Allahabad High Court
Surendra Ram Another vs Rajendra Ram And Another on 24 October, 2019
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 40 Case :- MATTERS UNDER ARTICLE 227 No. - 7778 of 2019 Petitioner :- Surendra Ram Another Respondent :- Rajendra Ram And Another Counsel for Petitioner :- Gopal Krishna Pandey Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 8.4.2019, whereby the appellate court has allowed the appeal filed by the plaintiff-respondents and has set aside the order passed by the trial court dated 29.9.2017 rejecting the application for temporary injunction in Original Suit No.766 of 2017. The appellate court has restrained the defendant-petitioners from raising any construction over the suit property or from alienating the same during the pendency of the suit.
The plaintiff-respondents instituted the suit for partition of 1/4th share of each party in the suit property. The petitioners contested the suit by filing written statement in which they did not dispute that the suit property belonged to their father. According to the defendants, there had been a family settlement during life time of father of the parties and whereunder the house in dispute fell to their share. They also filed a counterclaim alongwith the written statement for partition of another property.
The trial court rejected the application for temporary injunction. However, the appellate court has allowed the same holding that there is no clear cut evidence that there had been a family settlement. The father of the parties had only made some sort of arrangement for comfortable living of his sons. The issues raised in the suit are triable issues. It is yet to be decided whether the partition had taken place or not. In such circumstances, it would not be proper to permit the defendant-petitioners to change the nature and character of the suit property or alienate the suit property.
Counsel for the petitioners submitted that there was an admission by the plaintiff-respondents that they are living at some other place. Even if there was any such admission, it would not divest the plaintiff-respondents of their right in the ancestral property, but they would be deemed to be in joint possession of the suit property alongwith the petitioners.
This Court finds no jurisdictional error, illegality or perversity in the impugned order passed by the appellate court so as to warrant interference in exercise of supervisory power under Article 227 of the Constitution of India.
The petition lacks merit and is accordingly dismissed.
(Manoj Kumar Gupta, J) Order Date :- 24.10.2019 SL