Patna High Court - Orders
Mohan Prasad Sinha & Ors. vs Shiv Nath Prasad & Ors. on 7 May, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.548 of 2013
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1. Mohan Prasad Sinha, So late Hardeo Narain Sinha.
2. Most. Bibha Kunwar, w/o late Raman Prasad Singha.
3. Siwam Sinha, minor S/o late Raman Prasad Sinha, through mother and natural
guardian most Bibha Kunwar.
4. Saweta Kumari.
5. Salini Kumar.
6. Tannu Kumari, minor d/o late Raman Prasad Sinha, through mother and
natural guardian Most. Bibha Kunwar.
All are R/o Village- Barhariya, Pargana- Bara, P.S. - Barhariya, District-
Siwan.
.... Plaintiffs .... Appellant/s
Versus
1. Shiv Nath Prasad, S/o Sukath Prasad, R/o Village- Khanpur, Paragana- Bara,
P.O. & P.S.- Barhariya, district- Siwan.
....Defendant......Respondent 1st Set.
2. Aftab Alam.
3. Md. Mobin Anshari,
Both are sons of Ishlam Mian, r/o Village- Tetlaha Pashchim Tola,
Pargana- Bara, P.O. + P.S. - Barhariya, district- Siwan.
....Defendants ...Respondents 2nd Set.
4. Sawati Devi, D/o late Raman Prasad Singh, W/o Awinash Shrivastava, r/o
village- Barhariya, P.O. + P.S.- Barhariya, district- Siwan.
....Defendant......Rspondent 3rd Set.
5. Nar Narain Sinha.
6. Ram Narain Sinha.
7. Shyam Narain Sinha.
All are sons of Awadh Kishore Narain Singh.
.....Defendants.....Respondents 4th Set.
8. Krishna Chandra Asthana.
9. Gyan Chandra Asthana.
Both are sons of late Kaushal Kishore Narain Sinha.
10. Poonam Asthana.
11. Nitu Asthana
Both are daughters of Kaushal Kishore Narain Sinha.
12. Kritik Kumr Sinha, S/o late Braj Kishore Narain Sinha.
13. Manoj Kumar Sinha, S/o Kritik Kumar Sinha.
14. Most. Sheela Kunwar, W/o late Anjani Kumar Sinha.
15. Sanjay Kumar Sinha.
16. Arun Kumar Sinha,
Both are sons of late Anjani Kumar Sinha.
17. Sima Sinha, D/o late Anjani Kumar Sinha.
All are residents of Village- Barhariya, P.O.+ P.S. Barhariya, district-
Siwan.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Chandra Kant
For the Respondent/s : Mr. Ranjeet Kumar
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
C.A.V. ORDER
Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 2
12 07-05-2014This appeal filed under Order 43 rule 1(r) of the Code of Civil Procedure (hereinafter referred to as 'the Code') is directed against the order dated 20.6.2013 passed by the learned Sub-Judge 1st, Siwan in Title Suit No.289 of 2012, whereby the prayer for injunction made on behalf of the appellants as a plaintiffs in the suit, under Order 39 rules 1 and 2 of the Code, has been rejected.
The suit in question has been filed seeking a declaration that the sale-deeds dated 8.2.2012 executed by the defendants 4th set in favour of the defendant 1st set and by defendant nos.9, 13 and 16 in favour of defendants 2nd set each having an area of 16 dhurs appertaining to plot nos.1692 and 1693 situated at Mauza Barhariya in the district of Siwan be held void, forged and fabricated document not binding the plaintiffs. The plaintiffs also sought a declaration of their title and possession over the suit property along with defendant no.4 and that the interference in their possession by the defendants 1st and 2nd set be held illegal. A prayer for temporary injunction restraining the defendants 1st and 2nd set from causing damage to the shops situated over the plots and for restraining them from realizing rent or from altering the nature and character of the suit land in any manner until disposal of the suit was also made. While the suit was pending adjudication, the plaintiffs filed an Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 3 application under Order 39 rules 1 and 2 of the Code complaining destruction of shops of the defendant 1st set on the strength of the sale-deeds, with a prayer to restrain them and which was rejected vide the order impugned and hence this appeal.
A copy of the plaint has been annexed at Annexure-1` to the present appeal which contains the family genealogy. According to the plaintiffs, one Kanhai Sinha was the common ancestor of the plaintiffs and the vendors of the sale-deeds. The said Kanhai Sinha was survived by two sons, namely, Imrit Lal and Laxmi Narain Sinha. Laxami Narain Sinha was survived by four sons, namely, Bramhdeo Narain Sinha, Hardeo Narain Sinha, Braj Kishore Narain Sinha and Awadh Kishore Narain Sinha. It is stated that Bramhdeo Narain Sinha died in the state of jointness along with his three brothers and after his death the three brothers separated and partitioned the ancestral property among themselves. According to the plaintiffs, whereas plot nos.1566 and 1518 having an area of 2 katha and 2 dhurs fell in the share of Awadh Kishore Narain Sinha, the plot nos.1559, 1560 and 1561 having an area of 2 kathas 2 dhurs fell in the share of Braj Kishore Narain Sinha and plot nos.1692 and 1693 fell in the share of Hardeo Narain Sinha. According to the plaintiffs, by such internal partition amongst the three brothers Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 4 by way of convenience, they came in possession over their respective shares.
It is thus the case of the plaintiffs that as plot nos.1692 and 1693 fell in the share of Hardeo Narain Sinha, the vendors, i.e. defendant nos.5, 6 and 7 in so far as the sale deed executed in favour of the defendant 1st set is concerned and defendant nos.9, 13 and 16 in so far as the sale-deed executed in favour of the defendants 2nd set is concerned, had no jurisdiction to execute the sale-deeds. This contention has been advanced by the plaintiffs in paragraph 4 of the plaint. It is further the case of the plaintiffs that the 2 plots having fallen in the share of Hardeo Narain Sinha, on a mutual partition amongst the sons of Hardeo Narain Sinha the area of the plots which is the subject-matter of the suit, fell in the share of the plaintiffs.
The defendants 1st and 2nd set appeared in the suit and filed a joint written statement. While admitting to the mutual partition amongst the 3 surviving brothers as stated by the plaintiffs, they have further stated that although the other ancestral property was divided amongst the three brothers but the suit property, i.e. plot nos.1692 and 1693 remained in joint possession and each of the brothers, i.e. Hardeo Narain Sinha, Braj Kishore Narain Sinha and Awadh Kishore Narain Sinha were in joint possession of the same with each having a share to Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 5 the extent of 16 dhurs in the total area of the 2 plots which was 48 dhurs. It is thus the stand of the contesting defendants that the story introduced by the plaintiffs that the suit plots fell in the share of Hardeo Narain Sinha is not correct. It is further the contention of the defendants that the contention of the plaintiffs that the suit area fell in their share is also not correct inasmuch as a portion of plot nos.1692 and 1693 had been sold by the brother of the plaintiffs and since the plaintiffs have not chosen to arraign his brothers, the suit is even otherwise hit by non- joinder of parties.
I have heard Mr. Chandra Kant, learned counsel appearing on behalf of the plaintiffs who has referred to the pleadings made in the plaint and the Pleader Commissioner's report present at Annexure-7, to submit that the shops are admittedly standing on the suit plot and any attempt by the defendant 1st and 2nd sets to alter the nature of the suit property has to be restrained. He thus submits that since the very title of the defendant nos.5, 6 and 7 and 9, 13 and 16 to execute the sale-deeds has been questioned by the plaintiffs, hence until such time that the issue is resolved, the defendants should be restrained from making any alteration over the vended plots.
The argument of Mr. Chandra Kant has been contested by Mr. Ranjeet Kumar, learned counsel appearing on behalf of Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 6 the defendants 1st and 2nd sets who are vendees of the sale-deeds in question and Mr. Ranjan Kumar Dubey, learned counsel appearing on behalf of the vendors who are defendant nos.5, 6 and 7 and 9, 13 and 16 respectively. The sum and substance of the arguments advanced by learned counsel in opposition of the prayer for injunction has been that the plaintiffs have not approached with clean hand inasmuch as the Kirayanama placed on record are documents of doubtful character and the very fact that the brother of the plaintiffs has executed a sale-deed with regard to a portion of the suit property, demolishes the argument of the plaintiffs, that the suit land fell in their share. It is submitted that the defendants 1st and 2nd set being the bona-fide purchasers of the suit property, they should be permitted to make constructions over the vended plots without causing any damage to the existing shops and that the defendants would claim no equity for the construction even if they ultimately are found unsuccessful in the suit.
I have heard learned counsel for the parties and I have perused the records. This matter was earlier heard on 3.9.2013 and this Court while issuing notice to the respondents had directed the parties to maintain status quo as to the suit property as existing on the date of the order. The parties have appeared through counsel as noted above. The relief prayed in the suit has Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 7 been discussed hereinabove and requires no reiteration.
The only issue which arises for consideration is whether the vendors who are defendants 1st and 2nd sets in the court below and respondent nos.1 to 3 in the present appeal, have a right to construction on the strength of the sale-deeds or the plaintiffs have made out a case for injunction.
It is also to be seen whether the plaintiffs have made out a case for indulgence on the basis of the cardinal principles governing a prayer for injunction. That there are shops standing on the suit plots is manifest from the Pleader Commissioner's report and although the defendants have stated that they have objected to the report and that the suit property is a vacant piece of land and that the defendant-purchasers are not causing any damage to the existing shops or to the right of the plaintiffs to collect rent but the primary issue here is:
(a) Whether there is any prima-facie case in favour of the plaintiffs;
(b) whether the balance of convenience lies in their favour and
(c) whether they would suffer irreparable loss.
Before proceeding further, I would like to reproduce the response of the defendants 1st and 2nd sets who are the purchasers of the sale-deed and respondent nos.1 to 3 herein, in Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 8 reply to the averments made by the plaintiffs in paragraph 4 of the plaint regarding partition of the ancestral property and that the suit plots fell in the share of Hardeo Narain Sinha. The written statement filed by the defendants 1st and 2nd sets is placed at Annexure-2 and the reply to paragraph 4 of the plaint is found at paragraphs 9 and 10 of the written statement which runs as follows:
9& ;g fd C;ku eqnbZ;ku eqUnjts nQk ua0 4 vthZukfyl xyr gSA gjnso ukjk;.k flUgk] czt fd'kksj ukjk;.k flUgk oks vo/k fd'kksj ukjk;.k flUgk us l;rdjkjh uEcjku dk dksbZ rdlhe vkil esa ugh fd;k oks u ,sls foHkktu ls losZ uEcj 1692] 1693] 1566] 1518] 1559] 1560 oks 1561 dk ugh gqvkA gjfxt losZ ua0 1566 oks 1518 jdok 2 dV~Bk 2 /kwj vo/k fd'kksj ukjk;.k flUgk oks losZ ua0 1559 oks 1560 jdok 2 dV~Bk 2 /kwj czt fd'kksj ukjk;.k oks losZ ua0 1692 oks 1693 dh 2 dV~Bk 2 /kwj ,jkth gjnso ukjk;.k ds fgLls esa iM+h oks u mudk dCtk gqvkA 10& ;g fd c;ku eqnbZ;ku ckor rdlhe tqeys uEcjku xyr gSA ge eqnkyge ;g dcwy djrs gS fd losZ ua0 1692 oks 1693 ij lHkh iV~Vhnkjku dk eqrkfod lqfo/kk ds dCtk Fkk A + In the same context I would also refer to the statement of the defendants 1st and 2nd sets placed at paragraph 40 of the written statement.
40& ;g fd gjnks losZ uEcjku 1692 oks 1693 cM+gfj;k cktkj esa Fkk oks cM+gfj;k esa jft"V~zh dpgjh] Fkkuk] flusek gkSy oks cM+k cktkj Fkk ysgktk bu gjnks uEcjku dk rdlhe ugha gqvk oks ;g r; gqvk fd ckn esa yacs lM+d gj Qjhd dks ,jkth fgLls esa nsdj oks jkLrk vkenjQ~r nsrs gq, rdlhe fd;k tk;sxkA oks blh [;ky ls gjnks uEcjku bteky jg x;s oks eqrkfod lgwfy;r ds mudk dCtk jgrk pyk vkrk gSA A plain reading of the contention of the plaintiffs as Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 9 found in paragraph 4 and the reply made by the defendants 1st and 2nd sets at paragraph 9 and 10 as well as paragraph 40 of the written statement does manifest that whereas it has been the consistent stand of the plaintiffs regarding previous partition of the suit plots, it is the consistent reply of the defendants 1st and 2nd sets that the suit property is a joint property and the descendants of Hardeo Narain Sinha, Braj Kishore Narain Sinha and Awadh Kishore Narain Sinha have divided the property amongst themselves and using it as per their convenience, meaning thereby the suit property is joint.
The admission by the defendant-purchasers itself that the suit property continues to be a joint family property and having been mutually partitioned amongst the three brothers, is being used by their descendants as per their convenience by itself creates a prima-facie case in favour of the plaintiffs for seeking injunction while taking it away from the defendant- purchasers. Even if there would not be any irreparable loss suffered by the plaintiffs by construction being made by the defendant-purchasers on the basis of the sale-deeds, yet the balance of convenience does lie in favour of the plaintiffs.
Without expressing any opinion on the rival contentions rather even going by the admission of the defendants themselves and treating the suit property as a joint family Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 10 property as also for a moment assuming for sake of argument that the vendors of the defendants 1st and 2nd sets had a right to transfer their share, yet they had no right to transfer a particular and specific piece of property. Law stands well settled in this regard and reference is made to the judgment reported in 2009(4) PLJR (SC) 225 (Gajara Vishnu Gosavi vs. Prakash Nanasahed Kamble).
Thus even for the sake of assumption if it is accepted for a moment that the suit property is a joint property and that the vendors of the defendants 1st and 2nd sets had the right to transfer their share, yet they could not have transferred a particular portion of the joint property. Whether the property was joint or there was a previous partition are matters which are still to be adjudicated in the suit and this Court would refrain from expressing any opinion but while saying so this Court is not persuaded with the arguments of the defendants 1st and 2nd sets regarding their right to construction on the strength of the sale-deed when they themselves have admitted the property to be a joint property of their vendors.
For my reasons assigned hereinabove I find that the trial court has grossly erred in rejecting the prayer for injunction made by the plaintiffs who have made out a claim for injunction as against the defendants 1st and 2nd set who are the purchasers. Patna High Court MA No.548 of 2013 (12) dt.07-05-2014 11
However considering that there is a dispute as to whether the defendant-purchasers have gained possession over the suit property, this Court while upholding the prayer of the petitioners would confirm the order of status quo passed on 3.9.2013 and the contesting parties are restrained from making any construction or making any alteration or changing the physical feature of the suit property during the pendency of the suit. The plaintiffs' right to collection of rents from the shops situated over the suit property would remain unaffected.
In the result the order impugned dated 20.6.2013 passed by the Sub-Judge 1st, Siwan in Title Suit No.289 of 2012 is set aside and this appeal is allowed.
I.A. No. 5366 of 2013 and I.A. No.8408 of 2013 are accordingly disposed of.
Considering the nature of the dispute the trial court would be well advised to consider and dispose of the suit itself, without granting any undue adjournment to either of the parties, expeditiously and preferably within a period of one year from the date of receipt/production of a copy of this order.
(Jyoti Saran, J) SKPathak/-