Azgar Barid (D) By Lrs. vs Mazambi @ Pyaremabi .

AZGAR BARID (D) BY LRS. AND OTHERS ...APPELLANT(S)

VERSUS

MAZAMBI @ PYAREMABI AND OTHERS ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. This appeal challenges the judgment and order dated 17 th

March 2009, passed by the High Court of Karnataka at

Bangalore in Regular Second Appeal No. 160 of 1995, thereby

allowing the appeal filed by the respondents herein.

2. The facts in brief giving rise to filing of the present appeal

are as under:

1

A suit for partition being O.S. No. 388/77 came to be filed

by plaintiff Nos. 1 to 8, who are respondent Nos. 1 to 8 herein

before the Prl. Munshiff at Kolar (hereinafter referred to as the

“trial court”), for partition and separate possession of the suit

properties. Vide judgment and decree dated 11 th September

1987, the said suit came to be decreed, in part, declaring that

plaintiff No. 2 was entitled to 7/24 th share and plaintiff No.3

was entitled to 1/8th share in the suit schedule properties. It

was further held that the plaintiffs were not entitled to any

share in suit Item Nos. 7 to 9 and 22. Vide the said judgment

and decree, the appellant herein­defendant No.1 was directed to

render accounts in respect of the receipt and expenditure of the

money incurred by him on the suit schedule properties for the

period from the date of the suit till the date of effecting actual

partition of the suit schedule properties. It was further held

that the appellant herein, who was defendant No.1, is liable to

divide the profits earned from the properties in favour of

defendant Nos.2 and 3 to plaintiff Nos.2 and 3 as per their

respective shares.

2 3. Being aggrieved by the said judgment and decree of the

trial court, the appellant­defendant No.1 through L.Rs. had

filed Regular Appeal No. 60 of 1988 before the Prl. Civil Judge

at Kolar (hereinafter referred to as the “First Appellate Court”).

The said appeal was allowed by judgment and order dated 23 rd

November 1994, by setting aside the judgment and decree

dated 11th September 1987 passed by the trial court.

4. The judgment and order passed by the First Appellate

Court came to be challenged before the Karnataka High Court

by filing Regular Second Appeal No. 160 of 1995. The High

Court vide its judgment dated 18 th March 1998, set aside the

judgment and order dated 23rd November 1994 passed by the

First Appellate Court and restored the judgment and decree

dated 11th September 1987 passed by the trial court. The

judgment passed by the High Court dated 18 th March 1998

came to be challenged before this Court by filing Civil Appeal

No. 6478 of 1998. This Court vide its order dated 17 th August

2004, found that the High Court had allowed the appeal

3 without framing the questions of law as required under Section

100 of the Code of Civil Procedure, 1908 and set aside the

judgment dated 18th March 1998, passed by the High Court

and remanded the matter to the High Court for disposal afresh

in accordance with law.

5. On remand, the second appeal was heard afresh and the

High Court framed the following questions of law:

(1) Whether the plaintiffs 1 and 2 are entitled to

share in the suit schedule properties,

particularly when Rehaman Barid through

whom plaintiffs 1 and 2 claim partition

predeceased his father ­ Mohiyuddin Pasha ­

the propositus?

(2) Whether the first Appellate Court is justified in

negativing the case of the plaintiffs 3 to 8 for

partition and separate possession after having

found that the documents Exs.P­1 to P­7

disclose the paternity of plaintiffs 4 to 8?

4 (3) Whether the first Appellate Court is justified in

dismissing the suit filed by plaintiffs 3 to 8

mainly on the ground that the Nikhanama

evidencing the marriage of plaintiff No.3 with

Mohiyuddin Pasha is not produced?

(4) Whether the properties found in Mehar Deed

Ex.D­1 executed by Mohiyuddin Pasha in

favour of first wife Noorabi are liable to be

divided among the parties to the present suit?

6. After answering the aforesaid questions of law, the High

Court vide the impugned judgment, held that all the suit

schedule properties were required to be divided amongst Azgar

Barid i.e. appellant­defendant No.1 and plaintiff Nos.3 to 8.

The High Court also held that plaintiff Nos.1 and 2 were not

entitled for any share in the suit schedule properties as

Rehaman Barid, husband of plaintiff No.1 and father of plaintiff

No.2 predeceased the propositus i.e., Mohiyuddin Pasha.

Insofar as the shares of the parties are concerned, the High

5 Court held that the properties are liable to be divided amongst

the legal heirs of Mohiyuddin Pasha in the following proportion:

1. Plaintiff No.3­Mazambi @ ­ 1/8th share Pyarembi is entitled to

2. Defendant No.1­Azgar Barid ­ 7/36th share is entitled to

3. Plaintiff No.4­Syed Rehman ­ 7/36th share Barid @ Sabulal is entitled to

4. Defendant No.8­Rahiman ­ 7/36th share Barid @ Ikbal Pasha is entitled to

5. Plaintiff No.5­Shakila Begum ­ 7/72nd share is entitled to

6. Plaintiff No.6­Zamila Begum ­ 7/72nd share is entitled to

7. Plaintiff No.7­Akhila Begum ­ 7/72nd share is entitled to

7. Being aggrieved thereby, the present appeal is filed by the

appellant­defendant No.1­Azgar Barid, through L.Rs.

8. We have heard Shri Naresh Kaushik, learned counsel

appearing on behalf of the appellant­defendant No.1 and Shri

Girish Ananthamurthy, learned counsel appearing on behalf of

the respondents­plaintiffs.

6

9. Shri Kaushik submitted that the trial court had decreed

the suit only in favour of plaintiff Nos.2 and 3. As such, in fact,

the trial court held that plaintiff Nos. 4 to 8 were not entitled to

any share in the suit schedule properties of Mohiyuddin Pasha.

The said judgment and decree of the trial court was not

challenged by plaintiff Nos.4 to 8. The same was only

challenged by the appellant herein­defendant No.1. It is

therefore submitted that the second appeal at the behest of

plaintiff Nos.4 to 8 was not at all tenable. He therefore

submitted that, on this short ground alone, this appeal

deserves to be allowed.

10. Shri Kaushik further submitted that though on remand by

this Court, the High Court framed the questions of law, they

cannot be construed to be questions of law inasmuch as all the

said questions pertain to appreciation of evidence. He therefore

submitted that this appeal deserves to be allowed and the well­

reasoned judgment and order passed by the First Appellate

Court deserves to be maintained.

7

11. Per contra, Shri Ananthamurthy submitted that the trial

court had rightly appreciated the evidence. However, the First

Appellate Court had reversed the same on the basis of

conjectures and surmises. The High Court has therefore rightly

interfered with the same while reversing the judgment of the

First Appellate Court. He further submitted that in a partition

suit, all the parties stand on a same pedestal and every party is

a plaintiff as well as a defendant.

12. We will first deal with the objection of the appellant that

since plaintiff Nos.4 to 8, whose claim was denied by the trial

court and who had not challenged the same by way of appeal,

are not entitled to relief in the second appeal. This Court in the

cases of Bhagwan Swaroop and Others v. Mool Chand and

Others1 and Dr. P. Nalla Thampy Thera v. B.L. Shanker

and Others2, has held that in a suit for partition, the position

of the plaintiff and the defendant can be interchangeable. Each

party adopts the same position with the other parties. It has

1 (1983) 2 SCC 132 2 1984 (Supp) SCC 631

8 been further held that so long as the suit is pending, a

defendant can ask the Court to transpose him as a plaintiff and

a plaintiff can ask for being transposed as a defendant.

13. This Court in the case of Chandramohan Ramchandra

Patil and Others v. Bapu Koyappa Patil (Dead) Through

LRs and Others3, has held thus:

“14. Order 41 Rule 4 of the Code enables reversal of the decree by the court in appeal at the instance of one or some of the plaintiffs appealing and it can do so in favour of even non­appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants vis­à­ vis non­appealing plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers the appellate court to do complete justice between the parties by passing such order or decree which ought to have been passed or made although not all the parties affected by the decree had appealed.

15. In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the non­ appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of 3 (2003) 3 SCC 552

9 dismissal of suit passed by the trial court had become final inter se between the non­appealing plaintiffs and the defendants.”

14. In that view of the matter, we find that the contention

raised on behalf of the appellant with regard to plaintiff Nos.4

to 8 being not entitled to relief in the second appeal on the

ground that they have not challenged the judgment and decree

of the trial court before the First Appellate Court, is not

sustainable. As held by this Court in the case of

Chandramohan Ramchandra Patil (supra), the trial court

could grant relief even to the non­appealing plaintiffs and make

an adverse order against all the defendants and in favour of all

the plaintiffs. Merely because the trial court had not granted

relief in favour of plaintiff Nos.4 to 8, would not come in their

way in the High Court allowing their claim.

15. That leads us to the other contention of the appellant. It

is sought to be urged by him that the High Court, in the second

appeal, has framed questions of law, which are, in fact, not

questions of law but questions of fact.

10

16. In this respect, it will be relevant to refer to the following

observations of this Court in the case of Municipal

Committee, Hoshiarpur v. Punjab State Electricity Board

and Others4:

“27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non­ consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; Karnataka Board of Wakf v. Anjuman­E­ Ismail Madris­Un­Niswan [(1999) 6 SCC 343 : AIR 1999 SC 3067] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740 : AIR 2010 SC 2679] .)

28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable 4 (2010) 13 SCC 216

11 or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non­application of mind and thus, stands vitiated.

(Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685] .)”

17. This Court in the case of Illoth Valappil Ambunhi (D) By

LRs. v. Kunhambu Karanavan5, has observed thus:

“14. It is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC.”

18. Recently, this Court in the case of K.N. Nagarajappa

and Others v. H. Narasimha Reddy6, to which one of us (L.N.

Rao, J.) was a party, has observed thus:

“17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v. Bisaram 2021 SCC OnLine SC 319, this court observed as follows, in the context of High Courts' jurisdiction to appreciate factual issues under Section 103 IPC:

5 2019 SCC OnLine SC 1336 6 2021 SCC OnLine SC 694

12 “11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure.”

18. In the opinion of this court, in the present case, the High Court recorded sound and convincing reasons why the first appellate court's judgment required interference. These were entirely based upon the evidence led by the parties on the record.

The appreciation of evidence by the first appellate court was on the basis of it having overlooked material facts, such as appreciation of documentary and oral evidence led before the trial court, that the execution of Ex.D­3 was denied……”

19. The parties have claimed through Mohiyuddin Pasha.

According to the plaintiffs, Mohiyuddin Pasha had earlier

married Noorbi, who died in 1944. Out of the said wedlock, two

sons namely Rahaman Barid and Azgar Barid­appellant

(defendant No.1) were born. Rahaman Barid was married to

Rahamathunnisa­plaintiff No.1. Out of the said wedlock,

13 Noorjahan­plaintiff No.2 was born. Rahaman Barid died in

1945 i.e. prior to Mohiyuddin Pasha, who died in 1964.

20. According to the plaintiffs, after the death of Noorbi in

1944, Mohiyuddin Pasha married Mazambi @ Pyarembi­plaintiff

No.3. Out of the said wedlock, five children namely Syed

Rahaman Barid @ Sabulal­plaintiff No.4, Shakila Begum­

plaintiff No.5, Zamila Begum­plaintiff No.6, Akhila Begum­

plaintiff No.7 and Rahiman Barid @ Ikbal Pasha­plaintiff No.8,

were born.

21. The appellant­defendant No.1 has not disputed that

Rahaman Barid was his brother. However, he contended that

plaintiff Nos.1 and 2 i.e. wife and daughter respectively, of

Rahaman Barid were not entitled to any share in the suit

schedule properties inasmuch as Rahaman Barid had died in

1944 i.e. prior to Mohiyuddin Pasha, who died in 1964.

22. The appellant­defendant No.1 has specifically denied that

Mazambi @ Pyarembi­plaintiff No.3 was married to Mohiyuddin

14 Pasha and that plaintiff Nos.4 to 8 were children of Mohiyuddin

Pasha.

23. It is further contended by the appellant­defendant No.1

that Mohiyuddin Pasha had executed a Mehar Deed in favour of

his first wife Noorbi, which was registered on 30 th July 1936,

and as such, the said properties ceased to be the properties of

Mohiyuddin Pasha.

24. The trial court, on the basis of the evidence recorded, had

come to a specific finding that after the death of his first wife

Noorbi, Mohiyuddin Pasha had married Mazambi @ Pyarembi­

plaintiff No.3 and plaintiff Nos.4 to 8 were born out of the said

wedlock. While arriving at such a finding, the trial court has

relied on oral as well as documentary evidence. The trial court

further came to a finding that from the judgment passed in an

earlier suit for partition i.e. O.S. No.514/1961, it was clear that

Mohiyuddin Pasha as well as the appellant herein­defendant

No.1 had taken a specific stand in O.S. No.514/1961 that the

said Mehar Deed was a nominal one and was never acted upon.

15 It was also contended in the said suit that the properties were

never handed over to the first wife Noorbi and that it was

created with a view to avoid the share to the first son Rahaman

Barid.

25. These findings of fact were reversed by the First Appellate

Court. The First Appellate Court held that plaintiff No.3 had

failed to prove that she was married to Mohiyuddin Pasha,

since she had failed to produce any documentary evidence in

support thereof. It further held that plaintiff Nos.4 to 8 had

failed to establish that they were the children of deceased

Mohiyuddin Pasha. It was held that neither plaintiff No.3 nor

plaintiff Nos.4 to 8 were entitled to any share in the suit

schedule properties. Insofar as plaintiff Nos.1 and 2 are

concerned, the First Appellate Court held that since they were

claiming through Rahaman Barid, who died in 1945 i.e. prior to

Mohiyuddin Pasha, who died in 1964, they are also not entitled

to any share in the suit schedule properties.

16

26. While holding that the finding of the First Appellate Court

that Mazambi @ Pyarembi­plaintiff No.3 was not married to

Mohiyuddin Pasha was erroneous in law, the High Court has

mainly relied on the oral as well as the documentary evidence.

27. Syed Ahmed Ali­PW­1, who was aged 75 years at the time

of giving evidence, was the brother of Noorbi, first wife of

Mohiyuddin Pasha. As such, he was a maternal uncle of the

appellant herein­defendant No.1. He has clearly and

emphatically deposed that Mohiyuddin Pasha had two wives i.e.

Noorbi and Mazambi @ Pyarembi. He has further deposed that

after the death of his sister Noorbi, Mohiyuddin Pashaa took

Mazambi @ Pyarembi as his second wife. He has also

specifically deposed that he has attended the marriage of

Mazambi @ Pyarembi­plaintiff No.3 with Mohiyuddin Pasha.

The High Court found that in spite of searching cross­

examination, nothing came on record to discard the evidence of

PW­1. It was further found that the evidence of PW­1 was

supported by Nabi Sab­PW­2, who was also an independent

17 witness. Appenna­PW­3, who was also an independent

witness, supported the case of the plaintiffs.

28. The High Court found that the voluminous documents of

evidence including the birth certificates of plaintiff Nos.4 to 8,

the transfer certificates issued by the Government Higher

Primary School, Thadigol and Higher Primary Boys School,

Thadigol, established that plaintiff Nos.4 to 8 were the children

born to Mohiyuddin Pasha through Mazambi @ Pyarembi. We

are of the view that, the High Court rightly interfered with the

findings as recorded by the First Appellate Court, inasmuch as

the First Appellate Court was not justified in reversing the

findings of the trial court in that regard which were based on

proper appreciation of evidence. We are of the view that the

First Appellate Court had failed in appreciating the evidence in

correct perspective. The High Court was justified in reversing

the same.

29. Similarly, the High Court found that the Mehar Deed in

favour of deceased Noorbi, first wife of Mohiyuddin Pasha, was

18 a nominal one and was not acted upon and the reversal of the

findings of the trial court by the First Appellate Court in that

regard, was erroneous. It will be relevant to note that the trial

court, on the basis of the proceedings in the earlier suit for

partition i.e. O.S. No.514/1961, had found that in the said suit

for partition, deceased Mohiyuddin Pasha was defendant No.1,

whereas the appellant herein­defendant No.1 was defendant

No.2. In the said suit, the case pleaded by them was that the

first son of Noorbi and Mohiyuddin Pasha, namely Rahaman

Barid, was demanding separate share in the properties and was

residing separately. It was therefore contended by them in their

respective written statements that to avoid any share in the suit

schedule properties, deceased Mohiyuddin Pasha had created

the Mehar Deed in favour of his first wife Noorbi. The High

Court found that in view of the findings arrived in the said O.S.

No.514/1961, which were based on the admission of

Mohiyuddin Pasha and the appellant herein­defendant No.1

herein, it was not open for the appellant herein­defendant No.1

again to contend that the properties belonged to Noorbi

19 exclusively as they were given to her in Mehar. The High Court

further found that the appellant herein­defendant No.1 himself

had produced the judgment in O.S. No.514/1961 at Ex.D­16

and relied upon the same for opposing the present suit for

partition.

30. It could thus clearly be seen that in the present case, the

First Appellate Court had reversed the findings recorded by the

trial court which were based upon correct appreciation of

evidence. The High Court has given sound and cogent reasons

as to why an interference with the findings of the First

Appellate Court was required. We also find that the First

Appellate Court has failed to take into consideration the

voluminous oral as well as documentary evidence, on the basis

of which the trial court had recorded its findings. The findings

as recorded by the First Appellate Court are based on

conjectures and surmises. As such, we are of the considered

view that the perverse approach of the First Appellate Court in

arriving at the findings would give rise to a substantial question

20 of law, thereby justifying the High Court to interfere with the

same.

31. In that view of the matter, we do not find any merit in this

appeal. Hence, this appeal is dismissed.

32. No order as to cost. Pending application(s), if any, shall

stand disposed of in the above terms.

….……..….......................J. [L. NAGESWARA RAO]

………….........................J. [B.R. GAVAI]

NEW DELHI;

FEBRUARY 21, 2022.

21