IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.511 of 2010 1. SHANTI DEVI, w/o. Sri Ved Narayan Singh, resident of village – Tulsi Tola, P.S. – Piro, Distt. – Bhojpur, Arrah. 2. Lilavati Devi, W/o. Sri Arvind Singh, resident of village – Bhelai, P.S. – Udwant Nagar, Distt. – Bhojpur, Arrah. ……………… Plaintiffs / Appellants. Versus 1. SNCHLATA @ CHUNMUN DEVI, W/o. Late Madan Mohan Singh. 2. Vishwa Mohan Pankaj, S/o. Late Madan Mohan Singh. 3. Anand Mohan Singh, S/o. Late Madan Mohan Singh. All resident of village – Bhelai, P.S. – Udwant Nagar, Distt. – Bhojpur, Arrah at present. Village + Post – Anaeth (Bihari Mill), P.S. Ara Nawada, Distt.- Bhojpur. 4. Baban Singh. 5. Kanta Singh. Both son of Chandi Mahto, resident of village – Bhelai, P.S. – Udwant Nagar, Distt. – Bhojpur, …………………….. Defendants / Respondants. ----------- 03/ 29.09.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 06.03.2010 passed by the 7th Sub-Judge, Arrah in Title Suit No. 421 of 2006 by which he has rejected the injunction petition filed on behalf of the plaintiff. The case of the plaintiff is that one Mulchand Mahto had two sons Ram Parikh Mahto and Modhi Mahto. Ram Parikh - 2 - Mahto had a son Mahanand Singh and Mahanad Singh had a son Madan Mohan Singh and the widow of Madan Mohan Singh is Snehlata @ Chunmun Devi defendant no. 1 and two sons of Madan Mohan Singh named as Vishwa Mohan Pankaj and Anand Mohan Singh are defendant no. 2 and 3 and Mahanand Singh also a daughter Shanti Devi who is plaintiff no. 1 is the appellant in this appeal. Modi Mahto had two sons Baban Singh and Kota Singh. Baban Singh has a son Om Praksah Singh and Kota Singh had three sons Arvind Singh, Shashi Bhushan Singh and Bali Singh, Lilavati Devi is the wife of Arvid Singh is the plaintiff no. 2 and Shanti Devi plaintiff no. 1 has filed the suit for partition claiming 1/4th share in the property and in the said suit injunction petition has been filed. The case of the defendant is that Shanti Devi is not the daughter of Mahanad Singh rather she is the daughter of Kota Singh and further case is that there was partition between Mahanand Singh and Modi Singh and Mahanand Singh and his - 3 - heirs are in possession of land allotted to them by partition and hence the plaintiff is not entitled to any relief. However, in the partition suit injunction petition was filed. An injunction petition was filed on behalf of the plaintiffs. A rejoinder has been filed by the defendant Ist party that they have already denied in the written statement that Shanti Devi is not the daughter of Mahanand Singh and has asserted that Shanti Devi is the daughter of Kota Singh and has no right, title and interest in the share of the property allotted to Mahanand Singh and since there is partition between the Mahanand Singh and Kota Singh and hence the plaintiff has no right, title and interest over the share of the property of the defendant. The defendant has sold the land. Both the parties heard on the injunction petition and after considering the submission the impugned order has been passed. However, the trial court taking into consideration the submission of the parties held that the question to be decided in the suit is whether Shanti Devi is the daughter of Mahanand Singh and - 4 - whether the deed of gift executed by plaintiff no. 2 in favour of plaintiff no. 1 regarding her share of property. Earlier a partition suit no. 282 of 1992 filed and further withdrawing the deed of gift held to be contradictory and held that in such a situation the injunction is not required as no prima facie case is made out and the balance of convenience is not in favour of the plaintiff and there is no evidence. Learned counsel for the appellant, however, contended that the case of the plaintiff that the plaintiff is the daughter of Mahanand Singh and has claimed 1/4th share in the property of Mahanand Singh. However, the defendant has denied that the plaintiff is not the daughter of Mahanand Singh and hence this is an important issue to be decided in the suit whether the plaintiff is a daughter of Mahanand Singh or not and when an issue is whether the plaintiff is daughter of Mahanand Singh is or is not is a disputed question of fact to be decided in suit then it cannot be said that there is no prima facie case. It has further been contended - 5 - that at this stage the court has to see only the prima facie case. However, the defendant no. 2 and 3 are the sons of defendant no. 1 Snehlata and these defendants no. 2 and 3 filed memo of appeal before the D.C.L.R, Arrah, Bhojpur in Mutation Appeal No. 44 of 2007 in which defendant no. 2 and 3 has stated that Mahanand Singh died in 1954 leaving behind a son Madan Mohan Singh and a daughter Shanti Devi and Shanti Devi married in 1968 and hence these documents though filed before the lower court has not been considered and this fact has been stated in paragraph 15 of the memo of appeal which has not been controverted by the respondents and hence contended that prima facie it is established that Shanti Devi is the daughter of Mahanand Singh. Once it is prima facie appear on a document which is an admission of other set that Shanti Devi is the daughter of Mahanand Singh and it has also been asserted that during pendency of the suit the defendants have filed several sale deeds filed in the year 2007 in the year 2009 and the sale deeds even produced before the lower court and - 6 - from the impugned order also it is apparent that the respondents have sold some land prima facie establish balance of convenience and irreparable loss but the lower court rejected the plea on the ground that after filing of the suit the principle of lis pendence is applies and if the plaintiff succeeded then land sold to the extent of his share will declare to be void and so in such a situation there is no irreparable loss. Learned counsel for the appellant contended that when a suit is filed and the share of the plaintiff has been prima facie established and hence it is the duty to court to preserve the property so that the litigant may not get a decree as basket paper and could not be able to get the relief / the fruit of the decree and may compel to have a further litigation. It has further been contended that if the property is joint each co-sharer has right over the property and no co-sharer has a right to sell without the consent of other co-sharer and hence the judgment and order of the lower court suffers from the illegality and requires to be set aside. - 7 - Learned counsel for the respondent, however, contended that the defendant has also got share in the property and the defendant no. 1 is a lady and may require to sell the property that the provision requires to see that if the plaintiffs requires to sell the land then they may take permission from the court. However, contended that there is still the question under issue whether the plaintiff no. 2 is a daughter of Mahanand Singh or not. Hence, on rival submission of the parties the question for consideration is whether the plaintiff is entitled to an order of injunction and whether the impugned order is sustainable. The case of the plaintiff is that the plaintiff is the daughter of Mahanand Singh and Mahanand Singh has only two issue, a son Madan Mohan Singh and a daughter Shanti devi and Madan Mohan Singh died and his wife defendant no. 1 and 2 sons of defendant no. 2 and 3. However, a document produced before the court a photo copy of the memo of appeal filed by the defendant no. 2 and 3 before the D.C.L.R., Arrah vide Mutation Appeal No. - 8 - 44 of 2007 in which it has been referred that Mahanand Singh has a son Madan Mohan Singh and a daughter Shanti Devi. However, in addition, since the case of the parties and the plaintiff claims to be the daughter of Mahanand Singh and the defendants are the daughter-in-law and grand sons of Mahanand Singh as defendant who are denying the claim of Shanti Devi as the daughter of Mahanand Singh and hence a question has arisen whether Shanti Devi is daughter of Mahanand Singh or not and it is an issue in the suit and hence an important question is to be determined then there is a prima facie case, however, during the pendency of the suit several documents have been filed and it has been alleged that the defendant no. 1 have executed eight sale deeds and a photo copy of these sale deeds / certified copy of the sale deed has been filed to prima facie show that the defendant no. 1 is selling the lands and has sold some of the land during the pendency of the suit as the suit filed in 2006 and the sale deed has been executed in 2007 and 2009 and hence sale deed executed during the pendency of the - 9 - suit. However, the property is joint then one co-sharer can sell the land with the permission or consent of other co-sharer and having regard to fact that defendant sold the land without permission or consent of other co-sharer i.e. other side then the balance of convenience and irreparable loss in favour of the plaintiff and in such circumstance the suit land is required to be protected so that the person having succeeded in the suit may get the fruit of decree and defendant will not be allowed to sell the property in suit and if the property is not preserved and protected then it will be a great hardship to the plaintiff after succeeding in suit to get those properties from a third person and hence the property is required to be preserved and the finding recorded by the lower court that there is no balance of convenience or irreparable loss is not sustainable and is set aside as the lower court did not go into the question in proper perspective without considering the important document to held that there is no prima facie case and no balance of convenience or irreparable loss deed of gift in title suit number - 10 - was executed which was subsequently terminated and hence the trial court decided the issue without consideration of important material and hence the finding recorded by the learned lower court is set aside and it is hereby ordered that the parties shall maintain status quo as existing today. However, if either of the parties required to dispose of the property, then shall inform the court and after taking due permission of the court, may dispose of any part of the property and hence the appeal is allowed. Kundan (Gopal Prasad, J.)