Hajaratabi and Others vs Bibijahira and Others

B. Veerappa, J.—This is a defendants'' Regular Second Appeal against the judgment and decree dated 19.07.2014 made in RA No. 149/2013 on the file of the II Additional Senior Civil Judge and Addl. MACT, Dharwad, itinerary court at Kalghatagi, confirming the judgment and decree dated 20.06.2013 made in OS No. 18/2008, on the file of the Civil Judge and JMFC, Kalghatagi, decreeing the suit of the plaintiffs declaring that the plaintiffs are entitled to 1/6th share each in the suit schedule properties and defendants 1 to 8 are entitled to have 2/3rd share together (being 1/3rd share of Imamsab and 1/3rd share of Mahibubsab) in the suit schedule properties and the suit against the defendant No. 9 is dismissed.

Respondent Nos. 1 and 2, who are the plaintiffs, before the trial court, filed the suit for partition and separate possession contending that the plaintiffs are the daughters of deceased Goususab and the deceased Goususab had two sons by name Imamsab who died on 30.07.2005 and another son by name Mahiboobsab, who died on 16.08.1990. The present defendant Nos. 1 and 2 are the wives of the said deceased Imamsab and Mahiboobsab. The defendant Nos. 3 to 5 are the sons and daughters of the deceased Imamsab and defendant Nos. 6 to 8 are the sons and daughters of deceased Mahiboobsab.

The suit schedule properties originally belonged to the deceased Goususab, who died on 05.01.1976, leaving behind the plaintiffs and defendants as his legal heirs. The plaintiffs and the defendants are entitled to have a share in the suit schedule properties. After the death of Goususab, defendant Nos. 1 and 2 gave an application to the revenue authority to enter the name of defendant Nos. 1 to 8 only in the revenue records by deleting the name of Goususab. Accordingly, the names of defendant Nos. 1 to 8 have been entered in the revenue records as per M.R. No. 8/2003-04. The defendant Nos. 1 to 8, by colluding with each other, have filed false application and made false representation and were successful in getting their names entered as the only legal heirs of deceased Goususab. The plaintiffs are the legal heirs of deceased Goususab have approached the defendants Nos. 1 and 2 on 01.08.2007 seeking partition and separate possession of their share by metes and bounds. But, the defendant Nos. 1 and 2 have refused the prayer of the plaintiffs and therefore, the plaintiffs filed a suit claiming that they are entitled to 1/6th share each in the suit properties. They also contended that a portion of the agricultural land was acquired by defendant No. 9 and some compensation amount has been withdrawn by defendant Nos. 1 to 8, but the plaintiffs are also entitled to get the compensation amount to the extent of their share. Therefore, they filed the suit.

After service of summons, defendant Nos. 5 and 8 remained absent and were placed ex parte. Defendant Nos. 1, 3, 6 and 7 have entered their appearance through their advocates. The suit against defendant No. 4 is dismissed for default. During the pendency of the proceedings, defendant No. 2 expired. The plaintiffs have filed a memo stating that the legal representatives of the deceased defendant No. 2 are already on record. The defendant No. 9, though appeared through learned Addl. Govt. Pleader, has not filed his written statement. The defendant No. 1 has filed written statement. Defendant Nos. 3, 4, 6 and 7 have filed a memo adopting the written statement filed by defendant No. 1.

The contesting defendants 1, 3, 4, 6 and 7 have denied the plaint averments and contended that the suit against defendant No. 9 fails for want of compliance of Section 80 of the Civil Procedure Code, 1908. The plaintiffs have not valued the suit reliefs properly and the Court fee paid thereon is insufficient. There is no cause of action for the plaintiffs to file this suit. The plaintiffs are not the legal heirs of deceased Goususab. They have no right to claim any partition in the suit property. The defendant Nos. 1 to 8 are the only legal heirs of the deceased Goususab Mallikanavar and they alone are entitled to claim the properties. The plaintiffs have not challenged the mutation entries before the competent revenue authorities, which has attained finality. Hence, they prayed for dismissal of the suit with cost.

Based on the above pleadings, the trial court framed the following issues:

(i) "Whether the plaintiffs prove that they are entitled for partition and separate possession of their share in the suit schedule properties? If so, what is the extent of their share?

(ii) What order/decree?"

In order to establish their case, the plaintiff No. 1 was examined as PW-1 and also examined one Hatelsab as PW-2 and got marked Exs. P-1 to 10(a). On the other hand, the defendants have not adduced any evidence nor produced any documents.

After considering the entire material on record, the trial court recorded a finding that the plaintiffs have proved that they are entitled for partition and separate possession of their share in the suit schedule properties to an extent of 1/6th share. Accordingly, the suit came to be decreed granting 1/6th share each to the plaintiffs in the suit schedule properties and defendants 1 to 8 are entitled to have 2/3rd share together (being 1/3rd share of Imamsab and 1/3rd share of Mahiboobsab) in the suit schedule properties and the suit against the defendant No. 9 is dismissed.

Aggrieved by the said judgment and decree of the trial court, only defendant Nos. 1, 3, 4, 5, 6, 7 and 8 have filed an appeal in R.A. No. 149/2013 before the II Addl. Senior Civil Judge and AMACT, Dharwad, itinerary court at Kalghatgi, who after hearing both the parties, by judgment and decree dated 19.07.2014, dismissed the appeal and confirmed the judgment and decree of the trial court.

Against the said concurrent findings of fact recorded by the Courts below, the defendants did not deter to prefer regular second appeal, as the last ditch attempt against the plaintiffs.

I have heard the learned counsel for the appellants.

Sri. H.M. Dhangond, learned counsel for the appellants, contended that there was no proper opportunity before the trial court to put forth his case and there was no opportunity even to adduce evidence and cross-examine the plaintiffs'' witnesses and also contended in the written statement, the defendants specifically denied the very relationship between the parties. Therefore, the plaintiffs are not entitled to any reliefs. Therefore, granting 1/6th share to the plaintiffs is without any basis. The lower appellate court has confirmed the same erroneously. Therefore, he sought to set aside the judgment and decree of the courts below.

I have given my anxious consideration to the arguments advanced by the learned counsel for the appellants and perused the entire material on record.

The substance of the plaintiffs'' case is that the plaintiffs are daughters of deceased Goususab and the deceased Goususab had two sons, by name Imamsab and Mahiboobsab. Defendant Nos. 1 and 2 are the wife of deceased Imamsab and Mahiboobsab, respectively. Defendant Nos. 3 to 5 are the sons and daughters of the deceased Imamsab. Defendant Nos. 6 to 8 are the sons and daughters of deceased Mahiboobsab.

The suit schedule properties originally belonged to the deceased Goususab, who died leaving behind the plaintiffs and defendants as his legal heirs. Defendant Nos. 1 and 2, after the death of Goususab, had made an application to the revenue authorities to enter the name of defendant Nos. 1 to 8 ignoring the plaintiffs. Therefore, the plaintiffs have approached defendant Nos. 1 and 2 seeking partition. He refused for the same. Therefore, they were constrained to file the suit.

Defendant Nos. 1, 3, 4, 6 and 7 filed written statement and other defendants have not filed any written statement and denied the plaint averments and contended that they are not legal heirs of deceased Goususab. The plaintiffs, in order to prove that they are the legal representatives of deceased Goususab and they are entitled to a share, they have adduced evidence of PW-1 and another witness as PW-2 and produced documents as Exs. P-1 to 10(a).

Ex. P-1 is the Bendigen Gram Sy. No. 29 Utara; Ex. P-2 is the mutation MR. No. 8/2003-04 dated 15.03.2011 receipt; Ex. P-3 is the death certificate of Goususab Rajesab Malikanavar; Ex. P-4 is the death certificate of Roshanibi Goususab Malikanavar; Ex. P-5 is the death certificate of Imamsab Goususab Malikanavar; Ex. P-6 is the death certificate of Mehboobsab Goususab Malikanavar; Exs. P-7 & 8 is the notice in Form (U); Exs. P-9(a) to (d) are the four photos; Ex. P-10 is the receipt of Ambika Digital Studio, Hubli and Ex. P-10(a) is the negatives.

In order to disprove the claim of plaintiffs, defendants have not adduced any evidence nor cross-examined PW-2. Except cross-examining PW-1 in part, they have not produced any material documents to prove their defence. The trial court, considering the entire material on record, has recorded a finding that PW-1 has reiterated the entire plaint averments in her affidavit evidence and PW-2 has corroborated the case of the plaintiff. The contesting defendants have not completely cross-examined PW-1 and they have not cross-examined PW-2, inspite of grant of sufficient opportunities. They have not adduced their evidence. They have denied the relationship between the plaintiffs and defendant Nos. 1 to 8 in the written statement, except cross-examining PW-1 in part. In Ex. P-7 dated 15.10.1977, it is stated that Goususab died leaving behind his wife Roshmibi, sons--Imamsab, Mahiboobsab and daughters--Bibijahira, Shanfabi. The contesting defendants have not disputed Ex. P-7. PW-2 has deposed about the relationship between the plaintiffs and defendant Nos. 1 to 8. The evidence of PW-2 remained uncontroverted and therefore, the trial court was of the opinion that the plaintiffs are daughters of Goususab and Roshanbi, as such, they are entitled to have a share in the suit properties. PW-1 in her cross-examination has admitted that an extent of 1 acre 18 guntas was acquired by defendant No. 9. Therefore, the agricultural land available for partition is only 2 acres 28 guntas and therefore, the plaintiffs are entitled to have a share in the compensation amount paid by defendant No. 9 to defendant Nos. 1 to 8. But, the plaintiffs have not furnished the total amount of compensation paid by defendant No. 9. They have not made any prayer for recovery of their share in the compensation amount. The plaintiffs have not made any claim against defendant No. 9. Reserving liberty to the plaintiffs to work out their rights in accordance with law for recovery of their share in the compensation amount, the trial court rejected the claim against the defendant No. 9 and also held that the plaintiffs are the daughters of deceased Goususab and Roshmibi and defendants 1, 3, 4 & 5 are the successors-in-interest of Imamsab son of Goususab and the defendants 6, 7 & 8 are the successors-in-interest of Mahiboobsab son of Goususab. Therefore, the plaintiffs are entitled to a share. Accordingly, the suit was decreed.

On re-appreciation of the entire material on record, the lower appellate court recorded a finding that even though the trial court has not framed an issue with regard to the relationship meet out the contention of the defendants by giving a finding to the effect that the plaintiffs are the daughters of deceased Goususab. Based on Ex. P-7 and evidence of PW-2 held that the plaintiffs are the daughters of the deceased Goususab. The plaintiffs have produced Ex. P-8: certified copy of the Waradi given by the second son of the Goususab by name Mahiboobsab to the Tahasildar, Kalghatagi to enter his name and name of Imamsab as they are the heirs of Goususab.

In Ex. P-8--Waradi and Ex. P-7--notice issued, the names of the present plaintiffs are mentioned as daughters of the deceased Goususab. It can also be seen from Ex. P-7 that both the plaintiffs have put their thumb impression to the said notice. During the course of cross-examination of PW-1, on behalf of the defendants it was suggested that Ex. P-7 is not concerned to this case and PW-1 has specifically denied the said suggestion. It is pertinent to note that in Ex. P-7, it is mentioned that the suit Sy. No. 29, PW-2 has stated that the plaintiffs are the daughters of the deceased Goususab. Inspite of sufficient opportunities, the defendants have not cross-examined PW-2 and the evidence of PW-2 has remained unchallenged. Moreover, in the cross-examination of PW-1 done in part by the defendants, PW-1 has not specifically denied the relationship of the plaintiffs with the deceased Goususab and defendants also. The defendants simply denied that the plaintiffs are the daughters of the deceased Goususab. But, they have not specifically asserted as to whether the plaintiffs are the daughters of whom. The trial court has rightly come to the conclusion that the plaintiffs are the daughters of deceased Goususab.

The plaintiffs being daughters of deceased Goususab will be entitled to get 1/5th share each and defendants 1, 3, 4 & 5 together entitled to 1/3rd share and the defendant Nos. 6 to 8 together are entitled for 1/3rd share in the suit properties. The lower appellate court also recorded a finding that the trial court order-sheet reveals that on 19.02.2009, the learned counsel for the defendants reported the death of defendant No. 2. Further on 25.08.2009, the suit against the defendant No. 2 abetted for non-taking of steps to the legal representatives of the defendant No. 2. On 03.11.2009, the suit of the plaintiffs was dismissed for non-prosecution. Subsequently, as per the order dated 04.08.2010, passed in Misc. No. 5/2009, the suit was restored. On 17.01.2011, the learned counsel for the plaintiffs filed a memo stating that the legal representatives of defendant No. 2 are already on record. Therefore, the contention of the appellants that the death of defendant No. 2 is not depicted in the proceedings before the trial court is not correct.

Another contention of the appellants is that inspite of dismissal of the suit against the defendant No. 5, the trial court decreed the suit against the defendant No. 5. On careful perusal of the order sheet in OS No. 18/2008, the suit against the defendant No. 5 is not at all dismissed, rather as per the order sheet dated 15.02.2011, the defendant No. 5 is placed ex-parte. Therefore, the above said contention of the appellants is not correct.

The lower appellate court specifically recorded a finding that the trial court order sheet reveals that, at the first instance, Inspite of sufficient opportunities, the defendants have not filed written statement. When the case was set down for arguments on merits, the defendants came up with written statement and the trial court allowed the written statement of the defendants. Further, the trial court has provided sufficient opportunities to the defendants for cross-examination of PWs-1 and 2 and to lead defence evidence. Even though, the defendants recalled the PWs-1 and 2 for the purpose of cross-examination, they have not done so. Therefore, no blame is put on the trial court that sufficient opportunity was not given to the defendants. Therefore, the above circumstances clearly indicate that the defendants wanted to drag the matter and nothing else. As already held that the suit schedule property belonged to the deceased Goususab and the plaintiffs are the daughters of the said Goususab and they are legally entitled for 1/6th share each in the suit properties. Therefore, no purpose will be served in remanding the matter to the trial court for fresh disposal, since, the trial court based on the oral and documentary evidence is justified in decreeing the suit, by allotting 1/6th share to each of the plaintiffs in the suit properties and therefore, the lower appellate court dismissed the appeal.

Both the courts below, based on the material on record, recorded a specific finding that inspite of sufficient opportunity given to the defendants, they have not filed written statement. But, when the suit was posted for arguments, at that belated stage, the defendants filed written statement and the trial court allowed the same. Inspite of sufficient opportunity given to them, except cross-examining PW-1 in part, they have not at all cross-examined PW-2 and not lead any evidence on their behalf nor produced any material documents to disprove the claim of the plaintiffs. The said findings recorded by the courts below is based on the order-sheet of the trial court. Therefore, the contention of the learned counsel for the appellants that there was no sufficient opportunity given to the defendants by the trial court as well as by the appellate court cannot be accepted.

Learned counsel for the appellants vehemently contended that the very relationship of the plaintiffs with the defendants has been denied by the defendants in the written statement. Except mere denial in the written statement, the defendants have not adduced any evidence by producing any material documents to prove that the there is no relationship between the plaintiffs and defendants and also, they have not cross-examined PW-2, though they cross-examined PW-1 in part. They have not specifically denied the relationship of plaintiffs with the deceased Goususab and defendants also. It is the specific case of the plaintiffs before the trial court that they are the daughters of deceased Goususab and they have also given genealogy at para 3 of the plaint. The said Genealogy is not at all denied by the defendants by adducing any evidence.

Both the courts, considering the entire material on record, came to the conclusion that they are the daughters of deceased Goususab. Ex. P-8--Waradi and Ex. P-7--notice issued clearly mentions the names of the present plaintiffs as daughters of the deceased Goususab. Therefore, the contention of the learned counsel for the appellants that the relationship was denied cannot be accepted. Both the courts below based on the oral and documentary evidence have come to the conclusion that the plaintiffs are the daughters of deceased Goususab and they are entitled to 1/6th share each in the suit schedule properties. Such a findings of fact, is based on the cogent, material evidence on record. The appellants have not made out any ground to interfere with the same under the provisions of Section 100 of the Code of Civil Procedure, 1908. No substantial questions of law involved in this second appeal.

Accordingly, this Regular Second Appeal is dismissed.