IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.537 of 2007 Shri Dhirendra Kumar, Advocate son of Rai Bahadur Late Babulal Prasad resident of 181-M.I.G. House, Hanuman Nagar, P.S. Patrakar Nagar, Town & District Patna. The Power of Attorney Holder of Manish Kumar Sinha son of Late Om Prakash Gupta……(Defendant)…………….Petitioner. Versus 1. Shri Ashish Prakash son of Asha Rani 2. Smt. Asha Rani daughter of Brahm Swaroop Gupta 3. Akansha daughter of Asha Rani Nos.1-3 residents of Mohalla Anisabad P.O. & P.S. Anisabad, Town & District Patna. …….(Plaintiffs)……….Opposite party 1st set. 4. Sagar Sahkari Grih Nirman Samiti Ltd. through its Secretary Dinesh Kumar Singhania Office at Abhishekh Plaza, Exhibition Road, P.S. Gandhi Maidan, Town & District Patna. 5. Shri Dinesh Kumar Sighania son of Rati Ram Singhania, resident of “Shanti Van”, Kankarbagh Town & District Patna. …….Subsequently added Opposite party 2nd set. For the petitioner : M/s Dhirendra Kumar & Mahesh Prasad No.4, Advocates. For Opp.party 1st set: Dr. Uma Shankar Prasad, Senior Advocate with M/s Ram Kr.Singh & Kamla Kant Tiwary, Advocates. For Opp.party 2nd set: None. ----------- 13/ 27.01.2010 This case was finally heard at this stage at the instance of learned counsel for the defendant-petitioner and learned counsel for the plaintiffs-opposite party 1st set, who were original parties to this civil revision. Opposite party 2nd set along with one Sudarshan Kumar Bansal were much subsequently added in the civil revision on 03.11.2009 at the instance of plaintiffs-opposite party 1st set, but despite notice opposite party 2nd set did not appear as is clear from order of this court dated 06.01.2010 whereas service report regarding 2 Sudarshan Kumar Bansal showed that no person of that name resided at the address given by opposite party 1st set, thus his name was deleted vide order of this court dated 07.01.2010. However, in the facts and circumstances of this civil revision, the said persons are not necessary for adjudication of the points involved and raised therein which are only between defendant-petitioner and plaintiffs-opposite party 1st set. 2. Opposite party 1st set had earlier raised an objection that the defendant in the suit was Manish Kumar Sinha, but this civil revision has been filed by Shri Dhirendra Kumar in his own name claiming to be the power of attorney holder of Manish Kumar Sinha, which is not legal. When this objection was considered by this court on 03.11.2009, learned counsel for the petitioner stated that he was the holder of power of attorney of the defendant Manish Kumar Sinha dated 05.01.2006 and on that basis he had filed application in the trial court on which the impugned order was passed. He also claimed that this civil revision was filed and vakalatnama was executed by him in the capacity of attorney of the said defendant Manish Kumar Sinha and hence this civil revision be treated as filed by Manish Kumar Sinha (defendant). The said prayer of the petitioner was allowed by this court vide order dated 03.11.2009. 3. This civil revision has been filed by the defendant- petitioner against that part of order dated 21.11.2006 by which the learned Subordinate Judge-II, Patna rejected his application dated 07.09.1998 for handing over the keys of the locks of Flats no.101, 102 3 and 103 of Surya Apartment, Frazer Road, Patna to him, as while in possession of the defendant, they were opened by the Advocate Commissioner appointed by the court to make inventory of articles in Title Suit No.413 of 1996, but the keys were not returned to the defendant and were deposited in the court. 4. The aforesaid suit was filed by the plaintiffs-opposite party 1st set for partition of the suit properties detailed in Schedule-II and III of the plaint claiming that they were second wife and children of the original owner Late Om Prakash Gupta, whereas defendant no.1-petitioner was his son from his first wife and hence plaintiffs being co-sharers were entitled to 11/16 share in the suit properties. Other ancillary reliefs were also claimed by the plaintiffs. 5. The defendant-petitioner appeared in the suit and filed his written statement claiming that he was the only son of Late Om Prakash Gupta from his only wife Smt. Dharamsheela Gupta and that the said Om Prakash Gupta neither had any second wife nor had any other children and hence plaintiffs were not his heirs and were not entitled to partition of any share in the suit properties left by him. It was also claimed that the plaintiffs conspired to anyhow usurp his properties and for that purpose falsely implicated the defendant- petitioner in a case of alleged murder of Late Om Prakash Gupta and filed the suit for partition. 6. During the pendency of the suit the trial court appointed an Advocate Commissioner at the instance of the plaintiffs for preparing inventory of the articles lying in Flats no.101, 102 and 103 4 of Surya Apartment, Frazer Road, Patna, which were in possession of the defendant-petitioner. However, the Advocate Commissioner broke open the locks of the said three flats, prepared inventory of articles found therein, again locked the said flats and deposited their keys in the learned court below which kept them in its custody. 7. In the said circumstances, the defendant-petitioner filed an application dated 07.09.1998 in the learned court below praying that the keys of the above mentioned flats be handed over to him as the inventory has already been prepared. It transpires that the said application remained pending as it was not pressed on behalf of the defendant-petitioner who was contesting through his earlier attorney, but subsequently when he appointed another attorney vide power of attorney dated 05.01.2006 the said application was pressed on 05.05.2006 along with another application. 8. By the impugned order dated 21.11.2006 the learned court below rejected the said application on the only ground that since plaintiffs were claiming to be co-sharers of the suit properties with defendant no.1 whereas defendant no.1 was claiming to be the sole heir of the original owner, it is still to be decided as to whether plaintiffs were strangers to the family of defendant and whether there was unity of title and possession between them, hence before deciding the real controversy the keys of the flats should not be handed over to the defendant-petitioner. Against the said order this civil revision has been filed. 9. From the arguments of the parties and the materials on 5 record, it is quite apparent that admitted facts are that Late Om Prakash Gupta was the original owner of the suit properties who died on 06.11.1995 and that he had a wife Dharamsheela Gupta from whom he had a son Manish Kumar Sinha (defendant-petitioner). However, the point of contest is that the defendant-petitioner claimed that the plaintiffs were strangers to the family of Late Om Prakash Gupta, whereas the plaintiffs-opposite parties claimed that plaintiff no.2 was the second wife of Late Om Prakash Gupta and plaintiffs no.1 and 3 were his children from her. 10. From the impugned order, it is quite apparent that the learned court below did not give any finding with respect to prima facie case of the plaintiffs, who admitted in their pleading that Late Om Prakash Gupta had a first wife (mother of defendant no.1), but did not make any statement that she died, nor gave any date of her death. In these circumstances the genuineness and legality of plaintiffs’ claim that plaintiff no.2 was his second wife, becomes doubtful and merely because plaintiffs had raised some claim, the defendant cannot be legally deprived of the use of the property which he was enjoying earlier on the basis of purchase in his exclusive name by registered sale deed dated 24.06.1998 and mutation etc. 11. It is not in dispute that before the appointment of Advocate Commissioner, the said flats were in possession and under locks of defendant no.1-petitioner and only after appointment the Advocate Commissioner broke open the locks, which according to the plaintiffs-opposite party 1st set was done on the orders of the trial 6 court, but they failed to produce any such order. Even if it was done on the orders of the court, the purpose was merely to prepare an inventory of the articles kept therein and not for dispossessing defendant no.1, who was admittedly the heir of Late Om Prakash Gupta and hence after the purpose was fulfilled the keys of the said flats were to be handed over to the person who was earlier in possession of those flats, namely defendant no.1. 12. The learned court below failed to appreciate that neither there was any order for dispossessing defendant no.1 from the said flats, nor there can legally be any such intent of that court as the sole purpose was preparing inventory. Hence as soon as the said purpose was fulfilled it was the duty of the court to hand over possession of the flats to the person who was in possession earlier and there was no occasion for the court to keep the keys of the flats for years together, waiting for the disposal of the suit. This act of the court is arbitrary and perverse apart from being illegal. 13. Learned counsel for the plaintiffs-opposite party 1st set was unable to defend the impugned order on the aforesaid glaring and relevant point and tried to divert the attention from the above mentioned main point to trivial and non-existent points that the second power of attorney of defendant no.1 was illegal and forged and that this civil revision is not maintainable under section 115 of the Code of Civil Procedure. Both the said points raised on behalf of opposite party 1st set are frivolous and misconceived as prima facie the power of attorney in question does not appear to be forged or fraudulent as 7 defendant no.1 had himself supported it as is apparent from paragraph- 1 of the impugned order. Furthermore, in view of the settled principles of law this civil revision is maintainable specially when it is quite apparent that the learned court below has committed material irregularity and serious illegality by failing to exercise its specific jurisdiction in this regard. 14. In the aforesaid facts and circumstances this civil revision is allowed, that part of the impugned order of the learned Subordinate Judge-II, Patna dated 21.11.2006 passed in Title Suit No.413 of 1996 is hereby set aside by which application of defendant no.1 dated 07.09.1998 was rejected and the learned court below is directed to immediately hand over the keys of the above mentioned flats to defendant no.1 or any person authorised by him for the purpose within two weeks from the date of receipt/production of a copy of this order and dispose of the aforesaid title suit expeditiously thereafter. harish/ ( S. N. Hussain, J. )