IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.423 of 2006 Ram Nath Singh, s/O LATE Jagannath Singh, resident of village and P.O. Reotith, in the district of Gopalganj Versus 1. Mahadeo Singh 2. Ram Naresh Singh, both sons of late Jagannath Singh, resident of village and P.O. Reotith, in the district of Gopalganj…………….. Defendant-1st set- Respondent 1st set. 3. Dr. Nawal Kishore Ojha, S/o late Janardan Ojha, resident of village and PO Dighwa Dubauli, in the district of Gopalganj 4. Narayan Singh, S/o late Mahadeo Singh, resident of village & PO Reotith, in the district of Gopalganj …Defendant 2nd Set……….. …………….Respondent 2nd Set. ----------- For the appellant: M/S Ashutosh Jha, Narendra Pandey & Bijay Kant Mishra, Advocates. For the Respondents: Mr. Anil Kumar Rakesh, Advocate. ---------- 13. 3.2.2010 Heard learned counsel for the appellant and learned counsel for respondent nos. 2 and 3. The Miscellaneous Appeal has been filed against the order dated 27.9.2006 passed by Sub Judge-1, Gopalganj in Title Suit No. 296/2006 by which he has rejected the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for injunction filed by the plaintiff-appellant. The short facts of the case are that the land in dispute was purchased in the name of the plaintiff-appellant and his two brothers defendant-respondent nos. 1 and 2 in equal shares. The stand of the defendant-respondents is that there was a partition between the three brothers in the year 1966 itself with respect to which an agreement was also executed on 12.9.1989 and all the three brothers are coming in their separate possession over their separately allotted shares. The appellant filed an application under Order 39 2 Rules 1 and 2 seeking injunction that the defendant-respondents should be prohibited from making construction over the land in question. On a consideration of the materials on the record, the court below came to the conclusion that there was a prior partition between the three brothers and thus it did not find any prima facie case in favour of the plaintiff-appellant for the purpose of injunction and accordingly rejected the same. Learned counsel for the appellant submits that since there is presumption of jointness of a Hindu family, therefore it is for the other side to satisfy the Court that there was a partition. It is further submitted that the court below has finally decided the suit itself by giving a finding of prior partition and thus the order under challenge is an illegal order. It is lastly submitted by learned counsel for the appellant that the suit itself should be directed to be disposed of expeditiously as directed in several decisions of this Court in similar matters. Learned counsel for the respondents, on the other hand, relies upon the finding of the court below that there was a prior partition between the parties. On a consideration of the submissions of learned counsels for the parties, as also the impugned order, this Court is of the view that it was open to the court below to come to a prima facie conclusion that there was a prior partition of the land in question. Such a finding, although not specifically stated to be so, but is 3 presumed in law in all matters relating to interim injunction to be only a prima facie finding and not a final finding of the issues in the suit itself. In the said circumstances, the finding of prior partition of the court below cannot be said to be illegal nor can it have any effect on the final decision in the suit. So far as the presumption of jointness is concerned, the same is not absolute and once the court below has come to believe the agreement of 1989 regarding partition of the land in dispute then for the purpose of interim injunction the said presumption would not hold. Thus, this Court does not find any illegality in the order of the learned court below. The appellant having failed to show a prima facie case in his favour, the court below had the discretion to reject the prayer for ad interim injunction. The appeal is accordingly dismissed. However, it is expected that the court below shall proceed expeditiously in the matter and dispose of the Title Suit No. 296/2006 itself within a reasonable period of time. S. Pandey (Ramesh Kumar Datta, J.)