The Patna High Court dismissed a Civil Miscellaneous application filed under Article 227 seeking to set aside an order rejecting an injunction petition in a title suit. The Court held the trial court did not ignore evidence and the order was not perverse.
The application under Article 227 of the Constitution of India is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.552 of 2019
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Ram Kumar Chaudhary, aged about 63 years, male, Son of late Ramji Chaudhary, Resident of Village and Post-Mahmadi Pur, P.S-Mohiuddin Nagar, Distt-Samastipur
... ... Plaintiff/ Petitioner
Versus
Rajiv Kumar Jaisawal, Son of late Raghunath Chaudhary, Resident of Village and Post-Mahmadipur, P.S-Mohiuddin Nagar, Dist-Samastipur.
| =============== | ... ... Defendant/ Respondent ======================================= |
|---|---|
| Appearance : | |
| For the Plaintiff | : Mr. Dhananjai Kumar Singh-Advocate |
| For the Respondent =============== |
: Mr. ======================================= |
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT
13-09-2019
Heard learned counsel for the petitioner.
Constitution of India has been filed by the petitioner for setting aside the order dated 18.01.2019 passed by the learned Subordinate Judge, Sahpur Patori in connection with Title Partition Suit No.43 of 2017, by which he has rejected the petition dated 14.06.2017 filed by the plaintiff-petitioner under Order-39, Rule-1 and 2 read with Sections 94 and 151 of the Code of Civil Procedure for grant of injunction in respect of the disputed land in his favour.
Patna High Court C.Misc. No.552 of 2019 dt.13-09-2019 2/5
to file a petition under Order-XXVI, Rule-9 of the Code of Civil Procedure (for short ‘C.P.C.’)for appointment of Pleader Commissioner, so that the facts asserted by the petitioner and denied by the Respondent be ascertained and verified. In pursuance of the said instruction, he filed an application under Order-26, Rule-9 of the Code of Civil Procedure on 12.06.2018, which was allowed and a Pleader Commissioner was appointed by the Court below, who conducted local inquiry in presence of the parties, a field note was prepared and, on 14.07.2018, a report was submitted before the Court below, which would clearly show that the land situated between the house of the petitioner and the house of his brother is being used by the respondent for running a coaching centre. He submitted that the Court below has completely ignored the report of the Pleader Commissioner and came to an erroneous finding that none of the ingredients essential for passing an order under Order-39, Rule-1 and 2 read with Section 94 and 151 of the Code of Civil Procedure was present in the case.
Patna High Court C.Misc. No.552 of 2019 dt.13-09-2019 3/5
the suit for preferential right regarding an area of 18 Dhur 12 Kanwa land detailed in Schedule-1 of the plaint. The petitioner claimed that the suit property had been separately transferred by the defendant second set in favour of defendant first set in violation of Section 22 of the Hindu Succession Act and Section 4 of the Partition Act. The petitioner further claimed that no partition by metes and bounds had taken place between the parties and till date, they were jointly sharing the property. His contention was that on 09.10.2017, defendant first set came over the suit property and demolished a part of khaprail house.
Patna High Court C.Misc. No.552 of 2019 dt.13-09-2019 4/5
rooms, firewood, electric meter on suit plot belonging to the defendant, which indicated that the defendant is in possession and construction of the rooms had taken place between one and two years, the Court below came to the conclusion that neither prima facie case nor balance of convenience lies in favour of the plaintiffs. It also came to the conclusion that no irreparable loss is likely to be caused to the plaintiffs.
Patna High Court C.Misc. No.552 of 2019 dt.13-09-2019 5/5
interfere with the same in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
(Ashwani Kumar Singh, J)
vikash/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | N.A. |
| Uploading Date | 24.09.2019 |
| Transmission Date | 24.09.2019 |
3 issues framed by the court
Whether the High Court should interfere with the District Court's dismissal of a writ petition seeking an injunction in a partition suit exercise of its supervisory jurisdiction under Article 227.
Whether the District Court erred in rejecting the injunction application by ignoring the Pleader Commissioner's report.
Whether the District Court passed a perverse order by concluding that no prima facie case or balance of convenience existed in favour of the petitioner.
6 provisions across 4 enactments
Ram Kumar Chaudhary
Rajiv Kumar Jaisawal
Ashwani Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
