IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1949 of 2010 1. AKHILESH KUMAR S/O LATE NAVNATH SINGH R/O VILL-SIWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 2. DHIRENDRA KUMAR SINGH S/O LATE NAVNATH SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 3. RAJESH KUMAR S/O LATE NAVNATH SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN Versus 1. MUNINDRA NATH SINGH S/O LATE SHIV JATAN SINGH R/O VILL-SAWAN VIGRAH, .S DARAUNDA, DISTT- SIWAN 2. SHRI BHAGWAN SINGH S/O LATE SUDAMA SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 3. SHRI SHALIGRAM SINGH S/O LATE CHANDRA RAI R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 4. SHRI SHIVJI SINGH S/O LATE CHANDRA RAI R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 5. RAM SAGAR SINGH S/O LATE SURYADEO SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 6. RAVINDRA SINGH S/O LATE GORAKHNATH SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 7. SRI VIRENDRA SINGH S/O LATE GORAKHNATH SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 8. SURENDRA SINGH S/O LATE GORAKHNATH SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 9. SHANTI DEVI W/O MUNINDRA NATH SINGH R/O VILL- SAWAN VIGRAH, P.S DARAUNDA, DISTT- SIWAN 10. THE STATE OF BIHAR, THROUGH THE SECRETARY, LAW DEPARTMENT, BIHAR, PATNA ----------- 2 12.4.2010 Petitioners have filed a Suit for partition. They claim share in the property in question. The Suit is yet to be adjudicated. In the meantime, the party in possession of the property has entered into licensing agreement for establishing a BTS Tower (Mobile Tower). Petitioners assert that the property is in joint possession. They had accordingly filed an application for injunction and/or 2 maintaining status quo. Status quo was granted by the trial court but has been vacated by the appellate Court and as such this application under Article 227 of the Constitution of India. Having heard Mr. S.S.Dwivedi, learned Senior Counsel in support of the writ petition, in my view , the appellate order cannot be interfered with On behalf of petitioners it is asserted that the property is in joint possession. The defendants have refuted the same. This aspect of the matter is in dispute. If it was in joint possession, then there was no occasion for any third party to enter upon the land only with the permission of the defendants. That prima facie, negates the stand of Mr. Dwivedi for the petitioners . Secondly, the right of the plaintiffs is yet to be determined in the land. In such a situation, to restrain the defendants from enjoyment of the land or benefits arising from the land would not be fair and equitable. If and when it is held hat the petitioners have a right in the property and this property has to fall to the share of the petitioners, they can always make an application for mesne profit and for eviction of the third party from the suit land but as of now the defendants cannot be restrained in any manner. With the aforesaid observations and directions, the writ petition stands dismissed. Singh (Navaniti Prasad Singh, J.)