Karnataka High Court
Smt Reshma W/O Basheer Jahagirdar vs Smt Ashabi Alias Hasmbi W/O. Lalsab ... on 5 June, 2024
-1-
NC: 2024:KHC-D:7459
MFA No. 104532 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.104532/2023 (CPC)
BETWEEN:
SMT. RESHMA
W/O. BASHEER JAHAGIRDAR,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. NEAR ONGC BHINGARI ZOPADAPATTI,
BHINGARI, TQ. RAIGARH,
MAHARASHTRA-410206.
...APPELLANT
(BY SRI SHADAB HASANSAB YADAWAD, ADVOCATE)
AND:
1. SMT. ASHABI @ HASMBI
W/O. LALSAB WALIKAR,
Digitally AGE: 76 YEARS,
signed by
MANJANNA E OCC: HOUSEHOLD WORK
Location: AND AGRICULTURE,
HIGH COURT
OF R/O. KOLUR, TQ. BILAGI AND
KARNATAKA DIST. BAGALKOTE-587301.
2. SMT. GULSHANBI
W/O. SAYEDSAB FIROZI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK
AND AGRICULTURE, R/O. YADAHALLI,
TQ. BILAGI AND DIST. BAGALKOT-587102.
3. SMT. KHAJABI
W/O. MIRASAB SANADI,
AGE: 79 YEARS, OCC: HOUSEHOLD WORK,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOTE-587301.
-2-
NC: 2024:KHC-D:7459
MFA No. 104532 of 2023
4. SMT. SULTANBI @ SULTAHMA
W/O. SIKANDARSAB MULLA,
AGE: 67 YEARS, OCC: HOUSEHOLD,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOT,
NEAR AMBEDKAR CIRCLE,
BHARPETH GALLI, JAMAKHANDI,
DIST. BAGALKOT-587301.
5. SRI. KASIMSAB
S/O. ABDULSAB MULLA,
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOT-587301.
6. SRI. REHAMANSAB
S/O. ABDULSAB MULLA,
AGE: 46 YEARS,
OCC: RTD KSRTC EMPLOYEE,
R/O. NEAR RAILWAY STATION,
TRIMURTHI NAGAR,
TQ. DIST. VIJAYAPUR-586109.
7. SMT. NAZUKBI @ NAJUKMA
W/O. MOHAMMADSAB MULLA,
AGE: 69 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOTE-587301.
8. SMT. ZANNATBI
W/O. DAWALSAB SANADI,
AGE: 39 YEARS, OCC: COOLIE,
R/O. NANDYAL, TQ.BABALESHWAR,
DIST. VIJAYAPUR-586112.
9. SMT. BISMILLAH
W/O. NABISAB MULLA,
AGE: 36 YEARS, OCC: COOLIE,
R/O. HIREPADASALAGI,
TQ. JAMAKHANDI,
DIST. BAGALKOTE-587301.
10. SMT. SAINAJBI
W/O. INNUS TAMBOLI,
AGE: 35 YEARS, OCC: COOLIE,
-3-
NC: 2024:KHC-D:7459
MFA No. 104532 of 2023
R/O. BUDHAGAON,
TQ. MIRAJ, TQ. SANGALLI,
MAHARASHTRA-416304.
11. SRI. ABUBAKAR
S/O. MOHAMADSAB MULLA,
AGE: 33 YEARS, OCC: COOLIE,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOTE-587301.
12. SMT. SHAMSHADBI W/O. ALLAUDDIN LANGR,
AGE: 29 YEARS,
OCC: HOUSEHOLD WORK,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOTE-587301.
13. SRI. SIDDAMHUSSAIN
S/O. MOHAMADSAB MULLA,
AGE: 29 YEARS, OCC: COOLIE,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOTE-587301.
14. SRI. MUBARAK
S/O. MOHAMADSAB MULLA,
AGE: 32 YEARS, OCC: COOLIE,
R/O. BIDARI, TQ. JAMAKHANDI,
DIST. BAGALKOTE-587301.
15. SMT. FATIMA W/O. BAPUSAB
GALAGALI @ SHAIKH,
AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O. HOKKUNDI, TQ. BABBALESHWAR,
DIST. VIJAYPUR-586113.
...RESPONDENTS
(BY SRI GIRISH A. YADAWAD, ADV. FOR R1 & R2;
NOTICE TO R3 TO R15 DISPENSED WITH)
THIS MFA IS FILED U/O.43 RULE 1(r) R/W. SEC.104 OF
CPC, AGAINST THE ORDER DATED 12.07.2023 PASSED IN
O.S.NO.92/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, JAMKHANDI, PARTLY ALLOWING THE IA NO.1 FILED U/O. 39
RULE 1 AND 2 R/W SEC.151 OF CPC.
-4-
NC: 2024:KHC-D:7459
MFA No. 104532 of 2023
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-purchaser of land bearing Sy.No.54/3
has filed this appeal under Order XLIII Rule 1(r) read with
Section 104 of CPC to set aside the order dated
12.07.2023 passed by the learned Additional Senior Civil
Judge, Jamkhandi, on I.A.No.I filed under Order XXXIX
Rules 1 and 2 of CPC.
2. For the sake of convenience the parties are
referred to as per their ranking referred to before the Trial
Court.
3. Brief facts of the case of the plaintiffs are as
under:
Respondent Nos.1 & 2/plaintiff Nos.1 & 2 have filed a
suit in O.S.No.92/2022 for the relief of partition and
separate possession claiming 2/12th share each and for
declaration of sale deed dated 05.10.2021 executed by
defendant No.2 in favour of defendant No.14 is not binding
NC: 2024:KHC-D:7459
on the share of plaintiffs in 'B' schedule property land
bearing R.S.No.54/3 measuring 5 acres and 30 guntas. All
the suit schedule properties were self acquired properties
of one Abdulsab Mulla, who was none other than father of
plaintiffs, defendant Nos.1, 3, 4, 13, father-in-law of
defendant Nos.2 & 5 and grandfather of defendant Nos.6
to 12. Sri Abdulsab Mulla died in the year 1983 and his
wife died in the year 2015 leaving behind plaintiffs and
defendant Nos.1 to 12 as her legal heirs. After demise of
Abdulsab and his wife, their legal heirs have succeeded
their properties. As such, they are entitled for definite
share in all the suit schedule properties as per
Mohammedan Law. It is the case of the plaintiffs that
defendant No.2 had illegally and without consent and
knowledge of plaintiffs sold the suit schedule property
bearing Sy.No.54/3 measuring 5 acres 30 guntas in favour
of defendant No.14 under a registered sale deed dated
05.10.2021. The sale deed executed by defendant No.2 in
favour of defendant No.14 is not binding upon the share of
the plaintiffs. In this regard, the plaintiffs approached the
NC: 2024:KHC-D:7459
defendants they denied the share. Hence, the plaintiffs
filed the suit for partition and separate possession claiming
2/12th share each in the suit schedule property and for
declaration of sale deed dated 05.10.2021 executed by
defendant No.2 in favour of defendant No.14 is not binding
upon the share of plaintiffs.
4. Appellant-defendant No.14 appeared through
his counsel and denied the contention taken by the
plaintiffs. The points that would arise in this appeal for
consideration of this Court are as under:
a. Whether plaintiffs have prima facie case in
their favour?
b. Whether balance of convenience tilts in favour
of plaintiffs?
c. Who will suffer irreparable injuries, if
temporary injunction is granted or otherwise?
5. Perused the appeal and impugned order of the
Trial Court, it appears that the plaintiffs and defendant
Nos.1 to 13 are Mohammedans and governed by
Mohammedan Law. As per Mohammedan Law, the
succession opens only after death of Mohammedan.
NC: 2024:KHC-D:7459
Therefore, the concept of birth right and joint family are
unknown to Mohammedan Law.
6. In the instant case, the plaintiffs have taken
contention that, defendant No.2 alienated the suit
schedule property bearing Sy.No.54/3 in favour of
defendant No.14 without having any rights. On the other
hand, defendant No.14 has taken contention that, suit
schedule 'B' property was granted land. As per Section
2A(12) of Karnataka Land Reforms Act, married daughters
will not come within the meaning of definition of 'family'.
Thus, married daughters have no right in granted land.
Whether the suit schedule 'B' property was granted or not
and whether plaintiffs have share in the suit schedule 'B'
property is a triable issue and it requires full-fledged trial.
Further the plaintiffs were married or unmarried as on the
date of grant also requires full-fledged trial.
7. At this juncture, the Court need not conduct
mini trial and to ascertain the rights of the plaintiffs over
the suit schedule property. At this juncture, prima facie
NC: 2024:KHC-D:7459
case and balance of convenience has to be seen. Thus, the
plaintiffs have made out prima facie case and balance of
convenience in their favour. If temporary injunction is not
granted in favour of plaintiffs, defendant No.14 may
alienate the suit schedule property. If defendant No.14 is
allowed to alienate the suit schedule 'B' property, it would
lead to multiplicity of proceedings and ultimately the
plaintiffs would suffer, if they succeed in the case.
Therefore, the Trial Court has rightly granted temporary
injunction in favour of the plaintiffs restraining defendant
No.14 from alienating suit schedule property.
8. Hence, there is no merits in the appeal filed by
appellant-defendant No.14, accordingly, the appeal is
dismissed.
Sd/-
JUDGE
EM/ct-an
