IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.52198/2017 (GM – CPC) BETWEEN:
Sri. Azam Aged about 42 years S/ Sri. Late Pyaru Sab Timber Merchant Mutawalli, Mecca Masjid R/at Siddhartha Nagara Heggere Post Tumkur Taluk & District – 572101.
(By Sri Jayakumar S Patil, Sr. Advocate a/w Sri. Mustaq Ahmed, Advocate) AND:
Sri Babu S/o Late Abdul Jabbar Khan Aged about 52 years R/at Heggere Village Kasaba Hobli Tumkur Taluk & District - 572101.
...Petitioner ... Respondent (By Sri M. B. Chandrachooda, Advocate for C/R) This Petition is filed under Article 227 of the Constitution of India, praying to quash annexure-E in M.A.No.41/2015 passed on 17.10.2017 by the Principal Senior Civil Judge and CJM at Tumakuru and etc.
This Petition coming on for preliminary hearing, this day, the Court made the following:
O R D E R The petitioner-defendant has filed the present writ petition against the order dated 17.10.2017, made in M.A.No.41/2016 on the file of the Principal Senior Civil Judge and CJM, Tumakuru, allowing the appeal filed by the respondent-appellant by setting aside the order passed by the trial Court on 27.08.2016 on I.A.No.1 filed under Order 39 Rules 1 and 2 of Code of Civil Procedure (hereinafter referred as ‘CPC’ for short).
2. The respondent-plaintiff filed the suit for permanent injunction contending that suit schedule property belonged to his grandfather Sri. Mohamed Khan. The plaintiff by virtue of inheritance is the absolute owner, in possession and enjoyment of the suit schedule property having right, title and interest over the same. For the purpose of establishing the relationship of the plaintiff, a copy of genealogical tree was produced to show that the father of the plaintiff and thereafter the plaintiff is in peaceful possession and enjoyment of the suit schedule property without any interference from anybody much less the defendant. Hence the suit is filed for permanent injunction.
3. Petitioner-defendant has filed written statement contending that suit is not maintainable and sought for dismissal of the suit. He further contended that originally the suit schedule property belongs to Mohamend Khan of Heggere Village and on 01.05.1922, the said Mohamed Khan had executed the unregistered Will in favour of his sons and daughters and the said Will clearly depicts that the suit schedule property left for burial ground i.e., Kabaristan to the Muslim community as there is no burial ground at Heggere village for Muslims and also discloses that the suit schedule property shall not be encumbered, etc. Hence, sought for dismissal of the suit.
4. Respondent-plaintiff also filed application under Order 39 Rules 1 and 2 of CPC for temporary injunction restraining the defendant or anyone else claiming through or under him in any way from interfering with the peaceful possession and enjoyment of the suit schedule property. Petitioner- defendant has filed objections to the said application. The trial Court by considering the application and objections, recorded a finding that plaintiff has not made out any prima facie ground for grant of temporary injunction and accordingly I.A.No.1 came to be dismissed by an order dated 27.08.2016.
5. Aggrieved by the said order, plaintiff filed an appeal before the lower Appellate Court in M.A.No.41/2016. The lower Appellate Court, considering the entire materials on record by the impugned order dated 17.10.2017 allowed the appeal and set aside the order of the trial Court restraining the defendant from putting up any compound or interfering with the peaceful possession and enjoyment of the suit schedule property except using the land for burial pending disposal of the suit. Hence, the present petition is filed.
6. I have heard the learned Counsel for the parties to the lis.
7. Sri. Jayakumar S Patil, learned Senior counsel appearing for petitioner-defendant contended that the impugned order passed by the lower Appellate Court granting temporary injunction for the first time is erroneous contrary to the material on record. He would further contend that respondent- plaintiff is claiming his possession under the unregistered Will. In the said Will, it is specifically stated that suit schedule property to be used as burial ground/Kabaristan for Muslim community. The lower Appellate Court by the impugned order reversed the discretionary order passed by the trial Court and granted temporary injunction restraining the defendant from putting up compound wall and interfering with the peaceful possession and enjoyment of the suit schedule property without any basis and the same is liable to be quashed. Therefore, he sought for allow the writ petition.
8. Per contra, Sri. M.B. Chandrachooda, learned counsel appearing for respondent-plaintiff sought to justify the impugned order passed by the Appellate Court and contended that there are trees in the suit schedule property which exclusively belonged to the plaintiff. As per the Will the suit schedule property meant for Kabaristan for Muslim community. In the guise of the same, defendant should not interfere with the possession of the plaintiff and defendant cannot claim any ownership over the property in question. The ownership is vested only with plaintiff under the Will and permission granted to the Muslim community to use the land only for burial ground/Kabaristan. Therefore, he sought for dismissal of the writ petition.
9. Having heard the learned counsel for the parties, it is not in dispute that plaintiff has filed a suit for injunction and defendant has filed written statement contending that suit schedule property is only meant for Kabaristan. Whether suit schedule property belonged to plaintiff or meant for Kabaristan has to be adjudicated only at the time of trial. At this stage this Court is concerned only in respect of temporary injunction sought by the plaintiff. The plaintiff’s application for temporary injunction is for restraining the defendant from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff and from dispossessing him from the suit schedule property. The trial Court proceeded to reject the said application mainly on the basis of the Will executed by Mohamed Khan in the year 1922. The lower Appellate Court considering the recital of the Will executed in the year 1953 has allowed the appeal, restraining the defendant from putting up any compound wall or interfering with the peaceful possession and enjoyment of the suit schedule property except using the land for burial pending disposal of the suit.
10. On careful perusal of both the Wills dated 01.05.1922 and 20.01.1953, which clearly depicts that the executant had an intention to donate the land for Kabaristan. Therefore, the recitals of the Wills specifically depicts that the plaintiff shall not disturb the people from the Muslim community for the use of the suit schedule property for burial ground/Kabaristan and possession of the suit schedule property including trees situated therein is belonged to plaintiff only.
11. Learned counsel for respondent-plaintiff fairly submits that the plaintiff will not disturb the Muslim community for the use of the suit schedule property for burial ground or their regular rituals performed by them. The said submission is placed on record.
12. In view of the above, writ petition is disposed of directing the petitioner-defendant not to put up any structure in the suit schedule property except using the land for burial ground/Kabaristan.
At the same time, plaintiff is also directed not to obstruct the people from the Muslim community for the use of the suit schedule property for burial ground or their regular rituals till the disposal of the suit.
13. Since the original suit in O.S.No.93/2015 is of the year 2015, the trial Court is directed to dispose of the same as expeditiously as possible subject to co-operation of the parties to the lis and the parties are directed to maintain the suit schedule property as Shanthidhama till the disposal of the suit.
Ordered accordingly.
Sd/-
JUDGE SN