Patna High Court - Orders
Smt. Ram Peyari Devi & Anr vs Ram Charitra Prasad & Ors on 24 August, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.395 of 1997
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Smt. Ram Peyari Devi & Anr
.... .... Appellant/s
Versus
Ram Charitra Prasad & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Awadhesh Kumar Mishra
Mr. Shashi Ranjan
Mr. Raj Kumar Prasad
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL ORDER
22 24-08-2012I.A. No. 5082 of 2012 This interlocutory application has been filed on behalf of the respondent nos. 5 to 11, under Order XXXIX Rule 1 C.P.C. praying for grant of injunction restraining the plaintiff-appellants from selling, disposing or alienating the suit properties during the pendency of this appeal. A rejoinder has been filed on behalf of the appellants to this interlocutory application.
This appeal arises out of a suit for partition wherein the plaintiffs have claimed half share in the suit property described in schedule 2 and 3 of the plaint with other sequential reliefs. The plaintiffs claimed unity of title and jointness of possession with regard to the suit properties with the defendants but the defendants denied the claim of the plaintiffs and resisted the grant of the decree as prayed. The learned court below by the impugned Patna High Court FA No.395 of 1997 (22) dt.24-08-2012 2 judgment, after scrutinizing the pleadings and evidence of the parties has come to the finding that there had been previous partition of the suit properties and as such there is no unity of title and jointness of possession between the parties. The suit was accordingly dismissed.
In the present interlocutory application the defendant- respondent nos. 5 to 11 have stated that the plaintiff-appellants have alienated part of the suit property and are further proposing to alienate the other portions of the suit properties for which they had also entered into agreement for sale. It has also been averred that the plaintiff-appellants have been selling away the properties which has been allotted to these respondents in the previous partition. It has also been pointed out that earlier I.A. No. 2783 of 2012 was filed by these respondents for restraining the respondent nos. 2 to 4 from alienating the suit properties but the said interlocutory application was disposed of granting liberty to the respondent nos. 5 to 11 to press the injunction petition filed by them in another Title Suit No. 260 of 2011 which has been filed by the respondent nos. 2 to 4.
In the rejoinder, the appellants have not denied the alienation already made by them as mentioned by the respondents in this interlocutory application. The appellants have, however, Patna High Court FA No.395 of 1997 (22) dt.24-08-2012 3 submitted that the earlier petition for injunction in this appeal filed by these respondents has been unsuccessful and, in view of the pendency of the injunction petition in T.S. No. 260 of 2011, the present interlocutory application is premature. The appellants have not mentioned any specific reasons entitling them to alienate the suit property during the pendency of this appeal.
Mr. D.K. Sinha, the learned senior counsel appearing for the respondent nos. 5 to 11 has submitted that the subject matter of the suit should not be allowed to be alienated by creating third party interest during the pendency of the appeal. It has also been canvassed that in absence of any special circumstance, none of the parties should be allowed to transfer or alienate the suit property till the litigation is pending.
The main plank of the submission of Mr. Mishra, the learned counsel appearing for the appellants, is that since another title suit has been filed and prayer for injunction had already been made by these respondents i.e. respondent nos. 5 to 11 in that suit, the present interlocutory application is premature and should not be entertained. It has been further urged by Mr. Mishra that the present appellants have filed a petition for getting themselves impleaded as parties in the said suit i.e. T.S. No. 260 of 2011 and as both the petitions for injunction as well as the petition for Patna High Court FA No.395 of 1997 (22) dt.24-08-2012 4 addition of parties are pending, the respondent nos. 5 to 11 should be directed to expedite the proceedings of the said title suit and get the petitions disposed of as it would not be in the interest of justice to entertain the prayer for injunction in the two proceedings between the same parties. The learned counsel has also placed the order dated 30th April 2012 passed in this appeal disposing of the I.A. No. 2783 of 2012 filed by the respondent nos. 5 to 11.
After considering the submissions of the learned counsels for the parties, it is manifest that the suit for partition filed by the present appellants claiming unity of title and possession has been dismissed with the finding that there had already been previous partition in between them. It is also obvious from the facts that the T.S. No. 260 of 2011 has been filed by the respondent nos. 2 to 4 in which the present appellants have not been impleaded as parties but subsequently, the present appellants have filed petition for impleading them as parties which is pending. From the earlier order dated 30th April 2012 passed in this appeal, it is clear that the I.A. No. 2783 of 2012 did not find favour with this Court mainly because it was found that the adjudication of the dispute inter se between the respondents was beyond the scope of this appeal and accordingly the respondent nos. 5 to 11 were directed to press the prayer for injunction in the said title suit which was pending Patna High Court FA No.395 of 1997 (22) dt.24-08-2012 5 between respondent no. 2 to 4 as plaintiff and respondent nos. 5 to 11 as defendants therein.
Thus, the disposal of the said I.A. No. 2783 of 2012 cannot have any bearing upon the maintainability of the present interlocutory application where the respondent nos. 5 to 11 have sought the relief for injunction against the appellants alone.
The appellants have been unsuccessful in the suit but even according to their case the suit property is the joint family property in which all the parties have got joint title and possession. The respondent nos. 5 to 11 have denied the state of jointness and pleaded previous partition which has been upheld by the learned court below. The appellants have not denied the alienation of the suit properties by them and have also not denied the assertion of the respondent nos. 5 to 11 as made in the interlocutory petition regarding proposed further alienation.
It is well settled that after a lis has been admitted for hearing, the court must ensure the protection of the suit properties so that the ultimate decree may not turn to be barren one. In this view of the matter, it would be just and proper that both the parties be restrained from alienating, encumbering or creating third party interest in the suit property during the pendency of this appeal. The appellants and respondent nos. 5 to 11 are restrained from Patna High Court FA No.395 of 1997 (22) dt.24-08-2012 6 alienating, encumbering or creating third party interest with regard to the suit properties during the pendency of this appeal.
This interlocutory application is disposed of accordingly. The learned counsel for the appellants has submitted that the hearing of this appeal may be expedited. The learned counsel appearing on behalf of the respondent nos. 5 to 11 has no objection. As such, the office is directed to expedite the process of hearing of this appeal.
(V. Nath, J) Devendra/-