UDAY KANT SINGH Vs. JAYKANT SINGH

JUDGEMENT

(1.) The instant petition has been filed for quashing/setting aside the order 26/11/2022 passed by the learned Additional District and Sessions Judge-IX, Purnea in Misc. Appeal No. 07 of 2021(CIS No. 07/2021) and Misc. Appeal No. 08 of 2021 (CIS No. 08/2021).

(2.) The case of the parties as it appears from the record is that the respondent-1st set is plaintiff before the learned trial court and petitioner and respondent-2nd set are defendants. All of them are brothers. The suit has been filed by the plaintiff/respondent-1st set for declaration that the plaintiff was having 1/3rd share in the suit land having area 7.14 acre and for carving out the same from the suit property in favour of the plaintiff/respondent-1st set. The plaintiff has also filed a Title Suit No. 205 of 2010 prior to filing of present suit, i.e., Title Suit No. 423/2013 for partition. The earlier filed suit is also with regard to same suit property and the plaintiff sought declaration of possession over 2.38 acres of land/1/3rd share in the suit land. During pendency of the Title Suit No. 423/2013, plaintiff/respondent-1st set filed an application under Order 39 Rule 1 and 2 stating therein that the petitioner/defendant threatened the plaintiff with alienation of the Schedule-A property of the plaint and prayed for grant of permanent injunction. The learned Sub. Judge-I, Purnea, vide order dated 2nd of March, 2021, dismissed the application of the plaintiff/respondent-1st set finding no merit in it. Being aggrieved by the order dtd. 2/3/2021, the plaintiff/respondent -1st set and respondent-2nd set preferred Misc. Appeal No. 07/2021 and Misc. Appeal No. 08/2021 respectively and challenged the order of the learned Sub. Judge-I, Purnea. The learned Additional District Judge-IX, Purena allowed the said appeals vide order dtd. 26/11/2022 while setting aside the impugned order. The said order dtd. 26/11/2022 has been challenged before this Court.

(3.) Learned counsel appearing on behalf of the petitioner submitted that the learned appellate court went on surmises and conjecture and without recording any finding with regard to prima facie case, balance of convenience and irreparable loss, allowed the appeals. The learned first appellate court did not consider the facts of the case and did not further consider the fact that the suit has been filed for partition of joint family property and no injunction can be granted. Learned counsel relied on the decisions of the different Co-ordinate Benches of this Court in the case(s) of Baldeo Prasad Yadav v. Kedar Nath Yadav, reported in (2006) 2 PLJR 437 [Paras-4 and 5], Krishna Lal Yadav v. Shambhu Kumar Yadav, reported in (2005) 4 PLJR 716 [Para-5] and Murli Manohar Jalan v. Bal Manohar Jalan, reported in (2001) 2 PLJR 606 [Para-4] to stress the fact that grant of injunction has been deprecated on a joint family property. Learned counsel further submitted that the petition for injunction has been filed merely on apprehension and mere apprehension can never be the basis for grant of injunction, unless the triple ingredients, i.e., prima facie case, balance of convenience and irreparable loss as contemplated for grant of injunction are present. The learned counsel further submitted that the learned first appellate court has not considered the case of the petitioner/defendant at all that the petitioner got the suit property in a family settlement on 17/6/1985 and the plaintiff/respondent -1st set was suitably compensated and the plaintiff/respondent-1st set has no claim at all over the suit property. The compromise petition was prepared in presence of the respectable persons of the society and also in presence of the four brothers, one of whom, namely, Manikant Singh, has not been made party by the plaintiff/respondent-1st set in his suit. The said memorandum of partition was acted upon by all. So, there was no prima facie case in favour of the plaintiff/respondent-1st set, to begin with. The learned Sub. Judge-I, Purnea appreciated all these facts and rejected the application of the plaintiff/respondent-1st set for injunction holding that no case of ad-interim injunction is made out in a partition suit where there is unity of title and possession relying on a decision of this Court passed in Misc. Appeal No. 354 of 2017 (Ram Ran Vijay Pratap Shahi and Anr Vs. Sri Kaushlendra Pratap Shahi and Ors). Thus, the learned counsel submitted that the order of the learned first appellate court is not sustainable and the same be set aside.