Disposed

The Managing Director, Vastu Bihar Through Vinay Kumar Tiwary v. Jitendra Mohan Sahay and Ors.

Patna HC6 Feb 2019MA/145/2018

Case brief

AI extract

What is this about?

Patna High Court allowed an interim application for substitution of the legal heirs of a deceased respondent due to condonation of delay. In the main miscellaneous appeal, the Court set aside the portion of the trial court's interim injunction restraining the appellant from constructing on the land, while maintaining the order restraining the transfer of the property, and directed expedited dispos

What did the court decide?

The restraint on construction was set aside; the restraint on transfer remained intact; disposal of the suit directed within one year.

The Managing Director, Vastu Bihar Through Vinay Kumar… — Property and Title | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.145 of 2018

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======================================================

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The Managing Director, Vastu Bihar through Vinay Kumar Tiwary, s/o Late Baleshwar Tiwary, r/o B-Block Flat No.303, Nutan Tower, Colony More, Main Road Kankarbagh, Lohiya Nagar, P.S.Kankarbagh, District- Patna-800020.

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... ...Defendant / Appellant

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Versus

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Jitendra Mohan Sahay, s/o Late Kamla Sahay, r/o Bagicha, A-58, Sector-39, Noida-201301, Sate- Uttar Pradesh.

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Surendra Mohan Sahay, s/o Late Kamla Sahay, r/o 77 “A”, Patliputra Colony, Patna – 800013, Bihar.

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Nripendra Mohan Sahay, s/o Late Kamla Sahay, r/o 29 “A”, Sri Krishnapuri, Patna- 800001, Bihar.

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Ravindra Mohan Sahay, s/o late Kamla Sahay, r/o D 95, Sector 40, Noida- 201301, State- Uttar Pradesh.

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Smt. Indu Srivastava, D/o Late Kamla Sahay, W/o Late Ambey Prasad Srivastava, r/o B-2002, Imperial Heights of Andheri Goregaon Link Road, Goreaon (West) Mumbai- 400104, State- Maharashtra.

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Smt. Vimla Verma, D/o Late Kamla Sahay, W/o Late Nirmal Kumar Verma, r/o 1902 “B” Wingh, Raheja Heights, Malad, Goregaon, Mumbai- 400097, State- Maharashtra.

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Anita Vidyarthi, D/o Late Girindra Mohan Sahay, W/o V.K.Vidyarthi, r/o 1264 N.W. Eli Elizabeth City, Portland 97229, United States of America.

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Shevanti Verma, D/o Late Girindra Mohan Sahay, W/o Justice Sri Deepak Verma (retired), r/o B-4 Gitanjali Enclave, Ground Floor, Main Shivalik Road, New Delhi- 110017.

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Punam Verma, D/o Late Girindra Mohan Sahay, W/o Alok Verma, r/o Flat No.402, Pushpanjali Maya Mahesh Apartment near Jamuna Apartment, Boring Road, Patna- 800013.

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Rajni Sahay, D/o Late Girindra Mohan Sahay, W/o Justice Sri Janardan Sahay (retired), r/o House No.7, High Court Judge Colony, Sector-105, Noida- 201301, State- Uttar Pradesh.

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Anjula Sahay, D/o Late Girindra Mohan Sahay, D/o Pandey Vimal Sahay, r/o Parasmani, 28A, Sri Krishnapuri, Patna- 800001.

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Rajnish Sahay, S/o Late Girindra Mohan Sahay, r/o Flat No.514, Building No.1, Kamdhenu Apartment, Cross Lane No.1, Lokhandwala, Andheri East, Mumbai- 400053, State- Maharashtra.

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Smt. Nandini Sahay, W/o Late Brajendra Mohan Sahay.

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Prakash Mohan Sahay, s/o Late Brajendra Mohan Sahay. Both r/o D- 169, Sector 63, Noida, State- Uttar Pradesh.

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Smt. Saloni Kishore, D/o Late Brajendra Mohan Sahay, W/o Rajesh Kishore, r/o Plot No.9B, Sector 2A, Gandhi Nagar- 382007, StateGujarat.

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Praveen Swaroop, s/o Late Prity Swaroop & Pramod Swaroop, r/o 13 DDA Flats, Panchshil Enclave, New Delhi.

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Smt. Parina Swaroop, D/o Late Prity Swaroop & Pramod Swaroop, w/o Amit Singh, r/o 23 Shri Fort Road, New Delhi- 110049.

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Patna High Court MA No.145 of 2018 dt.06-02-2019 2/5

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Pramod Swaroop, s/o Late Jagdish Swaroop, W/o Late Prity Swaroop, r/o DDA Flats, Panchshil Enclave, New Delhi.

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The Executive Director, Vastu Bihar through Ajay Kumar Jha (name of Ajay Kumar Jha wrongly mentioned), s/o not known, R.Bhawan-2 Plot P.S. Sadar Hajipur (Ramashish Chowk), District- Vaishali (address of the Executive Director has wrongly mentioned as above but the real address of the Executive Director, Vastu Bihar is Brajesh Kumar, s/o Baleshwar Prasad Singh, House No.17, Premchand Path, Baridih Basti, Jamshedpur, Baridih Colony, East Singhbhum, Jharkhand- 831017.

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The Manager, Vastu Vihar near HDFC Bank MohallaRamchandrapur, P.S.- Laheri Biharsharif, District- Nalanda.

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... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Surendra Kishore Thakur, Advocate Mr. Ravi Shankar Kumar, Advocate For the Respondent/s : Mr. Anil Chandra, Advocate Mr. Amit Kumar, Advocate ======================================================

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CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR ORAL JUDGMENT

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Date : 06-02-2019

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Heard the parties on I.A. No.7682 of 2018 , which is a petition under Order XXII, Rule 4 of the Code of Civil Procedure for substitution of the legal heirs of deceased-respondent No.2, Surendra Mohan Sahay , who died on 27.02.2018.

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2. The legal heirs are mentioned in para 3 of the petition. The legal heirs were already noticed in this matter and on limitation matter.

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3. The limitation petition would reveal that when the matter for substitution started before the court below, the appellant came to know about the death of respondent No.2, Surendra Mohan Sahay and that was the reason for delay. Hence, the delay is condoned and prayer for substitution is allowed.

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4. Accordingly, I.A. No.7682 of 2018 stands disposed of.

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Patna High Court MA No.145 of 2018 dt.06-02-2019

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3/5

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5. With consent of the parties this appeal is heard and being disposed of at this stage in absence of substituted heirs, as the suit of the plaintiffs-respondents is represented by appellantdefendant.

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6. By the impugned order dated 09.01.2018, the learned Trial Court (Sub-Judge-I, Biharsharif) has restrained the defendantappellant by an order of temporary injunction to make any construction on the suit property or to transfer the suit property or constructed portion thereon.

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7. The restraint order has been passed in Title Suit No.182 of 2017. The same has been challenged by defendant of the suit.

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8. The plaintiffs-respondent Nos.1 to 18 had brought the aforesaid Title Suit No.182 of 2017 asserting therein that the suit property is their ancestral property. Some fictitious person has wrongly transferred the same in favour of the appellant herein and appellant is going to make construction on the suit land. Therefore, prayer was for declaration of the title of the plaintiffs mentioned in schedule 1 of the plaint and also for a decree of recovery of possession after demolition of the boundary wall. Further prayer was for temporary injunction.

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9. The defendant-appellant resisted the suit on the ground that they have purchased the suit land through different registered

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Patna High Court MA No.145 of 2018 dt.06-02-2019 4/5

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sale deeds from recorded tenants for valuable consideration and they are going to construct a multi storied building on the suit land. The building has already been constructed to a great extent.

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10. The impugned order would reveal that the appellant has been restrained from making further construction or executing any transfer in future in respect of the suit property.

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11. Contention of the appellant is that since the suit is for recovery of possession, the learned court below has wrongly held that the plaintiffs have got prima facie case for grant of ad interim injunction. However, the appellant is agreeable that if the appellant is allowed to continue with construction, it is not going to sale any of the constructed portion to anyone till disposal of the suit.

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12. Learned counsel for the respondents-plaintiffs opposed the prayer of the appellant and submits that on the basis of material available on the record, the impugned order cannot be faulted with.

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13. Without making any comment on the merit of the case, which may prejudice the trial, on the basis of facts narrated above, the impugned order to the extent it has restrained from making construction on the suit land by the appellants is hereby set aside . However, it is made clear that any construction by the appellant on the suit land would be subject to the result of the suit.

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Patna High Court MA No.145 of 2018 dt.06-02-2019

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5/5

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14. The restraint order to the extent that the appellant would not transfer the constructed portion to anyone shall remain intact till disposal of the suit.

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15. The learned trial court is directed to expedite the disposal of the suit preferably within one year. The parties shall fully co-operate so that none of the party suffers due to interlocutory order passed by the court below or by this Court in this appeal.

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16. Accordingly, stay petition, vide I.A. No. 4463 of 2018 also stands disposed of.

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17 . With the aforesaid observation, this miscellaneous appeal stands disposed of.

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(Birendra Kumar, J)

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abhishek/-
AFR/NAFR	NAFR
CAV DATE	N.A.
Uploading Date	08.02.2019
Transmission Date	08.02.2019

The Managing Director, Vastu Bihar Through Vinay Kumar Tiwary v. Jitendra Mohan Sahay and Ors.

Case brief

What is this about?

What did the court decide?

The Managing Director, Vastu Bihar Through Vinay Kumar Tiwary v. Jitendra Mohan Sahay and Ors.

Case brief

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What did the court decide?

What the court decided

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