KAMLA PRASAD Vs. KALIDAS

JUDGEMENT

(1.) The appeal is directed against the order dated 8-7-96 passed by the Subordinate Judge 1st refusing to grant the temporary injunction in favour of the plaintiffs-appellants restraining the defendants respondents No. 1 & 2 from changing the physical feature of the suit property and also from' transferring of any portion of the suit property or making any alienation with regard to the same till the disposal of the suit.

(2.) Admitted position is that Dr. Indra Prasad died in 1939 leaving behind his three sons, namely, Dwarika Prasad, husband of defendant No. 3 Smt. Mallika; Devi, Plaintiff No. 1, Kamla Prasad, and defendant No. 1 Kumar Kalidas. Dwarika Prasad died in 1970 leaving behind his widow Smt. Mallika Devi (defendant No.3). According to the plaintiff their family is governed by Mitakshara School of Hindu law and it possessed of moveable and immoveable properties detailed in Schedules 1 & 2 of the plaint. Each branch that is plaintiff defendant No. 1 and defendant No.3 is entitled to one share in the suit property. The defendant No.l and his son defendant No.2 being shrewd persons fraudulently created an award dated 25-3-82 where in 70% of the total property was allotted to defendant Nos. 1 & 2 and 30% of the property was alloted two branches. Defendant Nos. 1 & 2 filed title suit No. 281/82 for making the award a rule of the Court. The plaintiff appeared and contested the suit and on 9-12-93 the award was set aside and the defendants No. 1 & 2 have filed Misc. Appeal. No. 107/94 before the High Court which is pending.

(3.) Holding No. 215/187 is a double-storied pucca house in the town of Patna. Defendant Nos. 1 & 2 demolished the major portion of the same and negotiated with a builder to construct a multi-storied building, plaintiff filed an injunction petition in Misc. Appeal. No. 107/94 which was rejected by the High Court on 2-4-96 with an observation that the plaintiff may seek remedy by filing suit and thereafter they filed a partition suit on and also filed an injunction petition making the aforesaid relief. The defendant Nos. 1 & 2 contested the claim for grant on injunction. Their case is that three sons of Late Indra Prasad separated in 1957 and in 1962 the immoveable properties consisting of four ancestrals houses including the aforesaid holding were partitioned by metes and bounds and each of the branches are coming in possession of the houses allotted to their share and are realising the usufructs and rents therefrom. The holding in question has been allotted to defendant Nos. 1 & 2 and they are dealing with the property. They inducted tenants and later on evicted them from the same building on the ground of personal necessity through the process of the Court. The said holding was in dilapidated and ruinous state and in spite of the repairings a part of which fell down in 1983 and the remaining portion was dangerous for the residents and the passersby, which required immediately constructions and the defendants have entrusted the construction work after demolition to M/s. Bhasker Houses Pvt. Ltd. It is stated that the building was demolished and the construction works have started and the plaintiffs got a proceeding under Section 144, Cr. P.C. started on the said holding which was dropped. The plaintiffs have no legal right to obstruct the development work and are not entitled to file partition suit especially when their earlier partition suit has been dismissed.