BEPIN KRISHNA SUR Vs. GAUTAM KUMAR SUR

JUDGEMENT

(1.) THE appellants in this Miscellaneous. Appeal as plaintiffs have instituted a title suit in the First Court of the Subordinate Judge, Alipore, 24 Parganas, against the defendant respondents, inter alia, for partition of their 8 annas interest in 6185 decimals of land situated in mouza Gabberia, P. S. Sandeshkhali and more fully described in 'ka' schedule of the plaint, for directing the defendant No. 1 to. tender accounts from 1376 to 1382 B. S. and for other consequential reliefs. The defendant-respondents are contesting the said suit. The plaintiff-appellants had filed in the trial court an application under Order 39, Rules 1 and 2 of the Civil Procedure Code for restraining the defendant respondents from selling. alienating, transferring and in any other way disposing of the suit property or any other portion thereto. In their said application the plaintiffs alleged that by mutual arrangement the defendant No. 1 had been put in charge and management of the suit property since the 1376 B. S. but the defendant No-1 had allegedly failed and neglected to pay or deliver to the plaintiffs their legal share of the surplus income. The plaintiffs further alleged that the defendant No. 1 had been negotiating for selling the suit properties according to his sweet will and more than the legal share of the defendants. It has also transpired that he had already sold away some of the suit properties. The defendants were bent upon creating chaos by random transfer of the suit properties and thereby put the plaintiffs to trouble, harrass-ment and difficulty in possessing and/or realising their shares of the property. Therefore, according to the plaintiffs, it was necessary that the defendants should be restrained by an order of injunction in terms prayed for by them.

(2.) THE learned Subordinate Judge, 1st Court, Alipore had granted ad interim order restraining the defendants from transferring the / suit properties and by his Order no. 24 dated 28th February, 1978 after hearing both parties allowed the plaintiffs' petition for temporary injunction and made the ad interim order dated 15th June, 1977 absolute.

(3.) ON or about 14th December, 1978 the defendants in the said suit had filed in the trial court an application under Order 39 Rule 4 read with Section 151 of the Code. The defendants alleged that the property of the defendants had been already partitioned, they were in actual khas possession of the properties allotted to them. They claimed that on account of their urgent need of money, the defendants may be allowed to sell their half share in the three plots of land mentioned in the schedule to their said application. The plaintiffs opposed the said application. The learned Subordinate Judge by his Order No. 44 dated 21st December, 1978 rejected the defendants' said application under Order 39 Rule 4 of Code. He had also directed the defendants to disclose the names and the particulars of the persons who according to them, were necessary parties and also of the particulars of the lands already sold by them.