Court No. - 3
Case :- MISC. SINGLE No. - 1285 of 1981
Petitioner :- Yousuf Husain
Respondent :- Distt. Judge & Ors
Petitioner Counsel :- Mohd. Arif Khan
Respondent Counsel :- C.S.C.
Hon'ble Shri Narayan Shukla,J.
Service of notice to opposite party no. 2 is deemed sufficient
under Chapter VIII Rule 12 of the rules of Court. So far as the
notice to the opposite party no.3 is concerned as per office
report dated 2nd December, 2009 the service of the notice is
also deemed sufficient but none appears for the opposite
parties.
Heard Mr. Mohd. Arif Khan, learned Senior Advocate assisted
by Mr. Mohiuddin Khan, learned counsel for the petitioner and
the learned Standing counsel.
The petitioner is aggrieved with the order dated 24.2.1981,
passed by the District Judge, Rae Bareli, whereby the appeal
filed by the opposite party no.2 has been allowed.
Briefly the facts of the case are that house No. 5120 is situated
in Mohalla Androoni Kila, Raebareli City. It appears that the
house in question was mortgaged. The petitioner and opposite
party no.3 jointly filed a suit for redumption of 13/20 share in
the house in question, which was decreed by the civil court.
Firstly the preliminary decree thereafter final decree was
passed for redumption of that very share and to deliver the
possession on 13/20 share. The opposite party no.2 who is co-
sharer of the house in question filed an appeal before the
appellate court, Thereafter the petitioner as well as opposite
party no.3 applied for execution of the decree, which was
allowed and a warrant for delivery of possession was issued.
Pursuant to the warrant for delivery of possession the Court
Amin called upon the tenants to vacate the portion of the
house in question in their possession, who vacated so except
the portion occupied by the opposite party no.2 . Since she
also filed an objection against delivery of possession, fresh
warrant was issued to deliver the possession to the petitioner
and opposite party no.3 to the extent of 13/20 share,
accordingly the Court Amin delivered the possession of house
in question. However, the opposite party no.2 filed objection
that since her share which is 7/20 was not separated, no actual
possession could have been delivered. Her objection was
rejected by the Ist Additional Munsif, Raebareli on the ground
that since the tenants had already vacated the portion of the
house in question and possession of which was delivered to
the petitioner and opposite party no.3. There was no reason to
restore their possession for actual partition. Being aggrieved
with which the opposite party no.2 filed a Revision before the
District Judge, Raebareli, who relying upon the judgment of
Hon’ble Supreme Court rendered in the case of Bhagwant
Singh Vs. Sri Kishan Das AIR 1953 S.C.136 held that decree
holders could have got only formal possession. He further
observed that there is nothing on record to show the exact area
of the house and the number of constructions existing in that
house. There is also nothing to show how much part of the
house is equivalent to 7/20 share and how much to 13/20
share. Thus, he held that unless actual area of whole share of
respective parties are determined, the actual possession could
not have been delivered over the house in question to the
decree holders and accordingly, he set aside the order passed
by the court below for restitution of possession of parties in
the same position.
Upon perusal of the record, I find that share of opposite party
no.2 i.e. 7/20 in the house in question is not disputed. She has
been shown to be in possession over two rooms, out of seven
rooms. It has not been determined as to actually for how many
portion she is entitled in accordance with her share, therefore,
necessarily the Court Amin should have determined actual
share of the respective parties and after marking the same only
he should have delivered the possession , therefore, I do not
find error in the order passed by the court of appeal.
The writ petition is dismissed.
Order Date :- 5.1.2010
GSY