Dismissed

Late Hadisunnisha Global Trust v. District Judge Sant Kabir Nagar and 7 Others

Allahabad HC15 Jul 2019A227/4327/2019

Case brief

AI extract

What is this about?

The High Court exercised supervisory power under Article 227 and declined to interfere with the appellate court's order granting a temporary injunction against the petitioner's construction, noting that the question of partition remained undecided. The order directed both the trial court and the appellate court to decide the pending suit and appeal expeditiously.

What did the court decide?

The petition was disposed of without interfering with the impugned order, directing the trial court to decide the suit expeditiously and the appellate court to decide the pending appeal expeditiously.

Late Hadisunnisha Global Trust Vs District Judge Sant Kabir… — Partition | Allahabad HC (2019)

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Court No. - 40

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Case :- MATTERS UNDER ARTICLE 227 No. - 4327 of 2019

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Petitioner :- Late Hadisunnisha Global Trust Respondent :- District Judge Sant Kabir Nagar And 7 Others Counsel for Petitioner :- Markanday Rai,Rakesh Pande Counsel for Respondent :- Rajesh Kumar Tiwari,Ruchi Gupta

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Hon'ble Manoj Kumar Gupta,J.

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The instant petition is directed against the order dated 1.5.2019 passed by District Judge, Sant Kabir Nagar allowing Misc. Civil Appeal No.2 of 2018. By the said order, the appellate court has set aside the order dated 8.2.2018 passed by trial court in Original Suit No.72 of 2017 rejecting the application for temporary injunction filed by the plaintiff-respondent. The appellate court, while allowing the appeal, has injuncted the petitioner from raising construction over any specified part of the suit property.

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The suit was instituted by the plaintiff-respondent with the allegation that the suit property is undivided property of the parties. The petitioner has purchased 1/4th share of the suit property from one of the co-sharers. Since there is no partition and, therefore, the petitioner is not entitled to raise construction over any specified part of the suit property.

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The trial court, as noted above, rejected the application for temporary injunction but the appellate court, after holding that actual partition by metes and bounds has not taken place so far, has granted injunction mentioned above. The appellate court has also noted the fact that in a suit for partition, a preliminary decree has already been passed and the appeal is pending against the said order at the behest of the petitioner.

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Sri Rakesh Pande, learned senior counsel assisted by Sri Markanday Rai appearing on behalf of the petitioner submitted that the sale deed in favour of the petitioner specifies the property sold by boundaries.

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On the other hand, Sri S.K. Verma, learned senior counsel appearing on behalf of the plaintiff-respondent urged that according to the recital in the sale deed, undivided 1/4th share has been transferred. He submitted that mention of boundaries or annexing a map will not result in actual partition nor would override the recital in the conveyance that 1/4th share is being sold.

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Be that as it may, as the issue as to whether partition has already

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been made or not is yet to be decided by the court below after evidence is led by the parties, this Court is of the opinion that injunction granted by the appellate court is not of such nature as would warrant interference in exercise of supervisory power under Article 227 of the Constitution.

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Sri Rakesh Pande, learned senior counsel appearing on behalf of the petitioner submitted that the appeal pending before the Commissioner challenging the preliminary decree passed in the partition suit may also be directed to be decided expeditiously, to which Sri S.K. Verma, learned senior counsel appearing on behalf of the plaintiff-respondent has no objection. In fact, he points out that there is already an order by this Court for appeal being decided on day to day basis.

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Accordingly, without interfering with the impugned order, the instant petition is disposed of with direction to the trial court to decide the instant suit expeditiously. It is further provided that the appellate court, before whom appeal against the preliminary decree passed in partition suit is pending, shall proceed to decide the appeal expeditiously on a day to day basis, provided there is no legal impediment.

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(Manoj Kumar Gupta, J)

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Order Date :- 15.7.2019 SL

Late Hadisunnisha Global Trust v. District Judge Sant Kabir Nagar and 7 Others

Case brief

What is this about?

What did the court decide?

Late Hadisunnisha Global Trust v. District Judge Sant Kabir Nagar and 7 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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