IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 302 OF 2015(PAR) BETWEEN:
NOOR JAHAN, W/O S.A.RIYAZ, AGED ABOUT 40 YEARS, R/O MEDARKERI, SHIKARIPURA TOWN – 577427 SHIKARIPURA TALUK, SHIVAMOGGA DISTRICT.
(BY SRI.P.N.HARISH, ADVOCATE) AND:
1. GULJAR W/O NAUSHAD AGED ABOUT 37 YEARS, R/O CHOWDERAKERI, SHIKARIPURA TOWN – 577427, SHIKARIPURA TALUK, SHIVAMOGGA DISTRICT.
2. SHAHIDA BANU, W/O ABDUL SAYEED, AGED 47 YEARS, R/O KUMBARAGUNDI, SHIKARIPURA TOWN-577427, SHIKARIPURA TALUK, SHIVAMOGGA DISTRICT.
…APPELLANT …RESPONDENTS (BY SRI.HARISH KUMAR, ADVOCATE FOR R1; R2 SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD:4.12.2014 PASSED IN R.A.NO.206/2011 ON THE FILE OF THE C/C PRESIDING OFFICER, FAST TRACK COURT, SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD:27.7.2011 PASSED IN O.S.NO.31/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, SAGAR AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is plaintiff’s second appeal questioning the judgment and decree of the Fast Track Court at Sagar dated 4.12.2014 passed in R.A.No.206/2011 confirming the judgment and decree dated 27.7.2011 passed in O.S.No.31/2007 by the learned Senior Civil Judge and JMFC at Sagar.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The facts leading to this appeal are as follows:
The present appellant-plaintiff filed the suit for declaration to declare that plaintiff is having 1/3rd share in the suit schedule property. In the alternative she also prayed to allot 1/3rd share by effecting partition by metes and bounds. The case of the plaintiff is that herself and defendants are sisters. Her father was a Gate Keeper in Town Municipal Toll Gate. He died while he was in service. The first daughter was given appointment in TMC, Shikaripur. Her father had constructed a house unauthorisedly in the schedule property. After his death the Town Municipal Council, Sagar, had issued notice to his daughters to pay the upset price for the suit schedule property for regularization of their unauthorized occupation. Plaintiff and defendant No.1 had deposited the amount demanded by the Town Municipality. Pursuant to the deposit, the authorities had regularized unauthorized occupation.
The plaintiff further contended that sale certificate was granted in the name of defendant No.1 on behalf of all legal heirs of her father, Syed Hussein. Consequently, the first defendant’s name was mutated in the Municipal records. But, herself along with defendants had succeeded to the estate belonging to her father. She is in joint possession and enjoyment of the suit schedule property with the defendants. It was her father who had constructed the house in the suit schedule property and she had planted coconut trees around the house. Though the schedule property stands in the name of the first defendant, plaintiff and the defendants have got equal right and share in the schedule property. Since plaintiff demand for her legitimate share was not yielded by the first defendant, she is constrained to file the suit for partition.
On receipt of suit summons, the contesting defendant No.1 appeared and contested the proceedings by filing the written statement. She stoutly denied the entire averments made in the plaint and took up a specific contention that the suit schedule property is the self acquired property and as such the same is not available for partition. Defendant No.1 also specifically averred that her father did not construct the house. On the contrary, it is defendant No.1 who constructed the house and that the grant was made in her individual capacity and as such the suit schedule property is not available for partition.
Based on the rival contentions, the Court below framed the following issues:-
“1. Does the plaintiff proves that her father late Syed Hussein was residing by constructing a house in the suit property un-authorisedly as an unauthorized occupant of the same?
2. Does the plaintiff proves that the Town Municipality Sagar has granted the sale certificate in the name of the 1st defendant, in respect of the suit schedule property for and on behalf of all the legal heirs of late Syed Hussein?
3. Does the plaintiff proves that herself and the defendants, after the death of late Syed Hussein jointly succeeded to the suit schedule property and are in joint possession and enjoyment of the same?
4. Does the 1st defendant proves that the suit schedule property is her self acquired property?
5. Does the plaintiff proves that she has 1/3rd share in the suit schedule property?
6. Whether the Plaintiff is entitled for the relief of declaration?
7. Whether the plaintiff is entitled for the relief of partition?
8. Whether the plaintiff is entitled for mesne profits, if so, at what rate and from whom?
9. To what decree or order?”
The plaintiff in support of her contention examined herself as P.W.1 and one independent witness as P.W.2 and in support of her contention produced documentary evidence vide Exs.P1 to P15. On behalf of defendants, defendant No.1 got examined as D.W.1 and one witness as D.W.2 and got marked Exs.D1 to D14.
The Trial Court having examined the oral and documentary evidence recorded a categorical finding that it was defendant No.1 who was in unauthorized occupation of the suit schedule property. The sale certificate as per Ex.D1 was issued in favour of defendant No.1 in her individual capacity. The trial Court has culled out the categorical admissions made by P.W.1 admitting that she had not contributed any amount towards the grant. The Court below having examined the rebuttal evidence proceeded to dismiss the suit holding that the suit schedule property cannot be deemed to be the joint family property and the same is not available for partition since the plaintiff along with defendants cannot claim to be the tenants in common and accordingly, dismissed the suit.
Being aggrieved by the same, the plaintiff preferred R.A.No.206/2011 on the file of the Fast Track Court, Sagar, raising several grounds. The lower appellate Court on re-appreciation of the evidence on record proceeded to dismiss the appeal on the ground that there is absolutely no evidence to indicate that her father late Syed Hussein was residing by constructing the house in the suit schedule property unauthorisedly. The appellate Court on re-appreciation of evidence was of the view that the sale certificate issued in the name of defendant No.1 was in individual capacity of defendant No.1 and the same would not enure to the benefit of the plaintiff. Based on the above said findings, the appeal was dismissed. Against the said concurrent findings, the plaintiff is before this Court.
4. The counsel for the appellant-plaintiff would vehemently argue that both the Courts have erred in not examining the admissions made by defendant No.1 in the cross-examination. The fact that all the daughters were residing in the same house has been totally over looked by the Courts below and have misread the evidence available on record and as such the judgments and decrees of the Courts below suffer from serious infirmities.
5. Having heard the counsel for the appellant- plaintiff and having gone through the judgments of both the Courts below, this Court is of the opinion that the contention of the plaintiff that her father was residing by constructing the house in the suit schedule property unauthorisedly is not supported and corroborated by any documentary evidence. Though the plaintiff has contended that the grant made in favour of the first defendant would enure to the benefit of all the family members, the same is not supported by cogent and clinching evidence. This Court has gone through the records and on perusal of Ex.P1 which is the death extract, it is clearly evident that father of plaintiff died on 30.4.1976. It is also elicited in the oral evidence of plaintiff and defendants that their father during his life time was in fact serving at Shikaripura and that there is absolutely no evidence to indicate that their father had constructed the house in the schedule property much prior to 1976 and that their father was in unauthorized occupation of the suit property. This Court also takes judicial note of one material aspect i.e. grant certificate issued in favour of defendant No.1 which is dated 15.8.2001. Admittedly, the sale certificate as per Ex.D1 is issued in favour of defendant No.1. Further, both the Courts below have taken note of the admissions given by the plaintiff to the effect that she has not contributed any amount towards the grant. The rebuttal evidence adduced by defendant No.1 also indicates that it is she who has paid the tax. Further, on perusal of Ex.D4, which is the katha certificate issued by the TMC Authorities, it is clearly evident that the suit property exclusively stands in the name of defendant No.1. Further, Ex.D1 is corroborated by the independent witness D.W.2. The plaintiff has not been able to elicit any vital aspects in the cross-examination. This Court also has to take note of the fact that the parties are Mohammedans and that there is no concept of jointness among them. Even otherwise, the family of appellant and respondents did not own any other properties. Further, it is not their case that their family had joint family nucleus with surplus income which was invested to secure the grant. Therefore, this Court is of the view that the relief sought for by the plaintiff that the grant was infact made in favour of her father and same would enure to the benefit of all the elder family members is alien to the present case on hand since the parties are Mohammedans. Muslim Law does not recognize the theory of representation and therefore, there can be no presumption that the acquisition of property by one member is for the benefit of entire family. Only in exceptional cases if a Mohammedan makes out a case of partnership, agency or fiduciary relationship, that he can contend that property granted in the name of one enure to the benefit of all. In the present case, it is not case of plaintiff asserting about said facts.
Hence, the theory of enuring to their benefit would not arise in the present case on hand since the right was created for the first time in 2001 and there is no evidence to indicate that it was the father of plaintiff and defendants who was in unauthorized occupation of the suit property and after his death the first defendant had moved an application seeking grant of the same on behalf of family members. The Courts below have meticulously examined material on record and having taken note of the fact that there is long gap between the death of father of the parties and the grant made in favour of defendant No.1, have rightly dismissed the suit.
6. The second contention raised by the counsel for the appellant is that the lower appellate Court has erred in not considering the additional evidence and the same being the final fact finding authority, the impugned judgment suffers from serious infirmities and the same would give raise to substantial question of law in the present case.
On perusal of the judgment and decree of the lower appellate Court, it could be seen that the documents sought to be produced by the appellant have no relevancy to the lis between the parties. The Appellate Court on meticulous examination has come to the conclusion that the said documents are not at all helpful to decide the title of parties to the suit and the documents are not at all necessary for effective adjudication and has further proceeded to record a categorical finding that even in absence of said documents the Court is in a position, to effectively adjudicate the real controversy between the parties based on the material evidence on record. This reasoning appears to be just and reasonable and in accordance with law. In that view of the matter, the contention of the counsel for the appellant that non- consideration of additional evidence by providing an opportunity to the appellant to lead evidence is not tenable and the lower appellate Court while re- appreciating the entire evidence on record has rightly dealt with the application filed for production of additional evidence and as such the conclusion arrived at by it would not warrant any interference by this Court.
7. In the result, the appeal is dismissed confirming the judgment and decree dated 4.12.2014 of the Fast Track Court at Sagar in R.A.No.206/2011.
Sd/- JUDGE *alb/-