IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY-FIRST OF JANUARY TWO THOUSAND AND FOURTEEN PRESENT ::
THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO
SA.No.750 of 2012
Between :
Mohd. Ibrahim, S/o.Mohd. Basheer Ahmed, R/o.Jamamaszid Locality, Nalgonda Town and District.
Vs.
Rajia Begum, W/o.Late Mohd. Nazir Ahmed, R/o.Narketpally Mandal, Nalgonda District and others
…Plaintiff/Appellant/
Appellant
…Defendants/Respondents/
Respondents
SA.No.754 of 2012
Between :
Mohd. Ibrahim, S/o.Mohd. Basheer Ahmed, R/o.Jamamaszid Locality, Nalgonda Town and District.
Vs.
Rajia Begum, W/o.Late Mohd. Nazir Ahmed, R/o.Narketpally Mandal, Nalgonda District and others
…Plaintiff/Appellant/
Appellant
…Defendants/Respondents/
Respondents
Counsel for Plaintiff/Appellant/
Appellant : Sri K. Mahipathy Rao
Sri J. Suresh Babu
Counsel for Defendants/Respondents/
Respondents : Sri MAK Mukheed
Sri Mohd.Amjad Ali
Khan
The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO SA.No.750 of 2012 and SA.No.754 of 2012 COMMON JUDGMENT :
As the appellant in both the appeals is one and the same, the respondent in SA.No.754 of 2012 is also 6th respondent in SA.No.750 of 2012, and the property which is subject matter of SA.No.754 of 2012 is also part of the property which is the subject matter of SA.No.750 of 2012, these appeals are being disposed of together. In fact in the lower appellate court and in the trial court also, common orders were passed in the respective first appeals and in the respective suits.
2. SA.No.750 of 2012 is filed challenging the judgment and decree dt.28.01.2011 in AS.No.32 of 2008 of the Family Court-cum-Addl. District and Sessions Judge, Nalgonda confirming the judgment and decree dt.15.04.2008 of the Senior Civil Judge, Nalgonda in OS.No.31 of 2001.
3. SA.No.754 of 2008 is filed challenging the judgment and decree dt.28.01.2011 in AS.No.33 of 2008 of the Family Court-cum-Addl. District Judge, Nalgonda confirming the judgment and decree dt.15.04.2008 of the Senior Civil Judge, Nalgonda in OS.No.10 of 2001.
4. The appellant in these appeals is the plaintiff in OS.No.31 of 2001 and in OS.No.10 of 2001. The sole defendant in OS.No.10 of 2001 is the 6th defendant in OS.No.31 of 2001.
5. One Mohd. Ibrahim, S/o.Mohd. John had five sons. They are Mohd. Basheer Ahmed, Mohd. Jamaluddin Saheb, Gulam Rasul Saheb, Mohd. Rahmathulla Saheb and Mohd. Khasim Ali. The plaintiff and Mohd. Nazir Ahmed are sons of Mohd. Basheer Ahmed. Khaja Habeeboddin (for short, ‘KH’) ( 6th defendant in O.S.no.31 of 2001 and the sole defendant in OS.No.10 of 2001) is the son of Mohd. Jamaluddin. The 9th defendant in OS.No.31 of 2001 i.e., Gulam Mustafa is the son of Gulam Rasul. Mohd. Rahmathulla died issueless and Khasim Ali had a son by name Mohd. Ibrahim. Defendant Nos.1 to 5 in O.S.No.31 of 2001 are the wife and children of Mohd. Nazir Ahmed, i.e., the brother of the plaintiff.
THE PLEADINGS IN O.S.NO.10 OF 2001
6. OS.No.10 of 2001 was filed for declaration of title of the appellant/ plaintiff to his alleged undivided half share in the plaint schedule property therein and for perpetual injunction restraining the sole defendant from interfering with the joint possession and enjoyment of plaintiff with his co-owner Rajia Begum, the widow of Mohd. Nazir Ahmed (the brother of the plaintiff), for recovery of damages of Rs.1,00,000/- or in the alternative for recovery of possession of the said land with mesne profits of Rs.1,00,000/-.
7. The subject matter of OS.No.10 of 2001 is an extent of Acs.2.20 gts. which is the northern portion out of the southern portion of Acs.5.04 gts. in Sy.No.733 of Nalgonda Revenue Village and Mandal, Nalgonda District.
8. OS.No.10 of 2001 was first filed by plaintiff contending that an extent of Acs.8.20 gts. in Sy.No.733 was recorded in the Khasra-cum-Record of Rights for the year 1954-55 in the name of his late brother Md. Nazir Ahmed; that KH (the defendant in OS.No.10 of 2001, who is also 6th defendant in OS.No.31 of 2001) is the owner and possessor of northern Acs.3.16 gts. of land in Sy.No.733; the balance of Acs.5.04 gts. is jointly owned by plaintiff and his brother Mohd. Nazir Ahmed; in 1971, KH sold the northern Acs.2.20 gts. out of Acs.3.16 gts. to one Narala Kethamma and obtained a consent decree in OS.No.451 of 1971 (Ex.A.6); pursuant to the said decree, the Revenue authorities made entries in Faisal Patti for the year 1975-76, deleting an extent of Acs.3.16 gts. from the holding of KH and leaving only an extent of Acs.0.36 gts. in the name of KH; that the Revenue authorities also issued passbook and title deed in favour of plaintiff and Rajia Begum (1st defendant in OS.No.31 of 2001, who is the wife of Mohd. Nazir Ahmed) for the southern Acs.5.04 gts. in Sy.No.733, as joint owners; that in 1997, plaintiff and Rajia Begum received notices from the Mandal Revenue Officer, Nalgonda that KH had filed a petition stating that he was having Acs.3.16 gts. in Sy.No.733 and he was shown only as having Ac.0.36 gts. in the said Sy.No.; that although the plaintiff and Rajia Begum replied to the said notice, an order was passed on 04.06.1997 allowing the petition of KH; encouraged by this, KH interfered with the possession and enjoyment of the land in Sy.No.733 and was trying to dispossess the plaintiff and Rajia Begum from the northern side to an extent of Acs.2.20 gts; that KH also began digging the earth from the northern side of Acs.2.20 gts. with the help of associates, thereby interfering with the possession of the plaintiff over the plaint schedule property; KH had removed earth worth Rs.1,00,000/- and is proclaiming that he would occupy the entire extent of Rs.2.20 gts. forcibly; and therefore, his title may be declared for undivided half share in the said land of Acs.2.20 gts. in Sy.No.733 and a perpetual injunction be granted.
9. KH/defendant in OS.No.10 of 2001 filed a written statement stating that the suit is not maintainable for non- joinder of the co-owner Rajia Begum and also Narala Kethamma. He denied that plaintiff and his brother Mohd. Nazir Ahmed were joint owners and possessors of the southern Acs.5.04 gts. in Sy.No.733 of Nalgonda Revenue Village, or that Narala Kethamma purchased an extent of Acs.2.20 gts. on the northern side of the land of Acs.3.16 gts belonging to KH. He denied knowledge of OS.No.451 of 1971 and also stated that there was no consent decree against him in the said suit. He further stated that he had no knowledge about the entries made by Revenue authorities in the Faisal Patti for the year 1975-76 deleting an extent of Acs.2.20 gts. from his holding and pleaded that although the Mandal Revenue Officer had issued passbook and title deed to plaintiff, the said act will not bind him. He further stated that he came to know for the first time about the wrong entries in the Revenue records in the year 1994 and approached the Mandal Revenue Officer, Nalgonda for rectification of entries; after enquiry, the Revenue authorities restored the extents in his account; that Narala Kethamma purchased Acs.2.20 gts. from Mohd. Khasim Ali, the brother of Mohd. Basheer Ahmed, who is the father of the plaintiff; that he never lost possession over the extent of Acs.3.16 gts. at any time; that in Sy.No.733, each of the five sons of Mohd. Ibrahim had a 1/5th share and each is entitled to Acs.1.28 gts. therein; that in 1960, he purchased the notional share of his junior paternal uncle viz., Gulam Rasul of an extent of Acs.1.28 gts. and obtained a decree OS.No.95 of 1963 in his favour; thus, he became the owner of extent of Acs.3.16 gts. in Sy.No.733; that Narala Kethamma purchased Acs.2.20 gts. from Mohd. Khasim Ali and Mohd. Nazir Ahmed under an agreement of sale; and that the plaintiff is not entitled to the relief of declaration of title and injunction in respect of Acs.2.20 gts. in Sy.No.733.
THE ISSUES FRAMED IN O.S.NO.10/2001
10. The Court below framed the following issues :
“1. Whether Narala Kethamma purchased Ac.2-20 gts. from defendant or from Khasim Ali and Nazeer Ahmed ?
2. Whether defendant purchased the notional share of late Gulam Rasool in Sy.No.733 to an extent of Ac.1-28 gts. in 1960?
3. Whether the decree in OS.No.451/1971 is not binding on the defendant?
4. Whether Ac.5-04 gts. in Sy.No.733 was wrongly recorded in the name of Nazeer Ahmad and he was not entitled for that much of land?
5. Whether plaintiff and Razia Begum have been in possession and enjoyment of Ac.5-04 gts. in Sy.No.733?
6. Whether plaintiff is entitled for the declaration of title and injunction as the alternative relief of possession?
7. Whether the suit is bad for non-joinder of necessary parties?
8. Whether plaintiff is entitled for mesne profits?
9. To what relief?”
THE PLEADINGS IN O.S.NO. 36 OF 2001
11. OS.No.31 of 2001 is filed by the plaintiff against nine defendants for partition of the plaint schedule property and for allotment of 53/96th share therefrom to him. The subject matter of this suit are five items including an extent of Acs.8.80 gts. in Sy.No.733 comprising of the property which is the subject matter of OS.No.10 of 2001.
12. After filing of OS.No.10 of 2001, the plaintiff filed OS.No.31 of 2001 contending that these properties were the joint properties of himself and his brother Mohd. Nazir Ahmed; that Rajia Begum, W/o.Mohd. Nazir Ahmed, had executed a sale deed dt.16.03.2001 in favour of defendant Nos.7 to 9 therein purporting to sell the entire area in Sy.No.727 to them; that she had only 3/48th share in the said area and is not competent to sell the entire area in the said survey number. He further contended that the sale deed does not bind him or defendant Nos.2 to 5.
13. Defendant Nos.1 to 3 and 7 to 9 remained ex parte.
14. Defendant Nos.4 and 5 filed written statement admitting the plaint contents.
15. KH, 6th defendant in OS.No.31 of 2001, filed a written statement opposing the suit claim. He contended that the plaint schedule properties are not the joint properties of plaintiff and his late brother Mohd. Nazir Ahmed as contended by plaintiff; that they were previously the joint properties of plaintiffs’ father Mohd. Basheer Ahmed and his four other brothers; that plaintiff and defendant Nos.1 to 5 put together are entitled to only Ac.1.04 gts. in Sy.No.730; that 6th defendant is in possession of Ac.0.27 gts. therein apart from an extent of Acs.3.16 gts. in Sy.No.733. He also contended that plaintiff and defendant Nos.1 to 5 put together were entitled to only Acs.1.28 gts. in Sy.No.733 but with an ulterior motive and to knock away the excess area, the plaintiff is making a false claim. He further pleaded that disputes arose between father of the petitioner, Mohd. Basheer Ahmed and his brothers; that there was an arbitration by Mohd. Badruddin Saheb and Mohd. Akram Ali Saheb and they had prepared a report dividing the properties into five shares; after the said partition also the properties continued in the name of Mohd. Nazir Ahmed in the Revenue records; that the arbitration award was signed by Mohd. Nazir Ahmed, Mohd. Khasim Ali, Gulam Rasul apart from Mohd. Badruddin Saheb; subsequently KH purchased 1/5th notional share of Gulam Rasul, obtained a consent decree in OS.No.95 of 1963 against him, and pursuant thereto he is in possession of Acs.9.02 gts., including Acs.3.16 gts. in Sy.No.733; and therefore prayed that the suit be dismissed.
THE ISSUES FRAMED IN O.S.NO.31/2001
16. The trial court framed the following issues :
“1. Whether sixth defendant purchased the 1/5th notional share of Gulam Rasool Saheb and later a consent decree in OS.No.95 of 1963 for an extent of Ac.9.02 gts., in Sy.Nos.727, 728, 729, 730, 731 and 733?
2. Whether sixth defendant sold Ac.2.20 gts. in Sy.No.733 to Smt. Narala Kthamma and suffered a consent decree in OS.No.451/1971 on the file of the District Munsiff Court, Nalgonda ?
3. Whether plaintiff and his late brothers Nazir Ahmed held suit areas demarcated in blue colour shade in plaint in equal share in joint?
4. Whether plaintiff is entitled for partition of plaint schedule lands in the shares described in the plaint?
5. To what relief?”
PROCEEDINGS IN THE TRIAL COURT
17. On a joint memo filed by both parties, the suits were clubbed together and a joint trial was conducted by recording evidence in OS.No.31 of 2001. The plaintiff examined PWs.1 and 2 and marked Exs.A.1 to A.9. The defendants examined DWs.1 to 5 and marked Exs.B.1 to B.7.
18. By judgment and decree dt.15.04.2008, both suits were dismissed.
19. The trial court held that Exs.A.1 to A.7 show that the properties which were subject matter of OS.No.31 of 2001 were already divided among the sons of Mohd. Ibrahim; Exs.A.2/Faisal Patti and A.3/Pahani, clearly show that the properties were divided and the name of Mohd. Nazir Ahmed, the brother of the plaintiff, was recorded separately; that plaintiff as PW.1 himself admitted that Mohd. Nazir Ahmed had sold away land in Sy.Nos.727, 728, 729, 730, 731 and 733 in favour of KH, which shows that previously the properties were already partitioned between brothers of the plaintiff’s father and also between plaintiff and his brother; that KH’s name is separately recorded as the actual cultivator in respect of lands in Sy.Nos.727, 728, 729, 730 and 733; therefore, the properties which were subject matter of OS.No.31 of 2001 were no longer joint family properties between plaintiff and his late brother Mohd. Nazir Ahmed/Defendant Nos.1 to 5; that KH purchased 1/5th notional share of Gulam Rasul in an extent of Acs.9.02 gts. in Sy.No.727, 728, 729, 730, 731 and 733; that KH is in possession of an extent of Acs.3.16 gts. in Sy.No.733 as can be seen from pattedar passbook/Ex.B.1 issued to him; that Narala Kethamma purchased the property of Acs.2.20 gts. from Mohd. Khasim Ali, the brother of plaintiff’s father Mohd. Basheer Ahmed and not from KH; that contention of plaintiff that plaint schedule properties in OS.No.31 of 2001 were purchased by his father Mohd. Basheer Ahmed in the name of his brother Mohd. Nazir Ahmed is not correct; and therefore, the suits are liable to be dismissed.
PROCEEDINGS BEFORE THE LOWER APPELLATE COURT
20. Aggrieved thereby, the plaintiff filed AS.No.32 of 2008 against the judgment and decree in OS.No.31 of 2001 and AS.No.33 of 2008 against the judgment and decree in OS.No.10 of 2001.
21. By common judgment dt.28.01.2011, both these appeals were dismissed.
22. The appellate court confirmed the findings of the trial court. It noticed that the plaintiff as PW.1 admitted in his cross-examination that during his lifetime, his elder brother Mohd. Nazir Ahmed had sold Acs.3.16 gts. of land in Sy.No.733 and another Acs.3.28 gts of wet land in Sy.No.727, 729, 730, 731 and 733 in favour of KH and he had given his consent for sale of those lands to his brother Mohd. Nazir Ahmed. It pointed out that plaintiff has not explained why he allowed or permitted the elder brother to sell his properties, if according to him, he had a half share in the properties jointly along with his brother. The lower appellate court also held that the evidence of Narala Kethamma (DW.4) and DW.3, the son of Mohd. Khasim Ali, proved that the plaint schedule properties in OS.No.31 of 2001 were not joint family properties of plaintiff and his elder brother Nazir Ahmed; that KH had purchased 1/5th notional share of Gulam Rasul which is an extent of Acs.9.02 gts. in Sy.Nos.727, 728 to 731 and 733; that Ex.B.1/Pattedar passbook and title deed show that KH was in possession and enjoyment of Acs.3.16 gts. and he did not sell any land to Narala Kethamma; and therefore, there was no merit in the appeals.
23. Challenging these, the present appeals have been filed by plaintiff.
24. Heard Sri K.Mahipathi Rao, Counsel for the appellants and Sri M.A.K.Mukheed for KH (sole respondent in S.A.No.750/2012 and 6th respondent in S.A.No.754/2012 ) and Sri Mohd.Amjad Ali Khan, for R7-9 in S.A.754/2012).
CONTENTIONS OF COUNSEL FOR PARTIES HEREIN
25. The principle contention of counsel for appellants is that both courts below erred in holding that there was a prior partition among the sons of Mohd. Ibrahim; that both courts ignored Ex.A.6/court decree in OS.No.451 of 1971 which showed that land was sold by KH to Narala Kethamma; that the sales by 1st defendant in favour of defendant Nos.7 to 9 were questioned in the plaint in OS.No.31 of 2001 and this was not considered by both the courts below; and that detailed written submissions made by appellant were not considered by the appellate court.
26. On the other hand, the counsel for 6th respondent refuted these contentions. He submitted that the contentions of the appellant are not tenable, that both the courts below had considered the evidence on record and have given valid reasons for dismissing the suits filed by plaintiff, and the concurrent findings of fact of both the courts below are not liable to be interfered with in exercise of jurisdiction of this court under Section 100 CPC.
27. I have noted the submissions of both sides.
CONSIDERATION OF SUBMISSIONS OF COUNSEL FOR PARTIES
28. As can been seen from the pleadings of appellant/plaintiff, his contention is that the properties which are subject matter of OS.No.31 of 2001 are the joint properties of himself and his brother Mohd. Nazir Ahmed and on the death of his brother, he is entitled to 53/96th share therein.
29. The contention of KH is that the suit schedule property in OS.No.31 of 2001 was purchased by his grandfather Mohd. Ibrahim who had five sons viz., Mohd. Basheer Ahmed, Mohd. Jamaluddin Saheb, Gulam Rasul Saheb, Mohd. Rahmathulla Saheb and Mohd. Khasim Ali, apart from five daughters; that the plaintiff and his brother Mohd. Nazir Ahmed are the sons of Mohd. Basheer Ahmed, while KH is the son of Mohd. Jamaluddin; that there was a partition of family properties in the year 1957 itself by arbitrators viz., Mohd. Badruddin Saheb and Mohd. Akram Ali Saheb; that the arbitrators divided the properties into five shares; but in the Revenue records, the name of Mohd. Nazir Ahmed continued; and that KH purchased 1/5th notional share of Gulam Rasul and also obtained a consent decree in OS.No.95 of 1963, pursuant to which he obtained possession of Acs.9.02 gts. in Sy.Nos.727 to 731 apart from an extent of Acs.3.16 gts. in Sy.No.733.
30. Both the courts below have categorically held that Exs.A.1 to A.7, particularly Ex.A.2/Faisal Patti for the year 1963-64 and Ex.A.3/Pahani for the year 1964-65, show that the properties were already separated among the five sons of Mohd. Ibrahim; that they also indicate that some extents were shown in the name of Mohd. Nazir Ahmed, one of the brother of the plaintiff; that the plaintiff as PW.1 admitted that Mohd. Nazir Ahmed, during his lifetime had already sold away the land in Sy.Nos.727, 728, 729, 730, 731 and 733 in favour of KH; that Mohd. Nazir Ahmed died on 08.02.1988; that the plaintiff would not have permitted such a sale by Mohd. Naseer Ahmed if he had a half share in the said properties; that this conduct of the plaintiff itself shows that the properties were not joint properties and had already been divided. As the sale of the properties by Mohd. Nazir Ahmed in favour of 6th defendant had occurred prior to the death of Mohd. Nazir Ahmed on 08.02.1988 and the plaintiff had filed the present suits in the year 2001, i.e., more than twelve years thereafter, I am of the opinion that the concurrent finding of both the courts that the properties were not joint properties of plaintiff and his brother, is not liable to be interfered with. The acquiescence of the plaintiff to sale by his brother Mohd.Nazir Ahmed estops him from asserting that as on date of filing of the suit, the properties were still joint properties. It is also on record that Rajia Begum, the widow of Mohd. Nazir Ahmed had given an affidavit in OS.No.10 of 2001 admitting the contention of KH that an extent of Acs.2.20 gts. which was sold to DW.4, Narala Keetamma was in fact sold by Mohd. Nazir Ahmed but not by KH. Both the courts have held that this extent of Acs.2.20 gts. in Sy.No.733 does not form part of Acs.3.16 gts. in the possession of KH and that the pattedar passbook and title deed issued to KH continues to show the extent owned by him as Acs.3.16 gts. They have also noticed that the Revenue records were initially amended deleting the said extent from the holding of KH, but they were subsequently rectified by the Mandal Revenue Officer and the above extent was restored to the holding of KH by orders dt.04.06.1997. This action of the Mandal Revenue Officer has also not been challenged by plaintiff in any forum. Therefore, the plaintiff is deemed to have acquiesced with the decision of the Mandal Revenue Officer that the holding of KH continues to be Acs.3.16 gts. and not Ac.0.36 gts. As regards the sales made by Rajia Begum in favour of defendant Nos.7 to 9 are concerned, although plaintiff has challenged the same in the plaint, in view of the finding of both the courts below that there was already a partition between plaintiff and his brother Mohd. Nazir Ahmed (on account of the admission by plaintiff that he had given consent to the sale of the lands by his brother in favour of KH), it has to be held that the sale deed dt.16.03.2001 executed by Rajia Begum in favour of Defendant Nos.7 to 9 in OS.No.31 of 2001 was from the property which belonged to her husband Mohd. Nazir Ahmed exclusively. So plaintiff cannot question them.
31. In this view of the matter, I do not find any error in the judgments passed by the court below dismissing the appeals and suits filed by appellant/ plaintiff. I also do not find any question of law much less any substantial question of law in these appeals.
32. They are accordingly dismissed but in the circumstances, without costs.
JUSTICE M.S.RAMACHANDRA RAO
Date : 21-01-2014 Ndr/* LR COPY TO BE MARKED : YES/NO
B/o.
Ndr/* THE HON’BLE SRI JUSTICE M.S.RAMACHANDRA RAO SA.No.750 of 2012 and SA.No.754 of 2012 Date: 21-01-2014 Ndr/*