Shaik Sa Bee vs Sukursab and Others

A.V. Chandrashekara, J—Heard the learned counsel for the appellant and perused the records.

Concurrent findings are called in question by filing an appeal under Section 100 of CPC. Appellant is plaintiff No. 2 in O.S. No. 171/2006, which was pending on the file of the Court of Prl. Civil Judge (Sr. Dn) at Raichur. It was a suit filed for the relief of partition and separate possession of 6 items of agricultural lands as described in the schedule appended to the plaints. The case of the plaintiff is that one person by name Khaja Hussain died leaving behind him two sons by name Sukur sab and Hussain sab. The said Sukursab S/o. Khaja Hussain is the sole defendant in the suit. Plaintiff Nos. 1 and 2 are the son and wife of Hussain sab. According to them, item Nos. 1 to 6 as described in the schedule ''A'' are the joint family properties of plaintiffs and defendant and defendant got his name mutated in all the revenue records of the properties in question and that the defendant does not have any exclusive right title or possession over the suit properties. Therefore, he had requested the Court to grant his requisite share.

The suit was contested by filing detailed written statement. Defendant had averred that the entire properties are self-acquired properties and that plaintiffs have no right over them. With these pleadings he requested to dismiss the suit. He had denied the relationship of plaintiffs as son and wife of deceased Hussain sab.

Following issues came to be framed as found in paragraph No. 4 of the judgment of the trial Court.

(i) Whether the plaintiffs prove that they are son and wife of deceased Hussain sab?

(ii) Whether the plaintiffs prove that, the suit property was originally belonging to one Khaja Hussain & after his death themselves and deceased Hussain sab and the defendant were enjoying the suit properties jointly?

(iii) Whether the defendant proves that, the suit property is the exclusive property of himself?

(iv) All the plaintiffs entitled to any share in the suit properties? If so to what share?

(v) What decree or order?

Second plaintiff is examined as P.W. 1 and one Modin sab is examined as P.W. 2., 10 exhibits have been got marked on behalf of plaintiffs. Defendant is examined as D.W. 1 and 48 exhibits have been got marked on his behalf. Ultimately, the suit came to be dismissed by answering issue Nos. 1 and 4 in the negative and 3 in the affirmative.

Plaintiff has not produced any original document or certified copy or attested copy of her marriage register to demonstrate that she is the legally wedded wife of deceased Hussain sab. P.W. 2 has deposed that the marriage of plaintiff No. 2 was solemnized about 40 years ago at Raichur in Timmapur peth and he had attended the said marriage. He has further admitted that at the marriage register the signatures of bride groom and bride would be obtained by the Khaji on the marriage register and that there are no documents to demonstrate the same.

Detailed discussion is found in paragraph No. 9 of the judgment of the trial Court in regard to the inability of the plaintiff to prove her marriage with deceased Hussain sab. She has deposed that she knew the father of defendant by name Khaja Hussain which is mentioned in Ex. P7. P.W. 2 and P.W. 1 have deposed that Khaja Hussain died about 50-60 years ago. It is un-understandable as to how the name of Khaja Hussain could be mentioned in Ex. P. 7 which was issued in the year 1995, if he died 50-60 years ago. Therefore, the very credibility of Ex. P7 has been doubted and there is no reason to disbelieve the said observation made by the trial Court.

The ration card marked as Ex. P7, age of Mahaboob sab is shown as 30 years. Then it is not possible to hold that plaintiff No. 2 has a grand son aged about 30 years in the year 1995. She does not know the name of Usman sab mentioned in Ex. P7. Though Ex. P7 the public document, it cannot be said that it is duly proved in accordance with law though it is admissible in evidence.

The learned Judge of the First Appellate Court has reassessed the entire evidence in right perspective by approving the judgment of the trial Court. Hence, the learned Judge has not assigned elaborate reasons and there is no need to do so as held in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 .

Many useful admissions have been elicited from the mouth of P.W. 2 who has deposed that the defendant has been selling the land in Sy. No. 168 for the past 30-40 years in bits. He has further submitted that Hussain sab husband of plaintiff No. 2 was alive that time. He has further admitted that defendant developed the land by borrowing loan from the bank and has been using usufructs by not giving any share to the plaintiffs. From the evidence placed on record, it is clear that the defendant has had been enjoying the property in his individual capacity to the exclusion of the plaintiffs.

Therefore, no grounds are made out to interfere with the considered judgment. No perversity or illegality is found in the approach adopted by both the Courts. No substantial question of law arises for consideration by this Court. Accordingly, appeal is liable to be dismissed as unfit for admission.

Appeal is dismissed as unfit for admission.

Parties to bear their own costs.