[Cites 3, Cited by 0]
Karnataka High Court
Abdul Razak vs Sheba Renuka Dayal on 9 March, 2026
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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WP No. 200423 of 2026
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 200423 OF 2026 (GM-CPC)
BETWEEN:
ABDUL RAZAK S/O ABDUL AZIZ,
AGE: 70 YEARS, OCC: AGRICULTURE.
R/O H.No.4-1-93,
NOOR KHAN TALEEM,
BIDAR-585 401.
...PETITIONER
(BY SRI. RAVI B. PATIL, ADVOCATE)
AND:
1. SHEBA RENUKA DAYAL
W/O C. PRIYADARSHAN DAYAL,
Digitally signed by
SWETA KULKARNI AGED ABOUT 42 YEARS,
Location: HIGH OCC: AGRI., AND PVT.SERVICE,
COURT OF
KARNATAKA R/O BIDAR, NOW RESIDING
AT 17A1 KRISHNA-BLOCK NATIONAL
GAMESH HOUSING COLONY,
KORAMANGALA,
BENGALURU-560 047.
SMT. SUNDERAMMA W/O LATE GANPATI,
SINCE DECEASED
2. ANUP S/O LATE GANPATI,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE,
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R/O MANGALPET LOCALITY,
BIDAR-585401.
3. DEEPAK S/O LATE GANPATI,
AGED ABOUT 47 YEARS,
OCC: AGRICULTURE,
R/O MANGALPET LOCALITY,
BIDAR-585401.
4. MA QADEER S/o ABDUL RAZAK
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE,
R/O BIDAR-585401.
5. EMANUEL @ BABULU
S/O PAKALWADA,
NEAR RAILWAY GATE,
BIDAR-585401.
6. MADHULATA W/O NAIK KUMAR
(D/O LATE GANPATI),
AGED ABOUT 64 YEARS,
OCC: AGRI., AND HOUSEHOLD,
R/O EDGERI NEAR ABDUL FAIZ
DARGA, BIDAR-585401.
7. YESHAPPA S/O SHANKAR
AGED ABOUT 57 YEARS,
OCC: AGRI.,
R/O BELURA,
TQ. AND DIST. BIDAR,
NOW AT PRATAP NAGAR,
BIDAR-585401.
8. RUTH RENUKA W/O LATE JOEL
AGED ABOUT 52 YEARS,
OCC: TEACHER,
R/O BETHLEM COLONY,
BIDAR-585401.
9. JASMINE D/o LATE JOEL
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AGED ABOUT 17 YEARS,
UNDER GUARDIANSHIP OF
HER NATURAL MOTHER,
R/O BETHELEM COLONY,
BIDAR-585401.
10. SAMSON S/O PANDITH,
AGED ABOUT 42 YEARS,
OCC: AGRI.,
R/O BELURA VILLAGE
TQ. AND DIST. BIDAR-585401.
11. TEJAMMA W/O PANDITH,
AGED ABOUT 67 YEARS,
OCC: HOUSEHOLD,
R/O BELURA VILLAGE,
TQ. AND DIST. BIDAR-585401.
12. DHANRAJ S/O PANDITH,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE,
R/O BELURA VILLAGE,
TQ. AND DIST. BIDAR-585401.
13. JAISHREE W/O YESUDAS
AGED ABOUT 35 YEARS,
OCC: HOUSEHOLD,
R/O KAMTHANA VILLAGE,
TQ. AND DIST. BIDAR-585401.
14. SAMPATH S/O SHANKAR
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
R/O PRATAPNAGAR BIDAR,
BIDAR-585 401.
15. BHASKAR S/O SHANKAR
AGED ABOUT 49 YEARS,
OCC: AGRICULTURE,
R/O VILLAGE NAUBAD,
BIDAR-585 401.
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16. INDRAMMA W/O ASHOK
AGED ABOUT 41 YEARS
OCC: HOUSEHOLD
R/O NAUBAD BIDAR-585401.
17. RAJU S/O BHEEMANNA,
AGED ABOUT 56 YEARS, OCC: LABOUR
R/O VILLAGE KADWAD
BIDAR-585401.
18. YUHAN S/O BHEEMANNA,
AGED ABOUT 35 YEARS, OCC: AGRICULTURE
R/O VILLAGE KADWAD
TQ AND DIST BIDAR-585401.
19. KALAVATHI
(D/O BHEEMANNA)
AGED ABOUT 40 YEARS
OCC: HOUSEHOLD,
R/O VILLAGE KADWAD
TQ. AND DIST. BIDAR-585401.
20. SHEELU S/O BHEEMANNA,
AGED ABOUT 35 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE KADWAD,
TQ. AND DIST. BIDAR-585401.
21. TIPPANNA S/O NAGAPPA,
AGE: 45 YEARS, OCC: CARPENTER,
R/O VILLAGE NAUBAD
BIDAR-585401.
22. VASU S/O NAGAPPA,
AGED ABOUT 39 YEARS, OCC: LABOUR
R/O VILLAGE NAUBAD
BIDAR-585401.
23. SHIVARAJ S/O NAGAPPA,
AGED ABOUT 38 YEARS, OCC: LABOUR,
R/O VILLAGE NAUBAD
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BIDAR-585401.
24. BABU S/O NAGAPPA,
AGE: 38 YEARS, OCC: LABOUR
R/O VILLAGE NAUBAD
BIDAR-585401.
25. MANJULATHA W/O CHRISTANAND,
AGE: 50 YEARS, OCC: SERVICE,
R/O NEAR WATER TANK MANGALPETH,
BIDAR-585401.
26. DHASHWANTI S/O SHANTHRAJ,
AGE: 68 YEARS, OCC: HOUSEHOLD,
R/O TIPPU SULTAN COLONY,
BIDAR-585401.
27. DR. SHAI S/O SHANTHRAJ
(GRANDSON OF KALLAMMA D/O BANDEPPA),
AGE: 40 YEARS, OCC: DOCTOR,
R/O TIPPU SULTAN COLONY BIDAR-585401.
28. DR. SHEEL DANIAL S/O SHANTHRAJ,
AGE: 35 YEARS, OCC: DOCTOR,
R/O TIPPU SULTAN COLONY
BIDAR -585401.
29. BUNTY S/O SHANKER,
AGE: 48 YEARS, OCC: LABOUR
R/O HAMILAPUR
TQ. AND DIST. BIDAR-585401.
30. SMT. VIJJU D/O SHANKAR,
AGE: 45 YEARS, OCC: LABOUR,
R/O VILLAGE HAMILAPUR
TQ. AND DIST. BIDAR-585401.
31. SMT KITTU D/O LATE SHANKAR,
AGE: 45 YEARS
R/O VILLAGE HAMILAPUR,
TQ. AND DIST. BIDAR-585401.
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32. RAJKUMAR S/O JAYWANTH,
AGE: 45 YEARS, OCC: CARPENTER,
R/O VILLAGE HAMILAPUR,
TQ. AND DIST. BIDAR-585401.
33. SMT. MARGARET W/O GOPALRAO,
AGE: 42 YEARS, OCC: LADIES TAILOR,
R/O LALWADI, BIDAR-585401..
34. SULOCHANA W/O DHANRAJ,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O MAILOOR, BIDAR-585401.
35. BABEETHA W/O DEEPAK,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE HAMILAPUR,
TQ. AND DIST. BIDAR-585401.
36. ITTABAI W/O MANIKAPPA,
AGE: 60 YEARS, OCC: HOUSEHOLD,
R/O PAKKALWADA BIDAR-585401.
37. SHARDAMMA @ SHAVELATA
D/O SAYAPPA @ SAIBANNA,
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O VILLAGE MAILOOR,
BIDAR-585401.
...RESPONDENTS
THIS WRIT PETITION FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING A) A WRIT OF CERTIORARI
ANY OTHER WRIT OR DIRECTION TO QUASH THE IMPUGNED
ORDER DATED 23.09.2025 IN O.S.NO.52/2012 FILED UNDER
XXII RULE 10 (1) OF CPC UNDER I.A.NO.46 AS AT
ANNEXURE-N PASSED BY THE COURT OF PRINCIPAL SENIOR
CIVIL JUDGE AND CJM AT BIDAR AS ILLEGAL ARBITRARY IN
NATURE AND CONSEQUENTIALLY TO ALLOW THE APPLICATION
AS PRAYED FOR. B) PASS SUCH OTHER ORDER/S AS THIS
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HON'BLE COURT DEEMS FIT TO GRANT IN THE
CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
1. The defendant No.5 is before this Court in this
writ petition under Article 227 of the Constitution of India,
with a prayer to quash the order dated 23.09.2025 passed
on I.A.No.46 in O.S.No.52/2012 by the Court of Principal
Senior Civil Judge & CJM, at Bidar.
2. Heard the learned counsel for the petitioner.
3. The respondent No.1 herein has filed
O.S.No.52/2012 before the jurisdictional Civil Court at Bidar,
seeking relief of partition and separate possession of the suit
schedule property. According to the plaintiff, she has got half
share in the suit schedule property and defendant Nos.1 to 3
are entitled for the remaining half share. Defendant No.1
allegedly had executed sale agreement in respect of portion
of the suit schedule property in favour of defendant No.5 and
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it is under these circumstances, defendant No.5 is arraigned
as party defendant to the suit. It appears that, during the
pendency of the suit, the defendant No.1 died on
10.02.2023. After the death of defendant No.1, her sons i.e.
defendant Nos.2 and 3 have been brought on record as her
legal representatives. I.A.No.46 is filed on behalf of the
defendant No.5 in O.S.No.52/2012 with a prayer to add him
as legal representative and assignee of defendant No.1. The
said application was opposed by the plaintiff as well as by
the defendant No.3 by filing objections. The trial Court vide
impugned order dated 23.09.2025 has rejected I.A.No.46
filed in O.S.No.52/2012. Aggrieved by the same the
defendant No.5 is before this Court.
4. Learned counsel for the petitioner having
reiterated the grounds urged in the writ petition submits
that, during the lifetime of the defendant No.1 she had
executed an agreement for sale in respect of a portion of suit
schedule property in favour of defendant No.5.
Subsequently, she also has executed a registered Consent
Deed, admitting the execution of the agreement for sale
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dated 29.11.2010 and that the petitioner is in possession
and enjoyment of the property which is the subject matter of
the agreement for sale. Under the circumstance, the trial
Court was not justified in rejecting I.A.No.46. He submits
that, while considering an application under Order 22 Rule 10
of CPC., a detailed enquiry need not be held by the trial
Court with regard to the rights of the parties. In support of
his arguments, he has placed reliance on the following
Judgments:
(i) AIR 2005 SC 2209 (Amit Kumar Shaw and
another Vs. Fairda Khatoon and another);
(ii) MFA No.7379/2004;
(iii) Writ Petition No.13499/2015;
(iv) Writ Petition No.201865/2023
C/w. Writ Petition No.201207/2022
5. The material on record would go to show that, the
respondent No.1 herein has filed O.S.No.52/2012 claiming
half share over the suit schedule property and according to
her, defendant No.1 and her sons i.e. defendant Nos.2 and 3
are entitled for the remaining half share in the suit schedule
property. The petitioner is arraigned as defendant No.5 in
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the suit for the reason that defendant No.1 had executed an
agreement for sale dated 29.11.2010 in his favour in respect
of a portion of the suit schedule property. Undisputedly, no
sale deed has been executed by the defendant No.1 in favour
of defendant No.5. According to defendant No.5,
subsequently the defendant No.1 has also executed a
registered Consent Deed admitting the execution of the
earlier agreement for sale dated 29.11.2010 and also
admitting the receipt of sale consideration and delivery of
the possession in favour of defendant No.5. However, the
fact remains that, no sale deed has been executed by
defendant No.1 in favour of defendant No.5.
6. Undisputedly, the defendant No.5 is not a family
member of the plaintiff or defendant Nos.1 to 3 and he is
only an agreement holder of a portion of suit schedule
property. After the death of defendant No.1, her sons
namely defendant Nos.2 and 3 have been brought on record
as her legal representatives. The petitioner/defendant No.5
claims to be an assignee and it is under these circumstances,
he has filed an application under Order 22 Rule 10 of CPC, to
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treat him as a legal representative of deceased defendant
No.1. An assignee is a person who holds property on behalf
of the true legal heirs and he cannot have an interest
adverse to the interest of the legal heirs of the deceased.
7. In the case on hand, defendant No.5 claims an
interest which is adverse to the interest of the true legal
heirs of defendant No.1. According to defendant No.5 on the
strength of the agreement of sale dated 29.11.2010 and the
subsequent registered Consent Deed executed by the
defendant No.1 in his favour, he has acquired right, title and
interest over the land which is the subject matter of the
agreement of sale dated 29.11.2010. If that is so, it is for
the defendant No.5 to initiate appropriate proceedings before
the jurisdictional Civil Court for declaration of his title over
the property which is the subject matter of the aforesaid
document. He cannot be treated as a legal representative of
the defendant No.1 in the present suit which is filed seeking
partition and separate possession and that too, when he is
claiming interest adverse to the true legal heirs of defendant
No.1. The true legal heirs will always have a priority over the
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assignee to come on record as legal representatives of the
deceased.
8. Under the circumstances, the trial Court was
completely justified in rejecting I.A.No.46. Though I am in
complete agreement with the principles laid down in the
Judgments on which reliance has been placed by the learned
counsel for the petitioner, the same cannot be made
applicable to the facts and circumstances of the present
case.
9. In view of the above, I do not find any good
ground to entertain this petition. Accordingly, the petition is
dismissed.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
Svh/-
List No.: 1 Sl No.: 3
