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2014 DIGILAW 2464 (ALL)

Renu Mishra v. Uma Tiwari

2014-08-12

RAM SURAT RAM (MAURYA)

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JUDGMENT Ram Surat Ram (Maurya), J. 1. Counter affidavit filed today, is taken on record. 2. Heard Sri R. P. Mishra for the petitioner and Sri Shyam Ji Shukla for the respondents - 1 and 2. 3. The writ petition has been filed against the order of Special Judge, CBI dated 15.7.2014 allowing the appeal filed by respondents -1 and 2 against the order of Additional Civil Judge dated 4.10.2013 passed in the application for interim injunction. 4. The dispute between the parties is in respect of House No. 11/755 situated in Indira Nagar Vistar, Lucknow. It is admitted by the parties that the house in dispute was the property of late Rejendra Mohan Tiwari. According to the petitioner late Rejendra Mohan Tiwari executed a Will dated 15.2.2012 in respect of this house and late Rejendra Mohan Tiwari died on 21.4.2013, therefore, the petitioner inherited the house in dispute on the basis of alleged Will dated 15.2.2012. 5. The counsel for the respondents states that the alleged Will dated 15.2.2012 is forged and fabricated document and on the death of late Rejendra Mohan Tiwari the house in dispute was inherited by his widow Smt. Uma Tiwari and his daughter Smt Gitika Pandey. In the first floor of the house in dispute the petitioner was permitted to reside by way of license, however taking advantage of pitiable condition of the respondents, the petitioner has fabricated a Will and begun to claim her title over the house in dispute. The license of the petitioner was revoked and a suit has been filed for her ejectment as well as permanent injunction of the house in dispute by respondents -1 and 2. In the suit respondents - 1 and 2 filed an application for interim injunction restraining the petitioner from interfering in their possession over the ground floor of the house in dispute. The application for interim injunction was rejected by the trial court by order dated 4.10.2013. Respondents - 1 and 2 filed an appeal registered as Misc. Civil Appeal No. 187 of 2013 from the aforesaid order. The application for interim injunction was rejected by the trial court by order dated 4.10.2013. Respondents - 1 and 2 filed an appeal registered as Misc. Civil Appeal No. 187 of 2013 from the aforesaid order. The Special Judge, CBI by the impugned order dated 15.7.2014 found that respondents - 1 and 2 being widow and daughter of late Rejendra Mohan Tiwari, their possession over the ground floor was established and therefore they have prima facie case in their favour and in case the interim injunction is not granted to the respondents, then they will suffer irreparable loss and injury and trial court has illegally rejected the application for interim injunction. On this ground the appeal was allowed and the possession of the respondents -1 and 2 on ground floor of House No. 11/755 situated in Indira Nagar Vistar, Lucknow is confirmed. Hence this writ petition has been filed. 6. I have considered the arguments of the counsels for the parties and examined the records. So far as the order of Special Judge, CBI dated 15.7.2014 is concerned, the order does not suffer from any illegality. The counsel for the petitioner submits that in the papers filed by respondents- 1 and 2 late Rajendra Mohan Tiwari alone was shown as the resident of the house in dispute and it was conclusively proved that respondents - 1 and 2 were not resided with him and they were also not in possession over the house in dispute, however, the court below had illegally allowed the appeal of respondents. Admittedly, respondent-1 is the widow of late Rajendra Mohan Tiwari and respondent-2 is his daughter, in such circumstances, in the absence of there being any document to prove that there had been any seperation between the husband-wife, after death of late Rajendra Mohan Tiwari, the claim of possession of the house in dispute of respondents - 1 and 2 cannot be denied and the findings recorded by the appellate court in respect of prima facie case of respondents -1 and 2, does not suffer from any illegality and no interference is required by this Court in the order dated 15.7.2014. 7. 7. It has been contended by the counsel for the petitioner that admittedly the petitioner is resideding on the first floor of the house in dispute and a suit has been filed for ejectment of the petitioner and so long as the suit is not decreed, respondents - 1 and 2 may not create any hindrance in egress and ingress of the petitioner up to the first floor of the house in dispute. In this respect the prayer of the petitioner appears to be genuine. 8. The writ petition is disposed of upholding the order of Special Judge dated 15.7.2014, respondents- 1 and 2 are restrained from creating any hindrance in egress and ingress of the first floor of House No. 11/755 situated in Indira Nagar Vistar, Lucknow. It is further provided for both the parties that they shall not create any admosphere which may cause any unnecessary harrasment of the parties. The Trial Court is directed to proceed in the suit and decide it expeditiously preferably within a period of six months. 9. The counsel for the petitioner states that the petitioner has also filed a suit which is pending before the same court. The petitioner or the respondents may move an application under Order 4 A CPC for consolidation of both the suits. In case the application is filed in this respect then the Trial Court may consolidate both the suits on the next date fixed.