IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.317 of 2009 1. MD.ILIYAS, S/O LATE SHEIKH LIYAKAT 2. BIBI ZAIBU NISHA, W/O MD. ILIYAS BOTH ARE RESIDENTS OF VILLAGE MANSOORPUR, P.O. & P.S. MOTIPUR, DISTRICT MUZAFFARPUR .. (PLAINTIFFS/RESPONDENTS 1 AND 18 RESPECTFULLY IN THE COURT BELOW)/ APPELLANTS Versus 1. NASIRUDDIN, S/O LATE ABDUR RAHMAN 2. MOSST. MAINI, W/O LATE BISIRRUDDIN BOTH ARE RESIDENTS OF VILLAGE MANSOORPUR, P.O. & P.S. MOTIPUR, DISTRICT MUZAFFARPUR .. (DEFENDANTS 2 & 3/APPELLANTS IN THE COURT BELOW) RESPONDENTS 1ST SET 3. S.K. HASHMAT, S/O LATE MD. ALI 4. SALEHA KHATOON, D/O FAZLE HASSAN AND WIFE OF MD. ATAULLAH 5. SAIKUL KHATOON, D/O LATE FAZLE HUSSAIN AND WIFE OF MD. SLAIM 6. S.K. GAFFOR 7. S.K. SHAKOOR 8. S.K. RAUF (RESPONDENT 6, 7 & 8 ARE SONS OF LATE S.K. DASAIN) 9. ZARINA KHATOON 10. MEHRUN (RESPONDENTS 9 & 10 ARE DAUGHTERS OF LATE S.K. DASAIN) RESPONDENTS 3 TO 10 ARE RESIDENTS OF VILLAGE MANSOORPUR, P.O. & P.S. MOTIPUR, DISTRICT MUZAFFARPUR 11. ABDUL ZABBAR, HUSBAND OF LATE MAKINA KHATOON 12. MD. LAHAMUTULLAH 13. MD. ATAULLAH 14. MD. EZAZ 15. MD. ZAKIR (RESPONDENTS 12 TO 15 ARE SONS OF LATE MAKINA KHATOON) 2 16. BIBI QUAMRUNISH, D/O LATE MAKINA KHATOON ALL RESPONDENTS 11 TO 16 ARE RESIDENTS OF VILLAGE LADAURA, P.S. KURHANI, P.O. PAKARI, DISTRICT MUZAFFARPUR 17. ZAIMUL, W/O NIZAMUDDIN @ DOMAN AND D/O S.K. DASAI, R/O VILLAGE FATEHAN, P.O. & P.S. MOTIPUR, DISTRICT MUZAFFARPUR 18. MAINUL, D/O MD. RAFIQUE AND WIFE OF LATE S.K. DASAI, R/O VILLAGE NURULLAHPUR, BANGRA, P.O. & P.S. KANTI DISTRICT MUZAFFARPUR ( DEFENDANTS/RESPONDENTS IN THE COURT BELOW) .. RESPONDENTS 2ND SET **** /9/ 27 August 2010 Heard learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 06th June, 2009, passed by Additional District Judge, IV, Muzaffarpur, in Partition Appeal No. 56 of 2007 by which he has rejected the injunction petition filed by the appellants-respondents. 3. The plaintiffs filed the suit for partition of 1/10th share. The suit was decreed on 06.06.2009. Against the said judgment and decree defendants filed appeal. During the pendency of the appeal an injunction petition was filed by the plaintiffs-respondents that during the pendency of the suit he has constructed a pucca room in his residential house, which is un-plastered and asserted that whenever they collected the material for plaster, appellant 3 no. 1 and his family forcibly did not allow them to construct, hence, pray that the appellant no. 1 may be restrained for putting obstruction in making necessary construction. 4. The learned counsel for the respondents submits that in paragraph 7 of the rejoinder the appellants stated that neither any room has been constructed nor anything has been constructed and it is a false story that there is any construction of any house in the suit property. 5. Hence, considering the fact and circumstance the learned Court below held, admittedly, that the property is joint property yet not partitioned by metes and bounds and without any specification of any residential house construction being not specified it is not possible that any injunction order or order restraining the other side be passed and, accordingly, rejected the petition being vague rejected the injunction petition. 6. The learned counsel for the appellants submitted that he has constructed the house. Respondents are obstructing in making necessary construction submission and, hence, be restrained and in the garb they are trying to 4 get an order for making construction. 7. The respondents, however, contended that the allegation is vague. However, the suit is for partition and the appellants’ petition for injunction to restrain the respondents not to disturb in constructing the house. It amounts to permit the appellants to make construction. However, the appellants have not made any specification of the house constructed and the allegation of obstruction by the respondents is also vague. There is no specification of house or mention of house in plaint and the allegation that the respondents are forcibly not allow them to construct is quite vague with any specific act of commission or omission and granting an injunction shall amount to a permission to construct over the suit property on vague averment is neither proper nor permissible. 8. Hence, taking into consideration the fact and law that balance of convenience does not lie in favour of the appellants to allow them to construct anything without specification of the area or without mentioning the specification of construction. It appears to be a move for a calculated order giving a right to construct on whatever part 5 of the suit land he likes and the allegation for using force also quite vague and, hence, injunction can not be granted restraining the other side for making construction. 9. Hence, I do not find any merit in this appeal. It is for the other side to file injunction petition and the petition of the appellants is not liable to be considered and, hence, the appeal is dismissed. Cp:2/S.A. ( Gopal Prasad, J. )