Karnataka High Court
Sri. A.K.Abdul Naseer vs Abdul Bari on 20 June, 2019
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NOS. 37758- 37761 OF 2017 (GM-CPC)
C/W
WRIT PETITION NO. 51343 OF 2014 (GM-CPC)
IN W.P. NOS. 37758-37761/2017:
BETWEEN:
1. SRI. A.K.ABDUL NASEER
S/O ABDUL KHALAQ,
AGED ABOUT 56 YEARS,
2. SMT. SHAHEEN TAJ
S/O ABDUL KHALAQ
AGED ABOUT 62 YEARS,
3. MRS. SHOWAR @ SHATAJ
D/O ABDUL KHALAQ
AGED ABOUT 68 YEARS,
4. MRS. SAYEEDA BEGUM @ HASEENA
D/O ABDUL KHALAQ
AGED ABOUT 64 YEARS,
5. MRS. HAJIRA BEGUM
D/O ABDUL KHALAQ
AGED ABOUT 50 YEARS,
6. MRS. SABEHA
D/O ABDUL KHALAQ
AGED ABOUT 54 YEARS,
7. MRS. NASREEN TAJ
S/O ABDUL KHALAQ
AGED ABOUT 56 YEARS,
8. MRS. SHAMEEM
D/O ABDUL KHALAQ
AGED ABOUT 56 YEARS,
PETITIONERS NO.1 TO 8 ARE
R/A NO.44, DAVIS ROAD,
2
RICHARDS TOWN,
BENGALURU-560 005.
PETITIONERS NO.2 TO 4 SENIOR CITIZENSHIP
BENEFIT NOT CLAMIED.
... PETITIONERS
(BY SRI. S R HEGDE HUDLAMANE, ADVOCATE)
AND:
1. ABDUL BARI
S/O ABDUL JABBAR,
AGE MAJOR,
2. ABDUL SAYEED
S/O ABDUL JABBAR,
AGE MAJOR,
3. ABDUL SIRAJ
S/O ABDUL JABBAR,
AGE MAJOR,
4. TANVEER AHMED
S/O ABDUL JABBAR,
AGE MAJOR,
5. ABDUL KAREEM
S/O ABDUL JABBAR,
AGE MAJOR,
RESPONDENTS NO.1 TO 5 ARE
R/O NO.47
NEW SAYYAJI RAO ROAD,
BAMBOO BAZAR,
MYSORE-570021
6. MRS. DR. HUMERA RASHID
W/O RASHID AHAMED KHAN
D/O A.K. ABDUL KHALAQ,
FRAZER TOWN,
BENGALURU-560 005
7. A.K.MOHAMMED SHARIEF
S/O LATE A.S. ABDUL KAREEM,
MAJOR,
R/AT CHARELE CHAMBAL ROAD,
COX TOWN,
BENGALURU-560 005
3
8. A.K. ABDUL SAMAD
S/O LATE A.S. ABDUL KAREEM
MAJOR,
M/S KAREEM SILK,
INTERNATIONAL J.F,
11/12, CITY POINTED
NO.13, INFANTRY ROAD,
BENGALURU-560 001
9. SMT. AZEEZUNISSA
W/O LATE A ABDUL KHUDDUR,
MAJOR,
R/A NO.7, SPENCER ROAD,
FRAZER TOWN, BENGALURU-560 005
10. ISHRATH BEGUM
W/O DR. ABDUL WAJID KHAN,
MAJOR
R/A NO.47, NEW SAYYAJI RAO RAOD,
BAMBOO BAZAR,
BENGALURU 5700021.
11. ULFAL BEGUM
W/O ABDUL KHUDDUS
AGE: MAJOR
R/O GAFUR MANZIL,
CUCHOREA, SANVARDEM,
GOA 403706.
12. SURVATH BEGUM
W/O ASIF HUSSAIN
MAJOR,
R/O NO.47(M4)
NEW SAYYAJI RAO ROAD,
BAMBOO BAZAR
MYSORE 570021.
13. NIKHAT JAHAN
W/O AMJATH INAMDAR
MAJOR, SALES TAX
CONSULTANT AZAD LANE,
BELGAUM 590001.
14. MR. ADIL AHMED
S/O A.K. AHMED SHARIF
MAJOR
15. MR. KABID AHMED
S/O A.K. AHMED SHARIFF
MAJOR
4
16. MR. NOWHER AHMED
S/O A.K. AHMED SHARIF, MAJOR
RESPONDENTS NO.14 TO 16 ARE
R/O NO.192, IST CROSS,
SUBHASHNAGAR,
OLD BENGALURU-MYSORE ROAD,
MYSORE 700017
17. MRS. JABEEN TAJ
MAJOR
D/O A.K. AHMED KHAN
W/O ZAFRULLA KHAN
R/O NO.L34, IST FLOOR,
8TH CROSS, SHIVAJI RAOD,
N.R. MOHALLA
MYSORE 570017.
18. MRS. NUSRATH BEGUM
MAJOR
W/O ABDUL HAMMED
NO.18, SIDDIQNAGAR,
B-LAYOUT,
BANNI MANTAP
MYSORE 570015.
19. MRS. YASMEEN TAJ
MAJOR
W/O DRAVESH AHMED
DR. NO.192, IST CROSS,
SUBHASHNAGAR,
OLD BENGALURU-MYSORE ROAD,
BENGALURU 560 005.
20. MRS. MUDDASIN BEGUM
W/O R. LPARVEZ AHMED KHAN,
MAJOR, NO.506,
15TH L MAIN, 3RD BLOCK,
KORAMANGALA,
BENGALURU 560 034.
21. MRS. TABASSUM BEGUM
W/O SAJJAD SALESH
MAJOR
NO.18, CUNNINGHAM ROAD,
BENGALURU 560 052.
22. MISS. LUBNA BEGUM
D/O LATE A.K. AHMED
5
SHARIFF, MAJOR
DR. NO.192, IST CROSS,
SUBHASHNAGAR,
AHAMED KHAN
D/O A.K. ABDUL OLD
BENGALURU-MYSORE
MYSORE 570017.
23. MISS JAIYBU SHERIFF
D/O LATE A.K. AHMED
SHARIFF, MAJOR
DR. NO.192, I ST CROSS,
SUBHASHNAGAR,
OLD BENGALURU-MYSORE ROAD,
BENGALURU 570017.
24. ABDUL NAYEEM
S/O A.K. ABDUL SUBHAN
MAJOR, NO.7, NANDHI
DURG ROAD, BENSON TOWN,
BENGALURU 560 045.
25. FAREED SUBHAN
S/O A.K. ABDUL SUBHAN
MAJOR
NO.7, NANDHI DURG ROAD,
BENSON TOWN,
BENGALURU 560 045.
26. HINA KAUSER
W/O SHAKEEL AHMED
D/O SUBHAN
MAJOR, NO.7,
NANDHI DURGA ROAD,
BENSON TOWN,
BANGLAORE 560 045.
27. MRS. JASMEEN SUBHAN
W/O LATE ABDUL
SUBHAN, MAJOR
NO.7, LNANDHI DURG ROAD,
BENSON TOWN,
BENGALURU 560 045.
28. SHAIK NASEER
S/O A.S. DAWOOD
MAJOR, R/O NO.41,
MOSQUE COMLPLEX, M.M. ROAD,
FRAZER TOWN,
BENGALURU 560 045.
6
29. USMAN
S/O LATE KAREEM KHAN
MAJOR
NO.948, 6TH MAIN,
BTM MICO LAYOUT,
2ND STAGE,
BENGALURU 560 076.
30. SANJAY KUMAR GUPTA
S/O RADHYLAL GUPTA
MAJOR
31. SMT. MANISHA GUPTA
W/O RADHYLAL GUPTA
MAJOR
RESPONDENTS NO. 30 & 31 ARE
R/O NO.42, 6TH CROSS,
SWIMMING POOL EXTN,
MALLESWARAM,
BENGALURU 560 003.
32. B.R. KRISHNA MURTHY
S/O LATE KENCHAPPA
MAJOR
NO.21/B, TIGLALARA ST
MAHABOOTHARAGALLI CROSS
RAMANAGARAM TOWN,
571511.
... RESPONDENTS
(BY SRI. SANKET M YENAGI FOR R28,R24 TO 27, 29 TO 31;
SRI. M A AZEEZ KHURAISHI, ADVOCATE FOR C/R28,
R1,8,10,11,13,14,32 SERVED;
V/O DATED 23.10.2017,
NOTICE TO R18 & 21 HELD SUFFICIENT;
R12 SERVED V/O DATED 05.02.2019,
R2, R4 TO 7, R15,R17,R19, R20, R22 & R23
HELD SUFFICIENT)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER PASSED BY THE SR. CIVIL JUDGE AND
CJM AT RAMANAGARAM, ON I.A.24 TO 27 IN FPD NO. 5/1997
DATED 31.7.2017 AT ANNEX-P BY EXERCISING THE
SUPERVISORY JURISDICTION OF THIS COURT.
7
IN W.P. NO. 51343/2014:
BETWEEN:
1. SRI. A.K.ABDUL NASEER
S/O ABDUL KHALAQ,
AGED ABOUT 53 YEARS,
2. SMT. SHAHEEN TAJ
S/O ABDUL KHALAQ
AGED ABOUT 59 YEARS,
3. MRS. SHOWAR @ SHATAJ
D/O ABDUL KHALAQ
AGED ABOUT 65 YEARS,
4. MRS. SAYEEDA BEGUM @ HASEENA
D/O ABDUL KHALAQ
AGED ABOUT 61 YEARS,
5. MRS. HAJIRA BEGUM
D/O ABDUL KHALAQ
AGED ABOUT 47 YEARS,
6. MRS. SABEHA
D/O ABDUL KHALAQ
AGED ABOUT 51 YEARS,
7. MRS. NASREEN TAJ
S/O ABDUL KHALAQ
AGED ABOUT 59 YEARS,
8. MRS. SHAMEEM
D/O ABDUL KHALAQ
AGED ABOUT 62 YEARS,
PETITIONERS NO.1 TO 8 ARE
R/A NO.44, DAVIS ROAD,
RICHARDS TOWN,
BENGALURU-560 005.
PETITIONERS NO.2 TO 4 SENIOR CITIZENSHIP
BENEFIT NOT CLAMIED.
... PETITIONERS
(BY SRI. A S MAHESH, ADVOCATE)
AND:
1. ABDUL BARI
S/O ABDUL JABBAR,
AGE MAJOR,
8
2. ABDUL SAYEED
S/O ABDUL JABBAR,
AGE MAJOR,
3. ABDUL SIRAJ
S/O ABDUL JABBAR,
AGE MAJOR,
RESPONDENT NO.3 IS DELETED AS PER
V.C.O. DATED 23.10.2017.
4. TANVEER AHMED
S/O ABDUL JABBAR,
AGE MAJOR,
5. ABDUL KAREEM
S/O ABDUL JABBAR,
AGE MAJOR,
RESPONDENTS NO.1 TO 5 ARE
R/O NO.47
NEW SAYYAJI RAO ROAD,
BAMBOO BAZAR,
MYSORE-570021
6. MRS. DR. HUMERA RASHID
W/O RASHID AHAMED KHAN
D/O A.K. ABDUL KHALAQ,
FRAZER TOWN,
BENGALURU-560 005
7. A.K.MOHAMMED SHARIEF
S/O LATE A.S. ABDUL KAREEM,
MAJOR,
R/AT CHARELE CHAMBAL ROAD,
COX TOWN,
BENGALURU-560 005
8. A.K. ABDUL SAMAD
S/O LATE A.S. ABDUL KAREEM
MAJOR,
M/S KAREEM SILK,
INTERNATIONAL J.F,
11/12, CITY POINTED
NO.13, INFANTRY ROAD,
BENGALURU-560 001
9. SMT. AZEEZUNISSA
W/O LATE A ABDUL KHUDDUR,
MAJOR,
R/A NO.7, SPENCER ROAD,
FRAZER TOWN, BENGALURU-560 005.
9
RESPONDENT NO.9 DELETED AS PER
V.C.O DATED 23.10.2017
10. ISHRATH BEGUM
W/O DR. ABDUL WAJID KHAN,
MAJOR
R/A NO.47, NEW SAYYAJI RAO RAOD,
BAMBOO BAZAR,
BENGALURU 5700021.
11. ULFAL BEGUM
W/O ABDUL KHUDDUS
AGE: MAJOR
R/O GAFUR MANZIL,
CUCHOREA, SANVARDEM,
GOA 403706.
12. SURVATH BEGUM
W/O ASIF HUSSAIN
MAJOR,
R/O NO.47(M4)
NEW SAYYAJI RAO ROAD,
BAMBOO BAZAR
MYSORE 570021.
13. NIKHAT JAHAN
W/O AMJATH INAMDAR
MAJOR, SALES TAX
CONSULTANT AZAD LANE,
BELGAUM 590001.
14. MR. ADIL AHMED
S/O A.K. AHMED SHARIF
MAJOR
15. MR. KABID AHMED
S/O A.K. AHMED SHARIFF
MAJOR
16. MR. NOWHER AHMED
S/O A.K. AHMED SHARIF, MAJOR
RESPONDENTS NO.14 TO 16 ARE
R/O NO.192, IST CROSS,
SUBHASHNAGAR,
OLD BENGALURU-MYSORE ROAD,
MYSORE 700017
17. MRS. JABEEN TAJ
MAJOR
10
D/O A.K. AHMED KHAN
W/O ZAFRULLA KHAN
R/O NO.L34, IST FLOOR,
8TH CROSS, SHIVAJI RAOD,
N.R. MOHALLA
MYSORE 570017.
18. MRS. NASRATH BEGUM
MAJOR
W/O ABDUL HAMEED,
NO.18, SIDDIQNAGAR,
B-LAYOUT,
BANNI MANTAP
MYSORE 570015.
19. MRS. YASMEEN TAJ
MAJOR
W/O DRAVESH AHMED
DR. NO.192, IST CROSS,
SUBHASHNAGAR,
OLD BENGALURU-MYSORE ROAD,
BENGALURU 560 005.
20. MRS. MUDDASIN BEGUM
W/O R. LPARVEZ AHMED KHAN,
MAJOR, NO.506,
15TH L MAIN, 3RD BLOCK,
KORAMANGALA,
BENGALURU 560 034.
21. MRS. TABASSUM BEGUM
W/O SAJJAD SALESH
MAJOR
NO.18, CUNNINGHAM ROAD,
BENGALURU 560 052.
22. MISS. LUBNA BEGUM
D/O LATE A.K. AHMED
SHARIFF, MAJOR
DR. NO.192, IST CROSS,
SUBHASHNAGAR,
AHAMED KHAN
D/O A.K. ABDUL OLD
BENGALURU-MYSORE
MYSORE 570017.
23. MISS JAIYBU SHERIFF
D/O LATE A.K. AHMED
SHARIFF, MAJOR
DR. NO.192, I ST CROSS,
11
SUBHASHNAGAR,
OLD BENGALURU-MYSORE ROAD,
BENGALURU 570017.
24. ABDUL NAYEEM
S/O A.K. ABDUL SUBHAN
MAJOR, NO.7, NANDHI
DURG ROAD, BENSON TOWN,
BENGALURU 560 045.
RESPONDENTS NO. 24 DELETED AS PER
V.C.O DATED 14.11.2014.
25. FAREED SUBHAN
S/O A.K. ABDUL SUBHAN
MAJOR
NO.7, NANDHI DURG ROAD,
BENSON TOWN,
BENGALURU 560 045.
26. HINA KAUSER
W/O SHAKEEL AHMED
D/O SUBHAN
MAJOR, NO.7,
NANDHI DURGA ROAD,
BENSON TOWN,
BANGLAORE 560 045.
27. MRS. JASMEEN SUBHAN
W/O LATE ABDUL
SUBHAN, MAJOR
NO.7, LNANDHI DURG ROAD,
BENSON TOWN,
BENGALURU 560 045.
SINCE DECEASED BY HER LRs.
R24 to R26.
AMENDED AS V.C.O DATED 3.10.2017.
28. SHAIK NASEER
S/O A.S. DAWOOD
MAJOR, R/O NO.41,
MOSQUE COMLPLEX, M.M. ROAD,
FRAZER TOWN,
BENGALURU 560 045.
29. USMAN
S/O LATE KAREEM KHAN
MAJOR
NO.948, 6TH MAIN,
BTM MICO LAYOUT,
2ND STAGE, BENGALURU 560 076.
12
30. SANJAY KUMAR GUPTA
S/O RADHYLAL GUPTA
MAJOR
31. SMT. MANISHA GUPTA
W/O RADHYLAL GUPTA
MAJOR
RESPONDENTS NO. 30 & 31 ARE
R/O NO.42, 6TH CROSS,
SWIMMING POOL EXTN,
MALLESWARAM,
BENGALURU 560 003.
32. B.R. KRISHNA MURTHY
S/O LATE KENCHAPPA
MAJOR
NO.21/B, TIGLALARA ST
MAHABOOTHARAGALLI CROSS
RAMANAGARAM TOWN,
571511.
33. MRS. IFFATH SHIRAJ,
MAJOR,
W/O LATE ABDUL SHIRAJ,
34. SMT. FIBA SULTHANA,
MAJOR,
D/O LATE ABDUL SIRAJ,
35. SRI. ABDUL SHAZAN,
MAJOR,
S/O LATE ABDUL SIRAJ,
PROPOSED RESPONDENT NO.33 TO 35
ARE RESIDING AT HOUSE NO.31,
5TH CROSS, S K GARDEN,
BENGALURU - 560 046.
36. MRS. NAFISA BEGUM
W/O LATE MOHAMMED SHERIFF
MAJOR,
37. ABDUL REHAMAN,
S/O LATE MOHAMMED SHERIF,
MAJOR,
38. MR. AFAQUE AHMED,
S/O LATE MOHAMMED SHERIF,
MAJOR
13
39. MR. FAYAK AHAMED
S/O LATE MOHAMMED SHERIF,
40. SMT. FARHANA BEGUM,
D/O LATE MOHAMMED SHERIF,
MAJOR,
41. SMT. ZEEBA BEGUM,
D/O LATE MOHAMMED SHERIFF,
MAJOR,
42. SMT. ROHEE BEGUM,
D/O LATE MOHAMMED SHERIF,
MAJOR,
RESPONDENTS NO. 37,38,40,41,42 ARE
RESIDING AT HOUSE NO.45, 1ST FLOOR,
VIVEKANANDA NAGAR,
BENGALURU - 3.
43. SRI. IFFZAR AHAMMED,
S/O LATE AZEEDUNNISA,
MAJOR,
44. SRI ANEEZ AHAMED
S/O LATE AZEEZUNNISA
45. SRI KHADEER AHEMMED
S/O LATE AZEEZUNNISA,
MAJOR,
RESPONDENTS NO. 43 TO 45 ARE
R/AT NO.2, SPENSORS ROAD,
FRAZOR TOWN,
BANGALORE-05.
46. SURIYA
D/O LATE AZEEZUNNISA
47. SMT. MOHSIN
D/O LATE AZEEZUNISSA,
MAJOR,
R/AT NO.43,
BEHIND KSRTC BUS DEPOT,
BUNNIMANTAPA,
MYSORE-15.
48. SMT. MASHOODA
D/O LATE AZEEZUNNISSA,
MAJOR,
R/AT NO.401,
14
ULFA CHOLASTAN APARTMENTS,
103, WHEELER'S ROAD EXTENSION,
COX TOWN, BANGALORE-5.
49. SMT. PARVEEN
D/O LATE AZEEZUNNISSA
MAJOR,
50. SMT. TAHSEEN
D/O LATE AZEEZUNNISSA
MAJOR,
51. SMT. AIYSHA
D/O LATE AZEEZUNNISSA,
MAJOR,
RESPONDENTS NO.48 TO 51 ARE
R/AT NO.2,
SPENSOR ROAD,
FRAZOR TOWN, BANGALORE-5.
... RESPONDENTS
(BY SRI. M A AZEEZ KHURAISHI, ADVOCATE FOR R28 TO 31;
SRI. ASHOK PATIL, ADVOCATE FOR R20,
R1,4,6,7,8,10 TO 16,18,19,21 TO 26,32, PROPOSED R46;
PROPOSED R47, PROPOSED R48, R2,
R5,R39,R44,R45,R50,R51 ARE SERVED;
V.C.O DATED 03.10.2017, R24 TO 26 ARE TREATED AS
LR.S OF DECEASED R27;
V.C.O DATED 03.10.2017, R17 HELD SUFFICIENT;
V.C.O DATED 23.10.2017, R3 & 9 DELETED;
PROPOSED R36 SERVED;
V.C.O DATED 20.06.2019 R33 TO 35, 37,38,40 TO 42
& 49 HELD SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 18.10.2014 PASSED ON
I.A.NO.19 ON FDP NO.5/97 ON THE FILE OF PRL.SR.CIVIL
JUDGE & JMFC RAMANAGAR VIDE ANN-L.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
15
ORDER
The petitioners in W.P.No.51343/2014 being the legal representatives of the deceased original plaintiff by name Mr. A.K. Abdul Khalak in a civil suit, inter alia, for a decree of partition in O.S.No.153/1970 later renumbered as O.S.No. 6/1979 are invoking the writ jurisdiction of this Court for assailing the order dated 18.10.2014 made by the Principal Civil Judge and JMFC at Ramanagaram, whereby their application in IA No. 19 filed under Section 4 of the Partition Act, 1893 (hereafter referred to as 'Act' for short) has been rejected. After service of notice, the contesting respondents having entered appearance through their counsel resist the writ petition.
2. Learned counsel for the petitioners argues that the impugned order is liable to be invalidated since it contains the following errors apparent on its face:
a) the court below proceeds on a wrong assumption of law that the provisions of Section 4 of the Act were not invokable belatedly, when no limitation is prescribed for such invocation; and 16
b) the rulings cited from the side of the petitioners having not been duly adverted to at all, a manifesting justice is caused to them;
so arguing, he seeks for allowing of the writ petition.
3. Both the learned counsel appearing for the contenting respondents who are buyers of the property pendente lite per contra contend that they do not have much objection to the petitioners' application filed under Section 4 of the Act being treated on merits at all; the only apprehension emanating from the track record of the petitioners is that, in the guise of pressing the said application, they may protract the FDP proceedings indefinitely so that fruits of the preliminary decree may not reach the hands of these respondents at all; these respondents do not have objection for the petitioners retaining the "dwelling house" situate in item No.1 of 'B' schedule property provided that they do not object to respondents taking the rest of said item of property which they have bought by four registered sale deeds and subject to petitioners paying the amount of valuation of the said "dwelling house".
3. With the consent of both the parties, the matter is taken up for final disposal. I have heard the 17 learned counsel for the petitioners and the learned counsel appearing for the contesting respondents. I have perused the bulky writ petition papers. I have also adverted to the rulings cited at the Bar.
4. The first contention of the petitioners that the dismissal of their application under Section 4 of the Act on the ground of delay and latches is unsustainable, has force. Section 4 of the act or any provision of law does not prescribe any period of limitation for filing the application. The Apex Court in the case of case of GHANTESHER GOSH VS. MADAN MOHAN GOSH, AIR 1997 SC 471, at paragraph No.17 has observed as under:
"17. As a result of the aforesaid discussion, it must be held that Section 4 of the Act can validly be pressed in service by any of the co-owners of the dwelling house belonging to undivided family pending the suit for partition till final decree is passed and thereafter even at the stage of execution of the final decree for partition so long as the execution proceedings have not effectively ended ant he decree for partition has not been fully executed and satisfied by putting the shareholders in actual possession of their respective shares. Beyond that stage, however, Section 4 will go out of commission".
Thus, this contention of the learned counsel for the petitioners is substantiated.
18
5. The second contention of the petitioners that the Court below has not adverted to the rulings cited on their behalf again is true; the Court below has cursorily mentioned the citations but has not discussed the ratio laid down therein and their invokability to the case of the petitioners. Thus, the impugned order suffers from the error apparent on its face warranting indulgence of this Court in its writ jurisdiction to set the injustice at naught.
6. Since the petitioners have taken a fair and reasonable stand that they have no objection for the Court below considering the matter afresh as to the extent of the "dwelling house" situate in the subject property and its valuation, much of the task of this Court has vanished away in thin air. However, they insist for a direction to the Court below to deliver the possession of residue of item No.1 of the 'B' schedule property after demarcating the "dwelling house" and further to permit them to receive the value of the same from the petitioners. There is force in this submission.
7. In the above circumstances, no other ground having been urged, this writ petition succeeds; the impugned order is set at naught; the matter is remanded 19 to the Court below for consideration afresh within a period of two months with a direction to report compliance to the Registrar General of this Court.
It is needless to mention that the Court below shall ascertain the extent of the "dwelling house" and carve out the same from the residue for retention by the petitioners on payment of its value as on 01.04.2014 to be determined after hearing both the sides and after taking the assistance of experts at the cost of both the sides.
It is made clear that the rights of the petitioners are confined to the "dwelling house" only; the remaining area/portion of the item No.1 of the 'B' schedule property, if any needs to be delivered to the contesting respondents i.e., the buyers pendente lite.
It is further made clear that the said contesting respondents shall execute and register the necessary conveyance in favour of the petitioners herein, at their own cost to vouch-safe the title of the petitioners to the "dwelling house" of course, on petitioners' depositing the same in the Court below for the benefit of the contesting respondents; the petitioners shall not object to the 20 respondents being put in possession of the residue of the subject property pursuant to decree in question.
The Court below shall have all the powers to make such orders or directions as may be required for giving effect to the intent & content of this order.
8. In view of disposal of this writ petition today, the cases in connected W.P.Nos. 37758-37761/2017 filed between the very same parties have been rendered infructuous and accordingly, are disposed off.
Costs made easy.
All the pending IAs filed in both the writ petitions if any, pales into insignificance.
Sd/-
JUDGE Bsv