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Judgment
H.N. Nagamohan Das, J.—This Second Appeal is directed against the judgment and decree dated 17th January 2005 in R.A. No. 27/2001 passed by Civil Judge (Sr. Dvn.) at Bhadravathi.
Appellants are the Plaintiffs and Respondents are the Defendants before the trial Court. In this judgment for convenience the parties are referred to their status before the trial Court.
Plaintiffs and 2nd Defendant are children of one Azizunnissa and C.H. Basheer Ahmed. The plaint schedule property belongs to the mother Azizunnissa and she died on 02.05.1981 without the consent and knowledge of Plaintiffs the father Basheer Ahmed and the brother 2nd Defendant sold the plaint schedule property in favour of 1st Defendant on 26.06.1990 for a sale consideration of Rs. 25,500/-. Therefore, the Plaintiffs filed O.S. No. 121/1994 to declare that the sale deed in favour of 1st Defendant as not binding on them and for partition and separate possession of their share in the plaint schedule property.
The 1st Defendant entered appearance before the trial Court and filed written statement, inter-alia contending that he is a bonafide purchaser for valuable consideration. The consideration paid by him was for the benefit of Plaintiffs and their education and also for discharge of the debts of the family. On these grounds the 1st Defendant opposed the claim of the Plaintiffs. The 2nd Defendant has not contested the proceedings.
On the basis of the pleadings, the trial Court framed the following issues for its consideration:
Whether the Plaintiffs prove that they are the children of C.H. Basheer Ahamed ?
Do they further prove that C.H. Basheer Ahamed and Defendant No. 2 had no saleable interest in the suit property ?
Whether the 1st Defendant proves that he is a bonafide purchaser of the suit property ?
Whether the Court fee paid, is sufficient ?
To what reliefs, the parties are entitled ?
What order or what decree ?
Before the trial Court Plaintiffs examined two witnesses as PW-1 and PW-2 and got marked Ex. P1 to P10. The Defendants examined two witnesses as DW-1 and DW-2 and got marked Ex. D1 and D2.
The trial Court on appreciation of the pleadings, oral and documentary evidence held that the sale made by Basheer Ahmed and 2nd Defendant will not affect the right of Plaintiffs in the schedule property. Further, the trial Court held that the sale in favour of 1st Defendant was not to discharge the debts of deceased Azizunnissa. Consequently, under the impugned judgment the trial Court decreed the suit.
Aggrieved by the judgment of the trial Court, the 1st Defendant filed an appeal in R.A. No. 27/2001. The first Appellate Court on re-appreciation of the entire material on record noticed the fact that the sale in favour of 1st Defendant was for family necessity and also for the discharge of family debts. Consequently, the First Appellate Court partly allowed the appeal and modified the judgment and decree of the trial Court directing the Plaintiffs to pay a sum of Rs. 19,588/-together with interest at 18% p.a. from 26.06.1990 for getting possession of 0.76 guntas of land. Hence, this appeal by the Plaintiffs.
This Court by order dated 11.09.2006 admitted the appeal to consider the following substantial question of law:
Whether the lower appellate Court was justified in directing payment of Rs. 19,588/-when a finding is recorded that the sale in favour of the purchaser binds the share of Basheer Ahmed and Defendant No. 2
I heard the arguments on both side and perused the entire appeal papers. It is not in dispute that the plaint schedule property belongs to Azizunnissa, the mother of Plaintiffs and 2nd Defendant. On the demise of Azizunnissa the Plaintiffs, 2nd Defendant and their father Basheer Ahamed are having a share in the plaint schedule property. Both the Courts below by considering Sections 61 and 63 of the Mohammedan Law held that the Plaintiffs, 2nd Defendant and their father Basheer Ahamed are having share in the plaint schedule property. This finding of both the Courts, below is in accordance with law.
Further Basheer Ahamed and the 2nd Defendant have sold the schedule property in favour of the 1st Defendant. By considering the admitted evidence on record the First Appellate Court noticed that the sale consideration received from the 1st Defendant was used for the welfare of Plaintiffs and 2nd Defendant and also for discharge of family debts. Plaintiffs are the beneficiaries of a portion of sale consideration. In the circumstances, the First Appellate Court, directed to refund of sale consideration to the extent of Plaintiffs'' share to the 1st Defendant.
The First Appellate Court quantified the amount to be paid by the Plaintiffs at Rs. 19,588/- on the basis that the plaint schedule property measures 97 guntas. But it is brought to my notice that the plaint schedule property measures only 57 guntas. On the basis of this measurement of 57 guntas, the amount of Rs. 19,588/-is to be modified as Rs. 16,000/-. To this extent, the judgment and decree, of the First Appellate Court requires modification. The question of law framed above is partly answered in affirmative and partly in negative.
Accordingly, the following:
ORDER
(1) The appeal is hereby partly allowed.
(2) The judgment and Decree of the First Appellate Court, is modified by directing the Appellants/Plaintiffs to pay a sum of Rs. 16,000/- together with interest at 12% p.a. from 26.06.1990 for getting possession of plaint schedule property from Defendant: No. 1 within three months from today, failing which the Defendant No. 1 shall become the owner of the entire plaint schedule property.
No order as to costs.