Suit for partition and separate possession of the suit properties. - suit came to be decreed, in part, declaring that plaintiff No. 2 was entitled to 7/24th 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. - the appellant herein defendant 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. - appeal was allowed by judgement and order dated 23rd November 1994, by setting aside the judgment and decree - The High Court vide its judgment dated 18th 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. - This Court vide its order dated 17th August 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 dated 18th March 1998, 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 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?
(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?
High court held that all the suit schedule properties were required to be divided amongst Azgar Barid i.e. appellant defendant 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:
Apex court held that
When 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.? - No
Chandramohan Ramchandra Patil and Others v. Bapu Koyappa Patil (Dead) Through LRs and Others - (2003) 3 SCC 552 , 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 non appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants visàvis non appealing 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 dismissal of suit passed by the trial court had become final inter se between the non appealing plaintiffs and the defendants.”
Whether in the second appeal the question of fact is to be reconsidered ? yes
Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Others (2010) 13 SCC 216 :
“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 nonconsideration 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. AnjumanEIsmail MadrisUnNiswan [(1999) 6 SCC 343 : AIR 1999 SC 3067] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740 : AIR 2010 SC 2679] .)
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.
Whether the finding of the First Appellate Court that Mazambi @ Pyarembiplaintiff No.3 was not married to Mohiyuddin Pasha was erroneous in law ?
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 crossexamination, 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.
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 of law, thereby justifying the High Court to interfere with the same.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 249 OF 2010
AZGAR BARID (D) BY LRS. AND OTHERS ...APPELLANT(S)
VERSUS
MAZAMBI @ PYAREMABI AND OTHERS ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. This appeal challenges the judgment and order dated 17th
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 11th September
1987, the said suit came to be decreed, in part, declaring that
plaintiff No. 2 was entitled to 7/24th 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 23rd
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 18th 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 18th March 1998
came to be challenged before this Court by filing Civil Appeal
No. 6478 of 1998. This Court vide its order dated 17th 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 @
Pyarembi is entitled to
1/8th share
2. Defendant No.1Azgar Barid
is entitled to
7/36th share
3. Plaintiff No.4Syed Rehman
Barid @ Sabulal is entitled to
7/36th share
4. Defendant No.8Rahiman
Barid @ Ikbal Pasha is
entitled to
7/36th share
5. Plaintiff No.5Shakila Begum
is entitled to
7/72nd share
6. Plaintiff No.6Zamila Begum
is entitled to
7/72nd share
7. Plaintiff No.7Akhila Begum
is entitled to
7/72nd share
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 wellreasoned 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 visàvis 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 nonappealing 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 nonconsideration 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. AnjumanEIsmail 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 Begumplaintiff No.5, Zamila Begumplaintiff No.6, Akhila Begumplaintiff 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 30th 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 @ Pyarembiplaintiff 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 crossexamination, 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
