Dismissed

Lakshami Mishra and 2 Others v. Kailash Chandra Mishra and Another

Allahabad HC3 Feb 2020SAPL/108/2020

Case brief

AI extract

What is this about?

This judgment dismisses a second appeal challenging a decree denying permanent injunction in a property suit. The court held that no substantial question of law arose as the appellant failed to prove ownership or co-parcenary rights, had not approached the court with clean hands, and concurrent findings by lower courts must be respected.

What did the court decide?

The appeal was dismissed with no order as to costs.

Lakshami Mishra and 2 Others Vs Kailash Chandra… — Matrimonial and Divorce | Allahabad HC (2020)

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Court No. - 53 Case :- SECOND APPEAL No. - 108 of 2020 Appellant :- Lakshami Mishra And 2 Others Respondent :- Kailash Chandra Mishra And Another Counsel for Appellant :- Shri Ram (Rawat),Indra Deo Mishra,Shushil Kumar Mishra

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Hon'ble Vivek Agarwal,J.

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Sri I.D. Mishra, learned counsel for the appellant.

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This appeal has been filed under Section 100 CPC being aggrieved by the judgment dated 23.12.2019 and decree dated 04.01.2020 passed by learned Additional District Judge Court No.5 Ghaziabad in Civil Appeal No.91 of 2015 (Smt. Lakshami Mishra and others vs. Kailash Chandra Mishra and another) whereby the learned Rirst Appellate Court has affirmed the judgment dated 31.07.2015 and decree dated 13.08.2015 passed by the learned court of Small Causes, Additional Civil judge (Senior Division) Ghaziabad.

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The brief facts leading to the present second appeal are that the plaintiff had filed a suit for permanent injunction alleging that the defendant No.1 is the father-in-law of the plaintiff no.1 and grand father of plaintiff Nos.2 and 3. On 18.06.2003 plaintiff No1 was married to son of defendant No.1, namely Sri Dashrath Mishra, as per the Hindu traditions and customs. According to the plaintiff, Sri Kailash Chandra Mishra was having a house bearing No.62/2 Prem Vihar Gayatri Nagar Khoda Colony, Paragana Loni, Tehsil and District Ghaziabad, which was built by him on his own. According to the plaintiff, this house was joint Hindu undivided property and she and her children are co-parceners in the suit property. It is her contention that on 18.09.2007 this house No.62/2 was sold for a sum of Rs.3,12,000/-. Out of which half of the amount Rs. 1,26,500 was given by Kailash Chandra Mishra to his son Navaran Mishra @ Satendra Mishra who purchased another

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plot, whereas husband of plaintiff No.1 purchased the disputed house contend in Khasara No.88/2, Prem Vihar, Khoda Colony, Pargana Loni, Tehsil and District Ghaziabad,in the name of his father with the rest of the balance amount. From that date plaintiff, her children and her husband were staying in the said house. Unfortunately, on 12.09.2010 plaintiff No.1 lost her husband so also plaintiff No.2 and 3 lost their father and thereafter defendant No.1 adopted all coercive measures to expell them from the said property, therefore, suit for permanent injunction was filed.

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It is plaint averment that since Kailash Chandra Mishra had given half of the sale consideration derived from sale of plot No.62/2 in favour of his younger son Navratan, therefore, from the half share which was given to Dashrath Mishra, Dashrath Mishra had purchased plot No.88/2 and registered this property in the name of his father.

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On the basis and strength of such submission, suit for permanent injunction was filed.

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Trial Court framed as many as five issues and held that plaintiff is neither the owner or title holder of the said property. It has come on record that the property was purchased by Kailash Chandra Mishra and the averment of Hindu joint family has not been proved. Plaintiff could not prove that she along with her children are co-parceners of the property, which was sold by Kailash Chandra Misrha.

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In view of such facts and findings recorded by the trial court, after going through the evidence adduced by the parties, it has come to a finding that plaintiff No.1 was having permissive possession over the said property and was not having any share in the said property by virtue to being a member of hindu

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undivided family.

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It has also come on record and as has been pointed out by learned counsel for the appellant that defendant No.1 Kailash Chandra Mishra has already filed a suit for possession and permanent and mandatory injunction against the appellants.

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In view of such facts that said suit bearing No.227/12 is already pending before the Civil Judge (Senior Division) Ghaziabad, concurrent findings of fact in holding that the plaintiff is not an actual owner and has not instituted the suit with clean hands, therefore, is not entitled to discretionary relief for permanent injunction and these facts have been affirmed by the first appellate court.

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Learned trial court has also accepted that there is no material placed before the Court to hold the suit being barred by the provisions contained in Order 7 Rule 11 CPC and there is a discussion and appreciation of finding in regard to all the issues and after appreciating evidence, which has come on record that plaintiff has not approached the Court with clean hand, such findings do not call for any interference as affirmed by the first appellate Court inasmuch as the plaintiff has failed to prove that property contained in plot no. 62/2 was a Hindu undivided family property and plaintiff and her children are coparceners and have any share in the said property.

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In view of the facts and circumstances and material available on record, this appeal does not raise any substantial questions of law lest the ones which are mentioned in the appeal memo, therefore, appeal lacks merit and is consequently dismissed.

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No order as to costs.

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Order Date :- 3.2.2020/Pr/-

Lakshami Mishra and 2 Others v. Kailash Chandra Mishra and Another

Case brief

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Lakshami Mishra and 2 Others v. Kailash Chandra Mishra and Another

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