Karnataka High Court
Smt.Bibanbi, W/O Allabax Betageri, vs Saleem Ahmed on 30 January, 2014
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE N.KUMAR
WRIT PETITION No.60280/2010
c/w 60281/2010 (GM-CPC)
BETWEEN:
IN WRIT PETITION No.60280/2010
1. SMT.BIBANBI,
W/O ALLABAX BETAGERI,
SINCE DECEASED BY HER LRS
(a) SMT. BIBI ZOHRA
W/O IMAMKHAN SHILLEDAR
AGE 65 YEARS, OCC:HOUSHOLD WORK
R/O OPPOSITE TO NIZAMUDDIN COLONY,
NEAR VIDYARANYA HIGH SCHOOL
DHARWAD
(b) ABDUL GAFFAR S/O ALLABAX BETAGERI
AGE 59 YEARS, OCC:BUSINESS
R/AT BIRBAND GALLI, OLD HUBLI
DHARWAD DIST
(c) ABDUL KHADAR S/O ALLABAX BETAGERI
AGE 57 YEARS, OCC:BUSINESS
R/AT BIRBAND GALLI, OLD HUBLI
:2:
DHARWAD DIST
(d) SADIQALI S/O ALLABAX BETAGERI
AGE 54 YEARS, OCC:BUSINESS
R/AT BIRBAND GALLI, OLD HUBLI
DHARWAD DIST
(e) SMT.ZUBEDABI W/O ALLABAX INAPURI
AGE 52 YEARS, OCC:HOUSEHOLD WORK
R/AT MULLA BADA, HUBLI
DHARWAD DIST
2. SMT. SHARFUNISSA
W/O SAYYED GULAMALI TALLUR
AGE 52 YEARS, OCC:HOUSEHOLD WORK
R/AT POST MASTERS QUARTERS
RAILWAY POST OFFICE, DHARWAD DIST
3. SMT. MAHABOOBI
W/O KHALANDAR TEENWALE
AGE 54 YEARS, OCC:HOUSEHOLD WORK
R/AT KANTI GALLI, DHARWADD
DHARWAD DIST
4. ABDULRAHIMAN MOHAMMADSAB KHAZI
AGE 64 YEARS, OCC:PENSIONER
R/T NIZAMUDDIN COLONY
OPP:VIDYARANYA SCHOO, DHARWAD
... PETITIONERS
(By Sri. F V PATIL, ADVOCATE)
AND
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1. SALEEM AHMED
S/O NOOR AHAMED KHAZI,
AGE 40 YEARS, OCC:AGRICULTURE
R/T TADAKOD VILLAGE
DHARWAD TALUK & DISTRICT
2. SMT. AISHABI W/O SULEMAN SILEDAR
AGE 71 YEARS, OCC:HOUSEHOLD WORK
R/AT BANGALED ONI, TADAKOD VILLAGE
DHARWAD TALUK & DIST
... RESPONDENTS
(By Sri. MADANMOHAN M KHANNUR, ADVOCATE, FOR R1;
R2 SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD.16/12/2009 PASSED ON I.A.NO.I
IN O.S.NO.32/2008 ON THE FILE OF THE COURT OF THE I
ADDL.CIVIL JUDGE(SR.DN) AND CJM, DHARWAD VIDE
ANNEXURE-J AND REJECT THE SAID I.A.NO.I BY
ALLOWING THIS WRIT PETITION WITH COSTS.
IN WRIT PETITION No.60281/2010
1. SMT.BIBANBI,
W/O ALLABAX BETAGERI,
SINCE DECEASED BY HER LRS
(a) SMT. BIBI ZOHRA
W/O IMAMKHAN SHILLEDAR
AGE 65 YEARS, OCC:HOUSHOLD WORK
R/O OPPOSITE TO NIZAMUDDIN COLONY,
NEAR VIDYARANYA HIGH SCHOOL
:4:
DHARWAD
(b) ABDUL GAFFAR S/O ALLABAX BETAGERI
AGE 59 YEARS, OCC:BUSINESS
R/AT BIRBAND GALLI, OLD HUBLI
DHARWAD DIST
(c) ABDUL KHADAR S/O ALLABAX BETAGERI
AGE 57 YEARS, OCC:BUSINESS
R/AT BIRBAND GALLI, OLD HUBLI
DHARWAD DIST
(d) SADIQALI S/O ALLABAX BETAGERI
AGE 54 YEARS, OCC:BUSINESS
R/AT BIRBAND GALLI, OLD HUBLI
DHARWAD DIST
(e) SMT.ZUBEDABI W/O ALLABAX INAPURI
AGE 52 YEARS, OCC:HOUSEHOLD WORK
R/AT MULLA BADA, HUBLI
DHARWAD DIST
2. SMT. SHARFUNISSA
W/O SAYYED GULAMALI TALLUR
AGE 52 YEARS, OCC:HOUSEHOLD WORK
R/AT POST MASTERS QUARTERS
RAILWAY POST OFFICE, DHARWAD DIST
3. SMT. MAHABOOBI
W/O KHALANDAR TEENWALE
AGE 54 YEARS, OCC:HOUSEHOLD WORK
R/AT KANTI GALLI, DHARWADD
DHARWAD DIST
4. ABDULRAHIMAN MOHAMMADSAB KHAZI
AGE 64 YEARS, OCC:PENSIONER
R/T NIZAMUDDIN COLONY
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OPP:VIDYARANYA SCHOOL, DHARWAD
... PETITIONERS
(By Sri. F V PATIL, ADVOCATE)
AND
1. SMT. FATIMA
W/O SALEEM AHMED KHAZI,
AGE 34 YEARS, OCC:AGRICULTURE
R/T TADAKOD VILLAGE
DHARWAD TALUK & DISTRICT
2. SMT. AISHABI W/O SULEMAN SILLEDAR
AGE 71 YEARS, OCC:HOUSEHOLD WORK
R/AT BANGALED ONI, TADAKOD VILLAGE
DHARWAD TALUK & DIST
... RESPONDENTS
(By Sri. MADANMOHAN M KHANNUR, ADVOCATE, FOR R1;
R2 SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DTD.16/12/2009 PASSED ON I.A.NO.I
IN O.S.NO.33/2008 ON THE FILE OF THE COURT OF THE I
ADDL.CIVIL JUDGE(SR.DN) AND CJM, DHARWAD VIDE
ANNEXURE-J AND REJECT THE SAID I.A.NO.I BY
ALLOWING THIS WRIT PETITION WITH COSTS.
THESE PETITIONS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT, MADE THE FOLLOWING:
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ORDER
As the question involved in both these Writ Petitions is one and the same, though the respondents are different, they are taken up for consideration together and disposed of by this common order.
2. It is the specific case of the respondents in these two proceedings that, earlier land bearing Sy. No. 97 measuring 13 acres 2 guntas which is situated at Tadakod Village, Dharwad Taluk, belonged to Suleman Shilledar. In consolidation proceedings the said R.S. No. 97 was re- numbered as Block No. 204. They contend that, as the said Suleman Shilledar had no issues, he died leaving behind his wife Ayeshabi who succeeded to the said property. Accordingly, her name was entered in the record of rights and she was in lawful possession and enjoyment of the said property. The petitioners herein filed O.S. No. 58/1995 against the said Ayeshabi and against one Abdul Rahaman :7: Kazi for partition and separate possession of their share in the aforesaid property. The suit was contested and a judgment and decree came to be passed on 29.8.1998 granting the decree for partition.
3. Aggrieved by the said judgment and decree, Smt. Ayeshabi preferred R.A. No. 4/1999 before the II Addl. District Judge, Dharwad. The said appeal after contest came to be dismissed on 26.6.2002. Thereafter, the petitioners initiated final decree proceedings for separation of the share which is declared in FDP No. 4/2004. A Commissioner was appointed in the said proceedings who has now submitted a report giving particulars regarding how the property is to be divided in terms of the preliminary decree. Now it is at the stage of taking physical possession in terms of the final decree to be passed. At that stage, the respondents herein who are none other than the husband and wife, have filed suit O.S. No. 32/2008 and 33/2008 on the file of the Principal Civil Judge, Dharwad, for the relief that the decree :8: passed in O.S. No. 58/1995 on 29.8.1998 is null and void, is not binding on the plaintiffs and consequently for a decree of permanent injunction restraining the defendants in the suit from dispossessing of the plaintiff illegally and obstructing their peaceful possession.
4. The said suit is contested. In the said suit, they filed an application under Section 151 of CPC requesting for stay of further proceedings in FDP No. 4/2004 contending that Ayeshabi has bequeathed the said property in their favour on 30.3.1995 by way of an oral gift. Mutation entries have been made on the basis of the said gift. They are in possession of the property, they are the absolute owners of the property, they are not parties to the earlier proceedings and, therefore, if a final decree is passed and they are dispossessed, their valuable right to the property would be affected. :9:
5. The learned trial Judge in both the suits accepting the contention of the plaintiffs in the said suit has granted an order of stay. It is against the said order, these two Writ Petitions are filed.
6. I have heard the learned counsel appearing for the parties.
7. The earlier round of litigation was fought by Ayeshabi from 1995 up to 2004. She did not whisper in the said proceedings that she had bequeathed the property in favour of defendants herein. On the contrary, she set up a plea of adverse possession which did not find favour with the Court. Now, the suit for partition is decreed. Once the plea of adverse possession is negatived and a decree for partition is now passed, she is not the absolute owner of the entire property. That finding has attained finality. If a person who has no right to the property bequeaths the property, the : 10 : bequest has no value. The beneficiary of the bequest would get no right. Prima facie, the proceedings which are produced before the Court supports such a claim. If at all, the donor would be entitled to a share and that would be the property which is going to be allotted in the final decree proceedings. It is true that the respondents herein are not parties to the earlier proceedings. But, they are claiming title under the first defendant in the earlier suit and they are equally bound by the decree passed thereon. A decree which is validly passed, confirmed by the Appellate Court cannot be stayed in a proceedings initiated by a person who has no prima facie title. The learned Judge has not applied his mind, not kept the legal effect of the judgment passed earlier, and blindly on the ground that the plaintiffs in the said suit are not parties and believing an oral gift to be a prima facie case of title, without finding out whether the person who has made the bequest, has right in the light of the earlier judgment, has committed a serious error in exercising his extra-ordinary jurisdiction and granting stay of further proceedings of a : 11 : validly concluded legal proceedings. In that view of the matter, the impugned order cannot be sustained and it is liable to be set aside. Hence, I pass the following order : -
(a) Both the Writ Petitions are allowed.
(b) The impugned orders passed by the Court below is set aside.
(c) Application filed for stay under Section 151 CPC is dismissed.
Parties to bear their own costs.
SD/-
JUDGE ckl/-