Karnataka High Court
Shaik Javeed And Ors vs Taleem Begum on 30 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-K:5470
WP No. 202299 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 202299 OF 2023 (GM-CPC)
BETWEEN:
1. SHAIK JAVEED
S/O KHAJA MAINODDIN,
AGED ABOUT 46 YEARS,
OCC: REAL ESTATE BUSINESS,
R/O. H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585 327,
DIST: BIDAR.
2. SHAIK TAHER
S/O KHAJA MAINODDIN,
AGED ABOUT 43 YEARS,
OCC: AGRI., AND WIDING WORK,
Digitally signed
R/O H.NO.42/96, GULMIRZA GALLI,
by
BASALINGAPPA BASAVAKALYAN-585327,
SHIVARAJ
DHUTTARGAON
Location: HIGH
DIST: BIDAR.
COURT OF
KARNATAKA
3. SHAIK HAJI
S/O KHAJA MAINODDIN,
AGED ABOUT 36 YEARS,
OCC: AGRI., AND WIDING WORK,
R/O H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585327,
DIST: BIDAR.
4. SHAIK SADAK
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WP No. 202299 of 2023
S/O KHAJA MAINODDIN,
AGED ABOUT 31 YEARS,
OCC: AGRICULTURE AND WIDING WORK,
R/O H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585327,
DIST: BIDAR.
5. SHAIK SAJEED
S/O KHAJA MAINODDIN,
AGED ABOUT 31 YEARS,
OCC: AGRI., AND WIDING WORK,
R/O H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585327,
DIST: BIDAR.
...PETITIONERS
(BY SRI. GANESH S. KALBURGI, ADVOCATE)
AND:
TALEEM BEGUM
W/O LATE JALIL MIYAN,
AGED ABOUT 47 YEARS,
OCC: HOUSEHOLD AND AGRI.,
R/O H.NO.42/96, GULMIRZA GALLI,
TQ: BASAVAKALYAN-585 327.
DIST: BIDAR
...RESPONDENT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A) A
WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
OR DIRECTION TO QUASH THE IMPUGNED ORDER DATED
18.07.2023 PASSED IN M.A NO. 7/2022 BY THE COURT OF
SENIOR CIVIL JUDGE AND JMFC AT BASAVAKALYAN THE COPY
OF WHICH IS AT ANNEXURE-M AND CONSEQUENTLY SET
ASIDE THE ORDER DATED 02.07.2022 IN O.S NO. 54/2022
PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE AT
BASAVAKALYAN, THE COPY OF WHICH IS AT ANNEXURE-E, IN
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WP No. 202299 of 2023
THE INTEREST OF JUSTICE AND EQUITY. B) PASS SUCH OTHER
ORDER/S AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN
THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. Petitioners are before this Court seeking for the following reliefs:
"a) A writ in the nature of certiorari or any other writ or direction to quash the impugned order dated 18.07.2023 passed in M.A No. 7/2022 by the Court of Senior Civil Judge and JMFC at Basavakalyan the copy of which is at Annexure-M and consequently set aside the order dated
02.07.2022 in O.S No. 54/2022 passed by the Court of Additional Civil Judge at Basavakalyan, the copy of which is at Annexure-E, in the interest of justice and equity.
b) Pass such other order/s as this Hon'ble court deems fit to grant in the circumstances of the case, in the interest of justice and equity."
2. Petitioners were defendants in the suit filed by respondent in OS No. 54/2022 seeking for injunction restraining the defendants therein from interfering with the possession of the plaintiff. The contention of -4- NC: 2024:KHC-K:5470 WP No. 202299 of 2023 the plaintiff is that the property was purchased by her husband, Jalil Miyan, who is the brother of defendant Nos.1 to 5. Subsequent to his death, she has succeeded to the property and as such she being the absolute owner thereof, succeeded to the property, which is the subject matter of the suit and the defendants were seeking to interfere with her possession. The Trial Court granted an order of injunction, which came to be confirmed by the First Appellate Court in Misc.No.7/2022 (Court of the Senior Civil Judge and JMFC at Basavakalyan).
3. Learned counsel for the petitioner submits that the property is not the individual property of Jalil Miyan, but is a family property purchased from the family funds and as such, neither Jalil Miyan nor the plaintiff have absolute right, title and interest in the property and in respect of the very same property, there is a partition suit in OS No. 193/2022 which is pending before the very same court, that is the Senior Civil Judge and JMFC at Basavakalyan. On that basis he -5- NC: 2024:KHC-K:5470 WP No. 202299 of 2023 submits that this property, being subject matter of the said suit for partition and injunction, ought not to have been granted by the Trial Court and confirmed by the First Appellate Court.
4. Having heard the learned counsel for the petitioner, it is not in dispute that Jalil Miyan is the brother of the defendants and that the property was purchased, if not by Jalil Miyan, at least in the name of Jalil Miyan, who having expired, the plaintiff has succeeded to his estate, being his sole legal representative. Whether the property was indeed purchased out of the family funds or was purchased by Jalil Miyan by himself would have to be determined after trial in the suit for partition in OS No.193/2022.
5. Hence, I am the considered opinion that the issues arising in OS No.54/2022 and that arising in OS No.193/2022 would overlap. As such, both the suits being pending before the same court, I deem it fit to direct the clubbing of both the matters and recordal -6- NC: 2024:KHC-K:5470 WP No. 202299 of 2023 of common evidence in both the matters and thereafter for passing of a common judgment. Hence, I pass the following order:
ORDER a. Writ petition is dismissed.
b. OS No.54/2022 pending on the file of the
Senior Civil Judge and JMFC at
Basavakalyan and OS No.193/2022 pending before the very same court, are clubbed. The Trial Court is directed to record common evidence in both the matters and dispose of both the suits by way of a common judgment.
Sd/-
(SURAJ GOVINDARAJ) JUDGE NJ List No.: 1 Sl No.: 47