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2010 DIGILAW 1533 (ALL)

Anil Misra v. Civil Judge (S. D) Lucknow

2010-05-11

RAJIV SHARMA

body2010
JUDGMENT Hon'ble Rajiv Sharma,J. Heard learned Counsel for the petitioner. 2. Petitioner's Counsel submits that late Col. Shiv Nath Misra had purchased the property in dispute from the erstwhile owners by way of registered sale deed on 31.5.1947. Col Shiv Nath Misra prior to his death executed a WILL dated 10.7.1979 by which he bequeathed all his property and bungalow No. 207 situated at Mahatma Gandhi Marg, Lucknow and agricultural plot Chak No. 543 situated at Auranga Khalsa Tehsil, Pargana and District Lucknow to his wife, namely, Smt. Raj Kumari Misra. On 16.11.1979, he expired leaving behind his widow wife and five sons. After the death of her husband, Smt. Raj Kumari became the absolute owner of the properties by virtue of WILL of her husband. On the basis of WILL, her name was mutated in the consolidation proceedings. On 9.11.1981, Smt. Raj Kumari Mishra before her death executed a registered WILL on 9.11.1981 by which she bequeathed the property in Suit to his grandson, namely, Anoop Misra, S/o Amar Nath Misra. In the month of September, 1983, she too expired. Subsequently, the property in suit was mutated in the name of Anoop Misra minor under the guardianship of his mother on 28.4.1989 and a certificate to the same effect was issued by the Defence Officer, Lucknow Circle and his name was recorded in the Cantonment Register. 3. The opposite party No.3/defendant filed a Suit No. 467 of 1989 Onkar Nath Mishra v. Rajendra Nath Mishra and others and in the said plaint, he admitted that he is in possession of one room, varandah, a kitchen and a latrine and bathroom. The factum of the possession of Anoop Mishra was also established by the Commissioner's report in a Suit between the parties bearing Regular Suit No. 308 of 1989 Anoop Mishra v. Onkar Nath Mishra. 4. Petitioner's Counsel submits that despite the factum of possession of Anoop Mishra was established by the Commissioner report, Onkar Nath Mishra continues to harass Anoop Mishra and his sisters, to which he made a complaint, but no action has been taken by the police. 5. As the boundary wall of the property in question was in a dilapidated condition, therefore, Anoop Mishra, erstwhile owner moved an application for permission for construction/repair to the competent authority of the Cantonment Board on 13.7.2007 and vide order dated 24.8.2009, the competent authority granted the requisite permission. 5. As the boundary wall of the property in question was in a dilapidated condition, therefore, Anoop Mishra, erstwhile owner moved an application for permission for construction/repair to the competent authority of the Cantonment Board on 13.7.2007 and vide order dated 24.8.2009, the competent authority granted the requisite permission. Before the aforesaid permission was granted on the application preferred by Anoop Mishra, he transferred his ownership right and possession of the property in suit to the petitioner by way of registered assignment-cum-sale deed on 26.3.2009 after receiving the consideration of Rs.30 lakhs to the petitioner. He was also delivered the possession to the petitioner. As the vacant and peaceful possession of the entire house has not been delivered to the petitioner, therefore, correction deed has been executed on 25.6.2009 and it was clarified in the correction deed that the actual possession of the house, which was in possession of Anoop Mishra was delivered to the petitioner and the same has been marked by 'red' colour. After the execution of the sale deed, the petitioner was enjoying the peaceful possession. 6. Learned Counsel for the petitioner submits that on 26.4.2010, some anti-social elements started disturbing the peaceful possession of the petitioner, he filed a Suit for permanent injunction as well as temporary injunction against the opposite party Nos.2 and 3 for restraining the opposite parties 2 and 3 from interfering in the peaceful possession, on which notices were issued, but the trial Court has not granted the injunction. Next, he asserted that after issuance of notice on the application, he moved another application under 151 of the Code of Civil Procedure, which was rejected on the ground that as the application under Order 39 Rules 1 and 2 C.P.C. is still pending, no cause has accrued for initiating the instant application. 7. As the opposite parties are harassing the petitioner and his members of family, he moved an application for lodging an F.I.R. at Police Station Cantonment, Lucknow requesting therein that the opposite parties may be restrained from interfering in the peaceful possession of the property in question. 8. 7. As the opposite parties are harassing the petitioner and his members of family, he moved an application for lodging an F.I.R. at Police Station Cantonment, Lucknow requesting therein that the opposite parties may be restrained from interfering in the peaceful possession of the property in question. 8. Accordingly, it is provided that in case the petitioner is in possession over the property in question, the police authorities are directed to look into the matter and the trial Court is directed to dispose of the application under Order 39 Rules 1 and 2 C.P.C. on the date fixed, i.e. 25.5.2010 and in case, it is not possible to decide it, the same shall be decided latest by 31.5.2010, in accordance with law. 9. With the aforesaid observations and directions, the writ petition is finally disposed of.