Court : Rajasthan
Decided on : Apr-30-1982
Reported in : AIR1982Raj235; 1982()WLN284
..... invoked by the plaintiff and the plaintiff could not withdraw a suit in the circumstances of that case. it was further held that the request of the defendant under section 3(1) of the partition act must be enquired into by the trial court and accordingly the appeal was allowed and the trial court was directed to restore the suit and frame necessary issues ..... a distinction between applications filed under order 23, rule i, sub-rule (1) and sub-rule (2 ..... , therefore, should not be allowed to be taken away by the appellant under the garb of the present prayer of withdrawal of the suit.4. learned counsel for the parties were, therefore, heard at length on the application filed under order 23, rule 1 sub-rule (1), c.p.c.5. it was contended by the learned counsel for the appellant that there was ..... is going on between the parties for a period of about 17 years and when the appellant considered that he was not going to succeed in the appeal, he cannot set at naught the long proceedings of all this period, by withdrawing the suit without any ryhme or reason. reliance is placed on eknath bin ranoji v. ranoji bin bowaji, (1911) ilr .....Tag this Judgment!
Court : Mumbai
Decided on : Mar-09-1982
Reported in : AIR1982Bom274; (1982)84BOMLR331; 1982MhLJ545
..... court put the matter beyond controversy. the court has no power, other than the power conferred under the partition act to order sale of property in a partition suit. the suit property cannot, therefore, be ordered to be sold, whether by public auction or by an auction between the parties to the suit.13. mr. phadkar contended that if i would not order sale of ..... dismissed. he placed reliance upon the judgment of a learned single judge of the calcutta high court in chanta kali v. radha rani debt. (1966) 72 cal wn 837. the learned judge expressed the view that in cases not contemplated under the partition act the court had inherent power to direct a sale. he said, however, that the was bound by the decision in ..... the submission he referred to the judgment of a division bench of the andhra pradesh high court in ramaprasada rao v. subbaramaiah air 1958 ap 647, the point before the court was whether it had power dehors the provisions of the partition act od direct the sale of joint family property and divide the proceeds between the members, the court observed, ................ 'but many ..... . 2. in the negative, it cannot be divided by metes and bounds. 3. in the negative. 4. not pressed, inasmuch as it is common ground that the suit is not under the partition act. 5. in the negative. 6. does not arise. 7. to 10: not pressed.20. in the result, the suit is dismissed. the defendants do not press for costs; there shall .....Tag this Judgment!
Court : Orissa
Decided on : Jul-14-1982
Reported in : AIR1983Ori252
..... further found that raghunath died 40 years back; but was of the view that the widow and the daughters succeeded raghunath and so, the plaintiff was entitled to relief under section 4 of the partition act.5. defendant 1 carried an appeal. therein his point was that in view of the finding of the learned trial judge that raghunath died 40 years back, the daughters ..... 1. the sale deed is assailed as nominal and fraudulent. it has further been asserted that defendant 1 being a stranger, the plaintiff was entitled to get the property reconveyed under section 4 partition act. the cause of action for the suit is alleged to be the threats of defendant 1 to dispossess the plaintiff.3. defendants 2 and 3 supported the plaintiff. the ..... was erroneous in law.6. the appellate judge rightly framed the point as 'the only point for consideration in this appeal is whether the plaintiff can maintain a suit under section 4 of the partition act'. he, however, fell into error in not permitting the plaintiff-respondent before him to challenge the correctness of the finding of the trial judge regarding the time of ..... r.c. patnaik, j.1. this second appeal is directed against the appellate decree passed by the subordinate judge, bhubaneswar dismissing the plaintiff's suit under section 4, partition act, reversing the decree granted by the munsif, bhubaneswar.2. raghunath jena, the original owner, died 16 or 17 years back leaving behind bela (defendant 2), the widow and jatani (plaintiff) .....Tag this Judgment!
Court : Kolkata
Decided on : Oct-14-1982
Reported in : AIR1983Cal265
..... a valuation of the shares of all the parties and to sell the shares to the shareholder offering the highest price above the valuation made by the commissioner of partition. there were also other directions.2. the application made in the court below, out of which the present appeal arises, was made under section 3 of the partition act by the appellant somnath bose.3. mr ..... for sale of the property amongst the co-sharers failing which the same to be sold by public auction to outsiders. therefore, section 2 of the said act could not strictly be applicable to the said application. under section 2 of the partition act a share could have been sold only to an outsider by that was not the case here. mr. gour roy chowdhury, learned ..... for sale of the property in the manner as prayed for such order should be limited to sale of the property amongst the parties to the suit and only upon failure thereof, such sale be made to outsiders.5. it appears that the appellant and his brothers and sisters wanted sale of the property amongst the co-sharers which is the order ..... that was made by the learned judge in the order under appeal. in our opinion, the appellant cannot now turn round and take advantage of .....Tag this Judgment!
Court : Kolkata
Decided on : Jan-18-1982
Reported in : AIR1982Cal376,86CWN346
..... in the suit property to gostha behari sadhukhan, father of the petitioner. on or about june 27, 1959 the opposite party filed an application under section 4 of the partition act for pre-emption of the sale which was allowed. later on the opposite party was directed to deposit rupees 9,000 towards valuation of the property to be pre-empted.3. a kobala was thereafter ..... for partition by appointment of a commissioner to effect partition by metes and bounds has been made. if an application under section 4 of partition act is made ..... 4 of the partition act would be when application for final decree ..... the partition act in court directed the sale of 1/4th share of the petitioner in favour of the opposite party and in fact, a sale deed was executed by the court in favour of the opposite party.8. in surendra nath achar v. ram chandra hazra, reported in (1971) 75 cal wn 195 it is held that the proper stage for making the application under section .....Tag this Judgment!
Court : Chennai
Decided on : Jan-28-1982
Reported in : (1982)1MLJ346
..... munsif directing the sale of the two houses in question, is revisable or not under the provisions of section 115, code of civil procedure?section 2 of the partition act (iv of 1893), reads as follows:whenever any suit for partition in which, if instituted prior to the commencement of this act, a decree for partition might have been made, it appears to the court that, by reason of ..... of one of the two houses, which have been now directed to be sold by virtue of the above order under revision can satisfy his claim, the lower court has not applied its mind as per the provisions of section 2 of the partition act.5. on the other hand, mr. piandi, learned counsel for the respondent would rely only on the ratio deddendi of ..... the decision reported in ramaprasada rao v. subbammaiah (1957) 2 an. w.r. 488 : a.i.r. 1958 a.p. 647, and submits that the order under revision is not revisable under the provision of section 115, because, it ..... , in accordance with law.6. mr. shyamalam, learned counsel for the revision petitioner, also points out that as per the ratio deddendi imbedded in the decision reported in muthusami gounder v. kaithama-lai : (1976)2mlj373 , unless there is a petitition for sale by the plaintiff, who is admittedly having only 1|12 share in the property, this question can also be .....Tag this Judgment!
Court : Gujarat
Decided on : Jan-25-1982
Reported in : (1983)1GLR32; 51STC115(Guj)
..... can be withdrawn by the plaintiff after he has himself requested for a sale under section 2 of the partition act and the defendant has applied to the court for leave to buy at a valuation the share of the plaintiff under section 3 and thereby acquired an advantage or privilege. in that view of the matter ..... rejecting the said application, the calcutta high court observed as follows : 'there does not appear to be any provision in the income-tax act under which a party who has caused a reference to be made can be allowed to withdraw it after the tribunal has made a reference to this court. a ..... defendant had come into existence at the point of time when withdrawal was sought. 14. in r. ramamurthi aiyar v. rajeswararao : 1scr904 the suit was for partition of a cinema which the parties owned in equal shares. one of the prayers in the suit was that the court in exercise of its ..... to defeating, in some sort, a vested right, if any, which has come into existence in favour of the other party. 19. a contrary view appears to have been taken in karnani industrial bank ltd. v. commissioner of income-tax, west bengal : 30itr16(cal) . in that case, the reference was made at ..... circumstances, and for that purpose, to afford a hearing to the party-opponent. in support of this submission, mr. pathak invoked the aid of the decisions in karnani industrial bank ltd. v. commissioner of income-tax : 30itr16(cal) and k. ch. venkataratnam v. commissioner of gift-tax : 95itr277(ap) . 2. .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Jan-12-1982
Reported in : AIR1981SC1463; (1982)26CTR(SC)415; 133ITR690(SC); 1982(1)SCALE11; (1982)1SCC447; 3SCR9; 1982(14)LC751(SC)
..... was not correct. accordingly the claim of the assessee under section 171 of the act that there was a partial partition was rejected. thereupon on an application of the assessee made under section 256(1) of the act, the two questions set out above were referred by the tribunal to the high court for its opinion.5. after hearing the parties, the high court recorded its answer to the ..... such under the act until a claim is made under section 171(2) that there has been a partition-total or partial in it. the partition contemplated under section 171 of the act may be either total or partial. here there is a departure made from section 25a of the 1922 act which was concerned with a total partition only. in sub-sections (2) to (5) and (8) of section 171 of the act, the word 'partition ..... ' is qualified by words total or partial'. the explanation to section 171 of the act to which we shall .....Tag this Judgment!
Court : Orissa
Decided on : Dec-13-1982
Reported in : AIR1983Ori54
..... . admittedly nityananda has three sons and three slaughters. admittedly none of the sons was major and married on 36-9-1970, the appointed day under section 37(b) of the act. by a registered deed of partition dated 31-12-1965/13-1-1986, the lands in village gunderpur were allotted to the shares of the sons and the daughters.3. a suo motu ..... few lines.20. mr. basu, learned counsel appearing for the petitioners, vehemently contended that since the partition was before the appointed date, i.e., 26-9-70 there is no family in existence as contemplated under section 37 (b) of the act and the effect of the partition was that the members became absolute owners of the land allotted to them individually. as already observed ..... learned brother patnaik, j. i agree that judges 'do not make law but interpret it'. in doing so, as pointed out by learned hand, j. in lehigh valley coal co. v. yensavage, (1914) 235 u. s. 705, statutes 'should be construed not as theorems of euclid, but with imagination of purpose behind them'. mukherjea, j. (as the learned judge then was ..... determination of the ceiling area under the provisions contained in chapter iv of the act, notwithstanding partition prior to the appointed day, i. e., 26-9-1970.15. in view of our present pronouncement as to what the law is, it is unnecessary to give opinion on the earlier decisions of this court which have become final between the parties. there were also certain .....Tag this Judgment!
Court : Rajasthan
Decided on : Nov-11-1982
Reported in : 1982WLN(UC)309
..... .a. has neither recorded a finding that on application for temporary permit had been submitted by the state transport under taking under sub-section (1a) of section 68 f of the act nor has the rta sub-section (1c) of section 68 f of the act about the temporary permits ceasing to be effective as soon as the permits granted to the state transport ..... of specified in a scheme published under section 68 c of the act for the period intervening between the date of publication of the scheme & the date of publication of the approved or modified scheme and that in ..... is partly covered by a notified scheme and is partly covered by a draft scheme. in this regard shri vyas has pointed out that under sub-section (1a) of section 68-f of the act provision has been made for grant of a temporary permit to the state transport undertaking in respect of any area or route or portion there ..... . in view of the aforesaid decision of this court in shiv bus service v. rta jodhpur (supra) it can be said that the existence of an alternative remedy of revision under section 64 a of the act would not be a bar to a petition filed under article 226 of the constitution in a case where the grant of permits by ..... issued in favour of non-petitioners nos. 2 to 6 in pursuance of the said resolution are also quashed. in the circumstances of the case, the parties are left to bear their own costs in this writ petition. .....Tag this Judgment!