IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION Nos.8521 – 8522/2019 (GM – CPC) BETWEEN:
1. MOHAMMED SHAFIULLA KHAN S/O LATE G.M.SANAULLA KHAN, AGED ABOUT 50 YEARS R/AT DOOR NO.171/2, SEPPINGS ROAD, BANGALORE-560 001.
2. SMT.SHAHISTA BEGUM D/O LATE SRIG.M.SANAULLA KHAN, AGED ABOUT 39 YEARS R/AT NO.171, SEPPINGS ROAD, BANGALORE-560 001 REP. BY HER GPA HOLDER MOHAMMED SHAFIULLA KHAN S/O LATE G.M.SANAULLA KHAN, AGED ABOUT 50 YEARS, R/AT DOOR NO.171/2, SEPPINGS ROAD, BANGALORE-560 001. ... PETITIONERS [BY SRI HITESH KUMAR JAIN, ADV.] AND:
1. SMT.GHOUSIA KHATOON D/O LATE G.M.SANAULLA KHAN AGED ABOUT 48 YEARS R/AT NO.251, THIMMAIAH ROAD, THIMAIAH ROAD CROSS, NEHRU PURAM, BANGALORE-560 001.
2. SMT.SHAHIDA BEGUM W/O LATE SRI G.M.SANAULLA KHAN AGED ABOUT 70 YEARS R/AT NO.171, SEPPINGS ROAD, BANGALORE-560 001.
3. SMT.SURAIYA BEGUM D/O LATE SRIG.M.SANAULLA KHAN, AGED ABOUT 44 YEARS R/AT NO.2371, SEPPINGS ROAD, BANGALORE-560 001.
4. SMT.SUMAIYA BEGUM D/O LATE SRIG.M.SANAULLA KHAN, AGED ABOUT 42 YEARS R/AT NO.67/9, BTS MAIN ROAD, WILSON GARDEN, BANGALORE-560 030.
5. SRI SHOUIBULLA KHAN @ ABDUL GAFOOR KHAN, AGED ABOUT 31 YEARS R/AT NO.251, THIMMAIAH ROAD, BANGALORE-560 001.
6. SRI ABDUL REHMAN FATHERS NAME NOT KNOWN TO PETITIONER, MAJOR, R/T NO.2-C, SLAUGHTER HOUSE ROAD, SHIVAJINAGAR, BANGALORE-560 051.
7. SRI SYED BASHA JAN S/O LATE SRI SYED NASIR AHMED, AGED ABOUT 61 YEARS R/AT NO.27, MUNISWAMY ROAD, TASKER TOWN, BANGALORE-560 051.
8. SMT.ASMA BEGUM @ SAIRA JABEEN, D/O LATE SRI G.M.SANAULLA KHAN, AGED ABOUT 40 YEARS R/AT NO.171, SEPPINGS ROAD, BANGALORE-560 001.
9. SMT.NASREEN TAJ W/O SRI ZAMEERULLA KHAN, AGED ABOUT 50 YEARS R/AT NO.171/7, SEPPINGS ROAD, BHARATHINAGAR, BANGALORE-560 001.
10. SMT.KHAMAR TAJ W/O SRI AMEEN AMANULLA KHAN, AGED ABOUT 55 YEARS R/AT NO.171/7, SEPPINGS ROAD, BHARATHINAGAR, BANGALORE-560 001. …RESPONDENTS [BY SRI P.M.SIDDAMALLAPPA, ADV. FOR C/R-1;
SRI MOHAMED SHAIFULLA KHAN, ADV. FOR R-9 & R-10.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ALLOW THE WRIT PETITION WITH COSTS AND QUASH THE ORDERS OF I.A.NO.37 AND 38 PASSED BY THE I ADDL CITY CIVIL JUDE, CCH-2 AT BENGALURU IN O.S.NO.2372/2002 DATED 05.02.2019 AT ANNEXURE-J.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners have challenged the orders on I.A Nos.37 and 38 passed in O.S.No.2372/2002 on the file of the I Additional City Civil Judge, Bengaluru (‘Trial Court’ for short), whereby the said applications are dismissed.
2. Respondent No.1 herein has filed a suit in O.S.No.2372/2002 against the petitioners herein and others for partition and to allot 1/8th share in the schedule property to her.
3. In the said proceedings, the petitioners have filed Interlocutory Applications (I.A.Nos.37 and 38) under Order 16 Rule 1 of CPC and Section 151 of CPC to lead further evidence of witness by name Sri. Shakheel Abdul Rehaman P, learned Advocate. It is the contention of the defendans that the deceased – G.M. Sanaulla Khan had executed oral Hiba and allotted suit property equally to all his children. Ex.D37 is said to be the certified copy of the document styled as ‘Declaration of Oral Gift’. As could be seen from Ex.D37 at Annexure-D to the writ petitions, Shakheel Abdul Rehaman P’s name is neither found in the said document as a witness nor as an author. Merely, some signatures said to have been attested by the said learned advocate representing M/s P.H. Mohammed Associates, it cannot be construed that the said learned advocate would be necessary witness for adjudication of the dispute between parties. In the said circumstances, the Trial Court has rightly dismissed the application. No jurisdictional error is found in the order impugned.
Accordingly, the writ petitions stand dismissed.
Sd/- JUDGE PMR