Karnataka High Court
Khajabi And Ors vs Hussainbee And Ors on 23 November, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2023:KHC-K:8783
MFA No. 202519 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL. FIRST APPEAL NO. 202519 OF 2023 (CPC)
BETWEEN:
1. SMT. KHAJABI
W/O SHAMEEDSAB,
AGED ABOUT 52 YEARS, OCC: AGRICULTURE
2. SRI. JEELANI SAB @ JEELANI PASHA
S/O SHAMEEDSAB,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
3. MAHIBOOB SAB
S/O SHAMEEDSAB,
Digitally signed AGED ABOUT 36 YEARS, OCC: AGRICULTURE,
by LUCYGRACE
Location: HIGH 4. HUSSAIN PEER
COURT OF
KARNATAKA S/O SHAMEEDSAB,
AGED ABOUT 32 YEARS, OCC: AGRICULTURE,
ALL ARE R/O ROUDAKUNDA VILLAGE,
SINDHANUR,
TQ. SINDHANUR,
DIST. RAICHUR-584128.
...APPELLANTS
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)
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NC: 2023:KHC-K:8783
MFA No. 202519 of 2023
AND:
1. SMT. HUSSAINBEE
D/O BASHUSAB MAKANDAR,
W/O MAGADU SAB,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O DINDUR,
NOW R/O ROUDAKUNDA VILLAGE, SINDHANUR,
TQ. SINDHANUR,
DIST. RAICHUR-584128.
2. SMT. SHAFIA BEGUM
W/O SATTAR PASHA,
AGED ABOUT 32 YEARS, OCC: AGRICULTURE,
R/O ROUDAKUNDA VILLAGE, SINDHANUR,
TQ. SINDHANUR,
DIST. RAICHUR-584128.
3. SMT. CHANDAMMA
W/O MAHAMMED SAB,
AGED ABOUT 70 YEARS, OCC: HOUSEHOLD AND
AGRICULTURE, R/O ROUDAKUNDA VILLAGE,
SINDHANUR,
TQ. SINDHANUR,
DIST. RAICHUR-584128.
4. SMT. NABEMMA
W/O MALAKASAB,
AGED ABOUT 41 YEARS, OCC: AGRICULTURE,
R/O ROUDAKUNDA VILLAGE,
TQ. SINDHANUR
5. SRI AMIN NAYAK
S/O MADARSAB,
AGED ABOUT 53 YEARS, OCC: AGRICULTURE
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NC: 2023:KHC-K:8783
MFA No. 202519 of 2023
R/O ROUDAKUNDA VILLAGE,
TQ. SINDHANUR.
...RESPONDENTS
THIS MFA IS FILED U/O.43 RULE 1 (r) OF CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
ORDER DATED 13.04.2023 PASSED ON I.A.NO.XIX IN O.S.
NO.230/2014, ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC AT SINDHANUR, CONSEQUENTLY ALLOW THE
APPLICATION I.E. IA NO.XIX OF THE APPELLANTS/
PLAINTIFFS FILED UNDER ORDER 39 RULE 1 AND 2 CPC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiffs are before this Court being aggrieved
by the order dated 13.04.2023 passed in O.S.
No.230/2014 on IA No.XIX filed under Order 39 Rules 1
and 2 read with Section 151 of CPC by the Senior Civil
Judge and JMFC Sindhanur.
2. The plaintiffs filed O.S. No.230/2014 seeking
relief of declaration to declare that the registered sale
deeds are null and void and the defendants are no way
concerned with item Nos.2 and 3 of the suit schedule
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properties and they are stranger to the family and the suit
schedule item Nos.2 and 3. Admittedly the defendants
claiming to be wife and daughter of one Sri Rasul Sab
have filed suit in O.S. No.388/2011 before the I Additional
Civil Judge at Sindhanur in respect of land in Sy.No.206/P-
2 measuring 5 acres 24 guntas and land in Sy.No.73/P-2
measuring 3 acres 17 guntas of Roudakunda Village. The
said lands are item Nos.2 and 3 of the present suit, in
respect of which, the present application is filed seeking
interim order of injunction restraining the defendants from
interfering with the possession of the suit properties.
3. The trial Court has taken note of the fact that
husband of plaintiff No.1 and husband of defendant No.1
are the brothers and the suit for partition filed by the
defendants in O.S. No.388/2011 is filed in time and the
present suit for declaration filed by the plaintiffs is
subsequent to filing of the said suit for partition. The trial
Court also has taken note of the fact that the present
application has been filed during pendency of the suit on
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18.10.2022 and since the plaintiffs have failed to establish
prima facie case with regard to their claim of being in
possession of the applicants' properties, the trial Court has
opined that the rights of the parties requires to be
determined after conducting the trial.
4. As evident from the records, the defendants
claiming to be wife and children of the brother of the
husband of plaintiff No.1 have filed suit for partition in
O.S. No.388/2011 in respect of the very same items of the
properties. About 3 years subsequent thereof the
plaintiffs herein have filed the present suit for declaration
as noted above and the present application has been filed
after almost 8 years of filing the said suit. No infirmity or
irregularity can be found in the order passed by the trial
Court, which after taking note of the facts as referred
herein above and has opined that the rights of the
plaintiffs would be considered only after trial. No grounds
are made out warranting interference.
5. Appeal lacks of merits, the same is dismissed.
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6. It is made clear that all the contentions that
have been urged and to be urged in the main suit are kept
open. No finding is given on merit of the case.
7. Registry to send a copy of this judgment to the
defendants.
Sd/-
JUDGE
SBS
