DEVENDRA SINGH THAKUR Vs. SHANTIBAI

JUDGEMENT

(1.) THIS is an appeal by the defendant No, 2 under Order 43 Rule 1 (r), CPC against the order by which an interim mandatory injunction has been issued against him to remove his belongings from the house in dispute and he has been restrained from interfering with the possession of the plaintiff No. 5 on this house.

(2.) BADRI, Onkar and Ramkishan were three brothers. Mathurabai was owner of a house on plot No. 3538 in Damoh. She bequeathed one third portion of this house to plaintiff No. 5 Rambharose and defendant No. 1 Narendra Kumar who are real brothers. They are sons of Onkar. Defendant No. 1 Narendra Kumar sold his share in the house by registered sale-deed dated 21-1-2003 to defendant No. 2 Devendra Singh Thakur who is a stranger to the family.

(3.) THE Trial Court recorded the prima facie findings that there was no partition between plaintiff No. 5 Rambharose and his brother defendant No. 1 Narendra Kumar in respect of the portion which was bequeathed to them by Mathurabai and therefore, the sale-deed executed by the defendant No. 1 in favour of the defendant No. 2 does not convey to him any specific portion of the house. It has also been found that the house in dispute is a dwelling house. Following the decision of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867, the impugned order of interim mandatory injunction and the prohibitory injunction has been passed.