HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - C No. - 19176 of 2011 Petitioner :- Suresh Rai And Others Respondent :- Harsh Bardhan Rai And Others Petitioner Counsel :- Deo Prakash Singh,Santosh Kumar Hon'ble Rajes Kumar,J.
The petitioners filed a suit for permanent injunction in respect of the property in dispute. The petitioners had a right over the property which has been purchased by their father vide sale deed dated 16.8.1971. The question is whether the property in dispute is part of the sale deed dated 16.8.1971. Since other family members are also claiming rights over the property therefore in respect of the the said disputed portion, the petitioners filed a suit. The trial court, on a consideration of the entire facts and circumstances, has passed an interim injunction directing the parties to maintain status-quo. Against the said order, an appeal was filed by defendant no. 1, who, according to the petitioners, is not a co-sharer. According to the petitioners, the co-sharers have not filed any appeal before the appellate authority. The appellate authority, however, allowed the appeal and set aside the order passed by the trial court on the ground that partition has not yet taken place and, therefore, no injunction can be granted.
Learned counsel for the petitioners submitted that the property in dispute is part of the sale deed dated 16.8.1971 upon which the other person is trying to encroach. The partition has already taken place and the said disputed property is in possession of the petitioners. In case if the order of the status-quo continues, no party shall suffer any loss inasmuch as the petitioners are able to make out a prima facie case in their favour.
The matter requires consideration.
Issue notice to the respondents returnable at an early date. The petitioners may take steps to serve the respondent within two weeks.
List in week commencing 9.5.2011.
Till the next date of listing, the operation of the order dated 13.12.2010 passed by the Additional District Judge, Court No. 4, Ballia (Annexure-11 to the writ petition) shall remain stayed.
Order Date :- 4.4.2011 OP