Remanded

Vajiran and Another v. Kamrunisha and 3 Others

Allahabad HC9 Jan 2020SAPL/16/2020

Case brief

AI extract

What is this about?

In a second appeal against a permanent injunction suit regarding land partition, the court set aside the lower appellate decision. Finding that the share of the appellant, purchased from Chand Mohammad, overlaps with the respondent's share, the matter was remanded to the trial court to record specific findings on the extent of both parties' interests and to adduce fresh evidence within three month

What did the court decide?

Impugned orders set aside; matter remanded to Civil Judge (JD), Mirzapur to record specific findings on land shares and adduce evidence within three months.

Vajiran and Another Vs Kamrunisha and 3 Others — Partition | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 16 of 2020

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Appellant :- Vajiran And Another Respondent :- Kamrunisha And 3 Others Counsel for Appellant :- Mohd. Shahanshah Khan Counsel for Respondent :- Sanjay Dwivedi

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Hon'ble Vivek Agarwal,J.

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Heard Sri Mohd Shahanshan Khan, counsel for the appellants and Sri A.K. Jain, counsel for the respondents.

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This second appeal has been filed by the plaintiffs being aggrieved by the judgment and order dated 5.10.2019 and decree dated 14.10.2019 passed by learned District Judge, Mirzapur in Civil Appeal No. 34 of 2018, Vajiran and others Vs. Kamrunisha and others which has confirmed the judgment dated 21.7.2018 and decree dated 2.8.2018 passed by learned Civi Judge (JD), Mirzapur in O.S. No. 81 of 2005 between Vajiran and anothers Vs. Kamrunisha and others.

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The appellants contention is that they filed a suit for permanent injunction against the defendants asking them not to interfere in 1 bigha of land which was purchased by them from Chand Mohammad by registered sale deed dated 13.2.1997. It is submitted that defendant no. 1- Kamrunisha admitted in her evidence that she is grand daughter of Sher Ali and Sher Ali has three sons namely Sahdul, Dangar and Sunder and she is only daughter of Sahdul. Danger has two sons namely Bismillah and Tullah whereas Sunder has one son namely Chand Mohammad. She further deposed that she married to Tullah, S/o Dangar. It is further averred that her grandfather Sher Ali had 5 bighas of land. After death of Sher Ali such land was mutated in the name of her Uncle Sahdul, and only name of Danger was not mutated. However, son of Sunder namely Chand Mohammad had sold his land in favour of Vajiran. Thereafter, it is averred that she had not sold her portion of land to Rakesh Singh. Reading this evidence, it’s submitted that both the courts below have accepted the facts that total area of the land which has been bequeathed by Sher Ali on his successor namely Sahdul and Sundar was 5 bighas.

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The dispute as far as it concerned, respondent nos. 2 and 4 in turn sold their share in favour of Gaurav Dwivedi in the year 2009 is in regard to 2 bighas 2 biswa and 16 dhur. It is submitted that it is nobody’s case that Chand Mohammad was not having any share in the suit land by virtue of being successor of Sundar and according to defendant no. 1, she was one of the inheritant of estate of Sher Ali. There is no demarcation of the suit property and it has not been clarified by the Courts below as to what was the extent of share of property of Kamurunisha in the estate of Sher Ali from whom it is admitted that property was inherited. Without framing any issue in this regard, both the the courts below have erred in not distinguishing the fact that out of 5 bighas of land, 1 bigha of land was sold by Chand Mohammad infavour of the

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plaintiff Vajiran whereas though denied by Kamrunisha, but the case of defendant nos. 2 and 4 is that Kamrunisha sold 2 bigha 2 biswa & 16 dhur of land in favour of defendant no. 2 Rakesh Singh, who had in turn executed a sale deed infavour of defendant no. 4.

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Thus the issue which is gernmane to the controversy in regard to which Amin’s report has been annexed by the appellant as Annexure-2, which also has Najri Naksha enclosed. It is nowhere mentioned as to what is the area under survey no. 339 and how much area had devolved in favour of defendant no. 1 Karmunisha and what was the share of Chand Mohammad from whom plaintiffs are claiming their share by virtue of the sale deed dated 13.2.1997. In view of such facts instead of keeping this appeal pending before this Court, it would be appropriate to remand the matter to the trial court to record a specific finding of fact after framing of the issue that what was the share of defendant no. 1 Kamrunisha in the estate of Sher Ali and how much share had devolved in favour of defendant no. 1 and what was the extent of share of Chand Mohammad by virtue of being son of Sundar.

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Whether Chand Mohammad has sold his portion of land in favour of the plaintiff and whether such land contained in the sale deed dated 13.2.1997 over laps with the share of the land vested in Kamurinisha which she had allegedly sold in favour of Rakesh Singh. Parties will be permitted to adduce the evidence in regard to this issue and thereafter suit shall be decided afresh. It is directed that parties shall appear before the Court of Civil Judge (JD), Mirzapur who has tried O.S. NO. 81 of 2005 on 21.1.2020, for which no separate notice will be required and thereafer trial court will give reasonable opportunity to adduce evidence and parties shall without fail give their evidence within a period of two months of their appearance before the trial court i.e. plaintiff shall complete his evidence on or before 29.2.2020 and defendant thereafter on or before 31`.3.2020. Thereafter trial court shall make an endeavour to decide the suit during April, 2020. It is made clear that parties will not seek any adjournment and will cooperate with the court below to complete the proceedings within the time limitation which has been fixed by this Court. Trial court will be free to impose heavy and exemplary cost on any party seeking adjournment on any ground, if in the opinion of the court, is not just and proper.

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In the light of above discussion the impugned orders are set aside and the matter is remanded to the trial court to record finding of fact. It is left open to the trial court that if so desire in the interest of justice, it may frame other additional issues as may be advised.

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This second appeal is disposed of accordingly in above terms.

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Order Date :- 9.1.2020 S.K.S.

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Vajiran and Another v. Kamrunisha and 3 Others

Case brief

What is this about?

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Vajiran and Another v. Kamrunisha and 3 Others

Case brief

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