AZGAR BARID (D) BY LRS. versus MAZAMBI @ PYAREMABI AND OTHERS on 21 February 2022

1. This appeal challenges the judgment and order dated 17[th] March2009, passed by the High Court of Karnataka at Bangalore in RegularSecond Appeal No. 160 of 1995, thereby allowing the appeal filed by therespondents herein.

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

A suit for partition being O.S. No. 388/77 came to be filed byplaintiff Nos. 1 to 8, who are respondent Nos. 1 to 8 herein before thePrl. Munshiff at Kolar (hereinafter referred to as the “trial court”), forpartition and separate possession of the suit properties. Vide judgmentand 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 andplaintiff No.3 was entitled to 1/8[th] share in the suit schedule properties.It was further held that the plaintiffs were not entitled to any share insuit Item Nos. 7 to 9 and 22. Vide the said judgment and decree, theappellant herein-defendant No.1 was directed to render accounts inrespect of the receipt and expenditure of the money incurred by him onthe suit schedule properties for the period from the date of the suit till thedate of effecting actual partition of the suit schedule properties. It wasfurther held that the appellant herein, who was defendant No.1, is liableto divide the profits earned from the properties in favour of defendantNos.2 and 3 to plaintiff Nos.2 and 3 as per their respective shares.

3. Being aggrieved by the said judgment and decree of the trialcourt, the appellant-defendant No.1 through L.Rs. had filed RegularAppeal No. 60 of 1988 before the Prl. Civil Judge at Kolar (hereinafterreferred to as the “First Appellate Court”). The said appeal was allowedby judgment and order dated 23[rd] November 1994, by setting aside thejudgment and decree dated 11[th] September 1987 passed by the trial court.

4. The judgment and order passed by the First Appellate Courtcame to be challenged before the Karnataka High Court by filing RegularSecond Appeal No. 160 of 1995. The High Court vide its judgment dated18[th] March 1998, set aside the judgment and order dated 23[rd] November1994 passed by the First Appellate Court and restored the judgment anddecree dated 11[th] September 1987 passed by the trial court. The judgmentpassed by the High Court dated 18[th] March 1998 came to be challengedbefore this Court by filing Civil Appeal No. 6478 of 1998. This Courtvide its order dated 17[th] August 2004, found that the High Court hadallowed the appeal without framing the questions of law as requiredunder Section 100 of the Code of Civil Procedure, 1908 and set asidethe judgment dated 18[th] March 1998, passed by the High Court andremanded the matter to the High Court for disposal afresh in accordancewith law.

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A5. On remand, the second appeal was heard afresh and the HighCourt framed the following questions of law:

(1) Whether the plaintiffs 1 and 2 are entitled to share in thesuit schedule properties, particularly when Rehaman Baridthrough whom plaintiffs 1 and 2 claim partition predeceasedBhis father - Mohiyuddin Pasha - the propositus?

(2) Whether the first Appellate Court is justified in negativingthe case of the plaintiffs 3 to 8 for partition and separatepossession after having found that the documents Exs.P-1to P-7 disclose the paternity of plaintiffs 4 to 8?

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(3) Whether the first Appellate Court is justified in dismissingthe suit filed by plaintiffs 3 to 8 mainly on the ground thatthe Nikhanama evidencing the marriage of plaintiff No.3with Mohiyuddin Pasha is not produced?

(4) Whether the properties found in Mehar Deed Ex.D-1Dexecuted by Mohiyuddin Pasha in favour of first wifeNoorabi are liable to be divided among the parties to thepresent suit?

6. After answering the aforesaid questions of law, the High Courtvide the impugned judgment, held that all the suit schedule propertiesEwere required to be divided amongst Azgar Barid i.e. appellant-defendantNo.1 and plaintiff Nos.3 to 8. The High Court also held that plaintiffNos.1 and 2 were not entitled for any share in the suit schedule propertiesas Rehaman Barid, husband of plaintiff No.1 and father of plaintiff No.2predeceased the propositus i.e., Mohiyuddin Pasha. Insofar as the sharesof the parties are concerned, the High Court held that the properties areFliable to be divided amongst the legal heirs of Mohiyuddin Pasha in thefollowing proportion:

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7. Being aggrieved thereby, the present appeal is filed by theappellant-defendant No.1-Azgar Barid, through L.Rs.

8. We have heard Shri Naresh Kaushik, learned counsel appearingon behalf of the appellant-defendant No.1 and Shri Girish Ananthamurthy,learned counsel appearing on behalf of the respondents-plaintiffs.

9. Shri Kaushik submitted that the trial court had decreed the suitonly in favour of plaintiff Nos.2 and 3. As such, in fact, the trial courtheld that plaintiff Nos. 4 to 8 were not entitled to any share in the suitschedule properties of Mohiyuddin Pasha. The said judgment and decreeof the trial court was not challenged by plaintiff Nos.4 to 8. The samewas only challenged by the appellant herein-defendant No.1. It is thereforesubmitted that the second appeal at the behest of plaintiff Nos.4 to 8was not at all tenable. He therefore submitted that, on this short groundalone, this appeal deserves to be allowed.

10. Shri Kaushik further submitted that though on remand by thisCourt, the High Court framed the questions of law, they cannot beconstrued to be questions of law inasmuch as all the said questions pertainto appreciation of evidence. He therefore submitted that this appealdeserves to be allowed and the well-reasoned judgment and order passedby the First Appellate Court deserves to be maintained.

11. Per contra, Shri Ananthamurthy submitted that the trial courthad rightly appreciated the evidence. However, the First Appellate Courthad reversed the same on the basis of conjectures and surmises. TheHigh Court has therefore rightly interfered with the same while reversingthe judgment of the First Appellate Court. He further submitted that in apartition suit, all the parties stand on a same pedestal and every party isa plaintiff as well as a defendant.

12. We will first deal with the objection of the appellant that sinceplaintiff Nos.4 to 8, whose claim was denied by the trial court and whohad not challenged the same by way of appeal, are not entitled to reliefin the second appeal. This Court in the cases of Bhagwan Swaroopand Others v. Mool Chand and Others[1]and Dr. P. Nalla ThampyThera v. B.L. Shanker and Others[2], has held that in a suit for partition,the position of the plaintiff and the defendant can be interchangeable.

1 (1983) 2 SCC 132

2 1984 (Supp) SCC 631

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AEach party adopts the same position with the other parties. It has beenfurther held that so long as the suit is pending, a defendant can ask theCourt to transpose him as a plaintiff and a plaintiff can ask for beingtransposed as a defendant.

13. This Court in the case of Chandramohan Ramchandra PatilBand Others v. Bapu Koyappa Patil (Dead) Through LRs and Others[3],has held thus:

“14. Order 41 Rule 4 of the Code enables reversal of the decreeby the court in appeal at the instance of one or some of the plaintiffsappealing and it can do so in favour of even non-appealing plaintiffs.CAs a necessary consequence such reversal of the decree can beagainst the interest of the defendants vis-à-vis non-appealingplaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33.Order 41 Rule 33 empowers the appellate court to do completejustice between the parties by passing such order or decree whichought to have been passed or made although not all the partiesDaffected by the decree had appealed.

15. In our opinion, therefore, the appellate court by invoking Order41 Rule 4 read with Order 41 Rule 33 of the Code could grantrelief even to the non-appealing plaintiffs and make an adverseorder against all the defendants and in favour of all the plaintiffs.EIn such a situation, it is not open to urge on behalf of the defendantsthat the decree of dismissal of suit passed by the trial court hadbecome final inter se between the non-appealing plaintiffs andthe defendants.”

14. In that view of the matter, we find that the contention raisedFon behalf of the appellant with regard to plaintiff Nos.4 to 8 being notentitled to relief in the second appeal on the ground that they have notchallenged the judgment and decree of the trial court before the FirstAppellate Court, is not sustainable. As held by this Court in the case ofChandramohan Ramchandra Patil (supra), the trial court could grantGrelief even to the non-appealing plaintiffs and make an adverse orderagainst all the defendants and in favour of all the plaintiffs. Merelybecause the trial court had not granted relief in favour of plaintiff Nos.4to 8, would not come in their way in the High Court allowing theirclaim.

H3 (2003) 3 SCC 552

AZGAR BARID (D) BY LRS. v. MAZAMBI @ PYAREMABI ANDOTHERS [B. R. GAVAI, J.]

15. That leads us to the other contention of the appellant. It issought to be urged by him that the High Court, in the second appeal, hasframed questions of law, which are, in fact, not questions of law butquestions of fact.

16. In this respect, it will be relevant to refer to the followingobservations of this Court in the case of Municipal Committee,Hoshiarpur v. Punjab State Electricity Board and Others[4]:

“27. There is no prohibition on entertaining a second appeal evenon a question of fact provided the court is satisfied that the findingsof fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneousapproach to the matter i.e. that the findings of fact are found tobe perverse. But the High Court cannot interfere with theconcurrent findings of fact in a routine and casual manner bysubstituting its subjective satisfaction in place of that of the lowercourts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 :AIR 1992 SC 1604]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343 : AIR 1999 SC3067] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740 : AIR2010 SC 2679] .)

28. If a finding of fact is arrived at by ignoring or excluding relevantmaterial or by taking into consideration irrelevant material or ifthe finding so outrageously defies logic as to suffer from the viceof irrationality incurring the blame of being perverse, then thefinding is rendered infirm in the eye of the law. If the findings ofthe Court are based on no evidence or evidence which is thoroughlyunreliable or evidence that suffers from the vice of proceduralirregularity or the findings are such that no reasonable personwould have arrived at those findings, then the findings may besaid to be perverse. Further if the findings are either ipse dixit ofthe Court or based on conjecture and surmises, the judgmentsuffers from the additional infirmity of non-application of mindand thus, stands vitiated. (Vide Bharatha Matha v. R. VijayaRenganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685] .)”

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A17. This Court in the case of Illoth Valappil Ambunhi (D) ByLRs. v. Kunhambu Karanavan[5], has observed thus:

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

18. Recently, this Court in the case of K.N. Nagarajappa andOthers v. H. Narasimha Reddy[6], to which one of us (L.N. Rao, J.)was a party, has observed thus:

“17. In a recent judgment of this court, Narayan SitaramjiBadwaik (Dead) Through Lrs. v. Bisaram 2021 SCC OnLineCSC 319, this court observed as follows, in the context of HighCourts’ jurisdiction to appreciate factual issues under Section 103IPC:

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

18. In the opinion of this court, in the present case, the High Courtrecorded sound and convincing reasons why the first appellatecourt’s judgment required interference. These were entirely basedFupon the evidence led by the parties on the record. The appreciationof evidence by the first appellate court was on the basis of ithaving overlooked material facts, such as appreciation ofdocumentary and oral evidence led before the trial court, that theexecution of Ex.D-3 was denied……”

G19. The parties have claimed through Mohiyuddin Pasha.According to the plaintiffs, Mohiyuddin Pasha had earlier married Noorbi, 5 2019 SCC OnLine SC 1336H6 2021 SCC OnLine SC 694

who died in 1944. Out of the said wedlock, two sons namely RahamanBarid and Azgar Barid-appellant (defendant No.1) were born. RahamanBarid was married to Rahamathunnisa-plaintiff No.1. Out of the saidwedlock, Noorjahan-plaintiff No.2 was born. Rahaman Barid died in1945 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 @ Pyarembi-plaintiff No.3. Outof the said wedlock, five children namely Syed Rahaman Barid @Sabulal-plaintiff No.4, Shakila Begum-plaintiff No.5, Zamila Begum-plaintiff No.6, Akhila Begum-plaintiff No.7 and Rahiman Barid @ IkbalPasha-plaintiff No.8, were born.

21. The appellant-defendant No.1 has not disputed that RahamanBarid was his brother. However, he contended that plaintiff Nos.1 and 2i.e. wife and daughter respectively, of Rahaman Barid were not entitledto any share in the suit schedule properties inasmuch as Rahaman Baridhad died in 1944 i.e. prior to Mohiyuddin Pasha, who died in 1964.

22. The appellant-defendant No.1 has specifically denied thatMazambi @ Pyarembi-plaintiff No.3 was married to Mohiyuddin Pashaand that plaintiff Nos.4 to 8 were children of Mohiyuddin Pasha.

23. It is further contended by the appellant-defendant No.1 thatMohiyuddin Pasha had executed a Mehar Deed in favour of his firstwife Noorbi, which was registered on 30[th] July 1936, and as such, thesaid properties ceased to be the properties of Mohiyuddin Pasha.

24. The trial court, on the basis of the evidence recorded, hadcome to a specific finding that after the death of his first wife Noorbi,Mohiyuddin Pasha had married Mazambi @ Pyarembi-plaintiff No.3and plaintiff Nos.4 to 8 were born out of the said wedlock. While arrivingat such a finding, the trial court has relied on oral as well as documentaryevidence. The trial court further came to a finding that from the judgmentpassed in an earlier suit for partition i.e. O.S. No.514/1961, it was clearthat Mohiyuddin Pasha as well as the appellant herein-defendant No.1had taken a specific stand in O.S. No.514/1961 that the said MeharDeed was a nominal one and was never acted upon. It was also contendedin the said suit that the properties were never handed over to the firstwife Noorbi and that it was created with a view to avoid the share to thefirst son Rahaman Barid.

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A25. These findings of fact were reversed by the First AppellateCourt. The First Appellate Court held that plaintiff No.3 had failed toprove that she was married to Mohiyuddin Pasha, since she had failed toproduce any documentary evidence in support thereof. It further heldthat plaintiff Nos.4 to 8 had failed to establish that they were the childrenof deceased Mohiyuddin Pasha. It was held that neither plaintiff No.3Bnor plaintiff Nos.4 to 8 were entitled to any share in the suit scheduleproperties. Insofar as plaintiff Nos.1 and 2 are concerned, the FirstAppellate Court held that since they were claiming through RahamanBarid, who died in 1945 i.e. prior to Mohiyuddin Pasha, who died in1964, they are also not entitled to any share in the suit schedule properties.C26. While holding that the finding of the First Appellate Court thatMazambi @ Pyarembi-plaintiff No.3 was not married to MohiyuddinPasha was erroneous in law, the High Court has mainly relied on theoral as well as the documentary evidence.

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27. Syed Ahmed Ali-PW-1, who was aged 75 years at the time ofDgiving evidence, was the brother of Noorbi, first wife of MohiyuddinPasha. As such, he was a maternal uncle of the appellant herein-defendantNo.1. He has clearly and emphatically deposed that Mohiyuddin Pashahad two wives i.e. Noorbi and Mazambi @ Pyarembi. He has furtherdeposed that after the death of his sister Noorbi, Mohiyuddin PashaaEtook Mazambi @ Pyarembi as his second wife. He has also specificallydeposed that he has attended the marriage of Mazambi @ Pyarembi-plaintiff No.3 with Mohiyuddin Pasha. The High Court found that inspite of searching cross-examination, nothing came on record to discardthe evidence of PW-1. It was further found that the evidence of PW-1was supported by Nabi Sab-PW-2, who was also an independent witness.FAppenna-PW-3, who was also an independent witness, supported thecase of the plaintiffs.

28. The High Court found that the voluminous documents ofevidence including the birth certificates of plaintiff Nos.4 to 8, the transfercertificates issued by the Government Higher Primary School, ThadigolGand Higher Primary Boys School, Thadigol, established that plaintiff Nos.4to 8 were the children born to Mohiyuddin Pasha through Mazambi @Pyarembi. We are of the view that, the High Court rightly interferedwith the findings as recorded by the First Appellate Court, inasmuch asthe First Appellate Court was not justified in reversing the findings of theHtrial court in that regard which were based on proper appreciation of evidence. We are of the view that the First Appellate Court had failed inappreciating the evidence in correct perspective. The High Court wasjustified in reversing the same.

29. Similarly, the High Court found that the Mehar Deed in favourof deceased Noorbi, first wife of Mohiyuddin Pasha, was a nominal oneand was not acted upon and the reversal of the findings of the trial courtby the First Appellate Court in that regard, was erroneous. It will berelevant to note that the trial court, on the basis of the proceedings in theearlier suit for partition i.e. O.S. No.514/1961, had found that in the saidsuit for partition, deceased Mohiyuddin Pasha was defendant No.1,whereas the appellant herein-defendant No.1 was defendant No.2. Inthe said suit, the case pleaded by them was that the first son of Noorbiand Mohiyuddin Pasha, namely Rahaman Barid, was demanding separateshare in the properties and was residing separately. It was thereforecontended by them in their respective written statements that to avoidany share in the suit schedule properties, deceased Mohiyuddin Pashahad created the Mehar Deed in favour of his first wife Noorbi. TheHigh 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 Pashaand the appellant herein-defendant No.1 herein, it was not open for theappellant herein-defendant No.1 again to contend that the propertiesbelonged to Noorbi exclusively as they were given to her in Mehar. TheHigh Court further found that the appellant herein-defendant No.1 himselfhad produced the judgment in O.S. No.514/1961 at Ex.D-16 and reliedupon the same for opposing the present suit for partition.

30. It could thus clearly be seen that in the present case, the FirstAppellate Court had reversed the findings recorded by the trial courtwhich were based upon correct appreciation of evidence. The HighCourt has given sound and cogent reasons as to why an interferencewith the findings of the First Appellate Court was required. We also findthat the First Appellate Court has failed to take into consideration thevoluminous oral as well as documentary evidence, on the basis of whichthe trial court had recorded its findings. The findings as recorded by theFirst Appellate Court are based on conjectures and surmises. As such,we are of the considered view that the perverse approach of the FirstAppellate Court in arriving at the findings would give rise to a substantialquestion of law, thereby justifying the High Court to interfere with thesame.

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A31. In that view of the matter, we do not find any merit in thisappeal. Hence, this appeal is dismissed.

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

BBibhuti Bhushan Bose

(Assisted by : Shubhanshu Das, LCRA)

Appeal dismissed.

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