IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.258 of 2008 RAMDEYAL MAHATO & ORS Versus RAM SWARUP MAHATO @ RAM SWARUP & ORS ----------- 9/ 11.09.2008 The order under challenge is dated 15.01.2008, whereby and whereunder, the learned Additional District Judge, F.T.C.-III, Patna in Title Appeal No. 118 of 2007 has rejected the prayer of the appellant in respect of an application filed under Order 39 Rule 1 and 2 and under Section 151 of C.P.C., praying therein to restrain the respondent from selling, encumbering, transferring, alienating or changing the physical feature of the suit property. A rejoinder has also been filed on behalf of the respondents. The appellant here filed I.A. No. 2427 of 2008 wherein prayer has been made to maintain status quo on the ground that opposite parties have tried their best to dispossess the appellant from the suit property and intending to sell the suit property which is in possession of the appellants including residential house of the appellants. Learned counsels of both sides have been heard. Learned counsel for the appellant has submitted that appellant Ramdeyal Mahto being brother of the respondent Ram Swarup Mahto had earlier filed a Title Suit for partition which was dismissed, against which this appeal was preferred and during the pendency of the appeal such prayer for injunction was made which was rejected by the learned First Appellate Court. Against that order of injunction the appellant preferred this Misc. Appeal and thereby - 2 - filed Interlocutory Application. Learned counsel for the respondent has submitted that this I.A. No. 2427 of 2008 as stated above is not maintainable in view of the fact that there is no petition seeking any kind of injunction as required by filing a petition under Order 39 Rule 1 and 2 and Section 151 of the C.P.C., unless that petition is filed in a regular suit and so there should not have been any prayer for maintenance of status quo for the suit property. Moreover, the learned counsel for the respondent has also referred all the event right from the beginning, culminating in filing of the Title Suit and thereby appellant losing the same on all counts. It has been submitted that the appellant, who was initially inducted in the premises of the respondent as an orphan is not going to be ousted from the residential house, which is in his possession, till final decision of the appeal, but so far remaining properties are concerned, appellant has nowhere sought any relief in respect of injunction of disposal of any specified properties to the extent of the share. Moreover, the grant of injunction, are not fulfilled in the present fact and circumstance. Having gone through the impugned order itself, it is manifest that it was contention of the learned counsel for the appellant before the First Appellate Court that the defendant-respondents (respondents here) were trying to dispossess the appellant from the suit property and had entered into an agreement for sale with one Manch Manchar Mahto in respect of sale of plot no. 945 and 947. This - 3 - fact was considered by the First Appellate Court with the finding that plaintiff-appellant are not going to suffer any irreparable loss in case injunction is granted and they can be compensated in terms of the money and even if the suit property is disposed of during the pendency of the appeal, the principle of lis-pendence will be applicable. In the facts and circumstances, since principle of lis- pendence is applicable in respect of any transfer made with the respect to the property, so I do not want to interfere with the impugned order. Moreover, it has fairly been submitted that the appellant who is in occupation of the premises in which he was residing is not going to be disturbed till disposal of the appeal. So, prayer for maintaining status quo is vacated and accordingly this Misc. Appeal is disposed of. However, the First Appellate Court is directed to conclude the appeal preferably within six months from the date of receipt/communication of this order. Sanjeet (Subash Chandra Jha, J.)