SHEKHAR GUPTA Vs. RAGHUBANSH PRASAD TIWARI

JUDGEMENT

(1.) This appeal under Order 43 rule 1(r) of the Code of Civil Procedure (hereinafter referred to as the Code) read with Section 104 thereof is directed against the judgment and order dated Patna High Court MA No.418 of 2012 (9) dt.11-09-2013 12.03.2012 passed by learned Sub-Judge-I, Purnea in Title Suit No. 3 of 2011, whereby the petition for injunction filed by the plaintiffs under Order 39 rule 1 and 2 of the Code, has been allowed. The plaintiffs and the defendant nos. 1 to 8 are descendants of a common ancestor. The defendant no. 9 who is the appellant before this Court is a purchaser from the defendant nos. 1 to 5. The suit in question has been filed for a declaration that the suit property described in Schedule-2 be declared a joint ancestral property of the plaintiffs and the defendant nos. 1 to 8 and for declaring the sale deed no. 1789 dated 08.03.2010 executed by defendant nos. 1 to 3 with the aid of defendant nos. 4 and 5 in favour of the defendant no. 9, to be a fraudulent, nonest and void transaction, not binding upon the plaintiff and thus be set aside. The suit has also been filed for permanent injunction against defendant no. 9 from interfering in the peaceful possession of the plaintiffs over the suit property.

(2.) The suit was filed on 9.12.2010 and was followed by a petition for grant of temporary injunction under Order 39 rules 1 and 2 of the Code, which was filed on 22.12.2010. The trial court vide order dated 6.1.2011 while admitting the suit directed for issuance of summons upon the defendants by ordinary process as Patna High Court MA No.418 of 2012 (9) dt.11-09-2013 well as under registered cover. On the same date the parties to the suit were directed to maintain status quo as regarding the suit property until appearance of the defendants. By order dated 31.1.2011 the trial court recorded the service of notice on defendant nos. 1, 3, 4 and 5 while holding the notice to be deemed service on defendant nos. 2, 6 and 9 on their refusal. The trial court also recorded that the notice was not yet served on defendant nos. 7 and 8. On 25.2.2011 the defendant nos. 1 to 5 registered their appearance by filing vakalatnama and prayed for time. On 15.11.2011 the trial court recorded the service of notice on defendant nos. 7 and 8. On the same date the plaintiffs moved a second petition seeking temporary injunction mentioning therein that while the defendant no. 9 was refusing to accept summons but at the same time he was trying to take advantage of the order of status quo by trying to dispossess the plaintiffs from the suit land by applying force. The trial court vide order passed on the same day restrained the defendant no. 9 from interfering with the possession of the plaintiffs over the suit land. Vide order passed on 22.12.2011 the trial court upon considering the request of the plaintiffs directed the office to serve the copy of the order dated 15.11.2011 upon the defendant no. 9 through the process of the court. Vide order passed on 29.02.2012, the trial court taking note Patna High Court MA No.418 of 2012 (9) dt.11-09-2013 of the show cause filed by the defendant no. 9 and the grievance raised by the plaintiffs apprehending disturbance at the hands of the defendant no. 9, extended the order of maintenance of status quo with regard to the suit land until further orders and the matter was posted for hearing on the injunction petition as well as for attendance of the defendant no. 6 to 8. The matter was thereafter heard on 12.3.2012 and the trial court finding a prima facie case in favour of the plaintiffs for grant of injunction, restrained the defendant no. 9 from disturbing the plaintiffs over the suit land until the disposal of the suit and in the meantime the D.C.L.R, Dhamdaha was directed to appoint a Receiver who would divide the crops of the suit land amongst the plaintiff and the defendant nos. 1 to 8, according to their respective shares. The injunction petition was thus disposed of. The defendant no. 9 being aggrieved by the order dated 12.3.2012 is in appeal before this Court.

(3.) Mr. Rajiv Kumar Verma, learned Senior Counsel has appeared on behalf of the appellant while Mr. Ambuj Nayan Choubey has appeared for the plaintiff-respondent no. 1, Mr. Anujeet Sinha has appeared for the plaintiff-respondent nos. 2 and 5, Mr. Santosh Kumar has appeared for the plaintiff-respondent no. 3, Mr. Pradeep Ranjan Tiwary, the respondent no. Patna High Court MA No.418 of 2012 (9) dt.11-09-2013 4 has appeared in person, Mr. Saket Tiwary has appeared for the plaintiff- respondent no. 6 and Mr. Harsh Singh has appeared for respondent nos. 7 to 11 and respondent nos. 13 and 14 have appeared through counsel Mr. J.S. Arora. Since the defendant no. 6 who is respondent no. 12 Barandeo Tiwary in appeal, despite service of notice has not registered appearance before the trial court, hence this Court did not deem it necessary to issue notice to him. Extensive arguments have been advanced by learned counsel appearing on behalf of the parties both in support as well as in opposition of the impugned order.