IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.308 of 2003 1. BALRAM PRASAD RAI, S/O LATE RAMDARAN RAI, R/O BISHUNPUR BALADARI @ BALWA POST BALWA KUARI, P.S. HAJIPUR SADAR, DISTRICT VAISHALI .. DEFENDANT 1ST SET/ APPELLANT Versus 1. MOST.SUMITRA DEVI, W/O LATE KRISHNA PRASAD RAI 2. 2. SAJEEV PRASAD RAI 3. RANJEET PRASAD RAI 4. 4. RAJIV PRASAD RAI 5. SANJAY KUMAR RAI 6. RENU DEVI 7. BABITA KUMARI 8. LALITA KUMARI 9. TARIKA KUMARI 10. NILU KUMARI ALL SONS AND DAUGHTERS OF LATE KRISHNA PRASAD RAI, R/O BISHUNPUR BALADARI @ BALWA POST BALWA KUARI, P.S. HAJIPUR SADAR, DISTRICT VAISHALI .. PLAINTIFFS/RESPONDENTS 11. VIJENDRA PRSAD RAI, S/O LATE RAMDARAN RAI 12. UMESH PRASAD RAI, S/O LATE RAMDARAN RAI, R/O BISHUNPUR BALADARI @ BALWA POST BALWA KUARI, P.S. HAJIPUR SADAR, DISTRICT VAISHALI .. DEFENDANT 2ND SET/ RESPONDENT 2ND SET **** /8/ 10 August 2010 Heard the learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 28.05.2003, passed by Sub Judge, VIII, Hajipur, in Title Suit No. 282 of 1999 by which he has rejected the injunction petition filed by the defendant. 2 3. From the perusal of the record, it is apparent that the suit was filed by the plaintiffs for declaration of title and the plaintiffs got the suit land by virtue of partition in 1956 and Schedule I property is the property allotted to the plaintiffs and due to mistake in the revisional survey the property has wrongly been recorded in the name of the defendant. 4. The case of the defendant-appellant is denial of the oral partition in 1956 and assertion that a partition suit filed in 1976 between the parties and during the pendency of that partition suit the parties compromised outside Court by oral agreement and the entire Schedule I property come in the share of the defendant and since the matter having been settled out side the Court parties left pairvi in the said partition suit which was dismissed for default. However, in the present suit filed by the plaintiffs-respondents and petition for injunction filed on behalf of the defendant- appellant with a prayer to restrain the plaintiffs from changing the physical feature or alienating the suit property in dispute on the said petition after considering the reply and submissions that plaintiffs want to dig the land and sell the 3 soil and even got dug some portion, rejected the petition on the ground that there is assertion by plaintiffs that there is contradiction in the written statement filed by defendant and the petition for injunction. 5. The learned counsel for the appellant, however, contends that the defendant has asserted that the plaintiffs is determined to dig out the land and according to the defendant the order of a consolidation has been prepared in favour of the plaintiffs and the mutation also in their name. However, taking into consideration the fact that the suit has been filed by the plaintiffs for declaration of title on the ground that the land allotted to the plaintiffs in the year 1956 and this having been controverted by the defendant with assertion that land was allotted in the share of plaintiff no. 1 on mutual partition outside the Court during the pendency of the Partition Suit No. 93 of 1976. Hence, the admitted case of the parties is partition by oral partition on one set plaintiffs come partition in 1956 and the case of the defendant is partition after 1976 during the petition of the title suit. Hence, therein disputed question of fact so a substantial question requires to be decided by the Court and 4 when there is a fair question is to be gone into between the parties and so prima facie case is there, but, defendant filed injunction petition in which stated that land fall in share of Krishna Prasad Rai by oral partition. Further, so the balance of convenience the land is concerned, it is admitted position that the land is agricultural land and there is no specific allegation that the plaintiffs have alienated though the assertion that he had dug out, but, it is more assertion why one will deny and without specific date and area and specification of the decries caste doubt more over it can not be said to be irreparable loss which can not be compensated and merely because a suit has been filed for title it is not proper to grant injunction unless the irreparable loss and balance of convenience having been established in favour of defendant-appellant the balance of convenience. 6. Having regard to the facts, I do not find any illegality and irregularity in the impugned order. No case is made out for irreparable loss and balance of convenience to grant injunction at this stage. The suit is filed in 1999 lower Court's records has been called for in this case in 2008 and is pending for disposal. Hence, the lower Court's records is 5 directed to be sent down and the lower Court is directed to pursue for early disposal, preferably within a year and the suit shall proceed day-to-day basis. 7. With these observations and directions, this application is disposed off. Cp:2/S.A. ( Gopal Prasad, J. )