Karnataka High Court
Fayaz Ali S/O Abdul Raheem And Ors vs Zareen Begum & Anr on 4 June, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
ON THE 4TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION Nos.204918-204919 OF 2016 (GM-CPC)
C/W
WRIT PETITION Nos.204920-204921 OF 2016 (GM-CPC)
IN W.P.NOS.204918-919 OF 2016:
BETWEEN:
1. FAYAZ ALI S/O ABDUL RAHEEM
@ ABDUL RAHEMAN LUNJE
AGE: 60 YEARS
OCC: AGRICULTURE
R/O: BAHARPETH ALAND
TALUK: ALAND, DISTRICT: KALABURAGI
2. FAROOQ AHMED S/O ABDUL RAHEEM
@ ABDUL RAHEMAN LUNJE
AGE: 59 YEARS
OCC: AGRICULTURE
R/O: BAHARPETH ALAND
TALUK: ALAND, DISTRICT: KALABURAGI
3. SADEEKA BEGUM D/O AHMED
ALI W/O ABDUL RAZAK
AGE: 46 YEARS, OCC: HOUSEHOLD
& TEACHER
4. ABEEDA BEGUM D/O AHMED ALI
AGE: 37 YEARS, OCC: HOUSEHOLD
2
5. MOHAMMED ABDUL MANNAN
S/O LATE AHMED ALI
AGE: 36 YEARS, OCC: PRIVATE SERVICE
6. HAJRA BEGUM D/O AHMED ALI
AGE: 35 YEARS, OCC: HOUSEHOLD
7. MALLIHA FATIMA
W/O LATE MOHAMMED ABDUL KHADAR
AGE: 34 YEARS, OCC: HOUSEHOLD
8. ERUM FATIMA D/O LATE MOHAMMED
ABDUL KHADAR, MINOR
U/G OF DEFENDANT NO.7
9. ARESHA FARIMA
D/O LATE MOHAMMED ABDUL KHADAR
MINOR U/G OF DEFENDANT NO.7
PETITIONERS 3 TO 9 ARE
R/O: C/O M.A. MANNAN, B. 288
1ST FLOOR, NAMAZ GROUND, AGHAPURA
HYDERABAD (TELANGANA STATE)
10. KHURSHEED BEGUM D/O ABDUL RAHEMAN
@ ABDUL RAHEEM LUNJE
W/O IBRAHIMSAB JARDI
AGE: 41 YEARS, OCC: HOUSEHOLD
R/O ALAND, NOW AT PRESENT MEHEBOOB
NAGAR COLONY, KALABURAGI
11. FIROZ S/O LATE ZAMEERKHAN
MAJOR, OCC: BUSINESS
12. AFROZ S/O LATE ZAMEERKHAN
MAJOR, OCC: BUSINESS
13. ASIF S/O LATE ZAMEERKHAN
MAJOR, OCC: BUSINESS
14. AKHTAR @ TASLEEM BEGUM
D/O LATE ZAMEERKHAND
MAJOR, OCC: HOUSEHOLD
3
15. SHAMEEM D/O LATE ZAMEERKHAN
MAJOR, OCC: HOUSEHOLD
PETITIONERS 11 TO 15 ARE
R/O MIRZA SARDAR BAIG DARGA
KAMAN BHOVI WADA, HYDERABAD
(TELANGANA STATE)
16. DILDAR BEGUM D/O ABDUL RAHEMAN LUNJE
W/O LATE ABDUL JABBAR PALLAN
AGE: 36 YEARS, OCC: HOUSEHOLD
R/O ALAND, NOW AT PRESENT MEHEBOOB
NAGAR COLONY, KALABURAGI
17. ANJUM BEGUM W/O ABDUL REHMAN LUNJE
W/O JAFAR KHAN, AGE: 35 YEARS
OCC: HOUSEHOLD R/O MEHBOOB NAGAR
COLONY, KALABURAGI
... PETITIONERS
(BY SRI D.P. AMBEKAR, ADVOCATE)
AND:
1. ZAREENA BEGUM W/O TAYYABALI LUNJE
AGE: 70 YEARS, OCC: HOUSEHOLD
R/O: ALAND, DISTRICT: KALABURAGI
NOW AT PRESENT M.R. PAPER BOAX ROOM
NO.28. T-NO.59 CHAWAL
MUMBAI - 22 (M.S).
2. JAHANGEER ALI S/O MEHBOOBSAB HAKEEMJEE
AGE: 55 YEARS, OCC: BUSINESS
R/O H.NO.10-4-24, PWD ROAD
AYYA PATTI, ALAND
DISTRICT: KALABURAGI - 585 101
... RESPONDENTS
(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE FOR C/R2)
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
ORDER OR DIRECTION IN NATURE OF CERTIORARI, QUASHING
ANNEXURE 'F' VIZ., THE ORDER DATED 30.04.2016 PASSED BY
THE 1ST ADDITIONAL DISTRICT JUDGE AT KALABURAGI
DISMISSING MISCELLANEOUS APPEAL NO.5 OF 2016, ETC.
IN W.P.NOS.204920-921 OF 2016:
BETWEEN:
1. FAYAZ ALI S/O ABDUL RAHEEM
@ ABDUL RAHEMAN LUNJE
AGE: 60 YEARS
OCC: AGRICULTURE
R/O: BAHARPETH ALAND
TALUK: ALAND, DISTRICT: KALABURAGI
2. FAROOQ AHMED S/O ABDUL RAHEEM
@ ABDUL RAHEMAN LUNJE
AGE: 59 YEARS
OCC: AGRICULTURE
R/O: BAHARPETH ALAND
TALUK: ALAND, DISTRICT: KALABURAGI
3 SADEEKA BEGUM D/O AHMED
ALI W/O ABDUL RAZAK
AGE: 46 YEARS, OCC: HOUSEHOLD
& TEACHER
4. ABEEDA BEGUM D/O AHMED ALI
AGE: 37 YEARS, OCC: HOUSEHOLD
5. MOHAMMED ABDUL MANNAN
S/O LATE AHMED ALI
AGE: 36 YEARS, OCC: PRIVATE SERVICE
6. HAJRA BEGUM D/O AHMED ALI
AGE: 35 YEARS, OCC: HOUSEHOLD
5
7. MALLIHA FATIMA
W/O LATE MOHAMMED ABDUL KHADAR
AGE: 34 YEARS, OCC: HOUSEHOLD
8. ERUM FATIMA D/O LATE MOHAMMED
ABDUL KHADAR, MINOR
U/G OF DEFENDANT NO.7
9. ARESHA FARIMA
D/O LATE MOHAMMED ABDUL KHADAR
MINOR U/G OF DEFENDANT NO.7
PETITIONERS 3 TO 9 ARE
R/O: C/O M.A. MANNAN,B. 288
1ST FLOOR, NAMAZ GROUND, AGHAPURA
HYDERABAD (TELANGANA STATE)
10. KHURSHEED BEGUM D/O ABDUL RAHEMAN
@ ABDUL RAHEEM LUNJE
W/O IBRAHIMSAB JARDI
AGE: 41 YEARS, OCC: HOUSEHOLD
R/O ALAND, NOW AT PRESENT MEHEBOOB
NAGAR COLONY, KALABURAGI
11. FIROZ S/O LATE ZAMEERKHAN
MAJOR, OCC: BUSINESS
12. AFROZ S/O LATE ZAMEERKHAN
MAJOR, OCC: BUSINESS
13. ASIF S/O LATE ZAMEERKHAN
MAJOR, OCC: BUSINESS
14. AKHTAR @ TASLEEM BEGUM
D/O LATE ZAMEERKHAND
MAJOR, OCC: BUSINESS
15. SHAMEEM D/O LATE ZAMEERKHAN
MAJOR, OCC: BUSINESS
PETITIONERS 11 TO 15 ARE
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R/O MIRZA SARDAR BAIG DARGA
KAMAN BHOVI WADA, HYDERABAD
(TELANGANA STATE)
16. DILDAR BEGUM D/O ABDUL RAHEMAN LUNJE
W/O LATE ABDUL JABBAR PALLAN
AGE: 36 YEARS, OCC: HOUSEHOLD
R/O ALAND, NOW AT PRESENT MEHEBOOB
NAGAR COLONY, KALABURAGI
17. ANJUM BEGUM W/O ABDUL REHMAN LUNJE
W/O JAFAR KHAN, AGE: 35 YEARS
OCC: HOUSEHOLD R/O MEHBOOB NAGAR
COLONY, KALABURAGI
... PETITIONERS
(BY SRI D.P. AMBEKAR, ADVOCATE)
AND:
1. ZAREENA BEGUM W/O TAYYABALI LUNJE
AGE: 70 YEARS, OCC: HOUSEHOLD
R/O: ALAND, DISTRICT: KALABURAGI
NOW AT PRESENT M.R. PAPER BOAX ROOM
NO.28. T-NO.59 CHAWAL
MUMBAI - 22 (M.S).
2. JAHANGEER ALI S/O MEHBOOBSAB HAKEEMJEE
AGE: 55 YEARS, OCC: BUSINESS
R/O H.NO.10-4-24, PWD ROAD
AYYA PATTI, ALAND
DISTRICT: KALABURAGI - 585 101
... RESPONDENTS
(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE FOR C/R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
ORDER OR DIRECTION IN NATURE OF CERTIORARI, QUASHING
ANNEXURE 'F' VIZ., THE ORDER DATED 30.04.2016 PASSED BY
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THE 1ST ADDITIONAL DISTRICT JUDGE AT KALABURAGI
DISMISSING MISCELLANEOUS APPEAL NO.6 OF 2016.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Aggrieved by the concurrent findings of fact recorded by both the courts below in dismissing the applications filed by the petitioner-plaintiffs for injunction against the defendants not to alienate the suit property and consequently not to disturb the plaintiffs possession over the suit schedule property, the present petitions are filed.
2. The petitioners filed a suit for declaration and perpetual injunction. I.A.No.3 was filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure seeking an interim order of restraining the defendants from alienating or encumbering the suit property. I.A.No.4 was filed under Order XXXIX Rule 1 and 2 of Code of Civil Procedure seeking an ad-interim temporary injunction to restrain the 8 defendants from causing interference to the plaintiffs' possession and enjoyment over the suit property.
3. The trial Judge has applied his discretion after segregating question of title and the fact of actual and physical possession and then arrived at the conclusion that the plaintiffs are not entitled for the discretionary relief of temporary injunction. It held that it must be within the knowledge of the plaintiffs and defendant No.1 about the transaction of the registered sale deed dated 17.01.2015. Therefore, the trial court was of the considered view that the suit itself could not be maintained without enclosing the record of right of the suit property with the plaint. Therefore, observations made in this connection and discretion used by trial Judge could not be branded as arbitrary or illegal. Therefore, the trial court declined to allow both the applications. The appellate court having considered the contentions upheld the order passed by the trial court.
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4. I find no good ground to interfere with the well considered orders of the courts below. The reasons assigned by both the courts on facts cannot be interfered. It is based on the sale deed that the possession has been parted with. Therefore, both the applications were justifiably rejected based on the facts of the case. Hence, I find no good ground to interfere with the same. Consequently, the petitions being devoid of merit are dismissed.
Sd/-
JUDGE sdu