Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5056 of 2018 Petitioner :- Hazi Mohd. Gufran Respondent :- Mohd. Usman And Another Counsel for Petitioner :- Hari Bans Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Hari Bans Singh, learned counsel for the plaintiff- petitioner.
The petitioner is before this Court assailing the order dated 30.5.2018 passed by the Additional District Judge, Court No.4, Kanpur Nagar whereby he has proceeded to reject the application under Order 39 Rule 1 & 2 CPC filed by the petitioner in Misc. Appeal No.11 of 2018 (Mohd. Usman vs. Hazi Mohd. Gufran and others).
Learned counsel for the plaintiff-petitioner states that the plaintiff-petitioner filed Original Suit No.1133 of 2017 (Hazi Mohd. Gulran vs. Moh. Usman and another) alongwith injunction application under Order 39 Rule 1 and 2 read with Section 151 of CPC before the Court of Civil Judge (Senior Division), Kanpur Nagar. Finally the trial court allowed the injunction order on 31.1.2018 and directed the parties to maintain status quo regarding disputed house. The aforesaid order has been assailed by the defendant-respondent no.1 in Misc. Appeal No.11 of 2018. During the pendency of the said appeal, the defendant filed an application under Order 26 Rule 9 CPC (15C) for appointment of Advocate Commissioner. By the order impugned dated 30.5.2018 the application has been allowed.
The Court has proceeded to examine the record in question and perused the order impugned and finds that the application in question was filed on behalf of the defendant-respondent no.1, alleging the the plaintiff has filed the suit for partition on the ground that the disputed property is undivided and the defendant-respondent no.1 is demolishing and raising the construction over a part of the said disputed property. The said property has been mutually partitioned in mutual family settlement executed on 18.9.2014 and as per the said family settlement, each party has raised construction over his part in the said house, as such the plaintiff has no right to restrain the defendant in finishing his constructed portion in the said disputed house. The lower appellate court on its own wisdom has proceeded to allow the aforesaid application and appointed Advocate Commissioner for making spot inspection so that actual status of the disputed property may be brought on record.
The Court does not find any infirmity or illegality in the order impugned.
The writ petition sans merit and is accordingly dismissed.
Order Date :- 26.7.2018 RKP