Civil Procedure Code, 1908, Order 39, Rule 1, 2 -- Temporary injunction - Suit for declaration and permanent injunction - Ancestral property - Partition has not taken place and if without any partition, transfer of disputed property is done, then same would amount to multiplicity as well as complexity of litigation - Application allowed. ( Paras 7 & 8)..........
Civil Procedure Code, 1908, Section 114, Order 47, Rule 1 -- Review - Impugned order of allowing review petition has not adverted to an error apparent on the face of record, but has taken up an error on re-appreciation of case and counter case of parties - Review order records a few findings extending far beyond actual working out of prayers in a suit for partition - Order..........
Civil Procedure Code, 1908, Order 7, Rule 11, Hindu Succession Act, 1956, Section 6 -- Right of daughter - Partition suit - Suit lands cannot be said to be coparcenary property of plaintiff - Those are coparcenary property of her mother - But mother is not coming forward claiming partition - Plaintiff has not acquired any birth right - Therefore, there is no unobstructed..........
Specific Relief Act, 1963, Section 38 -- Permanent injunction - Plaintiff is in possession of plot in dispute - In the absence of any cogent and reliable evidence led by appellants to show that they are in possession of plot in dispute and that there had been a partition, possession of plaintiff rightly protected - Relief of permanent injunction rightly granted...........
Limitation Act, 1963, Article 110 -- Limitation - Partition suit - Plea of ouster - If the Co-sharer in possession, raises the plea of ouster or bar u/art 110 of the Act, it is incumbent on such co-sharer to prove that exclusion was to the knowledge of other co-sharers - Exclusion should be proved by tangible evidence - One cannot infer exclusion from enjoyment of..........
Partition -- Plaintiff had no knowledge about execution of partition deed of 1990 as alleged by defendants - Moreover, plaintiff is not a party to said partition deed - Courts below has rightly held that defendants failed to establish that plaintiff has received a sum of Rs.10,000 towards her share - As regarding plea of ouster taken by defendants, in the absence of..........
Easements Act, 1882, Section 13 -- Easement of necessity - An easement of necessity cannot be granted solely on the ground of convenience or advantage - Whether absolute necessity exists or not needs to be determined based on specific circumstances and environment of each case - One has to establish that by disposition, tenement was disintegrated, either through transfer,..........
Easements Act, 1882, Section 13 -- Easement of necessity - Mere pleading that there is no alternative way to enter the property is insufficient to establish an easement of necessity - An easement of necessity arises through severance and can be either expressed or implied - Foundation upon which statute recognizes an easement of necessity is unity of title of a property..........
Evidence Act, 1872, Section 112 -- DNA Test - Partition suit - In a suit for partition, prayer for DNA test to determine parentage of rival party is unwarranted - Forcing a person to undergo DNA test affects his right to privacy...........
Evidence Act, 1872, Section 112 -- DNA Test - Partition suit - Defendant No.1 disputes the parentage of defendant No.3 despite evidence of PW2/mother - Directing for DNA test of child on the face of admission of mother would be an insult to her motherhood and against the law enumerated in S.112 of Evidence Act - Application fort DNA test rightly dismissed...........
