UMA SHANKER Vs. ANGOORI DEVI

JUDGEMENT

(1.) -The plaintiff-appellant has filed a civil suit for partition of the properties mentioned in schedules A and B of the plaint on the allegations that the properties mentioned in schedule A were ancestral properties and the properties mentioned in schedule B were self acquired properties of the father of the appellant. Shop No. 24/43, G. T. Road, Chhibramau, District Farrukhabad, was under the tenancy of the father of the plaintiff and the plaintiff inherited the said tenancy along with his brother Ganga Shanker, who is defendant No. 3 in the suit. Along with the suit the plaintiff had also filed an application for an interim injunction. Aforesaid defendant No. 3 filed an objection in the injunction matter without serving a copy on the plaintiff' or his counsel. The trial court, however, rejected the application for injunction vide order dated 10-9-1986 without giving an opportunity of filing any reply to the objection. The said order passed by the trial court forms subject matter of the First Appeal From Order filed in this Court which has been admitted. The plaintiff had also filed in the trial court an application for appointment of a Commissioner which was allowed. Since no objection was filed to the aforesaid report of the Commissioner the same became final.

(2.) GANGA Shanker, defendant No. 3, also moved an application before the trial court for eviction of the plaintiff from the shop in dispute. This application was rejected by the trial court vide order dated 18-9-1986.

(3.) I have heard learned counsel for the parties. The application made by the plaintiff appellant for re-delivery of the keys and possession is sought to be opposed by Sri H. S. Nigam, learned counsel for the respondent on two grounds. The first is that the date of dis-possession is not known and secondly the answering respondent had no knowledge of the injunction order in question granted by the High Court and that the plaintiff-appellant has failed to impute knowledge to the respondent. In support of his submission that in the absence of the knowledge of the injunction order passed by this Court neither any liability can be fastened on the respondent nor any action can be taken against him-reliance is placed on the decision of the case of Mulraj v. Murti Raghunath Maharaj Ji, AIR 1967 SC 1386. In reply the learned counsel for the appellant does not dispute the ratio of the aforesaid decision of the Supreme Court. He submits that from the facts of this case it is amply clear that even on the date of the injunction order passed by this Court the plaintiff-appellant was in possession and has been dispossessed by force by the answering respondent on 29-10-1986, as aforesaid. Hence the plaintiff appellant is entitled for re-delivery of possession. "Secondly the defendant respondent had full knowledge of the injunction order granted by this Court as the same was served on him on 1-10-1986 i. e. long before the date of dispossession.