V.K.BIST, J. -
(1.) HEARD learned counsel for the parties.
(2.) PRESENT petition has been filed by the petitioner for the following reliefs:
"I. Issue a writ, order or direction in the nature of Certiorari, calling for the records and setting aside the judgment and order dated 31.03.2012 and order dated 11.11.2011 (Annexure nos.7 and 5 to this writ petition respectively), passed by Additional District Judge, Vikasnagar Dehradun and Civil Judge (Junior Division), Vikasnagar, Dehradun and allow the application for temporary injunction of petitioner. II. Pass any other and further orders, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. III. Award the cost of writ petition to the petitioner."
Brief facts of the case, as narrated in the writ petition, are that in the year 2010, petitioner filed Original Suit No.39 of 2010 "Teena Vs. Jhandu and others" in the Court of Civil Judge (J.D.), Vikasnagar, Dehradun against the respondent no.1 for permanent injunction with regard to the property in question. Respondents filed counter claim. The petitioner filed an application for temporary injunction, in which the petitioner prayed to restrain the respondent no.1 from raising construction over the property in question, which is in possession of the petitioner. On 17.08.2010, respondent no.1 filed his objection against the application of the petitioner for temporary injunction. The respondent no.1 filed his written statement in the Original Suit before the trial Court. The respondent no.1 also filed a counter claim against the petitioner, restraining him from interfering in possession of respondent no.1 over the property in question. On 21.06.2010, the trial Court passed an order, directing the parties to maintain status quo over the property in question, till the disposal of application for temporary injunction of petitioner on merits. Thereafter, on 11.11.2011, the trial Court rejected the application of the petitioner for temporary injunction and allowed the application of the respondent no.1, giving him the permission of construction, with the condition that in case the Original Suit is decided in favour of the petitioner, then in that event, the respondent no.1 will have to demolish the entire construction at his own cost. Aggrieved by the order-dated 11.11.2011, petitioner filed Misc. Civil Appeal no.120 of 2011 before the District Judge, Dehradun. On 16.11.2011, the Appellate Court passed an order, staying the effect and operation of the order dated 11.11.2011 till the disposal of the appeal. Thereafter, on 31.03.2012, the learned Appellate Court allowed the appeal and set aside the order of the trial Court with regard to grant of temporary injunction against the petitioner, but maintained the order of the trial Court to the extent of conditional permission of construction to the respondent no.1. It was further directed that the parties should maintain status quo over the property in question, except the construction of house. Aggrieved thereby, present writ petition has been filed by the petitioner.
Learned counsel for the petitioner submitted that there is no family partition between the parties and the respondent no.1 could not file any document with regard to alleged family partition. He argued that in view of this fact, both the Courts below committed illegality in holding the oral submission of family partition of respondent no.1 and in permitting the respondent no.1 to raise construction over the property in question. He further submitted that the sale deed dated 06.05.2010, only shows the consent of the petitioner and other co-sharers for selling some part of property, which was in possession of respondent no.1. He contended that the sale deed does not show any family partition between the co-sharers and co-tenure holders of the property in question and as such, on the basis of sale deed dated 06.05.2010, the family partition between the parties cannot accepted. He argued that both the Courts below committed illegality in rejecting the temporary injunction application of the petitioner against the respondent no.1. He submitted that the respondent no.1 is trying to raise the construction over the property in question and in case, he is permitted to raise the construction over the property in question, without legal partition of property in question, then in that event, the purpose of filing the original suit by the petitioner will be frustrated.
(3.) THE respondent no.1 filed counter affidavit. It is mentioned in the counter affidavit that it is admitted to the petitioner, the performa respondent and the respondent no.1 that the property left by Late Ali Jaan, situated at Mehuwala Khalsa, Tehsil Vikasnagar, Pargana Pachhwadoon, District Dehradun, was equally divided into six parts and each legal heir was given the possession of his respective share in accordance with the mutual partition, which took place between the family members. The respondent no.1 is in possession of his respective share. The respondent no.1 executed a sale deed dated 06.05.2010, whereby he sold a small portion of land admeasuring 0.0113 hec., out of his 1/6th share. It is stated that in the said sale deed, the petitioner and the performa respondents have signed as consenting parties and have raised no objection with regard to execution of the sale deed by the respondent no.1. It is also stated in the counter affidavit that it is admitted to the petitioner that the property left by Late Ali Jaan is although recorded in the revenue record in the joint name of all the legal heirs, yet each legal heir is in possession of his respective share owing to the mutual partition between the family members. It is submitted that thus, each co-owner has the right and authority to sale his respective share or to deal in any manner, whatsoever with his respective share. It is also submitted that the respondent no.1 is a poor person and the house, which is built on his share, was very old and was in a very bad shape, therefore, the respondent no.1 started construction/repair work on his share out of the sale consideration, which was received by him by executing the sale deed dated 06.05.2010. It is further submitted that the petitioner moved an application before the Assistant Collector, Vikasnagar, to restrain the respondent no.1 from raising construction. On 03.06.2010, the respondent no.1 moved an application before the District Magistrate and he was permitted by the District Magistrate to raise the construction on his portion. Thereafter, petitioner filed a civil suit for injunction against the respondent no.1. The Civil Judge (J.D.), Vikasnagar heard both the parties and permitted the respondent no.1 to raise construction on his share. Petitioner being aggrieved by the said order filed M.C.A. before the District Judge, Dehradun and the A.D.J., Vikasnagar, after hearing both the parties, again permitted the respondent no.1 to raise construction. Feeling aggrieved from the order of both the Courts below, petitioner has approached this Court. It is further stated that the sale deed dated 06.05.2010, clearly shows that the petitioner and the performa respondents had no issues/problem/objection in the execution of the said sale deed by the respondent no.1. It is also stated that the fact that the petitioner and the performa respondents signed the said sale deed as consenting parties, makes it explicitly clear that all the legal heirs of Late Ali Jaan have been allotted the respective share and each legal heir has been handed over the possession of his respective share and he/they are at liberty to dispose of their share in any manner whatsoever. It is also mentioned in the counter affidavit that the sale deed executed by the respondent no.1 may not show any family partition, but the sale deed executed by the petitioner, makes it explicitly evident that it is a fact, which is admitted to the petitioner also, that the property has been divided amongst the legal heirs on the basis of mutual family partition. It is also stated in the counter affidavit that case no.106/2006-2007, which has been filed to make 'Kurras', is pending disposal, clearly brings out the fact that a family partition has taken place and each legal heir is in possession of his respective share. Therefore, the Courts below have made no illegality in holding the oral submission of partition of respondent no.1. It is further stated that the petitioner had no cause of action to file Original Suit No.39/2010 against the respondent no.1, as the respondent no.1 was raising construction on his own share in which the petitioner had no right/title/interest, therefore, he had no locus standi to file the said suit against the respondent no.1. It is further stated that the orders passed by the Courts below, rejecting the interim application of the petitioner and permitting the respondent no.1 to raise construction on his share, are just and proper and deserves to be upheld. It is also stated that the respondent no.1 is a very poor person and he has arranged the money for construction with great difficulty and in case, respondent no.1 is not permitted to complete his construction, then in that event, the respondent no.1 shall suffer great hardship and the entire money, which he has invested in raising the said construction, shall go in vain.
I have considered the submission advanced by the learned counsel for the petitioner and have perused the orders impugned.;