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High Court of KeralaSingle JudgeOriginal petition dismissed.

Sulthan Said Ibrahim v. PRAKASAN, HABEEB RAHIMAN, K.A. JAFFER SADIQ, MOHAMMED ISMAIL, AKBAR BASHA, ABDUL NAZAR, MUMTHAZ, FIROSE, TASNI, RAHANA, DILSHAD, NIFAL, NISHA, RASWANA BEGUM (OP(C) No. 2290 of 2013 / OS 617 of 1996, Principal Sub Court, Palakkad)

Case / Petition Number:OP(C) No. 2290 of 2013

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V.G. Arun
Judgment Date
2021-11-29
Court Decision / Holding
In the result, the original petition is dismissed.
Final Disposition
Original petition dismissed.

Parties to the Case

Appellants / Petitioners

  • SULTHAN SAID IBRAHIM

Respondents

  • PRAKASAN
  • HABEEB RAHIMAN
  • K.A. JAFFER SADIQ
  • MOHAMMED ISMAIL
  • AKBAR BASHA
  • ABDUL NAZAR
  • MUMTHAZ
  • FIROSE
  • TASNI
  • RAHANA
  • DILSHAD
  • NIFAL
  • NISHA
  • RASWANA BEGUM

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri L. Rajesh Narayan

Counsels for Respondents

  • • Sri Rajesh Sivaramankutty

Case Synopsis & Summary

This is an original petition filed under Order OK? to delete the petitioner Sulthan Said Ibrahim from the party array in a long-running litigation concerning an order for specific performance. The first respondent had obtained a decree in a suit for specific performance against Jameela Beevi, the grandmother of the petitioner, directing the execution of a sale deed upon payment of the balance consideration. After Jameela Beevi’s death, her legal heirs were impleaded, with the petitioner added as the 8th respondent. The petitioner then moved Interlocutory Application No. 2348 of 2012 under Order 1 Rule 10(2) CPC seeking deletion from the array, arguing that he is not the legal heir of Jameela Beevi and that he had independent possession of the plaint schedule property since before the purchase by Jameela Beevi, evidenced by sale deeds and municipal licenses in his and her name. The trial court dismissed the application, prompting this petition. The respondents counter that the petitioner seeks to delay the execution of the sale deed and that the deletion is barred by res judicata, given prior proceedings and notices. The court heard arguments and ultimately dismissed the original petition, holding that the petitioner’s attempt is to stall the proceedings. The judgment emphasizes impleadment procedures, the effect of res judicata on interlocutory challenges, and the court’s authority to resolve party status in a long-standing property dispute.

Provisions of Law Cited

Order 1 Rule 10(2) of CPCSection 28 of the Specific Relief Act

Legal Doctrines & Maxims

  • Res judicata
  • Bona fide

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that the court below committed illegality by dismissing IA No. 2348/2012 without addressing the contentions raised. He contended that failure to inform the court that he is not a legal heir at the time of impleadment cannot be a ground to reject deletion from the party array. He pointed to documentary evidence such as the sale deed in favor of Jameela Beevi and the municipal license in the name of Shahul Hameed, as well as the petitioner's own license, to demonstrate independent possession of the plaint schedule property. He argued that under Mohammedan law, his status as a legal heir is disputed, and that his independence of possession warrants his deletion from the array so as to allow him to pursue an independent claim. He relied on Raziya Begum v. Sahebzadi Anwar Begum (AIR 1958 SC 886).

Contentions of Respondents

The respondents argued that the petitioner’s challenge is a delaying tactic to stall the sale deed, noting that the decree was passed in 2003 and execution has been delayed by the heirs’ actions. They asserted that the petitioner was properly impleaded as the 8th respondent after due enquiry under Order 1 Rule 10(2) CPC, and that the petitioner's allegations of independent possession are unfounded, having not been raised earlier or in related proceedings (CRP 233/2012). They highlighted prior proceedings, including I.A. 669/2009 and its dismissal, and submitted that the petitioner’s present application is ill-motivated and barred by res judicata. They contended that the delay is a strategic ploy to thwart the court-ordered execution and that no genuine rights independent of the legal heirs exist to justify deletion.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Raziya Begum v. Sahebzadi Anwar BegumAIR 1958 SC 886Mentioned OnlyCited by the petitioner; the present judgment references the case in context but does not adopt or distinguish its doctrine in the decision excerpt.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 2290 OF 2013** **OS 617/1996 OF PRINCIPAL SUB COURT, PALAKKAD** ## **PETITIONER/S:** SULTHAN SAID IBRAHIM AGED 35 YEARS S/O. SHAHUL HAMEED, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. BY ADV SRI.L.RAJESH NARAYAN ## **RESPONDENT/S:** 1 PRAKASAN AGED 48 YEARS S/O. SANKUNNI MANNADIYAR, MOOTHANTHARA, KOPPAM, PALAKKAD. 2 HABEEB RAHIMAN AGED 54 YEARS S/O. ABDUL KAREEM RAWTHER, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 3 K.A.JAFFER SADIQ AGED 50 YEARS S/O. ABDUL KAREEM RAWTHER, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 4 MOHAMMED ISMAIL AGED 48 YEARS S/O. ABDUL KAREEM RAWTHER, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 5 AKBAR BASHA AGED 46 YEARS S/O. ABDUL KAREEM RAWTHER, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 6 ABDUL NAZAR AGED 45 YEARS S/O. ABDUL KAREEM RAWTHER, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 7 MUMTHAZ AGED 54 YEARS W/O. SHAHUL HAMEED, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. O.P.(C) No.2290 of 2013 -2- 8 FIROSE AGED 34 YEARS S/O. SHAHUL HAMEED, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 9 TASNI AGED 36 YEARS D/O. SHAHUL HAMEED, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 10 RAHANA AGED 33 YEARS D/O. SHAHUL HAMEED, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 11 DILSHAD AGED 50 YEARS W/O. NIJAM, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 12 NIFAL AGED 22 YEARS S/O. NIJAM, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 13 NISHA AGED 24 YEARS S/O. NIJAM, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. 14 RASWANA BEGUM AGED 46 YEARS W/O. MOHAMMED NAZAR, ENNAKKOTTIL THERUVU, BIG BAZAR, PALAKKAD. BY ADV SRI.RAJESH SIVARAMANKUTTY **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23.09.2021, THE COURT ON 29.11.2021 DELIVERED THE FOLLOWING:** O.P.(C) No.2290 of 2013 -3- ## **JUDGMENT** **Dated this the 29[th] day of November, 2021** **The first respondent had filed a suit for specific performance against Jameela Beevi, grandmother of the petitioner. The suit was decreed directing the defendant to execute sale deed with respect to the plaint schedule property, in favour of the plaintiff after receiving the balance sale consideration. The defendant having failed to comply with the direction, plaintiff deposited the balance sale consideration and sought execution of the sale deed at the intervention of the court by filing I.A.No.2548 of 2003. Pending the interlocutory application, Jameela Beevi died and her legal heirs were impleaded. Accordingly, petitioner** O.P.(C) No.2290 of 2013 -4- **herein was impleaded as the 8[th] respondent. Much later, petitioner filed I.A.No.2348 of 2012 under Order 1 Rule 10 (2) of CPC, requiring the court to delete him from the party array on the premise that he was not the legal heir of Jameela Beevi. According to the petitioner, his father Shahul Hameed, brother of Jameela Beevi, had predeceased her and hence, as per Mohammedan Law, petitioner is not the legal heir of Jameela Beevi. Alternatively, it is contended that Shahul Hameed was a tenant in the plaint schedule building even before Jameela Beevi purchased the property, which is mentioned in Jameela Beevi's title deed itself. Even after the property was purchased by Jameela Beevi, Shahul Hameed and after his time, the petitioner continued to be in occupation and possession of the building. As such, petitioner** O.P.(C) No.2290 of 2013 -5- **has an independent claim over the property, which is being defeated by arraying him as a party on the premise that he is the legal representative of Jameela Beevi. By Ext.P11 order, trial court dismissed I.A.No.2348 of 2012 filed by the petitioner. Aggrieved, the original petition is filed.** **2. Heard Sri.L.Rajesh Narayan Iyer, learned Counsel for the petitioner and Sri.Rajesh Sivaramankutty, learned Counsel for the first respondent.** **3. Learned Counsel for the petitioner contended that the court below committed an illegality in dismissing petitioner's interlocutory application, without answering the contentions raised therein. It is contended that the petitioner's omission to inform the trial** O.P.(C) No.2290 of 2013 -6- **court that he is not a legal heir at the time of his impleadment, cannot be a reason for rejecting his application seeking deletion from the party array. It is submitted that evidence in the form of sale deed executed in favour of Jameela Beevi, Municipal licence in the name of Shahul Hameed and the licence in the petitioner's name, clearly proves the petitioner's independent possession over the plaint schedule property. According to the learned Counsel, by dismissing petitioner's application seeking deletion from the party array, court below has effectively prevented him from raising an independent claim. Relying on the decision in** _**Raziya Begum v. Sahebzadi Anwar Begum [AIR 1958 SC 886],**_ **it is contended to be added as a party that, in a suit relating to property, a person should have direct interest, as** O.P.(C) No.2290 of 2013 -7- ## **distinguished from commercial interest.** **4. Refuting the contentions, learned Counsel for the first respondent submitted that the attempt of the petitioner, in connivance with the other legal heirs of Jameela Beevi, is to delay execution of the sale deed endlessly. They have succeeded in their attempt to a large extent, evident from the fact that the decree of the year 2003 is yet to be finalised. In order to drive home the contention regarding lack of** _**bona**_ _**fides,**_ **it was pointed out that notice in I.A.No.3823 of 2008 filed for impleading the legal heirs of Jameela Beevi, was issued on 26.11.2008 and on receipt of the notice, petitioner and the other legal heirs had entered appearance without raising any objection. Thereafter, some of the additional respondents,** O.P.(C) No.2290 of 2013 -8- **who are none other than the brothers and sisters of the petitioner, filed I.A.No.669 of 2009 under Section 28 of the Specific Relief Act seeking to rescind the agreement. The petitioner was also a respondent in that application and the same was dismissed on 11.04.2012 after detailed consideration. The aggrieved petitioners therein, challenged the order before this Court resulting in Ext.R1(b) judgment dated 14.06.2012 in CRP No.233 of 2012, dismissing the revision. In those proceeding, neither the petitioner nor the applicants in I.A No.669 of 2009, had contended that the petitioner was in possession of the property. Instead, the petitioner filed I.A.No.2348 of 2012, immediately after Ext.R1(b) order, raising untenable contentions. Hence, the court below was fully justified in dismissing the** O.P.(C) No.2290 of 2013 -9- **application, finding it to be ill-motivated and unsustainable.** **5. The undisputed facts reveals that the petitioner, along with other legal heirs of Jameela Beevi, were impleaded after due enquiry under Order I Rule 10(2) of CPC. No objection was raised by the petitioner at that stage and the order by which he was impleaded as the additional 8th respondent has become final. Hence, the The interlocutory application filed thereafter, seeking deletion of petitioner's name from the party array, is barred by res judicata.** **5. The contention of the petitioner that he is having independent possession over the property was rightly rejected by the trial court, petitioner having failed to raise such contention earlier or even in I.A.No.669 of 2009, filed by** O.P.(C) No.2290 of 2013 -10- **his own siblings. Circumstances being as above, I am constrained to hold that the attempt of the petitioner is to delay the consideration in I.A.No.2548 of 2003 filed by the first respondent, seeking execution of the sale deed through court.** **In the result, the original petition is dismissed.** **Sd/-** **V.G.ARUN** **JUDGE** **Scl/** O.P.(C) No.2290 of 2013 -11- ## **APPENDIX OF OP(C) 2290/2013** PETITIONER EXHIBITS P1 : COPY OF THE DECREE DTD.17.3.2003 IN OS NO.617/1996. P2 : COPY OF IA 2548/2003 DTD.29.7.03 IN OS NO.617/1996. P3 : COPY OF IA 3823/08 DTD.18.11.2008 IN IA 2548/08 IN OS NO.617/1996. P4 : COPY OF OBJECTION TO IA NO.3823/08 DTD.4.12.2009. P5 : COPY OF THE JENMOM ASSIGNMENT DEED DTD.10.9.1976 NO.2805/1976. P6 : COPY OF IA NO.2348/2012 IN IA NO.2548/2003 IN OS NO.617/1996 DTD.19.7.2012. P7 : COPY OF THE AFFIDAVIT DTD.28.7.2012 IN IA NO.2348/2012. P8 : COPY OF THE MUNICIPAL LICENSE BEARING NO.PH2-14546/92 IN THE NAME OF SHAHUL HAMEED. P9 : COPY OF THE LICENSE NO.PH227667/11 DTD.16.4.2011 IN THE NAME OF THE PETITIONER. P10: COPY OF THE OBJECTION DTD.4.10.2012 TO IA NO.2348/2012. P11: COPY OF THE ORDER DTD.19.6.2013 IN IA NO.2348/2012 IN IA NO.2548/2003 IN OS NO.617/1996. **RESPONDENT'S EXHIBITS** **R1(A): THE COPY OF THE ORDER PASSED BY THE SUB COURT, PALAKKAD IN I.A.669/2009 IN O.S 617/1996.** **R1(B): THE COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN CRP 233/2012.**