ISHRAT HUSAIN KHAN Vs. ADDL DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) The petitioner is defendant in a suit which is pending in Civil Court at Gorakhpur. It appears that a suit for partition was brought by the plaintiffs in respect of middle portion of a house situate at Gorakhpur. The plaintiffs were Amanat Husain Khan Smt. Jannat Bibi. The petitioner was defendant No. 1 in the said suit. The respondent No. 4, who was also a defendant in the said suit, is said to be son-in-law of Amanat Husain Khan. The plaintiffs case was that one Smt. Asmat Bibi, who was mother of the petitioner and respondent No. 2 herein was the sole owner of three parts of the house in dispute. She had sold northern part of the said house to her daughter Smt. Jannat Bibi, who is respondent No. 3 here in on 26-10-1984 and by an oral gift made in 1972 she had given southern portion of the house to respondent No. 4, who is son-in-law of the respondent No. 2. The central portion of the house in dispute was said to be liable to be partitioned. The respondents Nos. 2 and 3 claimed their share from the said portion. A copy of the plaint dated 28-10-1985 is filed as an annexure to the writ petition. The petitioner, who was defendant in the said suit, denied the correctness of the plaint. He denied the factum of sale having taken place and also denied the alleged oral gift in favour of the respondent No. 4. The petitioner had set up a claim to receive his share from all the three portions of the house and had stated that the suit was hit by the doctrine of partial partition. A copy of the written statement is also filed as an annexure to the writ petition.

(2.) During the pendency of the suit the petitioner moved an application restraining the plaintiff-respondents and their agents from evicting the petitioner or any tenant from the house in dispute and not to sell any portion of the house in favour of third persons. The said application was resisted by the plaintiff-respondents. They stated that they had no intention to dispose of the property but opposed the grant of interim relief in favour of the defendant. The trial Court by its order dated 25-4-1989 allowed the application for grant of interim relief (50/C) and restrained the plaintiff-respondents from evicting any of the tenants from the building and restrained them from selling any portion of the building in favour of third person. A copy of this order is also annexed to the writ petition. The respondents were aggrieved against the order of the trial Court. The respondent No. 1 filed a separate appeal which was numbered as Miscellaneous Appeal No. 99 of 1989 and the respondents Nos. 2 and 3, who were plaintiffs, filed a joint appeal which was numbered as Misc. Appeal No. 100 of 1989. The two appeals are said to have been decided by a common judgment by the respondent No, 1 vide his order dated 27-7-1990. The appeals were allowed and the present writ petition is filed against the judgment of the appellate court. The petitioner's case is that the appeal was only partially allowed.

(3.) The petitioner's case is that the interim order was granted by the trial court under Section 151, C.P.C. therefore it was not appealable before the respondent No. 1, It is also stated that the suit was hit by doctrine of partial partition. Therefore, the petitioner's rights were required to be safeguarded as the suit in the ultimate analysis would fail.