IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.720 of 2008 SHRI KAMLESHWAR GIRI @ KAMALESH GIRI S/O PARMESHWAR GIRI, R/O VILLAGE-PARSA, P.O. GURWALIA, VIA- CHUHARI, P.S. CHANPATIA, DISTRICT-WEST CHAMPARAN, AT PRESENT DEPUTY SECRETARY YOJANA AND VIKASH VIBHAG OLD SECRETARIAT, PATNA …………. PLAINTIFF-APPELLANT Versus 1. SHRI PARMESHWAR GIRI, S/O LATE MAHAVIR GIRI, 2. RAVINDRA GIRI S/O SHRI PARMESHWAR GIRI, 3. BIRENDRA GIRI, S/O SHRI PARMESHWAR GIRI, ALL RESIDENT OF VILLAGE-PARSA, P.O. GURWALIA, VIA- CHUHARI, P.S. CHANPATIA, DISTRICT-WEST CHAMPARAN. 4. SMT. INDU DEVI D/O SHRI PARMESHWAR GIRI WIFE OF SHRI SHESHNATH PARBAT, RESIDENT OF MOHALLA-MANAI TAR, GANDHINAGAR, P.O. GANDHI NAGAR, P.S. DHANSAR, DISTRICT- DHANBAD, 5. SMT. SUSHILA GIRI D/O SHRI PARMESHWAR GIRI, WIFE OF SHRI BIRENDRA GIRI, RESIDENT OF SUKDEO NAGAR RANCHI, RATU ROAD GIRI NIKETAN, P.O. AND P.S. SUKDEO NAGAR, DISTRICT- RANCHI (JHARKHAND), ………. DEFENDANTS-RESPONDENTS. 1ST SET. 6. RAMNATH SAH, SON OF LATE GANESH SAH, RESIDENT OF VILLAGE-KALIBAGH, WARD NO. 10, BETTIAH, DISTRICT-WEST CHAMPARAN …………. DEFENDANTS-RESPONDENTS 2ND SET. ***** 7 24.09.2010 Heard learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order dated 12.11.2008 passed by Subordinate Judge-I, Bettiah, in Partition Suit No. 4/2008 by which the petition for injunction has been dismissed. 3. The plaintiff-appellant filed a suit against the - 2 - respondents no. 1, the father, and respondents no. 2 & 3, the brothers, and respondents No. 4 and 5, the sisters, for partition of his sale, to the extent of 1/4th share. 4. The respondents appeared and filed written statement asserting that there is already prior partition by oral family partition in the last week of December, 2000 for all the movable and immovable properties and thereafter the plaintiff and defendants are completely separate. In the said suit a petition under Order XXXIX Rule 1 of the Civil Procedure Code was filed by the appellant for grant of injunction restraining the defendants first party from alienating or executing any document. In the said injunction petition the grounds made out that the plaintiff is in service an got salary and rarely visit his paternal home and defendant no. 1, the father, is selling the property at the instance of the brothers, defendants no. 2 and 3, and he has got an information that they are contemplating to alienate the valuable suit property, however, the said injunction petition was contested and show cause filed on behalf of the defendants, that, the plaintiff has got no interest in this case in view of the prior partition. - 3 - 5. After considering the pleadings of the parties the trial Court rejected the petition for injunction on the ground that a letter has been filed on behalf of defendant no. 1 alleged to be written by Kameshwar Giri, the appellant, to defendant no. 1, his father, in which the appellant has requested the father to further give him share in property allotted to the father, and this letter by Kameshwar Giri was taken as proof of prior partition. Taking a view that the letter of the defendant no. 1 itself apparent about the prior partition as he has further demanded share in share allotted to father between the farther and sons, and so held that there is no prima facie case nor balance of convenience in favour of appellant and thereby rejected the injunction petition. 6. The learned counsel for the appellant, however, contended that the plaintiff has filed the suit for partition and the same is being contested on the pleading that there is already an oral a partition and hence on rival contention the question for consideration in a suit is whether there is prior partition though it has not been in dispute that the suit property is not the ancestral property and since the matter is sub-judiced and question is to be gone in a suit that whether - 4 - there is partition or not and hence in that view of the matter it cannot be said that there is no prima facie case and when there is substantial question is to be litigated and then in that circumstance it can well be held that there is prima facie case as there is dispute that property is joint family property and then the balance of convenience and irreparable loss can well be inferred. 7. Learned counsel for the respondents, however, contended that the daughters also have got share under the present law of the land and if the daughters are also taken to be a co-sharer then the share of the share of this plaintiff is only 1/6th and further contended that the defendants no. 1, 2 & 3 have asserted that there is already partition, however, even assuming that the plaintiff has got 1/4th share then the defendants have got 3/4th share and the plaintiff is in service and hence may not be in need of money but the defendants are father and two brothers depending on agriculture land and hence they are required and in need of money to sell some of the properties and hence suggests that an order of absolute injunction may be a hardship for the respondents. 8. However, having regard to the facts and - 5 - circumstances, the parties agreed that the defendants may be given the right to sell the property, but, subject to condition that before the selling the property they must inform the Court and none of the parties will sell the land without prior notice and permission of the Court and lower Court will see that the party will not exceeding his share. 9. Hence the case is being disposed off in view of the consent of the parties with a direction to the lower Court to expedite the matter and proceed with the trial so that the case may be disposed off at an early stage, preferably within a period of one year. Cp:2/Safik (Gopal Prasad J)