CAV JUDGMENT

Date : 05-07-2023 Heard the learned counsel for the parties.

2. This Civil Miscellaneous application has been filed against the order dated 16.04.2018 passed by the learned Additional District Judge VII, Madhubani in Misc. Appeal No. 46 of 2014 by which he has allowed the miscellaneous appeal filed on behalf of the respondent 1st set (respondent nos. 1 and 2/ defendant nos. 5 and 6) and set aside the order dated 06.05.2014 passed by learned Trial Court in the matter of injunction in Partition Suit No. 167 of 2012.

Brief facts:-

3. The petitioner who is sole respondent, filed Partition Suit No. 167 of 2012 in the Court of learned Sub-Judge 1st, Madhubani against the defendants for a decree of partition of the land mentioned in Schedule No. I of the plaint and if prior partition is not being proved, the lands mentioned in Schedule Nos. II, III, IV, V & VI be also partitioned among the parties. Subsequently the plaintiff/petitioner filed an injunction petition under Order 39 Rule 1 and 2 and Section 151 of the CPC in the said partition suit praying inter alia for restraining the defendants from alienating the land as detailed in Schedule I of the plaint which has not been partitioned. The same was opposed by the defendant nos. 5, 6 and 7 by filing the show cause. It appears that their claim is that on the basis of mutual partition the disputed plot no. 456 which is a part of schedule I of the plaint was allotted to the exclusive share of the father of the defendant nos. 5, 6 and 7 namely Late Durga Narayan Jha and accordingly R.S. Khatiyan was prepared in his name and after his death the same is their exclusive property which is not required for partition. After hearing the parties, the learned Trial Court allowed the said injunction petition dated 20.09.2012 of the plaintiff and ordered not to sell or alienate the suit land as detailed in Schedule - I of the plaint till final adjudication of the instant suit. All the concerned parties were also directed to maintain status quo with respect to the lands as detailed in Schedule II, III, IV, V and VI of the plaint.

4. Subsequently, having aggrieved by the said order of injunction the defendant nos. 5 and 6 filed a Miscellaneous Appeal in the Court of learned District Judge, Madhubani, bearing Miscellaneous Appeal No. 46 of 2014 (07 of 2014). The plaintiff filed the rejoinder and also subsequently filed a registered sale deed dated 29.06.2012 in order to show that the defendant nos. 8 and 9 have alienated the suit land especially Plot No. 456 (Schedule I of the plaint) in favour of one stranger during the pendency of the present partition suit.

5. The Additional District Judge VII, Madhubani allowed the said appeal setting aside the order dated 16.04.2018 passed by the Trial Court. The learned Lower Appellate Court given finding that prima facie case is in favour of appellants and observed that so far as the balance of convenience and irreparable loss is concerned it cannot be said that if the appellants will sell the suit land then irreparable loss will be sustained by the respondent because it can be compensated in terms of money and it is settled principle of law that no one can give better title himself. Further, according to Section 52 of the Transfer of Property Act during the pendency of suit any sell comes in the principle of lis pendence to restrain the transferability of a property should be avoided because state obtain revenue if a registry is executed by anybody of any land. It is a case of partition suit and in this case no one can be prohibited from his fundamental use, maintain or sell of the suit land.

Submissions on behalf of the parties:-

6. Learned counsel for the petitioner has submitted that the learned Lower Appellate Court failed to protect the rights and interest of the plaintiff who has brought the partition suit for his separate share in the joint family property and the learned Appellate Court has cared much about the interest of the defendants and t