The first defendant has relied on the entries made in RTC extracts after the year 1954 upto 1985. Before the sale of property in the year 1985, the entries in RTC were made in the name of first defendant. Earlier, the entries in the RTC were made in the name of Mehtabsab and later the name of first defendant-Tameezuddin (son of Mehtabsab) was entered in the revenue records.
The plaintiffs have not adduced evidence to rebut the presumption available under Section 133 of the Karnataka Land Revenue Act, 1964.The plaintiffs Nos. 1 and 2 are the descendents of Rahimsab so also, defendants Nos. 3 to 5. The plaintiffs Nos. 1 and 2 have not placed any material to show that suit item No. 1 was possessed by Rahimsab at any point of time. Therefore, the averments of plaint that suit item No. 1 was acquired by Rajesaheb who was their common ancestor and the plaintiffs and defendants (except defendant No. 6) being the descendants of deceased Rajesaheb are entitled to share in the suit properties cannot be accepted. The plaintiffs have not produced documentary evidence to prove that suit item No. 1 was acquired and left by deceased Raje Saheb.
Karnataka High Court
Mr Rajesab @ Goremiyan vs Tameesoddin Since Decd By His Lrs on 5 September, 2014
Citation;AIR 2015(NOC)438 Kar
These two regular second appeals have arisen out of common judgment made in R.A.No.56/2003 and R.A.No.57/2003 on the file of Civil Judge (Sr.Dn.,) Basavakalyan.
2. Incidentally, it is necessary to state that R.A.No.56/2003 was filed against dismissal of O.S.No.75/1986 and R.A.No.57/2003 was filed against dismissal of O.S.No.180/1989.
3. The plaintiff's no.1 and 2 in O.S.No.75/1986 are the sons of Raheem Saheb and plaintiff no.3 is the mother of plaintiff's no.1 and 2. The plaintiff's no.4 and 5 are the wife and daughter of Tajuddin. The suit was filed for partition of properties held and left by deceased Rajesaheb against Tameezuddin and others. For better understanding of relationship between parties, it is necessary to reproduce the family tree of Rajasaheb, which was furnished in Schedule-'A' to plaint.
Schedule-A
Rajesaheb
(Common Ancestor)
Fareedsab Tajuddin Mahtabsab Rahimsab
(died) (died) (died) (died)
Bhismilla Bee Zainb bi
(wife-died) (wife-P3)
Tamizuddin Rahmathbi
(deft.1) (wife-died)
Fazlubi Ahmed bi
(died (Deft.2)
issueless)
Bibi Chunnubi
(P4) (died or alive,
whereabout
is not known)
Zahida Julekha bi Rajesab Jilanimiyan MehroonBi
(D3) (D4) (P1) (P2) (D5)
4. O.S.No.180/1989 was filed by Mehroon Bee, W/o Abdul Basheer and Ahmed Bee, D/o Fareed Saheb. The defendants in both cases are common.
The common defendant no.1 namely Tameezuddin and defendant no.6 in O.S.No.75/1986 namely Sanjaysingh S/o Babu Singh Hazari who is also defendant no.9 in O.S.No.180/1989 had contested the suit. Defendant no.1 had sold first item of 'B' Schedule property viz., land bearing No.224/2 measuring 34 guntas, in favour of 9th defendant-Sanjaysingh under registered sale deed dated 27.03.1986. Therefore, defendants no.1 to 6 contested the suit. The other defendants had either remained exparte or not contested the suit.
5. The aforestated suits for partition was filed in respect of :-
1) land bearing no.224/2 measuring 34 guntas situated at Basavakalyan
2) House bearing Municipal Nos.44/9 and 44/12 situated at Dhobi Galli, Basava Kalyan
3) Three shops situated in Basavakalyan Town There is no serious controversy between the parties regarding items 2 & 3 schedule properties viz., house and shop properties. The plaintiffs have admitted that parties to the suit except the purchaser namely Sanjay Singh are in different portions of suit house and they are separately enjoying the suit house property. Even in respect of shop properties, there is no controversy between the parties. The dispute between parties is in relation to land bearing Sy.No.224/2 measuring 34 guntas, situate at Basavakalyan.
6. As could be seen from the Genealogical tree extracted supra, the plaintiffs in order to succeed in the suit will have to establish that suit item no.1 viz., land bearing Sy.No.224/2 in an extent of 34 guntas was the property held and left by Raje Saheb. In other words, it was matraka property and there was no division of property during the lifetime of sons of Raja Saheb namely Fareedsab, Tajuddin, Mahtasab and Rahimsab (father of plaintiffs no.1 and 2).
7. The plaintiffs have relied on Ex.P2 to P4 and P7 to P9 - record of rights pertaining to the year 1931- 1935. It is the contention of plaintiffs that names of Fareedsab and Tajuddin were entered in these documents.
8. The learned counsel would submit that I-appellate court has not considered these documents because the documents were in Moodi language and translated copies were not made available.
9. As per findings of the courts below, after the year 1954, entries in revenue records were made in the name of Mehtabsab. As could be seen from the genealogical tree extracted above, deceased Mehtabsab has left behind his son namely Tamizuddin (defendant no.1). The parties being Muslims, are governed by Mohamemdan law. Therefore, plaintiffs in O.S.No.180/1989 who are the descendents of Rahimsab and Fareedsab cannot claim shares in suit item no.1 viz., land bearing Sy.no.224/2. It is not the case of plaintiffs that properties were jointly held by Fareed Sab and Tajuddin. Above all, the documents relied upon by plaintiffs, in particular Ex.P2 to P4 and P7 to P9 are styled as 'Pahani Patrikas'. Even if these documents are accepted, it is notpossible to hold that 'B' schedule item no.1 viz., land bearing Sy.No.224/2 was held and left by Fareedsab and Tajuddin. The plaintiffs cannot claim partition.
The plaintiffs have failed to establish that those documents were maintained by public officers in discharge of their duties. There is no presumption regarding correctness of entries made in 'Pahani Patrikas'. Therefore, the plaintiffs should have proved enjoyment of suit schedule properties as per the entries made in Ex.P2 to P4 and P7 to P9 as a matter of fact. In the circumstances, the courts below were justified in refusing to place reliance on these documents.
10. The first defendant has relied on the entries made in RTC extracts after the year 1954 upto 1985. Before the sale of property in the year 1985, the entries in RTC were made in the name of first defendant. Earlier, the entries in the RTC were made in the name of Mehtabsab and later the name of first defendant-Tameezuddin (son of Mehtabsab) was entered in the revenue records.
11. The plaintiffs have not adduced evidence to rebut the presumption available under Section 133 of the Karnataka Land Revenue Act, 1964. It appears, the father of first defendant sold suit item no.1 viz., land bearing Sy.No.224/2 in an extent of 34 guntas in favour of 6th defendant (9th defendant in O.S.No.180/1989) under registered sale deed dated 27.03.1986. The plaintiffs have filed the suit to impair the rights of 6th defendant.
The plaintiffs in O.S.No.75/1986 are the descendents of Rahimsab. In the discussion made supra, I have held that in the year 1971, in the revenue records, suit item no.1 - land bearing Sy.No.224/2 stood in the name of Mehtabsab. After his death, the name of first defendant (son of Mehtabsab) was entered. The plaintiffs in O.S.No.75/1986 who are the descendents of Rahimsab have not produced any material to show that Rahimsab was the owner of suit item no.1 at any point of time.
12. The plaintiffs no.1 and 2 are the descendents of Rahimsab so also, defendants no.3 to 5. The plaintiffs no.1 and 2 have not placed any material to show that suit item no.1 was possessed by Rahimsab at any point of time. Therefore, the averments of plaint that suit item no.1 was acquired by Rajesaheb who was their common ancestor and the plaintiffs and defendants (except defendant no.6) being the descendants of deceased Rajesaheb are entitled to share in the suit properties cannot be accepted. The plaintiffs have not produced documentary evidence to prove that suit item no.1 was acquired and left by deceased Raje Saheb.
13. The courts below, on proper appreciation of evidence have recorded aforestated concurrent findings.
14. The appellant has raised following substantial questions of law :
a) Whether the common judgment of the Lower Appellate Court is vitiated in law by non-consideration of the evidence both oral and documentary, placed on record ?
b) Whether the Lower Appellate Court has not formulated the points properly for necessary appreciation of materials placed on record?
c) Whether on the facts and circumstances of the case, the common judgment of the Lower Appellate Court calls for interference by this Hon'ble court to do substantial justice to the parties and avoid miscarriage of justice to the plaintiffs?
In view of the above discussion, the aforestated questions styled as substantial questions of law do not arise for consideration.
14. There are no reasons to interfere with the impugned judgment. RSA 430/2007 and RSA 431/2007 are dismissed.
Sd/-
JUDGE Np/-
since the Muslim Law does not recognize the principles of joint family and coparcener system as contemplated under the Hindu Law, however, owing to ignorance of law we invariably apply the provisions of Hindu Law. I believe that the Law Web helps to educate the law in more details. thanks
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