Allahabad High Court
Smt. Laung Shree vs Vijay Kumar And 5 Others on 25 September, 2023
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:185183
Court No. - 9
Case :- CONTEMPT APPLICATION (CIVIL) No. - 6986 of 2023
Applicant :- Smt. Laung Shree
Opposite Party :- Vijay Kumar And 5 Others
Counsel for Applicant :- Dwijendra Prasad
Hon'ble Rohit Ranjan Agarwal,J.
The appellate Court on 21.09.2016, corrected on 30.09.2016, in Second Appeal No.246 of 2016 passed the following order :
"Heard learned counsel for the appellants and perused the record.
Original Suit No.561 of 1983 was filed by the plaintiffs against the defendants for partition, for possession of the partitioned property and for payment of Rs.1,20,000/-. Learned Civil Judge (Senior Division), Agra, vide judgment dated 15.2.1993, has partly decreed the suit and declared that plaintiffs are co-owner of 1/4 part of the properties mentioned in Schedule-A and are entitled for its partition. Regarding partnership firm, plaintiffs' share was found 1/2 and after accounting, it was ordered that he was entitled to get 1/3 share of the partnership firm. Defendants assailed the judgment of the trial court before learned District Judge, Agra, by preferring Appeal No.255 of 1996. Appeal was transferred to the court of learned Additional District Judge, Agra, and learned first appellate court, vide judgement dated 31.10.2015, partly allowed the appeal and modified the decree of the learned trial court regarding plaintiffs' share in Schedule-A to house no.274 only. Regarding other properties of Schedule-A, it was ordered by the learned first appellate court that plaintiffs are not entitled to any share in those properties.
Learned counsel for the appellants submitted that learned first appellate court only on the basis of a notice which was given by the plaintiffs deprived the plaintiffs from the share of other properties of Schedule-A except house no.274 on the ground that in notice, plaintiffs have mentioned only house no.274 and other immovable properties were not mentioned in the notice. Learned first appellate court treating the omission in the notice as an admission of the plaintiffs which according to the learned counsel is not according to law. Moreover, notice was not on oath.
Matter requires examination.
So, following substantial question of law arises in the present appeal :-
"Whether the finding of the learned first appellate court dis-entitling the plaintiffs from claiming share in the immovable property mentioned in Schedule-A except house no.274 on the basis of plaintiffs notice in which there was omission of other immovable properties except house no.274 treating the same as admission of the plaintiffs, is perverse."
Appeal is admitted for hearing.
Notice be issued to the respondents.
Steps be taken within two weeks by registered post acknowledgement due.
Summon the lower court record.
List this appeal for hearing in due course.
Till the next date of listing, operation of the impugned judgment of the learned first appellate court shall remain stayed and parties will maintain status quo over the properties in dispute."
From perusal of the order it is clear that the judgment of the first appellate Court was stayed and further the parties were directed to maintain status quo over the properties in dispute.
Learned counsel for the applicant states that during the pendency of the appeal the opposite party has transferred the land in dispute.
As there is no order restraining alienation of the property nor possession of the applicant has been disturbed, no case for contempt is made out. The contempt application is misconceived.
Dismissed.
Order Date :- 25.9.2023
Kushal
