Karnataka High Court
Syed Mohammead Adil Pashakhadri vs Syed Adil Basha Khadri on 24 November, 2021
Author: B.M.Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 18434/2021 (GM-CPC)
BETWEEN :
SYED MOHAMMEAD ADIL
PASHAKHADRI
AGED ABOUT 66 YEARS
S/O LATE JANAB SYED
MOHAMMAD AKHIL
PASHA KHADRI
SAJJADANASHEEN
R/AT DARGA HAZARATH
MARDAN-E-BAIB
SHIVANASAMUDRAM
KOLLEGALA TALUK
CHAMARAJANAGARA DISTRICT - 571 440.
... PETITIONER
(BY SRI. SUBHASH SRINIVASA RANGACHAR., ADVOCATE)
AND :
SYED ADIL BASHA KHADRI
SINCE DECEASED BY LRS
1. SYED HASNA MUSSANNA
SHA KHADRI
AGED ABOUT 51 YEARS.
2. SYED ISRARA SHA KHADRI
AGED ABOUT 49 YEARS,
2
3. SYED VAZEER PASHA
AGED ABOUT 43 YEARS,
4. SYED AKHIL SHA
AGED ABOUT 38 YEARS,
RESPONDENTS NO.1 TO 4
ARE ALL SONS OF LATE
SYED ADIL BASHA KADRI
R/AT AKHIL SHAH MOHALLA
BADA MAKAHANL
CHENNAPATNA - 562 160.
SYED AZADULLAH
SINCE DECEASED BY LRS,
5. SYED YASEEN PASHA KHADRI
MAJOR
6. SYED TAJ PASHA
MAJOR
7. SYED AZADULLAH
MAJOR
8. SYED SHAHAULLAH
MAJOR
RESPONDENTS NO.5 TO 8
R/AT M G ROAD
BADA MAKHAN
CHENNAPATNA - 562 160.
SYED YADULLA
SINCE DECEASED BY LRS
9. VALI PASHA
AGED ABOUT 67 YEARS,
3
10. SALEEM PASHA
AGED ABOUT 65 YEARS
11. JAMEEL PASHA
AGED ABOUT 63 YEARS,
12. ZAFRLLA PASHA
AGED ABOUT 61 YEARS
13. WASEEM PASHA
AGED ABOUT 59 YEARS,
14. SYED AHMED PASHA
MAJOR
15. SYED AMEER
MAJOR
RESPONDENT NO.9 TO 15
ARE R/AT M G ROAD
BADA MAKHAN
CHENNAPATNA - 562 160.
16. SHARIEF KHAN
MAJOR
S/O MAHBOOB KHAN
SYED WADI
CHENNAPATNA - 562 160.
17. KARNATAKA STATE
BOARD OF WAKFS
NO.6 CUNNINGHAM ROAD
BENGALURU
REP BY ITS SECRETARY.
SYED USMAN PASHA QUADRI
SINCE DECEASED BY LRS
4
18. SYED ASLAM PASHA KHADRI
AGED ABOUT 69 YEARS,
19. SYED AKRAM PASHA
AGED ABOUT 66 YEARS,
20. SYED AYUB PASHA
AGED ABOUT 64 YEARS,
21. SYED FIYZA PASHA
AGED ABOUT 62 YEARS,
22. SYED YAASEEN PASHA
AGED ABOUT 58 YEARS,
23. SYED MOHAMMED
GHOUSE PASHA KHADRI
AGED ABOUT 64 YEARS
S/O LATE SYED MOHAMMAD
PEER PASHA KHADRI
RESPONDENT NO.18 - 23
R/AT DARGA HAZARATH
MARDANE-E-GAIAB
SHIVANASAMUDRAM
KOLLEGAL TALUK
CHAMARAJANAGAR - 571 440.
... RESPONDENTS
(BY SRI.JAYANNA., AND
SMT. SHAILAJA., ADVOCATE FOR R1 TO R4
NOTICE TO R5 TO R23 STANDS WAIVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE AND HOLD THAT THE INTERIM ORDER OF STAY
PASSED ON 02.08.2021 ON THE BASIS OF MEMO DATED
02.08.2021 BY THE SENIOR CIVIL JUDGE,
CHENNAPATANA IN RA 19/2020 STAYING THE OPERATION
AND EXECUTION OF THE JUDGMENT AND DECREE
5
DATED 20.12.2012 PASSED BY THE TRIAL COURT IN OS
NO.92/1988 IS UNSUSTAINABLE IN LAW, VIDE
ANNEXURE-K.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who has succeeded in getting vindication of his claim to the office of the Sajjada Nasheen of Hazarath Akhil Shah Khadri (Bada Makhan) Darga situated in Channapatna (for short, 'the Darga') after 32 years, has filed this petition. The petitioner has impugned the grant of interim order in R.A.No. 19/2020 on the file of the Senior Civil Judge, Channapatna (for short, 'the appellate Court') staying the operation and execution of the judgment and decree in OS No.92/1988 on the file of the II Additional Civil Judge and JMFC, Channapatna (for short, 'the civil Court'). The judgment and decree in OS No.92/1988 vindicates the petitioner's rights to the office of the Sajjadanasheen of the Darga. The petitioner's grievance is not just with 6 the stay of the judgment and decree in OS No.92/1988 but is also with the manner in which the interim order is granted.
2. At the outset, this Court must record the rival claims to the office of the Sajjadanasheen of the Darga which in fact, is a tri-partite claim. According to the petitioner, his grand father, Janab Syed Mohammad Peer Pasha Khadri, was the hereditary Sajjadanasheen of the Darga. He nominated his elder son, Janab Syed Mohammad Akhil Pasha Khadri to succeed him not only to the office of the Sajjadanasheen of this Darga but another Darga situated in Shivanasamudra. The petitioner's father died on 27.10.1980 and therefore, his grand father nominated him on 26.2.1981 in accordance with the custom in the congregation of the concerned Mujawars, Fakeers and elders of the community. On his grand father's demise on 6.10.1988, he has succeeded to the hereditary office. 7
3. The other rival claim is by the petitioner's uncle, Janab Syed Mohammad Ghouse Pasha Khadri who has initiated not only the present suit in O.S.No.92/1988 but also the suit in O.S.No.742/1988. If the present suit relates to his rival claim to the office of Sajjadanasheen of the Darga [which is at Channapatna], the suit in O.S.No.742/1988 relates to his right to the office of Sajjadanasheen of the Darga at Shivanasamudra. The rival claims between the petitioner and his uncle, Janab Mohammad Ghouse Pasha Khadri for the office of Sajjadanasheen of the Darga at Channapatna has culminated with the decree in O.S.No.92/1988 in favour of the petitioner with the petitioner being declared as the hereditary Sajjadanasheen of the Darga at Channapatna. The appellate Court by the impugned order has stayed the operation of the judgment and decree in this suit. 8
4. The petitioner has filed his suit in O.S.No.233/1989 for declaration that he is Sajjadanasheen of the Darga at Shivanasamudra, and this suit and the suit by the petitioner's uncle, Janab Syed Mohammad Ghouse Pasha Khadri in O.S.No.742/1988 are decided by the Common judgment. The petitioner has succeeded in these suits in O.S.No.742/1988 and O.S.No.233/1989 as against his claims to the office of the Sajjadanasheen of the Darga at Shivanasamudra. The common judgment and decree in the aforesaid suits in O.S.No.742/1988 and O.S.No.233/1989 are confirmed with the dismissal of the appeals in RSA No.1574/2005 and RSA No.1575/2005. However, the appeal as against these judgments are pending consideration before the Hon'ble Supreme Court.
5. The respondent Nos.1 to 4, who claim under the original defendant No.3, have set up a rival claim to 9 the office of the Sjjadanasheen of the Darga contending that Janab Syed Mohammad Akil Pasha Khadri was the hereditary Sajjadanasheen of the Darga in the year 1944, and he has bequeathed the right to succeed to the office of the Sajjadanasheen of this Darga to the petitioner's father; on the demise of the testator and the father, the respondent No.4 has continued as the Sajjadanasheen. However, the respondents No.1 to 4 have failed in their case inasmuch as the civil Court, answering issues No.4 to 6 and additional issue No.1, has categorically found that these respondents have not produced any document to show that Janab Syed Mohammad Akil Pasha Khadri was the Sajjadanasheen as asserted; the respondents cannot even claim that this office could be bequeathed and they have not even established the will by Janab Syed Mohammad Akil Pasha Khadri. The respondents No.1 to 4 have impugned the judgment dated 20.12.2019 in O.S. No.92/1988 in the appeal in RA No.19/2020. 10
6. These are as regards the rival claims to the office of the Sajjadanasheen of the Darga. The petitioner's grievance with the manner in which the impugned order of stay is granted by the appellate Court is because of the following circumstances. The petitioner is served with the notice of the appeal in RA No. 19/2020 and is represented by his learned counsel. It is contended on behalf of the petitioner that the appellant's request for stay of the impugned order was considered by the appellate Court on 25.11.2020 but no interim order was granted on hearing the learned counsel for the parties who were served and represented as of that day. It is further contended that on 2.8.2021, the respondent Nos. 1 to 4 have filed a memo, and on such memo the appellate Court has taken up the petitioner's application under Order XLI Rule 5 CPC and granted interim order in the light of the submissions made on behalf of these respondents that there is every 11 chance of communal violence and disturbance in the disputed property area with the ensuing religious festival if there is no order of stay. This interim order has been continued on the subsequent dates.
7. The learned Counsel for the petitioner submits that the trial Court by a reasoned order has confirmed the petitioner's right to the hereditary office of Sajjadanasheen of the Darga by its judgment and decree, and the effect of this declaration cannot be taken away by a stay supported by a very perfunctory reasoning, nor can the petitioner be prevented from performing either the urus or any festival as the Sajjadanasheen of the Darga. The learned counsel for the petitioner further submits that the appellate Court could not have on a memo, especially after it had initially heard the learned counsel on grant of interim order and had not granted order, taken up IA.1 for 12 consideration; he submits that this would be contrary to the settled propositions.
6. The learned counsel for the respondent Nos.1 to 4 submits that these respondents have not accepted the impugned judgment and decree inasmuch as they have filed their appeal in R.A. No.19/2020; and not only these respondents, even the other defendants have filed their appeals in R.A. No.7/2020 and R.A. No.8/2020. The learned counsel for the respondent Nos.1 to 4 submits that, to show bona fides, necessary application will be made with the appellate Court to take up all the three appeals together. He also emphasizes that the respondents have categorically stated in the affidavit accompanying the application under Order XLI Rule 5 CPC that respondent No.4 has been conducting religious functions and he apprehends disturbance because of the impugned judgment. 13
9. The petitioner's grievance is that by virtue of the impugned order, he is prevented from attending to the affairs of the Darga and the religious activities associated with the Darga as the Sajjadanasheen despite a judgment in his favour. But it is apparent from the records and the submissions that the petitioner does not dispute that he did not conduct the affairs of the disputed Darga or the associated religious activities during the pendency of the suit, and he asserts that after the judgment and before the impugned order when Covid-19 Regulations were in place, he has overseen certain activities of the Darga on special occasions.
10. The petitioner's grievance that he is prevented from overseeing the activities of the Darga and the associated religious activities as the Sajjadanasheen of the Darga despite judgment in his favour, must be considered in the light of the aforesaid disputed 14 circumstances and also the fact that the merits of the judgment and decree in O.S. No.92/1988 will have to be reconsidered in exercise of a wider jurisdiction under Section 96 of CPC not only at the instance of the respondents No.1 to 4 but also the others. When so considered, this Court is of the opinion that the petitioner cannot insist on the right to function as Sajjadanasheen of the Darga or conduct activities after a hiatus of over 30 years. Though the manner in which the interim order is granted by the appellate Court could invite some comments, this Court would not quash the impugned order in the light of the aforesaid discussion. But, this Court will observe that the manner in which the appellate Court has considered the request for the grant of the interim order must be eschewed.
11. This Court must further observe that the civil dispute between the parties has prevailed at the first 15 stage for over three decades. Though it is stated that the different defendants have called this judgment and decree in separate appeals, the elementary exercise of taking up these appeals together for not just common decision but also ensuring effective service of notice has not been considered by the learned counsel for the parties. This Court, in the light of the rival claims and the aforesaid circumstances, is of the considered view that the petition must be disposed of with certain directions while also observing that the conduct of any religious activity or the superintendence of the affairs of the Darga after the impugned judgment, and this order, cannot be relied upon by any party to claim any equity and the merits of the rival claims will have to be decided independent of the same.
12. Further, this Court must observe that there cannot be restriction on the petitioner's participation in the religious activities at the Darga as an 16 ordinary member of the community and without impeding those who have been conducting such activities for over three decades. When this is put to the learned counsel for the respondent Nos. 1 to 4, the learned counsel says the necessary memo will be filed by the respondent No. 1 who is present before this Court on his behalf and also on behalf of the respondent No. 2 to 4 stating that the petitioner can participate in the religious activities. A memo is also accordingly filed, and the same is taken on record. The petitioner, if he chooses to participate in the religious activities of the Darga, he must be entitled to all protection and in that regard he shall be entitled to make necessary application with the Jurisdictional Police, who shall consider the same and extend protection to him as the circumstances may warrant.
For the foregoing, the following 17 ORDER [a] The writ petition stands disposed of observing that the petitioner may participate in the religious functions of the Hazarath Akhil Shah Khadri (Bada Makhan) Darga as a member of the community without impeding those who have been conducting such activities for over three decades but subject to final decision in the pending appeals in R.A.No. 19/2020 and R.A.No. 738/2020.
[b] The respondents No.1 to 4 shall file a memo/application for taking up all the appeals in R.A. No. 19/2020, R.A. No.7/2020 and R.A. No.8/2020 for common consideration, and even otherwise, the appellate Court shall take necessary measures in this regard and 18 pass orders recording service of notice at least insofar as those parties who have filed corresponding appeals.
[c] The appellate Court shall dispose of all the three appeals expeditiously and in any event, on or before the end of July 2021 and file a report in this regard with the Registry.
Sd/-
JUDGE nv