CHUNI LAL Vs. DURGA DASS

JUDGEMENT

(1.) The present petition is maintained by the petitioner, under Article 227 of the Constitution of India, for quashing and setting aside the impugned order, dated 7.3.2018, passed by the learned lower Appellate Court, in CMA No.679 of 2017, in Civil Appeal No.180 of 2017, whereby an application, under Order 41, Rule 5 read with section 151 of the Code of Civil Procedure, operation of the judgment passed by the learned Court below, in Civil Suit No.605 of 2009, dated 6.11.2017, was stayed, subject to furnishing security bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court within a period of one month.

(2.) Brief facts giving rise to the present petition are that the petitioner/plaintiff (hereinafter referred to as the 'plaintiff') maintained a suit for possession and separating the share of parties by passing a preliminary decree of partition against the respondent/defendant (hereinafter referred to as the 'defendant') alleging that land comprised in Khata No.254, Khatauni No.525, Khasra No.657, measuring 45.48 square meters (Gairmumkin Dukaan Pakki Teen Manjila) situated in Up Mahal Shiv Nagar, Mauza Bajuri, Tehsil and District Hamirpur and land comprised in Khata No.194, Khatauni No.338, Khasra No.1740, measuring 398.25 square meters (Gairmumkin Makaan Jer Tameer and Gairmumkin Sehan), situated in Up Mahal Gandhi Nagar, Mauza Bajuri, Tehsil and District Hamirpur (hereinafter referred to as 'suit property') was jointly owned and possessed by the parties, as per their respective share in the revenue record. Due to jointness of the suit land, the parties were facing difficulty to make best use of it. There remained a dispute qua the exact share of the parties. The defendant was requested to get the suit land partitioned, but he refused to do so being in possession of abadi more than his share. Hence, the present petition.

(3.) Reply to the petition has been filed and it has been submitted that the defendant-respondent aggrieved on account of the judgment and decree preferred an appeal before the learned lower Appellate Court and also maintained an application seeking stay of the execution of impugned judgment and decree. It is specifically denied that the impugned order, dated 7.3.2018, is unsustainable in the eyes of law or is liable to be quashed. Preliminary decree has been passed by the learned Trial Court, which has been ordered to be stayed in view of arguable points involved in the appeal. Though, no rider ought to have been put by the learned lower Appellate Court, while staying the execution of the decree passed by the learned Trial Court, the learned lower Appellate Court has granted stay of execution of the judgment and decree passed by the learned Trial Court, subject to furnishing of security bond in the sum of rupees one lac with one surety in the like amount to the satisfaction of the learned Trial Court within one month. On account of the aforesaid condition, imposed while granting stay of execution, the respondent could have been said to be aggrieved, however, the respondent has not assailed the impugned order, dated 7.3.2018, to the extent of imposition of condition to avoid unnecessary delay in disposal of appeal. It is further submitted that preliminary decree has been passed and in case, stay would not have been granted by the learned lower Appellate Court, the same would have gravely prejudiced the right of the respondent and the petitioner would have taken unnecessary advantage over the rights of the respondent. It is further submitted that the construction has been raised by the respondent exclusively by spending huge amount on the house consisting of four storeys on an express consent having been accorded by the petitioner for raising such construction. The respondent shall not be causing delay in disposal of the appeal preferred before the learned lower Appellate Court, in any manner.