TEENA Vs. JHANDU

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) PRESENT petition has been filed by the petitioner for the following reliefs:

(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.