IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.260 of 2005 1. Annpurna Devi, W/o. lalte Rajendra Prasad Singh, 2. Lal Bahadur Singh, S/o. late Rajendra Pd. Singh, 3. Sujit Kumar Singh, s/o. Lall Bahadur Singh, 4. Shanu Kumar Singh, 5. Satyam Kumar Singh, 6. Sunderam Kumar Singh, All minor sons of Sujit Kumar Singh through their father. 7. Nityanand Singh S/o. late Rajendra Prasad Singh, 8. Ajit Kumar Singh, 9. Pravin Kumar Singh, 10. Manoj Kumar @ Mantoo, 11. Murari Kumar Singh @ Murari Kumar , Sl. No.8 to 11 all are sons of Nitya Nand Singh. 12. Ankur Anand, minor son of Ajit Kumar Singh, 13. Rounak Kumar, Minor son of Pravin Kumar Singh through his father guardian, 14. Basudo Singh, S/o. late Rajendra Prasad Singh, 15. Santosh Kumar @ Santosh Kumar Singh, s/o. Basudeo Singh, 16. Samit Kumar @ Samit Kumar Singh, All r/o. village Tiri Tola, Dhanchhoha, P.O. Dhanchhoha, P.S. Gour Bazar, Distt. Saharsa. 17. Smt. Arhul Devi, D/o. late Rajendra Prasad Singh and W/o. Hari Ballabh Prasad Singh, r/o. village- Rajani, P.O. Rajani, P.S. Murliganj, Distt. Madhepura. ------ Appellants. Versus 1. Birendra Narayan Singh @ Birendra Prasad Singh, s/o. late Kamleshwari Prasad Singh, 2. Dipak Kumar Singh, S/o. Birendra Narayan Singh @ Birendra Prasad Singh, 3. Akash Kumar Singh, minor S/o. Dipak Kumar Singh through his father guardian. 4. Ashok Kumar Singh S/o. late Kamleshari Prasad Singh, 5. Anoj Kumar Singh S/o. Ashok Kumar Singh, 6. Amod Kumar Singh, 7. Rohit Kumar Singh, Sl. Nos.6 & 7 both are sons of late Kamleshwari Prasad Singh, 8. Ritesh Kumar Singh, 2 9. Rahul Kumar singh, Sl. Nos.8 & 9 both are sons of Rohit Kr. Singh, 10. Savitri Devi S/o. late Kamleshwari Prasad Singh. All residents of village- Tiri Tola Dhanchhoha, P.O. Dhanchhoha, P.S. Sour Bazar, Distt. Saharsa. 11. Pramila Devi D/o. late Kamleshari Prasad Singh, W/o. Naval Kishore Singh r/o. village l-Tiri Tola Dhanchhoha, P.O. Dhanchhoha, P.S. Sour Bazar, Distt. Saharsa at present r/o. village and P.O. Laxmipur, P.S. Barhara Kothi, Distt. Purnea. ---- Respondent 1st Set. 12. Sudama Devi W/o. late Haldhar Prasad Singh, 13. Sada Nand Singh S/o. late Haldhar Prasad Singh, 14. Kapill Kumar Singh, 15. Kundan Kumar Singh, Sl. Nos.14 & 15 both are sons of Sada nand singh, 16. Nawal Kishore singh, S/o. late Haldhar Prasad Singh, 17. Basant Kumar singh, 18. Ranjan Kumar Singh, 19. Sintu Kumar Singh, All are sons of Nawal Kishore Singh, 20. Shambh Kumar Singh @ Shambh Prasad Singh, S/o. late Haldhar Prasad Singh, 21. Manish Singh W/o. Shambh Kumar Singh @ Shambh Prasad Singh, Respondent Nos.12 to 21 are resident of village Tiri Tola Dhanchhoha, P.O. Dhanchhoha, P.S. Sour Bazar, Distt. Saharsa, 22. Ran Bijay Singh @ Rana Singh, S/o. late Haldhar Prasad Singh, 23. Anoj Kumar Singh, 24. Manoj Kumar Singh, Both sons of Ran Bijay Singh @ Rana Singh. All r/o. village tiri Tola Dhanchhoha, P.S. Sour Bazar, Distt. Saharsa at present resident of village and P.O. Bispatti, P.S. Alamnagar, Distt. Madhepura. 25. Smt. Manorma Devi D/o. lalte Haldhar Prasad Singh, W/o. Nitya Nand Singh, r/o. village- Tiri Tola, Dhanchhoha, P.S. Sour Bazar, Distt. Saharsa at present r/o. village and P.O. Sahjadpur, P.S. Kishunganj, Distt. Madhepura. 26. Smt. Anil Devi D/o. late Haldhar Prasad Singh, W/o. Balram Prasad Singh, r/o. village-Tiri Tola, Dhanchhoha, P.O. Dhanchhoha, P.S. Sour Bazar, Distt. Saharsa, at present r/o. village and P.O. Kajhi, P.S. Banmankhi, Distt- Purnea. ----- Respondents 2nd Set. Counsel for the Appellants: Mr. S.S. Dvivedi --- Sr. Advocate. Mr. Pramod Mishra, ---Advocate. 3 For the Respondents: Mr. V. Nath, --- Advocate. Mr. Amarnath Jha, Advocate, Mr. Ashok Kumar, ---- Advocate. 18 15.12.2008 This appeal is against the order dated 18.06.2005 of the Sub Judge-I Saharsa, passed in Title (Partition) Suit No.67 of 2004, whereby a petition under Order 39 Rules 1 & 2 C.P.C. as filed by the plaintiff/appellants praying for restraining the defendant/respondents in alienating the suit property has been refused. The plaintiff/appellants filed the suit claiming 3/10th share in the suit property. The plaintiff’s case was that the suit land was a joint ancestral property but the defendants were in possession of the properties and the plaintiff was not being allowed to enjoy her share in the property, therefore, a suit for partition was filed claiming the aforesaid share. During pendency of the suit the aforesaid petition was filed and the plaintiff/appellant prayed for an order injuncting the defendants from disposing of any portion of the suit property by way of alienation. The defendants filed their show cause and 4 their specific case was that the suit property was not joint, as alleged by the plaintiff/appellant and a partition had already been taken place earlier as back as in 1946 on the basis of a registered partition deed dated 25.02.1946 and that the parties were in possession of their separate shares, according to the deed of partition wherein all the co- parceners had joint at the time of that partition. It was also the case of the defendants that the parties were dealing with their separate properties. In para-25 of the W.S. (Annexure-2) the defendants stated that Rajendra Singh and Haldhar Singh, the ancestors of the plaintiff purchased the land of Kamleshwari Singh, the ancestor of the defendants and subsequently in the year 1952 and subsequently in the year 1975 vide registered sale deed dated 10.01.1975, Haldhar Prasad Singh, the ancestors of the plaintiff had sold his lands to his brother Rajendra Prasad Singh. In view of the case of the defendants as put forth in their W.S., learned counsel for the respondent argued that the registered partition deed dated 25.02.1946 was acted upon by all the co-sharers and on the basis of 5 that partition parties were coming in their individual possession of their ancestral land. Learned counsel continued to submit that the plaintiffs started putting obstruction in the enjoyment of the individual shares of the defendants, therefore, the defendants filed Title Suit No.134 of 2003 before Sub Judge for declaration of their title and confirmation of their possession over the lands which they were holding as per the partition deed of the year 1946. It was also submitted that after filing of their said Title Suit the plaintiff filed the instant suit No.67 of 2004 with a view to creating complications and putting obstructions before the defendants in various ways. Learned counsel for the plaintiff/appellant submitted that the defendants are selling the suit properties and thus the plaintiffs would be highly prejudiced if substantial or valuable properties of suit land are sold by them. To this submission of the plaintiff/appellant’s counsel, learned counsel for the defendants submitted that the plaintiffs have already sold their lands treating the share as individual share and that the defendants are in possession of their separate and 6 individual shares, hence, the balance of convenience would never lie in favour of plaintiffs in making such a prayer for restraining the defendants who are holding their lands separately and individually on the basis of the registered partition deed of the year 1946. It was also submitted that even assuming the property as joint for the sake of argument there is no question of irreparable loss to the plaintiff as the purchaser cannot get anything more then the share of the particular vendor’s share in the suit property. Thus hearing both sides, I find that any prima facie case for injunction in the light of balance of convenience or irreparable loss is not made out. In such view of the matters, the learned court-below was perfectly justified in refusing the plaintiff/appellants’ prayer for injunction against the defendant/respondents. The impugned order needs no interference; hence, the appeal is accordingly dismissed. Mkr. (C.M. Prasad, J.)