Karnataka High Court
Saradar Akbar Jamadar vs Khutabuddin Akbar Jamadar on 12 October, 2022
Bench: R Natarajpresided Byrnj
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MFA No. 22329 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISC.FIRST APPEAL NO. 22329 OF 2013 (CPC)
BETWEEN:
SHRI SARADAR AKBAR JAMADAR,
AGE: 67 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O.KUNNUR-591288,
TALUKA: CHIKODI,
DIST: BELAGAVI.
...APPELLANT
(BY SRI. ANAND ASHTEKAR, ADVOCATE)
AND:
1. SHRI KHUTABUDDIN AKBAR JAMADAR,
AGE: 63 YEARS,
OCC: AGRICULTURE,
R/O.KUNNUR-591 288,
TALUKA: CHIKODI, DIST: BELAGAVI.
2. SHRI AINUDDIN AKBAR JAMADAR,
AGE: 61 YEARS,
OCC: AGRICULTURE,
R/O.KUNNUR-591 288,
TALUKA: CHIKODI, DIST: BELAGAVI.
SMT.NAJUKBI W/O AKBAR JAMADAR,
DIED-APPELLANT and RESPONDENTS ARE HER
LEGAL REPRESENTATIVES.
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MFA No. 22329 of 2013
3. SMT.SHAJADBI W/O ILAHI DANAWADE,
AGE: 68 YEARS,
OCC: HOUSEHOLD,
R/O.C/O.ILAHI DAWAL DANAWADE,
POST: JAMBHALI-461121,
TALUKA: SHIROL, DIST: KOLHAPUR,
MAHARASHTRA STATE.
4. SMT.NOORJAHAN,
W/O CHORGHASTE @ NAIKWADI,
AGE: 58 YEARS,
OCC: HOUSEHOLD,
R/O.MANGUR-591215,
TALUKA: CHIKODI,
DIST: BELAGAVI.
5. SMT.MUMATAJ W/O HABIB MUJAWAR,
AGE: 52 YEARS,
OCC: HOUSEHOLD,
R/O.HABIB NIJAMUDDIN MUJAWAR,
SADALAGA-591239,
TALUKA: CHIKODI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. S.B.SHAIKH, ADVOCATE FOR R1;
SRI. CHETAN T.LIMBIKAI, ADVOCATE FOR R3;
R2, R4 AND R5 ARE SERVED)
THIS M.F.A. IS FILED UNDER ORDER XLIII RULE 1(r) R/W
SECTION 104 OF C.P.C., AGAINST THE JUDGMENT AND ORDER
DATED 13.03.2013 PASSED IN O.S.NO.155/2004 ON THE FILE
OF THE SENIOR CIVIL JUDGE, CHIKODI, ALLOWING THE
I.A.NO.11 FILED UNDER ORDER XXXIX RULE 1 AND 2 OF C.P.C.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 22329 of 2013
JUDGMENT
Learned counsel for the appellant submits that
respondent No.1 has expired. He, however, submits that since
the legal heirs of respondent No.1 are brought on record before
the trial Court, there is no impediment to take up this appeal
for disposal.
2. Defendant No.1 in O.S.No.155/2004 on the file of
the Senior Civil Judge, Chikodi has filed this appeal challenging
an order granting interim injunction restraining defendant No.1
from receiving sugarcane bill sent to Shri Datta Shetakari
Sahakari Sakhare Karkhana Limited of Kunnur village till the
disposal of the suit.
3. The suit in O.S.No.155/2004 was filed for partition
and separate possession of the plaintiff's share in the suit
schedule properties. The plaintiff claimed that the suit
properties was owned and possessed by the propositus of the
family of the plaintiff and defendants and after his death,
plaintiff and defendants had jointly succeeded to the suit
properties. The plaintiff contended that their brother Abbas
separated himself from the family and that the plaintiff and
defendants continued to be tenants in common and that they
MFA No. 22329 of 2013
had laid pipeline to draw water to the land from Doodganga
river. The plaintiff claimed that there was no partition amongst
them and that they are in joint possession of the suit
properties. The plaintiff alleged that since relationship amongst
them was strained, the plaintiff sought for partition of his share
in the suit schedule properties.
4. The suit was contested by defendant No.2 who
contended that some of the suit properties were purchased
from him out of his own funds and therefore, they were not
available for partition.
5. During the pendency of the suit, the sisters of the
plaintiff filed an application to come on record and they were
impleaded. They filed an application seeking for an interim
injunction to restrain defendant No.1 from receiving sugarcane
bill from Shri Datta Shetakari Sahakari Sakhare Karkhana
Limited, Kolhapur District in respect of R.S.No.241/21+22B of
Kunnur village. The trial Court after considering the contentions
urged by defendants No.4, 5 and 6 that they had raised
sugarcane in R.S.No.241/21+22B and that defendant No.1
taking advantage of his portion, had illegally cut the sugarcane
crop raised in the said land and had sent to Shri Datta
MFA No. 22329 of 2013
Shetakari Sahakari Sakhare Karkhana Limited. The trial Court,
prima facie found the said contention to be true and granted an
order of injunction restraining defendant No.1 from making any
claim to the sugarcane bill in respect of the aforesaid survey
number. Being aggrieved by the same, defendant No.1 has filed
this appeal.
6. Learned counsel for defendant No.1 submits that
land bearing R.S.No.241/21+22B was purchased by defendant
No.1 in terms of sale deed dated 22.07.2004 and that he had
filed a suit in O.S.No.195/2004 against the plaintiff and another
person and that the said suit was decreed for perpetual
injunction. He submitted that defendants No.4, 5 and 6 have no
independent right to claim any interim injunction in respect of
the land bearing R.S.No.241/21+22B.
7. Learned counsel for respondents No.1 and 3 are
absent and therefore this Court did not have the benefit of the
submission of learned counsel for the respondents.
8. Be that as it may, the impugned order was passed
by the trial Court on 13.03.2013 restraining the sugar factory
referred above from disbursing the sugarcane amount to the
MFA No. 22329 of 2013
extent of 3/5th share of the value of the sugarcane grown in
R.S.No.241/21+22B to defendant No.1. This therefore meant
that the defendant No.1 could receive 2/5th share and what was
protected was only the tentative share of defendants No.4, 5
and 6 in the mesne profits that arise out of the land in
R.S.No.241/21+22B. Since this order has remained in force
from the year 2013 till date, it is inappropriate to disturb the
same. Hence, this appeal lacks merit and is dismissed.
9. It is open for defendant No.1 to seek release of the
3/5th amount after disposal of the suit in O.S.No.155/2004.
Since the suit is filed in the year 2004, the trial Court is
directed to dispose of the same as expeditiously as possible
which shall not be later than one year from the date of receipt
of a certified copy of this order.
SD/-
JUDGE
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