MATUK LAL MAHTO Vs. MAHABIR MAHTO

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the order dated 9th February, 1999 passed by Sub -ordinate Judge -1, Supaul, in T.S. No. 51 of 1998 whereby the plaintiff - appellant's prayer for injunction was rejected.

(2.) THE relevant facts are that the plaintiff appellant filed the aforesaid suit for declaration that plot no. 3974 under Khata No. 201 was not the subject matter of partition suit between the plaintiff and defendant no. 1, although there was partition of other family lands by a registered deed of partition (on 20th -in sic) April, 1982. Since there was dispute as to (whether the -in sic) defendant no. 1, got 13 -dhurs of land (out of -in sic) plot no. 3974 of whether he got only 11 dhurs. This plot remained unpartitioned. However, the defendant no. 1 sold 9 dhurs of this plot to defendant 2nd party and now the defendant 2nd party were also proposing to sell it to the third persons. So the plaintiff appellant had preferred a petition for injuncting the defendent respondents from selling any portion of the suit land which, will amount to violation of the privacy of the plaintiff -appellant because his family was living in a portion of the suit building. The lower court, after hearing both the parties and taking into consideration all the facts alleged and denied by the defendant -respondents, rejected the prayer. The fact that there was deed of partition dated 28.4.1982 on the basis of which plaintiff's family effected partition of all the family lands was on almost admitted as per the deed of the parties, the plaintiff got 3 katthas 7 dhurs of plot no. 3974 and the defendent no. 1 got 13 dhurs. It was the contention of plaintiff -appellant that this mention of the area of allotment is. wrong and this was the bone of contention. However, the trial court has referred to the mutation orders in favour of plaintiff -appellant and defendent no. 1, which indicated that the parties had got their names mutated over the areas of their allotment over plot no. 3974. So they were in possession over this land as per their allotments. The lower court referred to the boundary given by the plaintiff in his plaint regarding plot no. 3974 in Schedule - ll which referred to the wall of the plaintiff on the north roofed by tin plates. On the west, there was a wall of Matuklal Mahto (Plaintiff -appellant). On the south, there was one Dharmachand Chhajed and on the east there was pitch road. So it appears that, perhaps, the plaintiff and the defendants had demarcated their allotted lands, whatever may be the area and so it was further apparent that there was no question of privacy of the plaintiff -appellant being violated, if the defendent no. 1 had sold the part of the suit land in his possession and his vendees were also proposing to sell the same to anybody else. Section 4 of the Partition Act refers to right of pre -emption in an undivided property belonging to a particular family but in the instant case, there was already a registered partition deed executed in the year 1982 itself and therefore, the controversy that the defendants got only 11 dhurs in spite of mentioning of 13 dhurs in the deed of partition was, of course, a question to be decided by the trial of the suit. But when the description of the suit land in schedule -ll of the plaint indicated that there was already demarcation line and this demarcation was confirmed by walls standing on the north and west of the land of the parties, it was clear that there was no question of privacy of the plaintiff -appellant being violated; If the defendent -respondents were proposing to sell any part of the suit land in their possession, whatever may be the area. In this view of the matter, application of section 4 of the Partition Act was also not very much apt in the instant case. So far the question of balance of convenience in view of the admitted position that the partition deed referred to 13 dhurs of land in favour of defendant no. 1, it lay in favour of defendant no. 1 and his subsequent purchasers. So far the question of irreparable loss is concerned, the plantiff will suffer no such loss; because if he will prove allotment of 3 Katthas 9 dhurs and not 7 dhurs, as mentioned in the partition deed, he would get back this 2 dhurs from defendant no. 1 or from his subsequent purchasers. Moreover, defendant no. 1 had sold only 9 dhurs uptill now and not more than that. In that view of the matter, the plantiff was not going to suffer irreparable loss. Section 22 of the Hindu Succession Act, 1956 is also not applicable, because it also refers to undivided share of co -parceners.