IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.602 of 2011 Manish Kumar, Son of Shri Awadhesh Kumar, Resident of Village – Raja Hari, P.S. – Paraiya, District – Gaya, at present residing in Mohalla – Nutan Nagar, P.S. – Civil Lines, District – Gaya. ……. Plaintiffs-Appellant Versus 1. Awadhesh Kumar (Notary), Son of Sri Bhagwat Singh. 2. Pankaj Kumar 3. Nitish Kumar. Both Sons of Awadhesh Kumar 4. Indu Kumari, Wife of Awadhesh Kumar. 5. Punam Kumari, Wife of Pankaj Kumar. All resident of Village – Raja Hari, P.O. – Gajanpur, P.S. – Paraiya, District – Gaya. At present residing in Mohalla – Nutan Nagar, P.S. – Civil Lines, District – Gaya. ….. Defendants-Respondents ---------------------------------- 3 02/12/2011 Heard Sri Jogendra Mishra, learned counsel for the appellant. The present appeal has been preferred under Order 43 Rule 1(r) of the Code of Civil Procedure against an order dated 02.06.2011 passed in Title Partition Suit No. 142 of 2009/307 of 2009 by the learned Sub Judge VII, Gaya. By the said order the learned court below has rejected the petition filed on behalf of the plaintiff/appellant under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure. Short fact of the case is that the plaintiff/appellant filed a partition suit claiming his share in the suit property i.e. three items in Schedule I to the extent of 1/5th share. In the partition suit the plaintiff subsequently filed petition for injunction restraining his father, mother and brother, defendant no. 1, 4 & 2 from excluding the plaintiff/appellant of his due share in the entire income arising out of joint family property in the shape of rental income from the house as 2 well as income from agricultural land and restraining defendants from alienating the suit property. The defendant number 1 & 4 filed joint reply to the petition for injunction filed by the plaintiff and raised serious objection. The plaintiff thereafter filed objection to the written statement and pleaded that the written statement was filed beyond 90 days and as such same may not be entertained. After hearing the parties the learned court below over-ruled the objection of the plaintiff/appellant on the point of filing of the written statement and finally by the impugned order rejected the injunction petition. Sri Jogendra Mishra, learned counsel for the plaintiff/appellant questioning the impugned order has argued that the learned court below has committed serious error in not granting injunction and on the contrary the learned court below only observed that any sale or transfer of the suit property by any of the parties during the pendency of the suit shall be subject to the decree finally passed in the suit. It was submitted that it was required for the court below to pass an order for preserving the suit property during the pendency of the partition suit. Learned counsel submits that refusal to restrain the defendants from changing the suit property is contrary to the law laid down by the Apex Court reported in 2005 (1) PLJR (94)SC [Maharwal Khewaji Trust (Regd.) Vs Baldev Dass]. It was submitted that so long the partition suit is pending, it is the duty of the court to protect the nature of property and interest of the parties, and on this ground alone, as per learned counsel for the appellant, the 3 appeal is required to be allowed and the impugned order may be set aside. Besides hearing learned counsel for the appellant I have perused the materials available on record. In reply to the injunction petition the respondent no. 1 & 4 had filed a detailed written statement, copy of same has been brought on record as ‘Annexure-3’ to the Memo of Appeal. On perusal of the written statement an important fact has emerged which indicates that regarding item no. 1 & 2 of Schedule I of the suit property, the defendants/respondents have taken a specific plea that those properties were self acquired properties and lying jointly either in the name of respondent no. 1 & 4 or respondent no. 1 & 5. The plaintiff/appellant had not brought any material before the court below to disbelieve the stand of the defendants. So far as the suit property mentioned in item no. 3 of Schedule I is concerned, from the impugned order it is evident that item no. 3 of Schedule I was land lying in an area where consolidation proceeding was going on and as such the learned court below has rightly refrained to pass any order in respect of the said property. Moreover, the respondent no. 1 & 4 in its written statement had stated that the said suit property mentioned as item 3 of Schedule I was agricultural land and has raised no objection for partition. The defendants also reiterated that they were not intending to sale the said property i.e. item no. 3 of the Schedule I of the plaint. In view of materials on record, the court is satisfied that the plaintiff /appellant had miserably failed to make out a prima facie 4 case warranting injunction in his favour and as such the learned court below while dismissing the injunction petition has committed no error. So far as Maharwal Khewaji Trust case (Supra) is concerned on which heavy reliance has been placed by learned counsel for the appellant, the court is of the opinion that said proposition has got no application in the facts and circumstances of the present case. The court is of the opinion that in normal course in partition suit the court is required to refrain from granting injunction. So far as case law which was relied upon by learned counsel for the appellant is concerned, it is evident that said case was not in relation to partition but for declaration of possession of the suit land. Accordingly, the appellant may not get any help from the aforesaid judgment. In view of the facts and circumstances, I do not find any merit in the present appeal and the appeal stands dismissed without any cost. Praful ( Rakesh Kumar, J.)