ORDER

I.A. No.7169 of 2014

This application has been filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’) on behalf of the appellants praying therein to restrain the respondents from alienating/encumbering the suit land in any manner and to restrain them from forcefully dispossessing the appellants from the disputed land till final disposal of the first appeal.

2. Mr. Ranjan Kumar Dubey, learned counsel for the appellants submits that the present appeal arises out of the judgment and decree dated 28.04.2014 passed in Title Suit No.72 of 2010. The learned Sub-Judge-IV, Bettiah at West Champaran has decreed the suit in terms of the decree passed in Title Suit No.159 of 1949. Learned counsel submits that the judgment and decree under appeal has been passed in terms of Order XII Rule 6 CPC. In this connection, he has drawn the attention of this Court towards the order dated 28.04.2014 passed by learned Sub-Judge- IVth. It is submitted that on the said date, the defendant no.1 to 5 filed an application praying for adjournment on the ground that against the order dated 27.06.2014 passed by learned Sub-Judge, they had gone in CWJC No.15592 of 2013 to the Hon’ble High Court and the same was pending consideration. It is submitted that the learned Sub-Judge rejected the prayer for adjournment and proceeded to pass the impugned judgment under Order XII Rule 6 CPC and simultaneously delivered a 43 pages judgment decreeing the suit.

3. Mr. Dubey has questioned the conduct of learned Sub-Judge in passing the impugned judgment in haste. It is submitted that the learned trial court did not allow the parties to lead any evidence, oral or documentary. It is submitted that during the pendency of the present appeal, the respondents have indulged in selling the suit properties which has given rise to criminal cases also, hence, it would be appropriate to pass an order of interim injunction restraining the respondents from dealing with the properties. It is further submitted that the learned court below had rejected the injunction petition brought by the plaintiffs-respondents but there was no challenge to the said order by plaintiffs/respondents.

4. The case of the plaintiff, as stated is that one Bindhyawasini Prasad Yagnik (Jani @ Bacchan Babu) had two wives. From first wife he got one son namely Durga Shankar Yagnik. Durga Shankar Yagnik had two marriages. From his first wife Rama Devi he got one son namely Tripurari Shankar Yagnik. From his second wife namely Manorma Devi, he got one son Arun and six daughters. Bindhyawasini Prasad Yagnik got three sons namely Rajeshwar, Rameshwar and Chandeshwar and one daughter from his second wife Krishna Kumari Devi. It is stated that Durga Shankar Yagnik died in the year 1989 leaving behind one son Tripurari Shankar Yagnik through his first wife Rama Devi, his second wife Manorma Devi and her son Arun Kumar Yagnik @ Bachhaji and six daughters.

5. It was Durga Shankar Yagnik who filed a Title Partition Suit giving rise to T.P.S. No.159 of 1949. The said suit was decreed by virtue of a compromise. In the said suit Schedule IV and Schedule VI were the properties of village ‘Charihani’ and ‘Basantpur’ respectively which were allotted to Rameshwar Yagnik and Krishna Kumari Devi. The family of second wife namely Rameshwar and Anup son of Chandeshwar filed T.S. No.72 of 2010. Durga Shankar and his legal heirs are the defendants in T.S. No.72 of 2010. In this suit the prayer is for declaration of title and confirmation of possession and for permanent injunction restraining the defendants from interfering with the peaceful possession of the property disclosed in Schedule-II of the plaint. The plaintiffs-respondents claimed that they came in their exclusive possession over their respective lands and they are coming in peaceful possession of their allotted share. The plaintiffs alleged that the defendant no.1 in collusion with some other defendants and some anti-social