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2007 DIGILAW 1604 (PAT)

Brindaban Tiwary v. Awadhesh Tiwary

2007-09-28

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellant and learned counsel for the respondent. 2. This Miscellaneous Appeal is directed against order dated 12.1.2007 by which learned Subordinate Judge, 3rd Court, Siwan, rejected the application filed by the plaintiff for grant of injunction restraining the respondent from transferring the suit property during pendency of Title Suit No. 37 of 2005. 3. Sole appellant is the plaintiff in the suit and sole respondent is the defendant in the suit which has been filed for partition of the alleged 60% share of the plaintiff in the suit property. It is not in dispute that the plaintiff is the full uncle of the defendant and both of them jointly acquired the suit premises measuring 6 kathas, 10 dhurs by two deeds of gift dated 5.11.1977 and 2.12.1978 and in both the deeds, both the parties were the donees jointly. 4. The claim of the plaintiff-appellant is that both the parties are in joint possession of the suit premises and they constructed a cinema hall over the same after executing a sada agreement of partnership dated "12.1.1980, whereafter on 27.6.1983 there was a registered deed of partnership between them in which plaintiff had 60% share and the defendant had 40% share in the business. Learned counsel for the plaintiff-appellant submits that he had spent heavy amount on the cinema hall and if the defendant succeeds in alienating any land, the plaintiff would suffer huge loss as he has a share in every inch of the property. Learned counsel for the plaintiff-appellant also avers that defendant-respondent executed two registered sale deeds dated 24.12.2005 in favour of strangers with respect to portions of the suit land during the pendency of the injunction petition which was filed in the trial court on 2.2.2005 and he is intending to sell further portion of the suit land. 5. On the other hand, learned counsel for the defendant-respondent submits that subsequently the suit property was partitioned as would be apparent from registered sale deeds dated 27.6.1983 which was executed by the defendant-respondent with respect to a portion the suit land in favour of the plaintiff-appellant and hence there is no unity of title and possession between the parties and the suit as well as injunction petition are frivolous. 6. 6. Considering the facts and circumstances of the case as well as the averments made by learned counsel for the parties it is quite apparent that originally acquisition was made by both the parties jointly by two registered deeds of gift dated 5.11.1977 and 2.12.1978 with respect to suit property measuring 6 kathas 10 dhurs and according to the said deeds of gift both the parties had moiety share therein and they accordingly came in joint possession thereof. It is also not in dispute that a cinema hall was constructed by agreement between both the parties and there was a registered deed of partnership with respect to the said business, in which the plaintiff had 60% share and defendant had 40% share. Although running of the cinema hall business till today is denied by the defendant-respondent, but the building of the cinema hall admittedly still exists. Furthermore, although the defendant is raising his claim in this appeal on the basis of registered deed of sale dated 27.6.1983 that partition had already taken effect between the parties, but in the written statement it is nowhere pleaded that partition between the two parties have already been effected and there is only a vague assertion that there is no unity of title and possession between the parties. In the said circumstances, it clearly appears that the plaintiff-appellant has prima facie case with regard to injunction. Since the building of cinema hall is admittedly standing and the plaintiff-appellant is in possession thereof, the balance of convenience also appears to be in his favour and he is bound to suffer irreparable loss if the property is sold to strangers by the defendant-respondent. 7. In the aforesaid facts and circumstances, this Miscellaneous Appeal is allowed, the impugned order of the learned court below is set aside and both the parties are restrained from alienating any portion of the suit property during pendency of the suit. 8. Both the parties agrees that they would try to assist the court in early disposal of the suit and would not take any unnecessary adjournment.