HEMANTA KUMAR MAOJEE Vs. HARILAL AMARAI

JUDGEMENT

(1.) This appeal is under the Letters Patent directed against the decision of the leamed simle Judga in Misc. Appoeal No. 202 of 1988 affirming an order of the learned Trial Judge passed in Misc. Case No. 348 of 1987 refusing the prayer for injunction.

(2.) PLAINTIFFS are the appellants. They have filed the suit for partition claiming a share in the disputed prooerty they being the legal heirs of the branch of Maojae Ramiee. According to the plaint case. Ramjee Haridas is the common ancestor who had three sons, Amarai Ramjee. Manojee Ramiee, Giridhari Lal and a daughter. The daughter is defendant No -14. The property is the joint family ancestral property and, therefore, the plaintiffs have a share in the same. During the pendency of the suit they filed an application for injunction defendants 1 and 2 who represent the branch of Amarai Maojee from alienating any part of the suit property. The defendants in their objection to the application for injunction took the stand that there had been a prior partition between the common ancestor Ramjet? Haridas and his sons in the year 1935 and thereafter Amarai Ramjee has purchased the disputed property out of his self income and, therefore, the property cannot be impressed with the character of joint family property and as such the prayer for injunction should be rejected. The learned Trial Judge on discussion of the materials produced before him came to the conclusion that plaintiffs have failed to establish prima facie that the property is joint family property and 'therefore, there is no balance. of convenience in favour of the plaintiffs to obtain an order of injunction against the defendants. The plaintiffs being aggrieved by the same carried the matter in appeal. Though the Appellate Judge has not discussed the materials at length, but refused to interfere with the order of the learned Trial Judge as a finding that the plantiffs have failed to establish a prima facie case. - -

(3.) MR . Mukharjee for the defendants -respondents has filed a cross -objection, but we are of the considered opinion that the cross objection is not entertainable for the relief sought for. It would, however, be open for him to agitate the matter before the trial Court seeking an interim order in respect of the 'Ga'' schedule property and if it is established that the possession of the plaintiffs is permissive in nature, the Court would consider the same and pass appropriate order I agree.