Karnataka High Court
Mr Dost M Uhammad S/O. Lalmuhmmad Pathan vs Smt Tabassum W/O. Ibrahim Magdum on 8 September, 2023
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NC: 2023:KHC-D:10219
MFA No. 102748 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 102748 OF 2023 (CPC)
BETWEEN:
MR. DOST MUHAMMAD
S/O LALMUHMMAD PATHAN
R/O. PATHAN BUNGLA, BYE PASS N-H-4,
NIPPANI, TQ: NIPANI,
DIST: BELAGAVI-560001.
...APPELLANT
(BY SRI. SHADAB HASANSAB YADAWAD, ADVOCATE)
AND:
1. SMT. TABASSUM W/O IBRAHIM MAGDUM
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: 202/B, MUSEUM TERRACE APARTMENT,
29 MUSEUM ROAD, BANGALORE-560001.
2. SOU LATIFA W/O SALIM PATHAN
AGE: 58 YEARS, OCC: TEACHER,
R/O: NEAR BEO OFFICE, SHAHU NAGAR,
NIPANI, TQ: NIPANI, DIST: BELAGAVI.
Digitally
signed by
SAROJA
SAROJA
HANGARAKI
3. HABIBA W/O IFTHEKAR SAYED
HANGARAKI Date:
2023.09.14
14:35:38
AGE: 58 YEARS, OCC: HOUSEWIFE,
+0530
R/O: A2, FLAT NO. 401,
KUMAR PRINCE TOWN, UNDRI,
PUNE-411048.
4. SHRI. FAZALMUHAMMAD
S/O LALMUHAMMAD PATHAN
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: NEAR VANI MATH,
GAVANI ROAD NIPANI, TQ: NIPANI,
DIST: BELAGAVI-591237.
...RESPONDENTS
(SRI.JAGADISH HALASHETTI, ADVOCATE FOR R1;
R2 TO R4 NOTICE DISPENSED WITH)
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NC: 2023:KHC-D:10219
MFA No. 102748 of 2023
THIS MFA IS FILED U/O.43 RULE 1(R) R/W SECTION 104 OF
THE CODE OF CIVIL PROCEDURE, AGAINST THE ORDER DATED
17.04.2023, PASSED IN O.S.NO.06/2022 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
AT NIPPANI, PARTLY ALLOWING THE IA NO.1 FILED U/O. 39 RULE
1 AND 2 R/W SEC.151 OF CPC.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is by defendant No.1 challenging the order dated 17.04.2023 in O.S.No.6/2022 on the file of Senior Civil Judge, Nippani.
2. In a suit for partition filed by the sister of all the defendants on an application filed by the plaintiff under Order 39 Rules 1 and 2 of Code of Civil Procedure, the Court has granted an order of status-quo till the disposal of the suit in respect of the suit schedule properties. The order of status-quo is granted against the first defendant.
3. Aggrieved by the said order, the present miscellaneous first appeal is filed by defendant No.1.
4. Learned counsel for defendant No.1/appellant would contend that the properties at Sl.Nos.'C', 'D', 'E' and -3- NC: 2023:KHC-D:10219 MFA No. 102748 of 2023 'G' are the properties gifted by the father of defendant No.1 and defendant No.4 in the year 1986 and to that effect there is a mutation entry.
5. He would further submit that on 08.04.1999 defendant No.4 gifted the 'C', 'D', 'E' and 'G' properties in favour of defendant No.1 and to this effect there is a mutation entry. He would further submit that the parties being the Mohammadans, oral gift is very much recognized, as such defendant No.1 has acquired valid title over the properties at C, D, E and G of the schedule.
6. It is also his contention that on 12.09.1997 defendant No.1 has purchased 'F' schedule property and that property is also self-acquired property of defendant No.1. This being the position, it is his contention that the trial Court could not have granted status-quo order against defendant No.1 in respect of all the properties described in the plaint.
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7. Sri.Jagadish Halashetti, learned counsel for respondent No.1 appeared through video conference and submits that all the contentions raised by the appellant have to be proved in trial and trial Court is justified in granting injunction.
8. This Court has considered the contentions raised at the bar and also perused the impugned order.
9. The trial Court has passed an order of status- quo on the premise that the validity of the gift deed in favour of defendant No.1 and defendant No.4 has to be decided after full fledged trial. While granting injunction the Court is only confined to prima facie case and balance of convenience and question of irreparable loss and injury in case injunction not granted to the applicant.
10. Since it is well settled principle of Mohammadan law that there can be a valid oral gift by a Mohammadan in favour of any Mohammadan prima facie this Court finds that there is a gift deed in favour of defendant No.1 and -5- NC: 2023:KHC-D:10219 MFA No. 102748 of 2023 defendant No.4 by their father and later by defendant No.4 in favour of his brother defendant No.1.
11. These gifts are very much evidenced in mutations which are placed before the Court. In the plaint the plaintiff has not questioned the aforementioned gifts and as far as 'F' schedule property is concerned, prima facie the property stands in the name of defendant No.1 pursuant to the registered sale deed executed in his favour in the year 1997.
12. This being the position, this Court is of the view that prima facie case is not made out by the plaintiff to grant the relief of injunction.
13. It is also relevant to record here that learned counsel for the appellant on specific query put by the Court, on instructions from the appellant, would submit that the appellant has no intention to alienate the suit schedule properties. The submission is placed on record. -6-
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14. For the aforementioned reasons, this Court is of the view that the order of status-quo granted in respect of schedule 'C' to 'G' properties are liable to be set aside and accordingly set aside.
15. The status-quo order granted in respect of Item Nos.1 and 2 properties shall continue till the disposal of the suit.
16. The submission of the learned counsel for the appellant that the appellant will not alienate 'C' to 'F' schedule properties till the disposal of the suit is also placed on record.
17. With these observations, the appeal is allowed in part.
Sd/-
JUDGE SH LIST NO.: 1 SL NO.: 21