Vafa S/O Zakhir Husain Vs Ajmi D/O Badruddin

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NC: 2026:KHC:33959 W.P. No.12304/2021

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF JULY, 2026 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.12304/2021 (GM-CPC)

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BETWEEN:

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VAFA S/O ZAKHIR HUSAIN AGED 14 YEARS SINCE MINOR BY HIS FATHER NATURAL GUARDIAN ZAKHIR HUSAIN AGED 45 YEARS R/AT AZAD ROAD SAKALESHPUR TOWN-573 134 HASSAN DISTRICT.

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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SRI. ZAKHIR HUSAIN S/O T.H. ABDUL KHADAR AGED 45 YARS R/AT AZAD ROAD SAKALESHPUR TOWN-573 134 HASSAN DISTRICT.

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…PETITIONERS

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(BY SRI. VIGHNESHWAR S. SHASTRI, SR. COUNSEL FOR SRI. GURURAJ R, ADV.,)

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AND:

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AJMI D/O BADRUDDIN AGED 8 YEARS SINCE MINOR BY HER FATHER NATURAL GUARDIAN AJMI S/O BADRUDDIN AGED 44 YEARS R/AT AGRAHARA SAKELESHPUR TOWN-573 116

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NC: 2026:KHC:33959 W.P. No.12304/2021

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HC-KAR

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HASSAN DISTRICT.

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BADRUDDIN S/O T.H. ABDHUL KHADAR AGED 37 YEARS R/AT AGRAHARA SAKELESHPUR TOWN-573 116 HASSAN DISTRICT.

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T.H. ABDUL KHADAR S/O LATE M. HAMMABBA AGED 76 YEARS. [DECEASED, RESPONDENT 4 TO 6 ARE THE LR’S OF R3 ALREADY ON RECORD] [AMENDMENT CARRIED AS PER THE ORDER OF THE COURT DATED 04.03.2022]

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SMT. AYISHA BANU W/O HASAN BHAVAN D/O T.H. ABDUL KHADAR AGED 48 YEARS R/AT KUPPE PADAVU BANTWAL TALUK-574 144 DAKSHINA KANNADA DISTRICT.

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SMT. SAHEERA BANU W/O P.A. MOHIDDIN D/O T.H. ABDUL KHADAR AGED 46 YEARS R/AT NEAR POST OFFICE PADUBIDRI-574 111, UDUPI TALUK DAKSHINA KANNADA DISTRICT.

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RAHAMATH T.H. ABDUL KHADAR AGED 35 YEARS R/AT AJAD ROAD SAKALESHPUR TOWN-573 134 HASSAN DISTRICT.

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HC-KAR

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SYED MUFIZ S/O SYED AMIR SAB AGED 44 YEARS R/AT KUSHALANAGAR EXTENSION SAKALESHPURA TOWN-572 134 HASAN DISTRICT.

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SMT. JEENATH W/O MOHAMMED SHARIFF AGED 44 YEARS R/AT K.M.ROAD MUDIGERE TOWN-577 132 CHIKKAMAGALURU DISTRICT.

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NAWAZ KHAN S/O BASHA KHAN AGED 32 YEARS R/AT HANUBALU VILLAGE POST AND HOBLI SAKALESHPUR TALUK -573 165 HASSAN DISTRICT.

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MOHAMMED SHARIFF S/O B.H. ABDUL KHADAR AGED 42 YEARS R/AT MUDIGERE TOWN-577 132 CHIKKAMAGALURU DISTRICT.

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…RESPONDENTS

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(BY SRI. K.S. UDAY, ADV., FOR R7 & R8 SRI. SIRAJUDDIN AHMED, ADV., FOR R10 V/O/DTD:04.03.2022, R4 TO R6 ARE LR’S OF DECEASED R3 R1, R2, R4, R5, R6 & R9 ARE SERVED)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD 20.04.2021 PASSED ON IA NO.20 IN OS NO.82/2013 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, SAKALESHPURA VIDE ANNX-H & ETC.

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NC: 2026:KHC:33959 W.P. No.12304/2021

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HC-KAR

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 20.04.2021 passed on IA.No.20 in OS.No.82/2013 by the Additional Civil Judge and JMFC, Sakaleshpura (for short ‘the trial Court’).

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Sri.Vighneshwar S. Shastri, learned senior

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counsel appearing for Sri.Gururaj R., learned counsel appearing for the petitioners submits that the petitioners are plaintiff Nos.1 and 3 in a suit filed by them along with respondent Nos.1 and 2 seeking partition and separate possession against respondent Nos.3 to 10. It is submitted

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that the case of the plaintiffs in the plaint is that the suit schedule property belongs to their family and that they are entitled to their respective shares in the said property and sought for partition by specifically contending that defendant No.1 has no right whatsoever to sell the suit

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HC-KAR

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schedule property in favour of defendant Nos.5 and 6. It is further submitted that, during the course of the proceedings, plaintiff Nos.2 and 4 took a stand contrary to that of plaintiff Nos.1 and 3. It is also submitted that plaintiff No.4 having engaged a separate counsel examined himself as PW2 and his evidence clearly supported the case of defendant No.1. Hence, plaintiff Nos.1 and 3 filed an application seeking transposition of plaintiff Nos.2 and 4 as defendant Nos.7 and 8 in the suit, which came to be rejected by trial Court by erroneous reasoning. It is contended that when co-plaintiffs take different stand on the issue and contrary to the other plaintiffs and supports the case of defendants, they are required to be transposed as the defendants. However, the trial Court erroneously held that the petitioners could have cross-examined PW2 and such a finding runs contrary to the decision of the Hon'ble Supreme Court in the case of

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R.Dhanasundari @ R.Rajeswari v. A.N.Umakanth and

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HC-KAR

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Others¹ as well as the decision of the Division Bench of

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the Kerala High Court in the case of Janadas v. Vedanayagam² . Accordingly, he seeks to allow the petition.

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Sri.Uday K.S., learned counsel appearing for

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respondent Nos.7 and 8 supports the impugned order of the trial Court and seeks to dismiss the petition.

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Despite service of notice, there is no

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representation for the other respondents.

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I have heard the arguments of the learned

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senior counsel appearing for the petitioners, the learned counsel for respondent Nos.7 and 8 and perused the material available on record.

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The petitioner Nos.1 and 2 along with respondent Nos.1 and 2 filed a suit in OS.No.82/2013 seeking the relief of partition and separate possession of 1 (2020) 14 SCC 1

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2 2004 SCC OnLine Ker 501

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HC-KAR

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the suit schedule property. The plaintiffs in the plaint have specifically averred that the suit schedule property originally belonged to one Sakeena @ Shakheena, who is the mother of plaintiff Nos.3 and 4 and is the grandmother of plaintiff Nos.1 and 2 and that the plaintiffs are entitled to their shares therein and sought for partition. Defendant Nos.5 and 7 filed a written statement contending that defendant No.1 had a Will in his favour and based on such Will he has executed the sale deed in favour of defendant Nos.5 and 6 and that the suit is not maintainable, hence sought for dismissal of the suit.

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7. It is required to be noticed that plaintiff Nos.2

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and 4 engaged a separate counsel to represent them. Plaintiff No.4 entered the witness box as PW2 and deposed supporting the case of defendant No.1, thereby taking a contrary stand to the stand of plaintiff Nos.1 and 3, which compelled plaintiff Nos.1 and 3 to file an application in IA.No.20 under Order I Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') seeking

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NC: 2026:KHC:33959 W.P. No.12304/2021

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HC-KAR

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transposition of plaintiff Nos.2 and 4 as defendant Nos.7 and 8. The trial Court, under the impugned order rejected the said application.

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It is further required to be noticed that plaintiff No.4 has stated that he has no objection to allow the said application. The trial Court, under the impugned order recorded the reasons that if plaintiff No.4 has adduced the evidence contrary to the case of the other plaintiffs, such plaintiffs had every right and opportunity to cross-examine plaintiff No.4 but the plaintiffs did not choose to do so; hence, the application for transposition cannot be allowed. In my considered view, the said approach of the trial Court is contrary to the settled principles of law laid down by the Hon'ble Supreme Court as well as the Kerala High Court in the aforesaid decisions referred supra .

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The perusal of the evidence of PW2/plaintiff No.4 makes it abundantly clear that plaintiff Nos.2 and 4 have taken a contrary stand as opposed to the stand of

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NC: 2026:KHC:33959 W.P. No.12304/2021

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HC-KAR

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the other plaintiffs and they turn hostile supporting the case of defendant No.1 and the purchasers. It is also required to be noticed that respondent Nos.1 and 2 herein who are plaintiff Nos.2 and 4 before the trial Court were served, remained absent. When things stood thus, I am of the considered view that the writ petition deserves to be allowed by allowing the application for transposition of plaintiff Nos.2 and 4 as defendants. For the preceding analysis, I proceed to pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The impugned order dated 20.04.2021

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passed on IA.No.20 in OS.No.82/2013 by the

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Additional Civil Judge and JMFC, Sakaleshpura is hereby set aside. Consequently, IA.No.20 filed by the petitioners/plaintiff Nos.1 and 3 under Order I Rule 10 of the CPC is allowed.

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