Patna High Court - Orders
Ashok Kumar Singh & Ors. vs Sukhbarat Prasad Singh & Anr. on 24 July, 2014
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.302 of 2013
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1. Ashok Kumar Singh
2. Amrendra Kumar Singh
3. Yudhisthir Kumar Singh
Sons of Sukhbarat Prasad Singh
4. Arun Kumar Singh
5. Keshav Kumar Singh
6. Deepak Kumar Singh
All sons of Late Kameshwar Prasad Singh,
All residents of Village-Deokipur Dalan, P.S. & District- Katihar.
.... ....Plaintiffs----- Appellants
Versus
1. Sukhbarat Prasad Singh @ Sukhbarat Singh S/O Late Rambharosa Singh
2. Asha Devi D/O Late Parikshan Singh W/O Vinod Kumar Singh, resident
of village- Bekapur Bari Bazar, P.O. Bekapur Bari Bazar, P.S. and District
Munger.
.... ....Defendants- Respondents
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Appearance :
For the Appellant/s : Mr.
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL ORDER
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4 24-07-2014Heard Sri Narayan Singh, learned Senior Counsel, who was assisted by Sri Rama Nand Poddar, learned counsel for appellants.
The present appeal has been preferred under Order 43 Rule 1( r) of the Code of Civil Procedure against an order dated 20.03.2013 passed in Title Suit No.01 of 2011 ( Probate Case No.04/04) by the Addl. District Judge-II, Katihar and the appellants have prayed for restraining Respondent no.2 from alienating or disposing of the suit property. 2 Patna High Court MA No.302 of 2013 (4) dt.24-07-2014 2/4
Short fact of the case is that the plaintiffs/appellants initially filed a probate case vide Probate Case No.04/04 in the court of District Judge, Katihar for issuance of letters of Administration with regard to estate of deceased Tetari Devi, who was none else but mother of Respondent no.2. After noticing the fact regarding pendency of Probate Case, Respondent no.2 filed an objection and, thereafter, Probate case was converted as Title Suit No.01/2011. In the court below, a petition was filed under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure on behalf of the plaintiffs/appellants for grant of injunction against defendant/ Respondent no.2, which has been dismissed by the court below and the same order has been assailed by the appellants in the present appeal.
Learned Senior Counsel appearing on behalf of the appellants submits that since probate case has already been converted as Title Suit, during the pendency of the suit, the defendant/Respondent no.2 is required to be restrained from alienating the suit property. He submits that if during the pendency of the suit, entire suit land is disposed of by Respondent no.2, nothing will remain for adjudication. In support of his argument, he has relied on a Judgment reported in 2001(2) PLJR 268; Dharam Nath Jha Vs. Raghunath Jha. He submits that since lis is 3 Patna High Court MA No.302 of 2013 (4) dt.24-07-2014 3/4 pending, it is required to direct for maintaining status quo. He further submits that though a plea has been taken that Will was got executed by respondent no.2 forcibly, this allegation has not been found true either by the police or in complaint case, which was filed by Opp.Party no.2. On the aforesaid ground, he has prayed for setting aside the impugned order and directing the Respondent no.2 for restraining from alienating the suit property.
Besides hearing, I have also perused the materials available on record. On perusal of the impugned order, it is evident that, by filing written statement, Respondent no.2 had made specific statement that forcibly Will was got executed by the appellants. The genuineness of the Will has been assailed by the defendant. Even it has been indicated that on the Will as a witness there is non-else but father of the appellant. Moreover, the genuineness of the Will is under consideration before the court below. At the same time, being own daughter of the deceased, prima facie case appears in favour of Respondent no.2. This fact has been noticed by the learned court below. The Court below has found prima facie case in favour of present respondent no.2, even balance of convenience is also in her favour. While granting injunction, it is required to be seen that all requisites for grant of injunction is fulfilled, only then such relief can be granted. Since 4 Patna High Court MA No.302 of 2013 (4) dt.24-07-2014 4/4 prima facie case as well as balance of convenience is in favour of respondent no.2,I do no find any error in the order of the learned court below , whereby the prayer for injunction has been rejected.
The appeal stands dismissed.
(Rakesh Kumar, J) NKS/-
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