IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.559 of 2008 1. Shiv Shankar Rai @ Bimal Rai (Gonga), S/o Late Ram Ataur Prasad Rai 2. Santosh Kumar, S/o Bimal Kumar Rai @ Gonga. 3. Voman Kumar Rai @ Uman Rai, S/o Bimal Kumar Rai. All resident of Village-Rampur Rajva, P.S.-Hasanpur, District-Samastipur. ………………………………………. Plaintiffs/Appellants Versus 1. Ashok Kumar Rai. 2. Biran Rai (Gonga) Both sons of Chandra Shekhar Rai Divakar. 3. Mosmat. Veena Rai, W/o Late Chandra Sekhar Rai Divakar. All residents of village & P.O. Rampur Rajva, P.S.-Hasanpur, District- Samastipur. 4. Smt. Kiran Singh, W/o Dr. Radhika Raman Singh at present D.M.O., Mathura Chhavni, U.P. at present Sr. D.M.O. residing at Banglow no. M/ 26, railway Hospital, Kasganj, District-Allahabad (U.P.) 5. Smt. Pratima Rai, D/o Late Chandra Sekhar Rai Divakar, resident of village-Rampur, P.O.-Rampur, P.S.-Hasanpur, District-Samastipur. …………………………… Defendant 1st Set Party/Respondent 1st set 6. Most. Murti Kuwri, W/o Late Surya Sekhar Rai @ Gonga, resident of Village & P.O.-Rampur Rajva, P.S.-Hasanpur, District-Samastipur. …………………………………. Defendant 2nd Party/Respondent 2nd set 7. Dropadi Devi, W/o Krishna Ballabh Prasad Singh, resident of village-Ramdiri, Tola Ramnagar, P.S.- Matihani, District-Begusarai 8. Mithilesh Kumari, W/o Kailash Prasad Singh, resident of Village-Ramdiri Tola Nakati, P.S.-Matihani, District- Begusarai. ………………………………. Defendant 3rd party/Respondent 3rd set 9. Manoj Kumar Yadav, s/o Late Ganga Prasad Yadav. 10. Sri Rajesh Kumar Yadav, S/o Late Ganga Prasad Yadav. 11. Sri Brajesh Kumar Yadav, S/o Late Ganga Prasad Yadav. All residents of village- Simha, Tola-Khaurakot, P.S. & P.S.-Bidhan, District-Samastipur. …………………………………………… Defendant 4th Party/Respondent 4th set ----------- 2 5 21.4.2009 Heard counsel for the appellant in the matter of condonation of delay in filing of the appeal. It would appear that earlier the appellant had filed an appeal in this Court against the same order being Misc. Appeal No. 272 of 2004 which was held to have become infructuous by an order dated 13.5.2008 by recording that in the event, the suit in question which had already been dismissed for default, was restored, the appellant could file fresh appeal. Counsel for the appellant has produced before this Court evidence to show that the suit was restored by an order dated 27.5.2008 and thereafter, having obtained certified copy of the said order, the present appeal was filed on 15.9.2008. Thus considering the earlier order of this Court dated 13.5.2008 in Misc. Appeal No. 272 of 2004, delay in filing of the appeal is hereby condoned. Coming to the merits of this case, this Court would find that in a partition suit when all the parties were alienating their share of land, the allegation coming from one side that 3 the other side had sold some primal land or beyond his share, at least would not be material circumstance for the present because whatever alienation has been made by any party after filing of the suit in question would not only remain subject to its final decision and allocation of shores but also governed by the principle of lis-pendense. It is also well settled that in a partition suit, if any person has alienated/sold the land beyond his share, that can always be adjusted at the time of preparation of the final decree by considering such sale effected during the pendency of the suit. With all these well established principles, protecting the right of the parties, there would no occasion for this Court to interfere with the impugned order rejecting the prayer of the appellant for grant of injunction. This Court, however, taking into account that the suit is of the year 2003 and is basically one for partition only, would direct the court below to conclude the suit itself within a period of nine months from the date 4 of receipt/production of a copy of this order. It goes without saying that in order to conclude the suit within a period of nine months, the parties must not take any unnecessary adjournment nor the court should permit the same. With the aforesaid observations and directions this appeal is dismissed. Rsh (Mihir Kumar Jha, J.)