Amanullakhan and Others vs Abdulgani and Others

S.N. Satyanarayana, J.

The plaintiffs in O.S. No. 30/1999 on the file of Addl. Civil Judge (Sr. Dn.), Haveri, have come up in this second appeal impugning the concurrent finding rendered by both the Courts below in dismissing the suit of the plaintiff and confirming the same in R.A. No. 61/2007 by the lower appellate Court.

The brief facts leading to this second appeal are that the appellants 1 to 5 herein are plaintiffs in the original suit. They are children of deceased Nekamahammad and his wife Shahajadbi, that their parents had another son by name Gulamhyderkhan. Plaintiff''s father Nekamahammad is said to have died around 50 years prior to filing of the suit in 1999, his widow Shahajadbi died in the year 1995 and their another son Gulamhyderkhan is said to have died on 5.11.1996.

The original suit is filed by the plaintiffs for the relief of declaration that they are the owners of suit schedule property and they are entitled to seek partition of the same among themselves. Hence they sought for partition and separate possession of their respective share in the suit property. In the said suit they alternatively prayed that if their right to seek partition of suit property is not accepted, to declare them as joint owners of the suit property, on the ground that, they have succeeded to suit property of their parents, along with their brother Gulamhyderkhan.

In the original suit the 1st defendant is purchaser of suit schedule property in a public auction which has taken place on 22.11.1981. The defendants 2 and 3 are formal parties in the said suit and defendants 4 and 5 are persons who are said to be the contractors who have taken the work of construction on the suit schedule property on behalf of the auction purchaser defendant No. 1.

The further undisputed facts are that the deceased Gulamhyderkhan, brother of plaintiffs 1 to 5 was excise contractor. It is stated that he was due to the Government in a sum of Rs. 8,89,975/- in respect of which a proceedings was initiated, in which the suit schedule property was attached as the same was standing in the exclusive name of Gulamhyderkhan. The suit schedule property was attached in a proceedings initiated against him for recovery of arrears due and same was brought to auction. The auction was conducted on 22.11.1981 wherein the 1st defendant Abdulgani purchased the suit property for valuable consideration and was put in possession of the same.

Thereafter in a proceedings before the Karnataka Appellate Tribunal, auction sale was confirmed and sale certificate of suit property was issued in favour of 1st defendant Abdulgani by order dated 17.10.1989. When matter stood thus, the present suit in O.S. No. 30/1999 was filed on 8.4.1999 for the relief of declaration and injunction alternatively for partition and separate possession of suit property among the plaintiffs. In the said suit the Court below proceeded to frame the following issues.

ISSUES

Whether plaintiffs prove that they are the absolute owners of suit properties and that defendants No. 1 and 2 by playing fraud on deceased Gulam Haidarkhan illegally created false documents on 22.11.1981, in favour of defendant No. 1?

Whether plaintiffs prove that they have got 58/72nd share in suit property?

2(a) Whether present suit is barred under section 61 of KLR Act?

2(b) Whether present suit is time barred?

2(c) Whether this Court has no jurisdiction to try present suit?

Whether plaintiffs are entitled for relief of declaration as prayed?

Whether plaintiffs are entitled for relief of possession of suit property as prayed?

Whether plaintiffs are entitled for consequential relief of permanent injunction as prayed?

Whether plaintiffs are entitled for alternative relief of partition as prayed?

Whether plaintiffs are entitled for separate possession of their 58/72nd share?

What order or decree?

In support of the issues which were framed, 2nd plaintiff adduced evidence as P.W. 1, he relied upon several documents which are produced and marked as Exs. P. 1 to P. 22. They are nothing but the death certificate of Gulamhyderkhan, certified copy of the sale deed under which the suit property was sold in favour of the 2nd defendant, certified copy of the assessment extract of various other properties of the family and also that of the suit property which is TMC No. 127 (old No. 110) and the certified copy of the judgment in O.S. No. 16/1994 on the file of Civil Judge, Haveri, which was a suit filed by the plaintiffs 1, 2 and another Gulamhyderkhan seeking recovery of vacant possession of certain agricultural lands situated in Teggihalli village in Savanur taluk and also certified copy of orders passed in other proceedings in support of their claim that the suit property is the property of the plaintiffs.

Per contra, on behalf of defendants, 1st defendant who is the purchaser of the suit property in auction, adduced evidence as DW. 1 and in support of his case he also examined one Uliveppa S/o. Basappa Pampannanavar as DW. 2 who is an officer of 3rd defendant KSFC in the Court below, to substantiate that the suit property is the absolute property of Gulamhyderkhan. In support of this case the defendants produced in all 28 documents which are marked as Exs. D. 1 to D. 28. Among the said documents, relevant documents are Exs. D. 3, 4 and 5 which are TMC extracts showing the suit property as property standing in the name of Gulamhyderkhan in his individual name and D. 6 is the order of Tahasildar to demonstrate that the suit property being the absolute property of Gulamhyderkhan which has come to him in a partition taken place between him and his brothers.

The trial Court on appreciating the pleadings and the evidence available on record proceeded to hold that the suit property was the absolute property of plaintiffs brother Gulamhyderkhan which is allotted to his share in a partition which has taken place between himself and his brothers and thereafter registered exclusively in his name in the revenue records. While doing so, the trial Court also observed that Gulamhyderkhan was due in a sum of Rs. 8,89,975/- to Government towards excise charges and duties, for recovery of the said sum suit property was attached and brought to auction on 22.11.1981 in which the 1st defendant purchased the suit property, the sale in his name is confirmed pursuant to an order passed by the Karnataka Administrative Tribunal on 17.10.1989, as such the plaintiffs failed to establish that the suit property is the property of their father Nekamahammad in which the plaintiffs and their deceased brother Gulamhyderkhan had share. Consequently the suit of the plaintiffs was dismissed. Being aggrieved by the said judgment and decree the plaintiffs preferred R.A. No. 61/2007 on the file of Fast Track Court (District Judge''s Court), at Haveri, wherein the lower appellate Court framed the following points for consideration.

POINTS

Whether the appellants/plaintiffs prove that they are absolute owners of the suit property?

Whether the Civil Court has jurisdiction to try the present suit?

Whether the suit is in time?

Whether the appellants/plaintiffs are entitled for the relief as prayed in the suit?

Whether the judgment and decree of the trial Court is capricious, illegal and calls for interference in this appeal?

To what decree or order?

The lower appellate Court after hearing the learned counsel for the appellant and as well as the respondents, on re-appreciation of the pleadings, oral and documentary evidence available on record proceeded to answer the aforesaid points for consideration in negative against the appellants and thereby confirmed the judgment and decree dated 27.7.2007 passed in O.S. No. 30/1999 by the judgment and decree dated 19.2.2010 passed in R.A. No. 61/2007. With this it is clearly seen that the plaintiffs have failed to establish their right in the suit schedule property in the original suit and as well as in the regular appeal which was filed by them in R.A. No. 61/2007.

As against the concurrent findings of both the Courts below, the present appeal is filed by the appellants contending that both the Courts below have not properly appreciated the pleadings to the effect that the suit schedule property is the absolute property of their father Nekamahammad which after his death was in possession and enjoyment of his widow Shehazadbi who died in the year 1995. That, the suit property was never partitioned and continued to be in joint possession and enjoyment of plaintiffs 1 to 5 and their brother which has not been properly appreciated and the documents produced by them in support of the fact that there was no partition by showing the earlier litigation which were contested by them with reference to other suit properties are also not properly looked into.

After hearing the learned counsel for the appellants and as well as the 1st respondent auction purchaser it is seen that the finding of the trial Court and the lower appellate Court on issues and points for consideration is just and proper for the reason that the father of plaintiffs 1 to 5 died about 50 years prior to the date of suit whereas their mother died in the year 1995 so far as the brother Gulamhyderkhan is concerned, he died on 5.11.1996, which implies that as on the date when the proceedings were initiated by the excise department for recovery of the dues from Gulamhyderkhan, he was very much alive and he has opposed the same by contesting it on merit.

In the said proceedings it is seen that before attaching the suit property and bringing the same to auction, the Government authorities have taken proper care to ascertain that the suit property is exclusively registered in the name of Gulamhyderkhan. In the said proceedings which is initiated against him for attachment of the suit property Gulamhyderkhan never took up a contention that suit property is the joint family property in which his brothers and sisters namely the plaintiffs herein have any share. In the proceedings which was initiated against him for attachment of the said property, he fairly conceded that he is due in a sum of Rs. 8,89,975/- to Government, as such attachment of his property was confirmed by bringing the same to auction in the year 1981. The said auction was challenged by Gulamhyderkhan before the Karnataka Appellate Tribunal by initiating appropriate proceedings. Even in the said proceedings he had not taken any contention that the suit property is the joint family property. Therefore the entire proceedings with reference to the suit schedule property has reached finality on 17.10.1989 when sale was confirmed in favour of the 1st defendant. Therefore nothing survives for plaintiffs herein for filing a suit for partition of the very same property after sale certificate is issued in favour of the 1st defendant.

In that view of the matter both the Courts below having rightly appreciated the material available on record have rendered a finding on the issues and as well as the points for consideration in holding that the plaintiffs have not made out any grounds to consider their prayer and accordingly dismissed the same and confirmed in the regular appeal.

Hence, this Court find no justifiable grounds are made out to admit this appeal in as much as no substantial questions of law arise for consideration in this second appeal. Accordingly this appeal is dismissed.

Learned Government pleader Smt. Veena Hegde, is permitted to file memo of appearance for 2nd respondent, within two weeks.