Karnataka High Court
Sri. R. K. Liyakath Ali Khan vs Hazarath Ibrahim Ali Sha Charitable ... on 14 July, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.40588 OF 2017(GM-CPC)
BETWEEN:
HAZRATH IBRAHIM ALI SHAH CHARITABLE TRUST
OLD NO.10/1, PRESENT MUNICIPAL NO.10/3,
SADARAPATTRAPPA ROAD, DIVISION NO.40,
BENGALURU -560 002
REPRESENTED BY ITS AUTHORISED SIGNATORY
MR. JUNAID ALI
...PETITIONER
(BY SRI.ANIL KUMAR, ADVOCATE FOR
SRI.JAYATHEERTHA, ADVOCATE)
AND:
1. MR. R. K. LIYAKHAT ALI KHAN
S/O LATE SHA MOHAMED RAZA ALI SHA,
AGED ABOUT 62 YEARS,
13/8, HAKEEM MOHD GHOUSE KHAN LANE,
KUMBARPET, BENGALURU-560 002
2. MRS R K JAMEELUNNISSA
W/O MR M GHOUSE ALI BAIG,
AGED ABOUT 64 YEARS,
15C, 2ND STREET, CHANDI CHOWK ROAD,
CIVIL STATION BENGALURU
SINCE DEAD BY LRS
2
2A). SRI M MUJAHID ALI BAIG
S/O LATE MR M GHOUSE ALI BAIG
AGED ABOUT 53 YEARS,
15C, 2ND STREET, CHANDI CHOWK ROAD,
CIVIL STATION, SHIVAJINAGAR,
BENGALURU-560051
2B). SMT. M NAJMUS SEHER
D/O LATE MR M GHOUSE ALI BAIG,
AGED ABOUT 50 YEARS,
NO.546, RAZA E ELAHI, 26TH MAIN,
J P NAGAR I PHASE, BENGALURU 560078
2C). SRI M MAQSOOD ALI BAIG
S/O LATE MR M GHOUSE ALI BAIG
AGED ABOUT 45 YEARS,
NO.152, FLAT NO.206, II FLOOR,
NCN PARAMOUNT, II CROSS, NEAR NANJAMMA TEMPLE,
KARIANNAA PALYA, LINGARAJAPURAM,
BENGALURU.
3. MR MOHAMED BHAKTIAR ALI KHAN
S/O LATE SHA MOHAMED RAJA ALI SHA,
AGED ABOUT 77 YEARS,
# 546, RAZA-E-ELAHI, 26TH MAIN,
J.P. NAGAR I PHASE, BENGALURU-560 078
4. MR MOHAMMED JABIR ALI KHAN
S/O LATE SHA MOHAMED RAZA ALI SHA,
AGED ABOUT 46 YEARS,
RESIDING AT # 77/A, OFFICERS MADEL HOME COLONY,
T DASARAHALLI, PEENYA,
BENGALURU-560 047
5. MRS R K ASHRAFUNNISA
W/O LATE DR MOHAMMED AMANULLA,
AGED ABOUT 57 YEARS,
# 96, 3RD MAIN 6TH CROSS,
3
VIVEK NAGAR, FURTHER EXTENSION
BENGALURU-560 047
5A). SRI.MOHAMED ARIFULLA,
S/O LATE DR.MOHAMMED AMANULLA,
AGED ABOUT 40 YEARS,
NO.204, I FLOOR, NCN PARAMOUNT 152,
11TH CROSS, NEAR GANGAMMA TEMPLE,
KARAYANAPALYA, LINGARAJAPURAM,
ST.THOMAS TOWN, BENGALURU-560084.
5B). SMT. ANEESA SARWATH,
D/O LATE DR.MOHAMMED AMANULLA,
AGED ABOUT 49 YEARS,
NO.204, I FLOOR, NCN PARAMOUNT 152,
11TH CROSS, NEAR GANGAMMA TEMPLE,
KARAYANAPALYA, LINGARAJAPURAM,
ST.THOMAS TOWN, BENGALURU-560084.
5C). SMT. NAFEESA SARVATH,
D/O LATE DR.MOHAMMED AMANULLA,
AGED ABOUT 48 YEARS,
NO.204, I FLOOR, NCN PARAMOUNT 152,
11TH CROSS, NEAR GANGAMMA TEMPLE,
KARAYANAPALYA, LINGARAJAPURAM,
ST.THOMAS TOWN, BENGALURU-560084.
5D). SMT. SHAHEENA SARVATH,
D/O LATE DR.MOHAMMED AMANULLA,
AGED ABOUT 40 YEARS,
NO.204, I FLOOR, NCN PARAMOUNT 152,
11TH CROSS, NEAR GANGAMMA TEMPLE,
KARAYANAPALYA, LINGARAJAPURAM,
ST.THOMAS TOWN, BENGALURU-560084.
5E). SRI. HABIB KHAN,
FATHERS NAME NOT KNOWN,
HUSBAND OF LATE MRS. RAEESA SARVATH AND
SON-IN-LAW OF THE DECEASED
MRS.R.K, ASHRAFUNNISA, AGED MAJOR,
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NO.204, I FLOOR, NCN PARAMOUNT 152,
11TH CROSS, NEAR GANGAMMA TEMPLE,
KARAYANAPALYA, LINGARAJAPURAM,
ST.THOMAS TOWN, BENGALURU-560084.
5F). SRI.KASHIF AYAAN KHAN,
S/O SRI.HABIB KHAN,
AGED MAJOR,
NO.204, I FLOOR, NCN PARAMOUNT 152,
11TH CROSS, NEAR GANGAMMA TEMPLE,
KARAYANAPALYA, LINGARAJAPURAM,
ST.THOMAS TOWN, BENGALURU-560084.
5G). SMT.KEHKHUSSA KHAN,
D/O SRI. HABIB KHAN,
AGED MAJOR,
NO.204, I FLOOR, NCN PARAMOUNT 152,
11TH CROSS, NEAR GANGAMMA TEMPLE,
KARAYANAPALYA, LINGARAJAPURAM,
ST.THOMAS TOWN, BENGALURU-560084.
6. MRS R K PARVEEZ SULTHANA
W/O MR S M HUSSAIN RAZVI,
AGED ABOUT 52 YEARS,
NO.686, III MAIN II CROSS,
"A" BLOCK, SAHAKARNAGAR,
BENGALURU-560 092
7. MRS R K AKTHAR UNNISA
W/O MR TANVEER AHMED,
AGED ABOUT 50 YEARS,
RESIDING AT NO.1644, A
ARABIC COLLEGE, RASHAD NAGAR,
BENGALURU -560 045
8. MRS R K HASEEN TAJ
W/O LATE ATTAULLA SHARIEFF,
AGED ABOUT 40 YEARS,
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# 1230, 2ND CROSS, OPP INAM MOSQUE ROAD,
BASAVALINGAPPA LAYOUT,
NEAR SHAMPUR RAILWAY GATE,
ARABIC COLLEGE POST, RASHAD NAGAR,
BENGALURU-560 045
...RESPONDENTS
(BY SRI.R ABDUL REYAZ KHAN, ADVOCATE FOR R1 & R2(A-C);
SRI.SANTOSH GOGI, ADVOCATE FOR R3;
SRI.R.PURUSHOTHAM, ADVOCATE FOR R4, 5, 7 & 8;
R6, 5(A-G) ARE SERVED & UNREPRESENTED)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS
AND QUASH THE ORDER DTD: 29.8.2017 VIDE ANNEXURE-A
PASSED IN IA NO.1/17 FDP NO.25020/2014 ON THE FILE OF THE
LEARNED XXVIII ACC AND SJ, CH 29 MAYO HALL, BENGALURU [CH-
29] AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the impleading applicant/purchaser feeling aggrieved by the order of the learned Judge who has declined an opportunity to the present petitioner to lead evidence to work out his equitable rights and claim share under original defendant No.7. The said application is rejected which is under challenge. 6
2. The respondent Nos.1 and 2 instituted a suit for partition and separate possession. In the said suit, the present petitioners' vendor was arrayed as defendant No.7. The said suit was decreed by judgment and decree dated 15.04.2006. In the said suit, petitioners vendor i.e., defendant No.7 set up title based on Hiba executed by her husband. Said defendant No.7 succeeded in proving oral Hiba in her favour. The Trial Court declared defendant No.7 as the absolute owner of Block 'A' and 'B' properties. The present petitioner was arrayed as defendant No.13. The present petitioner filed an application seeking leave to file written statement. The said application was rejected. The present petitioner feeling aggrieved by the judgment and decree of the Trial Court preferred an appeal before the Division Bench of this Court in RFA.No.1883/2006. Said appeal was connected with other two appeals. The Division Bench though proceeded to dismiss the appeal filed by the petitioner, however, 7 reserved liberty to work out his equitable rights in the manner known to law if he is able to produce the registered sale deed.
3. Now on the strength of the registered sale deed, the present petitioner filed impleading application seeking leave of the Court to participate in the final decree proceedings. By impugned order, the FDP Court has declined an opportunity to the present petitioner to lead evidence to assert his right in the property based on registered sale deed. The FDP Court was of the view that there was already a partition suit and an appeal is preferred before the Division Bench of this Court and therefore, the FDP Court was of the view that there is no direction issued by this Court permitting the present petitioner to lead evidence. It is in this context, the FDP Court has declined to allow the prayer made by the present petitioner and consequently, application filed in I.A.No.1/2017 is rejected.
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4. Heard learned counsel for the petitioner and learned counsel for the respondents. Perused the order under challenge.
5. Before I advert to the facts of the case, I deem it fit to cull out the findings recorded by the Division Bench of this Court in batch of appeals on point No.3. The point No.3 reads as follows:
"11. Re. Point No.3:
Defendant No. 13 seems to have purchased A and B schedule properties under the registered sale deed from the 7th defendant. He did not utilise the opportunity given to him to file the written statement and produced the sale deed before the trial Court. Even before this Court though he has taken the trouble of filing the appeal the sale deed is yet to see the light of the day. If there is a sale deed executed by the 7th defendant. in view of the finding recorded by the trial Court as well as this Court that the Hiba in favour of the 7th defendant is valid, the sale deed also would be valid if there is a sale deed. Therefore, in the absence of production of the sale deed before this court, the question of going into the title of the property does not arise and it cannot be said that he is an aggrieved person. The appeal preferred by him is misconceived and not maintainable. However, defendant No.13 is at liberty to work out the remedies in the manner known to law if it is a sale deed registered."9
6. If the observations made by the Division Bench is taken into consideration, then I am of the view that the order of the FDP Court declining an opportunity to the present petitioner to lead evidence is erroneous and therefore, would warrant interference at the hands of this Court.
7. It is trite law that in a partition suit, a purchaser has no say. While determining the quantification, a purchaser of property cannot seek adjudication of his right in a preliminary decree. However, in the final decree proceedings, a purchaser is a necessary party and he is very much entitled to seek adjudication of his equitable rights. A purchaser would step into the shoes of his vendor and in terms of quantification done in the preliminary decree, the purchaser can seek equity by stepping into the shoes of his/her vendor. However, having regard to the peculiar nature of controversy in the present case on hand, the petitioner's vendor was in fact declared to be the absolute owner based on an oral gift. If that is so, if there is registered sale deed in favour of the 10 present petitioner herein, he is entitled to lead evidence to that limited extent and seek leave of the Court to allot those properties which were declared to be the absolute properties of petitioner's vendor i.e., defendant No.7 in the suit. Therefore, I am of the view that the petitioner is entitled for an opportunity to lead limited evidence. Since registered sale deed was not produced either in the suit or before the FDP Court, he is entitled to lead limited evidence to that extent and if he succeeds in demonstrating that there is registered sale deed in his favour, then the properties which were held to be absolute properties of defendant No.7 are to be allotted exclusively to the share of the present petitioner herein.
8. In that view of the matter, the order under challenge is not at all sustainable. Hence, I pass the following:
ORDER
(i) The writ petition is allowed;11
(ii) The impugned order dated 29.08.2017 passed on I.A.No.1/2017 in FDP.No.25020/2014 is set aside. Consequently, I.A.No.1/2017 is allowed;
(iii) The petitioner is permitted to produce copy of registered sale deed and thereafter seek adjudication of his rights in pending final decree proceedings.
Sd/-
JUDGE CA