Girija Shankar Jaiswal v. Shailendra Singh Jaiswal
2008-08-28
R.K.MERATHIA
body2008
DigiLaw.ai
Order This I.A. has been filed under Order 39 Rule 2A of CPC. Mr. P.K. Prasad, learned senior counsel, appearing for the respondents 1 (a), 1 (b) and 2, submitted that the appellant has violated the order dated 12.9.1995. He referred to the Serial No. 4 of Schedule 0' of the deed of partition dated 12.10.1954 to show that the lands in Jagir Village Jaria, Thana Torpa, District Ranchi, Thana No. 30, Khewat No.5, Khata Nos. 56, 57, 58, 59, 60, 61, 62 and 63, Majhias Don 9.96 acres, apart from other lands was allotted in the share of Samrathi Devi; and as per the Will made by her this Don landabout 10 acres was given to Sangram Singh Jaiswal, father of respondent 1 (a) and 1 (b), which Will has been probated by the impugned judgment. He further referred to the sale deed dated 8.7.2004 made by the appellant, selling 4.01 acres of Don land of Khata No. 56, Khewat No. 5 on a consideration of Rs. 1,35,0001-. Relying on the judgments reported in A. I. R. 1996 S.C. 135 (Surjit Singh & Others vs. Harbans Singh and Others) and A.I.R. 2003 Allahabad 321 (Smt. Savitri Devi vs. Civil Judge (Senior Division), Gorakhpur & Others}, he submitted that as the said sale is in the teeth of the order of injunction passed by this Court on 12.9.1995, the purchasers Sahdeo Barla and Birsi Barla have not acquired any right and it is not necessary to notice them in this matter. He further referred to the order dated 23.3.2006 passed in Pro- bate Case No. 75 of 2002 to show the conduct of the appellant. 2. On the other hand Mr. Manjul Prasad, appearing for the appellant, submitted that Schedule 0' property mentioned in the deed of partition dated 12.10.1954 shows total area of 14.88 acres in Village Jaria, Thana Torpa, District Ranchi and out of which an area of 4. acres has been sold and remaining 10 acres of the land as mentioned in the deed is still intact. He further submitted that the appellant was in dire need of money for treatment of his youngest son, namely, Binay Jaiswal who was suffering from cancer and therefore, the appellant sold only 4 acres of land out 14.88 acres with consent of the Respondents, and the area of 10 acres of land still remains intact as mentioned in the deed.
He further submitted that the appellant was in dire need of money for treatment of his youngest son, namely, Binay Jaiswal who was suffering from cancer and therefore, the appellant sold only 4 acres of land out 14.88 acres with consent of the Respondents, and the area of 10 acres of land still remains intact as mentioned in the deed. He further submitted that ultimately Binay Jaiswal died on 25.10.2005. 3. In reply Mr. Prasad submitted that no such consent was given to the appellant as alleged. 4. The order dated 12.9.1995 reads as follows:- "This application has been filed under Order 41 Rule 5 C.P.C. read with Section 151 C.P.C. as is apparent from debarring the operation of the probate of Will which was signed on 28.7.95. In the rejoinder to this petition, it has been stated by the respondent nos. 1 and 2 that in pursuance of the probate certificate being granted they are not going to dispose of the properties mentioned in the probate and will annexed thereto. In view of the above let the status quo be maintained as on today regarding the probated properties and neither of the parties should alienate or transfer or make any other form of disposal of the properties mentioned in the probate." 5. Admittedly, during the pendency of the said order, the sale deed dated 8.7.2004 has been executed by the appellant. It is clear from the deed of partition dated 12.10.1954, the Will and the sale deed-that the Don land to the extent of 4.01 acres was sold in violation of the order dated 12.9.1995. Thus it has to be held that the appellant is guilty of disobedience of the said order dated 12.9.1995 6. On this, Mr. Manjul Prasad submitted that the appellant is aged about 75 years and is suffering from various ailments. 7. In the circumstances, I am not 'inclined to detain the appellant in civil prison. However, the properties sold under the said sale deed dated 8.7.2004 is attached in terms of Order 21 Rule 54 of the Code of Civil Procedure and the appellant is directed to deposit Rs. 1,35,000/- in this Court within three weeks. This I.A. is, accordingly, disposed of.