NISAR AHMAD Vs. ATARU

JUDGEMENT

(1.) THE dispute raised in this petition is that Smt. Soampati, mother of the respondent Ataru, had executed a sale -deed in favour of the petitioner on 15.7.2000. However, she filed a suit for cancellation of the sale -deed being Original Suit No. 658 of 2000, which she did not contest as she stated that the sale -deed was executed after proper consideration. The said suit was accordingly dismissed on 26.3.2001. The respondent, who is the son of Smt. Soampati, who had earlier filed the suit, has now filed the suit being Original Suit No. 28 of 2001 (Ataru v. Nisar Ahmad) praying for cancellation of the sale -deed executed by the mother of the respondent being sale -deed dated 12/15.7.2000 on the ground that he was co -sharer of the property in question with his mother and the mother did not have any right to execute the sale -deed before the property in question was partitioned by metes and bounds between him and his mother. The petitioner -respondent in the aforesaid suit had filed an application under Order VII, Rule 11, C.P.C., which was rejected. Thereafter he preferred a revision before the learned District Judge, which was also dismissed holding that the respondent has right to file suit for cancellation of the sale -deed being owner of half of the portion of the property in question, which was sold by her by executing a sale -deed dated 12/15.7.2000. The contention of the learned Counsel for the petitioner that in view of Order XXXII, Rule 15, C.P.C., the respondent has no right to file suit, is not tenable as the aforesaid suit was dismissed as uncontested. It is not in dispute that the respondent has share in the property in question and the said property was not partitioned.

(2.) IN my opinion, there is no error in the order impugned, calling for any interference under Article 226 of the Constitution of India. The writ petition is accordingly dismissed.