IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.175 of 2011 1. Srawan Sah @ Sarwan Kumar Sah 2. Suresh Sah Both are sons of Late Bindeshwari Sah and Resident of Village-Hemra, P.S. & District –Begusarai --------------- Plaintiff ----- Appellants Versus 1. Raj Kumar Sah 2. Ashok Sah Both are sons of Late Bindeshwari Sah, resident of Village-Hemra, P.S. & District-Begusarai ---Defendant 1st Party---- Respondent 1st Party 3. Arjun Sah 4. Jago Sah @ Jagarnath Sah, Both are S/O Late Jaddu Sah 5. Sonu Sah son of Jago Sah, Respondent nos. 3 to 5 are residents of Village- Hemra, P.S. & District-Begusarai --- Defendant 2nd Party—Respondent 2nd party 6. Kusho Sah , son of Late Banarsi Sah, resident of village- Hemra, P.S. & District-Begusarai --- Defendant 3rd Party – Respondent 3rd Party 7. Ghanshyam Sah, Son of Late Banarsi Sah, resident of Village-Hemra, P.S. & District-Begusarai ---- Defendant 4th Party –Respondent 4th Party 8. Shyam Prasad Singh, Son of Late Fathu Singh, resident of Village-Hemra, P.S. & District-Begusarai ---- Defendant 5th Party—Respondent 5th Party ---------------------------------- For the appellants- Sri Kaushal Kumar, Advocate For the Respondents: ----------------- O R D E R 04 09 -12-2011 The present appeal has been preferred under order Order 43 Rule 1( r ) of the Code of Civil Procedure against an order dated 02.12.2010 passed by learned Sub Judge 6th , Begusarai, in T.S. No.295 of 2009. By the said order, learned 2 Sub Judge has been pleased to reject the petition filed by the plaintiff-appellants under Order 39 Rules 1 and 2 of the Code of Civil Procedure. Short fact of the case is that the plaintiff-appellants filed a partition suit vide T.S. No.295 of 2009 for partition as well as for direction to the Respondent no.8 to transfer the land described in Schedule-C of the plaint in favour of the plaintiffs. As per the plaintiffs’ case, Banarsi Sah, Jaddu Sah and Bindeshwari Sah had jointly purchased 2 Katha 7 Dhurs of land in the year 1960 and thereafter they constructed a house over the said land. The plaintiffs-appellants are sons of Bindeshwari Sah. It was claimed that no partition had taken place. However, in the meanwhile , Respondent no.7 /Ghanshyam Sah sold 1/6th portion of the suit land to the Respondent no.8/ Shyam Prasad Singh through a registered sale deed for the consideration amount of Rs.3 Lacs. The plaintiffs, as per Memo of Appeal, wanted to purchase the property described in Schedule-C of the plaint from Respondent no.8. The appellants have also asserted that the Defendant-2nd party i.e. Respondent nos. 3 to 5 sold 1/3rd of land of Schedule-B to one Dwarika Prasad Singh. Thereafter, the Defendant 1st party i.e. Respondent nos.1 and 2, who are the full brother of plaintiffs-appellants, filed a title suit vide T.S.No.236 of 2000, which ended in compromise and the purchaser Dwarika Prasad Singh had executed sale deed in favour of Defendant 1st set. In similar manner, the plaintiffs/appellants wanted to purchase the property from Respondent no.8. 3 However, Respondent no.8 refused to sell the property. In the said suit, the plaintiffs-appellants filed injunction petition. It was further pleaded on behalf of the plaintiffs that the Respondent no.8 had not taken possession over Schedule-C land and he was trying to dispossess the plaintiffs and, as such, the plaintiffs- appellants were apprehending breach of peace. From the impugned order, it appears that the Respondent no.8 had filed rejoinder to the injunction petition and it was pleaded that after the purchase of the property through registered sale deed in respect of the property described in Schedule-C of the plaint, the Respondent no.8 had taken possession and he was continuing with peaceful possession. The Respondent no.8 has further pleaded that the land over which there is a house, Jamabandi had already been created in his favour and, as such, there was no question for raising apprehension of breach of peace. The Respondent no.8, from the impugned order further appears, had brought on record copy of the sale deeds to show that the partition in between the plaintiffs-appellants and Respondent nos. 1 to 7 had already taken place long back, which was evident from the boundary described in the sale deed. After hearing Sri Kaushal Kumar, learned counsel for the appellants and perusing the materials available on record, the Court is of the opinion that the plaintiffs-appellants had failed to establish either prima facie case in their favour or to show balance of convenience in their favour. The learned court below on the contrary was of the opinion that the balance of 4 convenience as well as prima facie case was totally in favour of the defendant/ Respondent no.8 and has rightly rejected the injunction petition. I do not find any material to interfere with the impugned order. Accordingly, the appeal stands dismissed without cost. NKS/- ( Rakesh Kumar, J.)