Maqboolunnisa vs Hafeezkhan

B.S. Patil, J.—This Court has passed a detailed order dated 20.08.2013 regarding the facts involved in the case, the contentions urged by both the parties and the point that arose for consideration. It has also pronounced on the legality and correctness of the judgment under challenge except as regards Items 1, 2 & 3 of the suit schedule lands.

While allowing the application filed by the appellants under Order XLI Rule 27 CPC permitting the appellants to produce certain documents by way of additional evidence, the trial was directed to record evidence with regard to those documents and to forward its findings.

In the said order, this Court directed the Trial Court to record finding on the following issue:

"whether the plaintiffs prove that Items 1, 2 & 3 of the plaint schedule lands are the properties in respect whereof plaintiffs along with 11th defendant and defendants 1 to 10 and Abdul Aziz were jointly conferred occupancy rights as per the order of the Special Deputy Commissioner for Abolition of Inams in Case No. 63 and hence the plaintiffs were entitled for their legitimate share in the said properties?"

Now that the Trial Court has returned findings on the aforesaid issue and has transmitted the papers along with its findings, the matter has been heard and it is being finally disposed of. Therefore, in order to avoid repetition, it is useful to extract the facts stated, points raised for consideration and conclusions reached in the order dated 20.08.2013, which gives a comprehensive look into the controversy leading to the present litigation. The said order reads as under:

"1. This Appeal is by the plaintiffs. They are aggrieved by the judgment and decree dated 21.09.2002 passed in O.S. No. 1386/1985, in so far as the dismissal of the suit as regards Item Nos. 1 to 3, 5, 7 to 17(a) & (b). In respect of Item Nos. 4 & 6, the suit is decreed in part and the plaintiffs are held entitled for 1/9th share in Item No. 4 and 2/9th share in Item No. 6.

Plaintiffs filed the suit seeking 1/3rd share in all the items of suit properties and also for mesne profits. It is their case that one Ghouse Khan was the propositus. He had two sons by name Mastan Khan and Nanhe Khan. Plaintiffs traced their title over the suit properties contending that they were the properties left behind by Ghouse Khan which was succeeded to by his children and thereafter by their respective heirs. According to the plaintiffs, Mastan Khan died about 30 years prior to the filing of the suit leaving behind him his three sons viz., Ameer Khan, Azeez Khan and Mehaboob Khan. Plaintiffs claim to be the daughters of Ameer Khan. Defendants 1 to 9 are the heirs of Azeez Khan, whereas defendants 11 to 15 are heirs of Nanhe Khan.

According to the plaintiffs, after the death of Mastan Khan and Nanhe Khan, all the suit properties were being enjoyed jointly by their children as tenants in common. It was after the death of the wife of Ameer Khan on 10.03.1977, defendants started harassing the plaintiffs and developed hostile attitude towards them. It is urged by the plaintiffs that they were later on driven out from the family without giving their shares in the properties. When defendants 1 to 3 and 10 to 15 made attempts to dispose of all the properties to defeat the rights of the plaintiffs, and defendant No. 11 sold two acres of land comprised in Sy. No. 23 in favour of defendant No. 16, they were constrained to file the suit claiming their 1/3rd share in the properties.

Defendants 1 to 10 and 11 to 15 filed separate written statement. They have denied the right, title and interest claimed by the plaintiffs over the suit schedule properties while admitting the relationship between them. They have asserted that the suit schedule properties were their self-acquisition and that the defendants did not inherit them from their ancestors. It is specifically stated that Item No. 1 of the plaint schedule bearing Sy. No. 23 measuring 6 acres 16 guntas was purchased by the father of the defendants 11 to 15 - Nanhe Khan under a registered sale deed dated 21.01.1952 from one Ramamurthy Mudaliar. After his death, defendants 11 to 15 inherited the same as his legal heirs. As regards plaint Item No. 2 bearing Sy. No. 28 measuring 3 acres 38 guntas, they asserted that the same was purchased by defendant No. 11. In so far as Item No. 3 of the plaint schedule bearing Sy. No. 35 measuring 4 acres 5 guntas, it was their contention that defendant No. 11 along with Azeez Khan purchased the same under a registered sale deed executed in the year 1957. They no doubt admitted that House No. 36 was the property left behind by the ancestors, but after the death of Ghouse Khan, the said property was divided between Mastan Khan and Nanhe Khan and after their death, their respective shares have devolved upon their heirs.

It was further contended by them that after the death of Ameer Khan, plaintiffs mother wanted to sell her share to third party to augment finance for performing the marriage of plaintiff No. 1, at that time Azeez Khan -father of the defendants 1, 2 & 4 to 9 and defendant No. 10 - Mehaboob Khan jointly paid a sum of Rs. 35,000/- to her in lieu of her share and became the absolute owners of the house property bearing Site No. 36.

Based on the pleadings, the Trial Court has framed as many as 10 issues and one additional issue. They are as under:

Whether the plaintiffs prove that most of the suit properties were acquired by their ancestor Ghouse Khan as alleged?

Whether the plaintiffs prove that the two sons of Ghouse Khan namely Mastan Khan and Nanhe Khan jointly enjoyed the ancestral properties and also acquired some more properties jointly both movables and immovables and they are all the suit schedule properties as alleged?

Whether the plaintiffs prove that they are entitled to 1/3rd share in the suit schedule properties as their father was one of the three sons of Mastan Khan?

Whether the defendants prove that item No. 1 bearing Sy. No. 23 was purchased by Nanhe Khan, the father of defendants 11 to 15 in 1952, and item No. 2 bearing Sy. No. 28 was purchased by defendants No. 11 and lastly item No. 3 bearing Sy. No. 35 was purchased jointly by 11th defendant and father of defendants 1 to 10 in 1957 as their self-acquired properties as alleged?

Whether the defendants prove that Item No. 4 the house property No. 36 was the only ancestral property of Gousekhan and it was divided by metes and bounds amongst the sharers and the children of Mastan Khan also further partitioned the portion of the said house (Mastan''s share) and are enjoying separately as alleged?

Whether the defendants prove that the mother of the plaintiffs sold her share for Rs. 35,000/- in favour of 10th defendant and father of defendants 1 to 9 and thus they have no share at all?

Whether the defendants prove that site No. 36 was partitioned and site Nos. 33, 306 and 547 have fallen to the shares of defendants 11 to 15 and site Nos. 25 to 28 to the share of 1 to 10 and they are enjoying separately as alleged?

Whether the defendants prove that the Court fee paid is not correct?

Are the plaintiffs entitled to the reliefs sought?

What decree or order?

Additional Issue:

Whether the suit is barred by time?

In support of the case of the plaintiff, PW-1 one K.M. Nagaraju was examined and Exs. P-1 to P-36 were marked. In support of the case of the defendants, D.Ws.-1 & 2 were examined and Exs. D-1 to D-134 were marked.

After considering the evidence on record, both oral and documentary, the Trial Court has answered Issue Nos. 1, 2 & 3 partly in the affirmative and Issue No. 4 in the affirmative. Issue Nos. 5 to 7 are answered in the negative. Issue No. 8 being an issue pertaining to the valuation of the suit and payment of court fee has been treated as a preliminary issue and is answered in favour of the plaintiffs. In so far as Issue No. 9 is concerned, which pertains to entitlement of the plaintiffs to the reliefs sought, it is answered partly in the affirmative. Additional Issue No. 1 which pertains to bar of limitation for filing the suit, the same is answered in the negative.

The court below has thus, partly decreed the suit declaring that the plaintiffs were entitled to 1/9th share in Item No. 4 and 2/9th share in Item No. 6. They are also held entitled to mesne profits to the extent of their share which shall be inquired into in the final decree proceedings. As regards Item Nos. 1 to 3, 5, 7 to 17(a) & (b), the relief sought for partition is dismissed. A preliminary decree is drawn. Aggrieved by the judgment and decree, the present Regular First Appeal is filed.

Learned Counsel for the plaintiffs-appellants contends that the plaintiffs have produced Ex. P-8 - order dated 13.07.1960 passed by the Special Deputy Commissioner for Abolition of Inams in Case No. 63 to prove that defendant No. 11 - Rashid Khan along with his uncle Abdul Azeez and the mother of the plaintiffs -Noorunisa and also the plaintiffs - Maqbooklunissa and Gulab Jan, have been jointly declared as permanent tenants in respect of the lands comprised in Sy. Nos. 28 & 35 measuring 2 acres 28 guntas and 4 acres 5 guntas, respectively, and have been registered jointly as occupants under Section 9 of the Inams Abolition Act. It is also urged that as regards Sy. No. 23 measuring 6 acres 16 guntas, the Court below has illegally recorded a finding holding that the said order was a concocted one and could not be believed in view of the interpolations. It is further contended by them that though Ex. P-8 was produced and marked in evidence without any objection from the defendants, the Court below has refused to place reliance on the same not only on the ground that it appeared to be concocted, but also on the ground that it was not a certified copy properly obtained from the competent authority. This observation is made by the court below having regard to the fact that Ex. P-8 though contained the seal and signature of the Tahsildar, Bangalore South Taluk, it was not the certified copy issued at the instance of the applicant and did not mention who had applied for the certified copy and at whose instance it was prepared and who issued it.

The court below appears to have kept this aspect in mind while coming to the conclusion that it was only a true copy and not a certified copy. It is in this background, the appellants have filed an application under Order XLI Rule 27 CPC seeking permission to produce additional documents in the form of certified copy of the order dated 13.07.1960 passed by the Special Deputy Commissioner for Abolition of Inams in Case No. 63 (Ex. P-8) and the statement of defendant No. 11 -Rashid Khan in the said Case No. 63 along with a report submitted by the Special Deputy Commissioner for Abolition of Inams, Bangalore.

It is contended by the learned Counsel for the plaintiffs-appellants that the production of these documents has become necessary as the court below has refused to place reliance on Ex. P-8 which was duly issued by the Tahsildar, recording a finding that there were interpolations in the document. It is further contended by the Counsel for the appellants that even in the evidence of the defendants, D.W. -1 he has admitted that there were proceedings before the Special Deputy Commissioner for Abolition of hams in respect of these lands. It is urged that in order to place on record, the official documents which are originated at an undisputed point of time and to enable the Court to arrive at the truth involved in the matter, these documents have been produced.

As regards other items of properties other than Item Nos. 1 to 3, although learned Counsel for the plaintiffs-appellants have contended that the dismissal of the suit is contrary to the evidence on record and hence illegal, they have not been able to draw the attention of the Court to any material evidence either oral or documentary which would suggest that these items were the family properties, wherein the ancestors of the plaintiffs viz., Ameer Khan had any subsisting rights at the time of his death.

Therefore, the main controversy raised in the suit would revolve around the claim made by the plaintiffs for partition in respect of Item Nos. 1 to 3 of the suit properties, particularly in the background of the additional evidence that is sought to be placed before the Court so as to clarify the stand already taken by them in the course of trial by producing Ex. P-8 - order passed by the Special Deputy Commissioner for Abolition of Inams.

Counsel for respondents 1 to 7 is not present. He was not present on 19-08-2013, when the matter was heard at length. Though this case is posted for dictating judgment today, today also the learned counsel for respondent Nos. 1 to 7 is not present. Respondent Nos. 8, 9, 11, 12, 13, 14 & 15 though served have not entered appearance. Counsel for the proposed impleading applicants are also not present. As per the order dated 16-06-2010, passed by this Court, the application filed for impleading has stood rejected. In the circumstances, I have heard the learned counsel for the plaintiffs -appellants.

In the light of the discussions made above, the only point that requires consideration by this Court is:

Whether the findings recorded by the Trial Court holding that Ex. P8 could not be relied upon, as it contained interpolation and it was not a certified copy duly obtained by the plaintiffs - appellants is legally sustainable?

Whether the appellants have made out sufficient grounds to allow the application seeking to produce additional evidence?

What order?

It is noticed from the proceedings that Ex. P8 document was marked in the evidence of plaintiff''s side, without any objection from the other side. The Court below has entertained doubt regarding the genuineness of this document, in view of the impression gathered by it to the effect that the typed material found in the two portions of Ex. P8 was of different ink. The first portion of the order in Ex. P8, as found by the trial Court, appeared to be a carbon copy, whereas the last portion appeared to be a typed version. It is in this background, the appellants have filed an application seeking to produce additional evidence in the form of certified copy of the order dated 13-07-1960 passed by the Special Deputy Commissioner for Abolition of Inams in Case No. 63, copy of the deposition of defendant No. 11 - Rashid Khan and the report of the Tahsildar which according to the appellants - plaintiffs are part of the proceedings before the Special Deputy Commissioner in Case No. 63 pertaining to Abolition of Inams.

In the affidavit filed in support of the application under Order XLI Rule 27 of CPC, the appellants -plaintiffs have contended that during the course of cross-examination they have produced the certified copy of the order passed by the Special Deputy Commissioner on 13-07-1960 and it is marked as Ex. P8. The said order came to be passed pursuant to the application submitted by defendant No. 11, but the Trial Court has held that it was a concocted and fabricated document. The defendants have admitted in their evidence regarding the proceedings initiated before the Special Deputy Commissioner for Abolition of Inams in respect of the lands bearing Sy. Nos. 23, 28 & 35. The plaintiffs have obtained the certified copy of the order and also the deposition of defendant No. 11 given in the said proceeding to dispel the impression gathered by the Court below that the copy of the order passed by the Special Deputy Commissioner was not genuine as it contained interpolation. The order now produced along with the application for adducing additional evidence discloses that Maqbool Jan - plaintiff No. 1 had filed an application seeking issue of certified copy of the order on 24-06-2013 and on such application presented by the first plaintiff the certified copy was prepared on 27-06-2013 and was delivered on the same day i.e., 27-06-2013. Even in this certified copy which is in the form of a Xerox of the original with the seal and signature of the Issuing Authority, the order is in two portions. The first portion is in different typed Ink and the remaining portion is in another Ink. But, that by itself cannot be taken to hold that the document is created one and is not a genuine one. In addition to obtaining the order passed by the Deputy Commissioner, the appellants - plaintiffs have filed the copy of the deposition of defendant No. 11 - Rashid Khan, wherein he has stated certain facts which are consistent with the facts recorded in the order passed by the Deputy Commissioner. There is also a report submitted by the Special Deputy Commissioner for Abolition of Inams. These 3 documents are the certified copies duly obtained from the Office of the Tahsildar. They contain the seal and signature including the details regarding the person who had applied, the date on which the certified copy was made ready and the date on which it was issued. It is, therefore, clear that the documents now produced by the appellants - plaintiffs are the certified copies duly obtained in a proper manner and these documents are required to be received in evidence, because the appellants are not trying to adduce any other evidence, except the one that was already placed in the previous proceedings which has not been relied upon by entertaining suspicion regarding the contents of the documents, although it was furnished by the Tahsildar and contained his seal and signature. As these documents are public documents maintained in the course of quasi judicial proceedings by the Special Deputy Commissioner for Abolition of Inams and as the appellants were unable to secure these documents during the course of trial, but had proceeded with a bona fide impression that production of the authenticated copy issued by the Tahsildar of the order passed by the Special Deputy Commissioner would serve their purpose, I do not find any legal impediment whatsoever to allow the application and to receive the additional evidence. In addition, the appellants have made out a case in terms of Order XLI Rule 27 of CPC to allow the application. Hence, the application is allowed and these documents are taken on record as additional evidence produced by the plaintiffs.

In view of the receipt of these documents as additional evidence, in my considered view, it is necessary to provide an opportunity to both parties to lead evidence in connection with the documents now received as additional evidence in proof of the plea taken by the plaintiffs that the 3 lands comprised in Sy. Nos. 23, 28 & 35 of Kadenahalli Village, K.R. Puram Taluk, Bangalore South Taluk (now Bangalore East Taluk) were granted jointly in favor of the plaintiffs and the defendants and secure specific findings of the Trial Court for the purpose of final disposal of this appeal.

Therefore, the Court below is directed to record evidence with regard to these documents and return fresh finding with regard to the following Issue:

"Whether the plaintiffs prove that Items 1, 2 & 3 of the plaint schedule lands are the properties in respect whereof plaintiffs along with defendant No. 11 and defendant Nos. 1 to 10 and Abdul Aziz were jointly conferred occupancy rights as per the order of the Special Deputy Commissioner for Abolition of Inams in Case No. 63 and hence the plaintiffs were entitled for their legitimate share in the said properties?"

The Trial Court is directed to return its finding on this issue and transmit the papers as expeditiously as possible, so as to enable the registry to list this appeal for final disposal after the evidence recorded by the Trial Court and the findings on it are received.

Having regard to the length of the litigation, the Trial Court is directed to record such findings as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this order. Registry is directed to list this matter immediately after the receipt of the findings from the Court below. The original records including the documents produced by way of additional evidence shall be sent to the Trial Court immediately."

After the matter was remitted to the Trial Court for recording finding on the issue framed, plaintiffs and defendants 1 to 3 & 9 have appeared before the Trial Court, but defendants 10 to 15 did not appear. Jamiulla - power of attorney of the plaintiff examined himself as PW-1 and 4 documents were produced by him. They were marked as Exs. P37 to 40. On behalf of the defendants, 1st defendant examined himself as D.W. -1 and no documents were marked.

After hearing the arguments, the Trial Court has recorded the finding on the issue in the affirmative holding that plaintiffs proved that Items 1, 2 & 3 of the plaint schedule lands were properties in respect whereof plaintiffs along with 11th defendant and defendants 1 to 10 and Abdul Aziz were jointly conferred occupancy rights as per the order of the Special Deputy Commissioner for Abolition of Inams in Case No. 63 and hence plaintiffs were entitled for their legitimate share in the said properties.

Learned Counsel for both parties have addressed their arguments with regard to these findings recorded by the Trial Court.

Ex. P-38 is the order dated 13.07.1960 passed by the Special Deputy Commissioner for Abolition of Inams. By the said order, K.N. Rashid Khan along with Nurunnisa, Makbulnissa, Gulabjhan and Abdul Aziz have been jointly registered as occupants under Section 5 of the Mysore (Personal & Miscellaneous) Inams Abolition Act, 1954. This document was earlier produced and marked as Ex. P8. After the matter was remitted, certified copy of this document is again produced and marked as Ex. P38. The grant of occupancy pertains to Sy. Nos. 23, 28 & 35. Deposition of K.N. Rashid Khan, which is produced at Ex. P39 makes it clear that in respect of these three lands, occupancy rights were claimed for being registered in the joint names of these persons. Thus it is clear that Items 1 to 3 of the plaint schedule have been granted in favour of 11th defendant - Rashid Khan and Abdul Aziz Khan and as also plaintiffs and defendants 1, 9 & 11. These documents clearly establish the grant of occupancy rights jointly in their favour by the competent authorities. After the matter was remitted for recording finding, the evidence adduced by the plaintiffs has not been challenged in cross-examination on behalf of 11th defendant. Though defendants 1 to 9 denied the case of the plaintiffs by filing written statement, during the course of cross-examination of PW-1 after the matter was remitted, they have also admitted that they are entitled for partition in Items 1 to 3. In this background, the Trial Court has recorded its findings holding that there was no reason to disbelieve the case of the plaintiffs in view of the documents at Exs. P38, P39 & also P40, which is a report submitted by the Special Tahsildar for Inams Abolition, Bangalore.

Mr. Prakash Hebbar, learned Counsel appearing for respondents 11 to 15 contends that Items 1 to 3 of the plaint schedule are acquired by 11th defendant and therefore, plaintiffs have no right, title or interest over them. He submits that inam register produced by the 11th defendant along with an application has evidentiary value and that revenue entries stand in the name of 11th defendant. He further points out that the Advocate for defendants 11 to 15 did not defend them in the Trial Court. 11th defendant was physically weak and could not appear before this Court. He, therefore, contends that parties should not suffer for the inaction and omission of his agent as held by the Apex Court in Rafiq and Another Vs. Munshilal and Another, . He also urges that Exs. P-38 to P-40 are concocted documents. It is also pointed out that General Power Attorney holder cannot depose for the Principal in respect of matter in the personal knowledge of the Principal. Reliance is placed by him in this connection on the judgment in the case of Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, .

It is necessary to notice here that even after the mater was remitted, defendants 11 to 15 did not lead any evidence, nor did they cross-examine the plaintiffs'' witnesses. The evidence adduced on behalf of the plaintiff is with regard to the official documents such as order passed by the Special Deputy Commissioner for Inams Abolition, deposition given in the said proceedings and the report of the Tahsildar. Defendants having taken up a contention that these documents were concocted and in the light of production of additional documents which were certified copies of the orders of the Deputy Commissioner and deposition, matter had been remitted for recording a finding by framing a specific issue. Nothing prevented defendants 11 to 15 from adducing evidence in support of their assertion that they were not official documents and were created or concocted. It is not open for them to now contend that for the mistake committed by their advocate, they should not be penalized. The judgment relied upon in this regard has no application to such a conduct of the party.

This matter has been pending before this Court for several years. It is not open for them to contend that they did not hear anything from their Counsel and therefore they could not take any steps to appear before the Trial Court. This is a case of pure negligence on their part in defending themselves. In any event, the documents produced being official documents, mere allegation that those documents were concocted and created cannot be entertained. The evidence adduced on behalf of the plaintiff with regard to these documents cannot be brushed aside on the ground that defendants had no personal knowledge of the same. The evidence is with regard to the official documents. Therefore, whether the plaintiff himself speaks about these documents or speaks through his power of attorney does not make much difference. Reliance placed by the learned Counsel for respondents 11 to 15 on the judgments referred to above do not come to the aid of the respondents having regard to the facts and circumstances adverted to above.

As the evidence of PW-1 corroborated the documents, the Trial Court has rightly held that plaintiffs successfully proved that Items 1 to 3 are the properties in respect whereof, occupancy rights were jointly granted in their favour along with defendants 1 to 9 & 11.

In the order dated 20.08.2013 passed while remitting the matter for its findings, this Court has held that dismissal of the suit with regard to other items did not warrant interference and the question to be considered was only limited to Items 1 to 3. Hence, it is not necessary to again go into the correctness of the findings recorded by the Trial Court with regard to other items other than Items 1 to 3 of the plaint schedule. The reasons assigned and the conclusions reached by the Trial Court with regard to other items of the properties do not suffer from any illegality or perversity. In fact, no arguments are advanced against the other findings after the trial court rendered its findings on the issue framed by this Court.

In the result and for the foregoing, additional issue framed by this Court with regard to Items 1 to 3 of the plaint schedule properties is answered in favour of the plaintiffs holding that they have proved that even in Items 1 to 3 of the suit schedule properties plaintiffs are together entitled for 1/3rd share. In all other respects, the findings recorded and the judgment and decree passed by the Trial Court are confirmed.

Therefore, the appeal is accordingly allowed in part. Parties are directed to bear their respective costs.