Disposed

Ilyaz Ahmed v. Smt Raheema Begum

Karnataka HC14 Aug 2023WP/12719/2023

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition filed under Article 227 challenging the rejection of a temporary injunction application. The court granted liberty to the petitioner to file a fresh injunction application concerning specific land not covered by the joint development agreement while rejecting a stay application.

What did the court decide?

Liberty to file fresh injunction application regarding Sy.No.35; stay application rejected.

Ilyaz Ahmed Vs Smt Raheema Begum — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:28817 WP No. 12719 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT WRIT PETITION NO. 12719 OF 2023 (GM-CPC)

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BETWEEN:

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ILIYAZ AHMED S/O AJAZ AHMED, AGED ABOUT 36 YEARS, R/AT NO.45, 5TH CROSS, VASANTHANAGARA, BENGALURU-560052.

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…PETITIONER

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(BY SRI.NITIN RAMESH, ADVOCATE)

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AND:

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SMT RAHEEMA BEGUM W/O M ISMAIL KHAN, AGED ABOUT 62 YEARS,

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Digitally signed by CHAYA S A

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Location: High Court of Karnataka

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SRI ISMAIL KHAN S/O ABDUK KHAN, AGED ABOUT 69 YEARS,

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SMT HAJEERA BANU W/O MOHAMMED ADIL, D/O M. ISMAIL KHAN, AGED ABOUT 43 YEARS,

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SMT SAHEERA BANU W/O MOHAMMED REHMAN, D/O M ISMAIL KHAN, AGED ABOUT 41 YEARS,

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2 - NC: 2023:KHC:28817 WP No. 12719 of 2023

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SMT NASEERA BANU D/O ASFAR BASHA, AGED ABOUT 37 YEARS,

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SIR FIROZE KHAN S/O M ISMAIL KHAN, AGED ABOUT 35 YEARS,

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SMT KOWSAR KHAN W/O FIROZE KHAN, AGED ABOUT 30 YEARS,

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ALL ARE R/O NIMBEKAIPURA VILLAGE, BIDARAHALLI HOBLI, BENGALURU EAST TALUK, BENGALURU RURAL DISTRICT.

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M/S BRICK CULTURE HOUSING LLP A PARTNERSHIP FIRM, HAVING ITS OFFICE AT NO.230, GROUND FLOOR, 13TH CROSS, INDIRANAGAR 2ND STAGE, BENGALURU-560038, REP BY ITS MANAGING PARTNER, SRI K VINOD REDDY.

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…RESPONDENTS

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(BY SRI.VIGNESHWARA S SHASTRI, SR.COUNSEL FOR SRI.SRIKANTH S., ADV. FOR R1 TO 7, SRI.SREEVATSA, Sr. COUNSEL FOR SRI.SYED KHAMARUDDIN, ADV. FOR R8)

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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DT: 17/04/2023 PASSED BY THE LEARNED IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT IN MA NO 2/2022 CONFIRMING THE ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT IN OS NO 662/2021 BY VACATING THE INTERIM ORDER DATED 27/03/2021 ON IA NO I FILED UNDER ORDER 39 RULE 1 AND 2 OF THE CPC GRANTING AN INTERIM ORDER DIRECTING PARTIES TO THE SUIT TO NOT TO

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NC: 2023:KHC:28817 WP No. 12719 of 2023

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ALIENATE OR CREATE THIRD PARTY INTEREST VIDE ANNEXURES-A AND D.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner/plaintiff in O.S.No.662/2021 on the file of the Senior Civil Judge, Bangalore Rural District and appellant in M.A.No.2/2022 on the file of the IX Additional District and Sessions Judge, Bangalore Rural District is before this Court, questioning the correctness or otherwise of judgment dated 17.04.2023 in M.A.No.2/2022 and order dated 02.12.2021 in O.S.No.662/2021 respectively, by which, the trial Court as well as the Appellate Court refused to grant prayer sought in I.A. filed under Order XXXIX Rules 1 and 2 of CPC.

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Heard learned counsel Sri.Nitin Ramesh for petitioner, learned Senior Counsel Sri.Sreevatsa for respondent No.8 and learned Senior Counsel

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Sri.Vigneshwara S Shastri for respondent Nos. 1 to 7. Perused the writ petition papers.

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4 - NC: 2023:KHC:28817 WP No. 12719 of 2023

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The suit is one for declaration to declare that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule properties and for further declaration that the Joint Development Agreement executed by defendant Nos.1 to 7 in favour of defendant No.8 is not binding on the plaintiff’s right, title and interest over the suit schedule properties and consequential relief of injunction. The suit schedule properties are as follows:

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1. All that piece and parcel of agriculture land bearing Sy.No.35, measuring 2 acres 19 guntas, situated at Nimbikaipura village, Bidarahalli Hobli, Bengaluru East Taluk, Bengaluru Rural District and bounded on the

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East by :: Canal

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West by :: Tank Bund

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North by :: Muniveerappa’s land

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South by :: Sy.No.31/2

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2. All that piece and parcel of agriculture land bearing Sy.No.51/1, measuring 3 acres 24 guntas, Sy.No.53/2, measuring 3 acres 13 guntas, Sy.No.54/5, 0-28 guntas, all are situated at Nimbikaipura village, Bidrahalli

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5 - NC: 2023:KHC:28817 WP No. 12719 of 2023

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Hobli, Bengaluru East Taluk, Bengaluru Rural District and bounded with common boundaries on the:

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East by :: Gopalappa’s land West by :: Gomal land South by :: Giddappa’s land North by :: River.

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Along with the plaint, the petitioner/plaintiff also filed

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an application under Order XXXIX Rules 1 and 2 of CPC praying for ad-interim order of temporary injunction restraining the defendants from alienating, encumbering or creating any charge over the schedule properties by changing the nature of suit schedule properties in any manner. The trial Court, by order dated 02.12.2021 rejected the application, against which, the petitioner filed M.A.No.2/2022, which was also rejected by judgment dated 17.04.2023 (Annexure-A) confirming the order passed by the trial Court. Learned counsel for the petitioner Sri.Nitin after arguing the matter at length would submit that the writ petition be disposed of, with

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6 - NC: 2023:KHC:28817 WP No. 12719 of 2023

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liberty to the petitioner to move fresh application in respect of the land in Sy.No.35 measuring 2 acres 19 guntas situated at Nimbikaipura village, Bidrahalli Hobli, Bangalore East Taluk, Bangalore Rural District, since he submits that the said land is not part of the Joint Development Agreement. For which, learned Senior Counsel Sri.Sreevatsa has no objection since defendant No.8/respondent No.8 herein is concerned with only Sy.No.53/2 i.e., item No.2 to the plaint schedule.

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Learned Senior Counsel Sri.Vigneshwar Shastry appearing for respondent Nos.1 to 7 would submit that the suit itself is not maintainable and the said liberty cannot be permitted.

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Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that request of the learned counsel for the petitioner is reasonable. If the petitioner is provided an opportunity to file fresh application under Order XXXIX Rules 1 and 2 of CPC in respect of the land in Sy.No.35, respondent Nos.1

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NC: 2023:KHC:28817 WP No. 12719 of 2023

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to 7 would also get an opportunity to contest the said application and they could oppose the said application.

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With the above observations, the writ petition stands disposed of , with liberty to the petitioner to file fresh application in respect of Sy.No.35. If such an application is filed, the trial Court shall provide an opportunity to respondents herein, hear both the parties and pass appropriate orders, in accordance with law.

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All contentions of the parties are left open.

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In view of disposal of the writ petition, I.A.No.1/2023

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for vacating stay does not survive for consideration. Accordingly, I.A.No.1/2023 is rejected.

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Sd/JUDGE

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MPK CT:bms

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List No.: 1 Sl No.: 20

Ilyaz Ahmed v. Smt Raheema Begum

Case brief

What is this about?

What did the court decide?

Ilyaz Ahmed v. Smt Raheema Begum

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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