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RAMAPATI PRASAD TIWARI versus D.J., MAHARAJGANJ AND ORS.

High Court of Judicature at Allahabad

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Ramapati Prasad Tiwari v. D.J., Maharajganj And Ors. - WRIT - C No. 16455 of 1997 [2003] RD-AH 106 (18 April 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 38

CIVIL MISC. WRIT PETITION NO 16455 Of 1997

Ramapati Prasad Tiwari -----       Petitioner

Versus

District Judge, Maharajganj & ors. -----   Respondents.

--------------

Hon'ble Dr. B.S.Chauhan, J.

This writ petition has been filed against the order dated 27.3.1997, passed by the District Judge, Maharajganj and the order dated 7.11.1996, passed by the Civil Judge (Sr. Division), Maharajganj (Annexures ''I' and ''II', respectively).

Matter relates to the interim relief granted by the civil court in exercise of its power under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter called the C.P.C.). A suit for declaration of a particular share in the suit property was filed by the petitioner-plaintiff. During the pendency of the suit, a sale deed was executed on 3rd July, 1996 by the petitioner-plaintiff in favour of one Brijesh Kumar Jaiswal (not a party in the proceedings). On 4th July, 1996 respondent-defendants filed an application for interim relief under Order 39, Rules 1 and 2 read with Section 151 C.P.C., and the trial court vide its order of the same date directed the parties to maintain status quo. Subsequently, the order was confirmed by the trial court vide order dated 7.11.1996.

Being aggrieved, petitioner-plaintiff filed misc. appeal before the learned District Judge which has been dismissed vide order dated 27th March, 1997. Hence this petition.

Learned counsel for the parties have made claims and counter-claims on the issue as to whether without filing counter-claim defendants can be granted a relief under the provisions of Order 39, Rules 1 and 2 read with Section 151 C.P.C.

Reliance has been placed by the petitioner on the Proviso 3 of Rule 2 of Order 39 of the  C.P.C. which provides that where perpetual injunction cannot be granted, interim relief cannot be granted. The suit is pending since 1996. After expiry of a period of about 7 years even the issues have not yet been framed and the interim order passed by this Court remains ambiguous as it provided only to maintain status quo. It is neither clear as to whether status quo was in respect of possession or in respect of any other matter also. Petitioner-plaintiff sold part of his undivided share of the property and executed a sale deed. The settled legal proposition is that a co-sharer has a right to transfer his undivided share. The only embargo in law is that the purchaser cannot claim possession till the property is partitioned by metes and bounds (Vide Sidheshwar Mukharjee Vs. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 487; M.V.S.Mkanikayala Rao Vs. M. Narasimhaswami & ors., AIR 1966 SC 470; and Kartar Singhi Vs. Harjinder Singh, AIR 1990 SC 845; Gautam Paul Vs. Debi Ram Paul, AIR 2001 SC 61).

Thus it remains undisputed that the petitioner-plaintiff could transfer his undivided share. But, the question does arise that in case petitioner-plaintiff has a right to dispose of his undivided share, is there any law prohibiting the petitioner-plaintiff to get the sale deed registered ?. This issue was considered by a Division Bench of this Court in Dhanpal Singh & ors Vs. Executive Engineer & ors (2002) 49 ALR 17 and answered in negative, holding that there is no law putting the ban on registration of a document.

Thus in view of the above, it is clarified that the interim order passed by the court below would not prevent the petitioner-plaintiff to get the sale deed registered. However, it shall be subject to the decision of the learned trial court and the transferee shall be bound by the degree passed by it. As the matter is very old and is making no progress, the learned trial court is requested to expedite the trial and conclude the same expeditiously.

With these observations, the petition is disposed of finally.

18.4.2003

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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