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2023 Supreme(Online)(Kar) 32782
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF APRIL 2023 PRESENT THE HON’BLE MR.JUSTICE P.S.DINESH KUMAR AND THE HON’BLE MR.JUSTICE RAMACHANDRA D.HUDDAR REGULAR FIRST APPEAL NO. 142/2019 BETWEEN:
1. MRS. MEHRUNNISSA W/O LATE. MOHAMMED HYDER, D/O LATE. IBRAHIM SHARIEFF @ BABA SAB AGED ABOUT 56 YEARS. 2. MRS. MAIMUNNISA W/O MUNAWAR SAB, D/O LATE. IBRAHIM SHARIEFF @ BABA SAB AGED ABOUT 46 YEARS, 1ST MAIN, NEW GURAPPANAPALYA, BTM LAYOUT BANGALORE - 27.
… APPELLANTS (BY SRI.RAVINDRANATH K., ADV.)
AND:
1. MR. BUDDAN SHARIEF S/O LATE. IBRAHIM SHARIEFF @ BABA SAB, AGED BOUT 75 YEARS, R/A. NO.9, MUNCIPALITY, QUARTERS, DEVANAHALLI TALUK OFFICE ROAD, KORACHARAPALYA, AMBEDKAR COLONY, DEVANAHALLI - 562 110.
2. MR. YOUSUFF SHARIEFF S/O LATE. IBRAHIM SHARIEFF @ BABA SAB, AGED ABOUT 65 YEARS, R/AT NO.9, MUNCIPALITY QUARTERS DEVANAHALLY TALUK OFFICE ROAD, KORACHARAPALYA, AMBEDKAR COLONY DEVANAHALLI - 562 110. 3. MR. ALLAH BAKASH S/O LATE. IBRAHIM SHARIEFF @ BABA SAB, AGED ABOUT 49 YEARS, R/AT. CHIKKASONNEHALLI, DEVANAHALLI TALUK - 562 110.
4. MR. YAQOOB SHARIEFF S/O LATE. IBRAHIM SHARIEFF @ BABA SAB, AGED ABOUT 56 YEARS R/AT NO. 56, TIPPU SULTAN ROAD, DEVANAHALLI TALUK - 562 110.
5. MR. MAHABOOB SHRIEFF S/O LATE IBRAHIM SHARIEFF @ BABA SAB, AGED ABOUT 42 YEARS, RESIDING IN GKVK YELAHANKA, HALALSANDRA, SHIVANNA GARDEN, BENGALORE - 560065.
6. MRS. MAQBOOL W/O LATE. PYAREJAN SHARIEFF, MUSLIM, MAJOR.
7. MR. BABU S/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 23 YEARS.
8. MR. BABA.
S/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 22 YEARS.
9. MR. ADIL S/O LATE. PYAREJAN SHARIEFF , AGED ABOUT19 YEARS.
10. MR. SHAFFI S/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 19 YEARS.
11. MR. MAHABOOB S/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 29 YARS.
12. MR. GULAB S/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 25 YEARS.
13. MR. AKHEELA D/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 29 YEARS.
14. MR. MUNNI D/O PYAREJAN SHARIEFF, AGED ABOUT 26 YEARS.
15. MR. YASMINE D/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 25 YEARS.
16. MR. MUBEENA D/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 24 YEARS.
17. MR. SHABEENA D/O LATE. PYAREJAN SHARIEFF, AGED ABOUT 23 YEARS.
DEFENDANT No.6 IS WIFE OF LATE PYAREJAN SHARIEFF, DEFENDANT NOS. 7 TO 17 ARE THE CHILDREN OF LATE. PYAREJAN SHARIEFF, ALL ARE R/AT NO. 56, TIPPU SULTAN ROAD, DEVANAHALLI TALUK.
18. SHAMBULAL NAGINDAS (SINCE DECEASED BY HIS LRS)
SHASHIKANTH SHABULAL S/O SHAMBULAL NAGINDAS HIND, MAJOR, R/AT NO. 29, MALLIKARJUNA TEMPLE STREET, CHICKPET CROSS, BENGALORE - 560 053.
… RESPONDENTS THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W.ORDER 41 RULE 1 OF CPC, AGAINST THE ORDER DATED 1.6.2018 PASSED ON I.A.NO.5 IN OS 624/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI ALLOWING THE IA NO.5 FILED UNDER ORDER 7 RULE 11(D) R/W.SEC.151 OF CPC FOR REJECTION OF PLAINT.
THIS RFA COMING ON FOR HEARING AFTER HAVING HEARD THE MATTER, RESERVED FOR JUDGMENT, THIS DAY RAMACHANDRA D.HUDDAR, J., PRONOUNCED THE FOLLOWING:
JUDGMENT
Appellants-plaintiffs have preferred this appeal under Section 96 read with Order 41 Rule 1 of CPC being aggrieved by rejection of their plaint in OS No.624/2018 by the Senior Civil Judge and JMFC, Devanahalli dated
1.6.2018.
2. Parties to this appeal are referred as per their rank before the trial Court for the purpose of convenience.
3. The facts leading to this appeal are as under:
That, plaintiffs filed the suit against defendants seeking relief of declaration that, they are entitled for 1/3rd share in the suit schedule properties situated at Upparahalli, Devanahalli Taluk morefully described in the schedule appended to the plaint. According to them, the suit schedule properties were purchased by one Sri Ibrahim Sharieff in the name of his wife. Plaintiffs and defendants no. 1 to 17 are the tenants in common in respect of the suit schedule properties after the demise of their father. The name of Kulsumbi was entered in the revenue records. Plaintiffs being the legal representatives of Ibrahim Sharieff and Kulsumbi are entitled for share as claimed in the plaint. It is further averred that, defendants no.1 to 5 executed a registered sale deed dated 16.03.1994 in favour of 18th defendant for which plaintiffs are not parties. As there was denial to effect the partition, suit came to be filed.
4. Before the trial Court, pursuant to the suit summons, defendants No.1 to 8 and 18(a) appeared through their respective counsel. Defendants No. 9 to 17 remained exparte. Defendant No. 18(a) filed I.A.No.5 under Order 7 Rule 11(d) read with Section 151 of CPC seeking rejection of the plaint. The plaintiffs filed objections to I.A.No. 5.
5. The learned trial Court after hearing both the sides by raising the points for consideration with regard to cause of action, has answered the said points for consideration in the affirmative and rejected the plaint vide order dated 1.6.2018. It is this order that has been challenged by the appellants on the following grounds:
6. That, the trial Court has misunderstood the facts of the case so pleaded in the plaint. Issues are already framed based upon written statement of defendants. PW.1 is examined by the trial Court and got marked the documents. In the meantime, an application was filed which was entertained by the trial Court. The objections to the said application were not considered by the trial Court. Therefore, the said order is liable to be set aside as I.A.No.5 could not have been allowed by the trial Court. Hence, amongst other grounds, it is prayed to allow the appeal and to set aside the impugned order.
7. As the short point for consideration is involved in this appeal, we have heard the arguments at the time of admission itself and perused the records. The points that would arise for our consideration are as under:
1. Whether the trial Court is justified in rejecting the plaint in OS No.624/2008 by its order dated
1.6.2018?
2. What order?
8. Our answer to point no.1 is in the affirmative for the following:
REASONS
9. The plaint averments disclose that the plaintiffs and defendants No. 1 to 5 are claiming that they are the children of Ibrahim Sharieff and Kulsumbi. Defendant No. 6 is the daughter-in-law and defendants No.7 to 17 are the grand children of the said Ibrahim Sharieff and Kulsubmi. Defendant No.18 is the purchaser of suit schedule property who died during the pendency of the suit and his Legal Representative, defendant No.18(a) has been brought on record.
10. According to plaintiffs, during the lifetime of Ibrahim Sharieff, he purchased the suit schedule property in the name of Kulsumbi and her name came to be entered in the revenue records. Plaintiffs being Mohemmedans are governed by the Mohemmedan Law. The legal heirs are entitled for share in the suit schedule properties as claimed in the plaint as Ibrahim and Kulsumbi are no more. It is further averred that defendants No.1 to 5 executed the registered sale deed in favour of defendant No.18 on 16.03.1994. Thus, it is claimed t
