Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7707 of 2018 Petitioner :- Dharmjeet Respondent :- Uma Singh @ Umashankar And 2 Others Counsel for Petitioner :- Rakesh Chandra Counsel for Respondent :- Rajendra Kumar Yadav Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner; Sri Rajendra Kumar Yadav for the respondents 2 and 3; and perused the record.
The petitioner had instituted Original Suit No.322 of 2013 for cancellation of sale deed executed by the defendant-respondent no.1 (Umashanker) in favour of the defendant-respondents 2 and 3 as also for permanent prohibitory injunction. The plaint case, in nutshell, was that the brother of the plaintiff-petitioner, namely, Uma Shanker, had died in the year 1993 and it is his imposter who executed sale deed of one half share in favour of other defendants, namely, defendant-respondents 2 and 3 herein. The trial court on prima facie consideration of the material brought on record allowed the temporary injunction application and directed the defendant-respondents 2 and 3 not to interfere in the peaceful possession of the plaintiff-petitioner. Aggrieved by the order passed by the trial court, the defendant- respondents 2 and 3 filed Misc. Civil Appeal No.109 of 2017 in the court of District Judge, Sonebhadra, which was allowed by the impugned order dated 30th August, 2018. The appellate court took the view that so long the sale deed is not cancelled, the defendant respondents 2 and 3 being recorded co-sharers, no injunction could be obtained against them over any specific portion of the plot, in absence of proof of partition, because each co-sharer would be owner in possession of every inch of the property of which he is a co-sharer. In support of its order, judgments have been cited.
The learned counsel for the petitioner has assailed the order passed by the appellate court on the ground that here was a case where sale deed was executed by an imposter and, therefore, the order passed by the trial court was not liable to be interfered with, particularly, without dealing with that aspect of the matter moreso when the trial court had taken notice of those facts in its order.
The learned counsel for the caveator-respondent defended the appellate order by claiming that on the basis of impugned sale deed the contesting respondents are mutated on revenue record and so long the sale deed stands they are co-sharers and therefore the order of the appellate court calls for no interference.
Upon perusal of the record and having heard the rival submissions, this Court finds that there is serious dispute as regards existence of the brother of the plaintiff-petitioner (defendant-respondent no.1). Under the circumstances, unless evidence is received and it is held that the defendant-respondent no.1 is an imposter of the late brother of the plaintiff-petitioner, it would not be appropriate for the court to grant injunction against the transferees particularly, when, as a consequence of the sale, purchasers have become co-sharer of the property and their name have been mutated in the revenue record.
At this stage, learned counsel for the petitioner submitted that whether a person is brother or not can safely be determined by DNA profiling of the parties. He, therefore, submitted that this Court may summon the respondent no.1 and sample be obtained for DNA profiling.
The above submission though may appear appealing but it would not be proper for this Court to assume onto itself the role of the trial court. Because such a prayer must first be made before the trial court.
Under the circumstances, this Court considers it appropriate to dispose off this petition by giving liberty to the petitioner to move an appropriate application before the trial court for DNA profiling of the defendant-respondent no.1 Uma Singh alias Uma Shanker to ascertain whether DNA of the defendant- respondent no.1 matches with DNA of plaintiff-petitioner so as to indicate whether they could be brothers. In case evidence comes that they are not brothers, it shall be open for the plaintiff-petitioner to file a fresh injunction application, which shall be considered in accordance with law without being prejudiced by the order dated 30th August, 2018 passed by the appellate court in Misc. Civil Appeal No.109 of 2017. It is expected that if any such application is moved by the plaintiff- petitioner for summoning the defendant-respondent no.1 to obtain sample for DNA profile, the same shall be considered expeditiously and shall be dealt with in accordance with law.
With the aforesaid observation/direction, the petition is
disposed off.
Order Date :- 29.10.2018 AKShukla/-