Partition Suit: Plaintiff Not Disentitled To Seek Relief In Second Appeal Merely Because He Did Not File First Appeal Against Denial Of His Claims By Trial Court: SC: Azgar Barid (D) By LRs Vs Mazambi @ Pyaremabi

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

DATE OF JUDGEMENT:
21th February 2022

JUDGES:
B. R. Gavai
L. N. Rao, J.

PARTIES:
Azgar Barid (D) By Lrs (Appellant)
Mazambi @ Pyaremabi (Respondent)

SUBJECT

The Trial Court had held that the plaintiffs were entitled to the suit schedule properties. However, they did not assail the judgement of the Trial Court. The High Court of Karnataka granted relief to the non-appealing plaintiffs and the appellant filed a civil appeal against the impugned judgement. The Supreme Court held that the Plaintiff would not be disentitled to seek relief in second appeal merely because he had not filed the first appeal against denial of his claims by Trial court.

AN OVERVIEW

1. From the first marriage of Mohiyuddin Pasha, Appellant and late husband of Plaintiff 1 were born. Plaintiff 2 was the son of Plaintiff 1. Mohiyuddin Pasha had his second marriage with Plaintiff 3 and Plaintiff 4 to 8 were born from the said wedlock. The Appellant had contended that Mohiyuddin Pasha had executed a Mehar Deed in favour of his first wife.
2. In 1987, the Trial Court had decreed a suit of partition allowing it partly. The decree had favoured plaintiff Nos.2 and 3 and the plaintiff Nos. 4 to 8 were held to be not entitled to any share in the suit schedule properties.
3. The Appellant had appealed before the First Appellate Court which had allowed the said appeal in 1994 setting aside the impugned judgement of the Trial Court.
4. Before the High Court of Karnataka, the impugned judgement was assailed. In 1998, the Second Appeal was allowed. Setting aside the judgement passed by the First Appellate Court, the judgement of the Trial Court was restored.
5. In 2004, the Supreme Court had set aside the judgement of the High Court on the grounds that the questions of law were not formed before allowing the appeal. It had remanded the matter to the High Court for fresh disposal.
6. The High Court had framed the questions of law and passed the following judgement:

• The suit schedule properties were to be divided amongst the appellant and plaintiff Nos.3 to 8.
• The husband of plaintiff 1 and the father of plaintiff 2 had predeceased the propositus- Mohiyuddin Pasha. Therefore, they were held to be disentitled to the suit schedule properties.

A decree enlisting the legal heirs of Mohiyuddin Pasha along with the proportion of properties they were entitled was passed.

IMPORTANT PROVISIONS

Code of Civil Procedure 1908

• Section 100- Outlines Second Appeal
• Order 41- Outlines form of Appeal

ISSUES

1. Whether the plaintiff Nos.4 to 8 were disentitled to relief on the ground that they had not challenged the judgement of the Trial Court?
2. Whether the HIGH COURT could entertain questions of fact?

ANALYSIS OF THE JUDGEMENT

1. It was settled that the parties in a partition suit stood on the same pedestal and each could be plaintiff as well as a defendant. In Bhagwan Swaroop and Ors. V Mool Chand and Ors. And Dr. P. Nalla Thampy Thera v B.L. Shanker and Ors., the SC had held that the position of plaintiff and the defendant in suit for partition were interchangeable. In the pendency of the suit, the defendant could ask the Court to transpose him as a plaintiff and the plaintiff could even ask for being transposed as a defendant.
2. In Chandramohan Ramchandra Patil and Ors v. Bapu Koyappa Patil (Dead) Through LRs and Ors., it was held that Order 41 Rule 4 read with Order 41 Rule 33 of the CPC empowered the Court to grant relief to non-appealing plaintiffs even and make adverse orders against all the defendants which favoured the plaintiffs. The Defendant would not be able to urge that the Trial Court’s decree of dismissal of suit which had become inter se between the non-appealing plaintiffs and the defendants.
3. In the Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Ors., it was held that the second appeal could entertain a question of fact if the findings of fact of lower court was found to be perverse. The HIGH COURT should not substitute its subjective satisfaction with the concurrent findings of fact of lower courts and interfere with them on a routine and casual basis . The findings of the Court which were ipse dixit of the Court or based on conjecture and surmises suffered from the infirmity of non-application of mind and would stand vitiated.
4. In Illoth Valappil Ambunhi (D) By LRs. v. Kunhambu Karanavan, it was observed that the perversity in arriving at a factual finding arose a substantial question of law and attracted intervention of the High Court. In Narayan Sitaramji Badwaik (Dead) Through Lrs. v. Bisaram, it was observed that HIGH COURT could decide an issue of fact in presence of sufficient evidence on record if:

• The issue was necessary for the disposal of appeal and any lower Court had not determined it.
• The issue of fact had been wrongly determined by the lower Court.

CONCLUSION

The Appellant had concluded that the First Appellate Court had reversed the findings of the facts of the Trial Court which were based on the recorded evidence. The High Court = had rightly interfered with the decision of the First Appellate Court and was justified in reversing the same as the First Appellate Court had based its decision on conjectures and surmises. It was noted that the Mehar Deed was a nominal one and was never acted upon. The appeal, therefore, dismissed without any merit.

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