YAGYA DUTT MISHRA Vs. ANIRUDH KUMAR & ORS

JUDGEMENT

(1.) Since there is no factual dispute in the matter and only a legal issue is to be decided therefore this writ petition is being decided today itself without calling the counter affidavit with the consent of learned counsel for the parties.

(2.) By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the impugned order dated 11.10.2012 passed by Civil Judge (S.D.) Haridwar in O.S. No.76 of 1991 Anirudh Vs. Jyoti Prasad and others and order dated 18.10.2012 passed by Addl. District Judge/III F.T.C. Haridwar in Civil Appeal no.5 of 2011 Keshav Dutt and others vs. Anirudh Kumar and others, whereby the application 93Ka-1 filed by the petitioner under Order 22 Rule 3 and 11 C.P.C. has been rejected.

(3.) Briefly stated the facts giving rise to this writ petition are that plaintiff/respondent nos.1 and 2 filed a suit for partition claiming themselves to be the co-sharer to the extent of 1/3rd along with defendant nos.1 Jyoti Prasad and defendant no.2 Shyam Lal. Against defendant nos.3 to 5 namely Keshav Dutt, Shankar Dutt and Braham Dutt no relief was claimed, relief was claimed only against defendant nos.1 and 2. It was alleged that defendant nos.3 to 5 are unauthorised occupants legally inducted on behalf of defendant nos.1 and 2. Preliminary decree was passed by the court on 16.12.2000 declaring the plaintiffs owner of 1/3rd share in the property in dispute. The court also held that defendant nos.3 to 5 are not having any share in the property. During the pendency of suit, defendant no.3 Keshav Dutt died.