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1997 Supreme(Pat) 52
PATNA HIGH COURT
Nagendra Rai, J.
Kamla Prasad
Versus
Kumar Kali Das
Miscellaneous Appeal No. 263 of 1996 ;
Decided On : JANUARY 22, 1997
A plaintiff seeking injunction must make out a prima facie case and show that he will suffer irreparable injury if injunction is not granted.
Headnote:
INJUNCTION - PARTITION SUIT - ORDER 39 RULES 1 AND 2 CPC - SUMMARY
Fact of the Case:
Plaintiffs filed a partition suit and also filed an injunction petition seeking to restrain the defendants from changing the physical feature of the suit property and from transferring or alienating any portion of it. The defendants claimed that the property had been partitioned in 1962 and that they had been in possession of the holding in question since then.
Finding of the Court:
The court found that the plaintiffs had not made out a prima facie case for injunction, as the defendants had come out with a case of earlier partition and had asserted that they got the tenant evicted from the holding in question through the process of the Court. The court also found that the defendants would suffer irreparable injury if injunction was granted, as the builder had already proceeded with the construction.
Issues: Whether the plaintiffs had made out a prima facie case for injunction.
Ratio Decidendi: The court held that the plaintiffs had not made out a prima facie case for injunction, as the defendants had come out with a case of earlier partition and had asserted that they got the tenant evicted from the holding in question through the process of the Court. The court also found that the defendants would suffer irreparable injury if injunction was granted, as the builder had already proceeded with the construction.
Final Decision: The court dismissed the appeal and refused to grant injunction.
Nagendra Rai, J.
1. The appeal is directed against the order dated 8.7.96 passed by the Subordinate Judge 1st refusing to grant the temporary injunction in favour of the plaintiffs-appellants restraining the defendants-respondents No. 1 and 2 from changing the physical feature of the suit property and also from transferring of any portion of the suit property or making any \ alienation with regard to the same till the disposal of the suit.
2. Admitted position is that Dr. Indra Prasad .died in 1939 leaving behind his three sons, namely, Dwarika Pd., husband of defendant No. 3 Smt. Mallika Devi, plaintiff No. 1 Kamla Pd. and defendant No. 1 Kumar Kalidas. Dwarika Pd. died in 1970 leaving behind his widow Smt. Mallika Devi (defendant No. 3 ). According to the plaintiffs their family is governed by Mitakshara School of Hindu law and possessed of movable and immovable properties detailed in Schedule-1 and 2 of the plaint. Each branch that is plaintiff, defendant No. 1 and defendant No. 3 is entitled to one share in the suit property. The defendant No. 1 and his son defendant No. 2 being shrewd persons fraudulently created an award dated 25.3.82 wherein 70% of the total property was allotted to defendant Nos. 1 and 2 and 30% of the property was allotted to two branches. Defendant Nos. Land 2 filed title suit No. 281/82 for making the award a rule of the Court. The plaintiffs appeared and contested the suit and on 9.12.93 the award was set aside and the defendants No. 1 and 2 have filed Misc. Appeal. No. 107/94 before the High Court which is pending.
3. Holding No. 215/87 is a double stories pucca house in the town of Patna. Defendant Nos. 1 and 2 demolished the major portion of the same and negotiated with a builder to construct a multi-storied building. Plaintiffs filed an injunction petition in Misc. Appeal. No. 107/94 which was rejected by the High Court on 2.4.96 with an observation that the plaintiffs may seek remedy-by filing a suit and thereafter they filed a partition suit and also filed an injunction petition making the aforesaid relief. The defendant Nos. 1 and 2 contested the claim for grant of injunction. Their case is that three sons of Lt. Indra Prasad separated in 1957 and in 1962 the e immovable properties consisting of four ancestral houses including the aforesaid holding were partitioned by metes and bounds and each of the branches are coming in possession of the houses allotted to their share and are realising the usufructs and rents there from. The holding in question has been allotted to defendant Nos. 1 and 2 and they are dealing with the property. They inducted tenants and later on evicted them from the same building on the ground of personal necessity through the process of the Court. The said holding was in dilapidated and ruinous state and in spite of the repairings a part of which fell down in 1983 and the remaining portion was dangerous for the residents and the passers by, which required immediate constructions and the defendants have entrusted the construction work after demolition to M/s Bhasker Houses Pvt. Ltd. It is stated that the building was demolished and the construction works have started and the plaintiffs got a proceeding under Sec. 144 Cr P.C. started on the said holding which was dropped, the plaintiffs have no legal right to obstruct the development work and are not entitled to file partition suit especially when their earlier partition suit has been dismissed.
4. Both the parties filed their documents and thereafter the learned Subordinate Judge after having heard them has refused to grant injunction or the ground that the plaintiffs have neither prima facie case nor balance o convenience nor irreparable injury will be caused if the injunction is refused Plaintiffs case is of joint possession and if the plaintiffs would prove its case then they will get share in the newly constructed building.
5. Learned Counsel for the appellants contended that the Court below ha; wrongly reject
