IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.320 of 2009 SATYADEO PANDEY, Son of Late Laxman Pandey, resident of Mohalla – Mirachak, Post – Arrah, P.S. – Arrah Town, District – Bhojpur, at present residing at village – Nakati Kol, P.S. – Bhanwar Kol, District – Gajipur (U.P.) ... Appellant …. Defendant Ist Set. ……………………. Appellant. Versus 1. MAN MOHAN PANDEY @ LALAN PANDEYA, Son of Late Laxman Pandeya. 2. Sheo Shankar Pandey @ Tunna Pandeya. 3. Sunik Kumar Pandeya. Both sons of Shri Man Mohan Pandeya. All the three are residents of village – Mirachak, P.O. – Arrah, P.S. – Arrah Town, District – Bhojpur. ……… Plaintiffs …… Respondent Ist Set. 4. Sharda Devi, daughter of Late Laxman Pandeya and wife of Shri Ramakant Pandeya, Resident of Mohalla – Mahajan Toli No. 2, P.S. – Arrah Town, District – Bhojpur. 5. Asha Devi, daughter of Late Laxman Pandeya, wife of Shri Badri Pandey, resident of village – Kamalpur, P.S. – Kamalpur, District – Chandauli (U.P.) ……. Respondent 2nd Set – Defendant 2nd Set. 6. (i) Basanti Devi. (ii) Anita Devi. (iii) Shiwani Kumari. (iv) Rohit Kumar. (v) Ritika Kumari (v) Nikit Kumar. Mohalla - Begampur, P.O. – Arrah, P.S. – Arrah Town, District – Bjojpur. ……. Respondent 3rd Set …….. Defendant 3rd Set. ----------- 08/ 26.10.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the judgment and order dated 25.04.2009 passed by Sub-Judge VIIth Ara in Title Suit N. 174 of 2006 granting injunction restraining the defendant no. 1 from alienating the suit land. 2 From perusal of the records, it appears that the plaintiff filed a suit for partition claiming 1/4th share in the suit property with a prayer that the defendant no. 1 Satyadev Pandey has executed a Mahadnama with respect to 28 Khata of land in favour of respondent no. 6 and not to alienate the suit property. Learned counsel for the appellant has contended that the defendant no. 1 is entitled to only 1/4th share as instead of plaintiff and defendant who are the full brothers there are also two sisters and hence the plaintiff has got only 1/4th share but he has executed Mahadnama with regard to the half of the suit property and in the suit a petition under Order XXXIX Rule 1 and 2 of the C.P.C is filed for interim injunction restraining the defendant from selling the suit property. Learned counsel for the appellant, however, denied existence of the two sisters and asserted that the two sisters have not appeared and asserted that there is partition and the defendant is selling the land of his share to the extent of 28 Khata for which he has executed a registered Mahadnama and the plaintiff is pressurizing the defendants to sell the land for which they are given open offer and file 3 the suit to grab the land. After considering the case of the parties the impugned order was passed by which defendant no. 1 has been restrained holding that nothing has been produced before the trial court to show that there was any prior partition whereas the documents like Khatiyan and rent receipt where the name of the plaintiff and defendant no. 1 are jointly recorded and hence held that the contract for sale itself suggest a prima facie case and the balance of convenience and irreparable loss to the plaintiff. The defendant is the appellant. The learned counsel for the appellant, however, contended that there was previous partition and he is executing the sale deed of his share and contended that the sister has not appeared and it has been contended that in the suit itself there is mention of a previous partition and if there is previous partition then it is incumbent on the plaintiff to prove that there was no complete partition and submits that the plaintiff is only selling half of his share and the plaintiff has got only 1/4th share and the alleged sisters have not joined and hence, the plaintiff is only entitled for 1/4th and hence the remaining half thereto will satisfy the plaintiff and however, contended 4 that the sisters are not coming forward and a ghost has been created in the name of the sister and submitted that right to property is a human right. Learned counsel for the respondent, however, contended that the suit has been filed in which it has been asserted that the plaintiffs are two brother and two sister and each has got 1/4th share and one of the sisters has appeared in the lower court and is also appearing in this court and in the plaint it has been asserted that there was a real separation and are in possession as per convenience and there is no partition by metes and bounds and the defendant no. 1 and his sons are illegally claiming 28 Khata of the land for which they have executed a deed for sale. One of the sisters has appeared and even supported the case of the plaintiff. However, on the respective submissions of the parties the question for consideration is whether the order of injunction granted by the lower court is sustainable in the eye of law. However, the case of the plaintiff that the plaintiff has two brothers and two sisters and defendant no. 1 is brother and other defendants are the two sisters and the plaintiff is claiming 1/4th share. However, the trial court has considered the 5 document filed by the parties and observed that the document like Khatiyan and the land receipt filed by both the parties show the name of both the persons jointly with their share defined. However, when the share is shown to have been defined as half and half only but that does not conclude that there was partition by metes and bounds. However, document has not been adduced by other party to suggest about partition by metes and bounds and admittedly the property is the joint family property and the schedule. Admitted fact is that a Mahadnama has been executed by defendant no. 1 in favour of defendant no. 5 who is stranger to the family. However, learned counsel for the appellant has relied upon decision reported in 2007 (4) PLJR 646 (Brindaban Tiwary V. Awadhesh Tiwary) where it has been held that when the property is a joint family property no coparcener can alienate undivided interest without the consent of the other coparcener unless the alienation be for legal necessity or for payment by father of antecedent date and further it provides that consent of the other coparcener is necessary even if the alienation is made in favour of the coparcener. However, the case of the defendant is that the 6 parties have partitioned the property and he is only selling half of the share. However, it has been asserted that there was partition. However, plaintiff in his plaint has asserted that there is only separation and the parties are in possession according to their convenience and there is no partition by metes and bounds and hence there is no partition by metes and bounds and the defendant has also not been able to show any material to the satisfaction of the court that there was a previous partition or he got a share. Moreover, the sisters are there who are party, even one of them has appeared after due notice and the matter is subjudice in the suit and hence from the existence it can well be interfered that the plaintiff has made out a prima facie case and further in view of the admitted fact that the defendant has executed a Mahadnama with regard to sell of 28 Khata of the joint family property which is subject matter of suit and hence balance of convenience and irreparable loss in favour of the plaintiff as they will extend the litigation and hence I do not find any merit to interfere with the impugned order and hence the appeal is dismissed. Kundan (Gopal Prasad, J.)