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2019 DIGILAW 735 (ALL)

Anjum Khatoon v. State of U. P.

2019-03-15

JAYANT BANERJI

body2019
ORDER : JAYANT BANERJI, J. 1. This petition under Article 227 of the Constitution of India has been filed inter alia with the following prayer:-- (i) to set aside the entire proceeding of the O.S. No. 37/2018, (Santosh Kumar and others v. Ram Sevak and others), pending before the court of IVth Civil Judge (SD),. Varanasi; (ii) to set aside the order dated 14.3.2017 (Annexure No. 3), order dated 31.1.2019 (Annexure No. 5) and the order dated 28.3.2019 (Annexure No. 7) to the Misc. petition). 2. It appears that a suit for partition was filed by two respondents Santosh Kumar and Pawan Kumar against Ram Sewak and others in respect of the House-cum-Shop situated at 3/422 Mohalla Rampur Ramnagar, Varanasi, by means of which, the plaintiffs claimed 1/5th share each of the property in dispute. It appears that the defendant-respondent Rani Sewak sold his share of the property in dispute to the petitioner, who was arrayed as defendant No. 4 in the suit, by means of a sale deed registered on 26.12.2017 and possession was given. The plaintiffs are sons of defendant No. 1 Ram Sewak. 3. In the said suit, an application under Order 39, Rule 1 CPC was filed seeking interim injunction/By means of the impugned order dated 14.3.2018, the trial court directed the parties to maintain status quo with regard to the property in dispute. A Misc. Civil Appeal No. 62 of 2018 was filed by the defendant-petitioner challenging the order of the trial court granting temporary injunction. By the judgment and order dated 31.1.2019, the Misc. Civil Appeal was dismissed. The defendant-petitioner then filed an application for review of the order dated 31.1.2019, passed by the lower appellate court which was numbered as Misc. Civil Application No. 2 of 2019 which came to be dismissed on 28.3.2019. Challenging the aforesaid orders, passed by the trial court and by the lower appellate court, this petition has been filed. 4. Learned counsel for the defendant-petitioner has contended that the plaintiffs-respondents have no locus to file the plaint in view of Section 8 of the Hindu Succession Act, and that the plaintiffs are not entitled to any right with regard to the property in dispute during the life time of their father Ram Sewak who was well within his right to sell the property in dispute to the defendant-petitioner. It is further stated that the suit was not maintainable under the provisions of Order 7, Rule 11, CPC and the courts below have committed manifest error of law in granting interim injunction of status quo with regard to the property in dispute and in dismissing the miscellaneous appeal filed by the defendant-petitioner. 5. A Perusal of the plaint that is enclosed as Annexure No. 1 to the petition reveals that the plaintiffs have staked their claim over that the property in dispute being the successor of the original purchaser while stating that their father, Ram Sewak, transferred the property in dispute to the petitioner-defendant. It is stated therein that the plaintiffs are entitled to 1/5th share each with regard to the property in dispute. The written statement has not been filed. An objection to the application of the plaintiffs was filed by the defendant-petitioner on 22.2.2018 stating that she is in possession over the property in dispute after it is sold. It was stated that the plaintiffs had no right to seek partition with respect to the property in dispute. 6. The order of the trial court dated 14.3.2018 has considered the contentions of the rival parties and has considered the application for temporary injunction on the basis of prima facie case, balance of convenience and irreparable injury. While considering the issue of prima facie case, the trial court has observed that admittedly the property is not the self acquired property of Ram Sewak and Shiv Sewak and, therefore, prima facie, the property in dispute appears to be ancestral property of the plaintiffs and the defendant Nos. 1, 2 and 3. The trial court observed that whether the plaintiff have a share in the property in dispute and if so to what extent, the same would be a matter of evidence which can be adjudged after evidence. Similarly, the issue of balance of convenience and irreparable injury were considered by the trial court and the order of status quo was passed. 7. The appellate court also considered the various aspects of the matter and affirmed the order dated 14.3.2018 of the trial court while dismissing the appeal. The application to recall/review filed by the petitioner was also rejected for want of merit. 8. 7. The appellate court also considered the various aspects of the matter and affirmed the order dated 14.3.2018 of the trial court while dismissing the appeal. The application to recall/review filed by the petitioner was also rejected for want of merit. 8. A perusal of the record belies the submissions made by the learned counsel for the defendant-petitioner that the plaintiffs have no locus to file a suit, particularly in view of the fact that, admittedly Ram Sewak who sold the property in dispute to the defendant-petitioner did not dispute that the property, was not his self acquired property. The entitlement of the plaintiffs as observed by the court below can be adjudged only after the evidence is led and considered thereafter. The submission that the suit is not maintainable under the provisions of Order 7, Rule 11, CPC does not appear to be correct. The contention in this regard of the learned counsel for the defendant-petitioner that the plaint does not disclose cause of action is not correct. 9. For the reasons aforesaid, this petition lacks merit and is, accordingly, dismissed. 10. It is however; clarified that any observation made herein as well as by the lower appellate court in its order dated 31.1.2019 and 28.3.2019 are only for the purpose of adjudication of the instant issue and would not be relied upon by the trial court for the purposes of adjudication during trial.