Allahabad High Court
Dinesh Chandra vs Rashid Basheer on 19 January, 2023
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- MATTERS UNDER ARTICLE 227 No. - 161 of 2023
Petitioner :- Dinesh Chandra
Respondent :- Rashid Basheer
Counsel for Petitioner :- Virendra Kumar,Manvendra Nath Singh
Counsel for Respondent :- Rajvendra Singh
Hon'ble Ajit Kumar,J.
Heard learned counsel for the parties.
By means of this petition filed under Article 227 of the Constitution, the petitioner is aggrieved against the order of District Judge, Jaunpur dated 02.12.2022, whereby, the temporary injunction order passed by the trial court has come to be rejected solely on the ground that since the defendant no. 1 namely Taiyaba Khatoon had died prior to filing of the suit, no temporary injunction order ought to have been granted.
It is submitted by learned counsel for the petitioner that the defendant no. 2 in the plaint namely Sri Rashid who is son of Taiyaba Khatoon and claims to have acquired rights in respect of property of Taiyaba Khatoon is already on record and therefore, there is no technical difficulty in passing the order for temporary injunction.
Per contra it is argued by learned counsel for the contesting respondent Sri Rajvendra Singh that the property in question was a joint property of three persons namely Nasrullah, Sadrullah and Akeel. He submits that Taiyaba Khatoon, who is defendant no. 1 was the daughter of Nasrullah and Nasrullah had executed a Will in favour of Taiyaba Khatoon and it is from Taiyaba Khatoon that the petitioner has acquired the property by succession. It is also submitted that property of Sadrullah was succeeded by his wife Asiya Khatoon who sold out her share to Taiyaba Khatoon by virtue of sale deed dated 04.08.1989 and that property has also come to the share of the petitioner who had succeeded late Taiyaba Khatoon. It is further submitted that Akeel the third person had already sold out his share to one Sahtul Prasad on 19.09.1988 and therefore, he could not have executed another sale deed, however, Akeel executed another sale deed of his same share in the land on 17.08.2000 to one Fateh Mohammad and Ashiya Begum from whom the sale deed is claimed by the present petitioner. It is submitted by learned counsel for the respondent that the suit land has yet not been partitioned and therefore, the suit for injunction could not have been maintainable in the light of judgment of this Court in the case of Virendra Kumar v. Additional District Judge, 2014 3 CCC 403 9 All, Kannauj until there is a suit filed for partition to determine the shares of the parties / tenure holders on the spot.
Having heard learned counsel for the parties and having perused the record, I find that the District Judge has simply remanded the matter to the trial court to be decided fresh after getting the heirs of late Taiyaba Khatoon on record.
Since the application has already been moved for treating Rashid to be the sole surviving heir of late Taiyaba Khatoon on record, this petition stands disposed of with a direction that the said application shall be decided within a maximum period of two weeks from the date of presentation of certified copy of this order and then the trial court will proceed to decide the temporary injunction application afresh considering the objections of the defendants, if any, within a further period of three weeks. Until the disposal of the temporary injunction application, parties are directed not to create any third party right in respect of the suit land.
Order Date :- 19.1.2023
IrfanUddin
