Karnataka High Court
Shri. Riyazahmed Abdul Sattar ... vs Shri. Abdulhamid Mustafa Kotwal on 12 November, 2024
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NC: 2024:KHC-D:16507
MFA No. 105456 of 2023
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.105456 OF 2023 (CPC)
BETWEEN:
SHRI RIYAZAHMED ABDUL
SATTAR BASATAWADKAR,
AGE: 55 YEARS, OCC: BUSINESS,
R/O: H. NO.1398, BAHER GALLI,
KHANAPUR, DIST: BELAGAVI - 591 302.
...APPELLANT
(BY SRI VISHWANATH HEGDE, ADVOCATE FOR
SRI HARSHAWARDHAN M. PATIL, ADVOCATE)
AND:
1. SHRI ABDULHAMID MUSTAFA KOTWAL,
Digitally signed
by SAROJA
HANGARAKI
AGE: 45 YEARS, OCC: BUSINESS.
Location: High
Court of
Karnataka
2. SHRI RIYAZ MUSTAFA KOTWAL,
AGE: 42 YEARS, OCC: BUSINESS,
3. SHRI ASHRAF MUSTAFA KOTWAL,
AGE: 33 YEARS, OCC: BUSINESS,
4. SHRI ALTAF MUSTAFA KOTWAL,
AGE: 39 YEARS, OCC: BUSINESS,
RESP: NO.01 TO 04 ARE
R/O: HOUSE NO.602, JAMBOTI ROAD,
PEERNWADI, BELAGAVI - 590 014.
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NC: 2024:KHC-D:16507
MFA No. 105456 of 2023
5. SMT. JAINBBI
W/O. MUSTAFA KOTWAL,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: HOUSE NO.602, JAMBOTI ROAD,
PEERNWADI, BELAGAVI - 590 014.
6. SMT. RIZWANA
W/O. RIYAZAHMED BASTAWADKAR
AGE: 45 YEARS, OCC: HOUSEWIFE,
R/O: H. NO.1398, BAHER GALLI,
KHANAPUR, DIST: BELAGAVI - 590 014.
7. SHRI MAINODDIN MUSTAFA KOTWAL,
AGE: 44 YEARS, OCC: BUSINESS,
R/O: HOUSE NO.602,JAMBOTI ROAD,
PEERNWADI, BELAGAVI - 590 014.
8. SHRI IRSHAD MUSTAFA KOTWAL,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: HOUSE NO.602, JAMBOTI ROAD,
PEERNWADI, BELAGAVI - 590 014.
...RESPONDENTS
(R1 TO R5, R7 AND R8 ARE SERVED)
THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO, SET ASIDE THE ORDER PASSED
BY I ADDL. SENIOR CIVIL JUDGE AND CJM, BELAGAVI DATED
18.08.2023 PASSED IN IA NO.01 IN O.S.NO.265/2022 GRANTING
TEMPORARY INJUNCTION TO THE INTEREST OF JUSTICE AND
EQUITY AND ETC.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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MFA No. 105456 of 2023
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present appeal is filed by the defendant No.5
challenging the order dated 18.08.2023 on I.A.No.1 in
O.S.No.265/2022 passed by the I-Additional Senior Civil Judge
and CJM, Belagavi1.
2. The relevant facts in a nutshell leading to the
present appeal are that, the respondents 1 to 4 instituted a suit
in O.S.No.265/2022 seeking for partition and other reliefs. The
defendants entered appearance and contested the said suit.
Along with the suit, the plaintiffs filed I.A.No.1 to restrain the
defendants from alienating the suit properties. The said
application was opposed by defendant No.5 by adopting the
written statement filed by him as his objections to the said
application. The Trial Court by its order dated 18.08.2023
allowed the said application and passed the following:
"ORDER
I.A.No.I filed by the plaintiffs under Order
39 rules 1 and 2 of CPC is allowed in the
following terms.
The defendants No.2 & 5, their men,
agents, servants or any persons claiming under
them are hereby temporarily restrained from
Hereinafter referred to as "the Trial Court"
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alienating the suit properties till the disposal of
this suit.
No order as to the costs.
3. Being aggrieved, the present appeal is filed.
4. Heard the submissions of the learned counsel
for the appellant and perused the appeal papers.
5. It is vehement contention of the learned
counsel for the appellant that the suit properties being self-
acquired properties of the defendants and defendant No.5 being
the purchaser of the said properties from the other defendants,
the order of injunction passed by the Trial Court is erroneous
and liable to be interfered with by this Court.
6. It is relevant to note that the Trial Court while
considering the I.A.No.1 has recorded the following finding:
9. A bare perusal of pleadings, contents of the
documents made available on record, it goes to show
that originally the suit schedule properties was belongs
to father of plaintiffs and defendants No.2 to 5 and
husband of defendant No.1. It is an undisputed fact
that defendant No.1 executed her share in the suit
properties in favour of defendant No.2. By perusing the
Properties extracts suit item 'B' & 'C' stands in the
name of defendant No.5. Suit 'A' property stands in the
name of defendant No.2. As per document No.4
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defendant No.3 executed sale deed in favour of
defendant No.5 in respect of suit 'B' schedule property,
as per document No.5 defendant No.4 executed sale
deed in favour of defendant No.5 in respect of suit 'C'
schedule property, as per document No.6 defendant
No.1 executed gift deed in favour of defendant No.5 in
respect of suit 'A' schedule property. It clearly shows
that now the entire suit properties stands in the name
of defendant No.5 from the date of executing the above
said deeds. By perusing the documents produced by
the plaintiffs it clearly discloses that there are several
transactions happened in respect of the suit properties
from 07.10.2016 to 08.02.2017. Further, the
documents produced by are required to be proved only
during the time of full pledged trial. Further, by
perusing the admission of relationship, nature of the
properties and denial of alleged right of the plaintiffs
over the suit properties taken by the defendant No.2
and 5 in para No.1 to 4 of their written statement
clearly shows that their intention to sell the properties.
This apprehension caused the plaintiffs to file this suit
and I.A against the defendant No.2 an 5. Since, the
plaintiffs have not signed sale deeds and also the gift
deed executed by other defendants in favour of
defendant No.5. According, to this court this point is to
be considered at the time of trial only. Further, it is not
stage to decide that the alleged Sale deeds and the Gift
deed executed in favour of defendant No.5 is without
the consent of the plaintiffs or not and whether the
defendants No.1 to 5 have exclusive right over the suit
properties to execute the said deeds or not. Therefore,
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in the absence of the full pledged trial, the contention
taken by the defendants cannot be acceptable.
(Emphasis supplied)
7. It is forthcoming that the Trial Court has
noticed that the suit properties have been alienated by other
defendants in favour of defendant No.5 and that the plaintiffs
are not parties to the said alienations. The Trial Court having
found that the plaintiffs have made out prima facie case, has
exercised its discretion in granting the injunction as sought for
by the plaintiffs.
8. Though the learned counsel for the appellant
seeks to contend that the defendant No.5 has validly purchased
the properties from the other defendants, since they had
exclusive right over the same, it is relevant to note that the
Trial Court has considered the said aspect of the matter and
has further recorded a finding that the right of the plaintiffs and
defendants 1 to 4 in the suit properties and their respective
shares are required to be adjudicated during the course of the
Trial. Having regard to the finding of the Trial Court, during the
pendency of the suit, if the relief as sought for in I.A.No.1 is
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not granted and if the defendant No.5 further alienates the suit
properties, the same would result in multiplicity of proceedings.
9. In view of the discussions made above, the
appellant has failed in demonstrating that the exercise of
discretion by the Trial Court is erroneous and liable to be
interfered with by this Court in the present appeal.
10. At this stage, the learned counsel for the
appellant submits that the plaintiffs have not been diligent in
prosecuting the suit before the Trial Court and they have not
adduced the evidence despite costs being imposed by the Trial
Court on them.
11. It shall be open to the Trial Court to conduct
the further proceedings in the suit in accordance with law
keeping in mind that the order of injunction is operating against
the defendants. With these observations, the above appeal is
disposed off.
Sd/-
(C.M. POONACHA)
JUDGE
