Karnataka High Court
Asma Begum W/O Wazeer Ali vs Sabiya Begum W/O Shoukat Ali Ataliq And ... on 5 September, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC-K:6921
WP No. 201895 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.201895 OF 2021 (GM-CPC)
BETWEEN:
ASMA BEGUM W/O WAZEER ALI
AGED ABOUT: 40 YEARS,
OCC: HOUSEHOLD,
R/O. ISLAMABAD COLONY,
NEAR KCT COLLEGE COMPOUND,
KALABURAGI.
...PETITIONER
(BY SRI.VINAYAK APTE, ADVOCATE)
AND:
1. SABIYA BEGUM
W/O SHOUKAT ALI ATALIQ
AGED ABOUT 52 YEARS,
OCC: HOUSEHOLD,
Digitally signed by
BASALINGAPPA
SHIVARAJ
R/O. NOOR BAGH,
DHUTTARGAON RAICHUR-584103.
Location: HIGH
COURT OF
KARNATAKA
2. WAZEER ALI
S/O LATE MOHD. OMER ALI ATALIQ
AGED ABOUT 50 YEARS,
OCC: CIVIL ENGINEER,
R/O. ISLAMABAD COLONY,
NEAR KCT COLLEGE COMPOUND,
KALABURAGI-585102,
NOW RESIDING AT DOHA QATAR.
...RESPONDENTS
(BY SRI.NOOR ILYAS, ADVOCATE FOR R1;
V/O DATED 19.08.2024 NOTICE TO R2 DISPENSED WITH)
-2-
NC: 2024:KHC-K:6921
WP No. 201895 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER AT ANNEXURE-K DATED
06.09.2021 PASSED IN R.A.NO.07/2021 ON THE FILE OF I
ADDL. DIST. AND SESSIONS JUDGE, KALABURAGI AND ALLOW
I.A.NO.I FILED U/O 41 RULE 5(2) OF CPC AS PER ANNEXURE-H
DATED 12.01.2021 IN ENDS OF JUSTICE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP 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. The petitioner is before this Court seeking for the
following reliefs:
i. Issue a writ of certiorari quashing the impugned
order Annexure-K dated 06.09.2021 passed in
R.A.No.07/2021 on the file of I Addl. Dist. and
Sessions Judge, Kalaburagi and allow I.A.No.I filed
under Order 41 Rule 5(2) of CPC as per Annexure-H
dated 12.01.2021 in ends of justice.
ii. Issue any writ order or direction as this Hon'ble
Court deems fit in the circumstances of the case, in
the ends of justice.
2. Respondent No.1 had filed a suit in O.S.No.133/2014 for
declaration of title, declaration that the gift deed was not
binding on the plaintiff and for injunction restraining the
defendants who is the petitioner from interfering with her
possession. The said suit came to be decreed on
NC: 2024:KHC-K:6921
26.11.2020 challenging which the petitioner who is
defendant No.2 had filed an appeal in R.A.No.7/2021. In
the said appeal, an application under Order 41 Rule 5 of
CPC was filed seeking for stay of the operation and
execution of the judgment dated 26.11.2020 in
O.S.No.133/2014. The said application came to be
rejected by order dated 06.09.2021. It is challenging the
said order that the petitioner is before this Court.
3. Sri.Vinayak Apte, learned counsel for the petitioner/
defendant No.2 would submit that the judgment and
decree passed by the trial Court is not proper and
correct. The trial Court has not appreciated both the
factum of ownership and possession in a proper manner.
A registered gift deed has not been considered in the
proper perspective. If the same had been considered in
the proper perspective, the first appellate court ought to
have stayed the judgment and decree passed by the trial
Court.
4. Heard Sri.Vinayak Apte, learned counsel for the petitioner
and perused the papers.
NC: 2024:KHC-K:6921
5. The suit was for declaration of title, declaration that the
gift deed was null and void and for a permanent
injunction. When the gift deed has been declared null and
void by the trial Court, at the interlocutory stage in
appeal, the question of appellant contending that the gift
deed has to be considered would not arise. The trial Court
having come to a categorical conclusion that it is the
plaintiff who was in possession of the property has
restrained defendant No.2 from interfering with such
possession, the first appellate Court has also taken into
consideration that defendant No.2 has caused demolition
of a portion of the property subject matter of the suit and
being of the opinion that if a stay is granted, the same
would be taken undue advantage by defendant No.2,
hence, rejected the application filed under Order 41 Rule
5 of CPC.
6. I do not find any infirmity in relation thereto, the first
appellate Court would be required to re-appreciate the
evidence and it is only while doing so that the contention
of the appellant would have to be considered by the first
appellate Court. The trial court having come to a
NC: 2024:KHC-K:6921
conclusion that the plaintiff was the owner and the gift
deed is null and void as also coming to a conclusion that
the plaintiff was in actual physical possession of the
property, the question of staying an order of injunction
passed in such circumstances, more so, when the threat
of demolition has been made out by the plaintiff before
the appellate Court, would not arise. I do not find any
infirmity in the order passed by the first appellate Court
which has been challenged in the present proceedings.
7. The order of injunction being inforce from the date of the
judgment and decree and continuing to be inforce even
as on today, only proceedings before the first appellate
Court being stayed, I do not find it a fit case to interfere
at this stage and time.
8. Reserving liberty to the petitioner/ defendant No.2 to
agitate all contentions before the first appellate court, the
above petition stands dismissed.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
VNR
