During the pendency of a suit for partition, it is desirable that the parties should maintain status quo unless this is done and in case a preliminary decree for partition is passed, difficulty is bound to arise for adjustments and equities during the final decree proceeding.

JUDGMENT :

K.P. Mohapatra, J. - This civil revision is directed against the order passed by the learned Additional District judge, Berhampur, restraining the petitioners from construction of a wall and directing maintenance of status quo during the pendency of the suit for partition.

2. The subject-matter of partition is the house and homestead of three brandies represented by the two petitioners and the opposite party who are brothers. Each of them has 1/3rd share therein. During pendency of the suit for partition by metes and bounds filed by the opposite party, the petitioners made preparation for construction of a pucca wall, whereupon the opposite party filed a petition for temporary injunction before the learned Subordinate Judge, Aska, who passed an order of ad interim injunction against the petitioners. But after hearing both parties, he vacated the said order. The opposite party appealed before the learned Additional District judge, Berhampur, who accepted the appeal and directed issuance of temporary injunction and maintenance of status quo.

3. Mr. Deepak Misra, learned counsel appearing for the petitioners, contended that by virtue of a deed of partition dated 12-10-1960, the parties amicably partitioned the house and homestead and, as the suit for partition is not maintainable on account of the .previous partition, the impugned order was not in accordance with law and so it should be set aside. Mr. Y. S. N. Murty, appearing for the opposite party, on the other hand, urged that there was no previous partition by metes and bounds amongst the parties by specific definition of 1/3rd share each by the deed of partition dated 12-10-1960. The deed of partition was executed for a specific purpose, i. e., to raise co-operative loans, but was not meant to be acted upon as a complete partition of joint family property. Therefore, until disposal of the suit for partition and definition of shares, status quo should not be disturbed and no construction should be permitted on the suit land. Accordingly, he supported the impugned order.

4. The house and homestead shall be treated as joint family property until and unless it is proved that by the deed of partition dated 12-10-1960 there was a complete partition thereof by metes and bounds which has to be decided in the suit. So, at this stage it cannot be pre-judged that there was a complete partition and the parties are in separate possession of their respective 1/3rd share each. Accordingly there appears to be a 'prima facie case for partition. With regard to irreparable injury and balance of convenience, it Is sufficient to observe that during the pendency of a suit for partition, it is desirable that the parties should maintain status quo Unless this is done and in case a preliminary decree for partition is passed, difficulty is bound to arise for adjustments and equities during the final decree proceeding. A party who makes valuable construction by spending a huge amount naturally claims the constructed portion to his share and, thereby, the other co-sharers are put to difficulties* in the sense that either their shares are truncated or they have to remain satisfied by getting some compensation which may not be adequate.. Such a situation is best illustrated by a decision 'reported in AIR 1914 Cal. 362 Israil and Ors. v. Samset Rahman and others) in which a Division Bench consisting of Sir Asutosh Mookajee and Benchcreft, JJ, held as follows :

"...Where does the balance of convenience lie; is it desirable that the status quo should be maintained or is it right that the defendants should be allowed to continue to alter the character of the land ? It is well settled that the Court will not refuse an injunction in a case of this description so as to give the defendants an undue advantage over the plaintiffs. If the defendants in the case before us were allowed to proceed to the completion of the building which has been erected by them on the land, it is indisputable that they will be p