Patna High Court - Orders
Nirmala Devi & Ors vs Panna Lal & Ors on 23 September, 2008
IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.61 of 2006
NIRMALA DEVI & ORS
Versus
PANNA LAL & ORS
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22. 23.9.2008. I.A. Nos. 1747 of 2006 and 2356 of 2007:
I. A. No. 2356 of 2007 has been filed by the appellants praying therein that the respondents should be injuncted from alienating /mortgaging or dispossessing the appellants from the suit properties, whereas I.A. No. 1747 of 2006 has been filed for staying the delivery of possession arising out of Execution Case No. 1 of 2006 pending in the court of Sri Sushil Kumar Bharti, Sub-Judge VI, Gaya with respect to Holding No. 3. The respondent-plaintiff by the final decree, has been allocated share in Holding No.3 whereas defendants have been granted the entire Holding No.60 and Holding No.83 appertaining to Ward No.5, Mohalla- Ramna, P.S. Civil Lines, Gaya.
The plaintiff's suit was decreed and he was allocated 1/6 share in the entire suit properties. The Pleader Commissioner on the basis of value of the land/properties has allocated Holding No.3 to the share of the plaintiff. The map which is enclosed to the report of the Pleader Commissioner shows, that all the three houses are situated on the Main Road. All the three houses have shops on the ground floor and the residential area on the first, second and third floor. Holding No.3 consists of three shops on the ground floors which according to the appellants are on monthly rent.
It is the case of the appellants that the appellants are residing on the first, second and third floor of Holding No.3 and, -2- therefore, they will suffer great loss if they are dispossessed at this stage.
I may note here that while the Pleader Commissioner was preparing the report, the appellants did not appear although notice was sent to them to file their objection. In fact, no objection was filed by the appellants.
In the circumstances, the appellants can not object to the 'Takhtabandi' as fixed by the Advocate Commissioner. Besides which it has been held time and again by the Supreme Court that the decree holder can not be deprived of the fruits of the decree. I, therefore, direct as follows:
(1) The shops in Holding No.3 which have been allocated to the share of the respondents will come into possession of the respondents and they would be entitled to utilize usufructs of the shops in question. (2) With respect to the residential portion of Holding No.3, it has been submitted by the counsel appearing on behalf of the appellants that they are residing in the said holding. I, therefore, direct that the Executing Court to determine through an Advocate Commissioner or any other manner in which he thinks fit whether the appellants are residing on Holding No.3 and if so allow them to continue to do so.
(3) The respondents are also entitled to continue to reside in the Holding where he has been residing. In fact, the -3- court below will ensure that he should get the entire three floors of the holding in which the respondents are residing, as it has been submitted before this Court, that the respondents have been allocated two rooms in the entire share.
(4) With respect to the other portion of the shares allocated by the Pleader Commissioner, the parties are directed to maintain status quo.
(5) It is further directed that the appellants will only be allowed to reside on Holding No.3 if they give a written undertaking in the court below that they would vacate the premises after the final decision of this case.
This Court further directs that the appellants and the respondents will not sell, create encumbrance or in any way act in a manner detrimental to the value of the said properties. If any of the parties attempt to sell any portion of the land the order granting the stay of delivery of possession shall stand vacated.
Thus, two applications are disposed of with the aforesaid directions.
The office is directed to get this appeal admitted and report to this Court whether the records of the case have been received in First Appeal No.333 of 2001 which was dismissed for non-compliance of this Court's order.
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This case may be placed under the heading for orders for further directions with respect to get the case ready for hearing.
U.K. (Sheema Ali Khan,J)