Allowed

Om Prakash Pd. and Ors. v. Birendra Pd. and Ors.

Patna HC16 May 2014MA/369/2012

Case brief

AI extract

What is this about?

The Patna High Court allowed the appeal against the rejection of an injunction petition under Order 39 Rules 1 & 2 CPC. The court restrained the respondent from alienating suit property during pending litigation, noting a prima facie case despite the lower court's finding on irreparable injury.

What did the court decide?

Injunction granted restraining respondent no. 1 from selling or transferring the suit property during the pendency of Title Suit No. 27 of 2011.

Om Prakash Pd. and Ors. Vs Birendra Pd. and Ors. — Property and Title | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Miscellaneous Appeal No.369 of 2012

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====================================================== 1. Om Prakash Prasad S/O Late Harihar Prasad R/O Village- Kharkhura Anchal Chandauti, P.S.- Delha, District- Gaya

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Suresh Prasad S/O Late Harihar Prasad R/O Village- Kharkhura Anchal Chandauti, P.S.- Delha, District- Gaya

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Babloo Prasad S/O Late Harihar Prasad R/O Village- Kharkhura Anchal Chandauti, P.S.- Delha, District- Gaya

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.... .... Appellant/s

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Versus

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Birendra Prasad S/O Late Harihar Prasad R/O Village- Kharkhura, Anchal- Chandauti, P.S.- Delha, District- Gaya.

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Shreemati Kiran Devi W/O Ashok Kumar Singh R/O Mohalla- Badki Delha Kharkhura Road, Town Gaya, P.S.- Delha, District- Gaya

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Shreemati Rambha Sharma W/O Anil Kumar R/O Village- Ark Dhibriya, P.S.- Tekari, District- Gaya

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Shreemati Pushpa Devi W/O Shashi Bhushan Kumar R/O VillageJalalpur Bhaya Tekari, District- Gaya

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Defendants/ Respondent/s

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====================================================== Appearance :

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For the Appellant/s : Mr. Surendra Kumar, Adv. For the Respondent No. 1 and 2 : Mr. Prithivi Raj Singh, Adv. For respondent no. 4 : Mr. Sajal K. Sinha, Adv. : Mr. Raj Kishore Prasad, Adv.

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====================================================== CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL ORDER

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14 16-05-2014 The plaintiffs-appellants have preferred this appeal against the order dated 1.5.2012 passed by learned Sub-Judge-III, Gaya in Title Suit No. 27 of 2011 by which the petition dated 28.3.2011 filed under Order 39, Rules 1 & 2 read with Section 151 of CPC for grant of injunction has been rejected.

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Patna High Court MA No.369 of 2012 (14) dt.16-05-2014

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The plaintiff filed the aforesaid title suit for declaration of title over Schedule-C property and defendant no.1 Birendra Prasad (respondent no. 1) has no right to execute Schedule-D property of the plaint.

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Respondent no. 1 filed Partition Suit No. 173/2000/41/2000 for partition of the joint family property with respect to Schedule-A property along with other property on 7.3.2000.

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After hearing both the parties aforesaid Partition Suit No. 173 of 2000 filed by respondent no. 1 was dismissed by the learned Sub-Judge VI, Gaya on 22.4.2009 holding that there is no unity of title and possession with the defendants/appellants. Even after dismissal of partition suit, defendant no. 1 has executed registered sale deed dated 11.2.2009 in favour of defendant no. 2 and on 29.12.2010 in favour of defendant no. 3 which have been mentioned as item No. 1 and 2 in Schedule-D of the plaint.

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The plaintiffs-appellants have also got knowledge that defendant no. 1-respondent no. 1 had executed sale deed on 1.3.2011 in favour of defendant no. 4 which is described as Item No. 3 of Schedule- D of the plaint. The defendant-respondent no. 1 has no right to alienate the Schedule- D property; as such the aforesaid sale deeds are void and not binding on the

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Patna High Court MA No.369 of 2012 (14) dt.16-05-2014

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plaintiffs/appellants. The petition was filed for grant of injunction to restrain defendant-respondent no. 1 to alienate schedule-C property which has wrongly been refused by the Court below.

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Learned counsel for respondent no. 1 has submitted that after dismissal of Partition Suit No. 173 of 2000 by the learned Sub-Judge- VI, Gaya vide judgment dated 22.4.2009, defendantrespondent no. 1 has filed First Appeal No. 134 of 2011 which is pending in this Court. He has further submitted that now the respondent no. 1 has no intention to sell the suit property.

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Heard learned counsel for the appellants, respondent nos. 1, and respondent nos. 2 and 4 who are purchasers. Even after service of notice, respondent no. 3 has not appeared.

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After hearing learned counsel for both the parties and on perusal of the material on record, it appears that respondent no. 1 had filed Partition Suit No. 173 of 2000 with regard to the land which is the subject matter of present Title Suit No. 27 of 2011 filed by the appellants. Partition Suit no. 173 of 2000 was dismissed by the learned Sub-Judge, VI, Gaya holding that the respondent no. 1 has failed to substantiate his claim in the suit property, as such Partition Suit No. 173 of 2000 was dismissed against which First Appeal No. 134 of 2011 has been filed by respondent no. 1 in this Court which is pending. Since it has

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Patna High Court MA No.369 of 2012 (14) dt.16-05-2014

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already been held that respondent no. 1 had no title and interest in the property mentioned in the suit, but he has transferred some land in favour of respondent nos. 2, 3 and 4 during the pendency of partition suit. Two sale deeds have been executed by respondent no. 1 after dismissal of partition suit no. 173 of 2000.

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Stay petition dated 28.3.2011 filed by the plaintiffsappellants was rejected, though it has been found that prima facie case is in favour of plaintiffs-appellants, but it has been held that there is no irreparable injury which can not be compensated by money.

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It appears that during the pendency of the partition suit and even after dismissal of partition suit, respondent no.1 has transferred the land in favour of respondent nos. 2, 3 and 4.

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Considering the facts and circumstances, in my opinion, the impugned order is not fit to be sustained. It is set aside. Respondent no. 1 is restrained from selling, transferring any of the suit property during the pendency of Title Suit No. 27 of 2011.

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Accordingly, this appeal is allowed.

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(Amaresh Kumar Lal, J)

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Kanchan/-

Om Prakash Pd. and Ors. v. Birendra Pd. and Ors.

Case brief

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Om Prakash Pd. and Ors. v. Birendra Pd. and Ors.

Case brief

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