Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 7140 of 2019 Petitioner :- Prabhu Nath Prasad Respondent :- Sriniwas Counsel for Petitioner :- Ishwar Kumar Upadhyay
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 24.01.2018, passed by the trial court in Original Suit No. 1912 of 2017 rejecting the application for interim injunction as well as the order dated 17.08.2019, passed by Additional District Judge/F.T.C., Ballia, in Misc. Civil Appeal No. 55 of 2018, whereby the appeal of the petitioner was dismissed.
The courts below have disbelieved the case, set up by the plaintiff-petitioner that the defendant, who is his real brother, had relinquished his share in the ancestral house after accepting 9 decimal of land of Arazi No. 240 from the half share of the plaintiff therein. For coming to such conclusion, the courts have taken into consideration the fact that the plaintiff had created mortgage in respect of his entire half share in Arazi No. 240 in favour of Central bank of India. The courts below have observed that in case 9 decimal was given to his brother in lieu of his share in the ancestral house, the plaintiff could not have mortgaged his entire share in plot no. 240. It has also been observed that there is no other documentary evidence to support the theory of relinquishment of share by the defendant in the suit property.
This Court finds no illegality or infirmity in the impugned orders to warrant interference in exercise of supervisory power under Article 227 of the Constitution of India. The petition has no force and is dismissed.
However, the trial court shall proceed to decide the suit expeditiously without being influenced by the observations made in the impugned orders of the courts below or the instant order of this Court.
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(Manoj Kumar Gupta, J) Order Date :- 27.9.2019 sailesh