# Ritu Tomar v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** Writ-A No. 7531 of 2023
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ritu-tomar-v-state-of-u-p-ors-50485
- **Pages:** 3

## Headnote

A. Property Law - Entitlement to recover
arrears - Impleadment - Transfer of
Property Act, 1882 - Section 109 - Under
the provision of Section 109 of the Act of
1882 - transferee is entitled to recover the
arrears of rent on transfer of the property,
in case right to recovery of rent is also
transferred and further, he could also
maintain the suit for eviction on grounds
of arrears pending earlier. (Para 13)

As per sale deed dated 29.07.1989, there is no
dispute on the point that there is specific
mention of SCC Suit No. 64 of 1975 pending
before the SCC Court, Etawah for recovery of
rent and eviction. Once there is averment that
suit has been filed for recovery of rent and
eviction, and further, authority has been given
to subsequent purchaser to contest the case,
there is no dispute that it also includes right to
recover the rent. (Para 15)

B. Impleadment - Order XXII Rule 10, CPC
provides
that
in
case
of
assignment,
creation or devolution of any interest
during the pendency of a suit by the leave
of Court, suit may be continued by a
person upon whom such interest has been
devolved. (Para 22, 23)

While considering the application u/Order
XXII Rule 10, CPC, Court has only to be
prima facie satisfied for exercising its
jurisdiction
in
granting
leave
for
continuation of the suit and remaining
questions about the existence and validity
of the assignment or devolution can be
considered at the final hearing of the
proceedings. (Para 20, 21)

In present case, there is no doubt that interest
has been devolved in favour of Sri Govind Saran
Dixit (since deceased) after execution of sale
deed dated 29.07.1989. Further, sale deed is
having specific averment about the pendency of
SCC Suit No. 64 of 1975 for arrears of rent and
eviction, therefore, there is no illegality in the
order of trial Court dated 13.03.2023, affirmed
by
the
impugned
revisional
order
dated
26.04.2023. (Para 19, 24)

So far as second impugned order dated
26.04.2023 is concerned, the fact is that, during
the pendency of suit proceedings, Sri Govind
Saran Dixit-plaintiff died on 21.02.2018 and this
Court exercising the power u/Order I Rule 10,
CPC has directed legal heirs of Sri Govind Saran
Dixit to file application for impleadment u/Order
I Rule 10, CPC and Order VI Rule

## Text

6 All. Ritu Tomar Vs. State of U.P. & Ors.
439
be unlawful in the facts and circumstances
of the case as well as under provisions of
Section
6
of
Hindu
Minority
and
Guardianship Act, 1956, it cannot be held
that the custody of minor children with
father and grand-parents is against their
welfare or interest. They are receiving
education in proper manner and have
expressed their desire to live with their
father and grand-parents at their parental
home,
unfortunately,
the
relationship
between their parents are estranged and
instead of residing together and offering
their love and affection to the children, they
are living separately for their own reasons
and
justification.
The
paramount
consideration in such type of cases is
welfare of the children also and in facts of
present case, it does not permit the transfer
of custody of the minor children from their
father to mother. Therefore, the prayer
made in the petition is rejected.

15. However, the petitioner is at
liberty to raise her claim for custody of
children at Family Court and all necessary
claim are open to be raised before the said
forum or in other appropriate proceedings.

16. Having regard to the aforesaid
facts and circumstances, rule nisi issued
earlier is not required to be made absolute,
it is discharged. Keeping in view, the fact
that both the sides have offered visitation
right to the children to other party, in case
of retention or transfer of custody in favour
of the other and the welfare of the children
also requires that they should receive love
and affection of both parents which will
help in their emotional, mental and
psychological growth in proper manner.

17. Therefore, it is directed that the
petitioner Sarita Verma, mother of the
children have visitation rights over her
children once in a week and every
Sunday between 12 Noon to 05:00 P.M.
usually, at the place of her husband,
subject to proper arrangements made
between spouse and the father of the
children Rakesh Soni is bound to provide
the congenial atmosphere and facilitate
the proposed meeting between the mother
and her two children and would not
create any hindrance or obstacle in the
same and in case of his non-cooperation,
the petitioner will be at liberty to
approach S.H.O. concerned, who will
provide necessary arrangements, which
will ensure the compliance of the
direction of this Court with regard to
visitation
right
of
the
petitioner.
Respondent No.4 Rakesh Soni, the father
of the children will also facilitate the
WhatsApp and video call between mother
and the children in case,she desires at
least twice a week.

18. The corpus- Vaishnavi and Ram
Soni are permitted to go back to the place
from where they have been brought today
by respondent No.4-Rakesh Soni.

19. With above observations, the
habeas corpus petition is disposed of.
----------
(2023) 6 ILRA 439
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 7531 of 2023

Ritu Tomar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
440 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Sunil Kumar Yadav, Sri Yashpal Yadav

Counsel for the Respondents:
C.S.C., Sri Amit Shukla

A. Service Law - Transfer - It is not for
the employee to insist to transfer him/her
and/or not to transfer him/her at a
particular place. It is for the employer to
transfer an employee considering the
requirement. (Para 6)

Transfer and posting are within the domain of
the authority concerned and it is for the
authority to decide and determine as to where
an incumbent is to be posted and as to where
his/her services are to be best utilized. The
issue of convenience and inconvenience is also
to be examined by the authority concerned and
not by this Court. (Para 5)

Writ petition dismissed. (E-4)

Precedent followed:

Namrata Verma Vs St. of U.P. & ors., Special
Leave to Appeal (c) No(s). 36717 of 2017,
decided on 06.09.2021 (Para 6)

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard learned counsel for the
petitioner, Sri Amit Shukla, learned
counsel appearing on behalf of the
respondent nos.2 and 3 and the learned
Standing Counsel for the respondent
no.1.

2. The present petition has been
filed seeking a direction in the nature of
mandamus to be issued in favour of the
respondents to consider sympathetically
the posting of the petitioner to any
Primary School in her home district i.e.
Shamli.

3. It is the case of the petitioner
that she was appointed as an Assistant
Teacher in Primary School Pachpera,
Block Puranpur, District Pilibhit vide
appointment letter dated 30.11.2015.
She has been serving since more than 7
years in rural area and the Government
Order has prescribed condition of three
years
of
service
for
inter-district
transfer of Assistant Teacher and as
such, she had submitted her transfer
application in the year 2017-18. The
petitioner
has
also
moved
several
representations
for
transfer
from
Pilibhit to Shamli which are still
pending to be decided.

4. Learned counsel appearing on
behalf of the respondent nos.2 and 3
vehemently opposed the prayer as made
in the petition and argued that transfer
is not the right of the petitioner.

5. Transfer and posting are within
the domain of the authority concerned
and it is for the authority to decide and
determine as to where an incumbent is
to be posted and as to where his/her
services are to be best utilized. The
issue of convenience and inconvenience
is also be examined by the authority
concerned and not by this Court.

6. The Hon'ble Apex Court in the
case of Namrata Verma Vs. State of
U.P. and others [Special Leave to
Appeal
(c)
No(s).36717
of
2017,
decided on 06.09.2021] held that it is
not for the employee to insist to transfer
him/her and/or not to transfer him/her at
a particular place. It is for the employer
to transfer an employee considering the
requirement.

7. In view thereof, the present
petition is not maintainable and is
hereby dismissed.
6 All. Smt. Vishnu Kumari Vs. Sandeep Kumar & Ors.
441
----------
(2023) 6 ILRA 441
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 8227 of 2023

Smt. Vishnu Kumari ...Petitioner
Versus
Sandeep Kumar & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Praveen
Kumar,
Sri
Onkar
Nath
Vishwakarma, Sri Pradeep Kumar (Sr.
Advocate)

Counsel for the Respondents:
Sri Punit Bhaduria

A. Property Law - Entitlement to recover
arrears - Impleadment - Transfer of
Property Act, 1882 - Section 109 - Under
the provision of Section 109 of the Act of
1882 - transferee is entitled to recover the
arrears of rent on transfer of the property,
in case right to recovery of rent is also
transferred and further, he could also
maintain the suit for eviction on grounds
of arrears pending earlier. (Para 13)

As per sale deed dated 29.07.1989, there is no
dispute on the point that there is specific
mention of SCC Suit No. 64 of 1975 pending
before the SCC Court, Etawah for recovery of
rent and eviction. Once there is averment that
suit has been filed for recovery of rent and
eviction, and further, authority has been given
to subsequent purchaser to contest the case,
there is no dispute that it also includes right to
recover the rent. (Para 15)

B. Impleadment - Order XXII Rule 10, CPC
provides
that
in
case
of
assignment,
creation or devolution of any interest
during the pendency of a suit by the leave
of Court, suit may be continued by a
person upon whom such interest has been
devolved. (Para 22, 23)

While considering the application u/Order
XXII Rule 10, CPC, Court has only to be
prima facie satisfied for exercising its
jurisdiction
in
granting
leave
for
continuation of the suit and remaining
questions about the existence and validity
of the assignment or devolution can be
considered at the final hearing of the
proceedings. (Para 20, 21)

In present case, there is no doubt that interest
has been devolved in favour of Sri Govind Saran
Dixit (since deceased) after execution of sale
deed dated 29.07.1989. Further, sale deed is
having specific averment about the pendency of
SCC Suit No. 64 of 1975 for arrears of rent and
eviction, therefore, there is no illegality in the
order of trial Court dated 13.03.2023, affirmed
by
the
impugned
revisional
order
dated
26.04.2023. (Para 19, 24)

So far as second impugned order dated
26.04.2023 is concerned, the fact is that, during
the pendency of suit proceedings, Sri Govind
Saran Dixit-plaintiff died on 21.02.2018 and this
Court exercising the power u/Order I Rule 10,
CPC has directed legal heirs of Sri Govind Saran
Dixit to file application for impleadment u/Order
I Rule 10, CPC and Order VI Rule 17, CPC r/w
Section 151 CPC. Once impleadment of Sri
Govind Saran Dixit(since deceased) is valid in
law, therefore, his legal heirs are also having
right to be impleaded to contest the case. (Para
25, 26)

Writ petition dismissed. (E-4)

Precedent followed:

1. Amit Kumar Shaw Vs Farida Khatoon, 2005
AIR (SC) 2209 (Para 8)

2. Bhim Sen Wadhwa Vs Sri Om Prakash Batra &
ors., 2010 (2) ARC 360 (Para 8)

Precedent distinguished:

Sheikh Noor Vs Sheikh G.S. Ibrahim (Dead) by
Lrs., 2003 0 Supreme (SC) 712 (Para 6)