DIWAKAR PRASAD DUBEY Vs. PRABHAKAR PRASAD DUBEY

JUDGEMENT

(1.) The plaintiff brought a suit claiming that the (oil) engine in suit was the joint family unpartitioned property of the plaintiff and his brother defendant No. 1 and the defendant No. 1 was negotiating its sale, hence injunction may be granted restraining him from selling the engine. It would appear that the engine was later sold with the permission of the court to the wife of the defendant No. 1. The plaintiff had come forward with the allegations that the holdings and cattle and articles of daily use were partitioned, but the remaining properties remain joint including the engine. The contesting defendant on the other hand maintained that the partition of entire movable and immovable properties between the plaintiff and defendant No. 1 had already taken place and the defendant No. 1 is the exclusive owner of all such property which fell to his share and the oil engine etc. having fallen exclusively to the share of defendant No. 1 is his exclusive property and the plaintiff has no concern with the same.

(2.) The Civil Judge framed a number of issues. He came to the conclusion that the plaintiffs stand of partial partition is more likely and the engine in dispute is an unpartitioned property of plaintiff and defendant No. 1. He further, found that the defendant No. 1 has transferred the engine in suit to defendant No. 3, but that would not affect the right of the plaintiff. He further, found that the defendants Nos. 1 and 3 cannot transfer this engine to anyone else. The suit for injunction was, therefore, decreed against defendants Nos. 1 and 3, but it was dismissed against defendant No. 2, who was alleged to be the prospective purchaser of the engine and negotiating its purchase.

(3.) The first appellate court dismissed the appeal. It, however, further observed by way of modification that as the engine stands sold away with the permission of the court and the sale proceeds have been deposited in the court, the plaintiff will be entitled to claim half of the sale proceed of the said engine. The findings of the two courts below are assailed by defendant No. 1 and his wife in this second appeal.