IMPORTANT POINT
Injunction – Court in exercise of power of granting ad interim injunction has to preserve subject matter of suit by status quo for the time being – If any alienation is made, it would be subject to doctrine of lis pendens under Section 52 of T.P. Act.

ORDER (CAV)

Heard, Mr. Jitendra Kishore Verma, learned counsel for the appellants, Mr. Shashi Shekhar Dwivedi, learned senior counsel for respondent nos. 5 to 13 and Mr. J.S. Arora, learned senior counsel for respondent no. 4(ii).

Re: I.A. No. 10 of 2022

2. This interlocutory application has been filed by the appellants under Order XXXIX Rule 1 and 2 read with Section 151 of the C.P.C. for restraining the respondents/opposite parties from selling, transferring, alienating and changing the physical feature of the suit land during pendency of this appeal and also to restrain the purchasers from taking forceful possession over the suit land.

3. The instant First Appeal has been filed by the plaintiffs/appellants against the judgment and decree dated 29.09.1999 passed in Title (Partition) Suit No. 127 of 1992 by the learned Sub-Judge-V, Purnea, whereby, the learned court below has dismissed the suit holding that there is no unity of title and possession between the parties in respect of the suit land and the plaintiffs are not entitled to their share in the suit properties as claimed for. The plaintiffs/appellants have filed Title (Partition) Suit No. 127 of 1992 against the defendants/respondents for partition of their 2/15 th share in the joint Hindu family property. It was pleaded by the plaintiffs in the plaint that Late Kalika Pd. Dubey was the common ancestor of the plaintiffs and the defendants, who died in the year 1948 leaving behind four sons and two daughters and the daughters of Late Kalika Pd. Dubey did not inherit the suit property as Kalika Pd. Dubey died in the year 1948 before coming into force of Hindu Succession Act, 1956. Out of four sons, eldest son Ram Sharan Dubey died before coming into force of Hindu Succession Act, 1956, leaving behind one son Prabhat Dubey and three daughters. It is further pleaded that the said Prabhat Dubey died issueless and the share of joint family devolved upon three surviving brothers. One daughter Laxmi Narayan Dubey died leaving behind Krishna Gopal Dubey and Kamal Dubey (defendant nos. 1 and 2). The sons of Krishna Gopal Dubey are the plaintiffs in the present suit and heirs of Prakash Narayan Dubey and Sambhu Dayal Dubey are the defendants. It is further contended that Mostt. Ganga Devi, daughter of Late Kalika Pd. Dubey had no right in the joint family property but she executed registered deed of gift in favour of defendant nos. 8 and 9, who are sons of defendant no. 4, Satya Narayan Dubey, and thereafter, defendant nos. 8 and 9 executed sale deed in favour of defendant 2nd set with respect to the lands of Schedule- B of the plaint without any legal right and the same is void ab initio. It is further contended that the plaintiffs and defendants are members of joint Hindu family governed by Mitakshara School of Hindu Law and the family possess very large area of land over which the parties are in joint possession without having any mutual partition by metes and bounds and since the members of the family have increased, it becomes inconvenient for the parties to continue in joint mess and residence and as such parties separated in mess and residence for the sake of convenience but they are joint in cultivation and business. Further, they use to divide crops as per their respective share. But, for all practical purposes, the family of the plaintiffs and defendant 1st party are joint in respect of suit properties and that defendant nos. 8 and 9 did not acquire any right, title and interest over the Schedule-B land on the strength of registered gift deed. The said gift is not binding upon the plaintiffs and is void ab initio.

4. It is further case of the plaintiffs that defendant no. 6, one of the sons of defendant no. 3, filed Title (Partition) Suit No. 292 of 1970 in the court of Sub-Judge-V, Purnea for partition of joint family properties and in that suit the members of branch of Prakash Narayan Dubey and Sambhu Dayal Dubey were only made parties and the plaintiffs and their anc