In Pending Partition Suit, Defendant can ask Court to Transpose him as Plaintiff and vice versa: SC

IN A PENDING PARTITION SUIT, A DEFENDANT CAN ASK THE COURT TO TRANSPOSE HIM AS A PLAINTIFF AND VICE VERSA: SC REAFFIRMS

Cause Title: Azgar Barid (D) by LRS. And Others v. Mazambi @ Pyaremabi and Others

Case Number: Civil Appeal No. 249/2010

Quorum: Justice L. Nageswara Rao and Justice B.R. Gavai

Judgment Date: 21/02/2022

Counsel for Appellant: Shri Naresh Kaushik

Counsel for Respondents: Shri Girish Ananthamurthy

Author: Pragash B, Advocate, Madurai Bench of Madras High Court

To view/Download Judgment: Azgar Barid (D) by LRS. And Others v. Mazambi @ Pyaremabi and Others

Background of the Case

A Partition Suit was filed before the Principal Munsif, Kolar by the respondents 1 to 8 (plaintiffs) herein for partition and separate possession of the properties. The Trial Court in part declared that respondent – 2 and respondent 3 are entitled to 7/24th and 1/8th share respectively in the suit properties through the judgment and decree dated 11/09/1987. It was held that the respondents are not entitled to any share in Items No. 7 to 9 and 22 of the Suit properties. The first appellant herein was directed to render accounts of the receipt and expenditure of the money incurred by him in the suit properties from date of suit till the date of effecting actual partition. Moreover, the appellant was held liable to divide the profits earned from the properties in favour of defendants 2 and 3 to plaintiffs 2 and 3 as per their respective shares.

Being aggrieved, the first appellant through Legal Representatives had filed a Regular Appeal No. 60/1988 before the Principal Civil Judge, Kolar. The first appellate court allowed the appeal through the judgment and order dated 23/11/1994 setting aside the judgment and decree of the trail court. Subsequently, the Second Appeal was preferred before the Honourable Karnataka High Court in Second Appeal No. 160/1995 in which through the judgment dated 18/03/1998, the judgment and order of the first appellate court were set aside and the judgment and decree of the trial court is restored.

The Judgment passed by the High Court was challenged before the Honourable Apex Court of India in Civil Appeal No. 6978/1998. The Honourable Supreme Court of India through its order dated 17/08/2004, found that the High Court had allowed the appeal without framing the questions of law as required under Section 100 of the Code of Civil Procedure, 1908 and set aside the judgment passed by the High Court and remanded the matter to the High Court for disposal afresh in accordance with law.

On remand, the second appeal was heard afresh and the Honourable High Court has framed the following questions of law:

1. Whether the plaintiffs 1 and 2 entitled to share in the suit schedule properties, particularly when Rehman Barid through whom plaintiffs 1 and 2 claim partition?

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. P-1 to P-7 disclose the paternity of plaintiffs 4 to 8?

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. D-1 executed by Mohiyuddin Pasha in favour of the first wife Noorabi are liable to be divided among the parties to the present suit?

The High Court vide its impugned judgment held that all the suit properties are to be divided among the 1st defendant (Azgar Barid) and plaintiffs 3 to 8 but plaintiffs 1 and 2 were not entitled to any share in the suit properties as Rehaman Barid, husband of 1st plaintiff and father of 2nd Plaintiff predeceased the propositus i.e., Mohiyuddin Pasha. The Division of Properties is as follows:

1. 3rd Plaintiff – Mazambi @ Pyarembi – 1/8th share

2. 1st Defendant – Azgar Barid - 7/36th share

3. 4th Plaintiff – Syed Rehman Barid – 7/36th share

4. 8th Defendant – Rahiman Barid @ Ikbal Pasha – 7/36th share

5. 5th Plaintiff – Shakila Begum – 7/72nd share

6. 6th Plaintiff – Zamila Begum – 7/72nd share

7. 7th Plaintiff – Akhila Begum – 7/72nd share

Findings of the Court

The Honourable Supreme Court of India observed 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.” (Para 28)

The Apex Court held that the finding of the High Court that the Mehar Deed executed in favour of deceased Noorbi was a nominal one and was not acted upon and the reversal of the trial court findings is erroneous. The Trial Court had found that in previous suit O.S. No. 514/1961 where Mohiyuddin Pasha and 1st appellant are parties, the said Rahaman Barid was demanding separate share in the properties and was residing separately. It was therefore contended by Mohiyuddin Pasha and 1st appellant herein 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 out that after the said admission by the appellant, he cannot contend that the properties belonged to Noorbi exclusively as per the Mehar. The High Court also produced the judgment in O.S. No. 514/1961 at Ex. D-16 and relied upon the same for opposing the present suit for partition. (Para 29)

The Honourable Court held that:

“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 has 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 of law, thereby justifying the High Court to interfere with the same.” (Para 30)

In that view of the matter, we do not find any merit in this appeal. Hence, this appeal is dismissed. (Para 31)

No order as to cost. Pending application(s), if any, shall stand disposed of in the above terms. (Para 32)

Cases Referred

1. Bhagwan Swaroop and Others v. Mool Chand and Others, (1983) 2 SCC 132.

2. Dr. P. Nalla Thampy Thera v. B.L. Shanker and Others, 1984 (Supp) SCC 631.

3. Chandramohan Ramchandra Patil and Others v. Bapu Koyappa Patil (Dead) Through LRs and Others, (2003) 3 SCC 552.

4. Municipal Committee, Hoshiapur v. Punjab State Electricity Board and Others, (2010) 13 SCC 216.

5. Illoth Valappil Ambunhi (D) By LRs v. Kunhambu Karanavan, 2019 SCC OnLine SC 1336.

6. K.N. Nagarajappa and Others v. H. Narasimha Reddy, 2021 SCC OnLine SC 694