Petitioner sought writ relief under Article 227 challenging rejection of injunction application in a partition suit. The learned Single Judge held that there were concurrent findings against the petitioner and no merit to interfere, dismissing the writ application.
Writ application under Article 227 of the Constitution was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16303 of 2012
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Ghan Shyam Kumar Thakur son of Sri Deo Thakur(deceased) resident of Mohalla-Nai Bazar Town, P.O. P.S. & Disstrict Muzaffarpur
.... .... Petitioner/s Versus
Sons of Sri Udai Shankar Thakur, all resident of Mohalla-Nai Bazar (Purani Bazar), Town, P.O. P.S. & District-Muzaffarpur
.... .... Respondent/s ====================================================== Appearance :
For the Petitioner/s : Mr. Nirmal Kumar Sinha-3, Adv.
For the Respondent/s : ……………………
====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER
This application under Article 227 of the Constitution of
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India filed by the plaintiff-petitioner being aggrieved by order dated 10.09.2009 passed by learned Additional District Judge 5th , Muzaffarpur in Misc. Appeal No. 2 of 2007 whereby the learned lower appellate Court while dismissing the appeal preferred by the petitioner has been pleased to uphold and confirm the order dated 19.1.2007 passed by learned Sub Judge 5, Muzaffarpur in Partition Suit No. 156 of 2003 whereunder the application of the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’), seeking to injunct the defendants from alienating any part of suit property, has been rejected. The plaintiffs and the defendants are lineal descendants from a common ancestor Damodar Kumar Thakur.
It is the case of the petitioner that of the three sons of late Damodar Thakur whereas one namely, Krishnadeo Thakur separated from the brothers, the other two brothers namely Hardeo Thakur and Sridev Thakur remained in the state of jointness.
The defendants are descendants from Hardeo Thakur and the plaintiff are descendants from Sridev Thakur. The suit in question was filed by the plaintiff-petitioner along with respondent Nos. 15 and 16, seeking partition in the suit property. According to the petitioner though separation has taken place amongst the parties but the land in question which is the
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subject matter of the suit had not been partitioned.
The claim has been contested by the defendants denying jointness.
Pending suit proceedings, the application under Order 39 Rules 1 and 2 of the Code read with Section 151 thereof was filed by the plaintiff seeking to restrain the defendants from alienating the suit property.
The learned trial court upon consideration of the document including the Khatiyan which showed the property in question to be recorded in the name of Hardeo Thakur and the son of his brother Sri Sridev Thakur namely Mukund Murari Thakur and upon perusal of the deed of relinquishment executed by the Mukund Murari Thakur in favour of Hardeo Thakur, the father of the defendants dated 30.12.1976, did not find merit in the prayer of the plaintiff-petitioner for grant of injunction. The trial Court while rejecting the prayer has recorded that certain sales had made by the plaintiffs also. The appellate Court after taking into consideration the documents on record also did not find that the prayer of the petitioner satisfied the pre-requisites to grant of injunction. Another relevant factor is that the executants of the Ladavi namely Mukund Murari Thakur who is also a plaintiff in the Court below has not chosen to question his own deed of
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relinquishment.
In view of the circumstances noted herein above as also there being a concurrent findings by the Court below on the prayer for injunction, this Court in exercise of power under Article 227 of the Constitution of India would not interfere with the same.
This writ application is dismissed.
It goes without saying that the transactions whatever in relation to the property which is the subject matter of the suit proceedings would be governed by the final outcome of the proceedings.
(Jyoti Saran, J)
Bibhash/-
2 issues framed by the court
Whether the High Court should exercise its supervisory jurisdiction under Article 227 to interfere with the concurrent findings of the trial and appellate courts on the prayer for injunction in a part
Whether the refusal to grant an injunction against the alienation of suit property was legally sustainable given the findings on jointness and the evidence on record.
3 provisions across 2 enactments
Ghan Shyam Kumar Thakur
Udai Shankar Thakur
Manish Kumar Thakur
Anurag Thakur
Ashish Thakur
Rekha Mahto
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
