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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF SEPTEMBER 2022
BEFORE
THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.23591/2018 (GM-CPC)
BETWEEN :
SRI JAYARAMA SHARMA
S/O SUBBANNA BHAT
AGED ABOUT 58 YEARS
R/AT CHANDRAGIRI HOUSE,
BALYA VILLAGE ,PUTTUR TALUK
D K DISTRICT PIN - 574 221.
... PETITIONER
(BY SRI. RAVISHANKAR SHASTRY. G, ADVOCATE)
AND :
1.
G. MAHAMMADH
S/O LATE ABDUL RAHIMAN,
AGED ABOUT 60 YEARS
R/AT JOGIBETTU HOUSE,
HANTHILA VILLAGE AND POST,
BELTHANGADY TALUK
D K DISTRICT PIN - 574214.
2.
NEBISA
D/O ABDUL RAHIMAN
AGED ABOUT 58 YEARS,
3.
ZOHARA
D/O ABDUL RAHIMAN
AGED ABOUT 50 YEARS,
2
4.
REHAMATH
D/O ABDUL RAHIMAN
AGED ABOUT 44 YEARS,
PETITIONER NO. 2 TO 4 ARE ALL
RESIDING AT PERABLE HOUSE,
HIREBANDADY VILLAGE AND POST,
PUTTUR TALUK D K DISTRICT PIN - 574212.
5.
ALIMA
D/O LATE HASANABBA
AGED ABOUT 54 YEARS,
6.
IDINABBA @ MAHAMMAD
S/O LATE HASANABBA
AGED ABOUT 57 YEARS,
7.
B FATHIMA
D/O LATE HASANABBA
AGED ABOUT 55 YEARS,
8.
ABDUL RAZAK
S/O LATE HASANABBA
AGED ABOUT 59 YEARS,
9.
ZEENATH
D/O LATE HASANABBA
AGED ABOUT 44 YEARS,
10.
SOUDHA
D/O LATE HASANABBA
AGED ABOUT 42 YEARS,
RESPONDENTS NO. 5 TO 10 ALL ARE
RESIDING AT JOGIBETTU HOUSE,
ILANTHILA VILLAGE, BELTHANGADY
TALUK D K DISTRICT -574212.
11.
SMT KHATHIJAMMA
W/O G U YUSUF
3
AGED ABOUT 68 YEARS,
12.
HABSA
D/O G U YUSUF
AGED ABOUT 54 YEARS,
13.
SRI HAMEEDH
S/O LATE G U YUSUF
AGED ABOUT 52 YEARS,
14.
ZOHARA
D/O LATE G U YUSUF
AGED ABOUT 48 YEARS,
15.
MAIMUNA
D/O LATE G U YUSUF
AGED ABOUT 41 YEARS,
16.
LATHEEF
S/O LATE G U YUSUF
AGED ABOUT 38 YEARS,
17.
ZEENATH
D/O LATE G U YUSUF
AGED ABOUT 35 YEARS,
18.
MAZEEDH
S/O LATE G U YUSUF
AGED ABOUT 50 YEARS,
19.
ABDUL RASHEEDH
S/O LATE G U YUSUF
AGED ABOUT 45 YEARS,
20.
MAHAMMADH SHAREEF
S/O LATE G U YUSUF
AGED ABOUT 44 YEARS,
21.
ISMAIL
S/O LATE G U YUSUF
4
AGED ABOUT 37 YEARS,
22.
SHUKOOR
S/O LATE G U YUSUF
AGED ABOUT 37 YEARS,
RESPONDENTS NO.11 TO 22 ALL ARE
RESIDING AT HIRITHADKA HOUSE,
UPPINAGADY KASABA VILLAGE
PUTTUR TALUK D K DISTRICT - 574 241.
23.
BEEPATHUMMA
W/O LATE ABDUL RAHIMAN
AGED ABOUT 69 YEARS,
24.
ZUBAIDA
D/O LATE ABDUL RAHIMAN
AGED ABOUT 38 YEARS,
25.
AYISHA
D/O LATE ABDUL RAHIMAN
AGED ABOUT 33 YEARS,
26.
ABOOBAKAR SIDDIK
S/O LATE ABDUL RAHIMAN
AGED ABOUT 32 YEARS,
27.
SAJIDHA
D/O LATE ABDUL RAHIMAN
AGED ABOUT 29 YEARS,
28.
USMAN FAROOK
S/O LATE ABDUL RAHIMAN
AGED ABOUT 26 YEARS,
RESPONDENTS NO. 23 TO 28 ALL ARE
RESIDING AT JOGIBETTU HOSUE,
ILANTHILA VILLAGE BELTHANGADY TALUK
D K DISTICT PIN - 574212.
... RESPONDENTS
(BY SMT.ARCHANA P. MURTHY, ADVOCATE FOR R1;
5
NOTICE SERVED ON R2 TO R8 & R10, R22;
NOTICE TO R9, R11 TO R21 & R23 TO R28 IS
DISPENSED WITH VIDE ORDER DATED 09.04.2019)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER ON IA NO.III IN FDP NO.4/2014 DATED
19.2.2018 PASSED BY THE COURT OF THE PRINCIPAL
CIVIL JUDGE AND JMFC AT BELTHANGADY CERTIFIED
COPY OF WHICH IS PRODUCED AT ANNEXURE-A AND
CONSEQUENTLY
IA
NO.III
IN
FDP
NO.4/2014
BE
ALLOWED AS PRAYED FOR.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:-
The interim order dated 19.02.2018 in FDP
No.4/2014 on the file of the Principal Civil Judge and
JMFC, Belthangady [for short, 'the civil Court'] is called
in question in this writ petition by one of the
respondents in such proceedings. The operative portion
of the impugned order reads as under:
"I.A. No.III filed by the respondent No.20 is kept in
abeyance
until
of
[sic]
disposal
of
O.S.
6
No.16/2014 and O.S. No.325/2015, on the file of
Prl. Civil Judge and J.M.F.C. of Belthangady.
Consequently, the petition is stayed until disposal
of said suits."
2.
The facts leading to the impugned order
could be encapsulated thus.
2.1
Smt. Isamma is the undisputed owner of the
subject land which admittedly measures 1.98 acres and
is situate in Ilanthila village, Belthangady Taluk. On
her
demise,
her
son,
Sri
Abdul
Rahiman,
has
commenced the suit in O.S. No.155/1989 against his
two brothers, Sri. Hasanabba and Sri. G.U. Yusuf. This
suit is decreed on 28.04.1994 declaring one-third share
to each of these sons. The proceedings in FDP
No.4/2014 emanate from such decree. The petitioner is
the
twentieth
respondent
in
the
final
decree
proceedings, and he has purchased the corresponding
undivided shares from the different legal heirs of the
aforesaid three sons.
7
2.2
Sri. Hasanabba has executed Settlement
Deed dated 20.08.2011 settling his 1/3rd share in
favour of his son, Sri. Abdul Razak, who in turn has
sold such share in favour of the petitioner on
25.09.2013. Some of the legal heirs of Sri.Abdul
Rahiman
[Smt.
Isamma's
eldest
son]
have
also
transferred their corresponding shares in favour of the
petitioner on 03.06.2013, and not just that, some of the
legal heirs of Sri G.U. Yusuf [Smt. Isamma's another
son] have also transferred their undivided shares in
favour of the petitioner on 30.10.2013.
2.3
Thereafter, one of the sons of Sri. Abdul
Rahiman, Sri. G. Mahammadh has filed the suit in O.S.
No.16/2014 against the petitioner and Sri. Abdul Razaq
for permanent injunction. The suit is dismissed on
17.08.2021 but is called in question in appeal in RA
No.13/2021.
This
appeal
is
allowed.
Almost
simultaneously with the institution of the suit in O.S.
8
No.16/2014, some of the legal heirs of Sri Hasanabba
have commenced the suit in O.S.No.325/2015 against
the petitioner and Sri Abdul Razak calling in question
the document dated 20.08.20111. This suit is pending
consideration.
3.
The
petitioner,
with
the
purchase
as
aforesaid and the commencement of proceedings in
O.S.No.16/2014 and O.S.No.325/2015, has filed the
present application (IA.III) for supplemental preliminary
decree to protect his purchase. The civil Court, by the
impugned order, has kept this application in abeyance
subject
to
the
decision
in
O.S.No.16/2014
and
O.S.No.325/2015. The civil Court's reason to keep the
application in abeyance is recorded in paragraph 10 of
the impugned order, and this paragraph reads as
under:
1 The Settlement Deed dated 20.08.2011 executed by Sri.
Hasanabba in favour of his son Sri. Abdul Razak
9
10.
Accordingly, if this petition is stayed,
certainly justice will be done to both
parties. Further, the intention of the court
about stay of this petition until disposal of
above mentioned two suits has been openly
brought to the knowledge of counsel of both
the parties and asked them to say in this
regard, for that, both have neither agreed
nor refused, instead they submitted it was
left to the court. Hence by reserving the
rights of the parties to the petition and are
bound by the decrees which will be passed
in O.S. No. 16/2014and O.S. No. 325/2015
no order is passed on IA.NO.III as requires
full pledged trial to pass supplemental
decree in view of disputing the very
execution of deeds in respect of 2/3rd
shares of petition schedule properties
and in view of pending of two suits in
respect of same properties.
4.
Admittedly, the preliminary decree in O.S.
No.155/1989 is drawn in the year 1994 declaring that
10
three sons of Smt.Isamma2 wi
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