I had filed a suit for partition of our ancestor property, along with an application for permanent injunction was also filed, in view of the sale-deed entered by defendant with one builder (including my undivided share) without my consent to one builder and thus builder started construction for his Apartment. The Trial Court, However rejected my application of permanent injunction. Therefore I filed an appeal in appellate court against Trial Court’s order, which was confirmed in my favour. Therefore the respondent (original defendant) moved a WP under article 227 of Indian constitution in HC and challenged the order of appellate court. The HC in proceeding under WP completely ignored, the reason of partition of open space, for which the suit is filed and substituted the order of appellate by reserving one block in under construction building, and directed the petitioner not to create third party interest till the disposal of suit pending in Trial Court. HC further empowered to Trial Court to consider and grant the appropriate relief in respect of block, at the time of judgment, which kept vacant till disposal of suit of partition. According to me the HC ought not to pass such order for reasons below. 1. My claim is in open plot and not in building which is being constructed on my undivided share for which i have filed the suit. 2. HC ought to have rejected the WP or set aside the appellate court’s order, for which matter came before HC. 3. Due to such order, The Trial Court will allow my claim in terms of that block only, without considering my prayer to partitioned the suit property as per my share, if Trial Court thinks fit. 4. Due to such order, I can not file “Status Quo” application once again due to change in circumstances (at the time of suit the property was open land and now the building is constructed on my claim, which is undivided till now) Now no option left with me other than to file SLP in SC, but it is being very much expensive, I have thought to put my question here in “Kanoon”, hence below is the question. whether I will get justice in Trial Court as per my claim that is my share in open space OR only I have to take block only as per HC’s order (my share in open property is 2500 sq.feet while Block has area of 450 sq. feet) whether I should move another application for Status Quo. if Trial Court passes the decree in my favour then whether the building on my share will be demolished being illegal. Kindly advice the best of you. Thanking You.
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HC court order is without jurisdiction and hence, void ab initio. Secondly, writ petition is maintainable agasint state and not against private party.
File review of HC order.
Addition to above advise . In rare cases HC can interfere under article 227, supredential jurisdiction.
Have court given finding, on what special reason , invoked supervisory jurisdiction in civil matter ?
Show order.
You should file an slp on the basis that the block has no relation whatsoever and this hc judgemebt of writ court clearly impinge upon your right.
1) trial court would after considering pleadings on record pass orders on the open spaces claimed by you
2) no need to make another application for status quo
You can continue your suit without Permanent injunction in trial court but for Permanent injunction SC SLP is only option
1. you should have attached the HC order with your question for a better perspective
2. the HC cannot adjudicate the rights of the parties in relation to the land, in a petition under Article 227
3. the HC only has to check whether the appellate court's order under challenge suffered from any illegality or impropriety
4. HC cannot sit in appeal over the order of the appellate court
5. so without seeing the order of HC and based on the info provided by you, I am giving the above preliminary view
6. but i strongly feel that HC can never commit such an error
7. what the HC must have meant, that in order to preserve your right as to your share in the land or whatever money you are entitled for the same, the petitioner is ordered to reserve one flat in the under construction building in your favour till the partition suit is finally decided
8. construed in above manner, the HC order infact safeguards your rights. Because even if the defendant denies your right in the land, still he is made to reserve one flat in the new building in your favour. So for instance, if the suit is decreed in your favour such that you are ordered to be paid in money in lieu of your share in the land, then even if the defendant does not pay you the money, the blocked flat will still be to your rescue
9. the trial court will obviously determine whether you have any share in the open land and whether you are entitled to partition.
10.the trial court's rejection order also needs to be studied for a proper advise
11. not possible to predict what the outcome of the suit will be. In fact its impossible for any lawyer. The matter can only be decided by the court after considering the evidences of the parties
Well, the order of high court is always amenable to challenge before the supreme court and hence if you are aggrieved by the order file SLP in supreme court.
2. Constructions by co sharer in the undivided property during the pendency of partition suit is not so illegal and at the time of final decree if it is found that the constructions fell in your share then you are either entitled to it free of cost or for demolition.
3. As the high court has rightly restricted the party not to create any third party interest, the order of high court is not wholly against your interest.
You have filed the main suit for partition and separate possession of yor share in it, however the orders passed by the high court is with regard to injunction application alone.
You concentrate on your case in the trial court and fight for your rights, if you are not getting justice then you may prefer an appeal again on the aggrieved judgment
Please file a revision in High Court for the challenging the order passed or you may appeal in Division Bench if some thing has been left.
