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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.300 OF 1989
01. Equbalbegum w/o Sk.Ahmed
02. Mohd.Anwar s/o Sk.Ahmed
03. Mohd.Mustafa s/o Sk.Ahmed
04. Mohd. Osman s/o Sk.Ahmed
05. Mohd.Samad s/o Sk.Ahmed.
06. Jamilabi w/o Sk Ismail
07. Najamabegum w/o Syed Equbal
08. Lalbi w/o Shaha Mohd.
09. Khalil Mohd. s/o Shaha Mohd.
10. Abedabegum w/o Syyed Anis
11. Khamarbegum w/o Syyed Chand
12. Amenabegum syyed Baba
13. Abdul Khadir s/o Shaha Mohd.
14. Saidabegum w/o Ekbal
15. Sk.Abdul Sattar s/o Shaha Mohd APPELLANTS
VERSUS
01. Abdul Rahim Fateh Mohammad
02. Banobi w/o Abdul Karim
03. Vajirbi w/o Sk.Ismail (Apeal abated as
against R-3 as per
order dt. 15.07.2008)
04. Fatemabi w/o Amirkhan
05. Shaikh Bale s/o Fateh Mohd. RESPONDENTS
.....
Mr. S.P.Chapalgaonkar, Advocate for the Appellants
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Mr. C.R.Deshpande, Advocate for the respondent No.1
.....
[CORAM: V.R. KINGAONKAR, J.]
Reserved on : 15/09/2008
Pronounced on : 19/09/2008
----------------------------
JUDGMENT :
1. Challenge in this appeal is to judgment
rendered by learned Second Additional District Judge,
Beed, in an appeal (RCA No.415/1984) whereby and
whereunder dismissal of decree in a Civil Suit (RCS
No.144/1979) came to be reversed.
2. Appellants
ig herein are original defendant Nos.
1 to 7 and 9 to 15. Respondent No.1 Abdul Rahim is
the original plaintiff. Respondent No.2 Banobi is
original defendant No.16, deceased respondent No.3
Vajirbi is original defendant No.18, respondent No.4
Fatemabi is original defendant No.17 and respondent
No.5 Shaikh Bale is original defendant No.19 in the
context of suit bearing RCS No.144/1979.
3. The suit was for partition in respect of three
house properties bearing M.C. Nos.1422, 1425 and
1426, situated at Lohargalli, Beed and as described in
the plaint. The following pedigree table is mostly
uncontroverted, expect the controversy pertaining to
branch inherited by Chandbi, through whom the
plaintiff claims right of succession.
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Haji-Mohammed
_________________________¦___________________________
¦ ¦
(Daughter) Mohammed Osman
Chandbi (Disputed) ¦
______¦____________________________________ ¦
¦ ¦ ¦ ¦ ¦ ¦
Sk.Bale Abdul Rahim Banobi Vazirbi Fatemabi ¦
(son) (son) (Dter) (Dter) (Dter) ¦
Dft.19 Plaintiff Dft.16 Dft.18 Dft.17 ¦
¦
__________________________________________________¦
¦ ¦
Mohommed Amin Shaikh Ahmed
(son) (son)
¦ _________________________________¦______
¦ ¦ ¦ ¦ ¦
Shaha Anwar Mustaffa Shaikh Akbalbi
Mohd Dft.1 Dft.2 Dft.3 Dft.4
¦ ________________________________________
¦
¦
¦
¦
son
Samad
ig ¦
Daughter
Nazema
¦
Daughter
Zemilabi
¦ Dft.5 Dft. 6 Dft.7
¦____________________________________________
¦ ¦ ¦ ¦ ¦
¦ son son Widow son
¦ Abdul Sattr Khalil Lalbi Mohd.Kadir
¦ Dft.8 Dft.9 Dft.10 Dft.11
¦____________________________________________
¦ ¦ ¦ ¦
Daughter Daughter Daughter Daughter
Abeda Syeda Khairunisa Amina
Dft.12 Dft.13 Dft.14 Dft.15
4. Briefly stated, the plaintiff’s case in the
trial Court was that the suit properties were owned by
common ancestor – Haji Mohommad, who died about 70
years prior, leaving behind him daughter Chandbi and
son Mohd Osman. He avered that after the death of
Haji Mohd, said Chandbi and Mohd Osman were jointly
enjoying possession of the suit properties during
their lifetime. Chandbi was dwelling in house No.1422
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whereas Mohd Osman was dwelling in other two houses.
The suit house properties were not partitioned amongst
themselves. Mohd Osman died prior to about 35 years
and predeceased Chandbi. She died about 5 years
later, leaving behind two sons i.e. plaintiff and
defendant No.19-Shaikh Bale and three daughters i.e.
defendants No.16 to 18. Defendants No.1 to 15 are the
legal representatives of Mohd Osman and are occupants
of other two houses bearing Nos. 1425 and 1426,
whereas he and his branch members are occupants of
house No.1422. Father of defendants No.1 to 3 had
filed a suit (RCS No.65/1968) for possession against
the
defendant No.19- Shaikh Bale, which was decreed.
An appeal carried by defendant No.19-Shaikh Bale was
dismissed on 10.02.1971. According to plaintiff, he
and defendant Nos.16 to 18 were not parties to the
said suit and, therefore, the judgment and decree
rendered in the said suit is not binding on them. He,
therefore, sought 2/7th share as a successor of
deceased Chandbi.
5. The contesting defendants (Appellants herein)
resisted the suit. They flatly denied that deceased
Chandbi was the daughter of deceased Haji Mohd and was
residing in house property bearing No.1422. They also
denied that after the death of Chandbi, plaintiff and
defendant Nos.16 to 19 continued to reside therein.
According to them, a portion of house No.1422 was
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temporarily given to the plaintiff and defendant
No.19, as licenceeses. They asserted that a false and
vexatious claim is set up by the plaintiff
notwithstanding the decree for possession in the
previous suit (RCS No.65/1968) against defendant No.19
-Shaikh Bale. They would submit that the previous
judgments and decree is binding on the plaintiff.
Hence, they sought dismissal of the suit with
compensatory costs of Rs.1000/-.
6. The parties went to trial over certain issues
struck by the learned Civil Judge. The learned Civil
Judge
(JD), was pleased to dismiss the suit. He held
that the plaintiff failed to prove his lawful
possession in respect of house No.1422 and also the
allegation that deceased Chandbi was daughter of
original owner, namely, Haji Mohd. He, therefore,
held that neither the plaintiff nor defendant Nos. 16
to 18 are entitled to claim any share in the suit
properties. Feeling aggrieved, the plaintiff
preferred an appeal (RCA No.415/1984), which came to
be allowed. By the impugned judgment, the learned
Additional District Judge held that deceased Chandbi
was daughter of Haji Mohd and was entitled to claim
her share in the suit properties. He held that the
judgment and decree in previous suit (RCS No.65/1968)
would not be binding on rights of the plaintiff and
the defendants No.16 to 18. He further held that the
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plaintiff would be entitled to 2/7th share in the suit
properties, defendant Nos. 16 to 18 would be entitled
to get 1/7th share out of 1/3rd share of deceased
Chandbi and defendant No.19 would be entitled to 2/7th
share out of the share of deceased Chandbi.
7. Mr.Chapalgaonkar would submit that the First
Appellate Court committed patent error while reversing
the dismissal decree. He would submit that though the
defendant No.19-Shaikh Bale was held as trespasser in
respect of house property No.1422 as a result of
decision in the previous suit, yet by virtue of the
impugned judgment, 2/7th share has been allotted to
him, which
is impermissible. He contended that the
plaintiff filed false suit after commencement of
execution proceedings in relation to the earlier
decree for possession. He would submit that there is
no tangible evidence to infer that deceased Chandbi
was the daughter of the original owner – Haji Mohd.
He would submit, therefore, that the findings of the
First Appellate Court are perverse and liable to be
interfered with.
8. There is no dispute about the fact that,
during pendency of this appeal, original defendant
No.18-Vajirbi, who was respondent No.3 herein, died.
Her legal representatives are not brought on record.
Appeal abated against her, as per order rendered by
this Court on 15.07.2008. No steps were taken for
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substitution of the legal representatives and setting
aside the abatement. Thus, the partition decree, to
the extent of her share, has become final.
9. Before I proceed to consider merits of the
matter, let it be noted that unfortunately no
substantial question of law was framed when this
second appeal came to be admitted. The then Hon’ble
Judge (A.D.Mane,J.), passed following order-
“Admit. Notice, R & P. Shri.Yevtekar
advocate waives notice for respondent No.1”
10. Mr.C.R.Deshpande, learned advocate for the
plaintiff / original defendant No.1, would submit that
the Second Appeal has abated in entirety due to
non-substitution of the L.R.s of respondent
No.3-deceased Vajirbi. He would submit that since the
partition decree has become final to the extent of
respondent No.3-deceased Vajirbi, now passing of any
conflicting decree, without taking her legal
representatives on record, would not be proper.
Hence, he urged that the appeal may be held as abated
under Order XXII Rule 3 of the Code of Civil
Procedure.
11. There is no substantial question of law,
reflected from the appeal memo. The First Appellate
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Court appreciated the evidence on record. The only
disputed question is whether Chandbi was the daughter
of deceased Haji Mohd and was in occupation of house
property bearing No.1422 in her own rights as his
heir. True, in the previous litigation against
defendant No.19-Shaikh Bale, the Court held that
Shaikh Bale was a licencee of the said house property.
It is difficult to say that such a finding would be
binding upon plaintiff Abdul Rahim and the defendant
Nos. 16 to 18, who were not parties to that suit.
The concept of joint family, as available in case of
real brothers under the Hindu Law, is of no avail in
relation to
brothers, who are governed by Mohomedan
Law. It is well settled that Mohomedan legal heirs
take their share immediately after death of the
predecessor. Shares of plaintiff Abdul Rahim and
defendant Nos.16 to 19 were crystallized immediately
after death of Chandbi, if it is held that they
derived the suit properties from her. If it is found
that she is the daughter of deceased Haji Mohd then
her share was crystallized immediately after death of
said Haji Mohd. There could be no jointness of
ownership between Chandbi and Mohd Osman, though they
may have been in possession of separate house
properties as the legal heirs of deceased Haji Mohd.
It is not necessary to enter into the thicket of fact
finding process. For, the First Appellate Court duly
considered the municipal record and other evidence
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while concluding that defendant No.19-Shaikh Bale used
to pay municipal taxes of house No.1422. Rightly or
wrongly, the First Appellate Court came to the
conclusion that the plaintiff, defendant No.19-Shaikh
Bale and the defendant Nos. 16 to 18, were entitled
to decree for partition of their shares. The fact
finding process of the First Appellate Court cannot be
questioned in the Second Appeal and it is moreso when
no substantial question of law was framed while
admitting the appeal. The second appeal, therefore,
falls outside the pale of section 100 of the Code of
Civil Procedure. I am of the opinion that additional
substantial
question of law can be framed under sub
clause (5) of section 100 of the Code of Civil
Procedure only when already one or more substantial
questions of law have been formulated for
consideration. However, where there is no substantial
question of law framed at all, then there would be no
scope for framing additional substantial questions of
law by invoking powers under sub clause (5) of section
100 of the Civil Procedure Code. Needless to say, the
Second Appeal deserves to be dismissed for want of any
substantial question of law.
12. For the sake of argument, even if it is
assumed that substantial questions of law may be
formulated at this stage then also it is difficult to
consider this second appeal on merits. For, the
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appeal is abated against respondent No.3-deceased
Vajirbi. As stated before, the decree for partition
in her favour has become final under the impugned
judgment due to such abatement. Mr.Chapalgaonkar
would rely on “Mahmud Mian (Dead) through LRs and
another V/s. Shamsuddin Mian (Dead) through LRs and
others” (2005) 11 SCC 582. The Apex Court did not lay
down any ratio as such in the given case. The Apex
Court observed that the appeal was not satisfactorily
disposed of by the Division Bench. It is observed
that it was a partition suit. It is further observed
that on account of death of one of the parties, the
appeal could
ig not have abated in its entirety. The
Apex Court allowed substitution of legal
representatives by condoning the delay. The Apex
Court, however, observed:
“The respondents’ plea that the appeal had
abated in the High Court itself is kept open.”
13. It is explicit, therefore, that the question
regarding abatement of the appeal was not foreclosed
by the Apex Court. He also seeks to rely on “N.Khosla
V. Rajlakshmi (Dead) and others” (AIR 2006 SC 1249)
and “Shahazada Bi and others V.Halimabi (since
deceased by L.Rs)” (AIR 2004 SC 3942). It is held by
the Apex Court that if interests of co-defendants are
separate, as in case of co-owners, Suit will abate
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only as regards interest of deceased.
14. Mr.C.R.Deshpande seeks to rely on “Badni
(dead) by L.Rs. and others etc. V/s. Siri Chand
(dead) by LRs and others” (AIR 1999 SC 1077).
Reiterating the tests stated in Nathu Ram’s case (AIR
1962 SC 89) the Apex Court held that the appeal would
be liable to be dismissed where :
a) When the success of the appeal may lead to
the Court’s coming to a decision which would
be in conflict with the decision between the
appellant
ig and the deceased respondent and,therefore, which would lead to the Court’s
passing a decree which will be contradictory
to the decree which had become final with
respect to the same subject-matter between the
appellant and the deceased respondent;
b) when the appellant could not have brought
the action for the necessary relief against
those respondents alone who are still before
the Court, and
c) when the decree against the surviving
respondents, if the appeal succeeds, be
ineffective, that is to say, it could not be
successfully executed.”
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15. Mr.C.R.Deshpande also seeks to rely on “Shri
Bakshish Singh (dead) by LRs v/s Arjan Singh and
others” (1996 (3) Supreme 118),” Matindu Prakash
(Deceased) by LRs V/s Bachan Singh and others” (AIR
1977 SC 2029), “Sri Chand and others V/s M/s Jagdish
Pershad Kishan Chand and others” (AIR 1966 SC 1427),
“Zilla Singh V.Chandgi” (1991 SC 263), and “Deoram Ana
Patil and Sonu Puna Patil” (1974 Mh.L.J.9).
16. If the above referred litmus test is applied,
one would see that if the appeal succeeds then it
would
lead to conflicting decision with the finality
of decision in favour of deceased respondent
No.3-Vajirbi. It need not be emphasised that her
share has been crystallized and the decision in her
favour has become final due to abatement of the appeal
against her. So, if the appeal will be allowed then
such decision will run counter to the finality
attained in respect of the decision of the First
Appellate Court in her favour. Passing of the decree
in favour of the appellants will be contradictory to
the decree, which has become final with respect to the
same subject matter between them and deceased
respondent No.3-Vajirbi. Considering the nature of
final decree, I am of the opinion that the entire
appeal would abate due to abatement of the same as
against the respondent No.3-Vajirbi (original
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defendant No.18). For this reason too the Second
Appeal must fail.
17. In the result, the appeal is dismissed with no
order as to costs.
[ V.R. KINGAONKAR ]
JUDGE
drp/SA300-89
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