Kaleel Khan vs Khadar Khan and Others

Aravind Kumar, J.—This is a second defendant''s appeal calling in question judgment and decree passed by Senior Civil Judge, Harihara, dated 01.10.2013 in R.A. No. 64/2012 whereunder judgment and decree passed by the Civil Judge, Honnali in O.S. No. 59/2007 dated 14.02.2012 decreeing the suit declaring that plaintiff is having 1/3rd share in suit schedule properties, came to be affirmed.

I have heard the arguments of Sri Ajay Kumar M. learned counsel appearing on behalf of Sri Rudraiah, for appellant/second defendant and Sri S.V. Prakash, learned counsel appearing on behalf of respondent No. 1. Respondent Nos. 2 and 3 are served and unrepresented.

It is the contention of Sri Ajay Kumar, M. learned counsel appearing on behalf of appellant/second defendant that Courts below committed a serious error in decreeing the suit and both Courts erred in not considering the available evidence on record and particularly admission elicited in the cross-examination of P.W. 1 which would indicate that there was a prior partition of suit schedule properties between the members of family and non consideration of Ex. D-1 admitted by plaintiff in his cross-examination has resulted in erroneous judgment and decree being passed by trial Court and affirmed by the First Appellate Court and as such, he prays for framing of Substantial Questions of Law as formulated in second appeal.

He would elaborate his submission by contending that suit was barred by limitation and when plaintiff admits that there was a partition in the year 1985-86 under Ex. D-1 suit filed in the year 2007 is expressly barred by limitation under Article 144 of Limitation Act, 1963, which has prescribed the time limit of 12 years for filing a suit for possession. Hence, he prays for formulating Substantial Question of Law as formulated in the second appeal.

Per contra, Sri S.V. Prakash, learned counsel appearing on behalf of respondent No. 1/defendant No. 1 would support the judgment and decrees passed by Courts below and would also contend that issue of limitation cannot be gone into at this stage and no issue was framed and parties have not tendered their evidence in this regard and as such, question of examining the same in second appeal does not arise. Hence, he prays for dismissing the appeal without formulating Substantial Questions of Law and answering them and seeks for dismissal of appeal at the threshold.

Having heard the learned Advocates appearing for parties and on perusal of judgment and decree passed by trial Court as affirmed by First Appellate Court this Court is of the considered view that there is no Substantial Question of Law involved in this appeal for being admitted, formulated, adjudicated and answered for reasons indicated hereinbelow:

It is not in dispute that plaintiff and defendants are sons of one Sri Nabikhan @ Nabisab, who is said to have expired prior to 1985-86. At the time of his demise he had also left his wife Smt. Budenabi. There is no dispute on this fact. It is also not in dispute that parties are Sunni Mohammadan and are governed by Hanafi law governing Sunni Mohammadans. On death of a Mohammadan intestate whole of his estate are so much of it which has not been disposed of by him by way of Will would devolve on his heirs at the moment of his death and devolution would not be suspended merely because debts were due from deceased. Heirs of Mohammadan succeed to the estate as tenants in common in specific shares. Unlike Hindu law estate of deceased Mohamamdan, if he has died intestate, devolves on his heirs on his death. Under the Mohammadan law birth right is not recognized. Right of a heir apparent or presumption comes into existence for the first time on the death of ancestor and heir/s would not be entitled until then to any interest in the property to which he/they would succeed as a heir if he/they survive the ancestors. There can also be no dispute to the fact that under Mohammadan law possession of co-sharer/co-heir is presumed to that of other co-sharers or co-heirs.

As indicated hereinabove, heirs succeed to the estate as tenants in common in specific shares, when such heirs continue to hold the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of his share, he would be entitled to maintain such a suit and limitation to seek for such relief does not start to run from the date of death of Mohammadan/ancestor, but it would start only from the date of express ouster or denial of title. One of the several co-sharers/co-heirs can be in possession and enjoyment of common property to the exclusion of other sharers/co-heirs without affecting their interest in the property and unless co-sharers/co-heirs in possession does something which operates as an ouster of the interest of co-sharers, the later''s right is not impinged or it cannot be destroyed or to put it differently, limitation would be alive and kicking.

Keeping these principles in mind when facts on hand are examined it would clearly indicate that one of the sons of deceased Sri Nabikhan @ Nabisab namely Sri Khader Khan filed a suit claiming his share i.e., 1/3rd share in suit schedule properties contending inter alia that he along with defendants 1 and 2 are tenants in common and his right to enjoy the property has been denied such there is ouster. Defendants 2 and 3 filed their independent written statement. Defendant No. 2 filed written statement contending inter alia that plaintiffs and defendants 1 and 2 had partitioned the properties much earlier namely when their mother was alive and her share for maintenance had also been given and plaintiff had taken his share and left Joga Village and residing separately at Shimoga along with his family members and as such, he is not entitled to any share. It was also contended that though there was a partition khatha was not changed in the year 1985-86 but later on it was changed and defendants 1 and 2 have also got partitioned the properties and khatha was changed to their respective names in the year 2001. It was also contended that mother of plaintiff and defendants 1 and 2 was residing along with second defendant and he had been taking care of mother, who also expired on 04.06.2000 at Shimoga town. It was further contended that on partition of suit schedule properties namely land bearing Sy. No. 60/2 measuring 2 acres 35.08 guntas which was allotted to their share was sold in favour of third defendant by them under a registered sale deed dated 26.09.2005. Hence, he sought for dismissal of suit.

Third defendant contended that he is a bona fide purchaser from defendants 1 and 2 and had purchased 2 acres 35.08 guntas in Sy. No. 60/2 has been in possession and enjoyment of same and suit in question has been filed by plaintiff in collusion with defendants 1 and 2.

On the basis of pleadings of parties trial Court formulated issues for its determination and held that plaintiff and defendants 1 and 2 are tenants in common and sale deed executed by defendants 1 and 2 in favour of third defendant on 26.09.2005 registered on 27.09.2005 is not binding on him. On conclusion held that plaintiff is entitle for 1/3rd share over suit schedule properties.

While answering issue No. 5 trial Court has also held that third defendant would be at liberty to file a separate suit seeking general partition against his vendors and his claim cannot be decided in the suit in question. In fact, trial Court has noticed that Nabikhan had no daughters and in the event of parties having left out any heirs, judgment and decree passed by it would not be binding on them and also held that even otherwise under the Mohammadan law during the lifetime of primary heirs right of all other heirs gets excluded and rightly so.

Assailing this judgment and decree appeal was preferred by second defendant alone reiterating the plea advanced in the written statement. First Appellate Court after considering the arguments of learned Advocates appearing for parties formulated following points for its consideration:

i. Whether the trial Court erred on fact by holding that the schedule properties were inherited by the parties through Nabikhan and the defendant No. 2 has failed to prove the factum of partition in the schedule properties?

ii. Whether the trial Court committed any error of law in determining the shares of the parties to the suit in the schedule properties?

After re-appreciating the entire evidence available on record Lower Appellate Court confirmed the judgment and decree passed by trial Court and dismissed the appeal.

Though Sri Ajay Kumar, learned counsel appearing for appellant/second defendant would contend that suit itself was barred by limitation. As already observed hereinabove and at the cost of repetition it requires to be noticed that under Article 144 of Limitation Act, 1963 the period of limitation for possession of immovable property is 12 years. Since parties are undisputedly governed by Mohammadan law right of co-sharer/co-heir to seek for his separate share would start to run not from the death of father (deceased) but from the date of express ouster or denial of title. In the instant case, second defendant sought to rely upon the admission of P.W. 1 in his cross-examination to contend that P.W. 1 himself had admitted that there was a division or partition of suit schedule properties between plaintiff and defendants 1 and 2 as per Ex. D-1 and as such, ouster has to be presumed to be from the said date namely deed on which Ex. D-1 came into existence i.e., on 30.03.1985 and if period of limitation is 12 years is computed from the said date, suit ought to have been filed on or before 29.03.1997. Though at first blush said argument would look attractive it does not detain this Court for long to brush aside the same for simple reason that ouster should occur from the side of person in possession of property i.e., co-sharer/co-heir expressly indicating that plaintiff would not be entitle for a share or rejecting the claim of plaintiff. Production of a document is not proof of its contents. Having admitted in his cross-examination that thumb impression found in Ex. D-1 is that of himself, plaintiff has in the very next sentence denied the said execution. That apart, second defendant has not entered the witness box. He has not spoken anything about Ex. D-1. It is because of this precise reason Courts below rightly held that consideration of said issue did not arise. Even otherwise, such an issue was not required to be examined by both the Courts, inasmuch as, there was no plea raised in the written statement by second defendant with regard to limitation. Issue of limitation being question of fact on law cannot be raised for the first time in a second appeal and this view is fortified by the law laid down by the Hon''ble Apex Court in the case of (1) BANARSI DAS (IN C. As. NOS. 94 TO 96 ON 1960) AND (2) KUNDANLAL (IN C.A. NO. 97 OF 1960), VS. (1) KANSHI RAM AND ORS. (IN C. As. NOS. 94 TO 97 OF 60) (2) Banarsi Das Vs. Seth Kanshi Ram and Others, .

Though appellant has not formulated any Substantial Question of Law in this regard in the present second appeal, it does not take away or abridge the power of Court to formulate any other Substantial Question of Law. But for non raising of plea of limitation this Court would have examined the said issue and even otherwise same has been examined and answered hereinabove.

For myriad reasons indicated hereinabove, this Court is of the considered view that there is no Substantial Question of Law involved in this appeal for being formulated, adjudicated and answered. Hence, I proceed to pass the following:

i. Second appeal stands dismissed.

ii. Judgment and decree passed by Civil Judge, Honnali in O.S. No. 59/2007 dated 14.02.2012, affirmed by Senior Civil Judge, Harihara, dated 01.10.2013 in R.A. No. 64/2012, stands confirmed.

iii. No costs.

In view of appeal having been dismissed I.A. No. 2/14 does not survive for consideration and same stands rejected.