Smt. Rekha vs Smt. Jasmin & Another
2014 Latest Caselaw 5548 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 26
 

 
Case :- WRIT - C No. - 46306 of 2014
 

 
Petitioner :- Smt. Rekha
 
Respondent :- Smt. Jasmin & Another
 
Counsel for Petitioner :- V. Sahai,B. Dayal
 

 
Hon'ble Abhinava Upadhya,J.

By means of this writ petition the petitioner has challenged the order of the trial court as well as the appellate court by which interim injunction application has been rejected and has been upheld by the appellate court. The petitioner claims to be  the vendee of Smt. Surgyani Devi widow of Balveer and mother of two daughters Smt. Murti Devi and smt. Mahendri. Smt. Surgyani Devi executed a sale deed in favour of the petitioner with respect to a house and its compound.

According to the petitioner, the vendor came into possession of the property through a will executed by the testator Balveer by which the house  was  bequeathed in favour of the vendor and the agricultural land  was bequeathed in favour of two daughters. After the death of the testator  vendor executed a sale deed in favour of the petitioner in the year 2008 and since then she is in possession. The daughter of the vendor Smt. Murti Devi also executed a sale deed in favour of Smt. Jasmin and she started interfering with the possession of the petitioner. Therefore, the petitioner filed the present suit along with an application for interim injunction. The trial court rejected the interim injunction application on the ground that no map has been filed along with the plaint to identify the property whereas the petitioner claims that the property in question is clearly identifiable as the boundary was given in the plaint, which boundary has been shown as  in the said sale deed itself and the possession has also been proved by the Amin's report.

Against the aforesaid order, the appeal was filed and the appellate court holding that the copy of the will has not been filed and the property is not identifiable as held by the trial court, rejected the appeal.

According to the learned counsel for the petitioner, the will was filed, as has been stated in paragraph-6 of the writ petition but further goes on to submit that even if  the will is ignored, yet the claim of the petitioner cannot be negated as after death of Balveer, the common law of succession  would apply and the vendor will have one-third share of the property  and the registered sale deed has been executed and the Amin's report also suggests that the vendee-petitioner is in possession of the property. As such, during the pendency of the suit her, possession ought to have been protected.

The matter requires consideration.

Issue notice to the respondents returnable at an early date.

Learned counsel for the petitioner will take steps for service of notice upon the respondents within a week.

List after service of notice.

Till the next date of listing, the parties  to the suit are directed to maintain status quo with regard to the disputed property.

Order Date :- 2.9.2014

SKM