Karnataka High Court
Mr Salimraza S/O Abdul Gafar Jinnedi vs Mr Salim S/O Shabeer Pathan on 3 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC-D:12656
WP No. 104836 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104836 OF 2024 (GM-CPC)
BETWEEN:
1. MR. SALIMRAZA
S/O. ABDUL GAFAR JINNEDI,
AGE: 50 YEARS, OCC: PVT. SERVICE,
R/O. CTS NO.907, PLOT NO.2,
RAHEMANIYA MASJID ROAD,
SANGMESHWAR NAGAR,
TAL: AND DIST: BELAGAVI-590010.
2. MR. TANVEERAHMED
S/O. ABDUL GAFAR JINNEDI,
AGE: 41 YEARS, OCC: PVT. SERVICE,
R/O. CTS NO.907, PLOT NO.2,
RAHEMANIYA MASJID ROAD,
SANGMESHWAR NAGAR,
TAL: AND DIST: BELAGAVI-590010.
...PETITIONERS
(BY SRI. VITTHAL S. TELI, ADVOCATE)
GIRIJA A
BYAHATTI
AND:
Location: HIGH
COURT OF
KARANTAKA
DHARWAD
BENCH
1. MR. SALIM
S/O. SHABEER PATHAN,
AGE: 52 YEARS, OCC: DOCTOR,
R/O. PLOT NO.1, OPP. KUMAR HALL,
SANGMESHWAR NAGAR,
TAL: AND DIST: BELAGAVI-590010.
2. MR. NAYEEM
S/O. SHABEER PATHAN,
AGE: 50 YEARS, OCC: BUSINESS,
R/O. PLOT NO.1, OPP. KUMAR HALL,
SANGMESHWAR NAGAR,
TAL: AND DIST: BELAGAVI-590010.
-2-
NC: 2024:KHC-D:12656
WP No. 104836 of 2024
3. MR. YUNUS
S/O. SHABEER PATHAN,
AGE: 47 YEARS, OCC: BUSINESS,
R/O. PLOT NO.1,
OPP. KUMAR HALL,
SANGMESHWAR NAGAR,
TAL: AND DIST: BELAGAVI-590010.
4. MR. YUSUF
S/O. SHABEER PATHAN,
AGE: 45 YEARS, OCC: BUSINESS,
R/O. PLOT NO.1, OPP. KUMAR HALL,
SANGMESHWAR NAGAR,
TAL: AND DIST: BELAGAVI-590010.
5. MRS. ASMA
W/O. ASIF SARAF,
AGE: 36 YEARS, OCC: HOUSEWIFE,
R/O. ZEHARI GALLI, ANGOL,
TAL: AND DIST: BELAGAVI-590006.
...RESPONDENTS
(BY SRI. G.G. PATIL &
SRI. S.H. YADAWAD, ADVOCATES FOR
C/R1, R2, R4 & R5; SRI. G.G. KULKARNI, ADV. FOR R3)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT QUASHING THE JUDGMENT
DATED 10.07.2024 PASSED IN M.A. NO.62/2023 BY THE VI ADDL
DISTRICT AND SESSIONS JUDGE, BELAGAVI VIDE ANNEXURE-L.
THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
-3-
NC: 2024:KHC-D:12656
WP No. 104836 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. Heard the petitioners' counsel and also the counsel
appearing for the respondents.
2. This writ petition is filed being aggrieved by the order
dated 10.07.2024 granting of temporary injunction
by the VI Addl. District and Sessions Judge, Belagavi,
('First Appellate Authority' for short) in
M.A.No.62/2023 vide Annexure-L, as against
rejection of the application filed under Order 39 Rules
1 and 2 of CPC and a prayer is also sought to quash
the order passed by the First Appellate Court.
3. The main contention of the petitioners before this
Court is that, he had purchased the suit property in
the year 1975 as per the sale deed dated 20.05.1975
as per Annexure-F. The counsel for the petitioners
also vehemently contended that, while executing the
sale deed, the boundary is shown on the East Road
and counsel also produced copy of the layout plan
NC: 2024:KHC-D:12656
before this Court which was approved by the
concerned authority i.e., the Deputy Commissioner,
Belagavi, on 09.08.1973 and it is also the Planning
Authority Belagavi. The counsel relying upon this
document would contend that, the property sold to
the petitioners is measuring 40x71 ft. On the east
there is a road, on the west, south and north there
are private properties and the same are also in the
very same layout and the identity of the property is
not in dispute. The counsel also vehemently
contended that, Trial Court while rejecting the
temporary injunction application filed by the
respondents/plaintiffs under Order 39 Rules 1 and 2
R/w. Section 151 of CPC, has taken note of the
boundaries mentioned in the sale deed, particularly
in paragraph No.13, considering that the boundaries
and measurement of plot No.2 in layout plan and
sale deed dated 25.02.1975 is one and same and as
per layout plan also, plot No.2 measures 40x71 and
it is up to 30 feet road towards eastern side. If
NC: 2024:KHC-D:12656
plaint averments and hand sketch are considered,
then plaintiffs are claiming that plot No.2 is
measuring 40 x 100 feet and suit property is 29x40
abutting to 30 feet road. As per the plaint averment,
suit property is part of plot No.2 measuring 29x40.
The measurement claimed by the plaintiffs is against
the approved plan as plot No.2 is not measuring 100
feet north to south, but only measuring 40x71.
Taking into note of the same, a clear discussion was
made by the Trial Court in paragraphs No.14 and 15
and came to the conclusion that the plaintiffs have
not made out the case.
4. The counsel for the petitioners also vehemently
contended that, being aggrieved by the said order of
rejection of the temporary injunction application, an
appeal is filed in Miscellaneous Appeal No.62/2023
and the First Appellate Court reversed the said
finding coming to the conclusion that it is difficult to
appreciate the contentions of the defendants at this
NC: 2024:KHC-D:12656
stage, because in paragraph No.8 of the written
statement, defendants refer to an agreement said to
have been executed by the mother of the plaintiffs in
respect of suit property, so now they cannot contend
otherwise. The First Appellate Court taking note of
the agreement which was executed by the mother/
respondent herein and also in fact defendants have
not put forth the claim of boundary prevailing over
measurements and their stand is very simple,
according to them they are in possession of the suit
schedule property by virtue of a sale agreement, to
what extent the agreement of sale comes to their
rescue is certainly a point for trial, came to the
conclusion that the defendants are still placing
reliance upon the sale agreement. It does not
require special knowledge to say that an agreement
of sale does not convey any title. In fact, execution
of sale agreement is also a question to be decided.
Under such circumstances, the Trial Court did not
consider this aspect at all and it gave a finding only
NC: 2024:KHC-D:12656
on the basis of the sale deed. When the Trial Court
fails to take into consideration all the materials
produced before the Court, it is a case of arbitrary
exercise of discretion and hence allowed the appeal
and set aside the order passed by the Trial Court on
I.A.No.1 and allowed I.A.1 filed by the
plaintiffs/respondents under Order 39 Rules 1 and 2
of CPC and also directed, defendants or anybody
acting on their behalf or under their direction are
hereby restrained from encroaching the suit
scheduled property till the disposal of the suit.
5. The main contention of the petitioners' counsel also
that, the very order passed by the First Appellate
Court is erroneous. It is contended that the First
Appellate Court fails to take note of the boundaries
mentioned in the very sale deed. The property was
sold by the mother of the petitioners measuring
40x71 to the father of the defendants through a
registered sale deed dated 25.05.1975 and further
NC: 2024:KHC-D:12656
sold an area 15x40 of plot No.2 to the father of the
defendants by the agreement of sale deed dated
16.06.1986. The First Appellate Court ought not to
have passed such an order. The counsel also
produced the photograph of the building which is
constructed, which discloses the construction of
basement with two floors. It is also contended that,
even if the respondents/plaintiffs succeed in the suit,
they are going to demolish the same if any building
is constructed, if the same is located in the property
which the respondents/plaintiffs are claiming.
6. Per contra, counsel appearing for the respondents
would vehemently contend that, when the petitioners
categorically admits that they entered into an
agreement of sale with the mother of the
respondents to an extent of 15x40 feet and now they
had taken up the construction to the extent of 29 x
40 feet in the suit land, for which they have filed the
suit for the relief of declaration before the Trial
NC: 2024:KHC-D:12656
Court, the Trial Court not properly exercised the
discretion but the First Appellate Court has rightly
exercised the discretion taking note of the claim
made by the respondents. The petitioners cannot
blow hot and cold in one breath, entering into a sale
agreement to the extent of 15 x 40 feet and also
claiming the title in respect of 40x71 feet in terms of
the sale deed. The First Appellate Court rightly
considered and directed not to put up any
construction.
7. Having heard the petitioners' counsel and also the
counsel appearing for the respondents and also
considering the reasons given by the Trial Court in
paragraph No.13, no doubt in the layout plan also
with regard to the plot No.2, it is categorically shown
the property was sold in favor of the petitioners to
the extent of 40 x 71 feet, abutting the road. It is
also not in dispute that, in the very same row total
plots No.1 to 10 are found in the layout plan and the
- 10 -
NC: 2024:KHC-D:12656
layout plan was also approved on 09.08.1973 and
the property was sold in the year 1975. The
photographs also show that there is construction
made by the petitioners herein. When the plaintiffs
also claiming declaration in respect of the property
and when already construction has been made and it
is also not in dispute that in the very same layout
formed by the respondents/plaintiffs, they have
already sold the property in favor of the petitioners
to the extent of 40x71 feet and defendants/
petitioners also claimed that there is an agreement
for 15x40 feet, the Court has to take note of the
admitted documents of sale agreement entered into
between the parties, that is mother of the
respondents as well as the petitioners and matter
has to be tried. In view of already construction is
made and also on seeing the photographs also some
extent of land is left abutting to the road. When
there is a dispute with regard to the location of the
property which the plaintiffs and also the
- 11 -
NC: 2024:KHC-D:12656
defendants/petitioners herein are claiming, having
taken note of the boundaries which has been
described in the approved layout, the matter
requires to be decided on merits, as the sale deed
also discloses eastern boundary as road.
8. When such being the case, I am of the considered
opinion that the impugned order dated 10.07.2024
passed by the First Appellate Court in
M.A.No.62/2023 vide Annexure-L, requires to be set
aside subject to condition that, if construction is
made by the defendants/petitioners in the property
of the plaintiffs and the same belongs to them and
they are the absolute owners of the property, the
petitioners have to demolish the same on their own
cost. With such an undertaking, the petitioners have
to file an affidavit before this Court within one week
from today. If such an undertaking is not given
within one week from today, the petitioners will not
enure the benefit of this order.
- 12 -
NC: 2024:KHC-D:12656
9. Accordingly, the writ petition is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
gab/CT-MCK
