Neutral Citation No. - 2023:AHC:207655
Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 7036 of 2023
Petitioner :- Smt. Sudha Sharma And 2 Others
Respondent :- Rajesh Sharma And 3 Others
Counsel for Petitioner :- Dharmendra Kumar Tripathi,Aditya Shankar Tewari
Hon'ble Jayant Banerji,J.
1. Heard learned counsel for the petitioner.
2. This petition has been filed seeking the following relief:
"(I) Direct the defendants-respondents not to create any hindrance and to maintain status quo over the property in question with regard to nature and possession of the suit property, during the pendency of interim injunction application (6C) filed by the plaintiffs-petitioners in Original Suit No.204/2023, Smt. Sudha Sharma and others Vs. Rajesh Sharma and others before the Court below.
(II) Direct the court below to decide the interim injunction application (6C) filed by the plaintiffs-petitioners in Original Suit No.204/2023, Smt. Sudha Sharma and others Vs. Rajesh Sharma and others within stipulated period to be specified by this Hon'ble Court and till then no 3rd party right shall be created by the defendants- respondents.
(III) Issue any other order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
(IV) Award the cost of present petition in favour of the petitioners."
3. It appears that the plaintiff-petitioners has instituted a suit for permanent injunction in respect of the property situated in Mohalla Olandganj, Pargana Haveli, Tehsil Sadar, District Jaunpur. It is admitted by the learned counsel for the petitioner that the plaintiffs purchased a part of the property in dispute by means of a sale deed dated 31.3.2006 and the defendants purchased the remaining part of the suit property by a sale deed dated 10.5.2006. It is stated that when the defendants started making efforts to sale their part of the suit property to a third party, the plaintiff-petitioners made an overture to the defendants to purchase the property and since the defendants refused, the aforesaid injunction suit was filed seeking a decree in the following term:
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"अ- स्थथाई व्यथाददेश ककी आज्ञपप्ति पथाररित करिकदे प्रपतवथाददी सस0-1 व 2 कको आददेश पदयथा जथावदे पक वदे इमथारित ममुन्दजर जजैल कदे आवथासदीय भथाग मम वथाददीगण एवस उसकदे पररिवथारि कदे उपयकोग , उपभकोग मम पकसदी प्रकथारि कथा ककोई व्यवधथान उत्पन्न न करिम, औरि न उसदे पकसदी बथाहरिदी व्यपक्ति कदे पक्ष मम पकसदी प्रकथारि अन्तररित अथवथा हस्तथान्तररित करिम औरि न चथाजर पक्रियदेट करिम औरि वथाददीगण कदे पक्ष मम इमथारित ममुन्दजर जजैल कथा पवक्रिय पवलदेख पनष्पथापदत करिनदे सदे पवरित न रिहदे।"
4. The contention of the learned counsel for the petitioners is that given the provisions of Section 44 of the Transfer of Property Act, 1882, the petitioner is entitled to injunction and as such the application 6C filed by the plaintiff-petitioners deserves to be allowed. Learned counsel for the petitioners also presses for a direction to the defendant-respondents not to create any hindrance and to maintain status quo over the suit property during pendency of the temporary injunction application 6C.
5. Learned counsel for the petitioner was asked to address the Court on the aspect of the maintainability of the suit for injunction given the provisions of Section 38 read with clause (e) of Section 41 of the Specific Relief Act, 1963, and as to how the provision of Section 44 of the Transfer of the Property Act would create any obligation or contract in favour of the petitioner, for prevention of breach of which, injunction could be granted. However, the same could not be demonstrated.
6. Under the circumstances, the relief as sought for is declined and the petition is dismissed.
7. Registrar (Compliance) is directed to send a copy of this order to the concerned court within a period of fifteen days from today.
Order Date :- 31.10.2023 A. V. Singh
(Jayant Banerji, J.)
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