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Suresh Chandra Mishra v. State Of U.P. And Others - WRIT - C No. 33372 of 2007 [2007] RD-AH 12881 (25 July 2007)


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).





Suresh Chandra Mishra       -------------    Petitioner              


State of U.P. & Ors.        -------------  Respondents


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

Hon'ble  Rakesh Sharma, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

The petitioner, who became the law unto himself, taking the law in his own hands, committed all possible illegality, approached the writ Court for mere formality of approval of his misdeeds, and as the said Court could not approve his misconduct for the work, he approached this Court for direction to the Civil Court to put its seal of approval on his illegality forthwith without wasting his valuable further time.

The facts of the case as pleaded by the petitioner himself reveal that he purchased an undivided share of a co-parcener, i.e., respondent no.3 for consideration vide registered Sale Deed dated 17.12.1999. He took possession of the property, i.e., dwelling house, immediately after execution of the Sale Deed. He claims to be in possession of the properties to the extent of share he purchased.

Petitioner filed Suit No.142 of 2003 before the Court of Upper Civil Judge IInd (Senior Division), Kanpur Nagar for partition and restraining the respondent/defendant, i.e., other co-sharer (respondent no. 3) from interfering with his peaceful legal possession. As the Subordinate Court, being loaded with enormous work, proceeded with snail's pace, petitioner approached this Court to direct the Court to conclude the trial of his Suit forthwith ignoring genuine litigants involved in about thirty thousand cases, pending before the said Court.

The question does arise as to whether the purchaser of undivided share or a co-parcener's share can take the possession unless it is partitioned by metes and bounds. The issue involved herein is no more res integra.

In Sidheshwar Mukharjee Vs. Bhubneshwar Prasad Narain Singh, AIR 1953 SC 487, the question arose as to whether while making the recovery of a personal loan from a member of a joint family/a junior member of co-parceniary, the purchaser has a right to take possession prior to the stage of partition. The Court held as under:-

"He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. He was (not) entitled to joint possession on and from the date of purchase."

While dealing with the similar issue in M.V. Mkanikayala Rao Vs. M. Narasimhaswami & Ors., AIR 1966 SC 470, the Apex Court held as under:-

"Now it is well settled that the purchaser of a co-parcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the co-parcener whose share he had purchased...."

The Court rejected the contention of the co-parceners that as they were in adverse possession of the property, for the reason that the purchaser of a undivided share could not take the possession in spite of his best efforts, and thus, was not entitled to get the same, observing that the said co-parceners could not be presumed to be in adverse possession of the said undivided share because the purchaser could never be entitled to possession unless the partition takes place.

In Kartar Singh Vs. Harjinder Singh, AIR 1990 SC 845, the Apex Court examined the case under Sections 10 and 12 of Specific Relief Act, 1963 where the Agreement had been made only by one of the co-sharers. After examining the issues, the Court held that it was not proper to hold that the decree of specific performance cannot be granted since the property would have to be partitioned. Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated. Therefore, a decree for specific performance could be passed only in respect of the share of the person who executed the Agreement. But the purchaser could not be entitled to possession unless partition takes place by metes and bounds.

In Ghantesher Ghosh Vs. Madan Mohan Ghosh & Ors., (1996) 11 SCC 446, the question of sale and right of pre-emption, in view of the  provision of Section 4 of the Indian Partnership Act, 1893, was considered by the Hon'ble Supreme Court. The Apex Court held that Section 4 of the Act 1893 can validly be pressed in service by any of the co-owners of the dwelling house belonging to undivided family pending suit for partition till final decree is passed, and thereafter, even at the stage of execution of the final decree for partition, so long the execution proceedings have not effectively ended and the decree for partition has not been fully executed and satisfied by putting the share-holders in actual possession of their respective shares. Section 4 requires for its applicability that such stranger transferee must sue for partition, and only in that eventuality, the rights of pre-emption envisaged by Section 4 can be made available to other contesting co-owners.

In Gautam Paul Vs. Debi Rani Paul, AIR 2001 SC 61, a similar issue arose in respect of interpretation of the said provision of Section 4 of the Partnership Act, 1893. The Court held as under:-

"So long as the stranger-purchaser does not seek actual division and possession, either in the suit or in the execution proceedings, it cannot be said that he has sued for partition. Thus, there has to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share."

Thus, in view of the above, the law can be summarised that when a person purchased a undivided share in a joint property, he is not entitled for possession unless the partition takes place, and such a course is required to preserve the right of privacy, and to certain extent the culture religious performances and good habits. In a joint possession each co-sharer claims to be in possession of every piece of that property. Therefore, a stranger cannot be permitted to step in the shoes of one of the sharers and claim a similar right as it may not be acceptable to other co-sharers.

In the instant case, the petitioner claims to have already taken possession of his share and file the suit for partition and for a further relief of restraining the other co-sharers to interfere with his peaceful possession. We fail to understand as if he has already taken possession what part of the property, for what relief he has approached the Civil Court, and if his possession is totally illegal and totally foreign to legal system, in complete disregard to rule of law, whether he is entitled to take any relief from the Court of equitable jurisdiction, restraining the other co-sharers from interfering with his peaceful possession. In fact, it is a forcible possession by the petitioner without any sanction of law and may amount to grabbing of the property violating the rights of other co-sharers.

The Courts are meant to enforce the law and not to issue any direction in utter disregard of law, nor a direction can be issued to any Statutory Authority to act in contravention of law. Filing this kind of petitions amounts to abuse of process of the Court which has to be dealt with by the Court by heavy hands.

The conduct of the petitioner dis-entitles him for the relief claimed. Petition is totally misconceived and dismissed with costs of Rs.20,000.00 which shall be recovered from the petitioner by the learned District Collector, Kanpur Nagar and deposited through Demand Draft in favour of  Registrar General (Account) Allahabad High Court Mediation and Conciliation Centre. A copy of the judgment and order be sent to the learned District Collector, Kanpur Nagar for compliance.




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