1

IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 28^TH DAY OF JULY, 2021

BEFORE

THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

WRIT PETITION No.201420/2021 (GM-CPC)

BETWEEN:

AYUB KHAN S/O LATE ABDUL JABBAR

AGE: 47 YEARS OCC: BUSINESS (DEAD)

01.

FEROZ KHAN S/O LATE ABDUL JABBAR

AGE: 50 YEARS OCC: BUSINESS

02.

SMT. NASEEM D/O LATE ABDUL JABBAR

@ JAFFAR KHAN PATHAN

W/O: AYUB YUSUF PATHAN

AGE: 78 YEARS OCC: HOUSEHOLD

03.

SMT. SHABANA BEGUM D/O LATE ABDUL JABBAR

@ JAFFAR KHAN PATHAN W/O SULTAN BINANDWALA

AGE: 65 YEARS OCC: HOUSEHOLD

ALL ARE R/O: SRIKRISHNA NAGAR, VITHAL WADI

AKURADI MAHARASTRA-411035.

... PETITIONERS

(BY SRI. GURUBASAVA B. NAYAK, ADVOCATE

FOR SRI. RAMACHANDRA K. ADVOCATE)

AND:

2

01.

GIRIJA SHANKER SHETTY S/O SHETTY SANGAPPA

AGE: 61 YEARS

OCC: LEGAL PRACTIONER AND BUSINESS

R/O: BEHIND SUN INTERNATIONAL HOTEL

JEWARGI ROAD, KALABURAGI-585 102.

02.

MAHESH HOUSING CO-OPERATIVE SOCIETY

THROUGH ITS PRESIDENT, DR. SAMPATKUMAR

S/O: DAWARKA LOHIYA

AGE: 63 YEARS

OCC: PRESIDENT AND MEDICAL PRACTIONER

R/O: MARWADI GALLI, KIRANA BAZAR,

KALABURAGI - 585 102.

03.

PREMLAL S/O MADANLAL TIWARI,

AGE: 70 YEARS OCC: BUSINESS

R/O: NEAR PRAKASH TALKIES,

KALABURAGI - 585 102.

04.

UDAYA SHANKAR S/O SUBHASHCHANDRA SHETTY,

AGE: 46 YEARS OCC: BUSINESS

R/O: BEHIND SUN INTERNATIONAL HOTEL,

SANTOSH COLONY, JEWARGI ROAD,

KALABURAGI - 585 102,

... RESPONDENTS

THIS WRIT PETITION IS FILED UNDER ARTICLES

226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING

TO A) ISSUE WRIT OF CERTIORARI TO QUASH THE

IMPUGNED ORDER PASSED BY THE LOWER APPELLATE

ORDER ON I.A. IN R.A.NO.4/2020 DATED 24.03.2021 IS

AS

PER

ANNEXURE-E

APPLICATION

FILED

BY

THE

PETITIONERS/PLAINTIFFS, B) ISSUE DIRECTIONS TO THE

LOWER

APPELLATE

COURT

TO

MAKE

NECESSARY

AMENDMENT

IN

THE

JUDGMENT

AND

DECREE

RESTRICTING THE CLAIM OF THE RESPONDENTS NO.1

AND 2 WHO ARE THE APPELLANTS IN R.A.NO.4/2020 AND

ETC.,

THIS PETITION COMING ON FOR PRELIMINARY

HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

3

ORDER

This writ petition is filed by the plaintiffs in

O.S.No.161/2011

/

respondents

in

R.A.No.4/2020

challenging the order dated 24.03.2021 passed by the First

Appellate Court in R.A.No.4/2020, by which the First

Appellate Court rejected an application under Section 152

of Code of Civil Procedure in R.A.No.4/2020 filed by the

petitioners for amendment of the decree.

02.

The petitioners claimed that they are the grand

children of Mr. Ruknuddin who had executed a mortgage

deed dated 05.09.1953 in favour of the father of

respondent No.3 herein initially for a period of five years

which was extended up to 30 years. The petitioners filed a

suit for redemption of the mortgage in O.S.No.161/2011.

03.

The respondent No.3 contested the suit that

Mr. Ruknuddin not only executed a mortgage deed dated

05.09.1953, but also executed a sale deed in favour of

father of defendant No.3 on 05.09.1953. The Trial Court

4

decreed the suit and directed the respondent No.3 to place

the petitioners in possession of the land bearing Sy.No.3

measuring 03 acres 37 guntas of Brahampur, Gulbarga.

The Trial Court further declared that the sale deed dated

05.09.1953 is null and void and consequently restrained

the respondents from interfering, alienating, encumbering

and creating charge over the suit schedule property.

04.

In the meanwhile, the respondent No.3 sold 02

acres 27 guntas out of 03 acres 37 guntas to the

respondents No.1, 2 and 4. The respondents No.1 and 2

filed R.A.No.4/2020 before the First Appellate Court. The

First Appellate Court after considering the material on

record, allowed the appeal and set-aside the judgment and

decree passed by the Trial Court. The First Appellate Court

held that Mr. Ruknuddin had also executed a sale deed

dated 05.09.1953 in favour of the father of the respondent

No.3 and therefore, t