Partly allowed

Mr Salimraza S/O Abdul Gafar Jinnedi v. Mr Salim S/O Shabeer Pathan

Karnataka HC3 Sept 2024WP/104836/2024

Case brief

AI extract

What is this about?

High Court disposed of a writ petition challenging an order granting temporary injunction in a property dispute. The court set aside the injunction allowing construction pending trial, contingent on an undertaking to demolish structures if the property belongs to the plaintiffs.

What did the court decide?

Impugned order granting temporary injunction set aside subject to undertaking to demolish construction if property belongs to plaintiffs; petition disposed of.

Mr Salimraza S/O Abdul Gafar Jinnedi Vs Mr Salim S/O… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12656 WP No. 104836 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 104836 OF 2024 (GM-CPC)

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BETWEEN:

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MR. SALIMRAZA S/O. ABDUL GAFAR JINNEDI, AGE: 50 YEARS, OCC: PVT. SERVICE, R/O. CTS NO.907, PLOT NO.2, RAHEMANIYA MASJID ROAD, SANGMESHWAR NAGAR, TAL: AND DIST: BELAGAVI-590010.

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MR. TANVEERAHMED S/O. ABDUL GAFAR JINNEDI, AGE: 41 YEARS, OCC: PVT. SERVICE, R/O. CTS NO.907, PLOT NO.2, RAHEMANIYA MASJID ROAD, SANGMESHWAR NAGAR, TAL: AND DIST: BELAGAVI-590010.

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…PETITIONERS

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(BY SRI. VITTHAL S. TELI, ADVOCATE)

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GIRIJA A BYAHATTI

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AND:

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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MR. SALIM S/O. SHABEER PATHAN, AGE: 52 YEARS, OCC: DOCTOR, R/O. PLOT NO.1, OPP. KUMAR HALL, SANGMESHWAR NAGAR, TAL: AND DIST: BELAGAVI-590010.

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MR. NAYEEM S/O. SHABEER PATHAN, AGE: 50 YEARS, OCC: BUSINESS, R/O. PLOT NO.1, OPP. KUMAR HALL, SANGMESHWAR NAGAR, TAL: AND DIST: BELAGAVI-590010.

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MR. YUNUS S/O. SHABEER PATHAN, AGE: 47 YEARS, OCC: BUSINESS, R/O. PLOT NO.1, OPP. KUMAR HALL, SANGMESHWAR NAGAR, TAL: AND DIST: BELAGAVI-590010.

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MR. YUSUF S/O. SHABEER PATHAN, AGE: 45 YEARS, OCC: BUSINESS, R/O. PLOT NO.1, OPP. KUMAR HALL, SANGMESHWAR NAGAR, TAL: AND DIST: BELAGAVI-590010.

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MRS. ASMA W/O. ASIF SARAF, AGE: 36 YEARS, OCC: HOUSEWIFE, R/O. ZEHARI GALLI, ANGOL, TAL: AND DIST: BELAGAVI-590006.

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…RESPONDENTS

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(BY SRI. G.G. PATIL & SRI. S.H. YADAWAD, ADVOCATES FOR C/R1, R2, R4 & R5; SRI. G.G. KULKARNI, ADV. FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT QUASHING THE JUDGMENT DATED 10.07.2024 PASSED IN M.A. NO.62/2023 BY THE VI ADDL DISTRICT AND SESSIONS JUDGE, BELAGAVI VIDE ANNEXURE-L.

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THIS PETITION COMING ON FOR FURTHER HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the petitioners’ counsel and also the counsel appearing for the respondents.

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This writ petition is filed being aggrieved by the order dated 10.07.2024 granting of temporary injunction by the VI Addl. District and Sessions Judge, Belagavi, (‘First Appellate Authority’ for short) in M.A.No.62/2023 vide Annexure-L, as against rejection of the application filed under Order 39 Rules 1 and 2 of CPC and a prayer is also sought to quash the order passed by the First Appellate Court.

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The main contention of the petitioners before this Court is that, he had purchased the suit property in the year 1975 as per the sale deed dated 20.05.1975 as per Annexure-F. The counsel for the petitioners also vehemently contended that, while executing the sale deed, the boundary is shown on the East Road and counsel also produced copy of the layout plan

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before this Court which was approved by the concerned authority i.e., the Deputy Commissioner, Belagavi, on 09.08.1973 and it is also the Planning Authority Belagavi. The counsel relying upon this document would contend that, the property sold to the petitioners is measuring 40x71 ft. On the east there is a road, on the west, south and north there are private properties and the same are also in the very same layout and the identity of the property is not in dispute. The counsel also vehemently contended that, Trial Court while rejecting the temporary injunction application filed by the respondents/plaintiffs under Order 39 Rules 1 and 2 R/w. Section 151 of CPC, has taken note of the boundaries mentioned in the sale deed, particularly in paragraph No.13, considering that the boundaries and measurement of plot No.2 in layout plan and sale deed dated 25.02.1975 is one and same and as per layout plan also, plot No.2 measures 40x71 and it is up to 30 feet road towards eastern side. If

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plaint averments and hand sketch are considered, then plaintiffs are claiming that plot No.2 is measuring 40 x 100 feet and suit property is 29x40 abutting to 30 feet road. As per the plaint averment, suit property is part of plot No.2 measuring 29x40. The measurement claimed by the plaintiffs is against

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the approved plan as plot No.2 is not measuring 100 feet north to south, but only measuring 40x71. Taking into note of the same, a clear discussion was made by the Trial Court in paragraphs No.14 and 15 and came to the conclusion that the plaintiffs have not made out the case.

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The counsel for the petitioners also vehemently contended that, being aggrieved by the said order of rejection of the temporary injunction application, an appeal is filed in Miscellaneous Appeal No.62/2023 and the First Appellate Court reversed the said finding coming to the conclusion that it is difficult to appreciate the contentions of the defendants at this

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stage, because in paragraph No.8 of the written statement, defendants refer to an agreement said to have been executed by the mother of the plaintiffs in respect of suit property, so now they cannot contend otherwise. The First Appellate Court taking note of the agreement which was executed by the mother/ respondent herein and also in fact defendants have not put forth the claim of boundary prevailing over measurements and their stand is very simple, according to them they are in possession of the suit schedule property by virtue of a sale agreement, to what extent the agreement of sale comes to their rescue is certainly a point for trial, came to the conclusion that the defendants are still placing reliance upon the sale agreement. It does not require special knowledge to say that an agreement of sale does not convey any title. In fact, execution of sale agreement is also a question to be decided. Under such circumstances, the Trial Court did not consider this aspect at all and it gave a finding only

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on the basis of the sale deed. When the Trial Court

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fails to take into consideration all the materials produced before the Court, it is a case of arbitrary exercise of discretion and hence allowed the appeal and set aside the order passed by the Trial Court on I.A.No.1 and allowed I.A.1 filed by the plaintiffs/respondents under Order 39 Rules 1 and 2 of CPC and also directed, defendants or anybody acting on their behalf or under their direction are hereby restrained from encroaching the suit scheduled property till the disposal of the suit.

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The main contention of the petitioners’ counsel also that, the very order passed by the First Appellate Court is erroneous. It is contended that the First Appellate Court fails to take note of the boundaries mentioned in the very sale deed. The property was sold by the mother of the petitioners measuring 40x71 to the father of the defendants through a registered sale deed dated 25.05.1975 and further

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sold an area 15x40 of plot No.2 to the father of the defendants by the agreement of sale deed dated 16.06.1986. The First Appellate Court ought not to have passed such an order. The counsel also produced the photograph of the building which is constructed, which discloses the construction of basement with two floors. It is also contended that, even if the respondents/plaintiffs succeed in the suit, they are going to demolish the same if any building is constructed, if the same is located in the property which the respondents/plaintiffs are claiming.

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Per contra, counsel appearing for the respondents would vehemently contend that, when the petitioners categorically admits that they entered into an agreement of sale with the mother of the respondents to an extent of 15x40 feet and now they had taken up the construction to the extent of 29 x 40 feet in the suit land, for which they have filed the suit for the relief of declaration before the Trial

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Court, the Trial Court not properly exercised the discretion but the First Appellate Court has rightly exercised the discretion taking note of the claim made by the respondents. The petitioners cannot blow hot and cold in one breath, entering into a sale agreement to the extent of 15 x 40 feet and also claiming the title in respect of 40x71 feet in terms of the sale deed. The First Appellate Court rightly considered and directed not to put up any construction.

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Having heard the petitioners’ counsel and also the counsel appearing for the respondents and also considering the reasons given by the Trial Court in paragraph No.13, no doubt in the layout plan also with regard to the plot No.2, it is categorically shown the property was sold in favor of the petitioners to the extent of 40 x 71 feet, abutting the road. It is also not in dispute that, in the very same row total plots No.1 to 10 are found in the layout plan and the

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layout plan was also approved on 09.08.1973 and the property was sold in the year 1975. The photographs also show that there is construction made by the petitioners herein. When the plaintiffs also claiming declaration in respect of the property and when already construction has been made and it is also not in dispute that in the very same layout formed by the respondents/plaintiffs, they have already sold the property in favor of the petitioners to the extent of 40x71 feet and defendants/ petitioners also claimed that there is an agreement for 15x40 feet, the Court has to take note of the admitted documents of sale agreement entered into between the parties, that is mother of the respondents as well as the petitioners and matter has to be tried. In view of already construction is made and also on seeing the photographs also some extent of land is left abutting to the road. When there is a dispute with regard to the location of the property which the plaintiffs and also the

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defendants/petitioners herein are claiming, having taken note of the boundaries which has been described in the approved layout, the matter requires to be decided on merits, as the sale deed also discloses eastern boundary as road.

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When such being the case, I am of the considered opinion that the impugned order dated 10.07.2024 passed by the First Appellate Court in M.A.No.62/2023 vide Annexure-L, requires to be set aside subject to condition that, if construction is made by the defendants/petitioners in the property of the plaintiffs and the same belongs to them and they are the absolute owners of the property, the petitioners have to demolish the same on their own cost. With such an undertaking, the petitioners have to file an affidavit before this Court within one week

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from today. If such an undertaking is not given within one week from today, the petitioners will not enure the benefit of this order.

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9. Accordingly, the writ petition is disposed of.

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Sd/(H.P.SANDESH) JUDGE

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gab/CT-MCK List No.: 1 Sl No.: 35

Mr Salimraza S/O Abdul Gafar Jinnedi v. Mr Salim S/O Shabeer Pathan

Case brief

What is this about?

What did the court decide?

Mr Salimraza S/O Abdul Gafar Jinnedi v. Mr Salim S/O Shabeer Pathan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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