Karnataka High Court
Ahmadpasha S/O Chandsab Shaikh vs The Deputy Commissioner on 9 February, 2023
Bench: E.S.Indiresh
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WP No. 110254 OF 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO. 110254 OF 2016 (L-KSRTC)
BETWEEN:
1. AHMADPASHA S/O CHANDSAB SHAIKH
AGED 82 YEARS, OCC: RETD.,
R/O: MALLIKARJUN MANSOOR BUILDING,
DHARWAD, TQ: DIST: DHARWAD.
SINCE DECEASED R/BY HIS LRs
1A. FAMIDA BEGUM W/O. AHMEDPASHA SHAIKH
AGED ABOUT 77 YEARS, OCC: HOUSEWIFE
1B. ANISAHMED S/O. AHMEDPASHA SHAIKH
AGED ABOUT 58 YEARS, OCC: BUSINESS
1C. ANJUM W/O. AMANULLA MULLA
AGED ABOUT 57 YEARS, OCC: HOUSEWIFE
1D. KAUSAR W/O. GOUSEKHAN PATHAN
AGED ABOUT 51 YEARS, OCC: HOUSEWIFE
CHANDRASHEKAR
LAXMAN
KATTIMANI
1E. ALIYA W/O. RAFIK MULLA
Digitally signed by
CHANDRASHEKAR
AGED ABOUT 51 YEARS, OCC: HOUSEWIFE
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
DHARWAD
Date: 2023.02.10
11:41:12 +0530 ALL ARE RESIDENT OF MALLIKARJUN MANSUR BUILDING
TQ. & District. DHARWAD.
2. NASIRAHAMED S/O.CHANDSAB SHAIKH
AGED 78 YEARS, OCC: PENSIONER,
R/O: DOLORS COLONY, BEHIND NEW BUS STAND,
TQ.HUBBALLI, TQ and DIST: DHARWAD
AND GPA HOLDER REPRESENTING THE
PETITIONERS NO.1 TO 5.
3. BUDURUNIS, W/O. BASEERAHMED SHAIKH,
SINCE DECEASED BY HIS LRS,
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WP No. 110254 OF 2016
3A. IMTIYAZ AHAMED BASEERAHMED SHAIKH,
AGE: MAJOR,OCC: SERVICE,
R/O: SAVANUR NAWAB COMPOUND,
DHARWAD,TQ and DIST: DHARWAD.
3B. IKLAS AHAMED BASEERAHMED SAHAIKH,
AGE: MAJOR,OCC: SERVICE,
R/O: SAVANUR NAWAB COMPOUND,
DHARWAD,TQ and DIST: DHARWAD.
3C. MAKASUDAHAMED BASEERAHMED SHAIKH,
AGE: MAJOR,OCC: SERVICE,
R/O: SAVANUR NAWAB COMPOUND,
DHARWAD, TQ and DIST: DHARWAD.
* RASHID AHAMAD, S/O CHANDSAB SHAIKH
IS DEAD HE WAS UNMARRIED,
* MUSTAK AHAMAD,S/O CHANDSAB SHAIKH
IS DEAD HE WAS UNMARRIED,
...PETITIONERS
(BY SRI. ASHOK I. BADIGER & SRI. GANESH RAIBAGI, ADVOCATES)
AND:
1. THE DEPUTY COMMISSIONER,
BELAGAVI, DIST: BELAGAVI.
2. MOHAMMADSHA, S/O JAMALSHA JAMADAR,
SINCE DECEASED, R/BY HIS LRs
2A. ROSHANBI W/O. MAHAMMADSHA JAMADAR
AGE: 73 YEARS, OCC: HOUSEHOLD WORK
R/O. NEERLKERI GALLI, CHIKKODI
TQ: CHIKKODI, DIST:BELAGAVI.
2B. SHABBIR S/O. MAHAMMADSHA JAMADAR
AGE: 53 YEARS, OCC: PRIVATE DRIVER
R/O. NEERLKERI GALLI, CHIKKODI
TQ: CHIKKODI, DIST:BELAGAVI.
2C. RAFIQ S/O. MAHAMMADSHA JAMADAR
AGE: 41 YEARS, OCC: RUNNING FLOUR MILL
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WP No. 110254 OF 2016
R/O. NEERLKERI GALLI, CHIKKODI
TQ: CHIKKODI, DIST:BELAGAVI.
2D. SHEHEANSHAH
S/O. MAHAMMADSHA JAMADAR
AGE: 49 YEARS, OCC: NIL
R/O. NEERLKERI GALLI, CHIKKODI
TQ: CHIKKODI, DIST:BELAGAVI.
3. KHADAR S/O JAMALSHA JAMADAR
AGE: 75 YEARS, OCC: AGRICULTURE,
R/O: JUGUL, TQ: ATHANI, DIST: BELAGAVI.
4. SHAMSHUISSA
W/O JHANGIR JAMADAR,
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O: SONE MIRAJ, SANGALI,
DIST: KOLHAPUR, STATE MAHARASHTRA.
5. MIRUNNISHA
W/O MOHAMMED SHA KOTEWALE,
SINCE DECEASED BY HER LRS
5A. MUNIR MOHAMED SHA KOTEWALE
AGED ABOUT 50 YEARS
OCC: TEACHER IN PVT. SCHOOL
R/O. PUSHPAK NAGAR, OLD MSEB
SHIROL, DIST: KOLHAPUR
STATE: MAHARASHTRA - 416 103.
5B. NASIR MOHAMED SHA KOTEWALE
AGED ABOUT 43 YEARS, OCC: SERVICE
R/O. NEAR KDC BANK, KURUNDWAD
DIST: KOLHAPUR, STATE: MAHARASHTRA 416 106
6. KAMRUNNISSA, W/O FARID JAMADAR,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O: KHIDRAPUR, SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
7. YUSUF JAMALSHA JAMADAR (DECEASED)
7A. IMMAMBI W/O. YUSUR JAMADAR,
SINCE DECEASED
REPRESENTED BY HER LRS.
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WP No. 110254 OF 2016
7B. IMTIYAZ, S/O YUSUFSHA JAMADAR,
AGE: 45 YEARS, OCC: DRIVER,
R/O: MULLA PLOT,
TQ: CHIKKODI, DIST: BELAGAVI.
7C. SAYYED, S/O YUSUFSHA JAMADAR,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: MULLA PLOT, TQ: CHIKKODI,
DIST: BELAGAVI.
8. HAMIDULLASHA AIYUSHA JAMADAR
SINCE DECEASED R/BY HIS LRs
8A. JAITUN, W/O HAMIDULLASHA JAMADAR,
AGE: 53 YEARS, OCC: DRIVER
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
8B. HANIFSHA HAMIDULLASHA JAMADAR,
AGE: 53 YEARS, OCC: DRIVER,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
8C. ABALAL HAMIDULLASHA JAMADAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
8D. TAYUM HAMIDULLASHA JAMADAR,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
8E. MEHABOOB HAMIDULLASHA JAMADAR,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
8F. AYUB HAMIDULLASHA JAMADAR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
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WP No. 110254 OF 2016
8G. AKHBAR HAMIDULLASHA JAMADAR,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
8H. ABALAL W/O. HAMIDULLASHA JAMADAR
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
9. TALABALISHA AYUBSHA JAMADAR
SINCE DECEASED REP. BY HIS LRs
9A. ROSHAN TALABALISHA JAMADAR,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
9B. IBRAHIM TALABALISHA JAMADAR,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
9C. GOUSE TALABALISHA JAMADAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: KHIDRAPUR, TQ: SHIROL,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
10. SMT.BADURINNISHA
W/O BASHEERAHMED SHAIKH,
AGE: MAJOR, OCC: HOUSEWIFE,
R/O: SAVANUR NAWAB COMPOUND,
DHARWAD.
11. SMT.JAIBUNNISHA IRFAN JAMADAR
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: HANGADA GALLI, TQ: MIRAJ,
DIST: KOLHAPUR, STATE: MAHARASHTRA.
12. ASST. COMMISSIONER,
CHIKKODI SUB DIVISION,
CHIKKODI, DIST: BELAGAVI.
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WP No. 110254 OF 2016
13. THE PRINCIPAL SECRETARY
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA, BENGALURU.
...RESPONDENTS
(SRI. VINAYAK S. KULKARNI, AGA FOR R1, R12 and R13;
SRI. DINESH M. KULKARNI, ADVOCATE FOR R2(B, C, D) R4, R6,
R7(B & C), R8(A TO C), R8 (E TO G), R9(A TO C), R5 (A & B) & R11;
SRI. S. V. DESHPANDE, ADVOCATE FOR R2(A), R3;
R10 & R8 (D) - SERVED)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO:-
A) QUASH THE IMPUGNED ORDER DATED:26.09.2013 AND
CONSEQUENTLY DATED:16.04.2015 RESPECTIVELY PASSED BY
THE RESPONDENT NO.1 AS PER ANNEXURES-E AND F.
B) DIRECT THE RESPONDENT NO.1 TO COMPLY THE JUDGMENT
AND DECREE PASSED IN CIVIL SUIT NO.692/1950
DATED:30.09.1954 AND THE ORDER PASSED BY THE HON'BLE
SUPREME COURT OF INDIA, IN SLP.NO.23879/2002
DATED:25.11.2004 AS PAR ANNEXURE-A AND B.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 07.02.2023, COMING ON FOR 'PRONOUCEMENT
OF ORDERS' THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
In this writ petition, the petitioners are assailing the
orders dated 26.09.2013 and 16.04.2015 passed by
respondent No.1 (Annexure E & F) inter alia seeking for
WP No. 110254 OF 2016
issuance of writ of mandamus to respondent No.1 to
comply with the order passed by the Hon'ble Supreme
Court, in SLP No.23878/2002 dated 25.11.2004.
2. The relevant facts for adjudication of this writ
petition are that, respondent Nos.2 and 3 have filed O.S.
No.698/1950, seeking the relief of partition and separate
possession in respect of various lands including subject
matter of the land in the present writ petition i.e., survey
No.311/2B of Nej village, Chikkodi Taluk, Belagavi District.
The suit came to be decreed in terms of the judgment and
decree produced at Annexure-A. It is the case of the
petitioners that, the Civil Court has passed the equitable
relief in favour of the petitioners herein in view of the
earlier decree passed in favour of the father of the
petitioners in Special Civil Suit No.540/1947.
3. It is the grievance of the petitioners that, the
Revenue Authorities have not complied with the
preliminary decree and handed over the property in survey
No.311/2B to the petitioners. It is stated in the writ
WP No. 110254 OF 2016
petition that, the said land has been mortgaged in favour
of respondents No.13 to 15 and petitioners are entitled for
3/10th and 2/5th share in survey No.311/2B. It is further
contended that, the preliminary decree was challenged up
to the stage of Hon'ble Supreme Court and the Hon'ble
Supreme Court by its order dated 25.11.2004, disposed of
the petition with a direction to the Revenue Authorities to
consider the preliminary decree for consideration
(Annexure-B). It is the grievance of the petitioners that,
respondent No.1 without considering the judgment and
decree passed in O.S.No.692/1950 and the Hon'ble
Supreme Court in SLP (Civil) No.23878/2008, has passed
the impugned order dated 26.09.2013 remanding the
matter to respondent No.12 for fresh consideration.
Thereafter the petitioners have filed Review Petition as per
Annexure-E, which came to be dismissed on 16.04.2015.
Feeling aggrieved by the same, the petitioners are before
this Court.
4. I have heard Sri.Ashok I. Badiger, learned
counsel appearing for the petitioners, Sri. Vinayak S.
WP No. 110254 OF 2016
Kulkarni, learned Additional Government Advocate for
respondents - State, Sri. Dinesh M. Kulkarni and Sri. S. V.
Deshpande, learned counsel appearing for the contesting
respondents.
5. Learned counsel appearing for the petitioners
contended that, the impugned order passed by respondent
No.1 remanding the matter to respondent No.12 is
contrary to law. He submitted that, petitioners' right has
been determined and crystallized in O.S. No.692/1950 and
therefore, respondent No.1 herein, without application of
mind, interfered with the order made by respondent No.2,
which requires to be set right in this writ petition. He
further contended that, though the petitioners herein have
sold a portion of the land in survey No.311/A and 346,
however, no share has been assigned to the petitioners in
Survey No.311/2B and therefore, sought for interference
of this Court.
6. Per contra, Sri. Dinesh Kulkarni, learned
counsel appearing for the contesting respondents, argued
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WP No. 110254 OF 2016
in support of the impugned order and submitted that,
respondent No.1 herein, after considering the material on
record that the petitioners herein have parted with the
portion of the land in survey No.311/2B and sold as per
the registered sale deed and further, 3rd party rights have
been created in respect of the subject land, and in view of
the fact that the suit is filed for partition and separate
possession in respect of the subject land in the suit, which
came to be disposed of by making preliminary decree and
therefore, he contended that, respondent No.1 was
justified in passing the impugned order. Accordingly, he
sought for dismissal of the petition.
7. Learned Additional Government Advocate
sought to justify the impugned order.
8. In the light of the submission made by the
learned counsel appearing for the parties, on careful
examination of the writ papers would indicate that, in
survey No.311/2B, which is the subject matter in the
present writ petition. The core question to be answered in
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WP No. 110254 OF 2016
this writ petitioner is, whether the petitioners are having
any right over the said land.
9. On careful examination of the impugned order
passed by respondent No.1 would indicate that, petitioners
herein have sold the remaining two out of three items of
the property, namely survey No.311/A and 346 and
therefore, respondent No.1 herein has arrived at a
conclusion that an equitable partition has to be effected
between the parties taking into consideration the lands
which had been sold by the petitioners herein, out of the
total items of the properties mentioned in the suit. I have
also noticed that respondent No.1 herein, while passing
the impugned order, made an observation that, there is no
order passed by the competent Court, including the
Hon'ble Supreme Court, to sell the land bearing survey
No.311/2B and in that view of the matter, taking into
consideration the reasons assigned by the Deputy
Commissioner, Belagavi, I am of the view that no
interference is called for in this writ petition.
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WP No. 110254 OF 2016
In the result, writ petition is dismissed.
Sd/-
JUDGE
gab
