SANJAY KUMAR TIWARY Vs. CHANDRAKANTI DEVI

JUDGEMENT

(1.) THIS Miscellaneous Appeal is directed against the order dated 14.3.1996 passed by Sub -Judge, 4th, Bettiah, in Title Suit No. 128 of 1995.

(2.) IN this appeal both sides were heard.

(3.) HOWEVER , the operative part of the impugned order does not state in clear terms as to do what and as to omit what the respondents were restrained from. Unless this is clearly specified in the impugned order, it would be difficult for the respondents to carry out the injunction order. The defendants 2nd set who are admittedly daughters of Ram Surat Prasad Tiwary, will have share in their father ';s property because the common ancestor died in the year 1974. It was the claim of the defendant -respondents that they had come to own their father ';s property on the basis of partition. But it was not pleaded whether they had been allotted with the suit property. So, the main question in the case was as to who was the owner of the suit property and if at all me 35. defendants 2nd set who are the descendants from the daughters of the common ancestor were allotted suit property on partition. The respondents before this Court, who are the defendants 1st set appears to be the strangers to the family of the plaintiffs 2nd set and they were, perhaps, residents of the State of U.P. So, of -course, the moot question to be decided by the lower court was whether the suit property was allotted to plaintiff no. 1 on partition or whether it was allotted to the 40. defendants 2nd set who had right to sell the suit land to the strangers or not. Of course, the facts cannot and could not be decided without evidence, but the courd had to see whether the plaintiff no. 1 had prima facie case and balance of convenience and the irreparable loss would occur to the plaintiff if no injunction is granted. After taking into consideration these three principles, the court had to give a clear and definite order of restraint directed against the respondents and specifying as to what was exactly the order of restraint. The impugned order, therefore, suffers from vagueness and want of exactitude. Hence, it cannot be allowed to stand.