Karnataka High Court
Smt. Yashumin Hasan Mulla vs Krishnaram S/O Dharmaraj Boranna on 27 July, 2023
Bench: Anil B Katti
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CRL.RP No. 2320 of 2012
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 2320 OF 2012
BETWEEN:
SMT. YASHUMIN HASAN MULLA,
AGED ABOUT: 43 YEARS, OCC: BUSINESS,
R/O. H.NO.4173, CHANDRU GALLI, BELAGAVI.
...PETITIONER
(BY SRI. NITIN BOLABANDI, ADV.)
AND:
Digitally
signed by
ANNAPURNA
ANNAPURNA CHINNAPPA 1 . SHRI KRISHNARAM S/O DHARMARAJ BORANNA
CHINNAPPA DANDAGAL
DANDAGAL Date: AGE: BUSINESS,
2023.07.28
11:24:35 - REPRESENTED BY HIS GPA HOLDER
0700
SINCE DECEASED THROUG HIS LRS
R1(a) PRAKASH S/O MANSAJI BORANNA
AGE. 53 YEARS, OCC.BUSINESS,
R/O.PLOT NO. 16, CTS NO. 425/A1 AND A2
M.G.COLONY, TILAKWADI, BELAGAVI-590006.
2 . MR. HASAN S/O RUSTUM MULLA,
AGE: 46 YEARS, OCC: SERVICE,
R/O: INDRA PRASTA NAGAR,
ANAND NAGAR ROAD,
HUBLI.
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CRL.RP No. 2320 of 2012
...RESPONDENTS
(BY SRI. CHETAN MUNNOLI, ADV. FOR R1
SRI. SADIQ N. GOODWALA, ADV. FOR R2)
***
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER PASSED BY III ADDITIONAL
SESSIONS JUDGE, BELAGAVI IN CRIMINAL APPEAL
NO.149/2012 DATED 12.12.2012 AND THEREBY REVERSING
THE ORDER PASSED IN CRL.MISC.NO.217 2011 PASSED BY III
JUDICIAL MAGISTRATE I CLASS, BELAGAVI DATED
02.06.2012.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FURTHER HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 12.06.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:
ORDER
Revision petitioner feeling aggrieved by order passed by
First Appellate Court on the file of III Addl. Sessions Judge,
Belgavi in Crl.A.No.149/2012, dated 12.12.2012 preferred this
revision petition.
2. Parties to the petition are referred with their ranks
as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of petitioner
can be stated in nutshell to the effect that petitioner had filed
Crl.Misc.No.217/2011 on the file of III JMFC, Belagavi under
CRL.RP No. 2320 of 2012
the provisions of Protection of Women from Domestic Violence
Act, 2005 (For short the Act) for seeking relief in terms of
Section 18 and 20 of the Act. The trial Court by order dated
2.6.2012 allowed application filed under the Act, rejecting claim
under Section 20 of the Act. The petitioner was provided with
right to reside in house property belongs to her husband/
respondent. The third party, who is arraigned as respondent
No.1 in this revision petition on coming to know of the order
passed by trial Court dated 2.6.2012, questioned the same by
filing appeal before first appellate Court on the file of III Addl.
Sessions Judge, Belagavi in Crl.A.No.149/2012. The first
appellate Court after hearing both sides allowed the appeal and
directed respondent/revision petitioner to deliver possession of
the property forthwith.
4. The petitioner challenged the said order of first
appellate Court ordering for re-delivery of the possession of suit
property, filed present revision petition contending that first
appellate Court without properly appreciating evidence on
record has erroneously ordered to re-deliver possession of suit
property to the third party, who is said to be purchaser. The
first appellate Court did not consider the fact that petitioner
was to be in possession of the suit property in terms of order
CRL.RP No. 2320 of 2012
passed by the trial Court, dated 2.6.2012. The third party
purchaser has no locus standi to question right of residence of
petitioner in the suit property in terms of order passed by trial
Court. The first appellate Court has overlooked the entries
recorded in Exs.P.2 and 3, wherein name of respondent is
recorded in the document of property. The approach and
appreciation of evidence on record by first appellate Court is
contrary to law and evidence on record. Therefore, prayed for
allowing revision petition and to set aside order of the first
appellate Court. Consequently, to restore order of the trial
Court, dated 2.6.2012.
5. In response to notice, respondent No.1 being the
third party purchaser and respondent No.2 husband of revision
petitioner appeared through their counsel. During the pendency
of revision petition, respondent No.1 is reported to be dead and
his legal heir is brought on record as respondent No.1(A) and
he is duly represented through counsel.
6. Heard the arguments of both sides.
7. On careful perusal of material evidence on record, it
would go to show that petitioner has initiated proceedings in
terms of Section 125 of Cr.P.C seeking maintenance from her
CRL.RP No. 2320 of 2012
husband on the file of Family Court, Belagavi in
Crl.Misc.No.27/2003. The said petition came to be allowed and
maintenance of Rs.500/- to petitioner No.1 and Rs.300/- to
petitioner No.2 of the said case came to be awarded. The said
maintenance amount was enhanced in view of order in
Crl.Misc.No.254/2005 by order dated 19.4.2008 and
maintenance amount was enhanced to Rs.1500/- and Rs.750
respectively to petitioner Nos. 1 and 2 of the said case. In order
to recover maintenance amount, petitioners have initiated
proceeding in Crl.Misc.No.142/2008 and all these proceedings
were on the file of Family Court, Belagavi. The petitioner has
initiated separate proceedings under the provisions of the Act
seeking relief in terms of Sections 18 to 20 of the Act in
Crl.Misc.No.217/2011. The trial Court by order dated 2.6.2012
allowed the application in part by granting relief of right of
residence in terms of Sections 18 and 19 of the Act and
rejected claim of petitioner for monetary benefit in terms of
Section 20 of the Act. The proceedings before the Family Court
and III JMFC, Belagavi is not in dispute by the parties.
8. The records would reveal that property bearing CTS
Nos. 2343, 2344/B came to be attached by order dated
17.9.2009 in Crl.Misc.No.142/2008 on the file of the Family
CRL.RP No. 2320 of 2012
Court, Belagavi for recovery of arrears of maintenance amount.
In the said case, deceased respondent No.1 filed third party
application, who is purchaser of property from respondent. On
7.2.2010 objections came to be filed and the matter was
adjourned for hearing on the said application on few occasions.
On 24.8.2012, case was advanced by deceased respondent
No.1 in this revision petition and reported taking of possession
in the proceedings before III JMFC, Belagavi in
Crl.Misc.No.217/2011 filed under the provisions of the Act. On
the basis of such report, the Family Court has withdrawn
attachment warrant. On 30.10.2012, counsel for petitioner filed
memo to close petition as fully satisfied. Accordingly, petition in
Crl.Misc.No.142/2008 filed for recovery of maintenance amount
came to be closed by accepting memo filed by petitioner.
9. The deceased respondent No.1 in the present
revision petition, who is purchaser of property under registered
sale deed dated 6.9.2010 from its owner Mohammed Jaffar S/o
Mohammed Gouse Kudachi filed appeal on the file of III Addl.
Sessions Judge, Belagavi in Crl.A.No.149/2012. The first
appellate Court by order dated 12.12.2012 allowed the appeal
and directed petitioner to deliver possession of property in
favour of deceased respondent No.1. The records would go to
CRL.RP No. 2320 of 2012
show that order of the trial Court dated 2.6.2012 was enforced
with the assistance of police, she was put in possession and
allowed to reside in the house by virtue of order of the first
appellate Court dated 12.12.2012. The order sheet of the trial
Court would go to show that direction of the first appellate
Court as referred above has been executed and objection of
petitioner wife came to be rejected. Indisputably, this Court has
not granted any stay against order of the first appellate Court.
This Court, by order dated 20.2.2013 has only observed that
respondent counsel submitted that he will advise his client not
to sell the property till disposal of this petition.
10. Learned counsel for respondent No.1(A) has argued
that petitioner by suppressing material facts in collusion with
her husband obtained order dated 2.6.2012 in
Crl.Misc.No.217/2011 based on entries in Exs.P.2 and 3. The
entries are related as on 5.6.1998, wherein name of
respondent Hasan S/o Rustum Mulla is appearing. The CTS
extract for the year 2011-2012 was not produced by petitioner
while obtaining order seeking right of residence in
Crl.Misc.No.217/2011. The records would go to show that
deceased respondent No.1 Krishnaram S/o Dharmaraj Boranna
purchased property from Mohammed Jaffar S/o Mohammed
CRL.RP No. 2320 of 2012
Gouse Kudachi under registered sale deed dated 6.9.2010. The
vendor of deceased respondent No.1 Mohammed Jaffar S/o
Mohammed Gouse Kudachi purchased the said property from
Karimsab S/o. Honnusab Soudagar under registered sale deed
dated 26.4.2007. It means that even prior to the said sale
deed, respondent Hasan S/o Rustum Mulla was not owner of
suit property and house did not belong to him. It is also
pertinent to note that as on the date of attachment, order on
17.9.2009 in Crl.Misc.No.142/2008 on the file of Family Court,
Belagavi, respondent Hasan S/o Rustum Mulla was not owner
of property. When husband of petitioner has executed sale
deed in favour of vendor of deceased respondent No.1 under
registered sale deed dated 26.4.2007 and as on today, the
same remained unchallenged. Therefore, it cannot be accepted
that respondent Hasan S/o Rustum Mulla was unaware that he
is not the owner of suit property. The respondent Hasan S/o
Rustum Mulla appears to have allowed the property to be
attached only in order to defeat the sale deed executed by him
and there is every reason to believe that he is hand in glows
with his wife petitioner in seeking the order of attachment
dated 17.9.2007 in Crl.Misc.No.142/2008.
CRL.RP No. 2320 of 2012
11. The order of the trial Court on the file of III JMFC,
Belagavi only confers the right of petitioner to reside in the
property and cannot claim any title over the property. There is
sufficient prima facie evidence to show that respondent
purchaser was in possession of suit property by executing order
of the first appellate Court dated 12.12.2012. The contention of
learned counsel for revision petitioner that third party has no
locus standi to challenge order of the trial Court has been
negated by the first appellate Court. On the other hand,
material evidence would go to show that vendor of deceased
respondent No.1 purchased suit property from Karimsab S/o
Honnusab Soudagar under registered sale deed dated
26.4.2007. It means that husband of petitioner has sold suit
property to Karimsab S/o Honnusab Soudagar and from him,
vendor of deceased respondent No.1 purchased the property.
The said two sale deeds appear to have been not challenged by
husband of petitioner Hasan S/o Rustum Mulla. If at all
petitioner or her husband claims to have any right over the
property, it is open for them to agitate the same before the
competent forum. With these observations, I do not find any
valid reason to interfere with the order passed by first appellate
Court. Consequently, proceed to pass the following:
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CRL.RP No. 2320 of 2012
ORDER
Revision petition filed by revision petitioner is hereby
dismissed.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
vb/-
