Indra Devi & Ors. v. Manoj Sah & Ors.

.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Satyendra Narayan Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL ORDER 7 07-02-2013 Heard learned counsel for the petitioners and the counsel appearing on behalf of the respondents. 2 Patna High Court CWJC No.9549 of 2011 (7) dt.07-02-2013 This writ application has been filed by the defendant challenging the order passed in Miscellaneous Appeal No. 04/2010 by the District Judge, Muzaffarpur reversing judgment and order passed by the Sub Judge-II, Muzaffarpur dated 10.3.2010 on an application under Order 39 Rule 1 and 2 filed on behalf of the plaintiff. The plaintiff being aggrieved by the fact and learning that Indra Devi who is supposedly the wife of Basudeo Sah was looking for buyers to sell the lands belonging to the plaintiff which included their residential house which is recorded in the name of Kishun Sah, Ram Laxan Sah, Ram Chandra Sah, Deobati Devi and Indra Devi. The appellate court while considering the arguments of the counsel appearing on behalf of the parties has considered the submission of the defendant no. 11 that lands appertaining to Khata No. 163, Khesra No. 1914 have been recorded in the revisional survey records in her name which are the subject matter of the suit. The suit was filed for setting aside the sale deed dated 25.12.2005 executed by Indra Devi in favour of Anant Kumari who is supposed to be the adopted daughter of Indra Devi. These facts regarding the adoption have been disputed in the plaint. The Court below has taken into consideration the provisions of Section 44 of the Transfer of Property Act and has come to the conclusion that the 3 Patna High Court CWJC No.9549 of 2011 (7) dt.07-02-2013 transferee cannot claim joint possession with a coparcener of the transferor or co-owner cannot claim joint possession in a dwelling house. The Court further observes that the selling of joint family property by any coparcener unless partition is affected will cause multiplicity of suits. It is said that the sale deed executed by Anant Kumari on 8.4.2007 in favour of Nand Kumar Sah with respect to R.S. Plot 1914, Khata No. 163, area 1.35 decimals and the sale deed executed by Anant Kumari in favour of Manoj Kumar Jha with respect to the same plot of land measuring 1.35 decimls would cause as multiplicity of suits. However, this Court would find that any sale deed executed with respect to plot no. 1914 of Khata No. 163 would be subject to the result of the suit as the vendee cannot get a better title than the vendor. The Court has, therefore, ordered that the defendant nos. 11 and 12 should be restrained from executing the sale deed as it would cause multiplicity of suits and further ordered that not only are they restrained from executing for the sale deed in Schedule II but also in Schedule I land. It is clarified here that Schedule I lands including the lands appertaining to Khata No. 163, Plot No. 1914 measuring .11 decimals, Khata No. 761, Khesra No. 1939 measuring .23 decimals, Plot No. 1949 measuring .03 decimals, Plot No. 5708 4 Patna High Court CWJC No.9549 of 2011 (7) dt.07-02-2013 measuring .18 decimals and land appertaining to Khata No. 558, Plot No. 1912 measuring .05 decimals. While the Court can certainly and has correctly injuncted the defendant nos. 11 and 12 from selling the lands of Khata No. 163, Plot No. 1914 measuring .11 decimals, it could not have passed an order of injunction with respect to the other lands as they are not subject matter of dispute in the suit. There is pleading on behalf of the plaintiff that Indra Devi would not be entitled to any share in the property as Indra Devi was not married to late Basudeo Sah rather Indra Devi was a friend of Deobati Devi and she was living with late Basudeo Sah who died issueless in the year 1983. Thus, according to the plaintiff Indra Devi is a stranger to the family. In the circumstances, the Court could have not passed any order with respect to lands described in Schedule I except Plot No. 1914. This Court, therefore, sets aside the appellate order to the extent mentioned aforesaid. This writ application is allowed with the aforesaid observation. Sanjay/- (Sheema Ali Khan, J.)