Karnataka High Court
Asma Begum W/O Wazeer Ali vs Sabiya Begum W/O Shoukat Ali Ataliq And ... on 5 September, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC-K:6921
WP No. 201895 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.201895 OF 2021 (GM-CPC)
BETWEEN:
ASMA BEGUM W/O WAZEER ALI
AGED ABOUT: 40 YEARS,
OCC: HOUSEHOLD,
R/O. ISLAMABAD COLONY,
NEAR KCT COLLEGE COMPOUND,
KALABURAGI.
...PETITIONER
(BY SRI.VINAYAK APTE, ADVOCATE)
AND:
1. SABIYA BEGUM
W/O SHOUKAT ALI ATALIQ
AGED ABOUT 52 YEARS,
OCC: HOUSEHOLD,
Digitally signed by
BASALINGAPPA
SHIVARAJ
R/O. NOOR BAGH,
DHUTTARGAON RAICHUR-584103.
Location: HIGH
COURT OF
KARNATAKA
2. WAZEER ALI
S/O LATE MOHD. OMER ALI ATALIQ
AGED ABOUT 50 YEARS,
OCC: CIVIL ENGINEER,
R/O. ISLAMABAD COLONY,
NEAR KCT COLLEGE COMPOUND,
KALABURAGI-585102,
NOW RESIDING AT DOHA QATAR.
...RESPONDENTS
(BY SRI.NOOR ILYAS, ADVOCATE FOR R1;
V/O DATED 19.08.2024 NOTICE TO R2 DISPENSED WITH)
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NC: 2024:KHC-K:6921
WP No. 201895 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER AT ANNEXURE-K DATED
06.09.2021 PASSED IN R.A.NO.07/2021 ON THE FILE OF I
ADDL. DIST. AND SESSIONS JUDGE, KALABURAGI AND ALLOW
I.A.NO.I FILED U/O 41 RULE 5(2) OF CPC AS PER ANNEXURE-H
DATED 12.01.2021 IN ENDS OF JUSTICE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP 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. The petitioner is before this Court seeking for the following reliefs:
i. Issue a writ of certiorari quashing the impugned order Annexure-K dated 06.09.2021 passed in R.A.No.07/2021 on the file of I Addl. Dist. and Sessions Judge, Kalaburagi and allow I.A.No.I filed under Order 41 Rule 5(2) of CPC as per Annexure-H dated 12.01.2021 in ends of justice. ii. Issue any writ order or direction as this Hon'ble Court deems fit in the circumstances of the case, in the ends of justice.
2. Respondent No.1 had filed a suit in O.S.No.133/2014 for declaration of title, declaration that the gift deed was not binding on the plaintiff and for injunction restraining the defendants who is the petitioner from interfering with her possession. The said suit came to be decreed on -3- NC: 2024:KHC-K:6921 WP No. 201895 of 2021 26.11.2020 challenging which the petitioner who is defendant No.2 had filed an appeal in R.A.No.7/2021. In the said appeal, an application under Order 41 Rule 5 of CPC was filed seeking for stay of the operation and execution of the judgment dated 26.11.2020 in O.S.No.133/2014. The said application came to be rejected by order dated 06.09.2021. It is challenging the said order that the petitioner is before this Court.
3. Sri.Vinayak Apte, learned counsel for the petitioner/ defendant No.2 would submit that the judgment and decree passed by the trial Court is not proper and correct. The trial Court has not appreciated both the factum of ownership and possession in a proper manner. A registered gift deed has not been considered in the proper perspective. If the same had been considered in the proper perspective, the first appellate court ought to have stayed the judgment and decree passed by the trial Court.
4. Heard Sri.Vinayak Apte, learned counsel for the petitioner and perused the papers.
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NC: 2024:KHC-K:6921 WP No. 201895 of 2021
5. The suit was for declaration of title, declaration that the gift deed was null and void and for a permanent injunction. When the gift deed has been declared null and void by the trial Court, at the interlocutory stage in appeal, the question of appellant contending that the gift deed has to be considered would not arise. The trial Court having come to a categorical conclusion that it is the plaintiff who was in possession of the property has restrained defendant No.2 from interfering with such possession, the first appellate Court has also taken into consideration that defendant No.2 has caused demolition of a portion of the property subject matter of the suit and being of the opinion that if a stay is granted, the same would be taken undue advantage by defendant No.2, hence, rejected the application filed under Order 41 Rule 5 of CPC.
6. I do not find any infirmity in relation thereto, the first appellate Court would be required to re-appreciate the evidence and it is only while doing so that the contention of the appellant would have to be considered by the first appellate Court. The trial court having come to a -5- NC: 2024:KHC-K:6921 WP No. 201895 of 2021 conclusion that the plaintiff was the owner and the gift deed is null and void as also coming to a conclusion that the plaintiff was in actual physical possession of the property, the question of staying an order of injunction passed in such circumstances, more so, when the threat of demolition has been made out by the plaintiff before the appellate Court, would not arise. I do not find any infirmity in the order passed by the first appellate Court which has been challenged in the present proceedings.
7. The order of injunction being inforce from the date of the judgment and decree and continuing to be inforce even as on today, only proceedings before the first appellate Court being stayed, I do not find it a fit case to interfere at this stage and time.
8. Reserving liberty to the petitioner/ defendant No.2 to agitate all contentions before the first appellate court, the above petition stands dismissed.
Sd/-
(SURAJ GOVINDARAJ) JUDGE VNR List No.: 1 Sl No.: 41