GODAWARI DEVI Vs. KASHI KANT JHA

JUDGEMENT

(1.) This is an order on I.A. No. 1361 of 2003 on behalf of respondents No. 9 and 17 for grant of interim injunction restraining the parties to the appeal especially appellant No. 2 and respondent No. 27 from transferring or alienating suit lands.

(2.) The case of respondents, who have filed the aforesaid application, is that respondents No. 1 and 2 had filed partition suit No. 95 of 1982 for partition of their 1/10th share in the suit land and the suit was contested only by appellant No. 2 Bharat Jha who was defendant No. 18 and the suit was decreed by Court below which held that plaintiffs were entitled to 1/10th share in the suit land. Their further case is that present appeal has been filed by defendant No. 5, mother of Bharat Jha alongwith Bharat Jha and his two minor sons and some other defendants have also filed other appeals which are pending here for hearing. There further case is that suit land is valuable property and Bharat Jha, in connivance with other parties, want to transfer valuable lands of Schedule I of plaint and he recently transferred two kathas of residential land of schedule I for Rs. 1,40,000/- from Khata No. 358 of plot No. 2851 vide four registered sale deeds (Annexure A series) and respondent No. 27 Digambar Jha, in connivance with Bharat Jha, has also sold two kathas ten dhurs of suit land of khata No. 358 plot No. 5703 and applicants have further come to know that Bharat Jha and Digambar Jha, in connivance with each other, are negotiating some other parties for sale of other lands of Schedule I to the plaint. The further case of respondents 9 and 17 is that if appellant No. 2 Bharat Jha and respondent No. 27 Digambar Jha are not restrained from alienating or transferring the suit land by the time the decree is executed then all the valuable lands might be sold away and equities will lie in favour of transferees and they will suffer irreparable loss and injury. Prayer has been made for issuing of interim injunction so that property be maintained status quo and for restraining appellant No. 2 and respondent No. 27 from transferring or alienating any portion of suit land. Appellant No. 2 has opposed the prayer of applicants by filing rejoinder stating therein that the present application has been filed by respondents No. 9 and 17 who were defendants No. 8 and 1 before the court below and suit was decreed in favour of the plaintiffs declaring that they are entitled to 1/10th share in the joint family property as mentioned in the schedule of the plaint and the present applicants neither contested the suit nor did they file any written statement and they have got no prima facie case nor balance of convenience lies in their favour. It is further stated that appellant No. 2 has five sisters and one daughter and after the death of his father in the year, 1967, entire responsibility of his family including the marriage of all his sisters came upon his shoulders and for the marriage of his sisters, he was compelled to borrow money and on 27.5.2002, he sold two khatas of land by registered sale deeds in order to settle the loan which he had taken because he has got no other source of income except the share and without selling of suit land, he is not in a position to arrange money for the marriage of his daughter who is aged about twenty years. He has further stated that allegation against him that he is in connivance with respondent No. 27, is totally false because, he has got no connection with him and respondent No. 2 neither contested the suit nor filed any written statement before the Court below. His further statement is that the two khatas of land which he had sold can be put in the branch of his share and in the sale by him, the doctrine of lis pendens will be applicable and there is no question of suffering any loss by respondents No. 1 and 2.

(3.) From the perusal of judgment of Court below, it is clear that only defendant No. 18 Bharat Jha had contested the suit by filing written statement so the plea of Bharat Jha that applicants did not contest the suit remains unchallenged. Since only a preliminary decree has been passed and in his reply, appellant No. 2 Bharat Jha has stated that he is in need of money for the marriage of his daughter who is presently aged about twenty years and he has got no other source of income, I find some force in the argument of applicant that he is negotiating with some other persons for sale of further portion of suit land although it has been submitted on behalf of appellant No. 2 Bharat Jha that sale by him will not exceed his share in the suit land.