IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.502 of 2009 Md. Yunus, son of Md. Yusuf, resident of Village-Barahara, P.S. Marauna, District- Supaul --------(Plaintiff in the court below as a Power of attorney holder of Siya Ram Singh, heir of Khatiyani Raiyat Nebi Rai) ----- Appellant Versus 1. Maheshwar Singh , son of Late Khushi Lal Rai 2. Rameshwar Singh, Son of Late Khushi Lal Rai 3. Jagdish Singh, Son of Late Khushi Lal Rai All nos. 1 to 3 are residents of Village-Barahara, Tola-Mohanpur, P.S. Marauna, District- Supaul (Defendant 1st Party in the court below) --------------- Respondent 1st Set 4. Bauwe Lal Singh, Son of Late Raghunath Singh, resident of Village-Barahara, Tola-Mohanpur, P.S. Marauna, District- Supaul ---( Defendant 2nd party in the court below ) ----------------Respondent 2nd set ------------------------ Respondents. ---------------------------------- For the appellant: Sri Mritunjay Kumar Gautam, Advocate For the Respondent nos.1 to 3: Sri Mahendra Pathak, Advocate -------------------- O R D E R 10 02 -12-2011 The present appeal under Section 104 read with Order XLIII, Rule 1 ( r ) of the Code of Civil Procedure has been preferred against an order dated 19.06.2009 passed in Title Suit No.27 of 2007 by the learned Sub Judge-III, Supaul. The learned court below by the said order has rejected the petition dated 28.06.2007 filed by the plaintiff / appellant for grant of temporary injunction. Short fact of the case is that the plaintiff /appellant being holder of power of attorney executed by one Siya Ram Singh filed a Title Suit bearing T.S. No.27 of 2007 for a declaration that the land mentioned in Schedule-I of the plaint was the joint family property of Siya Ram Singh, executant of power of attorney of the plaintiff 2 and defendants. The plaintiff further prayed for declaration that the suit land detailed in Schedule-IV was the exclusive property of Siya Ram Singh. As per the plaintiff, the defendants as well as donor, executant of the power of attorney in favour of the plaintiff, are descendants of one Babuji Rai. Babu Ji Rai had three sons, namely, Kesho Rai , Khubi Rai and Nebi Rai. Defendant 1st party are grand- sons of Kesho Rai, whereas defendant 2nd party is the grand son of Khubi Rai and Siya Ram Singh, Excutant of power of attorney is the great grand-son of Nebi Rai, Therefore, all of them are co-sharers. The plaintiff (holder of power of attorney of Siya Ram Singh) on behalf of great grand-son of Nebi Rai had filed the aforesaid suit. The plaintiff in the said suit filed a petition under Order 39 , Rules 1 and 2 of the Code of Civil Procedure , read with Section 151 of the Code of Civil Procedure for grant of temporary injunction with respect to the lands mentioned in Schedule-IV of the plaint, which has been dismissed by order dated 19.06.2009 by the court below. Learned counsel for the plaintiff/appellant, while challenging the impugned order, has argued that the learned court below in mechanical manner has rejected the injunction petition without properly dealing with the case of the plaintiff/appellant. It was submitted that the donor of the power of attorney was a co- sharer of the suit property and since the defendants were trying to dispossess and disturb the plaintiff from the suit property, it was required for the court below to at least grant status-quo, but the learned court below in a perfunctory manner has rejected the petition. Accordingly, it was prayed to allow the appeal. 3 Learned counsel for the Respondent nos. 1 to 3 at the very out set has argued that the plaintiff had completely failed to establish prima facie case in his favour. He has not brought any material on record to suggest that in case of refusal to grant temporary injunction, the plaintiff was going to suffer irreparable loss. It was argued that no such evidence was brought on record by the plaintiff. It was also argued that the plaintiff is a stranger and purported to be holder of power of attorney from Siya Ram Singh had filed the partition suit only with a view to disturb peaceful title and possession of the suit land of the defendants. It was submitted that in the suit, while filing written statement, the defendant 1st set have categorically pleaded that the suit land described in Schedule-I of the plaint was the joint family property of the party. However, vide Case no.4 of 1965, a partition had taken place amongst Siya Ram Singh as also the defendants and on the basis of the said case, a separate Jamabandi was created in their respective names in the year 1980 itself. In sum and substance, it was submitted that the partition amongst the descendants had already taken place by mets and bounds and, thereafter, separate Jamabandi and Survey Khatiyan were prepared. In sum and substance, it was argued that no specific prima facie case was made out by the plaintiff and, as such, the court below has rightly dismissed the petition filed for temporary injunction. Besides hearing the parties, I have also perused the materials available on record .Along with the Memo of appeal, save and except ordersheet, nothing has been brought on record by the 4 appellant. From the pleading and the impugned order, it is evident that the plaintiff has miserably failed to establish a prima facie case warranting grant of temporary injunction in his favour and, as such, the learned court below, while dismissing the petition which was filed on 28.06.2007 by its order dated 19.06.2009, has committed no error . Moreover, it is evident from the record itself that interim temporary injunction petition was filed long back in the year 2007. From the pleading, it is further clear that no specific case was made out as to what was the reason for granting temporary injunction. It appears that only apprehension was raised by the plaintiff. In view of the materials available on record, I do not find any defect in the impugned order and, as such, the appeal stands dismissed. However, in view of the facts and circumstances, I am not imposing any cost , while dismissing the appeal. NKS/- ( Rakesh Kumar, J.)