Allahabad High Court
Dharam Veer Singh vs Dr. Vijay Veer Singh And 11 Others on 12 July, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:137810
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 5935 of 2023
Petitioner :- Dharam Veer Singh
Respondent :- Dr. Vijay Veer Singh And 11 Others
Counsel for Petitioner :- Amit Krishna
Hon'ble Jayant Banerji,J.
Heard learned counsel for the petitioner.
This petition has been filed seeking the following reliefs:
"(i) Exercise its supervisory power as enshrined under Article 227 of the Constitution of India by setting aside the impugned judgment and order dated 31.3.2023 passed by Additional District Judge, Court No. 14, Muzaffar Nagar in Civil Appeal No. 20 of 2018 in "Dharam Veer Singh V/s Dr. Vijay Veer Singh & others.
(ii) Exercise its supervisory power as enshrined under Article 227 of the Constitution of India by setting aside the impugned judgment and order dated 20.1.2018 passed by Additional Civil Judge (Senior Division), Court No.1, Muzaffar Nagar in Misc. Case No. 3 of 2016 for preparation of final decree arising out of O.S. No. 834 of 2011 "Dr. Vijay Veer V/s Yah Veer & others."
At the outset, learned counsel for the petitioner has stated that the petitioner is not pressing prayer no.1 and he restricts this petition to challenge the order dated 20.1.2018, passed by the Additional Civil Judge (Senior Division), Court no.1, Muzaffar Nagar in Misc. Case No. 3 of 2016 arising out of O.S. No. 834 of 2011 (Dr. Vijayveer Singh Vs. Yashveer Singh Malik and others).
It appears that a suit for partition was filed by the plaintiff-respondent no.1 in respect of a house bearing No. 161 situated in Mohalla Aryapuri, Muzaffar Nagar in respect of 1/6th share of plaintiff-respondent.
The sole contention of the learned counsel for the petitioner is that the defendant-petitioner had objected that the land on which house is situated as not included in the plaint. It is stated that the suit was decreed and a preliminary decree was prepared on 1.12.2015. It is stated that thereafter, under the direction of the trial court, the Amin Commissioner prepared a report 26-Ga. It is stated that the report of the Amin was challenged by the defendant no.5/petitioner which was rejected by means of order dated 20.1.2018. The sole contention reiterated by the learned counsel for the petitioner is that the plaint filed did not include the entire property. It has been stated that the map appended with the plaint is incorrect. Learned counsel for the petitioner has also stated that the objection raised with regard to the Amin report were not discussed by the trial court while passing the impugned order. It is, therefore, stated that the order of 2018 deserves to be set aside.
In my opinion, this writ petition has no force. In case the petitioner was of the opinion that the suit was filed with regard to part of the property or there was incorrect description of the same, he ought to have challenged the preliminary decree that was passed on the basis of suit property, but that was not done and the petitioner merely challenged the order of 2018, passed by the trial court rejecting the objection of the petitioner on the report of Amin.
The trial court by the impugned order dated 20.1.2018 considered the objections of all the defendants to the report of the Amin and noted that the defendant nos. 1 to 4 did not press their objections. It was noted that the objections of the defendant No. 5 (petitioner) were that the construction was very old and in view of the new proposed constructions in the front of the house, the first floor was likely to be damaged. It was held that the partition was found to be equitable by all other parties and the objection of the defendant No. 5/petitioner is baseless.
In view of the facts and circumstances in this case, no error of jurisdiction is reflected in the order impugned that would merit interference.
This petition is dismissed.
Order Date :- 12.7.2023
sfa/
(Jayant Banerji, J)
