Karnataka High Court
Shaik Javeed And Ors vs Taleem Begum on 30 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 202299 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 202299 OF 2023 (GM-CPC)
BETWEEN:
1. SHAIK JAVEED
S/O KHAJA MAINODDIN,
AGED ABOUT 46 YEARS,
OCC: REAL ESTATE BUSINESS,
R/O. H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585 327,
DIST: BIDAR.
2. SHAIK TAHER
S/O KHAJA MAINODDIN,
AGED ABOUT 43 YEARS,
OCC: AGRI., AND WIDING WORK,
Digitally signed
R/O H.NO.42/96, GULMIRZA GALLI,
by
BASALINGAPPA BASAVAKALYAN-585327,
SHIVARAJ
DHUTTARGAON
Location: HIGH
DIST: BIDAR.
COURT OF
KARNATAKA
3. SHAIK HAJI
S/O KHAJA MAINODDIN,
AGED ABOUT 36 YEARS,
OCC: AGRI., AND WIDING WORK,
R/O H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585327,
DIST: BIDAR.
4. SHAIK SADAK
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WP No. 202299 of 2023
S/O KHAJA MAINODDIN,
AGED ABOUT 31 YEARS,
OCC: AGRICULTURE AND WIDING WORK,
R/O H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585327,
DIST: BIDAR.
5. SHAIK SAJEED
S/O KHAJA MAINODDIN,
AGED ABOUT 31 YEARS,
OCC: AGRI., AND WIDING WORK,
R/O H.NO.42/96, GULMIRZA GALLI,
BASAVAKALYAN-585327,
DIST: BIDAR.
...PETITIONERS
(BY SRI. GANESH S. KALBURGI, ADVOCATE)
AND:
TALEEM BEGUM
W/O LATE JALIL MIYAN,
AGED ABOUT 47 YEARS,
OCC: HOUSEHOLD AND AGRI.,
R/O H.NO.42/96, GULMIRZA GALLI,
TQ: BASAVAKALYAN-585 327.
DIST: BIDAR
...RESPONDENT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A) A
WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
OR DIRECTION TO QUASH THE IMPUGNED ORDER DATED
18.07.2023 PASSED IN M.A NO. 7/2022 BY THE COURT OF
SENIOR CIVIL JUDGE AND JMFC AT BASAVAKALYAN THE COPY
OF WHICH IS AT ANNEXURE-M AND CONSEQUENTLY SET
ASIDE THE ORDER DATED 02.07.2022 IN O.S NO. 54/2022
PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE AT
BASAVAKALYAN, THE COPY OF WHICH IS AT ANNEXURE-E, IN
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WP No. 202299 of 2023
THE INTEREST OF JUSTICE AND EQUITY. B) PASS SUCH OTHER
ORDER/S AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN
THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. Petitioners are before this Court seeking for the
following reliefs:
"a) A writ in the nature of certiorari or any other
writ or direction to quash the impugned order
dated 18.07.2023 passed in M.A No. 7/2022 by
the Court of Senior Civil Judge and JMFC at
Basavakalyan the copy of which is at Annexure-M
and consequently set aside the order dated
02.07.2022 in O.S No. 54/2022 passed by the
Court of Additional Civil Judge at Basavakalyan,
the copy of which is at Annexure-E, in the interest
of justice and equity.
b) Pass such other order/s as this Hon'ble court
deems fit to grant in the circumstances of the
case, in the interest of justice and equity."
2. Petitioners were defendants in the suit filed by
respondent in OS No. 54/2022 seeking for injunction
restraining the defendants therein from interfering
with the possession of the plaintiff. The contention of
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the plaintiff is that the property was purchased by
her husband, Jalil Miyan, who is the brother of
defendant Nos.1 to 5. Subsequent to his death, she
has succeeded to the property and as such she being
the absolute owner thereof, succeeded to the
property, which is the subject matter of the suit and
the defendants were seeking to interfere with her
possession. The Trial Court granted an order of
injunction, which came to be confirmed by the First
Appellate Court in Misc.No.7/2022 (Court of the
Senior Civil Judge and JMFC at Basavakalyan).
3. Learned counsel for the petitioner submits that the
property is not the individual property of Jalil Miyan,
but is a family property purchased from the family
funds and as such, neither Jalil Miyan nor the plaintiff
have absolute right, title and interest in the property
and in respect of the very same property, there is a
partition suit in OS No. 193/2022 which is pending
before the very same court, that is the Senior Civil
Judge and JMFC at Basavakalyan. On that basis he
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submits that this property, being subject matter of
the said suit for partition and injunction, ought not to
have been granted by the Trial Court and confirmed
by the First Appellate Court.
4. Having heard the learned counsel for the petitioner,
it is not in dispute that Jalil Miyan is the brother of
the defendants and that the property was purchased,
if not by Jalil Miyan, at least in the name of Jalil
Miyan, who having expired, the plaintiff has
succeeded to his estate, being his sole legal
representative. Whether the property was indeed
purchased out of the family funds or was purchased
by Jalil Miyan by himself would have to be
determined after trial in the suit for partition in OS
No.193/2022.
5. Hence, I am the considered opinion that the issues
arising in OS No.54/2022 and that arising in OS
No.193/2022 would overlap. As such, both the suits
being pending before the same court, I deem it fit to
direct the clubbing of both the matters and recordal
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of common evidence in both the matters and
thereafter for passing of a common judgment.
Hence, I pass the following order:
ORDER
a. Writ petition is dismissed.
b. OS No.54/2022 pending on the file of the
Senior Civil Judge and JMFC at
Basavakalyan and OS No.193/2022 pending
before the very same court, are clubbed.
The Trial Court is directed to record
common evidence in both the matters and
dispose of both the suits by way of a
common judgment.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
NJ
