(Prayer: This RFA is filed under Section 96 r/w Order 41 Rule 1 of CPC., praying To, setaside the judgment and decree passed by Senior Civil Judge Ramdurg in O.S.No.28/2010 dated 25.02.2014 by allowing the appeal, in the interest of justice.
This RFA is filed under Order XLI Rule 1 r/w Section 96 of CPC., praying to, set aside and allow this appeal with costs by dismissing the suit filed by the Respondent No.1 in O.S. No.28/2010 on the file of the Senior Civil Judge Ramdurg at Ramdurg and also to dismiss the counter claim made by the Respondent Nos.3 To 146 I.E., the Defendants No.71 to 198 in O.S. No.28/2010 on the file of the Senior Civil Judge Ramdurg at: Ramdurg and etc.,.)
CAV Judgment
B. Muralidhara Pai, J.
1. Defendant No.35, legal representatives of Defendant No.44, Defendants Nos.8, 37 and 46 have maintained the appeal in RFA No.100070/2014 praying to set aside the judgment and decree dated 25.02.2014 passed in O.S. No.28/2010 by learned Senior Civil Judge, Ramdurg (in short, 'trial court') .
2. Defendant Nos.1 to 3, 7, 13 to 16, 23 to 26, 29, 31, 33, 34, 36, 38B, 38D, 42, 43, 44A, 45, 48 to 51, 53 to 60, 61A to 61F, 62 to 70 in O.S. No.28/2010 have maintained the appeal in RFA No. 100042/2014 praying to dismiss the suit as well as counter claim of Defendant Nos.71 to 198 by setting aside the judgment and decree passed therein by the trial court.
3. Brief facts leading to these appeals are as under:
i) The plaintiff/Respondent No.1 herein namely Smt. Zaheerabi maintained the suit in O.S. No.28/2010 for the relief of partition and separate possession, claiming her half share out of 1/18th share of her father namely Saheblal in Schedule A and B properties situated in Hale Torgal Village of Ramdurg Taluk.
ii) Initially, the plaintiff had maintained the suit against Defendant Nos.1 to 70. During pendency of the suit, Defendant Nos.71 to 199 maintained one more suit in O.S. No.1/2011 claiming share in almost same properties involved in O.S. No.28/2010 and obtained some interim order in I.A. No.I. It was challenged before this Court in MFA No.24629/2011. While disposing of the said miscellaneous appeal this Court gave liberty to Defendant Nos.71 to 199 to get themselves impleaded in O.S. No.28/2010 as the defendants. Accordingly, they maintained necessary application in the suit and came on record as additional Defendant Nos.71 to 199. Subsequently, Counsel for Defendant Nos.71 to 199 filed a memo before the trial court on 21.03.2013 stating that Defendant No.199 is not pressing for his impleadment as an additional defendant in the suit. Consequently, only Defendant Nos.71 to 198 were brought on record.
iii) The case of the plaintiff is that the schedule properties are the lands inherited from the ancestors by the plaintiff and defendants, which are in their possession and enjoyment. It is stated that one Fakai Ali was the propositus of the family. He had six sons and all of them were residing together and no partition had taken place amongst them. It is further stated that one of the sons of Fakai Ali namely Azeezoddin, was the grandfather of the plaintiff, who had three sons including Saheblal, the father of the plaintiff and Defendant No.1. She stated that during the lifetime of her father i.e, in the year 1989, the revenue authorities mutated the name of Defendant No.1 in respect of suit lands illegally, based on alleged wardi of her father and behind her back. According to her, Azeezoddin had 1/6th share in the schedule properties and she claims that being the daughter of Saheblal, she is entitled for half share in the 1/18th share of her father in the schedule properties. She contends that as Defendant No.1 refused to allot her share in the schedule properties, she was constrained to maintain the suit.
iv) On service of summons, Defendant Nos.1 to 70 appeared before the trial court through their counsel. Then, Defendant Nos.1, 10 and 35 filed their separate written statements. Defendant Nos.2 to 8, 11 to 27, 29 to 37, 39 to 46 and 48 to 70 adopted the written statement filed by Defendant No.35.
v) Defendant No.1, in his written statement, has emphatically denied correctness of the genealogy furnished in Schedule II of the plaint as well as description of the suit properties. He stated that the plaintiff does not know anything about the family and that she is not in possession and enjoyment of any of the schedule properties. Further, he stated that it is a speculative suit. According to Defendant No.1 after introduction of the Karnataka Land Reforms Act, his family had submitted a declaration before the Land Tribunal, Ramadurg, wherein after an enquiry, a detailed order came to be passed on 26.08.1981 holding that the family is holding excess land to an extent of 518.19 acres and a direction was given to surrender the same. Thus, he contended that in view of the said land, the family was not at all holding so much land as mentioned in the Schedule A of the plant as on the date of the suit. He further stated that on 23.06.1989 his father made an oral hiba and gifted all his properties in his favour, which was also reduced into writing on the same day. According to him the said act of his father was well within the knowledge of the plaintiff and as such she did not challenge either the said oral hiba or the revenue entries made in his name. In the above circumstances, Defendant No.1 contended that the plaintiff does not have any right or share in the schedule properties and prayed for dismissal of the suit. In his written statement, Defendant No.10 has categorically admitted all the contentions taken up by the plaintiff and submitted that the plaintiff and the defendants are entitled for share in the properties and that he has no objection for decreeing the suit.
vi) In his written statement, Defendant No.10 admitted all the averments of the plaint and prayed to decree the suit as prayed for.
vii) Defendant No.35, in his written statement, stated that the dispute is only between the plaintiff and Defendant No.1 and there is no claim against them. He stated that the plaintiff never challenged the mutation entry made in M. E. No.1740 of Hale Torgal Village and it is binding on her. According to him King Ali Adil Shah of Bijapur had granted the suit properties to Khazi Mohammed Bhaker(III) in the form of decree (farman), and those lands came to be granted to discharge his duties as Khazi of the said area. Thus, he contended that suit lands were watan properties. He submitted that after implementation of Land Reforms Act, they were compelled to seek declaration of their holdings before the Land Tribunal, Ramdurg, which passed an order and granted the suit lands to 16 families. He also stated that his ancestors had partitioned the properties amicably prior to 1981. He specifically contended that if at all the plaintiff has got any share, it is between her and Defendant No.1 and that Defendant Nos.2 to 70 are no way necessary parties to the suit. Hence, he prayed for dismissal of the suit.
viii) After the impleadment of Defendant Nos.71 to 198, Defendant Nos.116, 117, 119 and 120 have filed their common written statement and same was adopted by Defendant Nos.71 to 115, 118 and 121 to 198. In their written statement it is contended that the plaintiff and Defendant Nos.1 to 198 are the lineal descendants of Khazi Mohammed Bhaker and that Schedule B properties are the properties inherited by the parties to the suit from common propositus namely Khazi Mohammed Bhaker. They claimed that Schedule B properties are in joint possession and enjoyment of all the parties to the suit as tenants in common, which was originally granted to the propositus namely Khazi Mohammed Bhaker by King Adil Shah of Bijapur around 16th Century. They stated that the plaintiff and Defendant Nos.1 to 74 are the lineal decedents of Fakai Ali and Hasham Sab, who are the sons of 5th son of Sri Moulana Ibrahim Budke namely Sri Chotte Khazi Mohammed Bhaker. According to them the propositus namely Khazi Mohammed Bhaker died intestate and Schedule B properties were not divided amongst his descendants up to 7th generation and as a result, the vested inheritance devolved on his legal heirs as tenants in common. In view of the same, they contended that the plaintiff and 60 other female defendants are entitled to 1/337th share and 138 male defendants are entitled for 2/337th share each in Schedule B properties. In the above circumstances, they prayed to pass a judgment and decree for partition and separate possession of their share by metes and bounds and other consequential reliefs.
ix) In response to the counter claim of Defendant Nos.71 to 198, Defendant Nos.1 and 23 filed their separate written statement/rejoinder and disputed all their contentions and prayed for its rejection.
x) Based on the above pleadings and materials available on record, the trial court framed the following issues and additional issues:
ISSUES
1) Whether plaintiff proves that, one Fakai Ali was the propositus of plaintiff and defendants?
2) Whether the plaintiff further proves that, suit schedule properties are originally owned by Fakai Ali?
3) Whether the 1st defendant proves that, by virtue of Land Tribunal Order No.LR:DSR:906+908 dated 26.08.1991, 1st defendant father Saheblal Sirkhazi became the owner of lands in R.Sy.No.32/5, 28/1, 18/7, 53 and in R.Sy.No.92 of Hale-Torgal village?
4) Whether 1st defendant further proves that, Sri.Saheblal Sirkhazi has gifted away all his lands in favour of 1st defendant under oral gift dated 23.06.1989, as pleaded at para-8 of the written statement?
5) Whether 1st defendant further proves that, the mining lease dated 23.12.1978 is valid and binding on the share of plaintiff?
6) Whether defendants No.2 to 70 except D-10, proves that, suit schedule properties are originally granted to one Sri. Khazi Mohammed Bhaker (III) by his highness King Ali Adilsha and issued a Sanad in that regard?
7) Whether defendants No.2 to 70 except D-10. proves that, the Assistant Commissioner and Chairman of Ramdurg granted suit schedule lands in favour of 16 families of defendants ancestors and all of them are in separate possession and enjoyment of their respective shares?
8) Whether plaintiff further proves that, father of plaintiff and 1st defendant Sri. Saheblal was entitled for 1/18th in the suit schedule properties?
9) Whether plaintiff further proves that Sri.Saheblal father of 1st defendant was entitled for 1/18th share in the suit schedule properties?
10) Whether plaintiff proves that, she is entitled for partition and separate possession of half of the share in 1/18th share of suit schedule properties by metes and bounds?
11) Whether plaintiff further proves that, she is entitled for mesne profits with costs?
12) What order or decree?
Dt.09.09.2011 ADDITIONAL ISSUES
1) Whether defendants No.71 to 199 proves that, they are lineal descendants of Khazi Mohammad Bakher @ Fakirali?
2) Whether defendants No.71 to 199 proves that, the King Adilshah of Bijapur granted "B" schedule properties to one Khazi Mohammad Bakher @ Fakirali?
3) Whether defendants No.71 to 199 further proves that, they have vested interest in the "B" schedule properties?
4) Whether defendants No.71 to 199 further proves that, all female defendants are entitled for partition and separate possession of 1/337th share each in the "B" schedule properties and all male defendants are entitled for partition and separate possession of 2/337th share each in the "B" schedule properties?
5) Whether defendants No.71 to 199 further proves that, they are entitled for mesne profits, as prayed in their written statements?
Dt.03.09.2012 ADDITIONAL ISSUES
6) Whether defendants No.71 to 199 further proves that, they are entitled to legal shares as claimed in counter claim?
7) Whether defendant No.1 proves that, the counter claim made by defendants No.71 to 199 against co-defendants is not maintainable?
Dt.06.12.2012 ADDITIONAL ISSUES
8) Whether defendants No.2 to 9 and defendants No.11 to 17 proves that, defendants No.71 to 199 have no right to seek partition in the plaint "B" schedule properties?
xi) During the trial of the case, the plaintiff adduced her evidence through her GPA holder, examined one more witness and got marked documents at Exs.P-1 to P-25. On the other hand, Defendant Nos.1, 10, 121 and 34 got examined as DW-1 to DW-3 and DW-7 respectively, examined three more witnesses as DW-4 to DW-6 and got marked documents at Exs.D-1 to D- 25.
xii) Afterwards, the trial court heard the arguments of both sides, considered the materials placed on record and answered the above issues as under:
Issue Nos.1 & 2 : In the affirmative;
Issue Nos.3, 4, 6, 7 & 11: In the negative;
Issue No.5 : Does not survive for consideration;
Issue Nos.8 to 10 : Partly in affirmative;
Addl. Issue Nos.1 to 3 : In the affirmative;
Addl. Issue Nos.4 & 6 : Partly in affirmative;
Addl. Issue Nos.5 & 8 : In the negative;
Addl. Issue No.7 : Decided by Order dated 15.12.2012;
Main Issue No.12 : As per final order.
Accordingly, the trial court decreed the suit of the plaintiff as well as counter claim of Defendant Nos.71 to 198 in part holding that the plaintiff is entitled for 1/335th share and Defendant No.10 is entitled for 2/335th in Schedule A and B properties, and that female defendants are entitled for 1/335th share each and male defendants are entitled for 2/335th share each in Schedule B properties. Being aggrieved by the said judgment and decree, these appeals are filed.
4. Before proceeding further, it is proper to refer to the Order dated 28.08.2024 passed in these appeals. This Court, taking note of there being more than 190 persons as respondents, with one or other amongst them breathing last, necessitating filing of multiple applications to bring their legal representatives, with the consensus of the counsels appearing for both sides, disposed of all the pending applications to bring the legal representatives of the deceased parties as on that day and dispensed with need of bringing the legal representatives of any party, who demises during further proceedings as their respective branch is duly represented.
5. Based on the contentions of the parties, they can be broadly identified in two groups. The first comprises the plaintiff, Defendant No.10, and Defendant Nos. 71 to 198, who support the prayer for partition and separate possession of their shares in the schedule properties. The remaining defendants are the contesting defendants, who oppose both the prayer in the suit and the counter claim. For the sake of convenience, the defendants are hereinafter referred to as 'supporting defendants' or 'contesting defendants,' as the case may be.
6. Sri R. K. Kulkarni, learned Counsel for Appellants in RFA No.100070/2014 vehemently submitted that not only the genealogy furnished by the plaintiff and Defendant Nos.71 to 198 are different but also they have failed to prove the genealogy by adducing cogent evidence. He submitted that though the trial court proceeded to hold that the genealogy is reliable but it has not recorded which genealogy is reliable. He further submitted that the trial court relied on evidence of PW-2 to hold that Defendant Nos.71 to 198 are the family members of other parties to the suit, who does not know even his date of birth. He contended that the trial court has erred in entertaining the counter claim of Defendant Nos.71 to 198 directed against co- defendants. As such, he prayed to allow the appeal and set aside the impugned judgment and decree.
7. Sri Sanjay S. Katageri, learned Counsel for Appellants in RFA No.100042/2024, apart from adopting the above noted submissions, vigorously submitted that the documents produced at Ex.D-4 and D-6 goes to show that out of total holding of 2786.19 acres of land, excess land of 518.19 acres came to be vested with the government and remaining extent came to be allotted to the members of 16 families as detailed in the order of the Land Tribunal, Ramdurg. In view of the same, he contended that no other person has got any right of share in the properties in question.
8. Per contra, Sri V.P. Kulkarni, learned Counsel appearing for Sri H.R. Gundappa, Counsel for the Plaintiff and some of the supporting defendants submitted that Defendant No.23 has admitted the grant made in favour of Khazi Mohammed Bhaker and same has been adopted by other defendants. He submitted that though Defendant No.1 adduced his evidence as DW-1, he did not tender himself for cross- examination by Defendant Nos.71 to 198. In view of the same, he prayed to drawn an adverse inference against Defendant No.1. He further submitted that Defendant No.121 has stated about genealogy in detail, which was not specifically denied either by the plaintiff or by other defendants. He contended that the genealogy is of more than 30 years old document and other materials on record support the contents of the said document. In view of the same, he forcefully submitted that the plaintiff and the supporting defendants have clearly established that they are the members of the family of propositus namely Khazi Mohammed Bhaker. He also submitted that the appeals filed by the contesting defendants are not maintainable as they have failed to file separate appeals against the decree passed in the suit and the decree passed based on the counter claim of Defendant Nos.71 to 198. As such, he prayed for dismissal of the appeals.
9. Sri H.M. Dharigond, Sri Shivaraj S. Balloli and Sri Syed Liyakath, learned Counsels appearing for remaining supporting defendants also supported the impugned judgment and decree as well as the findings recorded by the trial court and submitted that the contesting defendants have not made out any valid grounds to interfere with the impugned judgment and decree. As such, they prayed to maintain the same.
10. Having heard learned Counsels appearing for both sides and on re-appreciating the oral and documentary evidence available on record, the following points arise for consideration of this Court:
i. Whether the contesting defendants ought to have filed separate appeals against the decree passed in the suit and based on the counter-claim of Defendant Nos. 71 to 198?
ii. Whether the counter-claim sought by Defendant Nos. 71 to 198 is maintainable?
iii. Whether the trial court was justified in decreeing the suit and the counter claim of Defendant Nos.71 to 198?
Point No.(i)
11. As noted above, these appeals are directed against the judgment and decree where under the trial court partly decreed the suit of the plaintiff as well as the counter claim sought by Defendant Nos.71 to 198 holding that the plaintiff and Defendant No.10 are entitled for 1/335th share each in Schedule A and B properties and that the male and female defendants are entitled for 2/335th share each and 1/335th share each, in Schedule B properties. Admittedly, the contesting defendants have not maintained separate appeals challenging the decree passed in the suit and on counter claim of Defendant Nos.71 to 198.
12. Learned Counsel for the plaintiff and supporting defendants strenuously submitted that the contesting defendants ought to have filed separate appeals questioning the decree in the suit and on counter claim and they having failed to do so, the present appeals are not maintainable and they are liable to be dismissed. In support of this contention, he relied on a decision in Girija Vs Rajan reported in 2015(2) Civil Court Cases 106 (Kerala). In this case, the appellant was the defendant in a suit for permanent prohibitory injunction filed on the allegation of his attempt to trespass the schedule property. While contesting the said suit, the appellant raised a contention that the respondent/plaintiff was trying to annihilate her right of way over the schedule property and sought counter claim. The trial court decreed the suit and dismissed the counter claim. The appellant took up the matter in first appeal, which was also dismissed. Feeling aggrieved, the appellant preferred the second appeal, wherein two questions, i.e, whether a defendant, who raised a counter claim in the suit, bound to file two appeals if the suit was decreed after rejecting the counter claim and Will that part of the judgment, disallowing the counter claim, operates as res judicata in so far as the appeal filed against the decree in the suit is concerned?, arose for consideration. Learned Single Judge of Hon'ble High Court of Kerala relying on the judgment in Janardhanan Pillai and Premier Tyres Limited Vs Kerala State Road Transport Corporation reported in 1993 (Suppl) Civil Court Cases 694 (SC) and other cases held that there should be separate appeals in cross suits and dismissed the second appeal as not maintainable.
13. The factual matrix of the present case is totally different from the factual aspects of the above referred case. These appeals arise out of the judgment and decree passed in a suit for partition and separate possession of the plaintiff's share in Schedule A and B properties, wherein the trail court considered the counter claim of supporting defendants, who prayed for allotment of their legitimate share in Schedule B properties. Thereby, it becomes clear that both these prayers had been sought mainly in respect of five items of properties mentioned in Schedule B of the plaint. The materials on record make it clear that the supporting defendants have not made any independent claim over Schedule B properties to the exclusion of the plaintiff or contesting defendants. On the other hand, it is their case that the plaintiff and all the defendants are the lineal descendants of common ancestor and all of them have got a share in the schedule properties as per their personal law. It is relevant to note that Order XX Rule 18(2) of CPC mandates the court which passes a decree for the partition and separate possession, to declare the rights of the interested parties in the property in dispute. In view of the same, the trial court was required to declare the shares of the defendants in the schedule properties, if any, even in the absence of the counter claim made by Defendant Nos.71 to 198. It is noteworthy that though the contesting defendants have filed a single appeal, they have paid the requisite court fee payable in the event of filing separate appeals against the decree in the suit as well as on the counter claim. In the peculiar facts and circumstances of the case, this Court holds that there was no need for the contesting defendants to prefer separate appeals against the impugned judgment and decree and that these appeals are perfectly maintainable. Accordingly, Point No.(i) is answered in the negative.
Point No.(ii):
14. Learned Counsels for contesting defendants have vehemently contended that the counter claim sought by Defendant Nos.71 to 198 is not maintainable as the said relief has been sought against co-defendants and not against the plaintiff. In support of this argument, they have placed reliance on the decisions in Sanjay Tiwari Vs Yugal Kishore Prasad Sao and Others (2025 INSC 1310) and Satyender and Others Vs. Saroj and Others (2022 INSC 839). In these decisions, Hon'ble Apex Court has emphatically held that a counter claim can be set up only against the claim of the plaintiff and such a counter claim must be against the plaintiff only. The case on hand is a suit for partition. It is well settled that in partition suits, particularly involving co-owned or joint family property, all parties claiming a share are treated as both plaintiffs and defendants due to the interchangeable nature of their positions. The defendants filing written statements with court fees for their shares become co-plaintiffs in substance. In view of this settled position of law, the relief sought by Defendant Nos.71 to 198 - partition and separate possession of their share in plaint Schedule B properties, cannot be treated as a claim directed against co-defendants. Hence, this Court does not find any merit in the objection raised by the contesting defendants regarding maintainability of the reliefs sought by Defendant Nos.71 to 198. Accordingly, Poinr No.(ii) is answered in the affirmative.
Point No.(iii) :
15. The parties to the suit are Mohammedans and governed by their personal law. Basic position in Mohammedan law is that all properties of a person - either self acquired or inherited, are treated as his individual properties. There is no concept of joint family or coparcenary and even 'ancestral property'. The heirs acquire fixed shares only on the death of the owner and there is no birth right in the property during the lifetime of the ancestor. Hence, their contentions need to be appreciated in the light of above narrated legal principles.
16. The plaintiff - Smt. Zaheerabi has maintained the suit against her brother i.e, Defendant No.1 and others, claiming her half share out of 1/18th share of her father in Schedule A and B properties situated in Hale Torgal Village of Ramdurg Taluk or for her legitimate share therein and other consequential reliefs. The plaintiff has furnished genealogy of her family at Schedule II of the plaint. It is the case of the plaintiff that one Fakai Ali was the propositus of her family. He had six sons namely Azeezoddin, Nooruddin, Adbul Admed, Fakruddin, Abdul Rehman and Khalil Basha. It is stated that the above mentioned Azeezoddin had three sons namely Saheblal, Shamshuddin and Allahuddin and that the plaintiff and Defendant No.1 are the children of Azeezoddin. The case of the plaintiff is that her grandfather Azeezoddin had 1/6th share in the schedule properties and her father Saheblal had 1/18th share. In the background of these contentions, the plaintiff claimed that she has got half share in 1/18th share of her father in the schedule properties.
17. The averments of the plaint go to show that the plaintiff has not come up with a definite case regarding source of her claim. On the other hand, she has vaguely contended that the schedule properties of the plaintiff and defendants, which were succeeded from their ancestors. The plaintiff has adduced her evidence in the case through her GPA holder, who is also her husband, namely Mirza Beg Alias Dadajan and her son namely Ameer Beg as PW-1 and PW-2 respectively. During their examination-in-chief, none of them made a specific statement about the person, who had acquired the properties in questions and thereby to probabilise the basis for the claim of the plaintiff.
18. No doubt, it is the case of the plaintiff that the revenue authorities effected mutation in the name of Defendant No.1 based on alleged wardi of her father and that it was an illegal entry. She has further stated that during the year 2007 the defendants got entered their names in the revenue records of Schedule B properties behind her back and at their whims and fancies. However, in the considered view of this Court these contentions of the plaintiff cannot be a basis to hold that she has a right to claim a share in the schedule properties. As already pointed out, the plaintiff has not come up with a definite case regarding the person through whom the schedule properties devolved upon and about the persons who succeeded to the properties. The plaintiff has got marked certain RORs and mutation register extracts during the evidence of PW-1 and PW- 2. However, it is to be noted all these revenue records pertain to recent years. These documents do not throw any light about the ancestor of the plaintiff, who had acquired the properties in question or the manner in which devolved upon his successors.
19. Defendant Nos.71 to 198 are the other persons who have claimed their share in Schedule B properties and who conceded the claim of the plaintiff for her share in the schedule properties. According to these defendants, one Khazi Mohammed Bhaker Alias Fakir Ali was the original grantee of Schedule B properties, who got the properties under a grant made by King Adil Shah of Bijapur around 18th Century. They have contended that the plaintiff and Defendant Nos.1 to 198 are the lineal descendents of said Khazi Mohammed Bhaker Alias Fakir Ali and that after his death, Schedule B properties were not divided amongst his family members up to seventh generation.
20. These defendants have examined Defendant No.121 as DW-3 to prove their case. During his evidence, DW-3 has reiterated the averments of the written statement and stated that he is of seventh generation in the family. Thus, based on such categorical statement of DW-3, it can be safely held that he has no personal knowledge about his ancestors or about the family affairs that transpired particularly during first to fourth generation.
21. Defendant No.121 has got marked a certified copy of genealogy at Ex.D-7, which was said to be produced in O.S.No.1/2011. Admittedly, O.S. No.1/2011 is a suit instituted by Defendant Nos.71 to 198 subsequent to filing of this suit. In Ex.D-7, one Khazi Mohammed Bhaker Saheb urf Bhoo Mahim Fakir Ali has been shown as the propositus of the family. As per the said document, he had four sons by name Ali Sab, Maulana Ibrahim Budke, Habib Sab and Mustafa Sab. Further, it is mentioned that Habib Sab went to Ganaganur and Mustafa Sab became Shaheed. Thus, it becomes clear that Ex.D-7 does not contain the details of the legal heirs of Habib Sab and Mustafa Sab, who were said to be of first generation and it is an incomplete document.
22. As shown in Ex.D-7, all other persons mentioned therein are either the descendants of Ali Saheb urf Khazi Ali and Maulana Ibrahim Budke. In Ex.D-7 it is shown that Khazi Mohammed Bhaker Saheb urf Chotte Khazi Bhaker was the son of Maulana Ibrahim Budake and the person adopted by Ali Saheb urf Khazi Ali. Whereas, in their written statement, it is stated that "....the fifth son of Maulana Ibrahim Budke Chotte Khazi Mohammed Bhaker was given to his elder brother Ali Sab Alias Khazi Ali. He was begotten under his care and custody....(para 16)". The contention of Chotte Khazi Mohammed Bhaker having been adopted by Ali Saheb Alias Khazi Ali was raised during the examination-in-chief of DW-3. At the same time, DW-3 has even made a statement to the effect the mohammedan law does not recognize the adoption. It is trite law that the personal law of mohammedans does not recognize creation of a parent-child relationship based on adoption for the purpose of inheritance or maintenance. The mohammedans can only take care of the orphans by way of guardianship, without altering identity and biological ties. Thereby, it becomes clear that Defendant Nos.71 to 198 have raised inconsistent and unacceptable contention regarding succession/inheritance of Chotte Khazi Mohammed Bhaker through Ali Saheb urf Khazi Ali, who is said to be the son of Khazi Mohammed Bhaker urf Bhoo Mahim Fakir Ali.
23. Perusal of the impugned judgment goes to show that the trial court proceeded to accept the genealogy tree produced at Ex.D-19 on the ground that it is very old document, which has come from proper custody and that Defendant Nos.71 to 198 have adduced cogent evidence to prove the said document. During the course of argument in this appeal, Counsel for these defendants relied on a decision in Jagdeo and Others Vs Vithoba and Others reported in AIR 1928 Nagpur 20 and submitted that the trial court was justified in accepting the said evidence, which is a relevant fact under Section 32(5) and (6) of the Evidence Act.
24. In the above referred decision, while appreciating the evidence on record in connection with pedigree, a presumption was raised under Section 32(6) and Section 90 of the Evidence Act as to its genuineness for the following reasons:
"... Except the testimony of plaintiff as P.W.1 and of P.W.2 there is no independent evidence on record to prove the handwriting of the genealogical tree. The statement of P.W.2 that his father used to say that the genealogical tree was prepared by Bhagwan, his father, uncorroborated though it is, makes the document more than 30 years old as Bhagwan is said to have died more than 32 years ago. In my opinion the lower appellate court before proceeding to consider the weight to be attached to Ex.P-5 ought to have come to a definite finding whether that document is genuine or not in all its particulars. In judging its genuineness it has really put the cart before the horse. In view of the fact that the relationship as described therein ws corroborated in material parts by the oral testimony of plaintiffs' witnesses as also of defendants' witnesses, and of the prima facie believable evidence on record that Bhagwan, its author, had died more than 32 years prior to the present litigation, and of the further circumstance that it prima facie satisfies all the conditions prescribed by S.32 (6), Indian Evidence Act, I think the learned Judge ought to have made a presumption in favour of its genuineness. This view finds ample support in the case Jahangir v. Sihvrajsingh (1) and Lahnoo v. Motiram (2). In those cases there was no evidence to show who had actually written the document. In any case the document in question was admissible and had a great evidentiary value as a statement of a deceased relation of Raising, the last male holder, or at any rate of the witness's ancestor who must be taken to have adopted it, as pointed out by this Court in Namdeo v. Ganoba (3)."
25. Section 32(5) and (6) of Evidence Act stipulates the circumstances in which the statement of a dead person or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, are themselves relevant facts. In the case on hand, though Defendant Nos.71 to 198 produced a document at Ex.D-19 claiming to be the genealogy of their family, they have not come up with definite details such as the person who prepared the document, the date or period when it was prepared and basis/source of information, mentioned therein. The question of invoking the presumption under Section 32(5) and (6) of Evidence Act would arise only when the party relying on the document, adduces evidence relevant to draw such a presumption.
26. In his evidence, Defendant No.121 i.e., DW-3 has claimed that his father-in-law namely Abdul Samad Saheb, son of Budan Khazi Alias B. Khazi had handed an old genealogy to him and that he would produce the said document before the court. However, during his evidence, no such document was got marked. Defendant Nos.71 to 198 have produced one document at Ex.D-19, said to be the original genealogical tree in Modi language. First of all, it was got marked through DW-5, Fakruddin, who claims to be a transcriptor and translator since 20 to 25 years. Undisputedly, Ex.D-19 is in two parts. The bigger portion of the document seems to be written on a paper. The other small portion has been laminated. A bare look at the small portion indicates that it is not the part of bigger portion found at Ex.D-19. It is because with bare eyes one can make out the differences between these two portions of the document such as its paper and texture. Added to the above, one can make out usage of different papers and pasting of some piece of paper containing some writings thereon. Added to the above, during his cross-examination, DW-3 himself admitted that the said document appears to be in the handwriting of different persons. In view of the same, it is to be held that the supporting defendants have failed to prove genuineness and authenticity of the document marked at Ex.D-19.
27. Undisputedly, there are two genealogy trees before the court. One is furnished by the plaintiff as Schedule II to the plaint and other one is the genealogy produced at Ex.D-7 and Ex.D-19. Admittedly, the contents of these documents do not tally with each other. Added to the above, neither the plaintiff nor the supporting defendants have adduced convincing evidence to prove the genealogy of their family. Learned Counsel for supporting defendants drew the attention of this Court to certain admissions made by the plaintiff and other defendants and forcefully argued that none of the parties to the suit has specifically denied the genealogy of the family given by them. No doubt, the case papers indicate the plaintiff and other defendants having made certain admissions as contended by the supporting defendants. However, the court is required to appreciate reliability of such admissions before arriving at a conclusion based on such admission. It is to be noted that all the parties to the suit are either the persons of 6th or 7th generation. Whereas, the case of supporting defendants is that there was no partition in the family for seven generations. As such, the court has got a greater responsibility of carefully scrutinizing the admissions given by the parties before relying on it. It is to be noted that the plaintiff, Defendant No.10 and Defendant Nos.71 to 198 are sailing together and seeking partition and separate possession of their share in Schedule B properties. Thus, the materials on record indicate that they have no conflicting interest in the case. In spite of the same, Defendant Nos.71 to 198 opted to cross- examine the plaintiff and Defendant No.10 and obtained the admissions based on suggestions. In the above circumstances, this Court does not find any valid reason to invoke the provisions of Section 32(5) and (6) of Evidence Act and to rely on these genealogy trees furnished by the plaintiff and Defendant Nos.71 to 198.
28. The other main document relied on by Defendant Nos.71 to 198 is Ex.D25, which is a xerox copy of alleged Sanad, received in evidence subject to objection. They have produced a document at Ex.D25(a) said to be the true translation of the document marked at Ex.D25. The document marked at Ex.D25(a) reads as under :
"Bismillah Al-Rahaman Al-Rahim (In the name of Allah the Benovelant & Most Merciful) 10th Day of Rabiul Awwal Month 1980 Hijiri.
Be it known to the Jagirdars and Servants, Present and Future times of "Darul-Zaraf' Bijapur province (suba) who are resident and apponted on the authority of the glorious 'Firman' (Decree) dated 10th Rabiul Awwal 34th Jaloos Year related to the above said 'Taluka' inclusive of the Old Torgal, the Hill, the Forests, and the villages near and around have been handed over to Khazi Mohammed Baqar son of Khazi Ali who is holding office of Khazi at present by 'Madarul Maham' (official title) Asad Khan, 'Risaldar' and 'Sadroos Sudoor' (official title) Salar Khan and Minister Diyanath Khan and that a sum of Rupees 382/- be paid annually to the servants related to Torgal Taluk on behalf of abovesaid sircar (Administration) of Torgal and in the event of failure to perform duties a sustenance allowance by way of grace be fixed in accordance with the income according to the terms of the 'Parvana' (Decree) and the Khazi shall function as such, bearing in view all rituals and obligations in discharge of the duties of the Khazi and implementation of the duties and all matters, affairs, and litigations of the commonfolk, division of shares in properties, clarification of doubts, motivating and counseling the people towards valid and right means of income, (Halal) worship and penalties, Friday prayers establishment of Jamaath (congregation) Instituting inquiries against usurpation of rights and properties foisted false charges and deal with perseverance to identify the rights of people and motivating them to obey every royal farman (Decree). Towards this end the above said old Torgal, Hill, Forests, Villages are handed over to him with full rights and powers over these and which shall accrue and pass on hereditarily, generation after generation to the successors and remain as such and other such causes that may emerge later and are liable to be ignored or excused are to be treated as out of this purview."
29. It is the case of Defendant Nos.71 to 198 that this document is the Sanad, evidencing grant of Schedule B properties by King Adil Shah of Bijapur to Khazi Mohammed Bhaker. No doubt, this document contains a reference to one Khazi Mohammed Bhaker, son of Khazi Ali. However, this document does not mention about its author and the capacity in which it was executed or issued. Further, the document is also silent about conferring of right, title and interest over any property in favour of Khazi Mohammed Bhaker. On the other hand, it gives an impression that it was an authorization to administer an area i.e., Old Torgal, the Hill, the forest and the villages near and around, with a liability of paying a sum of Rs.382/- annually to the servants related to Torgal Taluka on behalf of the Sircar (Administration) of Torgal. This document contains specific mention about the works entrusted to the concerned as "...the Khazi shall function as such, bearing in view all rituals and obligations in discharge of the duties of the Khazi and implementation of the duties and all matters, affairs, and litigations of the common folk, division of shares in properties (emphasis supplied), clarification of doubts, motivating and counseling the people towards valid and right means of income, (Halal) worship and penalties, Friday prayers establishment of Jamaath (congregation) Instituting inquiries against usurpation of rights and properties foisted false charges and deal with perseverance to identify the rights of people and motivating them to obey every royal firman (Decree)...". As per this document, one of the responsibilities cast on person concerned is of "division of shares in properties". If at all the document in question had been executed with an intention of conferring right, title and interest over entire property on the person concerned, there was no question of entrusting him with the responsibility of dividing the shares in the properties. As such, this Court holds that the document marked at Ex.D25 does not support the case of Defendant Nos.71 to 198.
30. At this stage, it is relevant to note that during his cross-examination PW-1 has categorically stated that after the death of Sri Khazi Mohammed Bhaker, the lands granted to him were partitioned. The deposition of PW-1 makes it clear that the above statement of PW-1 is not a stray admission. It is because during his further cross-examination, PW-1 has asserted that he has produced the documents before the court to prove the partition effected between the legal heirs of Khazi Mohammed Bhaker. It is true that the plaintiff has not produced any such document before the trial court. However, the unequivocal assertion of PW-1 undoubtedly indicates existence of document evidencing such partition or his clear knowledge about earlier partition in the family. In addition to the above, PW-1 has categorically denied the suggestion that there was no partition of the lands granted after the death of Khazi Mohammed Bhaker. Such an assertion was made by PW-1 during his further cross- examination conducted on 10.10.2012, i.e., after a gap of about one month from the date on which he faced the cross- examination for first time.
31. The materials on record give an impression that the plaintiff chose to examine her son as PW-2 in the case so as to get over the consequences of the admissions/statements made by PW-1. Otherwise, there was no need for the plaintiff to examine her son, who was aged 45 years at the time of giving his evidence. During his examination in chief, PW-2 has not made any statement other than reiterating the averments of the plaint. It is also to be noted that during his cross-examination on the side of Defendant No.1, PW-2 has categorically admitted that he was present in the court during the examination of PW-1. He contended that there are mistakes in the evidence adduced by his father i.e., PW-1 and claimed that his version is correct. It is relevant to note that to a pointed question, PW-2 has stated that he does not know his date of birth or even the date of marriage of his parents. He further admitted that he had neither maintained the genealogy of the family or seen genealogy pertaining to the family of Sarkaji. He has unequivocally admitted that he has no information about the said genealogy. In the above circumstances, this Court does not find any reason to believe and rely on the testimony of PW-2 in preference to the statements/admissions given by PW-1.
32. It is relevant to note that Defendant No.1 in his written statement has specifically contended that after the implementation of Land Reforms Act, his ancestors had filed a declaration about their holdings before the Assistant Commissioner and the Chairman of Land Tribunal, Ramdurg, based on which an order came to be passed to surrender excess extent of land held by the family. He further stated that such a declaration had been submitted by 16 families of his ancestors, who had got partitioned the properties amicably between them. In support of the documents produced at Ex.D4 and D5 support the above contention of Defendant No.1. It is to be noted that even the plaintiff or the defendants do not dispute such proceeding before concerned authority. Their only contention is that there is no order or document evidencing grant of lands in favour of 16 families as contended by Defendant No.1. The absence of such an order or lack of proof to show grant of land is not material in the case. It is because Defendant No.1 has not sought any relief in the suit based on such an order. However, admission regarding proceeding conducted before concerned authority and the materials to prove submission of the declarations by some of the parties would certainly help Defendant No.1 in probabilizing his contentions and particularly earlier partition in the family.
33. Counsel for Defendant Nos.71 to 198 has even made an attempt to seek for discarding evidence of Defendant No.1 i.e., DW-1 on the ground that he did not tender for cross- examination on their side. In this regard, learned Counsel for these defendants relied on a decision in Vidhyadhar Vs. Manikrao and another reported in (1999) 3 SCC 573. In this decision Hon'ble Apex Court has held that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. In the present case, the plaintiff and Defendant Nos.71 to 198 are claiming their right to have a share in the schedule properties. The materials on record go to show that Defendant No.1 filed his affidavit in lieu of examination in chief on 19.11.2012, adduced his further evidence and even faced cross-examination on the side of the plaintiff on the same day as well as on 06.12.2012. The order sheet reveals that on 06.12.2012 further cross-examination of Defendant No.1 was deferred for want of time. On subsequent dates of hearing, Defendant No.1 remained absent before the Court and as such on 14.12.2012 the trial court noted the absence of Defendant No.1 and his failure to tender for cross-examination on the side of Defendant Nos.71 to 198. In the facts and circumstances, this Court does not find any justification either to eschew the testimony of Defendant No.1 or to draw any adverse inference against him.
34. It is true that though Defendant No.1 raised a contention about his father having made an oral hiba and gifted all his properties to him in the presence of certain witnesses, he has not substantiated the said contention by examining concerned persons. This aspect has no bearing on the case particularly when the plaintiff and Defendant Nos.71 to 198 have failed to establish their case by discharging the initial burden on them. On reappreciation of the materials available on record, it becomes clear that the plaintiff, Defendant No.10 and Defendant Nos.71 to 198 have failed to prove their right to claim share in the schedule properties through their propositus as well as the said properties being available for partition as on the date of the suit. For the foregoing reasons, this Court proceeds to pass the following:
ORDER
i. Both the appeals in RFA Nos.100070/2014 and 100042/2014 are allowed with cost throughout.
ii. Consequently, judgment and decree dated 25.02.2014 passed in O.S.No.28/2010 passed by learned Senior Civil Judge, Ramdurg, decreeing the suit of the plaintiff and the counter claim of Defendant Nos.71 to 198 is set aside and same are dismissed.
iii. Draw decree accordingly.
iv. The registry is directed to send back the record to concerned trial court at the earliest.
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