CHANDRAWATI Vs. CHINTAMANI

JUDGEMENT

(1.) This revisional application is filed by the petitioner under Article 227 of the Constitution of India against the impugned order dated 23rd December, 2013 passed by the learned Jt. Civil Judge (Senior Division), Andaman & Nicobar Islands, Port Blair in Title Suit No. 84 of 2013. By virtue of the said order the learned trial Court allowed the petition filed by the opposite party under Order 39 Rule 7 of the Code of Civil Procedure.

(2.) I have heard Mr. K.M.B. Jayapal, learned Counsel for the opposite party. Mrs. K. Nisha, learned Counsel appears for and on behalf of the advocate -on record of the petitioner. However, I have carefully perused the materials -on -record including the impugned order. The respondent filed a Title Suit bearing No. 107 of 2012 which was subsequently renumbered as 84 of 2013 praying for declaration of title and for cancellation of the Will executed by one Smt. Man Kunwar in favour of the petitioner/defendant. During the pendency of the said suit the plaintiff/respondent filed two petitions, one under Order 40 Rule 1 praying for appointment of receiver and another under Order 39 Rule 7 praying for appointment of Commissioner for holding inspection.

(3.) From the materials on record it transpires that there are tenanted premises in the suit property. After execution of Will in favour of the petitioner/defendant, she has been collecting rent from the tenant and enjoying the usufructs of the property. It is the case of the petitioner/ defendant that learned Court below allowed the petition under Order 39 Rule 7 and in doing so learned trial Court acted illegally and exercised illegal jurisdiction. It is further case of the petitioner that the order suffers from impropriety and illegality. It appears further from materials on record that the petitioner got her name mutated in revenue record and thereafter she is enjoying the usufructs of the property. There is no dispute that the respondent disputed with regard to the execution of the Will by one Man Kunwar in favour of the petitioner/defendant. Therefore, learned Court below before disposing of the petition under Order 40 Rule 1, disposed of the petition under Order 39 Rule 7 directing the learned commissioner to hold inspection with regard to the usufructs of the property - in -question. Hence, substantial question involved in the suit is the title of the property -in -question in connection with the validity and genuineness of the execution of the Will by Smt. Man Kunwar in favour of the petitioner. The enjoyment of the entire usufructs of the property by way of collecting rent from, the tenant cannot be allowed when the Will in question is challenged in T.S. 84 of 2013. Therefore, learned Court below was justified in allowing the petition under Order 39 Rule 7 of the Code of Civil Procedure before disposing of the petition under Order 40 Rule 1 of the Code of Civil Procedure. I do not find any illegality or impropriety of the order passed by the learned Court below. The order does not suffer from lack of jurisdiction or perversity. The application under Article 227 of the Constitution of India, therefore, fails. The order passed by the learned Court below dated 23rd December, 2013 is affirmed.