Smt. Akheela Begum Vs Sri Nadimulla Khan

SRI. NADIMULLA KHAN S/O ANWAR KHAN AND LATE BEGUM JAN, AGED ABOUT 51 YEARS, R/AT KONDASHETTAHALLI VILLAGE, TEKAL HOBLI, MALUR TALUK-563130, KOLAR DISTRICT.

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PRESENT ADDRESS AT BAGURU, SONNENNAHALLI VILLAGE, JAWASA CITY LAYOUT, LAKKUR HOBLI, MALUR TALUK-563130, KOLAR DISTRICT.

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SMT. TASIN TAJ D/O ANWAR KHAN, AGED ABOUT 66 YEARS,

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SRI. SADIQULLA KHAN, S/O ANWAR KHAN, AGED ABOUT 62 YEARS,

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SRI. AJAMAL ULLA KHAN S/O ANWAR KHAN, AGED ABOUT 60 YEARS, PRESENT ADDRESS AT BAGURU, SONNENNAHALLI VILLAGE,

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HC-KAR

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JAWASA CITY LAYOUT, LAKKUR HOBLI, MALUR TALUK-563130, KOLAR DISTRICT.

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SRI. IKRAM ULLA KHAN S/O ANWAR KHAN, AGED ABOUT 56 YEARS,

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SMT. RESHMA D/O ANWAR KHAN, AGED ABOUT 46 YEARS,

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R2 TO R6 ARE R/ AT KONDASHETTAHALLI VILLAGE, TEKAL HOBLI, MALUR TALUK-563130, KOLAR DISTRICT.

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SRI. IQBAL KHAN, S/ O ANWAR KHAN, AGED ABOUT 76 YEARS, R/ AT BAGURU, SONNENNAHALLI VILLAGE, JAWASA CITY LAYOUT, LAKKUR HOBLI, MALUR TALUK-563130, KOLAR DISTRICT.

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…RESPONDENTS

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(BY SRI. H.L. NAGARAJA, ADVOCATE FOR R1 TO R6; SMT. VANAJAKSHI P., ADVOCATE FOR R7)

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THIS MFA FILED UNDER ORDER 43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 03.06.2025 PASSED ON IA.NO.1 IN O.S.NO.343/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSAKOTE, ALLOWING IA.NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:36998 MFA No. 6218 of 2025

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed by the defendants No.1 to 6 being aggrieved by the order dated 03.06.2025 passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.343/2024 pending on the file of Senior Civil Judge and JMFC at Hosakote. The application is allowed, thereby injuncting defendants No.1 to 7 from alienating or creating any change over the suit schedule properties in favour of third parties.

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The plaintiffs have filed suit for partition and separate possession of 6/7^th share out of half share in the suit schedule properties and other consequential reliefs. It is the case of the plaintiffs that they are tenants in common and one Akbar Sab is the original propositus who has five children. The plaintiffs have acquired right through Begum Jan who is daughter of Ghouse Peer Sab. Ghouse Peer Sab is the second son of Akbar Sab.

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HC-KAR

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Therefore, it is the pleading that there was no earlier partition effect between the plaintiffs and defendants. Hence, filed the suit for partition.

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On the other hand, it is the sum and substance of the defendants in the statement of objections that there was earlier partition. Hence, the suit for partition is not maintainable.

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The trial Court has allowed I.A.No.1 and granted ad-interim injunction. On perusal of the documents, the trial Court assigned the reasons that defendants have not produced any documents to show that there was partition between Ghouse Peer Sab and Abdul Sab. Therefore, if nature of property is changed or alienated, then the plaintiffs would be deprived of getting share. Therefore, the trial Court allowed the application for temporary injunction.

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Heard arguments from both sides and perused

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the materials furnished in the appeal.

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NC: 2025:KHC:36998 MFA No. 6218 of 2025

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HC-KAR

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The following points arises for consideration of

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this Court are:

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(i) Whether, under the facts and circumstances of the case, the defendants demonstrate that the plaintiffs have not made out prima facie case so as not to grant an ad-interim injunction?

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(ii) Whether, under the facts and circumstances of the case, the defendants demonstrate that the plaintiffs have not made out balance of convenience on the basis of the materials produced before the trial court so as not to grant an ad-interim injunction?

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(iii) Whether, under the facts and circumstances of the case, the defendants demonstrate that the plaintiffs would not suffer any irreparable loss or injury, if ad-interim injunction is not granted?

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Learned counsel for defendants No.1 to 6

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submitted that there was earlier partition and it was acted upon and accordingly, there was mutation taken place and places reliance on the mutation extract by placing the said

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document by way of application filed under Order XLI Rule 27 of CPC. Therefore, it is the principal contention of the appellants/defendants No.1 to 6 that there was earlier partition and what are the shares allotted to Khadar Shariff, the same was not included in the suit for partition. It is further submitted that all the properties were not included even though the plaintiffs knew that there are various other properties belonging to the joint family. Therefore, submitted that the suit filed for partial partition and separate possession is not maintainable.

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It is contended by learned counsel for the defendants that the plaintiffs have filed application for amendment of plaint for inclusion of other properties in the suit and also for impleading other legal heirs. Therefore, the plaintiffs have not made out prima-facie case. Even if ad-interim injunction is not granted, then the plaintiffs would not suffer any loss. At the most even if the suit is decreed, the plaintiff will get 6/7^th share out of half share and for this, claiming share in the entire property is

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HC-KAR

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not correct. Therefore, prays to make interference in the order of the trial Court.

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On the other hand, learned counsel for the plaintiffs/respondents submitted that there is no previous partition and all the defendants are tenants in common, hence, the plaintiffs are entitled to get share in the property and this is not considered by the trial Court and the effect of the order is only restraining the defendants from further alienations to avoid multiple proceedings. Therefore, justified the order passed by the trial Court and prays to dismiss the appeal.

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The suit is filed for partition and separate possession claiming share of 6/7^th share out of half share in the suit schedule properties. Initially, the suit is filed in respect of two properties. It is the contention of the appellants/defendants No.1 to 6 that there are still other properties, but they are not included and places reliance on the documents of mutation extract dated 30.06.1998.

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HC-KAR

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The defendants have not placed this document before the trial Court. Therefore, the trial Court has held that the defendants had not placed any documents for consideration. This document is filed in this appeal by invoking Order XLI Rule 27 of CPC.

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The trial Court in the order had observed at paragraph No.11 that by virtue of the mutation bearing No.IHC.13/1997-98 katha was mutated in their names and they have partitioned their properties, but in subsequent paragraph No.12, the Trial Court had observed that defendants have not produced any documents to show that there was a partition was effected between Gouse Peer Sab and Abdul Sab. This document is considered as they have produced under Order XLI Rule 27 of CPC to consider prima facie to find out whether there was earlier partition or not. Upon perusal of mutation extract, khatha was effected after the death of Akbar Sab and in respect of various lands, some of which are not included in the suit

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HC-KAR

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have also been mutated as per shares arranged in between the predecessors of plaintiff and defendants.

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Learned counsel for the respondents submitted

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that this is not a document of partition but it is only mutation of entries after death of Akbar Sab. Whatever may be, but upon considering this mutation extract there is arrangement made of entering the names of the predecessors of plaintiffs and defendants. According to both the plaintiffs and defendants there was oral partition whether the predecessors of the plaintiffs are having equal share or not is the question to be considered in the suit, but at this stage, there was arrangement made for entering the name in the mutation extract. Further more, whatever shares given to the predecessors of plaintiffs, the same were not included in the suit. Therefore, in this regard, the submission made by the learned counsel for the appellants is found to be having force. Furthermore, the suit for partition is claiming share 6/7^th share in the 1/2 share in the suit schedule properties. When this being

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HC-KAR

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the fact, claiming the share and then stopping the development of entire extent of suit schedule property is not correct. The plaintiffs are still having their inherent right to claim a share, but not to the entire extent, but a share in the partition of what they are claiming in the plaint, and they will get the share if the suit is decreed in its entirety. Hence, by ordering the defendants to reserve 6/7^th share in the 1/2 share in all the suit lands individually or together in combined then the order of injunction be lifted. Therefore, my answer to point Nos.1 to 3 in the partly affirmative .

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Therefore, the appeal is liable to be allowed-inpart. The defendants shall reserve 6/7^th share of lands out of 1/2 share as which is without making alienation of suit schedule property to any third parties and shall not make any encumbrances in respect of said reserve lands. Hence,

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I proceed to pass the following:

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