IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.616 of 2010 1. Takiuddin Mallick @ Takimuddin. 2. Raziuddin Mallick @ Md. Raziuddin Mallick. Both sons of Late Janiuddin Mallick, residents of Mohalla Rajendra Nagar, Motihari, P.O. Motihari, Police Station- Chhatauni, District- East Champaran. …..Plaintiffs-Appellants. Versus 1. Hesamuddin @ Hemamuddin, son of Md. Wahid. 2. Naushad Khatoon, wife of Late Nisar Mallick. Both ( 1 & 2) residents of Mohalla-Chikpatti, Motihari, P.O._Motihari, P.S. Motihari, District-East Champaran. 3. Bibi Sohela Khatoon, wife of Late Nizamuddin Mallick, resident of Mohalla-Belisarai, behind Sadar Hospital and adjacent to residence of Dr. Z. Hasan, P.O.-Motihari, P.S.-Motihari, District-East Champaran. 4. Homazari, wife of Manauar. 5. Simazari, wife of Quamar Tauhid. Both ( 4 & 5) daughters of Nesar Mallick, resident of Mohalla-Chikpatti, Motihari, P.O.-Motihari, P.S.-Motihari, District-East Champaran. 6. Zebazari, wife of Firoz, daughter of Nesar Mallick, resident of Mohalla-Shamanpura, Raja Bazar, P.O.-B.V. College, District-Patna, at present Belisarai Motihari, behind Sadar Hospital and adjacent to residence of Dr. Z. Hasan, P.O.- Motihari, P.S.-Motihari Town, District-East Champaran. 7. Rumazari, daughter of Dokhtar Mallick. 8. Saminazari, daughter of Nesar Mallick. Both residents of Mohalla-Chikpatti, Motihari, P.O.Motihari, P.S. Motihari, District-East Champaran. 9. Anwar Tauhid 10. Quamar Tauhid. Both sons of Late Serajuddin, residents of Mohalla- Azadnagar Old, Purulia Road No. 15, Jamshedpur, P.O. & P.S.Jamshedpur, District-Singhbhum (Jharkhand). …………Defendants-Respondents. ----------- 4. 24. 08. 2010. Heard the parties. 2. This Miscellaneous Appeal is directed against the order dated 01. 06. 2010, passed by the Sub Judge IV, Motihari, in Partition Suit No. 316 of 2006, by which he has rejected the injunction on the ground that earlier also injunction petition was 2 filed on 27. 08.2008 have been rejected and no new facts have been shown in the fresh injunction petition. 3. From perusal of the impugned order, it appears that suit was filed for partition for carving 1/3 share of the plaintiffs and it is alleged that plaintiffs are determined to sale the land and even taking money and is demolishing the old shop at Village- Buchadtoli. The defendants have demolish the shop and constructed a new shop by giving a pillar and has constructed roof of the first storey and have continued the construction for second storey for which the Advocate Commissioner has also given his report and hence prayer has been made to restrain the defendants from making construction and the plaintiffs will have irreparable loss and balance of convenience also lie in favour of the plaintiffs. 4. The case of the defendants is that injunction petition is not maintainable as the plaintiff is habitual in filing injunction petition and his injunction petition has earlier been rejected and the suit land is his personal property and the defendants are possession over his share and is constructing the house to save the shop and not diminish the value of the house or the land, but has enhanced the valuation and hence the plaintiffs have no loss and denied the allegation that defendants are going to sale the land. 5. However, considering the submission of the parties, the learned lower court well considered the right of the parties and also appreciated that by the said construction, the valuation of the house has not been diminished but enhanced and there is no facts 3 and has disbelieve the story of sale by the defendants and hence rejected the prayer. 6. Learned counsel however contended that plaintiffs are constructing the house and hence by restrain and submitted that even there is Pleader Commissioner report about demolition of construction and submits that since there is report of demolition and it may be deemed the plaintiffs diminish the valuation. 7. However, in the impugned order itself it has been mentioned that assertion of the plaintiffs that defendants have installed new pillar and hence constructed the shop to the first storey and hence from his assertion it would be apparent that the valuation of the house has not been dimished. Hence from the impugned order itself defendants have not done any illegality or irregularity and there is prima facie case but neither the balance of convenience nor irreparable loss in favour of the plaintiff-appellants. 8. Hence I do not find any merit in this appeal and hence this appeal is dismissed. 9. The lower court is directed to expedite the hearing of the case and disposed of the suit preferably within a year by proceeding of the suit on day to day basis without giving any adjournment and any adjournment will be subject to strict compliance of order under Rule 17 C.P.C. m.p. ( Gopal Prasad, J.)