Allowed

M.A. Anwar Pasha v. Shahida Begum

Karnataka HC1 Oct 2024WP/11422/2016

Case brief

AI extract

What is this about?

Petitioners sought a second preliminary decree in FDP proceedings to decide priority between two purchasers of the deceased first defendant's 1/4th share, relying on the Supreme Court's clarification leaving rights open. The trial court had refused. The High Court held the parties' rights were not crystallised and remanded the applications for fresh consideration.

What did the court decide?

Impugned FDP orders dated 02.02.2016 set aside; trial court directed to consider I.A.Nos.VII and VIII in accordance with law within six months.

M.A. Anwar Pasha Vs Shahida Begum — Partition | Karnataka HC (2024)

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NC: 2024:KHC:48201 WP No. 11422 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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WRIT PETITION NO. 11422 OF 2016 (GM-CPC)

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BETWEEN:

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M.A. ANWAR PASHA

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S/O LATE ABDUL SUBHAN, AGED ABOUT 64 YEARS,

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NASEEM JAN D/O MOHAMMED ANWAR, AGED ABOUT 36 YEARS,

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THOUSIF PASHA S/O MOHAMMED ANWAR, AGED ABOUT 34 YEARS,

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ALL ARE R/A: NO.2346/1, NEW NO.68/1, MISSION HOSPITAL ROAD, MANDI MOHALLA, MYSORE-570 001.

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…PETITIONERS

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Digitally signed by MEGHA MOHAN

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Location: HIGH COURT OF KARNATAKA

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(BY SRI. MAHESH R. UPPIN, ADVOCATE)

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AND:

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SHAHIDA BEGUM SINCE DECEASED BY HER LR’S.,

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1A. IMTYAZ PASHA, AGED ABOUT 46 YEARS,

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1B. ILYAZ PASHA, AGED ABOUT 43 YEARS,

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1C. IYAZ PASHA, AGED ABOUT 40 YEARS,

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1D. NAWAZ PASHA, AGED ABOUT 33 YEARS,

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NC: 2024:KHC:48201 WP No. 11422 of 2016

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1E. RESHMA BEGUM, AGED ABOUT 42 YEARS,

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1F. BIBI MANSURA AGED ABOUT 38 YEARS,

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ALL ARE R/AT: NO.23, 7^TH A CROSS, D BLOCK, MAGADI ROAD, BENGALURU-560 023.

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…RESPONDENTS

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(BY SRI. V.V. GUNJAL, ADVOCATE R1[A-F])

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS AND ISSUE APPROPRIATE WRIT, ORDER OR DIRECTION INCLUDING A WRIT OF CERTIORARI FOR QUASHING THE COMMON ORDER DATED: 02.02.2016 ON IA.NOS.7 AND 8 IN FDP NO.26/2006 ON THE FILE OF THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE, MYSORE [ANNEXURE-A] AND ALLOW THE SAID IAS.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 16/07/2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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CAV ORDER

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The present writ petition is filed aggrieved by the order passed in I.A.Nos.VII and VIII in FDP.No.26/2007 dated 02.02.2016 by the Principal Senior Civil Judge, Mysuru, whereby I.A.No.VII filed by the respondent No.9(a) therein under Order XX Rule 18 sub rule 2 of CPC and I.A.No.VIII filed under Section 151 of CPC are dismissed.

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NC: 2024:KHC:48201 WP No. 11422 of 2016

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The petitioners are the husband and children of late Shamsunnisa, who was defendant No.2 in O.S.No.303/1988 arrayed as respondent No.9 in FDP No.26/2007.

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The facts of the case are that the entire house property bearing Door No.2346, Mission Hospital Road, Mandi Mohalla, Mysore, measuring East to West wall 50 feet and North to South Wall by 35 feet was owned by one Mohammed Imam, son of Mohammed Peer Sab. He died intestate on 09.09.1977 leaving his younger brother Mohammed Kasim, wife Shahazadi Bi and two sisters namely Mehaboob Bi and Zainab Bi. After the death of her husband Shahzadi Bi had sold a portion of the property of her husband on 22.06.1987 by way of a registered sale deed to Late Shamsunnisa i.e., wife of the 1^st Petitioner for valuable consideration and according to the petitioners, they are in actual physical possession and enjoyment of the property. It is stated that O.S.No.303/1988 was filed by the children of Mohammed Kasim and sisters of Mohammed Imam seeking partition and separate possession of 37/88^th share for plaintiff Nos.1 to 7 and 1/4^th share to Plaintiff No.8 out of suit schedule property. In the said suit, Smt.Shahazadi Bi, wife of Mohammed Imam was arrayed as 1^st defendant and

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NC: 2024:KHC:48201 WP No. 11422 of 2016

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Shamsunnisa, wife of the 1^st petitioner herein was arrayed as defendant No.2.

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During the pendency of the suit, Shahida Begum, wife of Anwar Pasha had purchased part of the property of deceased Mohammed Imam from Shahazadi Bi under sale deed dated 17.08.1989 and she was made as 9^th defendant in O.S.No.303/1988. She did not file any written statement and did not participate in the proceedings and on 01.08.1997, preliminary decree was passed in favour of plaintiff Nos.1 to 7 and defendant Nos.2 and 3 and L.Rs of 8^th plaintiff. Against the said decree, the 9^th defendant in the suit filed R.A.No.6/1988 which came to be dismissed on 03.09.2001. Then she filed R.S.A.No.290/2002 before this Court which came to be partly allowed on 10.09.2004 holding that the 1^st defendant Shahazadi Bi, widow of Mohammed Imam was entitled for 1/4^th share and that the same would enure to the benefit of 9^th defendant namely Shahida Begum as she was the purchaser of the property from the 1^st Defendant. Thereafter 2^nd defendant filed Review Petition No.1/2005 in R.S.A.No.290/2002 and after appreciating that the Court by order dated 08.01.2010 allowed the review petition holding that 1/4^th share of 1^st defendant

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namely Shahazadi Bi should enure to the benefit of 2^nd defendant. Against the order passed in Review Petition, Shahida Begum who is the 9^th defendant had filed C.A.No.5353/2013 before the Hon’ble Supreme Court of India. The Appeal was disposed off on 09.07.2013 as follows:

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“In the order passed in second appeal which was sought to be reviewed it was necessary to state that Defendant No.9 was representing the estate of Sharifunnisa (sic.Shahzadi Bi) defendant No.1-widow of Mohd. Imam. There was no occasion before the High Court to decide the priority of rights between the petitioner and the respondent. That was not contested before the High Court. We, therefore, clarify that the order in paragraph 9 of second appeal wherein it refers to defendant No. 9 it will mean only as a representative of Sharifunnisa (Shahazadi Bi) defendant No.1-widow of Mohd. Imam.

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It will be open to the parties to work out their remedy, if they want, by taking appropriate recourse.

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The appeal is allowed in the above terms.”

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In the meanwhile, the 9^th defendant had filed

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FDP.No.26/2007 on 12.11.2007 and during the pendency of the proceedings, Shamsunnisa - defendant No.2 and respondent No.9 in FDP died and the petitioners were impleaded as

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party - respondent No.9(a) to (c) and thereafter, I.A.No.VII was filed by the 1^st petitioner under Order XX Rule 18(2) read with Section 151 of CPC requesting the trial Court to pass a fresh preliminary decree or suitably modify or amend the previous preliminary decree thereby allotting the 1/4^th share of deceased 1^st defendant to the petitioner after recording evidence, if necessary. He also filed I.A.No.VIII under Section 151 of CPC to post the case for enquiry to decide on the dispute between Shamsunnisa (2^nd defendant) and Shahida Begum, 9^th defendant including priority rights pertaining to the property/share of the 1^st defendant.

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The trial Court by order impugned had dismissed these applications observing that the Court has already issued the Commissioner Warrant to the 1/4^th share of the respondent herein. The commissioner has already submitted the report. It is observed that the right of the petitioner/defendant No.9 Shahida Begum is already declared and confirmed by the Hon’ble Appellate Courts and there is no scope for the Court to again give a finding on the rights of the respondent. The Court also observed that there is no dispute about the fact that the second preliminary decree can be passed in the final decree

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proceedings also. But, there are no grounds in this case to do so. The trial Court had observed that the learned counsel for the respondent No.9(a) therein has listed the following as subsequent events which would help the parties for passing the second preliminary decree:

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(i) "the Petitioner without contesting in the trial Court filing R.A. and R.S.A.

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(ii) the Deceased D-2/R-9 filing a Review Petition

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(iii) the Petitioner filing Civil Appeal to the honorable Apex Court

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(iv) the observations of the Apex Court holding that it will be open to the parties to work out their remedy, if they want, by taking appropriate recourse and conferring on the Petitioner the status of only a representative of D-1 Shahzadi Bi and not holding her absolute ownership of the 1/4^th of D-1."

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The trial Court had observed that the grounds made out by the petitioner therein as subsequent events to pass a second preliminary decree are not valid and opined that the Court cannot again reconsider the question as to whether the defendant No.9 is entitled for a share in the suit property. Therefore, there is no necessity to again conduct the enquiry or to record evidence. Therefore, the above applications have to

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be dismissed and accordingly, I.A.No.VII and I.A.No.VIII were dismissed. Aggrieved thereby, the petitioners are before this Court.

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Learned counsel appearing for the petitioners submits

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that the trial Court by completely misdirecting itself had dismissed the applications. When the suit was decreed holding that the petitioners herein are entitled to the share of Shamsunnisa, the respondent herein i.e., defendant No.9 had preferred an appeal questioning the same and the regular appeal was dismissed. In the second appeal, without even considering the case of the petitioners, the Court has held that the share of the defendant No.1 will enure to the benefit of defendant No.9 and after that they filed the review petition. In the review petition, it is stated that it will enure to the benefit of defendant No.2. The Hon’ble Apex Court stated that the order can only be read as the defendant No.9 who was representing the estate of Sharifunnisa there was no occasion for the Court to decide the propriety of rights between defendant No.2 and defendant No.9. So, it is clarified that the paragraph No.9 of second appeal wherein it refers to defendant No.9, it will mean only as a representative of Shariffunnisa and

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it will be open to the parties to workout their remedy, if they want by taking appropriate recourse. Accordingly, I.A.Nos.VII and VIII were filed and the trial Court without considering all these aspects had dismissed the applications.

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Learned counsel appearing for the respondent No.9 submits that the trial Court had rightly considered all the aspects and the Appellant Courts have already conferred the rights of the parties and as such the application cannot be entertained and had rightly dismissed the applications.

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Having heard the learned counsels on either side, perused the entire material on record. In this case, the trial Court has held that the suit was initially decreed in favor of plaintiff Nos.1 to 7 and respondent No.2 and 3. In the second appeal, initially without deciding the rights of defendant No.2 it was held that the share of the 1^st defendant will enure to the benefit of 9^th defendant. Then in the review petition, it is observed by the Court that in the place of 9^th defendant it will enure to the benefit of 2^nd defendant. The Hon’ble Apex Court has made it clear that order in the second appeal where it refers to defendant No.9, it means only as a representative of Shariffunnisa. Now, both defendant No.2 and defendant No.9

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have purchased the property and the Hon’ble Apex Court has observed that it was never decided by the High Court with regard to priority of rights between defendant No.2 and defendant No.9 and the Hon’ble Apex Court had left it open to the parties to workout their remedies, if they want by taking appropriate recourse. When the application is filed by them, the Court went wrong in observing that the rights of the parties were crystallized. Now, in this case, who will have the priority for the share of defendant No.1, whether it is defendant No.2 or defendant No.9 has to be decided by the Court. In view of the above discussion, the trial Court shall decide the application filed by the petitioners herein in accordance with law. In the light of the above discussion, this Court is passing the following order:

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ORDER

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i. The order passed in I.A.Nos.VII and VIII in FDP.No.26/2007 dated 02.02.2016 by the Principal Senior Civil Judge, Mysuru, is set aside and the matter is remanded back to the trial Court.

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ii. The trial Court shall consider the applications in accordance with law within a period of 6

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11 -

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NC: 2024:KHC:48201 WP No. 11422 of 2016

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months from the date of receipt of copy of the order.

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iii. Accordingly, the writ petition is allowed.

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iv. All I.As. in this writ petition shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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MEG CT:BCK LIST NO.: 2 SL NO.: 3

M.A. Anwar Pasha v. Shahida Begum

Case brief

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M.A. Anwar Pasha v. Shahida Begum

Case brief

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