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1990 DIGILAW 334 (PAT)

Aruna Singh v. Gajendra Mohan Narain Tewary

1990-10-17

BHUVANESHWAR PRASAD

body1990
Judgment Bhuvaneshwar Prasad, J. 1. This is a petition under Sec.151 of the Code of Civil Procedure (in short the Code ). It has been filed by the sole appellant in the following circumstances. The appellant had filed Title (Partition) Suit No.90 of 1988 for partition of the joint family property. In the said suit, it appears that she prayed for an order of injunction restraining defendant no.1 (respondent no.1) from executing the compromise decree passed in Title (Partition) Suit No.21/84. By the impugned order dated 7-7-1990, it appears that the Learned 1st Subordinate Judge, Muzaffarpur rejected the petition for injunction filed on behalf of the plaintiff-appellant on 24-11-1989. It is against this order that the present miscellaneous appeal has been filed. 2. The appellant also filed a petition under Order XXXIX Rules 1 and 2 of the Code for restraining the respondents from executing the compromise decree passed in Title (Partition) Suit No.21/84 and restraining them from interfering with the peaceful possession of the appellant over the house in suit during pendency of the appeal. It appears that by the order dated 24-8-1990, the respondents were restrained by an order of an ad interim injunction from executing the compromise decree passed in the aforesaid title suit and from disturbing the possession of the appellant from the house in suit. Also notices were ordered to be issued to respondent nos.1 to 5 to show-cause why the petition for injunction filed by the appellant be not allowed. Subsequently, this petition under Sec.151 of the Code, as referred to above, was filed by the appellant on 5-9-1990. In this petition, the appellant has contended that she was not a party to the compromise decree and the same is, therefore, not binding on her. The execution of the said compromise decree of Title (partition) Suit No.21/84 has already been stayed by this Court. On the basis of the said decree, Execution Case No.4 of 1990 has been started before the Learned Subordinate Judge, 1st Court, Patna. The notices were ordered to be issued in the said execution case on the respondents, but it appears that no notice was issued to the appellant. The said compromise decree is dated 24-5-1988. Since the appellant has filed another Partition suit (Title Partition Suit No.90 of 1988), the respondent no.1 has hurriedly proceeded in this execution case. The notices were ordered to be issued in the said execution case on the respondents, but it appears that no notice was issued to the appellant. The said compromise decree is dated 24-5-1988. Since the appellant has filed another Partition suit (Title Partition Suit No.90 of 1988), the respondent no.1 has hurriedly proceeded in this execution case. In Title (Partition) Suit no.21/84, the appellant was not a party, and as such, any decree passed in it is not binding on her. However, the appellant has been illegally ousted from the house in suit. She has got no house to stay and all her belongings are still in this house over which the delivery of possession has been effected in the said execution case. It was, accordingly prayed that she may be put back in possession over the portion of the house in suit which was under her occupation. 3. On behalf of the respondent no.1 a counter-affidavit has been filed to this petition of the appellant under Sec.151 of the Code. It has been stated in it that since the execution case was not filed against the appellant no notice was required to be issued to her. So far, as respondents are concerned, they were defendants in the Title (Partition) Suit No.21/84, and notices were issued to them, but they refused to accept the same. The appellant has got no right to speak a word on behalf of respondent no.2 who is her mother and also on behalf of her sisters. The respondent no.1 has already taken delivery of possession over the house in suit. The appellant had appeared in the Title (Partition) Suit no.21/84 no.7-5-1985 and had filed her Vakalatnama and still she did not join the compromise petition. So it cannot be said that she had no knowledge about the compromise decree and it will be deemed that she accepted the same. Under Sec.23 of the Hindu Succession Act, a married daughter had no right to claim a right of resident in the dwelling house of the parents. The appellant lives put side Bihar and she has got her Pncca houses in the village, as well as, in the town of Muzaffarpur, and as such, the appellant cannot challenge the compromise decree passed in Title (Partition) Suit no.21/84. On these grounds, it has been contended that this petition under Sec.151 of the Code is fit to be rejected. The appellant lives put side Bihar and she has got her Pncca houses in the village, as well as, in the town of Muzaffarpur, and as such, the appellant cannot challenge the compromise decree passed in Title (Partition) Suit no.21/84. On these grounds, it has been contended that this petition under Sec.151 of the Code is fit to be rejected. 4. Initially in the petition filed under Order XXXIX Rules 1 and 2 of the Code, the appellant had prayed for an order of injunction restraining the respondents from executing the compromise decree passed in Title (Partition) Suit no.21/84, and also for restraining them from interfering with her peaceful possession. However, in this petition filed under Sec.151 of the Code, she has stated that the execution Case No.4 of 1990 has been started on the basis of the decree passed in Title (partition) Suit no 21 of 1984 and in the said execution case, she has been illegally ousted from the house in suit. She has, accordingly prayed that she may be put back into possession of that portion of the house from which she has been ousted. In this petition, she has not disclosed the date from which she has been dispossessed from the house in suit on the basis of Execution Case No.4 of 1990. At the time of Hearing, the learned Counsel appearing on her behalf, however, submitted that she was already dispossessed from the house in suit before 24-8-1990 when an order of ad interim injunction was passed restraining the respondents from disturbing the possession of the appellant from the house in suit. If this was really so, I see no reason why this matter was not brought to the notice of the Court on 24-8-1990 when this order was passed after hearing the learned Counsel for the appellant. It further appears that on behalf of respondents, it was contended that this delivery of possession in the said execution case was effected on 19-8-1990, as will appears from the order sheet dated 10-9-1990. In any view of the matter, the fact remains that the appellant is no longer in possession of the house in suit, and is, therefore, filed this petition under Sec.151 of the Code for an order of manadatory injunction for putting her back in possession of the house from which she has been dispossessed. 5. In any view of the matter, the fact remains that the appellant is no longer in possession of the house in suit, and is, therefore, filed this petition under Sec.151 of the Code for an order of manadatory injunction for putting her back in possession of the house from which she has been dispossessed. 5. On behalf of respondents, it has been submitted that since admittedly, the appellant is no longer in possession of the house in suit, from which she has been dispossessed by the process of the Court in execution of the decree passed by the Court in Execution Case No.4 of 1990, she cannot claim under law to be put back in possession of the same portion of the house. 6. In support of his contention, the learned Counsel for the appellant has placed reliance on the case of Smt. Indrawati Devi V/s. Bulu Ghosh (AIR 1990 Patna 1 ). This is a single Bench decision of the Ranch! Bench of this Court. No doubt in paragraph-12 of this judgment, it has been held that "in the exercise of its inherent powers, the Court can in exceptional circumstances not covered by the situations envisaged under Order XXXIX, Rules 1 and 2 of the Code grant temporary injunction, which includes not only a prohibitory but also a manadatory injunction. It has further been held that in the exercise of its inherent powers, no distinction can be drawn on the ground that such an order is passed at the instance of the plaintiff or the defendant since the justification for the exercise of such power is the existence of exceptional circumstances and in the interest of justice. Consequently the inherent power of the Court can be exercised in favour of either of the parties. " Further it has been observed that "the exercise of inherent powers must be in exceptional circumstances and not contrary to any provisions of law. " 7 The facts of the said case are, however, entirely different. It appears that the plaintiff of the said suit was the purchaser from the original plaintiff, and as such, she was impleaded as plaintiff no.2. The evidence in the suit had concluded, and 30-10-1987 was the date fixed for the arguments. The court was closed for Puja holidays, and it was to reopen on 30th October, 1987. It appears that the plaintiff of the said suit was the purchaser from the original plaintiff, and as such, she was impleaded as plaintiff no.2. The evidence in the suit had concluded, and 30-10-1987 was the date fixed for the arguments. The court was closed for Puja holidays, and it was to reopen on 30th October, 1987. The petitioner who figured as plaintiff no.2 filed a petition for withdrawal of the suit in the Court, when it reopened on 30-10-1987 on the ground that in the meantime there was a settlement between the parties, according to which opposite parties nos.1 and 3 had handed back the possession of the house in Suit on 26-9-1987. On the other hand, opposite parties nos.1 to 4 had contended that in the early hours on 27-9-1987 the husband of the petitioner alongwith her son and son-in-law and musclemen came to the house in question and started throwing away belongings of opposite parties nos.1 to 4. They misbehaved with the ladies of the house, and forcibly took possession of the house except one room. It is not disputed that the husband of the petitioner was a retired Deputy Superintendent of Police. It was under this circumstance that on 30-10-1987 an application was filed under Sec.151 of the Code for issuing a manadatory injunction directing the petitioner to restore the possesson of the opposite parties nos.1 to 4 over the house in suit, from which they were forcibly dispossessed during the pendency of this suit. On the petition filed by opposite party nos.1 and 3, learned Additional Munsif, Giridih issued a mandatory injunction directing the petitioner, her husband and the agents to restore the entire premises to defendant nos.1 and 2 within 48 hours, i. e. , by the evening of 6-12-1987. It was this order that was challenged before the High Court in the Civil revision. The Civil revision was however, dismissed since it was held that the petitioners had taken unlawful and forcible possession over the house in suit and the Order of manadatory injunction was rightly passed by the learned Additional Munsif, Giridih directing the petitioner and her husband and agents to restore the possession of defendant nos.1 and 2 over this house. 8. This decision, however, is of no help to the learned Counsel for the appellant. 8. This decision, however, is of no help to the learned Counsel for the appellant. In the said case, Indrawati Devi, petitioner (Plaintiff no.2) had alleged taken forcible possession over the house in suit. Her possession over the same was not obtained through the process of the Court in any execution proceeding, or even otherwise. As against it, in the present case it was on the basis of execution Case no.4 of 1990 that the appellant was evicted from the house in suit by the process of Court. Under this circumstances, this decision will not came to the aid of the appellant. 9. For the reasons stated above, this petition filed under Sec.151 of the Code by the appellant for being put back in possession of the house in suit is rejected. Petition dismissed.