An injunction in a partition suit is not maintainable without including all co-sharers who have transferred their shares.

1. This first miscellaneous appeal is directed against an order being No. 4 dated 24th March, 2015 passed by the Learned Civil Judge, Senior Division, First Court, Paschim Medinipur in Title Suit No. 93 of 2015 at the instance of the plaintiff / appellant.

2. Though the appeal was not formally admitted for hearing under the provision of O.41 R.11 but notice was directed to be served upon the respondents and a date was fixed for hearing of this appeal. While entertaining this appeal, the interim order was passed by the other Division Bench of this Court on 8th April, 2015 directing the parties to maintain status quo as on that date with regard to the nature, character and possession of the 'B' schedule property mentioned in the plaint till 28th April, 2015. Subsequently, the said interim order was extended and that interim order continued till yesterday.

3. This appeal is listed today at the instance of the appellant for extension of interim order.

4. Let us now consider as to whether such interim order can be allowed to be continued in the facts of the present case.

5. Here is the case where we find that the plaintiff / appellant filed a suit for partition against the defendant nos. 1 and 2 describing them as co - sharers in the suit property. After filing the suit, the plaintiff / appellant filed an application under O.39 R.1 & R.2 of the Code of Civil Procedure praying for temporary injunction for restraining the defendants from changing the nature and character of the suit property and / or from transferring, alienating and / or encumbering the suit property and / or from disturbing the peaceful possession and enjoyment of the appellant in respect of the 'B' schedule property. An ad - interim order of injunction was also sought for by the plaintiff / appellant in similar terms.

6. The Learned Trial Judge passed an ad - interim order of injunction directing both the plaintiff and the defendant no.1 to maintain status quo as regard 'B' schedule property as mentioned in the schedule of the plaint till the next date. The plaintiff was directed to comply with the provision under O.39 R.3 of the Code of Civil Procedure .

7. Upon receipt of the notice of such ad - interim order of injunction, the defendant no.1 appeared in the said suit and filed an application under O.39 R.4 of the Code of Civil Procedure praying for vacating and / or discharging the ad - interim order of injunction passed by the Learned Trial Judge on the ground that the said defendant transferred 0.0727 acres of land out of 9 decimals of land pertaining to 'B' schedule property in favour of Sk. Abtabuddin, Sk. Akbar, Sk. Jiko and Aklima Begum before filing of the said partition suit.

8. Photostat copies of the transfer deeds by which the defendant no.1 transferred his right, title and interest in respect of the land transferred were also annexed to the application for vacating the interim order. The said application was moved on a date which was not fixed for hearing of the said application for vacating the interim order. However, notice was given to the plaintiff before moving the said application and the plaintiff was also represented before the Learned Trial Judge at the time of hearing of the defendant's said application for injunction.

9. The Learned Trial Judge was pleased to allow the application for vacating the interim order filed by the defendant no.1 vide Order No.4 dated 24th March, 2015 as the plaintiff filed the said partition suit as well as the injunction application without disclosing the material fact relating to transfer of the part of the suit property by one of the co - sharers to the strangers.

10. The Learned Trial Judge held that the injunction is an equitable relief and s