Ibrahim S/O Gajabarsab Mujawar And ... vs Abdulkhadar Gajabarsab Mujawar And ...
2024 Latest Caselaw 27006 Kant

Karnataka High Court

Ibrahim S/O Gajabarsab Mujawar And ... vs Abdulkhadar Gajabarsab Mujawar And ... on 12 November, 2024

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                                                           NC: 2024:KHC-D:16531
                                                        MFA No. 102625 of 2022




                                 IN THE HIGH COURT OF KARNATAKA,
                                         DHARWAD BENCH
                            DATED THIS THE 12TH DAY OF NOVEMBER, 2024
                                             BEFORE
                              THE HON'BLE MR. JUSTICE C.M. POONACHA
                        MISCELLANEOUS FIRST APPEAL NO.102625 OF 2022 (CPC)


                   BETWEEN:

                   IBRAHIM S/O. GAJABARSAB MUJAWAR,
                   AGE: 56 YEARS, OCCU: BUSINESS,
                   R/O: H.NO.3911, KAKATIVES ROAD,
                   KHADAK GALLI CORNER, BELAGAVI - 590 001,
                   TQ/DIST. BELAGAVI.
                                                                        ...APPELLANT
                   (BY SRI DEEPAK C. MAGANUR, ADVOCATE)

                   AND:

                   1.     ABDULKHADAR GAJABARSAB MUJAWAR, AND OTHERS
                          AGE: 78 YEARS, OCC: BUSINESS,
                          R/O: TA2 MUGHNA 13, CRESENT HOUSE,
                          GROUND FLOOR, BALAMIYA LINE,
                          OPPOSITE PATEL MENSION MOHIM (WEST)
                          MUMBAI - 400 016.

                   2.     JUNED S/O. MOHAMMADSAFI MUJAWAR,
Digitally signed          AGE: 30 YEARS, OCC: BUSINESS,
by SAROJA
HANGARAKI                 R/O: TA2 MUGHNA 13, CRESENT HOUSE,
Location: High
Court of
                          GROUND FLOOR, BALAMIYA LINE, OPPOSITE PATEL
Karnataka                 MENSION, MOHIM(WEST) MUMBAI-400016.

                   3.     SOHEB S/O. MOHAMMADSAFI MUJAWAR,
                          AGE: 25 YEARS, OCC: BUSINESS,
                          R/O: TA2 MUGHNA 13, CRESENT HOUSE,
                          GROUND FLOOR, BALAMIYA LINE, OPPOSITE PATEL
                          MENSION, MOHIM(WEST) MUMBAI-400016.

                   4.     RIAYZAHAMMAD MOHAMMADBAKSH MUJAWAR,
                          AGE: 53 YEARS, OCC: BUSINESS,
                          R/O: TA2 MUGHNA 13, CRESENT HOUSE,
                          GROUND FLOOR, BALAMIYA LINE, OPPOSITE PATEL
                          MENSION, MOHIM(WEST)
                          MUMBAI-400016. MAHARASHTRA STATE.
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                                          NC: 2024:KHC-D:16531
                                    MFA No. 102625 of 2022




5.   MURTUZA S/O. MOHAMMADBAKSH MUJAWAR,
     AGE: 48 YEARS, OCC: BUSINESS,
     R/O: TA2 MUGHNA 13, CRESENT HOUSE,
     GROUND FLOOR, BALAMIYA LINE, OPPOSITE PATEL
     MENSION, MOHIM(WEST),
     MUMBAI-400016. MAHARASHTRA STATE.

6.   SALMAN S/O. MOHAMMADBAKSH MUJAWAR,
     AGE: 42 YEARS, OCC: BUSINESS,
     R/O: TA2 MUGHNA 13, CRESENT HOUSE,
     GROUND FLOOR, BALAMIYA LINE, OPPOSITE PATEL
     MENSION, MOHIM (WEST)
     MUMBAI-400016. MAHARASHTRA STATE.

7.   JUBER S/O. NAZEERAHMAD MUJAWAR,
     AGE: 40 YEARS, OCC: BUSINESS,
     R/O: HO.NO.2121, PANGUL GALLI,
     BELAGAVI-590001,TQ/DIST: BELAGAVI.

8.   ZAMEER S/O. NAZEERAHMAD MUJAWAR,
     AGE: 36 YEARS, OCC: BUSINESS,
     R/O: HO.NO.2121/A, PANGUL GALLI,
     BELAGAVI-590001,TQ/DIST: BELAGAVI.

9.   SAMEER S/O. NAZEERAHMAD MUJAWAR,
     AGE: 34 YEARS, OCC: BUSINESS,
     R/O: HO.NO.2121/A, PANGUL GALLI,
     BELAGAVI-590001,TQ/DIST: BELAGAVI.

10. KHALID S/O. NAZEERAHMAD MUJAWAR,
    AGE: 30 YEARS, OCC: BUSINESS,
    R/O: HO.NO.2121/A, PANGUL GALLI,
    BELAGAVI-590001,TQ/DIST: BELAGAVI

11. MOHAMMADHANIF GAJABARSAB MUJAWAR,
    AGE: 68 YEARS, OCC: BUSINESS,
    R/O: HOSAPETH GALLI, GOKAK-591307,
    TQ: GOKAK, DIST: BELAGAVI.

12. ABIDALI S/O. MOHAMMADHANIF MUJAWAR,
    AGE: 36 YEARS, OCC: BUSINESS,
    R/O: HOSAPETH GALLI, GOKAK-591307,
    TQ: GOKAK, DIST: BELAGAVI.

13. MUSTAFA S/O. GAJABARSAB MUJAWAR,
    AGE: 61 YEARS, OCC: BUSINESS,
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                                       NC: 2024:KHC-D:16531
                                    MFA No. 102625 of 2022




    R/O: PLOT NO.155M SECTOR NO.2,
    SHIVABASU NAGAR, BELAGAVI-590010,
    TQ/DIST: BELAGAVI TALUK.

14. NURJAHAN W/O. AMANULLA MULLA,
    AGE: 60 YEARS, OCC: HOUSEHOLD,
    R/O: 16 PUJARI PLOT, AMAN MANZIL,
    OPPOSITE HOTEL CINAR VISHRAMBAG,
    SANGALI-416406,
    SANGALI DISTRICT, MAHARASHTRA STATE.

15. SHAMSHUNISHA W/O. SADRUDDINNA MUJAWAR,
    AGE: 58 YEARS, OCC: HOUSEHOLD,
    R/O: PLOT NO.266/D, SANA COLLAGE, PB ROAD,
    HUBBALLI-580025,
    TQ: HUBBALLI, DIST: DHARWAD.

16. YASIN S/O. MOHAMMADALI MUJAWAR,
    AGE: 52 YEARS, OCC: BUSINESS,
    R/O: H.NO.2121/A, PANGUL GALLI,
    BELAGAVI-590001, TQ/DIST: BELAGAVI.

17. ASHIYA W/O. MUJAFAR SAIYYAD,
    AGE: 47 YEARS, OCC: HOUSEHOLD,
    R/O: H.NO.36, VIMALESHWAR NAGAR,
    III CROSS, HUBBALLI-580024,
    TQ: HUBBALLI, DIST: DHARWAD.

18. THE MANAGER AND AUTHORIZED OFFICER,
    THE INDIAN BANK, BELAGAVI BRANCH,
    1ST FLOOR, NOORANI HOUSE,
    CTS.NO.1013/1A1-A2, FORT ROAD,
    BELAGAVI-590001, TQ/DIST: BELAGAVI.

                                            ...RESPONDENTS
(BY SRI SHRIDHAR HIREMATH, ADVOCATE FOR R1 TO R10,
R13 TO R17; SRI G.N.RAICHUR, ADVOCATE FOR
SMT. ANUSHA S. DESAI, ADVOCATE FOR R18(VC);
NOTICE ISSUED TO R11, R12 ARE SERVED BUT UNREPRESENTED)

     THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO, SET ASIDE ORDER DATED 29.08.2022 IN
OS NO. 548/2022 PASSED BY THE I ADDITIONAL SENIOR CIVIL
JUDGE, GOKAK AND DISMISSING THE I.A. NO.II FILED BY THE
PLAINTIFF/APPELLANT FILED UNDER ORDER XXXIX RULE 1 AND 2
R/W SECTION 151 OF CPC SEEKING TEMPORARY INJUNCTION AND
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                                                             NC: 2024:KHC-D:16531
                                                           MFA No. 102625 of 2022




ALLOW I.A. NO. II FILED UNDER ORDER XXXIX RULE 1 AND 2 R/W
SECTION 151 OF CPC, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:

CORAM:           THE HON'BLE MR. JUSTICE C.M. POONACHA

                                      ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

The above appeal has been filed by the plaintiff

challenging the order dated 29.08.2022 passed on

I.A.Nos.1 and 2 in O.S.No.548 by the I Additional Senior

Civil Judge, Gokak1.

2. The relevant facts leading to the present appeal

are that the appellant instituted a suit in O.S.No.548/2022

seeking for the following reliefs:

"A) The plaintiff may kindly be awarded his legitimate 1/9th share in the suit properties by effecting partition by metes and bounds and separate possession of legitimate share be given thereof.

B) It be declared that the alleged will dated 28.04.1998 in respect of suit property Sl.No.4 and alleged Thondi Bakshish Patra dated 29.09.1997 in respect of suit property Sl.No.1 to 3 illegal non-est null and void, sham and same are not binding upon

Hereinafter referred to as 'the Trial Court'

NC: 2024:KHC-D:16531

the share of plaintiff and consequential relief of injunction restraining the defendant no.11 from not alienating the suit property in any manner.

C) Any other relief/s the court deems fit may kindly be granted.

     D)    Cost of the suit be awarded.

     E)    Permissions to amend the plaint be granted if any
           when necessary."

3. In the said suit, the plaintiff filed I.A.No.1 for

temporary injunction to restrain the 11th defendant from

alienating the suit property and I.A.No.2 for temporary

injunction to restrain 8th defendant/Bank from auctioning

the suit properties. The said applications were opposed by

the defendants. The Trial Court by order dated 29.08.2022

dismissed I.A.Nos.1 and 2. Being aggrieved, the present

appeal is filed by the plaintiff.

4. It is forthcoming that the Trial Court while

considering the I.A.Nos.1 and 2 along with I.A.No.4 filed

by the 18th defendant/Bank has held as follows:

"28. The documents produced by the plaintiff namely, ruled cards, plane cards, sale deeds, certificate of

NC: 2024:KHC-D:16531

registration of firm and partnership deed primafacie go to show that originally, all the suit properties belonged to the family of the plaintiff and the defendants 1 to 17 and this fact is not in dispute. The documents produced by the 18th defendant namely, mortgage deed, demand notice, copy of possession notice, paper publication, order of Crl. Misc. No. 14/2022, sale notice and copies of gift deed and will produced by the plaintiff primafacie go to show that the defendants 11 and 12 along with other partners of the said firm have borrowed the alleged loans from the 18th defendant by mortgaging some of the suit properties and have become default in repayment of the alleged loans. The 18th defendant has proceeded against them by initiating proceedings under the provisions of the SARFAESI Act, which is also not in dispute. In view of the said circumstances, now, the court has to find out as to whether or not it has jurisdiction to try the suit and grant temporary injunctions as sought by the plaintiff.

31. In the case at hand, the suit is filed for the reliefs of partition, declaration that the alleged will and gift deed are void and not binding on the plaintiff and permanent injunction. Therefore, as held in the said decisions relied by the plaintiff, the suit is maintainable before this court in respect of the prayers of partition and declaration. Reliance cannot be made on the decisions relied by the 18th defendant as they were passed prior to passing of the decisions relied by the plaintiff."

(emphasis supplied)

NC: 2024:KHC-D:16531

5. Further it is relevant to note that this Court vide

order dated 22.07.2024 has considered the application

filed by the appellant under Section 151 of the Code of

Civil Procedure2 and has vide a detailed order, dismissed

the same on cost of Rs.25,00,000/-. There is no material

placed on record by the learned counsel for the appellant

that the said order dated 22.07.2024 has in any manner

be set aside or recalled. The observations made by this

Court in the order dated 22.07.2024 are detrimental to the

case of the appellant.

6. The Trial Court, having exercised its discretion

in refusing the injunction as sought for in I.A.Nos.1 and 2,

the appellants have failed in demonstrating that the said

exercise of discretion is in any manner erroneous and

liable to be interfered with by this Court in the present

appeal.

7. In view of the aforementioned, the above

appeal is dismissed as being devoid of merit reserving

Hereinafter referred to as 'CPC'

NC: 2024:KHC-D:16531

liberty to 18th respondent/Bank to take appropriate steps

in accordance with law to recover the cost in terms of

order dated 22.07.2024 passed by this Court in the above

appeal.

Sd/-

(C.M. POONACHA) JUDGE

SSP CT-ASC