IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.167 of 2009 1. SUBALAL SAHNI, S/O KESHWAR SAHNI, R/O VILLAGE SALKHANI, P.S. DALSINGHSARAI, DISTRICT SAMASTIPUR 2. RAM CHANDRA SAHNI, S/O LATE LALJEE SAHNI, R/O VILLAGE GHAT NAWADA, P.O. + P.S. DALSINGSARAI, DISTRICT SAMASTIPUR 3. PUNE SAHNI, S/O LATE GYANCHAND SAHNI, R/O VILLAGE MOLBICHAK, P.O. + P.S. DALSINGSARAI, DISTRICT SAMASTIPUR .. DEFENDANTS/APPELLANTS Versus 1. KAMLA DEVI, W/O SRI RAM BARAN SAHNI 2. SAKUNI DEVI, W/O SRI RAM PRAVESH SAHNI 3. RAM BARAN SAHNI, S/O GOBIND SAHNI ALL RESIDENTS OF MOHALLA CHAK BHIKHAN SAHI KHAN, NAWADA, MOLBICHAK, P.S. DALSINGSARAI, DISTRICT SAMASTIPUR .. PLAINTIFFS/RESPONDENTS 4. YOGENDRA SAHNI, S/O LATE RAM KHELAWAN SAHNI, R/O VILLAGE GHAT NAWADA, P.O. + P.S. DALSINGSARAI, DISTRICT 5. SITARAM SAHNI, S/O LATE NENGER SAHNI, R/O VILLAGE MOLBICHAK, P.O. + P.S. DALSINGSARAI, DISTRICT SAMASTIPUR .. DEFENDANTS/RESPONDENTS **** 14 14 September 2010 Heard learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 28.01.2009, passed by the Sub Judge, I, Dalsingsarai, Samastipur, in Title Suit No. 119 of 2008, by which he has directed the defendants not to interfere with the peaceful possession of the plaintiffs till the final disposal of the injunction petition and to file written statement and, 2 hence, defendants are the appellants. 3. The case of the plaintiffs that they have purchased the suit land purchased from Ashok Kumar Sah and after purchase of the land the plaintiffs have mutated their names after Jamabandi created in their name, but, the defendants are coming in the possession in view of the order of parwana, issued by the District Fisheries Officer-cum- Chief Executive Officer, Samastipur. 4. The case of the defendants is that they have taken the jalkar right and the land has been settled for fishing by the Fisheries Department and has taken the plea that the and has been settled by the Government, but, the State has not been made party and since he has taken the settlement for five years they have got a right over the land and the suit is not maintainable for non-joinder of the State as party. 5. The learned counsel for the defendants contended that the said land has been settled by the Fisheries Cooperative Society and the defendants have deposited the settlement fees and hence got a right of fisheries and further raised their claim on the basis of 3 Circular No. 1919 of the Government of Bihar, i.e., jalkar with fisheries goes in raiyati land then the settlee has got right over the said fishes and the raiyati land owner has no right to restrain. 6. However, taking into consideration the submission and the averment made in the show cause that said land is raiyati and no circular as stated in paragraph 11 filed held prima facie case in favour of plaintiffs and further plaintiffs are in possession of suit land on the basis of sale deed and order of mutation held that defendants can not be permitted to interfere with possession till final order passed and order to grant interim injunction in favour of plaintiffs.. 7. The learned counsel for the appellants, however, contends that they have taken the settlement from the Government of Bihar and they have the right for fisheries. It has further been contended that the State has not been made party and, hence, the suit is not maintainable. 8. Learned counsel for the respondents, however, contends that the plaintiffs are claiming the land as a raiyati and have purchase the land from Ashok Kumar Sah though the land is settled as gair mazrua khas land in the cadastral 4 survey, but, in the revisional survey it is in the name of Dhanki Sah and, hence, contended that the land is raiyati land and the plaintiffs having claimed to have purchased the same and has made out a case that land is raiyati and, hence, the preference be given to the plaintiffs-respondents in preference to defendants-appellants as claimed. 9. However, taking into consideration the respective submissions, it is true that the claim of the plaintiffs that it is the raiyati land whereas the claim of the appellants is that jalkar right is settled to him and if the fishes goes to even in raiyati land then he has right to fishing, but, the question relates to foundational fact whether the jalkar extends to raiyati land. However, even assuming that the plaintiffs has got prima facie case, but, the fact remain that plaintiffs are in possession of the raiyati land and, hence, question for consideration is irreparable loss and balance of convenience. However, since, the plaintiffs are in possession of raiyati land the order of interim injunction has been passed taking into consideration these facts. It is not proper to embark at this stage on the merit as the matter of consideration of injunction is still 5 pending before the lower Court. However, the lower Court has found a prima facie case in favour of the plaintiffs and ordered the defendants not to interfere and more over the plaintiffs are in possession of land and impugned order is only interim order, hence, I do not feel inclined to interfere with impugned order and, hence, under the fact and circumstance, Miscellaneous Appeal is dismissed with a direction to the lower Court to dispose off the injunction petition finally. Cp:2/S.A. ( Gopal Prasad, J. )