SURESH CHANDRA AGARWAL v. NARAYAN DAS AGARWAL
Court: High Court of Madhya Pradesh
Judgment date:
Case summary
High Court of Madhya Pradesh judgment dated 2024-02-01. SURESH CHANDRA AGARWAL v. NARAYAN DAS AGARWAL. Read the judgment and case details on LawSphereX.
Judgment text
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR-IV st ON THE 1 OF FEBRUARY, 2024 MISC. PETITION No. 481 of 2024 BETWEEN:- SURESH CHANDRA AGARWAL S/O SHRI NARAYAN DAS AGRAWAL, AGED 60 YEARS, R/O SADAR BAZAR MORAR GWALIOR AT PRESENT R/O KOTWALI SANTAR PARGANA MORAR DISTRICT GWALIOR (MADHYA PRADESH) ..... PETITIONER (SANJAY KUMAR MISHRA - ADVOCATE) AND 1. NARAYAN DAS AGARWAL S/O LATE SHRI MITTHAL LAL AGARWAL, AGED ABOUT 90 YEA R S , AHEAD OF GUPTA NURSING HOME NAGAR NIGAM COLONY NARAYAN DAS TRADING COMPANY KIRANE KI DUKAN MORAR GWALIOR MP (MADHYA PRADESH) 2. RAJESH AGARWAL S/O SHRI NARAYAN DAS AGARWAL, AGED ABOUT 62 YEARS, R/O AHEAD OF GUPTA NURSING HOME, NAGAR NIGAM COLONY, NARAYAN DAS TRADING COMPANY, KIRANE KI DUKAN, MORAR, GWALIOR (MADHYA PRADESH) 3. SMT KIRANLATA SARAF D/O SHRI NARAYAN DAS AGARWAL W/O SHRI OMPRAKASH SARAF, AGED ABOUT 67 YEARS, R/O A-24, BEHIND STATE BANK OF INDIA, TANSEN NAGAR, GWALIOR (MADHYA PRADESH) 4.
SMT RENU AGARWAL D/O SHRI NARAYAN DAS AGARWAL, AGED ABOUT 59 YEARS, R/O 981 CP MISSION COMPOUND, JAR PAHAD, JHANSI (UTTAR PRADESH) 5. SMT BABITA GARG D/O SHRI NARAYAN DAS Signature Not Verified Signed by: VISHAL Signing time: 02-02-2024 06:12:43 PM AGARWAL W/O SHRI RAVINDRA GARG, AGED ABOUT 53 YEARS, R/O 39 RADHIKA VIHAR NEAR KARMYOGI FOUNDATION, KAMLA NAGAR, AGRA (UTTAR PRADESH) ..... RESPONDENTS This petition coming on for admission this day, th e court passed the following: ORDER 1. Invoking jurisdiction under Article 227 of the Constitution, petitioner th filed this petition challenging the order dated 07. 11. 2023 passed by 10 Civil Judge, Junior Division, Gwalior rejecting the application of the plaintiff/petitioner under Section 151 of Cr. P. C. Heard learned counsel for the petitioner. 2. Submissions of learned counsel for petitioner are as under:- (i) Property belongs to the forefather of the petitioner and respondents.
Grandfather had purchased the property in the name of respondent No. 1. Respondent No. 1 admitted the said fact in Civil Suit No. 419-A/1964. (ii) Petitioner has 1/6 share in the property being an ancestral property. (iii) Petitioner/plaintiff has filed a suit for declaration along with application under Order 39 Rule 1 and 2 of the CPC on 23. 08. 2023 which is still pending. (iv) Before finalization of the said application, petitioner filed another application under Section 151 of the Cr. P. C. for the same relief because respondents have not filed reply against the said application. (v). Learned court below while rejecting the application under Section 151 of the Cr. P. C. took a contrary view and dismissed the application of the petitioner saying that before disposal of ad-interim injunction, no order of stay Signature Not Verified Signed by: VISHAL Signing time: 02-02-2024 06:12:43 PM can be passed because purpose of ad-interim application would fail. 4.
Facts as depicted in the record are that petitioner/plaintiff Suresh Chandra Agrawal filed a suit against his father Narayan Das Agrawal, his brother Rajesh Agrawal, his mother Smt. Kiranlata Saraf her two dauthers, namely, Smt. Renu Agrawal and Smt. Babita Agrawal for injunction and declaration of the property. In the suit, prayer made by the petitioner is read as under:-v&;gfd] ;g ? kksf"kr fd;k tkos fd oknxzLr Hkou fLFkr lnj cktkj eqjkj ftyk Xokfy;j ftls okn i= ds lkFk layXu ekufp= esa yky jax dh js[kkvksa ls mYysf[kr fd;k x;k gS ftldk dqy {ks=Qy 1000 (,d gtkj) oxZQqV ftldh prqZlhek iwoZ esa&iryh xyh mijkUr edku xqIrk th dk] if'pe esa& vke jkLrk ljdkjh] mRrj esa& edku egs'k] jkds'k vxzoky dk] nf{k. k esa&edku Jherh foeyk nsoh] jkeckcw xqIrk dk gksdj ftldk Hkou dzekad&1221 (,d gtkj nks lkS bDdhl) okMZ dzekad &27 (lRrkbZl) uxj fuxe lEifRr vkbZ-Mh-dzekad&1000292566 gksdj tks okn ,oa izfroknhx.
k dk iqLrSuh Hkou gS ftlesa oknh 1@6 (,d cVk N%) leku fgLls dk Lokeh o vkf/kiR;/kkjh gSA c& ;gfd] oknh ds gd esa izfroknhx. k ds fo:) ,d vk'k; dh LFkkbZ fu"ks/kkKk izpfyr dh tkos fd izfroknhx. k cxSj oS/kkfud caVokjs ds oknxzLr Hkou dks varfjr o fodz; u djsa rFkk oknxzLr Hkou esa fdlh Hkh rjg dk dksbZ fuekZ. k dk;Z u djsa u fdlh vU; ls djkosA 5. Main Submission of learned counsel for petitioner is that without partition of the parental property, respondents, who are father, mother, brother and sisters of the plaintiff himself, are encroaching the property and they are creating hindrance in the peaceful possession of the plaintiff/petitioner. Respondents started raising construction over the property without waiting for the disposal of the application filed under Section Order 39 Rule 1 and 2 of the CPC and they want to dispossess the plaintiff/petitioner. 6.
Admittedly, the property is an ancestral property and was purchased by the grandfather of the petitioner in the name of respondent No. 1. Petitioner Signature Not Verified Signed by: VISHAL Signing time: 02-02-2024 06:12:43 PM may have the share in the said property by virtue of his birth but property is not divided till today. Plaintiff has claimed to be co-owner of the property but it cannot be said that in which specific portion of the property, petitioner is in possession. It is an admitted position of the matter that application under Order 39 Rule 1 and 2 is still pending and during the pendency of that application, an application under Section 151 of the Cr. P. C. has been filed by the plaintiff/petitioner. 6.
Court below has written in its finding that contrary pleadings have been made by both the parties in respect of ownership of the property and any determination may be done only on the basis of merits and it is well settled law that in a joint property, nobody can be restrained from interfering or using the property without any division. Court below has further recorded that before disposal of the application filed under Order 39 Rule 1 and 2 of the CPC, no order of status quo can be passed. 7. Application under Order 39 Rule 1 and 2 is still pending, in view of the above, I do not find any illegality or irregularity warranting interference in the order. 8. Petition stands dismissed accordingly. (RAJENDRA KUMAR-IV) JUDGE Vishal Signature Not Verified Signed by: VISHAL Signing time: 02-02-2024 06:12:43 PM
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