DWARIKA NATH AGRAHARI Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner Dwarika Nath Agrahari who happens to be defendant No. 1 in suit No. 35 of 1982, which is pending in the court of Civil Judge, Mirzapur, has come up with follow ing prayers:- " (1) to issue a writ, order or direction in the nature of mandamus commanding the respondent Nos. 1,2,3,4,5,6,7,8,10,11 and 12 to put of the police lock, which has been kept since 29-4-1997 in an illegal and arbitrary man ner and further return the petitioner's ceased articles as it is before any respectable or respon sible authority; (ii) to issue a writ, order or direction in the nature of mandamus commanding the respon dents Nos. 1,2 and 3 to deal with the illegal and arbitrary action of the guilty respondent Nos. 4, 5, 6, 7, 8, 9, 10, 11 and 12 and provide them adequate penalty for the same; (iii) to issue a writ, order or direction in the nature of mandamus commanding the respon dents Nos. 4,5,6,7,8,9,10,11 and 12 adequate punishment for their illegal and arbitrary action, which they had performed in an illegal and arbitrary manner while acting otherwise than in accordance with law; (iv) to issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper to meet the ends of justice; (v) to award cost of the writ petition to the petitioner. "

(2.) RESPONDENT Nos. 4 and 5 Suresh Kumar Tripathi and Shailendra Pati Tripathi respectively are sons of Ramdeo Tripathi who was defendant No. 2 in the suit. The name of Ramdeo Tripathi was expunged and his heirs and legal repre sentatives, including the respondent Nos. 4 and 5,, already stands substituted as Defendant Nos. 2/1 to 2/9 in the suit. The writ petitioner is defendant No. 1 in the suit, who is own elder brother of the plain tiff of the suit. The suit in question has been filed for partition of the plaintiff's share in a house situated in Mohalla Badli Katra, Town Mirzapur bounded on east by a Government road, on west by a Govern ment lane, on north by the godown of Ram Das Fakir Chand presently Jai Singh Ad vocate, and south by the house of Laxmi Narain presently Thakur and Kanhaiya Lal. In the plaint of the suit it has been asserted, inter alia, that the plaintiff is co-share in possession to the extent of 44:3 paisa and that the defendant No. 1 is co-sharer in possession to the extent of 49 paisa and that the defendant No. 2, who was a tenant in the upper portion of the house, has become a co-sharer to the ex tent of 6:2/3 paisa on the strength of the purchases from the owners of the building. RESPONDENT No. 4 herein, who was one of the substituted legal representative of deceased defendant No. 2, filed an applica tion dated 21-12-1985 (as contained in Annexure 7 to the supplementary rejoinder affidavit filed by the petitioner today) stating that the plaintiff and defen dant No, 1 be restrained from transferring; the house in favour of any one or be restrained from dispossessing him during the pendency of the suit. Learned Civil Judge, II, Mirzapur vide his order dated 7-2- 1986 rejected the said petition after contest. RESPONDENT No. 4 herein went up in Miscellaneous Civil Appeal No. 13 of 1986. This appeal was contested. Vide order dated 29-8-1996 the Special/addi tional District Judge, Mirzapur accepted the appeal (copy appended as Annexure 2 to the writ petition) and disposed of the petition dated 21-12- 1985 filed by Respon dent No. 4 with modifications directing the plaintiff, defendant No. 1 and defendant Nos. . 2/1 to 2/9 not to transfer any portion of the disputed house with a further rider that if they want to do so in a special circumstance they are required to taken prior permission of the Court. The learned Additional District Judge also directed after, recording a finding that since all the parties to the suit are co-sharers, none of them will interfere or create hindrance in exercise of their joint rights. The learned Additional District Judge further expected from the parties that they will co-operate in the expeditious disposal of the suit. He also expected from the court below that it will dispose of the suit with promptness and giving priority to it. It further appears that the learned Additional District Judge directed the parties to appear in the court below on 12-9-1996.

(3.) SRI R. N. Singh, learned Counsel appearing on behalf of respondent No. 4, took up a stand that the allegations made by the petitioner are untrue though for the redressal of his alleged grievance he can move the appellate court alongwith an application under Order XXXIX, Rule 2-A read with Section 151 of the Code of Civil Procedure and that the appellate court will be fully entitled to grant reliefs to the petitioner provided he makes out his case.