Allahabad High Court
Hari Shankar And 3 Others vs Babu on 16 May, 2024
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:37664
Court No. - 5
Case :- SECOND APPEAL No. - 174 of 2022
Appellant :- Hari Shankar And 3 Others
Respondent :- Babu
Counsel for Appellant :- Gaurav Nigam,Deepak Chandra Jain,Rajendra Singh Chauhan
Hon'ble Rajnish Kumar,J.
1. Heard Shri Rajendra Singh Chauhan, learned counsel for the appellants.
2. This appeal has been filed against the judgment and decree dated 12.04.2022 passed by the District Judge, Raebareli in Civil Appeal No.12 of 2021 and judgment and decree dated 28.09.2021 passed by Civil Judge (S.D.), Raebareli in Regular Suit No.179 of 2014.
3. Learned counsel for the appellants submits that the appellant had filed a suit for permanent injunction and proved his possession on the house in question, however the suit filed by the appellants was dismissed without considering the same. The appellate court has also failed to consider the same and dismissed the suit.
4. Having considered the submissions of learned counsel for the appellants, I have perused the documents placed on record of this appeal.
5. Admittedly, the property in dispute i.e. House No.1238, Ward No.25, Chack Ahamdpur, Pargana- Tehsil Sadar, District Raebareli is an ancestral property coming from Madari. After the death of Madari it devolved on Chote Lal. Chote Lal had four sons; Gurgur, Bachchan, Hira and Shyamlal. After the suit was filed by the wife of Hira Lal namely Bela against Babu son of Bachchan i.e. one of the brothers of Hira Lal. The written statement was filed denying the averments and claiming that the land in dispute is coming from Chote Lal i.e. his grand father and he is also residing in the same. On behalf of the appellants Hari Shankar son of Hira Lal appeared as PW-1, who admitted some of the contents of the written statement, which were not disclosed by him in his plaint. He also admitted that Hira Lal had four brothers. His brother Bachchan has died before his birth and his another brother Gurgur is alive and living in Culcutta. The name of the father of the defendant-respondent is Bachchan. The house in dispute was devolved on Hira Lal from his father Chote Lal and the house in question is of Chote Lal. He also admitted that in the house of Chote Lal, Sundar Devi wife of Shyam Lal also resides and two rooms are in her possession, whereas he has not disclosed his relation with the defendant-respondent in his plaint, therefore the suit suffers from material concealment. He had also admitted that the property in dispute is coming from his grand father Chote Lal, who had four sons as disclosed above, therefore as to how the property in dispute devolved only on the father of PW-1 i.e. Hira Lal, could not be pleaded and proved.
6. The appellate court also found that the property in dispute is coming from Madari, therefore it is ancestral property and it could not have been devolved solely on Hira Lal and in case the appellants had any grievance, they could have filed a suit for partition.
7. Learned counsel for the appellants, at this stage, submits that the appellants had filed the suit for permanent injunction only in regard to the portion on which he was residing and not the portion on which the defendant Babu Lal and others are residing but admittedly no partition has taken place, therefore the suit for permanent injunction itself was not maintainable that too without impleading all the persons who are entitled and residing in the property in dispute, because in absence of partition each and every share holder has right on each and every part of property in dispute.
8. In view of above, this Court does not find any illegality or error in the findings recorded by trial court as well as appellate court, which may call for any interference by this Court and no substantial question of law arises in this case.
9. The second appeal is misconceived and lacks merit. It is, accordingly, dismissed.
...................................................................(Rajnish Kumar, J.)
Order Date :- 16.5.2024
Haseen U.
