M/S Dra Projects Pvt. Ltd. Vs Mariyam Nazareth

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NC: 2025:KHC:46248 CRP No. 662 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 662 OF 2023 (IO)

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BETWEEN:

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M/S DRA PROJECTS PVT LTD REPRESENTED BY ITS DIRECTOR, SRI DHARMESH RANKA S/O DINESH RANKA AGED ABOUT 68 YEARS, OFFICE AT RANKA CHAMBERS NO.1B, I FLOOR, 31, CUNNINGHAM ROAD, BANGALORE - 560 052.

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…PETITIONER

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(BY MS.VAARUNI FOR SMT.MANEESHA KONGOVI, ADVOCATES) AND:

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MARIYAM NAZARETH D/O M M KHAJAPEER AGE 20 YEARS, RESIDING AT NO.1327, 14^TH MAIN, BTM LAYOUT, 2^ND STAGE, BANGALORE – 560 076.

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Digitally AGE 20 YEARS, signed by RESIDING AT NO.1327, 14^TH MALATESH BTM LAYOUT, 2^ND STAGE, K C BANGALORE – 560 076. Location: HIGH COURT OF 2. SMT. MAHAMOODA BEGUM KARNATAKA WIFE OF ABDUL WAHIB D/O J A RAHMAN KHAN, AGEDA BOUT 72 YEARS, R/AT NO.125, 7^TH CROSS, HMT LAYOUT, R.T NAGAR BENGALURU- 560 032.

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NC: 2025:KHC:46248 CRP No. 662 of 2023

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SRI JAFFER ALI MANSOOR S/O OF ABDUL WAHIB AGED ABOUT 36 YEARS,

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SRI NOOR FATHIMA D/O OF ABDUL WAHIB AGED ABOUT 30 YEARS,

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SRI AYESHA FATHIMA D/O OF ABDUL WAHIB AGED ABOUT 33 YEARS,

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ABOVE RESPONDENTS NO.3 TO 5 ARE ALL RESIDING AT NO.17, 3^RD CROSS, VR PURAM, PG HALLI, BANGALORE – 560 003

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ABOVE RESPONDENTS 3 TO 5 ALL RESIDING AT NO.17 AND 3^RD MAIN, 3^RD CROSS VR PURAM, PG HALLI BANGALORE – 560 003

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…RESPONDENTS

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(BY SRI VIJAY, ADVOCATE FOR R1; SRI HEMANTH KUMAR.K, ADVOCATE FOR R2 TO R5)

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THIS CRP IS FILED UNDER SECTION 115 OF CIVIL PROCEDURE CODE AGAINST THE ORDER DATED 13.09.2023 PASSED ON IA IN O.S.No.307/2022 ON THE FILE OF LIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE IA FILED UNDER ORDER 7 RULE 11(a) AND (d) OF R/W SECTION 151 OF CPC FOR REJECTION OF PLAINT.

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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NC: 2025:KHC:46248 CRP No. 662 of 2023

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ORAL ORDER

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Heard Ms. Vaaruni, learned counsel for the petitioner. None appears for the respondents.

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Defendant No.6 is the revision petitioner challenging the order passed by the Additional City Civil Judge, Bengaluru in O.S.No.307/2022 rejecting the application filed under Order VII Rule 11 (a) and (d) of CPC.

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Facts in the nutshell which are utmost necessary for disposal of the present revision petition are as under:

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3.1. First respondent filed a suit in O.S.No.307/2022 with the following prayer in respect of following property:

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“Wherefore the plaintiff prays that this Hon'ble court be pleased to pass judgement and decree in favour of plaintiff against the defendant.

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(a) To pass judgement and decree for partition and separate possession of 1/5^th share in favour of plaintiff in the suit schedule property by meets and bounds.

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(b) Sale deed dated:18.02.2009 registered as Document No.HLS-1-01184/2009-10 and Deed of Rectification cum, Confirmation Deed dated: 26.05.2010 Registered as document No. HLS-1-

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00284 /2010-11, CD No.HLSD 21 are not binding of the plaintiff.

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(c) And such pass any other order or directions which deems fit in the facts and circumstances, of the case including cost in the interest of justice and equity.

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SCHEDULE

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All the piece and parcel of the Immovable property bearing No.13 measuring 46469 feet of land along with building and property bearing No.13/2 measuring 1450 square with building. This property is situated at Ulsoor Road, Ulsoor, Benglauru 8 bounded on:

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East by : Yellamma Kovil and Private Property West by :Ulsoor chanal (Main drainage) North by :Private Property South by :Private Property and Road”

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In the plaint it is contented that the suit property originally belonged to Jabbar Khan, who was the great grandfather of the plaintiff. He had only a son by name Rehman Khan who died in the year 1959 at Bengaluru, leaving behind his daughters namely, Razia Begum, Mohammeda Begum, Muneera Begum, Mumtaz Begum and a son by name Mohamedali Khan. Among them, Mohamoodda Begum, who is

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the first defendant, had a son and two daughters namely, Jaffer Ali, who is the second defendant and Noor Fathima, who is the third defendant. The other child is Ayesha Fathima, who is the fourth defendant and M.M. Khajapeer, who is the fifth defendant, being the husband of Muneera Begum. Said Muneera Begum has a daughter by name Mariam Nazareth, who is the plaintiff.

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It is further contented that defendant Nos.1 to 5 transferred the suit property to defendant No.6 by way of sale deed dated 18.12.2009 and there was a re-fortification cum confirmation deed on 26.05.2010, which was also registered, denying the share to the plaintiff, which was detrimental to her rights and therefore sought for grant of share in the suit property.

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Defendant No.6 pursuant to the suit summons entered appearance and filed written statement and also application under Order VII Rule 11 CPC, seeking rejection of the plaint supported by an affidavit wherein it is contended that at no stretch of imagination plaintiff has got any semblance of right over the suit property and suit is filed only with an

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NC: 2025:KHC:46248 CRP No. 662 of 2023

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intention to harass the defendant No.6 and to extract more money from defendant No.6 despite defendant No.6 having purchased the same under the valid sale deed.

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Said application was opposed to by the plaintiff by filing the written objections.

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Learned trial Judge after hearing the parties dismissed the said application inter alia holding as under:

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“During the arguments, the learned counsel for the plaintiffs have relied upon the decisions reported in (2006) 3 SCC in Mayar (H.K) Ltd and others V/S Owners and Parties, Vessel M.V Fortune Expresses and others. (2021) 9 SCC 99 in Srihari Hanumandas Tolala v/s Hemantha Withal Kamath and others

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I have gone through these decisions, the principles laid down in these decisions are well founded. The question of limitation is mixed question of law and facts. The decisions are aptly applicable to the case of the plaintiffs. There are no grounds to consider the applications filed on behalf of defendant No.6 at this juncture. Since, only on the basis of limitation point, the suit can not be dismissed. Therefore, in view of the discussion and in the present facts and circumstance of the cases. I made the following:

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ORDER

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.”The application filed u/O VII Rule 11 (a) and

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(d) on behalf of defendant No.6 is hereby dismissed.”

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Being aggrieved by the same, defendant No.6 has

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filed a present revision petition on following grounds:

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The impugned order dated 13.09.2023 passed by the Trial Court is highly unreasonable, arbitrary, and perverse in law. The impugned order is passed without considering the application filed by the Petitioner and also without giving proper reasons for the same.

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The impugned order passed by the Trial Court is totally illegal, contrary to the law, facts and circumstances of the case. Hence the same is liable to be set aside.

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 It is submitted that, a suit for partition in Mohammedan Law is only maintainable against the estate of the father of Respondent No.1. The Plaintiff has no right to this property Respondent No.1. The Plaintiff has no right to this property. Succession in Mohammedan law opens on death and not of right gets vested on birth of the successor. However, the present suit neither makes any allegation nor provides the details of the estate of the father of the Plaintiff. Hence, the same is not maintainable in law.

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The present suit is filed seeking a share in the property of the maternal grandfather of the Plaintiff, which is essentially prohibited in Mohammedan Law. Hence, the suit is barred by the principles of Mohammedan Law and is liable to be dismissed at the outset.

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The trial court failed to consider that, The Plaint does not disclose any cause of action either on the facts stated therein or otherwise and is impermissible, even under the principles of Mohammedan Law.

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The trial court failed to consider that, even if the documents and the plaint averments are taken and read as a whole, the present suit cannot be sustained in light of the provisions of Order 23 Rule 4 of the Civil Procedure Code, where if a party has to challenge it cannot be through a fresh suit but to restore the old suit and challenge the compromise decree.

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 The trial court failed to consider that The present Plaint itself admits in para 6, that there was a compromise in O.S.No.25294/2010 between her father acting as natural guardian and the Petitioner, which came to be accepted and recorded on the court records as a compromise decree. Therefore it is not necessary for the Respondent No.1 to obtain a court permission to grant her partition share when it is already settled by her father.

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Additionally, the trial court failed to consider that Respondent No.1 was the Plaintiff No.2 in O.S. 25294/2010, therefore the prayer in the former suit is the same as the prayer sought in the latter suit, i.e. the present suit O.S 307/2022. Therefore, such Plaint is clearly bad in law.

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The trial court failed to consider the arguments raised and citations placed on record but has vaguely passed the impugned order on the understanding that the present suit cannot be barred by limitation and such question of limitation is a mixed question of fact and law.

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It is pertinent to note that, The trial court failed to take into consideration the Petitioner's contentions for passing the impugned order but has rejected the application on the grounds that are not even urged by our counsel nor is it remotely close to any grounds raised by the Petitioner in the Interlocutory application.

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 The impugned order is erroneous in law in as much as the Trial Court failed to assign proper reasons to dismiss the Interlocutory Application filed by Defendant No.6/Petitioner. The impugned order is passed without considering the facts and circumstances of the case and is totally erroneous in law.

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The Trial Court has failed to consider that the Plaintiffs/Respondent No.1 have filed suppressing the material facts.”

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Ms. Vaaruni, learned counsel for the petitioner, reiterating the grounds urged in the petition, contented that there is no cause of action to the suit and suit is barred by limitation as regard to the date of execution of the sale deed refortification cum confirmation deed.

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She would also contend that plaintiff has no semblance of right in respect of the suit property being the granddaughter and claiming the property from her maternal grandfather and therefore, very suit itself is not maintainable.

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Counsel for respondent is absent. Hence, this Court perused the material on record based on the arguments put forth on behalf of the petitioner.

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On such consideration of the material on record, in the long affidavit in support of the application filed under Order VII Rule 11 there is no mention as to how the plaintiff is not having any rights in respect of the suit property especially when defendant No.6 has purchased the property from defendant Nos.1 to 5.

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Further, there is no mention as to whether the vendors of defendant No.6 are Sunni Muslims or Shia Muslims.

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However, in India generally Muslims are Sunni

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Muslims. This assumes importance because of the fact that there is a different sharing pattern of pre-designated shares under the Mohammedan law unlike Hindu law for Sunni and Shia Muslims.

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Further, no such details are forthcoming in the affidavit as to contents that plaintiff has no semblance of rights in the aspect of the suit property.

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Further, when plaintiff asserts that she is having the right over the suit property and the defendant No.6 denies, it is a tribal issue which will have to be thrashed out by recording the evidence of the parties.

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In other words, matter demands full-fledged trial in the case on hand. Under such circumstances, plaint cannot be thrown out at the threshold on the ground of want of cause of action.

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Further, question of limitation is also mixed question of law and facts in the case on hand in view of the fact that admittedly plaintiff was a minor when the alleged sale deed took place. When she attained the majority, when she

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came to know about the transaction are all matters which are

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to be thrashed out by recording the evidence.

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Hence, the grounds urged in the revision petition are hardly sufficient to revise the order passed by the trial Court, though not the impugned order is happily worded and adequate reasons are supplied.

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