The present appeals have been filed against the orders passed by
the High Court, vide which the order passed by the Trial Court was set aside
by the learned Single Judge. The brief facts of the case
are that a civil suit was filed by Sheela widow of Narendra for
declaration, partition and separate possession of the family property.
In the aforesaid suit, counter claim was filed by the defendants. The preliminary
decree was passed by the Trial Court on 27.02.2012 determining the shares of
the plaintiff and defendant nos.1 to 8. The defendants100 were restrained from alienating
the suit property till partition takes place by metes and bounds.
The preliminary decree passed by120 the Trial Court was not challenged by the plaintiff and defendant
nos.1 to 8. Defendant no. 9 was held to be having no right, title or claim in
the suit property. The defendants were directed to demolish the construction
raised in violation of the Municipal Laws.
It is the aforesaid preliminary decree
which was challenged only by the defendant no. 9, namely, the present appellant
before the High Court. The appeal was dismissed, while modifying the operative
part of the200 order of the Trial Court only to the extent that the
defendant nos. 2 and 9 were directed to demolish the construction on the suit
plot forthwith. The issue was sought to be raised only by the
appellant, who is240 not a member of the family as such but
is claiming his rights through some of the co-sharers. The plea of the
appellant was that the respondent no. 2 had transferred his share to him
with the partition of the property amongst the plaintiff and defendant nos.1 to
8, his rights are adversely affected as he has spent huge amount300 in raising construction on the
plot.
After hearing the learned counsel for the parties, in
our view, the order passed by the Trial Court passing the preliminary
decree in a partition suit as upheld by the High Court, does not deserve
interference by this Court as admittedly there is no challenge to
the same by any of the co-sharers of360 the property in dispute with reference to their respective
shares. The final decree is yet to be passed. At that stage, the
property will be divided by metes and bounds.
The preliminary decree is being contested only by the appellant400 who claimed that defendant no. 2
had transferred his share to him. In some part of the property, two residential
houses are located which are stated to be in occupation of respondent
no. 2 and respondent no. 3 whereas on the other part a commercial complex
has been constructed, in which the appellant is claiming interest.
We have no doubt that in the
process of passing final decree for partition of the property by metes and
bounds, the court below480 will consider all aspects in terms of settled principles
of law for that purpose. In case any property in possession500 of any of the co-sharers comes to
his share, it can very well be protected.
In our view, demolition of the already
constructed buildings may not be in the interest of any of the parties
as the same can be considered at the time of passing of final
decree, with reference to the construction, authorised by the local authority. We
are not expressing any opinion on the illegal construction.
For the aforesaid reasons, the impugned orders of the High Court
are modified to the extent mentioned above. The appeals are accordingly
disposed of. The Trial Court will proceed further for600 passing the final decree. There
shall be no order as to costs. As the matter is quite old,
the Trial Court is directed to expedite the disposal of the case. We may
clarify that we have not expressed any opinion on the merits of the
controversy.
We have heard the learned counsel
appearing for the parties. The appellant has been convicted
for the offence punishable under Section 302 of the Indian Penal Code.
The conviction of the appellant by the Sessions Court has been confirmed in
appeal by the impugned judgment of the High Court. We must refer700 to the case of the prosecution in brief. PW-2, the brother of the
deceased, is the first informant. PW-3720 is from the same village in
which the appellant and the deceased were residing. According to the
case made out in the complaint, PW-1 was at the grocery shop of PW-2 with one Suresh.
We may note here that date of the incident is 12th November, 1997.
According to the prosecution case, the deceased started proceeding towards his
field at about 3.00 p.m. He was followed by the accused with a bamboo
stick in his hand.800 The accused came back near the shop around 6.00 p.m. with a stick
in his hand. According to the prosecution, the appellant confessed
before PW-2, PW-3 and one Suresh that he had assaulted the deceased with a
stick.840 The motive
pleaded by the prosecution is that on 28th October, 1997, the appellant, Ashok and
Bheema consumed liquor and a quarrel started amongst them. The Sarpanch lodged
a complaint. In the said proceedings, the deceased took side of Ashok.
With the assistance of the learned counsel appearing for the
parties, we have perused the notes of900 evidence and other documents on record. The prosecution has
relied upon extrajudicial confession of the accused allegedly
made before PW-2 and PW-3; recovery of axe at the instance of the accused
coupled with evidence of PW-5 who claimed that the same axe was taken away by
the appellant from her house; and blood stains found on the960 clothes on the person of the
appellant.
