Karnataka High Court
Sri Anwar Pasha vs Sri Pyare Jaan on 5 October, 2023
Bench: S.G.Pandit
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WP No. 5711 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 5711 OF 2022 (GM-CPC)
BETWEEN:
SRI. ANWAR PASHA,
S/O LATE MOHAMMED AMEER SAB,
AGED ABOUT 78 YEARS,
R/AT KAGGERE VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TQ,
NOW R/AT ALL-HUDA EXTN.,
TANJAVOOR MOHALLA,
KUNIGAL TOWN - 572 130.
(SENIOR CITIZEN BENEFIT NOT CLAIMED)
...PETITIONER
(BY SRI. P.M. GOPI, ADVOCATE)
AND:
Digitally signed by
A K CHANDRIKA
Location: High 1. SRI. PYARE JAAN,
Court of W/O LATE MOHAMMED AMEER SAB,
Karnataka AGED ABOUT 81 YEARS,
R/AT KESTHUR VILLAGE,
ATHAGURU HOBLI,
MADDUR TQ,
MANDYA DSIT - 571 476.
2. SRI. ABDUL KHUDUS,
S/O LATE MOHAMMED AMEER SAB,
AGED ABOUT 81 YEARS,
R/AT KESTHUR VILLAGE,
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ATHAGURU HOBLI,
MADDUR TQ,
MANDYA DISTRICT - 571 476.
3. SRI. BASHA K.A.,
S/O WIFE OF LATE
MOHAMMED AMEER SAB,
AGED ABOUT 68 YEARS,
R/AT ALL-HUDA EXTN.,
TANJAVOOR MOHALLA,
KUNIGAL TOWN - 572 130.
4. SRI. VASANTHA KUMAR N.S.,
S/O SHIVAPPA,
AGED ABOUT 43 YEARS,
R/AT KAGGERE VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TALUK - 572 130.
5. SMT. MEHARUNNISSA,
W/O PYARE JAAN,
AGED ABOUT 68 YEARS,
R/AT KESHTUR VILLAGE,
ATHAGURU HOBLI,
MADDUR TQ,
MANDYA DIST - 571 476.
6. SMT. YAMEEN TAJ,
D/O PYARE JAN,
AGED ABOUT 43 YEARS,
R/AT KESHTUR VILLAGE,
ATHAUGURU HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 476.
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7. SMT. TASEEN TAJ,
D/O PYARE JAN,
AGED ABOUT 41 YEARS,
R/AT KESTHUR VILLAGE,
ATHAGURU HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 476.
8. SMT. SHABREEN TAJ,
D/O PYARE JAN
AGED ABOUT 33 YEARS,
R/AT KESTHUR VILLAGE,
ATHAGURU HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 476.
9. SRI. SHIVAPPA,
S/O LATE ANANDAYAPPA,
AGED ABOUT 81 YEARS,
RESIDING AT KAGGERE VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TALUK - 572 142.
10. SMT. QUSTTHER UNNISSA,
W/O ABDUL KHUDUS,
AGED ABOUT 65 YEARS,
R/AT KAGGERE VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TQ - 572 142.
11. SRI. GHOUSE PASHA,
S/O ZEHARUDDIAN,
AGED ABOUT 55 YEARS,
R/AT KAGGERE VILLAGE,
YEDIYUR HOBLI,
KUNIGAL TALUK - 572 142.
...RESPONDENTS
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WP No. 5711 of 2022
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET-ASIDE THE
IMPUGNED ORDER DATED:22.07.2021 PASSED IN
O.S.NO.166/2019 BY THE LEARNED ADDITIONAL CIVIL JUDGE
AND JMFC, KUNIGAL IN DISMISSING THE I.A.NO.I VIDE
ANNEXURE-E AND THE ORDER DATED:13.01.2022, PASSED IN
M.A.NO.12/2021, PASSED BY SENIOR CIVIL JUDGE AND JMFC,
KUNIGAL VIDE ANNEXURE-F AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/plaintiff in O.S.No.166/2019 on the file
of the Additional Civil Judge and JMFC, Kunigal, and
appellant in M.A.No.12/2021 on the file of Senior Civil
Judge and JMFC, Kunigal is before this Court aggrieved by
rejection of I.A.No.4 filed under Order XXXIX Rule 1 and 2
of CPC to restrain the defendant No.4 from interfering with
possession and enjoyment of Item No.1 of the suit
schedule property and also rejection of appeal filed against
the said order under judgment dated 13.01.2022 in
M.A.No.12/2021.
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2. Heard Sri P.M.Gopi, learned counsel appearing for
Sri P.M. Siddamallappa, learned counsel for the
petitioner/plaintiff and perused the writ petition papers.
3. The petitioner/plaintiff is before this Court against
the concurrent finding of fact by Trial Court as well as the
Appellate Court. The suit of petitioner/plaintiff is one for
partition and separate possession along with declaration
that the registered sale deed dated 18.03.2019 executed
by defendant No.1 in favour of defendant No.4 with
respect to suit schedule Item No.1 is not binding on the
plaintiff. It is an admitted fact that there is registered sale
deed dated 18.03.2019 in favour of defendant No.4
executed by defendants 1 and 5 to 8. Based on the
registered sale deed, the Trial Court has prima facie come
to the conclusion that defendant No.4 is in possession and
is cultivating the land. The Trial Court has also based its
finding on the certificate dated 09.07.2021 issued by the
Village Accountant, which is placed on record by defendant
No.4 to say that defendant No.4 is in possession
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cultivating the land. The Appellate Court based on the
material on record has come to the conclusion that the
Trial Court has not committed any error in dismissing
I.A.No.4.
4. Grant of injunction under Order XXXIX Rule 1 and 2
of CPC is a discretionary relief. Unless a person, who
seeks an order of injunction under Order XXXIX Rule 1 and
2 of CPC makes out a prima facie case and would show
that non grant of injunction would result in irreparable
loss, the person who seeks injunction would not be
entitled for the said relief. In the instant case, the
petitioner/plaintiff has not made out prima facie case and
on going through the material on record, I am of the
view, that balance of convenience is in favour of defendant
No.4. There is no merit in the writ petition. Accordingly
the writ petition is dismissed.
Sd/-
JUDGE
