants that the grant was for ‘service‘ and that the defendant No.1 was entitled for the said property to the execution and other properties, is not acceptable.
14. In the light of the above, the points that arise for my consideration in this appeal are:-
1] Whether the plaintiffs have proved that the suit schedule ‘A’ properties, more particularly, item Nos.1 and 3 of the suit schedule property are amenable for partition?
2] Whether the defendants have proved that late Imam Saheb had bequeathed the item No.3 of the suit schedule ‘A’ property in favour of Defendant No.1 - Babu Saheb?
3] Whether the appellants can take a contention that, item No.3 in suit schedule ‘A’ property is a grant made for the service to be rendered in the Temple, as such, defendant No.1 alone is entitled for the said property?
4] Whether the judgment and decree under appeal deserves any interference at the hands of this Court?
15. It is not in dispute that Imam Saheb who is the father of the plaintiffs and original defendants No.1 and 2, died on 17-05-1986 which is further evidenced by the Death Certificate at Ex.P-9. It is also not in dispute that the wife of said Imam Saheb died somewhere in the year 1996 and the couple had left behind them the original parties to the original suit as their legal heirs. Further, it is also not in dispute that Imam Saheb had left behind him the suit schedule ‘A’ properties comprising three items in it. The RTC extracts produced by PW-1 from Exs.P-1 to P4 also support the said undisputed contention of the parties. The parties also have not disputed that the suit schedule ‘B’ property is a kumki land, measuring 15 cents and located in Survey No.116/1A1 of Padu village. The defendants have not denied or disputed the entitlement of the plaintiffs for their eligible share in item Nos. 1 and 2 in the suit schedule ‘A’ properties and to continue to treat the suit schedule ‘B’ property as a kumki land.
16. The only point of dispute of the appellants in the present appeal is with respect to item No.3 of the suit schedule ‘A’ property which is a ‘Nanja’ land in Survey No.85/1, measuring 01 acre 07 cents. The undisputed fact with respect to the said land is that, it was a land under grant made to Imam Saheb during his life time. However, the dispute is only with regard to whether that property is amenable for partition.
17. The contention of the appellants is two-fold.
The first contention is that, Imam Saheb had executed a Will dated 04-05-1984 in favour of defendant No.1 – Babu Saheb and as such, property is not amenable for partition. Secondly, it is also the contention of the appellants that the grant made to Imam Saheb was towards the instrumental music (clarionet) seva offered by him to the god in a Temple, as such, the said grant flows to such of those heirs of the deceased Imam Saheb who continue the said seva, but not to all his children. Both these contentions were in the form of arguments addressed by the learned counsel for the appellants in this appeal.
17. Admittedly, the defendants have not produced and marked the said Will as an exhibit in the Trial Court. In none of its form the alleged Will or its recital has been brought before the Trial Court by either of the parties, in any manner. Secondly, nowhere it is stated as to who were the attesting witnesses to the alleged Will. None of the attestors to the Will have been examined by the propounders of the Will in the Trial Court. As such, the contention of the defendants that the deceased Imam Saheb had executed a Will dated 04-05-1984 has confined only to a contention without any proof in that regard.
Therefore, the contention of the appellants that there existed a Will in favour of defendant No.1 – Babu Saheb, has not been proved.
18. The second contention of the appellants is that, the grant made to Imam Saheb was towards instrumental music (clarionet) seva he was offering in Sri Janardhana Temple at Kaupu. Therefore, the land should go to defendant No.1 – Babu Saheb who continued offering the said seva to the temple, after the death of said Imam Saheb, but not to the other parties to the suit, who admittedly have not performed any such seva in the temple.
19. In that regard, PW-1 in his cross- examination, has stated that Item No.3 of the suit schedule ‘A’ property was given to their family by Kaupu Janardhana Temple recognising the instrumental music seva rendered by their father-
Imam Saheb. His family members are till date continuing to offer the said instrumental seva to the said Temple. The witness has also stated that after the death of his father - Imam Saheb, defendant No.1 continued the said instrumental seva to the Temple. After the death of defendant No.1, his children, i.e. defendant Nos.1(b) and 1(g) have continued the said instrumental seva in the Temple. The witness has further stated that none of the plaintiffs are aware of playing the said musical instrument (clarionet) and also offering the musical instrumental seva to the Temple.
20. It is highlighting the said statements made by PW-1 in his cross-examination, the learned counsel for the appellants vehemently contended that, the plaintiffs themselves have admitted that Imam Saheb was granted the land because of his instrumental music seva he was offering to god. As such, since the said date, it is continued by defendant No.1 and his children. Therefore, the item No.3 of the suit schedule ‘A’ property is not amenable for partition by the remaining members of the family. He also submitted that even PW-2 also in his evidence has stated that he was aware of the fact that Imam Saheb was earlier performing the instrumental music seva (clarionet) to the Temple, which is now continued by the first defendant and his children.
21. The plaintiffs through PW-1 have produced a copy of Form No.7 filed by late Imam Saheb seeking grant of item No.3 of the suit schedule ‘A’ property in his favour before the competent authority. They have also produced a copy of the order of grant made by the Land Tribunal, Udupi, which is at Ex.P-6. Further, the plaintiffs have also produced a copy of Form No.10 showing the record of occupancy rights with respect to the said property. These documents have not been disputed from the defendants’ side.
22. A perusal of Ex.P-5 would go to show that, Form No.7 under the Karnataka Land Reforms Act, 1974, has been filed by Imam Saheb - the father of the parties to the litigation, seeking registration of his name as a tenant with respect to 01 acre 07 cents of the land which is item No.3 in the suit schedule ‘A’ property. Considering the said application, the Land Tribunal, Udupi, by its order dated 13-11-1979 bearing No.LRY:100/256/TRI/1309:79-80 has registered the name of Imam Saheb as a tenant under cultivation with respect to the said land. The same is evident in Ex.P-6. In the said short order, the Land Tribunal, Udupi, has observed that, the family members of the applicant (Imam Saheb) have been offering instrumental music seva since about fifty years in Sri Janardhana Temple at Kaupu. Considering the said reason, the Tribunal has ordered to record the name of the applicant – Imam Saheb on behalf of his family as a tenant with respect to the said property shown in the application and the order. Accordingly, his name was entered as an occupant recognising his occupancy rights under Ex.P-7 which is Form No.10. Therefore, the order made by the Land Tribunal, Udupi, at Ex.P-6 goes to show that, the said order was passed on the basis of the application made by Imam Saheb in his individual capacity, however, the recording of his name as a tenant in the occupancy records was on behalf of his family considering the fact that his family members were rendering instrumental music seva (clarionet) to Sri Janardhana Temple at Kaupu. However, the said order in Ex.P-6 no where mentions as to the inheritance of the said right of occupancy and the manner how the same has to be inherited. In that circumstance, had it been the case of the defendants in the Trial Court that the alleged grant made in favour of Imam Saheb or registering his name as a tenant with respect to item No.3 of the suit schedule ‘A’ property was only after considering that he was an instrumental music player(clarionet) in the temple and that the said tenancy is required to be inherited by his successors, who continued to render the said seva in the temple, there ought to be necessarily a specific and clear pleading in that regard in the Written Statement. Admittedly, there is no whisper on those lines either in the Written Statement or in the additional Written Statement filed by the defendants in the Trial Court.
23. In a judgment relied upon by the learned counsel for the respondents/plaintiffs, a Division Bench of this Court in the case of Rudrawwa Vs. Balawwa and another (supra) in a matter of partition among Hindus, on the pleading of the parties, was pleased to observe that, the scope of a suit is determined by the pleadings in the case. Any amount of evidence cannot fill up the lacuna in the pleadings. If the case is not pleaded, the same cannot be permitted.
24. In the instant case, as already observed, there is no iota of pleading about the grant made in favour of Imam Saheb or registering his name as a tenant and granting him the occupancy rights exclusively as a ‘service’ grant made in his favour. As such, in the absence of any pleading on the said line, merely because DW-1 in his evidence has stated that since the service of his grandfather Imam Saheb was continued by his father – Babu Saheb and thereafter he is continuing the said Seva in the Temple by playing clarionet, by that itself, it cannot be considered that, the defendants had taken a specific plea that the grant was a ‘service’ grant and it cannot constitute the subject matter of partition of the family property by the parties to the litigation.
25. Therefore, the Trial Court has rightly not considered the said portion of the evidence, which, for the first time, was placed before it by the parties without any corresponding pleading on the point and proceeded to include item No.3 of suit schedule ‘A’ property also as the properties amenable for partition. Therefore, I do not find any error or discrepancy in the said finding of the Trial Court for decreeing the suit for partition including the item No.3 of the suit schedule ‘A’ property.
26. Barring the same, since there is no dispute about the decree for partition with respect to item No.1 of suit schedule ‘A’ property, I do not find any reason for interfering in the judgment and decree under appeal.
Accordingly, I proceed to pass the following:-
O R D E R [i] The appeal is dismissed;
[ii] However, as desired by the learned counsel from both side, the judgment and decree under appeal is clarified after considering the prayer made in the plaint that, the suit schedule ‘B’ property which is a Kumki land is not available for partition, however, the said land is for the benefit of the other lands as per law.
Further, as submitted by both side, item No.2 of suit schedule ‘A’ property being a ‘Nagasthaana’, is also not amenable for partition since it is a place of worship being worshipped by all.
[iii] Draw the modified decree accordingly.
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/- JUDGE BMV*