Patna High Court - Orders
Raj Narain Rai & Anr vs Shatrughan Roy & Ors on 19 September, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.348 of 1994
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Raj Narain Rai & Anr
.... .... Appellant/s
Versus
Shatrughan Roy & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Madhav Roy
Mr. Prabhakar Jha
Mr. Anil Kumar Jha Astik
For the Respondent/s : Mr. Madan Mohan Pd. Singh
Mr. Amar Nath Gupta
Mr. Bipin Kr.Sinha
Mr. B.K.Pandey
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL ORDER
54 19-09-2012Heard the learned counsel for the parties.
The interlocutory application (I.A. No. 3796 of 2012) has been filed on behalf of the respondent no. 5 (c) seeking permission to sell a part of the suit property specified in paragraph 21 of the application. A supplementary affidavit has been subsequently filed by the respondent no. 5 (c) whereby he has modified his statement in paragraph 21 of the interlocutory application with regard to the details of the property by giving the details of other properties which he seeks to transfer after the permission of this Court.
It is the case of the respondent no. 5 (c) as made out in the interlocutory application that by the impugned judgment and decree the suit for partition filed by the plaintiff-appellant has Patna High Court FA No.348 of 1994 (54) dt.19-09-2012 2 been dismissed holding that a previous partition had already taken place in the year 1950 by metes and bounds in the joint family and the parties to suit have no more unity of title and jointness of possession over the suit properties but the said suit has been decreed for partition inter se between the defendants with regard to the prayer of the defendant nos. 7 and 8 for partition of the lands mentioned in schedule-A of their written statement holding that the defendant nos. 7 and 8 are entitled to get total 2/7th share i.e. 1/7th share each and defendant no. 5, his wife and their sons are entitled to get total 5/7th share i.e. 1/7th share each in the schedule- A properties of the written statement. It has further been stated that the respondent no. 5 (c) thus has share as ascertained in the judgment and decree under appeal and accordingly a final decree has also been prepared and has also been executed. It has been further stated in the interlocutory application as well as the supplementary affidavit that in order to raise funds for the marriage of his daughter, the respondent no. 5 (c) has entered into agreements for sale of the part of the suit land with the proposed purchasers and thereafter solemnized the marriage as it could not have been postponed awaiting the execution of the sale deeds. It has further been stated that the appellants have earlier filed I.A. No. 6726 of 2011 for grant of injunction restraining the Patna High Court FA No.348 of 1994 (54) dt.19-09-2012 3 respondents from alienating the suit property and by order dated 16.05.2012 this Court has directed that the parties to the appeal shall make transfer of the suit properties after obtaining permission from the court. As such, the need for filing the present interlocutory application seeking permission to transfer a part of the suit land has arisen.
A counter affidavit has been filed on behalf of the appellants contesting the prayer made by the respondent no. 5 (c). It has been stated that the respondents are bent upon to dispose of the suit properties after becoming conscious of the legal position and they have already transferred more than the half area of the land in village Chak Murmur. It has further been stated that in the interlocutory application (I.A. No. 6726 of 2011), by which the appellants earlier prayed for grant of injunction, it had been pointed out that the respondents had already transferred major portions of the suit land and a list was also attached as schedule-1 to the aforesaid interlocutory application giving the details of the transfer made by the respondents. The appellants have also alleged that the story of legal necessity for marriage of daughter has been developed after the order of injunction has been passed, only with purpose to dispose of valuable land and thereby defraud the appellants in case of success of the appeal. The appellants have Patna High Court FA No.348 of 1994 (54) dt.19-09-2012 4 also stated that the respondent Shri Ram Rai has not been given possession by delivery of possession through the process of the court and the delivery of possession has been given only to Shankar Rai and Jogendra Rai. A supplementary counter affidavit has also been filed during the course of hearing of this interlocutory application wherein besides reiterating the same facts, it has further been stated that the prayer to seek permission for sale of land of village Chak Murmur is beyond the share of the respondent no. 5 (c)in the entire property and already more than the share has already been transferred by the respondents.
After hearing the parties and considering the submissions of the learned counsels, it appears that this appeal has arisen out of the judgment and decree by which the suit for partition filed by the appellants has been dismissed. It further appears that in the said suit the prayer of the defendant nos. 7 and 8 for partition inter se between them and the defendant no. 5, his wife and sons, of their properties mentioned in schedule-A of the written statement has been allowed. It also appears that a final decree has been prepared in pursuance to the aforesaid decree for partition in between the defendant nos. 7 and 8 and defendant no. 5, his wife and sons.
Earlier the appellants has filed I.A. No. 6726 of 2011 Patna High Court FA No.348 of 1994 (54) dt.19-09-2012 5 praying for injunction restraining the respondents from alienating the suit properties, and by order dated 16.05.2012 the aforesaid injunction application was disposed of directing the parties to transfer the suit property only after obtaining the permission from the court.
It transpires from the said order dated 16.05.2012 that the respondents had made specific submissions before the court that they required money for their treatment and also for the purpose of marriage of the daughters of respondent no. 5 (b) and respondent no. 5 (c). In the said order, it has further been observed that the delivery of possession has been effected in the execution case in favour of the parties who are coming in exclusive possession thereof because no stay was granted by this Court. It has also been taken notice in the said order that the appellants as well as the other respondents have already transferred the portions of the suit properties. In view of the facts and submissions mentioned in the aforesaid order, the present assertion on behalf of the appellants that the story of marriage of daughter has been subsequently developed, after the order dated 16.05.2012, by respondent no. 5 (c) cannot be accepted. The contention made in paragraph 26 of the counter affidavit regarding the story of marriage having been specifically developed after the order passed Patna High Court FA No.348 of 1994 (54) dt.19-09-2012 6 in I.A. No. 6726 of 2011 would have been accepted if the statement on behalf of the respondents regarding the marriage of daughter of respondent no. 5 (c) would not have found mentioned in the order dated 16.05.2012. There is no denial of the fact that the respondent no. 5 (c) had a marriageable daughter and he had settled her marriage. There is also no assertion by the appellants that the respondent no. 5 (c) has got other sufficient means to raise funds for meeting the expenditure of the marriage, besides selling away the lands as prayed.
It has been submitted by the learned counsel for the respondent no. 5 (C) that the land mentioned in paragraph-3 of the supplementary affidavit with regard to which the permission for sale has been prayed, are not beyond the share of the respondent no. 5 (c) and in any case such transfers would be governed by the doctrine of lis pendence, and would also be subject to the result of this appeal as has been stated in paragraph 22 of this interlocutory application.
The learned counsel for the appellants however, has maintained that the respondents have already transferred the part of the suit properties beyond their share and as such no permission should now be granted for further sale. However, this dispute cannot be resolved at this stage by determining the exact quantum Patna High Court FA No.348 of 1994 (54) dt.19-09-2012 7 of the suit lands falling to the share of the individual parties to the suit. But prima-facie, it is manifest that the appellants' suit for partition has been dismissed but the relief prayed by defendants for partition in between the co-sharers of the branch of Kantu Rai i.e. defendant nos. 7 and 8 and defendant no. 5, his wife and there sons has been decreed and accordingly the final decree has also been prepared and the execution of the said decree has also taken place.
It is clear, therefore, that the denial by appellants of the necessity of the respondent no. 5 (c) for raising funds to meet expenses incurred for his daughter's marriage has not been substantiated. It has also not been denied by the appellants that the respondent no. 5 (c) has got share in the suit property and has no other means to raise funds except by selling away his share in the suit properties.
In this view of the matter, the prayer of the respondent no. 5 (c) to alienate the lands mentioned in paragraph-3 of the supplementary affidavit is allowed with the condition that such transfers will be subject to his share to be determined in the suit properties at the time of disposal of the appeal, in case of success of the appellants. It is also made clear that the respondent no. 5 (c) shall not claim any equity in his favour on the basis of this order at Patna High Court FA No.348 of 1994 (54) dt.19-09-2012 8 the time of hearing of this appeal.
The interlocutory application is, accordingly, allowed.
(V. Nath, J) Devendra/-