Patna High Court - Orders
Sri Nathuni Singh & Ors vs Sri Chandrika Singh & Ors on 24 September, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.667 of 1995
SRI NATHUNI SINGH & ORS .
Versus
SRI CHANDRIKA SINGH & ORS .
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ORDER
22. 24.09.2010. Heard the learned senior counsel, Mr. S.S. Dwivedi appearing on behalf of the appellant and Mr. D.P. Sharma, the learned counsel appearing on behalf of the respondent on the Interlocutory Application No.5526 of 2004 and the supplementary affidavit dated 08.06.2010 at flag 'D'. The respondent have also filed counter affidavit and reply to supplementary affidavit.
(2) This Interlocutory application No.5526 of 2004 has been filed by the appellant under Order 39 Rule 1 & 2 of the Code of Civil Procedure praying therein to restrain the respondents from making any construction on the open land on Plot No.4474 of Khata No.337. According to the learned counsel for the appellant, the respondents are making construction over 9 decimals out of 12 decimals. In the supplementary affidavit which has been filed on 08.06.2010 at paragraph 2, it is stated that recently, they started construction of fresh 9 shops covering road-side of open land.
(3) In reply, the respondents have stated that no fresh construction is being made in the ground floor. Whatever construction was made was on the upper floor of the house where the respondent are residing. It 2 appears that the plaintiffs filed the aforesaid suit claiming 1/3rd share in the suit property measuring only 12 decimal. The respondents' claimed that the said property is self-acquired property. After trial, the learned trial Court dismissed the plaintiff suit finding that the property is self-acquired property of the respondents. The plaintiffs has filed this Appeal against the said Judgment and Decree dismissing the suit.
(4) The learned senior counsel appearing on behalf of the appellant submitted that the learned Court below has wrongly dismissed the suit and there is every possibility of the Appeal being allowed and, therefore if the respondents are not restrained from making any construction in the open land, the appellant shall suffer serious loss and irreparable injury.
(5) On the other hand, the learned counsel appearing on behalf of the respondents submitted that the respondents are not making any new construction and they have no intention to make any such new construction. The learned counsel are denying that any construction. Therefore, there is no question of granting injunction to the appellant.
(6) In view of the above facts that injunction application was filed in the year 2004 making allegation that the respondents are making construction which was not pressed and allowed to remain pending for last more 3 than 5 years and in the year 2010, a supplementary affidavit has been filed making the same allegation that recently respondents are making construction and the fact that specific averment has been in counter affidavit and it was argued that no construction is being made by the respondents, I find that it is not a fit case for the grant of injunction in favour of the appellant. Only general allegations have been made that the respondents are making constructions which cannot be relied upon in view of the statement made by the respondents that they are not making any construction.
(7) In view of the above, I, find that the appellant has got no prima facie case nor balance of connivance is in his favour nor he will suffer any loss. Accordingly, this Injunction Application is rejected.
( Mungeshwar Sahoo, J.) Sanjeev/