IN THE HIGH COURT OF JUDICATURE AT PATNA MA NO.168 OF 2008 DR. ALKA SHARAN, WIFE OF SHRI ASHOK KUMAR SINHA AND DAUGHTER OF LATE SITABAR SHARAN, RESIDENT OF MOHALLA SHEIKHPURA, POLICE STATION HAWAIADDA, DISTRICT PATNA AT PRESENT FLAT NO. 102, MAA BINDHYAVASINI COMPLEX, SHEIKHPURA MORE, P.O. B.V. COLLEGE, POLICE STATION SHASTRI NAGAR, DISTRICT PATNA ……. …………..PLAINTIFF/APPELLANT VERSUS 1. MOST. SAVITRI SHARAN, WIFE OF LATE SITABAR SHARAN, C/O SRI RAKESH BIHARI SHARAN, FLAT NO. 1D (1ST FLOOR-GIRIJA ENCLAVE, NEAR DEVI ASTHAN) BRHAM ASTHAN GALI AT SHEIKHPURA, P.O. B.V. COLLEGE, PATNA 14 2. SMT. KUNTI DEVI, WIFE OF MR. SURENDRA PRASAD, DUNDI BAZAR, NEAR SOUTH GATE OF MANGAL TALAB, P.O. CHOWK SHIKARPUR, PATNA CITY 3. SMT. SUMITRA SHARAN, WIFE OF LATE SHARDA NANDAN PRASAD, RESIDENT OF CHHOTI BADALPURA, KHAGAUL, PATNA 4. SMT. PRATIBHA SHARAN, WIFE OF MANOJ KUMAR SINHA, RESIDENT OF KACHCHI TALAB, SARISTABAD, P.O.-GARDANIBAGH, PATNA, AT PRESENT REISDING AT MOHALLLA AZAD PATH, HOUSE NO. AP/A2, SARISTABAD, POLICE STATION GARDANIBAGH, DISTRICT PATNA ALL THREE DAUGHTERS OF LATE SITABAR SHARAN 5. SHRI MADAN MOHAN SHARAN, RESIDENT OF SRI KEDAR NATH SINHA (EX-BRIGADIER) AT SHEIKHPURA, P.O. B.V. COLLEGE, PATNA 14 6. SHRI ASHOK BIHARI SHARAN, BAILEAY KUNJ (NEAR MARUTI POINT GARAGE) SHEIKHPURA, P.O. B.V.COLLEGE, DISTRICT PATNA 7. SHRI DINESH BIHARI SHARAN, AT PRESENT 203, AMBEJEE APARTMENT, SHEIKHPURA, P.O. B.V.COLLEGE, PATNA 8. SHRI RAKESH BIHARI SHARAN, FLAT NO. 1D (1ST FLOOR) GIRIJA APARTMENT (NEAR DEVI ASTHAN), BRAHM ASTHAN GALI ROAD AT SHEIKHPURA, P.O. B.V. COLLEGE, DISTRICT PATNA 14 ALL SONS OF LATE SITABAR SHARAN, ALL RESIDENTS OF MOHALLA SHEIKHPURA, P.O. B.V.COLLEGE, P.S. HAWAIADDA, DISTRICT PATNA 14. 9. SHRI DEEPAK KUMAR SINHA, SON OF SHRI SHIV SHANKAR SINHA, MANAGING DIRECTOR, CLASSICON BUILDERS (I) PRIVATE LIMITED, RESIDENT OF KESHRI NAGAR, P.O. KESHRI NAGAR, P.S. SHASTRI NAGAR, DISTRICT PATNA AT PRESENT 2ND FLOOR, JJ COMPLEX, EAST BORING CANAL ROAD, PATNA-1. …… ………. ……..DEFENDANTS/RESPONDENTS ******* 13 10.02.2009 This miscellaneous appeal has been filed against the order, dated 07.02.2008 passed in 2 Partition Suit No. 470 of 2006 by the Subordinate Judge 1st, Patna by which the injunction sought by the plaintiff to restrain the defendants particularly defendant no. 9 from changing the nature of the suit premises has been rejected on the ground that the plaintiff has not been able to make out a prima facie case for grant of injunction. The case of the plaintiff is that Sitabar Sharan died leaving behind his wife, defendant no. 1, four daughters including the plaintiff and four sons who are defendants in this appeal. Defendant no. 9 is a property developer. The defendants have entered into an agreement with defendant no. 9 to develop the property which is the part of schedule 1 to the plaint. Plaintiff who is one of the daughters of Late Sitabar Sharan has claimed 1/9th share in the suit property. The suit property consists of plot no. 1291 measuring 41 decimals of land, plot no. 1291/1856 measuring 10 decimals of land and plot no. 1289 measuring 30 decimals of land which is lying vacant. It has been stated that plot no. 1291 has some shops and plot no. 1291/1856 has a house purportedly occupied by the plaintiff. The plaintiff claims that her father had gifted orally the lands with respect to plot no. 1291/1856 and she had a pathological lab over it. Adjacent to 3 these plots of land is the plot no. 1290 belonging to a third party (not a party in this suit). The pleadings with respect to the oral gift by Sitabar Sharan in favour of the plaintiff has been brought on record by making a prayer to amend the plaint. The case of the defendant is that Sitabar Sharan had executed a will in favour of the defendant no. 1, his wife, as well as the four sons. Defendant no. 1 was made the executor of the will. It is pleaded that by virtue of the will, the defendants entered into an agreement on 19.12.2004 with the developer, defendant no. 9 to construct a multi-storied building on the said land. It is also the case of the defendants that all the three plots belonging to Sitabar Sharan and plot no. 1290 were amalgamated and formed part of one plot. The Court below has held that the plaintiff has not been able to make out a prima facie case in her favour as her claim is that she had title over the plot no. 1291/1856 by virtue of the deed of gift executed in her favour which has been challenged by the defendants. On going through the judgment, the documents that has been brought on record, it is apparent that three plots belonging to Sitabar Sharan were amalgamated with plot no. 1290 and from the 4 photograph and the map, it appears that the construction at present is mostly on plot no. 1290 and only part of the construction is over the Schedule 1 property. This Court finds that the oral gift on the basis of which the plaintiff is claiming her exclusive title is yet to be established. The defendants have challenged the existence of any gift. On the other hand, the basis on which the defendants have entered into an agreement with defendant no. 9 is the will, which has not yet been probated. It is well established that title can not be decided in proceedings for grant of probate or letters of administration. Whatever, therefore, might happen in the case for probate of the will, it would not decide the title of the parties seeking probate. Thus, the Court below ought to have taken into consideration that will had not been put to probate (although it is submitted that after the filing of the suit, a probate case has been filed in the Court below) and the question that the plaintiff has exclusive title over the part of the suit lands is also an issue which has to be decided during the trial and on the basis of the oral deed of gift, this Court can not hold that the plaintiff has a prima facie case in her favour. Learned Counsel for the plaintiff has 5 relied on a judgment of the Supreme Court in the case of Dorab Cawasji Warden vs. Coomi Sorab Warden, reported in AIR 1990 SC 867 to submit that the plaintiff is entitled to an order restraining the defendants from changing the nature of the suit lands. The facts of the aforesaid case are different to the facts of the present case inasmuch as none of the parties were claiming title to the exclusion of the other party in the said suit and as such, the decision relied upon would not help the plaintiff/appellant. On the other hand, if the Court takes into consideration that there are serious disputes with respect to title of each of the parties who are claiming possession over part or whole of the suit lands is ignored for the present, then it would appear that the plaintiff would have 1/9th share in the suit lands. The defendants, on the other hand, jointly have a larger share on the suit lands, It appears that defendant no. 9 has already constructed the major part of the building. From the photograph and the map produced on behalf of the defendant no. 9 and as stated above only part of the building is on the suit land and as such no injunction can be granted in favour of the plaintiff restraining the defendants (in this case defendant no. 9) to change the nature of the suit 6 lands. In any event, defendant no. 9 has agreed not to hand over possession of 1/9th share of the constructed building out of the share of the building which would accrue to the defendants 1 to 8. I find that the plaintiff will not suffer any irreparable loss if the defendant no. 9 is permitted to make or complete the construction works on the suit lands for the reasons that the right of the plaintiff with respect to her 1/9th share is being protected by this Court. The plaintiff has failed to show that she is in possession over the suit land and as such it can not be held that the balance of convenience would tilt in her favour. The findings aforesaid with respect to the share to be reserved for the plaintiff in the constructed portion of the suit lands would be subject to the result of the partition suit. In the result, this appeal is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J. )