TMI Blog1991 (2) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... The disputed property is an undivided family dwelling house of the plaintiffs and other co-sharers. Bibhuti transferred his interest by virtue of an Indenture of lease dated 19-6-89 in favour of the defendant-Dream Land Apartments. Similarly, by virtue of another deed the heirs of Rashbehari transferred their interest by virtue of a deed of lease on the same date in favour of the defendant. Both these deeds were intended to lease out the shares of those co-sharers for a period of 999 years. About a month before this long-term lease a monthly tenancy was created in favour of the lessee and possession of the leasehold property was delivered to him. The plaintiffs in essence filed the suit under Section 44 of the Transfer of Property Act seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intent behind provision. The whole intention is that the Court will not by an ex parte order prejudice the interest of a party who is not before the Court unless the Court finds that the issue of ad interim injunction is indis-pensible. That is all the more reason why the Legislature requires the Court to record reasons for granting an ad interim injunction. In the instant case, the matter was not dealt with ex parte. On the contrary, the petitioner had filed a petition of objection in the court of appeal below against the plaintiffs' petitior for ad interim injunction filed in the court of appeal below. Evidently, therefore, the parties were before the Court and the Court had opportunity to hear both the sides to pass the order now ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding in the Court of Appeal below. When the result was found to be unfavourable he turned round to challenge the said order on the technical ground. Let us assume for argument's sake that the plaintiffs cannot be permitted to look into the petition of objection filed by the defendant. Nevertheless, this is a fit case where ad interim, injunction may be granted on the basis of the materials available before the Court. The lease deeds would show prima facie that there were kitchen, bath, privy etc. in the disputed house and that undivided share of a house was sought to be leased out by the lessors. The defendant cannot be heard to say that there is prima facie no material to show that it was an undivided family dwelling house. The brot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the share transferred. A co-sharer is entitled to exercise his possession over every portion of his property. In Surendra Nath v. Ram Chandra, (1971) 75 CWN 195, this High Court went so far as to say that a stranger-purchaser is reduced to the position of a trespasser. His purchase vests in him title only and gives him a right to sue for partition and nothing more. Section 44 of the Transfer of Property Act negatives his claim to possession before partition. Section 4 of Partition Act spells out his right to sue for partition. Former is the limit and the latter is extent of what he had acquired by purchase. Supreme Court virtually gave a sanction to the legal proposition propounded in Surendra Nath's case (supra). In Dorab Cawas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
