MA/433/2003 of SMT.KAMLA BAI AND OTHERS Vs INDER CHAND PAREKH AND OTHERS on 19 December 2003

IN THE HIGH COUR'r_0^_JUDICATURE CHHATTISGARH AT BILASPURM.A.NO.^3-3'/2003

iJffl@§ii

.)Smt. Kamla Ba-i.W/o Late Deepchand Parekh,Aged about74 years APPELLANTSDEPENDANTS^

Defendant NO.I!

2). Pra&eep Kumar Parekh: i|S/o Late Deepchand parskh, Late Deepchand parskh, Deepchand parskh, parskh, •'Aged about 50.years !

: i|

S/o Late Deepchand parskh, Late Deepchand parskh, Deepchand parskh, parskh, •'

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Defendant No.2':||Both resident of House No« ii45/303,Sadar Bazar Ward,i •||:Raipur.Distrj.et Rai pu r (CG ^|.!Smt.Saroj Luniya;iW/o Sureshchand Luniya>:1|]Aged about 45 years,!!|'R/o 2/519 Choubey Colony, iri| 2/519 Choubey Colony, iri| Choubey Colony, iri| Colony, iri| iri|Infront of Rajkumar Co.lle^^,; of Rajkumar Co.lle^^,; Rajkumar Co.lle^^,; Co.lle^^,;Raipur, District Raipur- District Raipur- Raipur- years,R/o 2/519 Choubey Colony, iri| 2/519 Choubey Colony, iri| Choubey Colony, iri| Colony, iri| iri|Infront of Rajkumar Co.lle^^,; of Rajkumar Co.lle^^,; Rajkumar Co.lle^^,; Co.lle^^,;^wRaipur, District Raipur- District Raipur- Raipur-^yy^e'..^~'wDefendant NOJ.A:VERSUSRESisbHDENTSinderchand Parekh,I9£.ezAiNriF.psS/o Late Dharamchand ParelAged about 62 yeare,R/o 33-PanchsheeliNagar,^ '|^aipur, District Raipur:(C<Plafatiff\; ..! ;|Ramesh Chand PareKll ';S/oLate Deepchand PareHilAged about 48 years,R/o Navjeevan Society!^ J, IPaehpedi.Naka, Raipur;\]li|!District Raipur(CQ) .1:|'Smt.Kamla gal~"~~"De^endant No.3 ""•-' -|;| j|;I-t/o Late Sheetalc)-iain:d PareNlAged about 68 yeacsi,;i||B/o Panchsheel Naga|r,^;! l(Civil Lines,Raipal^ !(CG)^I |Defendanjt No.! !Z''"Sharadchand•f ^T^^ii•s'-f' --\S/o Late Sheetalchand Parekh Parei\\^\.~'l^^0}6!!^^\^?-^'W i03~l'v~^^ j^/f/^'..^y''1AgedR/oCJ-vil 11, about Lines, Panchsheel! 50Defen&ah-b: yearis,Raipujci Baga.cf, (CG)1. N&.-6^:^E@iy>sVimalchand Pareteh!! ,i.;:,.'::^^^t^"'^-^.^"'--•'--^S/o Late SheetalchaAa: 'pa.i:®;'Aged about 48 yearSI,' ,.^;;;,.|K/o ll,Panchsheell sAgaiiC»jy.yiRaipur,District^Ea|lj>uJF||!^<.Defsnaa|i||j No|J@.|Neelesh Kumar Pare]S/o Inderchand Pax^SAged about33 year^ijR/o3 3 Panch shee^^SSEt l])''ll""f9^•1-2-Civil Lines,RaipurDistrict Raipur(CG)Defencant No.8Siddharth parekhS/o Inderchand Parekh,Aged about 24 years,•t'.illR/o33 Panchsheel rlagar,Civil Lines,RaipurDistrict Raipur(CG),.MISCELLANEOUS APPEAL UNDER ORDER. 43 RULE-1(r)OF THECOBE OF CIVIL PROCEDURE

7S

mOH COXHIT OF CHHAmSGASHAT^BS.ASPUR

BUSC. APPEAL N0.433/03

Sint. Keunla Bai fis ors.

Vs.Inderchand Parekh & ors.

JUDQMEWT

Postfor\°\/12/2003

Sd/-/FakhruddmJudgeM/ '»/^Gfl-y/^^

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m6H COITRT OF CKHATTISGARH AT BILASPURMISC. APPEAL N0.433/03

Suil. KaiulaBai & ors.

Vs.

Inderchand Pareldi & ors.

Shri P. Diwakar, coimsel for the appellants.

Shri B.P. Sharma, counsel for respondent No. 1.

Shri Vinod Lalchandanl, counsel for respondent No.2.Shri Saadeep Dubey, counsel for respondents No.4, 6 and 7.JUDOMBNT

Per Fakhruddia. J:

Defendant Nos.1, 2 and 4/Appellants have preferredthis appeal under Order 43 Riile l(r) of the Code of CivilProcediire against the Order dated 09.05.2003 passed by the5th Additional District Judge, Raipur in CivU Suit No. 136-A of2002.

2. BrieDy stated facts of (tie case are that (he AppeUantNo. 1 is a Sister-in-law of Plaintiff Respondent No. 1, AppellantNo.2 and Appellant No.3 are Nephew and Niece of PlaintiffRespondent No. 1 respectively. PlaintiffRespondent No. 1 is anold man. Hc is also said to bc handlcapped. Thc RcspondentNo. 1 Platntlff ffled sult for partltlon and permanent Injuncttonagainst the present appellants and present Respondents No.2to 7.It is stated that oiie Dharam Chand Parekh was the

ancestor of the property in question.He had three sonenamcly,Dccpchaad,ShcctalchandandIndcrchand.Deepcliaiid aiid Slicetalcliaiid died.The appellaiils arc Uielegal representatives of late Deepchand. Inderchand fUed thesuitinquestion.Alongwith thesuit,anapplication(Annexure[P/3)][ under][ Order][ 39][ Rule][ 1][ and][ 2][ C.P.C.][ was][ also]filed. Suit inap was also ffled along with the plaint.3.Thc contention of thc plaintiff is that fhcrc was acommon passage marked by red Inlc In the plalnt map, whlchwas utillzed by all ttie co-owners. TJtiere existed a temporarypartltion but defendants No.l,2 and 4, who are theappellants, have recaoved the sald teinporary partltion aadhavc put shuttcrs, thcrcby pcrmancntly closing thc coiamonThe dcfendants however denied this.It waspassagc.contended by the defendants that partition by metes andbounds has taken place between the parties and the plaintffl'has no right or title over tfus property.By filing applicatk>nunder Order 39 Rule 1 and 2 C.P.C., right to use passage toand fro was claimed.The defendants filed rcply to fheappUcatlon under Order 39 Rule1 and2C.P.C.Thedefendants No.lto 4 opposed ttie prayer for grant oftemporary injiinction whereas defendants No.5 to 9 siipportedthe plaintififs case. Pruna facie, fhe leamed trial Court for the purposes of grant of teinporary injunction considered themattcr and passcd thc unpugncd ordcr whcrcby it haaaUowed Uie appUcaUoii JUed by Llie plauitUT uiidcr Oi'der 39Rule 1 and 2 C.P.C. and dtrected Uiat the defendants No. land 2 shall not interfere tn the usage over the common shown ui red ink and the door which exists therepassageshall not be closed.

4. Counsel for thc appcUants has chaUcngcd fhc said ordcron the ground ttaat the plalntiff 1s not resldlng in fhe sulthouse and therefore the tnjunction ought not to have granted,as it wUl create nuisance. It is subniitted that there exists nocoinm.on passage.

5. It is pcrtincnt to m.cntion hcrc that Dccpchand dicd on15.05.1999. The served a notice upon the defendants plaintiffon 26.03.2002 and the sult has been ffled on 15.05.2002.The Court below has considered all the ingredients necessaiyfor grant of iajunction or otherwlse.It has specificaUyconsidered thepleadingsof theparties and fhe niapappcnded with the plaint. The Court has also considered theaffidavlts flled by the respectlve partles.The appellantsherein did not flle any map controverting plaint map.TheCoiirt has taksn this fector as well for consideration.Tt isalso stated that plaintiff is in possession of the first floor of ./^^^^-', the suit house and if passage is closed, then plaintiff wiUsuffcr grcat and irrcparablc loss.

6. Leaiued Coiuiscl for Uie defeiidaiils appcllaiits subuiitsthat document regarding partiUon has been flled.It issubmitted that the defendants appellants are living with theirfauiiUes ui the suit house. On fhe other hand, leamed counselfor (he plaintiff respondent No. 1 submitted that fhere is nodociunent to show that a by nactes and boiinds has partitionbeen effected.

7. So far as the law is concemed, the whether the questtonpartition by inetes and bounds has been effected or not caabe adjudicated only when a finding is recorded after partiesgct opiwrtunity to lcad cvidcncc in this rcgard.

8. Leeu-ned counsel for the plakitiff/respondent No. 1 andrespondents No.6 and 7, who are sons of platatlff, subniltthat possession ot' a properly belongmg to several co-sharersby one co-sharer shaU be deeined that he possesses theproperty on behalf of other co-sharers and inutation in therevcnue record in the naine of one co-sharer would notamount lo ouster unless fhere 1s a clear declaration (hat tltleof fhe other co-sharers was denied.Reliance has beenplaced on the case of Darshan Sineh and others vs. Giiiiar Sineh (Dead) bv LRs. 8s, Ors. reoorted ia 200201 Suoreme Todav 36. Thc Apcx Coiut has hcld as undcr:

'TII our vicw, tlic con-ect legal is tlial posltioupossession of a property belonjanR to several co-sharers by one co-sharer shall be deemed that hepossesses the property on behalf of the other co-sharers urdess there has been a clear ouster bydenving fhc tifle of other co-sharers and inutationui the revenue record in the name of one co-sharer would not amount to ouster unless there isa clear declaration fhat title of the other co-sharers was demed.Atter the death of HeeraSfaigh, one collateral Smt. Har Kaur got her namemutatedandtookpossession,whichwasquesttoned bv Rulia Siiuih. Both fhc parttes werelitifiatmR and ultimately the Court decided infavour of Kulia SnMti, wlio got possession of theland and his neune was mutated in the revenuerecords. After the death ofRiilia Sineh, hls grandsous - Uie piiesieiil appcUmils, also gpl tlieu-namesmutatedwhichwaschaflenRedimsuccessftiUy by the plaintiff. Thus, it is provedthat prcscnt appcllants got thcir naincs mutatcdalter denying t.he title of co-laterals of JagjltSingh, including fhe present appellant. On thesefacts,wehopethatasnamesof present were mutated in the revenue recordappellantsafter rejectin^ (he claims of plaiatiffand other co-laterals, thCTe was a clear ouster of other co-sharers ofJ^iit Sir^h- Prcun thc iudgmcnt offhetrial court, we find that Rulia Sia$?h DiorteaRed apart of the land and sold some part treatinghimself as fhe owner. On fhe facts proved in fhecase in hand, wc are of the view that theappeUants have proved that their possession ofthe land ui questton is in continuity for more thanthe statutory period, in publidty and adverse toJagjit Singh and his other collaterals and theyhave perfected (heir tifle over the land tiy adverseposscssion.Wc, thcrcforc, find mcrit in thc appeal and accordingly it. is allowed bypresentsetting asidc the Judgment impugned and theiudginentofthetrialcourtisrestored.Consequently,suitfiledbytheplamti£f is dismissed. We direct the parties to bear their owncosts."

dismissed. We direct the parties to bear their owncosts."

9. LeaniedCouiiselfortticdefeudaulsappeUmilssubinltted that (bis Court vlde Order dated 05.06.2003 whltegranting an interim stay in their favour directed that therespondent No.l in the garb of injunction order shall notenter that of the residential which is in part premisesexclusive of the appeUants. Hc furttwr subniitted possessronthat the Interest of the defendants appellants be protected.He also subimtted that the respondents No.6 and 7 are notthe plaintiiff ia the case and they should not be aUowed to usethe coinmon passaee. On the other hand, leamed counsel forthc plaiatiff rcspondcnt No. 1 and rcspondcnts No.6 and 7,who are sons of plaurtiff, submit fhat as ffaey arc kipossesslon of ttie flrst floor of ttie sult house, so they shall beaUowed to use the coinmon between 9.00 A.M. to passage9.00 P.M., so that it does not cause any inconvenience to thefamily members and chadren of the defendants appellants.

10. It is bome out fi?om the reconl that the defendants withtheh- family are living in the suit house. The plsuntiff ie r»trcsiduig in thc suit housc. Thc plaintiff and his sona arc notuskig it for residencc purposcs for thc tiine bcir^. Under thecircumstances, ends ofjustice would be served tf Che plaintiff respondent No. 1 and respondents No.6 and 7, who are sonsof thc plaiatiff, shaU bc allowcd to usc thc cominon passagcbetweeii 9.00 A.M. lo 9.00 P.M. ssu Uial it does uul cause aiiymconvenience to the famlly members and cbildren of thedefendants appellants.

11. It 1s a settled pilndple of laiv that In a partltion sultboth the parties attam the status akm to that of plaintifl'.Therefore, fhere should be r>o objectton ifor tfae use ofcoimmon by respondents No.6 and 7. passage

12. Having considered the facts and cu-ciimstances of ttecase and inaterial on record, in fhe opinion of fhls Court,cnds of justicc woiild bc scrvcd if thc intcrcsts of both thcparties arc protected. It is fhercfore directcd that fhc plaintiffrespondent No.l and hls sons/respondents No.6 and 7 beallowed to use the common between 9.00 A.M. to passage9.00 P.M. so fhat it does not cause any inconvenience to thefQnuly inem.bers and children of fhe defendants appeUants,till fhe suit is decided firtaUy.

13. At this 8tage, couneel for the partiee pray for a directionthat thc sult itsclf bc dccidcd as carly as possiblc.Thcprayer appears to be just aad proper,Having thusconsidered, it is dlrecied that the trial court shaU decide the Hianide/- suit itself on its own merite in aocordance with lawr withoutbcu^ influcnccd by any of thc obscrvations niadc, whilcdediduig tlie applicatlou Hlcd uiider Oixlei- 39 Rule l aiid 2C.P.C., as early as possible preferably wlttiin9 months fl'omthe date of production of the certified copy of this Order. AU—A.the parties to cooperate.

Sd/-FakhruddinJudgeiTxn-ru ci\(^-12-2003