Karnataka High Court
Sri.Shabbir Ahmed S/O Khatalsab ... vs Sri.Mohammad Shafi S/O Gous ... on 27 January, 2022
Bench: R Natarajpresided Byrnj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
MFA NO.101375/2019 (CPC)
BETWEEN:
1. SRI.SHABBIR AHMED
S/O KHATALSAB KUDACHI
AGED ABOUT 51 YEARS,
OCC: PRIVATE SERVICE,
2. SRI.NAJEER AHMED
S/O KHATALSAB KUDACHI
AGED ABOUT 46 YEARS,
OCC: PRIVATE SERVICE
3. SRI. IRSHAD AHMED MOHAMMED
HAYAT KUDACHI
AGED ABOUT 46 YEARS,
OCC: PRIVATE SERVICE,
4. HARUN RASHID MOHAMMED HAYAT KUDACHI
AGED ABOUT 39 YEARS,
OCC: PRIVATE SERVICE,
5. JAINUL ABEDEEN MOHAMMED HAYAT KUDACHI
AGED ABOUT 46 YEARS,
OCC: PRIVATE SERVICE,
6. SRI.IRFAN IMAMSAB KUDACHI
AGED ABOUT 33 YEARS,
OCC: PRIVATE JOB,
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7. SRI.FAYAZ AHMED MEHABBOBSA KUDACHI
AGED ABOUT 30 YEARS,
OCC: PRIVATE SERVICE,
8. SRI.AYAZ AHMED MEHBOOB SAB KUDACHI
AGED ABOUT 29 YEARS,
OCC: PRIVATE SERVICE,
C/O. IRSHAD AHMED MOHAMMED HAYAT
9. SRI.LIYAQAT ALI GOUS KUDACHI
AGED ABOUT 65 YEARS,
OCC: PRIVATE JOB,
10 . SRI.FARUKH AHAMAD
S/O LIYAKAT ALI
AGED ABOUT 32 YEARS,
OCC: POULTRY FARM,
11 . SRI.ZAKIR
S/O LIYAKAT ALI
AGED ABOUT 29 YEARS,
OCC: PRIVATE WORK,
ALL R/AT TIPPU SULTAN NAGAR,
BALEKUNDRI K.H.
TQ. AND DIST. BELAGAVI-590 001.
PETITIONERS
(BY SRI S.S. YALIGAR, ADVOCATE FOR SRI MRUTYUNJAY TATA
BANGI, ADVOCATE)
AND
1. SRI.MOHAMMAD SHAFI
S/O GOUS KUDACHI
AGED ABOUT 76 YEARS,
OCC: AGRICULTURE,
R/AT MULLA GALLI,
BALEKUNDRI K.H.,
TQ. and DIST: BELAGAVI-590001.
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2. SRI.IMTIYAZ AHMED SHAU KATALI KUDACHI
AGED ABOUT: 46 YEARS,
OCC: PRIVATE JOB,
C/O IRSHAD AHMED MOHAMMED HAYAT,
TIPPU SULTAN NAGAR,
BALEKUNDRI K.H.,
TQ. and DIST: BELAGAVI-590001.
3. SRI.MUNIR AHMED IMAMSAB KUDACHI
AGED ABOUT: 41 YEARS,
OCC: PRIVATE SERVICE,
R/AT: TIPPU SULTAN NAGAR,
BALEKUNDRI K.H.,
TQ. and DIST: BELAGAVI-590001.
RESPONDENTS
(NOTICE TO RESPONDENT NOS.2 AND 3 IS SERVED)
THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF
THE CIVIL PROCEDURE CODE, AGAINST THE ORDER
DATED:21.03.2019 PASSED ON I.A. NO.1 IN O.S.NO.370/2018
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, BELAGAVI, ALLOWING THE I.A
NO.1 FILED UNDER ORDER 39 RULES 1 AND 2 OF THE CODE OF
CIVIL PROCEDURE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have challenged an Order dated 21.03.2019
passed by the II Additional Senior Civil Judge and CJM., at
Belagavi in O.S. No.370/2018 by which the Court allowed the
application (I.A.No.I) and granted an order of temporary
injunction restraining the appellants and respondent Nos.2 and 3
herein / defendants from constructing any building in the suit
property till the disposal of the suit.
2. A suit in O.S. No.370/2018 was filed by the
respondent No.1 herein for partition and separate possession of
his undivided share. He contended that the property bearing
parde/paradi No.60 was owned and possessed by late Sri
Khatalsab, Sri Shoukatali, Sri Hayatsab and the plaintiff and late
Sri Imamsab jointly in terms of a sale deed dated 15.01.1947.
He claimed that there was an old house in the property
measuring about 02 guntas and the remaining 04 guntas was
vacant. The plaintiff alleged that he was residing with his family
in the house. A portion of the house was got demolished by the
defendants to dispossess the plaintiff from the suit house. He
also submitted that another property bearing parde/paradi No.61
was purchased by seven sons of late Sri Gousab Kudachi in
terms of sale deeds dated 15.06.1959 and 09.07.1959 and
therefore, each of them were entitled for 1/7th share therein.
The plaintiff alleged that he had 1/5th share in the property
bearing parde/paradi No.60 and 1/7th share in the property
bearing parde/paradi No.61. Therefore, he sought for partition
of his respective shares in the respective properties.
3. Along with the suit, the plaintiff filed an application
(I.A.No.I) under Order XXXIX Rules 1 and 2 of the Code of Civil
Procedure for an order of interim injunction to restrain the
defendants/appellants and respondent Nos.2 and 3 herein from
undertaking any construction until a partition of the suit
properties was effected. The defendants contended that there
was a prior partition in the presence of the Jamat on 05.10.2017
and thereafter a consent letter was issued on 02.11.2017
consequent to which, the names of the respective parties were
entered in the records of the Grama Panchayat. The defendant
No.5 thereafter obtained permission to construct a building in the
area which fell to his share which instigated the plaintiff /
respondent No.1 herein to file the present suit.
4. The Trial Court after considering the contentions
urged, noticed that the consent deeds were all unregistered and
the boundaries of the suit property were not clearly mentioned.
There was not even a clear mention about the partition of the
properties by metes and bounds.
5. In that view of the matter, the Trial Court allowed
the application and restrained the defendants (appellants and
respondent Nos.2 and 3) from putting up any construction in the
suit property until disposal of the suit.
6. Being aggrieved by the aforesaid Order, the present
appeal is filed.
7. The learned counsel for the appellants submitted that
the records placed disclosed an earlier understanding between
the parties. The plaintiff could not have again filed a suit for
partition and thereby denigrate the earlier settlement entered
into between the parties. He, however, submitted that the
defendants / appellants and respondent Nos.2 and 3 herein are
putting up construction in the area that was allotted to their
share and that in the event the plaintiff succeeds in the suit, the
defendants would deliver up the alleged share of the plaintiff in
the suit properties.
8. In view of the contention urged by the defendants
that there was a settlement in the presence of jamat, in terms of
which certain property was allotted to the share of the plaintiff
and certain property was allotted to the share of the defendants,
it becomes more than evident that both the plaintiff and
defendants are entitled to an undivided share in the suit
properties. If the parties have entered into a settlement, it is for
the defendants to establish the same in accordance with law.
The plaintiff had made out a case that had to be tried and
therefore ends of justice demanded that status quo of the
properties was maintained. The defendants cannot alter the
status quo by raising any construction over the suit properties
unless the fact of prior partition is proved in accordance with law.
9. In that view of the matter, the impugned Order
passed by the Trial Court is unexceptionable and there is no
merit in this appeal.
Hence, this Appeal is dismissed.
The pending interlocutory application stands disposed off.
Sd/-
JUDGE
sma
