Bashakhan S/O. Sardarkhan ... vs Jamalsab S/O. Abumlyyasab ...
2022 Latest Caselaw 12367 Kant

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                                          MFA No. 24088 of 2012

     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 12TH DAY OF OCTOBER, 2022

                           BEFORE

            THE HON'BLE MR JUSTICE R.NATARAJ

MISCELLANEOUS FIRST APPEAL NO. 24088 OF 2012 (CPC)

BETWEEN:
1.    BASHAKHAN S/O. SARDARKHAN MEDLERI
      AGE: 66 YEARS, OCC: AGRIUCLUTRE,
      R/O. AIRANI, NOW AT 1ST MAIN, 2ND CROSS,
      NEELKANTANAGAR, HARIHAR,
      DIST: DAVANGERE

2.    JAMALSAB S/O. AJEEJSAB BADAGI
      AGE: 65 YEARS, OCC: AGRICULTURE,
      R/O. NADIHARALAHALLI,
      NOW AT HIREMORAB,
      TQ: HIREKERUR, DIST:HAVERI

3.    ABDULSAB S/O. AJEEJSAB BADAGI,
      AGE: 62 YEARS, OCC: AGRICULTURE,
      R/O. NADIHARALAHALLI,
      TQ: RANEBENNUR. DIST:HAVERI,

4.    ANWARSAB S/O. AJEEJSAB BADAGI
      AGE: 60 YEARS, OCC: AGRICULTURE,
      R/O. NADIHARALAHALLI,
      TQ: RANEBENNUR. DIST:HAVERI
                                                 ...APPELLANTS
(BY SRI. N P VIVEKMEHTA, ADVOCATE)
AND:
1.    JAMALSAB S/O. ABUMIYYASAB KAVADIGADDI
      AGE: 63 YEARS, OCC: AGRICULTURE
      R/O. NADIHARALAHALLI,
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                                           MFA No. 24088 of 2012

     TQ: RANEBENNUR, DIST: HAVERI

2.   CHAMANSAB S/O. ABUMIYYASAB KAVADIGADDI
     AGE: 68 YEARS, OCC: AGRICULTURE,
     R/O. NADIHARALAHALLI,
     TQ: RANEBENNUR, DIST: HAVERI
                                         ...RESPONDENTS
(BY SRI. PRUTHVI K. S. ADVOCATE FOR R1 & R2)

      THIS MFA IS FILED U/O.XLIII RULE 1(r) OF THE CODE OF
CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDER
DATED 18.08.2012 PASSED IN O.S. NO.62/2012 ON THE FILE OF
THE SENIOR CIVIL JUDGE AT RANEBENNUR, ON I.A. NO.1 FILED
U/O. 39 RULE 1 AND 2 R/W. SEC. 151 OF CPC AND ALLOW THE
APPLICATION BY ALLOWING THIS APPEAL.

      THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is filed by the plaintiffs in O.S.No.62/2012

on the file of the Senior Civil Judge, Ranebennur, challenging

the order dated 18.08.2012 by which the application filed by

them seeking interim injunction to restrain the defendants

from interfering with their possession in the suit schedule

properties was rejected.

2. The plaintiffs claimed that their mother and the

father of the defendants were siblings. The land bearing

MFA No. 24088 of 2012

Sy.No.88 of Airani village measuring 18 acres 37 guntas was

the property that was held by their grandfather and

succeeded by the mother of plaintiffs and the father of

defendants. It was contended that a partition was effected

amongst them in terms of which the suit schedule properties

fell to the share of the mother of the plaintiffs. It was

contended that the revenue records in respect of the suit

schedule properties stood in the name of the plaintiffs as on

the date of the suit. Since the plaintiffs' possession in the

suit schedule properties was disturbed, the plaintiffs sought

for declaration of their title over the suit schedule properties

and for injunction.

3. The defendants contested the suit and claimed

that there was no partition of the land bearing Sy.No.88 of

Airani village and that the partition alleged by the plaintiffs

was not in accordance with Mohammedan Law. They also

contended that the plaintiffs were never in possession of the

suit schedule properties and thus, the question of grant of

injunction in their favour does not arise. On the contrary, it

is contended that the defendants are in possession of the

MFA No. 24088 of 2012

suit properties and hence, the grant of injunction would

cause irreparable loss and injury to them.

4. The Trial Court noticed that there was no dispute

regarding the relationship between the parties. The Trial

Court also noticed from the revenue records that the land

bearing Sy.No.88 of Airani village was bifurcated into

Sy.Nos.88/1 to 88/6 and that all the plaintiffs and

defendants had submitted a joint Varadi to the Revenue

Officer to mutate their names to in respect of their

respective shares. None the less, the Trial Court held that

the balance of convenience and comparative hardship was in

favour of the defendants, as the defendants claimed that

there was no partition of the land bearing Sy.No.88 of and

hence, rejected the application.

5. When this appeal was listed before this Court, this

Court granted an order of injunction restraining the

defendants from interfering with the possession of the

plaintiffs in the suit schedule properties for a period of three

months in terms of the order dated 12.08.2013. However,

the said order is not continued till date. It is now stated by

MFA No. 24088 of 2012

the learned counsel for the plaintiffs that the suit is still

pending consideration before the Trial Court and evidence is

yet to be commenced.

6. In that view of the matter, this appeal is

disposed off directing both the parties to maintain status-

quo in respect of the suit schedule properties. Neither the

plaintiffs nor the defendants shall attempt to dispossess

either of them from the suit schedule properties. The Trial

Court is directed to dispose of the suit as expeditiously as

possible which shall not be later than one year from the date

of receipt of certified copy of this order.

7. All contentions are left open.

8. Registry is directed to return the Trial Court

Records forthwith.

Sd/-

JUDGE

YAN