Matheen Ahamed vs Mahemood Begum And Ors
2022 Latest Caselaw 1206 Kant

                              1




             IN THE HIGH COURT OF KARNATAKA
                     KALABURAGI BENCH

        DATED THIS THE 27TH DAY OF JANUARY, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE E.S.INDIRESH


       WRIT PETITION No.201858 OF 2021 (GM-FC)

BETWEEN:

Sri Matheen Ahamed
S/o late Aziz Ahmad
Age 37 years
Occ: Private Employee
R/o H.No.08ch, 1st Cross
Queens Cross Road
Beside Indian Express News Paper Press
Bengaluru - 560 002
                                              ... Petitioner
(by Sri Arunkumar Amargundappa, Advocate)

AND:

  1. Smt. Mahemood Begum
     W/o Mohammed Mubeen Ahemad
     Age 32 years
     Occ: Household
     R/o Masarkal Village
     Taluk: Devadurga
     District: Raichur 584 126

  2. Shaik Hussan
     s/o Mohammed Mubeen Ahemad
     Age 10 years
     Occ: Household
                                   2




      R/o Masarkal Village
      Taluk: Devadurga
      District: Raichur 584 126

   3. Sri Mohd. Mubeen Ahemad
      S/o late Aziz Ahmad
      Age 42 years
      Occ: Mechanic and Real Estate
      R/o H No.1-4-155/224, IB Layout
      Jyothi Colony
      Raichur 584 123
                                                        ... Respondents

(R1 and R2 served)


      This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to issue a writ or order in the
nature of certiorari quashing the impugned common order dated
15.01.2021 passed by the Principal Judge, Family Court at
Raichur in Crl.Misc. No.211/2016 vide Annexure-A; and etc.

      This Petition coming on for Preliminary Hearing 'B' Group,
this day, the court made the following:-

                             ORDER

Though this petition is listed in preliminary hearing 'B'

group, with the consent of the learned counsel appearing for the

parties, the petition is taken up for final disposal.

2. Petitioner has challenged, the order dated 15th

January, 2021 passed by the Principal Judge, Family Court at

Raichur in Criminal Miscellaneous No.211 of 2016. The case of

the petitioner is that, he has filed application for impleading

himself as third party in the said Criminal Miscellaneous Petition.

Respondents 1 and 3 herein are the husband and wife and

respondent No.2 is the son of respondents 1 and 3. Petitioner is

the brother of the respondent No.3. Respondent No.1 has filed

Criminal Miscellaneous No.211 of 2016 before he trial Court for

maintenance under Section 125 of Code of Criminal Procedure.

The trial Court has ordered compensation of Rs.3,000/- and

Rs.1,000/- per month to the respondent No.1 and Rs.1,000/- to

the respondent No.2-child. The respondent No.1 has filed

application for recovery of arrears of maintenance against the

respondent No.3 and the trial Court directed the Police to break-

open of lock of house of the petitioner herein. It is also stated

that the respondent No.1 has filed suit for dissolution of

marriage in Original Suit No.3 of 2016 against the respondent

No.3. It is the case of the petitioner that on the strength of the

order passed by the trial Court in maintenance proceedings,

respondent No.1 is residing in the house belonging to the

petitioner herein and therefore, the petitioner has filed

application before the trial Court to implead himself as third

party. The said application came to be dismissed by the trial

Court by order dated 15th January, 2021 and being aggrieved by

the same, petitioner has presented this petition.

3. I have heard Shri Arunkumar Amargundappa,

learned counsel for the petitioner. Respondents are served and

remained absent.

4. Shri Arunkumar Amargundappa, learned counsel for

the petitioner contended that the finding recorded by the trial

Court is contrary to the factual aspects of the case. He further

contended that none of the respondents are having any right or

title in respect of the suit schedule property and therefore,

attachment of said property by the trial Court amounts to

without jurisdiction and therefore, he relied upon the judgment

of the Hon'ble Apex Court in the case of S.R. BATRA AND

ANOTHER v. TARUNA BATRA reported in (2007)3 SCC 169.

5. In the light of the submission made by the learned

counsel for the petitioner, it is not in dispute that there is

matrimonial litigation between the respondents inter se. The

petitioner is the brother of respondent No.3. Perusal of the

finding recorded by the trial Court would indicate that the

respondent No.3 had purchased the property in the year 2005

through registered sale deed and thereafter, gifted the same in

favour of the petitioner herein. Undisputably, the respondent

No.1 has filed an application for recovery of arrears of

maintenance. In that view of the matter, the reasons assigned

by the trial Court at paragraph 9 of the judgment is just and

proper and I do not find any substance in the argument

advanced by the learned counsel for the petitioner. Though,

learned counsel for the petitioner relied upon the judgment of

the Hon'ble Apex Court in the case of S R BATRA (supra), the

Apex Court, at paragraph 21 of the judgment, held as follows:

"21. It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. Taruna Batra was not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226 or 227 of the Constitution. Hence, Smt. Taruna Batra cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise."

6. In view of the fact that the disputed question of fact

requires to be resolved in this matter, the finding recorded by

the trial Court is just and proper. In the result, writ petition is

dismissed.

Sd/-

JUDGE

lnn