Sardar Khan (Dead) Through L.Rs. vs Padam Singh and others

Rakesh Tiwari, J.—Heard Counsel for the parties and perused the records.

This second appeal has been filed against the judgment and decree dated 22.2.1997 passed by the Civil Judge/Additional District Judge, Gorakhpur in Civil Appeal No. 451 of 1982 arising out of the judgment and decree dated 6.10.1982 passed by Munsif III, Gorakhpur in O.S. No. 40 of 1999 Smt. Krishna Kumari and after her Padam Singh and others and Sri Altaf Ali Khan and 6 others. The relief sought by the appellant is for setting aside the judgment and decree passed by the two Courts below dismissing the suit of the appellant with costs throughout.

Sri Q.U. Ansari, Advocate, appearing on behalf of the appellant has submitted that from the plaint it is apparent that the plaintiffrespondents had filed Suit No. 42 of 1977 for partition of 5/16 share in the property in dispute Ahata No. 510, on the allegations that it belonged to heirs of Faujdar Khan in which Smt. Rahmat Bibi is the second wife of Namdar Khan and her daughter Smt. Sakuran who were cosharers to the extent of 1/20 share, Ibrahim had 1/5th share, who by sale deed dated 2.4.1967 transferred his share to Altaf Hussain. Subsequently Smt. Rahmat Bibi and Sakuran also transferred their 1/10 share to Altaf Hussain, that Abbas Ali Khan who had 1/8 share in the property also transferred the same by registered sale deed dated 28.6.1966 (Ext. 5).Thus Altaf Hussain became owner of 5/16 share. He transferred the said shares by means of the registered sale deed dated 16.6.1997 (Ext. 4) in favour of the plaintiff who had filed suit for partition of their 5/16 share of the property as stated above.

Per contra the appellant who was defendant No. 6 in the suit denied the plaintiff''s allegations in his written statement. His case was that property in dispute belonged exclusively to Hidayat Ullah Khan and Himayat Ullah Khan son of Namdar Khan and since Hidayat Ullah Khan died issueless, his entire share devolved upon his real brother Himayat Ullah Khan. After the death of Himayat Ullah Khan his share was succeeded by Smt. Majidan his wife and son Kifayat Ullah Khan who subsequently migrated to Pakistan; that after migration of his son, his share is said to have vested in the custodian and was purchased by Smt. Majidan who subsequently by registered sale deed dated 17.5.1960 transferred the property in favour of defendant No. 6 (appellant). In these circumstances, the appellant claims to be the owner and in possession of the property since then. It also appears from the record that during the pendency of the suit an application was filed for amendment in the written statement which was dismissed by the Court below.

Aggrieved by the rejection of the amendment application a writ petition was filed in this Court. It also appears that defendant No. 6 appellant filed a copy of Qurra in the suit to establish that land in dispute was entered in the name of Himayat Ullah Khan and Hidayat Ullah Khan sons of Namdar Khan. However, the suit was decreed by the Trial Court by judgment and decree dated 6.10.1982, relying upon the judgment and decree passed in Civil Appeal No. 387 of 1940 decided on 19.8.1941.

Counsel for the appellant submits that O;S. No. 755 of 1938 filed by Kifayat Hussain against one Abdul Hamid for demolition of certain constructions was decided on basis of compromise and a cross Suit No. 1181/38 filed by Abdul Hamid against Kifayat Ullah and others for partition. Suit No. 755 was decided on the basis of compromise, but Suit No. 1181 of 1983 was decreed for partition of 1/2 share by judgment and decree dated 2.5.1940. This judgment and decree in Suit No. 1181 of 1938 for partition of half share was challenged in Civil Appeal No. 387 of 1940 filed by Himayat Ullah Khan against Abdul Hafiz Khan. It was partly allowed by judgment and decree dated 9.8.1941 holding that Hafiz Khan had 1/8th share and not 1/2 share as claimed and decreed by the Trial Court.

It also appears that one Alim Khan made certain encroachment upon the land of Smt. Majidan in Ahata No. 510 compelling her to file Suit No. 1450 of 1958. It was during the pendency of the aforesaid suit that Smt. Majidan transferred the property in dispute in favour of the appellant on 17.5.2007 and authorised him to continue the suit in her place. Consequently the suit was decreed by judgment and decree dated 26.7.1962. Alim Khan challenged the aforesaid judgment and decree in Appeal No. 310 of 1962 which was dismissed vide judgment and decree dated 21.12.1963 holding that Smt. Majidan was coowner of the property in dispute. Aggrieved by the said judgment and decree, he challenged the order and decree dated 21.12.1963 in Second Appeal No. 1747 of 1964 which too was dismissed by judgment and decree dated 13.4.1971 holding that Smt. Majeedan was exclusive owner of the property in dispute.

It appears that share of Smt. Majidan was not mentioned in the suit and appeals aforesaid and as such, it was erroneously held in the judgment and decree dated 13.4.1971 that she was exclusive owner of the property in dispute for the reason that it is apparent from the fact narrated above. That Majidan Bibi was share holder of the property only to the extent of which, which was devolved upon her from Namdar Khan, Himayat Ullah and after him from Hidayat Ullah.

The contention of the learned Counsel for the appellant is that the Trial Court have misread and misconstrued the judgment dated 2.5.1940 in Suit No. 1181 of 1938 and statement of defendant No. 6 and has wrongly decreed the suit by order and judgment dated 6.10.1982 decreeding the suit of the plaintiff for 5/16 share in the property.

It further appears that against the judgment and decree dated 6.10.1982 Civil Appeal No. 451 of 1982 was filed which too was dismissed by Lower Court by judgment and decree dated 22.3.1997 giving rise to the cause for filing the present second appeal.

Counsel for the appellant stated that in the facts and circumstances stated above, they are owner and in possession of old Ahata 510, which is bounded as under:

In the North by : House of Sri Bhagwan Das

In the Sought by : House of Nairn Khan and others and others

In the East by : House of appellant

In the West by : House of Qadeer Khan.

He submitted that from the pleading of the parties and the judgments of the Courts below a substantial question of law arises as to whether the suit was barred by section 46 and the Court below had no jurisdiction in the matter which has nullified the decree passed by the Court below. The other substantial questions of law which arises for consideration in the matter, as to whether the Courts below are justified in holding Altaf Hussain to be the coowners to the extent of 5/6 share. In the absence of any sale deed on record and lastly whether the findings recorded by the Court below are vitiated for having been misread and misconstrued and ignorance of judgment and decree dated 26.7.1962 passed in O.S. No. 1450 of 1945 in Civil Appeal No. 31 of 1942 dated 21.12.1963 and dated 13.4.1971 in Second Appeal No. 1445 of (sic) and urged that the Courts below have misread and wrongly ignored Khasra No. 7 in the suit.

Learned Counsel for the respondents has drawn the attention of the Court to the judgment of the Trial Court in Suit No. 42 of 1997 and submits that the defendantappellant himself had admitted before the Trial Court that Ahata No. 510 had been vested in the custodian and this fact has been taken note of by the Court below holding that there is no documentary record from which it can be concluded conclusively that Ahata No. 510 had ever vested in the custodian.

Reliance has been placed in this regard by the Counsel for the plaintiffrespondent which is quoted as under :

The finding of the Trial Court with regard to the vesting of the property in the custodian had also been upheld by the First Appellate Court in paragraph 8 of the judgment which is as under :

Issue No. 7 was thus decided against defendantappellant.

As regards the question as to whether the findings recorded by the Court below are vitiated for having been misread and misconstrued and ignorance of judgment and decree dated 26.7.1962 passed in O.S. No. 1450 of 1958 and proceedings submitted thereof in appeal are concerned, it has also been noted by this Court that Smt. Majidan was not owner of whole of the property.

As regards the finding recorded by the Court below are vitiated for having been passed on misreading and misconstruction and ignorance of judgment and decree dated 26.7.1962 passed in O.S. No. 1450 of 1958, Civil Appeal No. 310 of 1962 dated 21.12.1963 and 13.4.1971 in Second Appeal No. 1247 of 1964 are concerned, Counsel for the respondents has submitted that the Court below relying upon the judgment later on Civil Appeal No. 387 of 1948, the Trial Court has held that the appellant had stated to have only a share in the property and was not to be the owner. It has come on record from various judgment that Smt. Majidan was claiming share in the property which had devolved upon her from Faujdar Khan, was found to be only 5/16 share being the share of Namdar Khan as his widow Hidayat Ullah, his son who died issueless and after him Himayat Ullah who was her husband. Therefore her claim on whole of the property has rightly been discarded by the Court below as it was limited only to the share which had devolved upon her through her husband and after him through his sons.

Paragraph 11 of the Trial Court judgment in this regard is quoted below :

The Courts below have found that though the property was recorded in the name of Hidayat Ullah and Himayat Ullah for some time as appear from Ext. 8. It is apparent from the earlier judgment in Suit No. 387 of 1940 between Himayat Ullah and Abdul Hafiz who had part of the property as such the whole of the property could not have devolved upon Majeedan Bibi.

I have considered the arguments of the parties and have perused the record. It appears that at some place Majeedan Bibi claims to be the owner of whole of the property on the ground that the property was exclusively given to her by her husband as Dower. She has nowhere proved that her husband was exclusive owner of the property in dispute; at other places she has come with the property dowering upon heir through various share holders, it has come that her husband had only 18th share in the property of Majidan had neither claimed nor been able to prove that she had been gifted the aforesaid property in the life time of her mother nor she was claimed her share.

It has also come on the record that she had latter pleaded that she has purchased the property from the custodian. Both the statements are contradictory and cannot be relied upon. Admittedly she has failed to prove that the Court below which have recorded categorical findings that part of the property purchased in Ahata No. 510 by the defendant No. 6 was only to the extent of the share of Majidan. Therefore, no relief can be granted in respect of transfer of any share of Majidan of which she had no right and title.

The question of fact which are stated to arise in this appeal are merely questions of fact decided by the Courts below. No substantial questions of law arises in this second appeal.

In view of her own admission that the property in dispute which had vested in the custodian and in view of the findings recorded by the various Courts and of this Court, no perversity have been seen in the judgment of the Courts below to establish the right, therefore, the ruling relied upon by the Counsel for the appellant in the case of Hero Vinoth (Minor) v. Seshammal, 2006 (64) ALR 194 (SC)=2006 (43) AIC 577 (SC) and in the case of Ramlal and another v. Phagua and others, 2005 (61) ALR 613 (SC)=2005 (35) AIC 9 (SC) are of no help to him. It has been held in the case of Hero Vinoth (Minor) (supra) that scope of interference in the concurrent findings of fat under section 100, C.P.C. are very limited. Reappreciation of evidence not permissible where Courts below misdirected themselves in appreciating the questions of law or placed the onus on wrong party certainly there is scope for interference.

From the record it is clear that the scope for interference with concurrent findings of fact while exercising jurisdiction under section 100, C.P.C. is very limited and reappreciation of evidence is not permissible where the Trial Court and/or the First Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party.

The cases cited by the Counsel for the appellant are not applicable to the facts and circumstances of the case. It only appears that there has been some litigation of factual dispute. The Courts below in exercise of powers rightly held that Smt. Majeedan Bibi was not the owner of the whole of the property and the Court below has rightly dealt this issue that the share of Majeedan had been specified that she not being the owner of the whole of the property at Ahata No. 510 could not have transferred whole of the property of Ahata No. 510. In this view of the matter the second appeal on substantial question of law fails and is dismissed.