Bombay High Court
Balubi Bali Khan vs Fatimabi Hiralal Mullani And Ors on 18 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:12551
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 324 OF 2025
Balubi Bali Khan ...Petitioner
Versus
SANTOSH 1. Fatimbi Hiralal Mullani
SUBHASH 2. Khatija Jamal Mullani
KULKARNI
Digitally signed by 3. Alisha Sameer Sheikh
SANTOSH SUBHASH
KULKARNI
Date: 2025.03.18
4. Arman Jamal Mullani
17:36:58 +0530
5. Alfiya Barkat Korabu
6. Kamal Rahim Mullani
7. Maimunabi Rahiman Mullani
8. Salim Rahiman Mujawar
9. Altaf Rahiman Mujawar
10. Yusuf Rahiman Mujawar
11. Shanur Mohammad Sheikh
12. Shakila Ramjan Mullani
13. Sultana Ahmad Mullani
14. Nihal Kamal Mullani
15. Arbaj Kamal Mullani
...Respondents
Mr. Prasad Kulkarni, a/w Nakul Shukla, for the Petitioner.
Mr. A. B. Tajane, a/w Y. A. Tajane, for the Respondents.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 8th JANUARY, 2025
PRONOUNCED ON: 18th MARCH, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties, heard finally.
2. This petition under Article 227 of the Constitution of India
assails the legality, propriety and correctness of the order dated
6th May, 2024 passed by the learned Civil Judge, Madha,
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whereby an application (Exhibit-84) preferred by petitioner -
plaintiff No.3 for stay to the execution and operation of the
decree in RCS/436/2001 dated 31st March, 2021 came to be
allowed.
3. The background facts leading to this petition can be stated
in brief as under:
3.1 For the sake of convenience and clarity, the parties are
hereinafter referred to in the capacity in which they are arrayed
before the trial court.
3.2 Late Husain Mulani was the father of the plaintiffs and
Rahiman Mulani, through whom the defendants, including
Balubi Khan - defendant No.4 - the petitioner, claimed. Husain
Mulani had acquired the agricultural land bearing Gat No.8/1
described in paragraph 1A of the plaint under a registered Sale
Deed dated 28th December, 1977. The house property described
in paragraph 1B of the plaint was the ancestral property of
Husain. Husain Mulani passed away on 19th August, 1987. The
plaintiff and her brother Rahiman succeeded to the estate of
late Husain. The plaintiff claimed that she had 1/3 share in the
suit properties and Rahiman had 2/3 share.
3.3 Maimunbi - defendant No.2 was the legally wedded wife of
Rahiman. Defendant Nos.6, 11, 12, 13 and Arifa, the
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predecessor -in-title of defendant Nos.8 to 10, and Kamal, the
predecessor-in-title of defendant Nos.14 and 15, were the
children of Maimunbi by Rahiman. The plaintiff claims
Rahiman had relationship outside marriage with Shantabai,
who was married to one Babu Barangule. Out of the said
relationship, a son Jamal and a daughter, Balubi - defendant
No.4, were born to Shantabai by Rahiman. Defendant Nos.1 to 3
are the successors in interest of Jamal. Rahiman passed away
on 15th January, 1993.
3.4 The plaintiffs claim Shantabai and defendant Nos.1 to 4
instituted a suit being RCS/436/2001 for partition and separate
possession of their share in suit properties claiming that
Shantabai was the legally wedded wife and defendant Nos.1 to 4
were the legitimate children of Rahiman. In the said suit, the
plaintiff was not impleaded as a party defendant. By a
judgment and order dated 31st March, 2021, the said suit came
to be decreed. The defendant Nos.1 to 15 were allotted defined
shares in the suit properties.
3.5 The decree passed in the said suit was assailed by the co-
defendants, in Regular Civil Appeal No.11 of 2021. However, the
co-defendants - appellants subsequently withdrew the said
appeal.
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3.6 The plaintiff was, thus, constrained to institute the suit
seeking partition and separate possession of her 1/3 share in
the suit properties and the declaration that the deed executed in
favour of Nihal (D14) and Arbaj (D15) on 29 th August, 2007 by
Kamal Rahiman Mulani is null and void and does not bind the
share of the plaintiff and the decree passed in RCS/436/2001
dated 31st March, 2021 is also null and void and does not bind
the share of the plaintiff in the suit property.
3.7 Initially, the plaintiff had filed an application for temporary
injunction in the said suit and had also sought stay to the
execution of the decree in RCS/436/2001. By an order dated
18th September, 2023 the said application was partly allowed
restraining the defendants from alienating or creating any third
party interest in the suit properties till the decision of the said
suit. The prayer for stay to the execution of the decree was not
considered as in RCA/11/2021 the Appeal Court had already
granted stay to the delivery of possession of the suit properties
in execution of the decree.
3.8 Post the withdrawal of the appeal, the plaintiff preferred
application for stay to the execution and operation of the decree
(Exhibit-84), purportedly under Section 151 of the Code of Civil
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Procedure, 1908 ("the Code"). Defendant No.4 resisted the
application.
3.9 By the impugned order, the learned Civil Judge was
persuaded to order stay to the execution of the decree treating
the said application as one for temporary injunction under
Order XXXIX Rule 2 of the Code. The learned Civil Judge was of
the view that since the plaintiff had undoubtedly a share in the
property left behind by late Husain Mulani and she was not
impleaded in RCS/436/2001, she was entitled to assail the
decree as a nullity.
4. Mr. Kulkarni, the learned Counsel for the petitioner,
submitted that the learned Civil Judge transgressed the
jurisdictional limits in directing stay to the execution and
operation of the decree passed in RCS/436/2001, which has
attained finality. The appeal preferred by the defendant in the
said suit came to be disposed as withdrawn. The plaintiff, who
claims to be the daughter of late Husain Mulani, could have
worked out her remedies by filing an appeal against the said
judgment and decree. Therefore, the plaintiff could not have
sought the relief of declaration qua the said decree in
RCS/436/2001, by filing an independent suit.
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5. Mr. Kulkarni nextly urged that the application was also
barred by the principles of res judicata. By an order on an
application for temporary injunction (Exhibit-5), the trial court
had already rejected the prayer to stay the execution and
operation of the decree in RCS/436/2001. Therefore, since the
principles of res judicata operate at different stages in the
same proceedings, the trial court could not have granted the
stay to the execution and operation of the decree in
RCS/436/2001.
6. Mr. Tajane, the learned Counsel for the respondent -
plaintiff, supported the impugned order. It was submitted that
the relationship between the parties was not put in contest. In
fact, in the written statement, defendant No.4 conceded that the
plaintiff was the daughter of late Husain Mulani. The fact that
late Husain Mulani had acquired the suit property 1A and suit
property 1B had devolved upon late Husain Mulani, was also
not put in contest. Therefore, the right of the plaintiff to inherit
the properties left behind by Husain Mulani alongwith late
Rahiman Mulani is incontrovertible. Indisputably, the plaintiff
was not impleaded as a party defendant in RCA/436/2001
wherein the Court had determined shares of all the parties, but
plaintiff. In this view of the matter, the learned Civil Judge was
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well within his rights in staying the execution and operation of
the decree passed in RCS/436/2001.
7. The facts are rather incontrovertible. Late Husain Mulani
had left behind his widow Jannatbi, son Rahiman and daughter
Fatimabi, the plaintiff. It seems dispute arose between the
children of Rahiman born to Maimunbi and Shantabai,
resulting in institution of RCS/436/2001. Eventually a decree
came to be passed in the said suit. The plaintiff was not
impleaded as a party defendant to the said suit. Since the said
suit for partition was in respect of the properties, which
devolved on Rahiman from late Husain Mulani, the plaintiff was
indubitably a necessary party to the suit. Prima facie the
plaintiff has a right to succeed to the suit properties left behind
by Husain Mulani.
8. The submission of Mr. Kulkarni that the plaintiff ought to
have filed an appeal against the decree passed in
RCS/436/2001 does not merit countenance. The plaintiff has
instituted the suit for partition and separate possession of her
share and has also sought declaration regarding the invalidity of
the instrument executed by Kamal Mulani, the son of late
Rahiman Mulani, in favour of Nihal (D14) and Arbaj (D15), and
that the decree in RCS/436/2001 does not bind the plaintiff.
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Such a substantive suit seeking a declaration that the decree
passed in RCS/436/2001 does not bind the plaintiff is legally
tenable. It is true, the plaintiff could have sought permission to
file appeal against the decree passed in RCS/436/2001.
However, that is not the only remedy which the plaintiff could
have availed, especially when despite being entitled to a share in
the property of late Husain Mulani, she was not impleaded as a
party defendant in the said suit.
9. The learned Civil Judge was fully justified in treating the
application which was preferred purportedly under Section 151
of the Code, as the one under Order 39 Rule 2 of the Code. It is
trite nomenclature of the application or the incorrect description
of the provision under which the application is preferred, is not
of decisive significance. If the order passed by the Court is
referable to a source of power, which the Court possesses, an
incorrect description of the provision or nomenclature of the
application is of no significance. The learned Civil Judge, thus,
correctly applied the principles in treating the application to be
one under Order XXXIX Rule 2 of the Code.
10. The submission of Mr. Kulkarni that the application was
barred by the principles of res judicata is equally untenable. It
is imperative to note that while passing order on the application
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for temporary injunction (Exhibit-5) the trial court had
specifically refrained from considering the prayer for stay to the
execution and operation of the decree in RCS/436/2001 as the
Appellate Court had already passed an order in RCA/11/2021
staying the delivery of possession of the property under the
decree, which was assailed in the said appeal. Thus, the said
order does not operate as a res judicata as the issue cannot be
said to have been decided by the Court. In any event, the said
order is in the nature of an interlocutory order. The principles of
res judicata are not attracted to interlocutory orders with the
same force and vigor as they apply to the final adjudication.
11. In the face of the hard fact that a decree for partition of
the suit properties came to be passed without impleading the
plaintiff as a party defendant thereto, when the relationship
between the plaintiff and late Rahiman Mulani, through whom
the plaintiffs in the said suit claimed, and the entitlement of the
plaintiff to a share in the suit properties is prima facie
incontestable, the learned Civil Judge cannot be said to have
committed any error in directing stay to the execution and
operation of the decree in RCS/436/2001 till the final disposal
of the suit. Lest, the plaintiff would have suffered irreparable
loss.
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12. The conspectus of the aforesaid consideration is that this
Court does not find any infirmity in the impugned order. Thus,
no interference is warranted in exercise of the supervisory
jurisdiction. The petition, therefore, deserves to be dismissed.
13. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
No costs.
[N. J. JAMADAR, J.]
