IN THE HIGH COUR'r_0^_JUDICATURE CHHATTISGARH AT BILASPUR M.A.NO.^3-3' /2003 iJffl@§ii APPELLANTS DEPENDANTS ^w ^yy ^e'..^~ 'w .) Smt. Kamla Ba-i. ^ W/o Late Deepchand Parekh, Aged about 74 years Defendant NO.I! 2). Pra&eep Kumar Parekh : i| S/o Late Deepchand parskh, •' Aged about 50.years ! [\ Defendant No.2' :| | Both resident of House No« ii 45/303, Sadar Bazar Ward, i •||: Raipur.Distrj.et Rai pu r (CG ^|. Smt. Saroj Luniya ! ; i W/o Sureshchand Luniya> : 1|] Aged about 45 years, !!|' R/o 2/519 Choubey Colony, iri| Infront of Rajkumar Co.lle^^,; Raipur, District Raipur- Defendant NOJ.A: VERSUS RESisbHDENTS ezAiNriF.ps 9£. inderchand Parekh,I S/o Late Dharamchand Parel Aged about 62 yeare, R/o 33-PanchsheeliNagar,^ '| ^aipur, District Raipur: (C< Plafatiff \; ..! ;| Ramesh Chand PareKll ' ; S/o Late Deepchand PareHil Aged about 48 years, R/o Navjeevan Society ! ^ J, I Paehpedi.Naka, Raipur ; \ ]li| District Raipur (CQ) . ! 1:| De^endant No.3 -|;| 'Smt. Kamla gal~"~~" ""•-' j|; I-t/o Late Sheetalc)-iain:d PareNl Aged about 68 yeacsi, ; i|| B/o Panchsheel Naga|r, ^ ;! l( Civil Lines,Raipal^ !(CG) ^ I | Defendanjt No. ! !Z •s'-f' --\ •f ^T^^ii 'l^^0}6!! \^?-^' j^/f .^ ' 1 W i03~ \\^\.~ l'v~ /^'. ^^ ^^y' ^^^t ^"'^-^.^"'--•'--^ @iy>s ''"Sharadchand Parekh S/o Late Sheetalchand Parei Aged about 50 yearis, ^ : R/o 11, Panchsheel! Baga.cf, ^ CJ-vil Lines, Raipujci (CG)1. Defen&ah-b: N&.-6 E Vimalchand Pareteh ! ! ,i.;:,.':: S/o Late SheetalchaAa: 'pa.i:®;' Aged about 48 yearSI,' ,.^;;;,.| K/o ll,Panchsheell sAgaiiC»jy.yi Raipur, District^Ea|lj>uJF||!^<. Defsnaa|i||j No|J@.| Neelesh Kumar Pare] S/o Inderchand Pax^S Aged about 33 year^ij R/o 3 3 Panch shee^^SSEt l])''ll""f 7S • 1 •t'.ill 9^ -2- Civil Lines, Raipur District Raipur (CG) Defencant No.8 Siddharth parekh S/o Inderchand Parekh, Aged about 24 years, R/o 33 Panchsheel rlagar, Civil Lines, Raipur District Raipur (CG),. MISCELLANEOUS APPEAL UNDER ORDER. 43 RULE-1 (r)OF THE COBE OF CIVIL PROCEDURE I'^SI mOH COXHIT OF CHHAmSGASHAT^BS.ASPUR BUSC. APPEAL N0.433/03 Sint. Keunla Bai fis ors. Vs. f< Inderchand Parekh & ors. JUDQMEWT Postfor\°\/12/2003 Sd/- / Fakhruddm Judge M/ '»/^Gfl-y/^^ ^ / vy m6H COITRT OF CKHATTISGARH AT BILASPUR MISC. 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 preferred this appeal under Order 43 Riile l(r) of the Code of Civil Procediire against the Order dated 09.05.2003 passed by the 5th Additional District Judge, Raipur in CivU Suit No. 136-A of 2002. 2. BrieDy stated facts of (tie case are that (he AppeUant No. 1 is a Sister-in-law of Plaintiff Respondent No. 1, Appellant No.2 and Appellant No.3 are Nephew and Niece of Plaintiff Respondent No. 1 respectively. PlaintiffRespondent No. 1 is an old man. Hc is also said to bc handlcapped. Thc Rcspondent No. 1 Platntlff ffled sult for partltlon and permanent Injunctton against the present appellants and present Respondents No.2 to 7. It is stated that oiie Dharam Chand Parekh was the // '^'\ ancestor of the property in question. He had three sone namcly, Dccpchaad, Shcctalchand and Indcrchand. Deepcliaiid aiid Slicetalcliaiid died. The appellaiils arc Uie legal representatives of late Deepchand. Inderchand fUed the suit in question. Alongwith the suit, an application (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 a common passage marked by red Inlc In the plalnt map, whlch was utillzed by all ttie co-owners. TJtiere existed a temporary partltion but defendants No.l, 2 and 4, who are the appellants, have recaoved the sald teinporary partltion aad havc put shuttcrs, thcrcby pcrmancntly closing thc coiamon passagc. The dcfendants however denied this. It was contended by the defendants that partition by metes and bounds has taken place between the parties and the plaintffl' has no right or title over tfus property. By filing applicatk>n under Order 39 Rule 1 and 2 C.P.C., right to use passage to and fro was claimed. The defendants filed rcply to fhe appUcatlon under Order 39 Rule 1 and 2 C.P.C. The defendants No.l to 4 opposed ttie prayer for grant of temporary injiinction whereas defendants No.5 to 9 siipported the plaintififs case. Pruna facie, fhe leamed trial Court for the /^^/ \^y purposes of grant of teinporary injunction considered the mattcr and passcd thc unpugncd ordcr whcrcby it haa aUowed Uie appUcaUoii JUed by Llie plauitUT uiidcr Oi'der 39 Rule 1 and 2 C.P.C. and dtrected Uiat the defendants No. l and 2 shall not interfere tn the usage over the common passage shown ui red ink and the door which exists there shall not be closed. 4. Counsel for thc appcUants has chaUcngcd fhc said ordcr on the ground ttaat the plalntiff 1s not resldlng in fhe sult house and therefore the tnjunction ought not to have granted, as it wUl create nuisance. It is subniitted that there exists no coinm.on passage. 5. It is pcrtincnt to m.cntion hcrc that Dccpchand dicd on 15.05.1999. The plaintiff served a notice upon the defendants on 26.03.2002 and the sult has been ffled on 15.05.2002. The Court below has considered all the ingredients necessaiy for grant of iajunction or otherwlse. It has specificaUy considered the pleadings of the parties and fhe niap appcnded with the plaint. The Court has also considered the affidavlts flled by the respectlve partles. The appellants herein did not flle any map controverting plaint map. The Coiirt has taksn this fector as well for consideration. Tt is also stated that plaintiff is in possession of the first floor of 4 ./^^ ^^-', the suit house and if passage is closed, then plaintiff wiU suffcr grcat and irrcparablc loss. 6. Leaiued Coiuiscl for Uie defeiidaiils appcllaiits subuiits that document regarding partiUon has been flled. It is submitted that the defendants appellants are living with their fauiiUes ui the suit house. On fhe other hand, leamed counsel for (he plaintiff respondent No. 1 submitted that fhere is no dociunent to show that a partition by nactes and boiinds has been effected. 7. So far as the law is concemed, the questton whether the partition by inetes and bounds has been effected or not caa be adjudicated only when a finding is recorded after parties gct opiwrtunity to lcad cvidcncc in this rcgard. 8. Leeu-ned counsel for the plakitiff/respondent No. 1 and respondents No.6 and 7, who are sons of platatlff, subnilt that possession ot' a properly belongmg to several co-sharers by one co-sharer shaU be deeined that he possesses the property on behalf of other co-sharers and inutation in the revcnue record in the naine of one co-sharer would not amount lo ouster unless fhere 1s a clear declaration (hat tltle of fhe other co-sharers was denied. Reliance has been placed 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 posltiou is tlial possession of a property belonjanR to several co- sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co- sharers urdess there has been a clear ouster by denving fhc tifle of other co-sharers and inutation ui the revenue record in the name of one co- sharer would not amount to ouster unless there is a clear declaration fhat title of the other co- sharers was demed. Atter the death of Heera Sfaigh, one collateral Smt. Har Kaur got her name mutated and took possession, which was questtoned bv Rulia Siiuih. Both fhc parttes were litifiatmR and ultimately the Court decided in favour of Kulia SnMti, wlio got possession of the land and his neune was mutated in the revenue records. After the death ofRiilia Sineh, hls grand sous - Uie piiesieiil appcUmils, also gpl tlieu- names mutated which was chaflenRed imsuccessftiUy by the plaintiff. Thus, it is proved that prcscnt appcllants got thcir naincs mutatcd alter denying t.he title of co-laterals of Jagjlt Singh, including fhe present appellant. On these facts, we hope that as names of present appellants were mutated in the revenue record after rejectin^ (he claims of plaiatiffand other co- laterals, thCTe was a clear ouster of other co- sharers ofJ^iit Sir^h- Prcun thc iudgmcnt offhe trial court, we find that Rulia Sia$?h DiorteaRed a part of the land and sold some part treating himself as fhe owner. On fhe facts proved in fhe case in hand, wc are of the view that the appeUants have proved that their possession of the land ui questton is in continuity for more than the statutory period, in publidty and adverse to Jagjit Singh and his other collaterals and they have perfected (heir tifle over the land tiy adverse posscssion. Wc, thcrcforc, find mcrit in thc present appeal and accordingly it. is allowed by setting asidc the Judgment impugned and the iudginent of the trial court is restored. Consequently, suit filed by the plamti£f is dismissed. We direct the parties to bear their own costs." 9. Leanied Couiisel for ttic defeudauls appeUmils subinltted that (bis Court vlde Order dated 05.06.2003 whlte granting an interim stay in their favour directed that the respondent No.l in the garb of injunction order shall not enter that part of the residential premises which is in exclusive possessron of the appeUants. Hc furttwr subniitted that the Interest of the defendants appellants be protected. He also subimtted that the respondents No.6 and 7 are not the plaintiiff ia the case and they should not be aUowed to use the coinmon passaee. On the other hand, leamed counsel for thc plaiatiff rcspondcnt No. 1 and rcspondcnts No.6 and 7, who are sons of plaurtiff, submit fhat as ffaey arc ki possesslon of ttie flrst floor of ttie sult house, so they shall be aUowed to use the coinmon passage between 9.00 A.M. to 9.00 P.M., so that it does not cause any inconvenience to the family members and chadren of the defendants appellants. 10. It is bome out fi?om the reconl that the defendants with theh- family are living in the suit house. The plsuntiff ie r»t rcsiduig in thc suit housc. Thc plaintiff and his sona arc not uskig it for residencc purposcs for thc tiine bcir^. Under the circumstances, ends ofjustice would be served tf Che plaintiff // .1'^ / respondent No. 1 and respondents No.6 and 7, who are sons of thc plaiatiff, shaU bc allowcd to usc thc cominon passagc betweeii 9.00 A.M. lo 9.00 P.M. ssu Uial it does uul cause aiiy mconvenience to the famlly members and cbildren of the defendants appellants. 11. It 1s a settled pilndple of laiv that In a partltion sult both the parties attam the status akm to that of plaintifl'. Therefore, fhere should be r>o objectton ifor tfae use of coimmon passage by respondents No.6 and 7. 12. Having considered the facts and cu-ciimstances of tte case and inaterial on record, in fhe opinion of fhls Court, cnds of justicc woiild bc scrvcd if thc intcrcsts of both thc parties arc protected. It is fhercfore directcd that fhc plaintiff respondent No.l and hls sons/respondents No.6 and 7 be allowed to use the common passage between 9.00 A.M. to 9.00 P.M. so fhat it does not cause any inconvenience to the fQnuly 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 direction that thc sult itsclf bc dccidcd as carly as possiblc. Thc prayer appears to be just aad proper, Having thus considered, it is dlrecied that the trial court shaU decide the 8 suit itself on its own merite in aocordance with lawr without bcu^ influcnccd by any of thc obscrvations niadc, whilc dediduig tlie applicatlou Hlcd uiider Oixlei- 39 Rule l aiid 2 C.P.C., as early as possible preferably wlttiin9 months fl'om the date of production of the certified copy of this Order. AU the parties to cooperate. —A. Sd/- Fakhruddin Judge iTxn-ru ci \(^-12-2003 Hianide/-