Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1112 (PAT)

Shekhar Gupta v. Raghubansh Prasad Tiwari

2013-09-11

JYOTI SARAN

body2013
JUDGMENT : Jyoti Saran, J. This appeal under Order 43 Rule 1(r) of the Code of Civil Procedure (hereinafter referred to as the Code) read with Section 104 thereof is directed against the judgment and order dated Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 12.03.2012 passed by learned Sub-Judge-I, Purnea in Title Suit No. 3 of 2011, whereby the petition for injunction filed by the plaintiffs under Order 39 Rule 1 and 2 of the Code, has been allowed. The plaintiffs and the defendant nos. 1 to 8 are descendants of a common ancestor. The defendant no. 9 who is the appellant before this Court is a purchaser from the defendant nos. 1 to 5. The suit in question has been filed for a declaration that the suit property described in Schedule-2 be declared a joint ancestral property of the plaintiffs and the defendant nos. 1 to 8 and for declaring the sale deed no. 1789 dated 08.03.2010 executed by defendant nos. 1 to 3 with the aid of defendant nos. 4 and 5 in favour of the defendant no. 9, to be a fraudulent, nonest and void transaction, not binding upon the plaintiff and thus be set aside. The suit has also been filed for permanent injunction against defendant no. 9 from interfering in the peaceful possession of the plaintiffs over the suit property. 2. The suit was filed on 9.12.2010 and was followed by a petition for grant of temporary injunction under Order 39 rules 1 and 2 of the Code, which was filed on 22.12.2010. The trial court vide order dated 6.1.2011 while admitting the suit directed for issuance of summons upon the defendants by ordinary process as Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 well as under registered cover. On the same date the parties to the suit were directed to maintain status quo as regarding the suit property until appearance of the defendants. By order dated 31.1.2011 the trial court recorded the service of notice on defendant nos. 1, 3, 4 and 5 while holding the notice to be deemed service on defendant nos. 2, 6 and 9 on their refusal. The trial court also recorded that the notice was not yet served on defendant nos. 7 and 8. On 25.2.2011 the defendant nos. 1 to 5 registered their appearance by filing vakalatnama and prayed for time. 1, 3, 4 and 5 while holding the notice to be deemed service on defendant nos. 2, 6 and 9 on their refusal. The trial court also recorded that the notice was not yet served on defendant nos. 7 and 8. On 25.2.2011 the defendant nos. 1 to 5 registered their appearance by filing vakalatnama and prayed for time. On 15.11.2011 the trial court recorded the service of notice on defendant nos. 7 and 8. On the same date the plaintiffs moved a second petition seeking temporary injunction mentioning therein that while the defendant no. 9 was refusing to accept summons but at the same time he was trying to take advantage of the order of status quo by trying to dispossess the plaintiffs from the suit land by applying force. The trial court vide order passed on the same day restrained the defendant no. 9 from interfering with the possession of the plaintiffs over the suit land. Vide order passed on 22.12.2011 the trial court upon considering the request of the plaintiffs directed the office to serve the copy of the order dated 15.11.2011 upon the defendant no. 9 through the process of the court. Vide order passed on 29.02.2012, the trial court taking note Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 of the show cause filed by the defendant no. 9 and the grievance raised by the plaintiffs apprehending disturbance at the hands of the defendant no. 9, extended the order of maintenance of status quo with regard to the suit land until further orders and the matter was posted for hearing on the injunction petition as well as for attendance of the defendant no. 6 to 8. The matter was thereafter heard on 12.3.2012 and the trial court finding a prima facie case in favour of the plaintiffs for grant of injunction, restrained the defendant no. 9 from disturbing the plaintiffs over the suit land until the disposal of the suit and in the meantime the D.C.L.R, Dhamdaha was directed to appoint a Receiver who would divide the crops of the suit land amongst the plaintiff and the defendant nos. 1 to 8, according to their respective shares. The injunction petition was thus disposed of. The defendant no. 9 being aggrieved by the order dated 12.3.2012 is in appeal before this Court. 3. Mr. 1 to 8, according to their respective shares. The injunction petition was thus disposed of. The defendant no. 9 being aggrieved by the order dated 12.3.2012 is in appeal before this Court. 3. Mr. Rajiv Kumar Verma, learned Senior Counsel has appeared on behalf of the appellant while Mr. Ambuj Nayan Choubey has appeared for the plaintiff-respondent no. 1, Mr. Anujeet Sinha has appeared for the plaintiff-respondent nos. 2 and 5, Mr. Santosh Kumar has appeared for the plaintiff-respondent no. 3, Mr. Pradeep Ranjan Tiwary, the respondent no. Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 4 has appeared in person, Mr. Saket Tiwary has appeared for the plaintiff- respondent no. 6 and Mr. Harsh Singh has appeared for respondent nos. 7 to 11 and respondent nos. 13 and 14 have appeared through counsel Mr. J.S. Arora. Since the defendant no. 6 who is respondent no. 12 Barandeo Tiwary in appeal, despite service of notice has not registered appearance before the trial court, hence this Court did not deem it necessary to issue notice to him. Extensive arguments have been advanced by learned counsel appearing on behalf of the parties both in support as well as in opposition of the impugned order. 4. Mr. Rajiv Kumar Verma, learned Senior Counsel has appeared for the purchaser defendant no. 9 who is the appellant before this Court. Mr. Verma while admitting to the discretionary power vested in the trial court for grant or refusal of a prayer for injunction has submitted that in the present case there has been an arbitrary exercise of power by the trial court. According to Mr. Verma even when the prerequisites for grant of temporary injunction was missing in the present case, yet the trial court has not only allowed the prayer but has also proceeded to appoint a Receiver for management of the suit property. It has been submitted that the order on the face of it reflects an uncanny Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 urgency. It is submitted that even when the defendant no. 9 had registered appearance and also filed his show cause enclosing a certification by the revenue authorities regarding the possession of the defendant no. It has been submitted that the order on the face of it reflects an uncanny Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 urgency. It is submitted that even when the defendant no. 9 had registered appearance and also filed his show cause enclosing a certification by the revenue authorities regarding the possession of the defendant no. 9 over the suit property, a copy whereof has also been enclosed with the supplementary affidavit filed on 21.8.2013, yet the trial court has observed that not even a chit of paper had been filed by the contesting parties. It was submitted that even in absence of notice to the vendors i.e. defendant nos. 1 to 5, that the order impugned was passed and that also after recording excess sale by the vendors even though there were no such materials to support this finding. With reference to the statement made in the counter affidavit filed on behalf of the respondent nos. 1, 3 and 6 it was contended that even while the plaintiffs have admitted partition of the ancestral properties way back in 1974, yet the suit has been filed for declaring the property which is subject matter of the sale deed as a joint family property. Learned counsel with reference to the statement made in paragraph-5 and 6 of the counter affidavit filed on behalf of the respondent no. 1 and respondent no. 3 has stated that the said plaintiff-respondents have admitted the fact that the suit land was originally a Mango orchard, the trees of which were cut down and the proceeds distributed amongst the co-sharers. With reference to Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 the statement made in paragraph-6 of the plaint it was submitted that even while it is the case of the plaintiffs that there is a Jute farming over the said property yet they have set up a claim of irreparable loss on apprehensions of wastage and damage by the defendant no. 9. Learned counsel with reference to the khatiyan enclosed as Annexure-R/2 in each of the counter affidavit filed on behalf of the respondents has submitted that the suit land pertains to khata no. 2, khesra no. 52 in mauja Barbana, District-Purnea admeasuring 3.12 acres and was registered jointly in the name of four persons, namely, Krishnadeo Tiwary, Rajendra Nath Tiwary, Laxmi Narayan Tiwary and Anirudha Prasad Tiwary. 2, khesra no. 52 in mauja Barbana, District-Purnea admeasuring 3.12 acres and was registered jointly in the name of four persons, namely, Krishnadeo Tiwary, Rajendra Nath Tiwary, Laxmi Narayan Tiwary and Anirudha Prasad Tiwary. He submitted that even according to the said document, each of the persons were entitled to a share of 0.78 decimals in the suit property and since the sale deed in question has been executed by the grandson of Krishnadeo Tiwary and the widow of Rajendra Nath Tiwary upon being authorised by her sons, the share of these two persons would come to 1.56 acres which is the area of the suit property and thus there was no excess sale made by the vendors. With reference to the sale deed enclosed at Annexure-R/5 of the respective counter affidavits it was submitted that the eastern boundary of the suit property clearly mentions the names of Laxmi Narayan Tiwary and Anirudha Prasad Tiwary and thus their shares Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 are completely intact. He thus submits that since the plaintiffs themselves in the counter affidavit have admitted to partition and a simple calculation of the share in terms of the khatiyan manifests that the area in transaction is not in excess, there was no occasion to put any restraint upon the right of the defendant no. 9. With reference to paragraph-84 of the judgment rendered in the case of Kannan v. Selvamuthukani reported in, 2012 (2) CCC 119 (S.C) : 2012 (1) ACJ 590 (S.C) : (2012) 5 SCC 570 , it was submitted that the entire pleadings of the plaintiffs as set up before the trial court and as reflected in the counter affidavit filed before this Court, is required to be seen for appreciating the conduct of the plaintiffs and which definitely did not warrant indulgence as granted by the trial court. 5. Since the defendant nos. 1 to 5 who are respondent nos. 7 to 11 in appeal are supportive of the contentions advanced by the defendant no. 9 as appellant before this Court, I allowed Mr. Harsh Singh appearing on their behalf to advance his argument before allowing the other respondents to lead their arguments in support of the impugned order. Mr. Singh while adopting the arguments of Mr. 7 to 11 in appeal are supportive of the contentions advanced by the defendant no. 9 as appellant before this Court, I allowed Mr. Harsh Singh appearing on their behalf to advance his argument before allowing the other respondents to lead their arguments in support of the impugned order. Mr. Singh while adopting the arguments of Mr. Verma submitted that there was no notice to the vendors on the injunction petition and which has prejudiced them from filing any response to the same. It is submitted that even in absence of any pleadings either in the plaint or in the injunction Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 petition alleging sale of excess area by the vendors, except that the suit land is the creamy portion of the plot, yet the trial court has recorded a finding to that effect. It was thus sought to be submitted that since it has not been the case of the plaintiffs that the vendor defendant nos. 1 to 5 had sold any excess area, there was no prima facie case in favour of the plaintiffs for securing an order of injunction. On the issue of irreparable loss it was submitted with reference to the statement made in the counter affidavit(s), the plaint and the injunction petition that since according to the plaintiffs themselves the Mango orchard had been cut down and that there was Jute cultivation in the suit land, any apprehension towards irreparable injury is completely misplaced. Mr. Singh questioning the conduct of the plaintiffs in not approaching the Court with clean hands has referred to the valuation of the suit property given in suit and that as mentioned in the counter affidavit. He submits that whereas the plaintiffs have valued the suit property at RS.2.75 lakhs before the trial court in the plaint but for the purpose of opposing the appeal, they have mentioned the valuation of the suit property at RS.10 lakhs in paragraph-11 (c) of the counter affidavit filed on behalf of the respondent no. 1, paragraph-12(c) of the counter affidavit filed on behalf of the respondent no. 3 and paragraph-14(c) in the counter Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 affidavit filed on behalf of the respondent no. 6. 1, paragraph-12(c) of the counter affidavit filed on behalf of the respondent no. 3 and paragraph-14(c) in the counter Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 affidavit filed on behalf of the respondent no. 6. It was thus sought to be contended that there was a clear attempt by the plaintiff to mislead the Court and in the circumstances the plaintiffs were not entitled to grant of injunction. The arguments of learned counsel(s) appearing on behalf of the defendant no. 9 who is the appellant before this Court and defendant nos. 1 to 5 have been contested by the respondent nos. 1 to 6 though they have entered appearance separately as also the defendant nos. 7 and 8 who have yet not registered appearance before the trial court despite service of notice. Whereas plaintiff no. 1-respondent no. 1 has entered appearance through Mr. Ambuj Nayan Choubey, plaintiff-respondent nos. 2 and 5 have entered appearance through Mr. Anujeet Sinha, plaintiff-respondent no. 3 has appeared through Mr. Santosh Kumar and Mr. Sanjay Kumar, plaintiff-respondent no. 4 Pradeep Ranjan Tiwary has appeared in person and plaintiff-respondent no. 6 has appeared through Mr. Saket Tiwary. The defendant nos. 7 and 8 who have been arraigned as respondent nos. 13 and 14 are represented by Mr. Jashawir Singh Arora. 6. Mr. Ambuj Nayan Choubey has appeared for the plaintiff-respondent no. 1 and while supporting the order impugned has submitted that the same did not warrant any interference inasmuch Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 as the power of the trial court under Order 39 Rule 1 and 2 being discretionary in nature and having been exercised upon appreciation of the circumstances, the condition prevalent and the evidence on record, it did not require any intervention. 7. Mr. Jashawir Singh Arora appearing for the defendant nos. 7 and 8 has while supporting the impugned order submitted that the defendant nos. 1 to 5 had no prima facie right to sale since the portion transacted is a part of a plot admeasuring 3.12 acres with division yet to take place. He thus submitted that even while a co-sharer may have a right to sell his share but he has no right to sell a portion of a property which comprises of share of other co-sharers as well. It was submitted that since the interest of the defendant nos. He thus submitted that even while a co-sharer may have a right to sell his share but he has no right to sell a portion of a property which comprises of share of other co-sharers as well. It was submitted that since the interest of the defendant nos. 7 and 8 was inherent in the suit property, hence the defendant nos. 1 to 5 could not have entered into any transaction without the concurrence of the defendant nos. 7 and 8 who are also sons of Kapildeo Tiwary and have been ignored. It was submitted that since the suit property is a portion of the plot bearing khesra no. 52 which admeasures 3.12 acres then until such time that there is a division by metes and bounds amongst the co-sharers, even if the vendors had a right to sell their share in the same, it could not have been done until the share was demarcated since the vendor-defendant nos. 1 to 5 lack inherent right to sell a particular portion Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 of the joint property. Mr. Arora thus submitted that the defendant nos. 7 and 8 being sons of Kapildeo Tiwary, have a right, title and interest in the property and also have a prima facie case in their favour, since by sale of the portion, they have been deprived of the benefits arising from the land and even the balance of convenience draws in their favour on this account. It was submitted that any act on the part of the vendor to damage the suit property which according to Mr. Arora initially was a Mango orchard, it would lead to an irreparable loss and injury to them. Mr. Arora with reference to a judgment of this Court reported in 2001(2) PLJR 268 (Dharam Nath Ojha & ors. v. Raghunath Ojha) and a judgment of the Supreme Court reported in 2005 (1) ACJ 457 (S.C.) : 2005 (1) CCC 430 (S.C) : Air 2005 SC 104 (Maharwal Khewaji Trust v. Baldev Dass), submitted that the preservation of the suit property is of foremost importance and the trial court having noticed the circumstances, had committed no error of jurisdiction in passing the order impugned. Mr. Arora in response to the argument of the learned counsel appearing for defendant nos. Mr. Arora in response to the argument of the learned counsel appearing for defendant nos. 1 to 5 regarding absence of notice, has referred to the order dated 06.01.2011 passed by the trial court to submit that notice was issued to the defendants by the trial court upon admission of the suit and pursuant whereto they have even registered appearance on 25.2.2011 as is manifest from the order Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 sheet, the certified copy whereof was handed over during the course of hearing. It is stated that the suit was filed in December, 2010 and a petition seeking temporary injunction was filed on 22.12.2010. The suit was admitted on 06.01.2011 and the trial court while ordering maintenance of status quo had issued notice to the defendant and pursuant whereto they have appeared on 25.2.2011 and although the order impugned was passed on 12.3.2012 i.e. more than one year thereafter but no response was filed by them. He submits that there was sufficient time for the defendants to oppose the prayer for injunction by filing supportive documents but they certainly cannot say that they had no opportunity to do so. Mr. Arora with reference to the genealogical table has submitted that although it is correct that the persons named in the khatiyan were entitled to their respective share in the property but the share earmarked against each branch, has to be divided equally amongst the legal heirs of that particular branch. He submits that no doubt a share to the extent of 0.78 decimals would have fallen in the share of Kapildeo Tiwary but then the defendant no. 2 Ranti Dev Tiwary, son of Kapildeo Tiwary was not entitled to the entire share rather the defendant nos. 7 and 8 who also happen to be the son of Kapildeo Tiwary also had a share in the suit property. He thus sought to canvass that the Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 demonstration by Mr. Verma regarding the sale being within the share of the vendor, is not the correct position. Mr. Arora has referred to a judgment reported in AIR 2004 Cal. He thus sought to canvass that the Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 demonstration by Mr. Verma regarding the sale being within the share of the vendor, is not the correct position. Mr. Arora has referred to a judgment reported in AIR 2004 Cal. 310 (Sachi Prasad Mukherjee v. Pampa Kumar), paragraph 44 to 46 to submit that principles of law have been laid down as applicable to grant of injunction in case of joint family property and since in the present case the right of the defendant nos. 7 and 8, who also happen to be the sons of Kapildeo Tiwary, has been ignored, hence the observation of excess sale by the trial court does not suffer from any infirmity. Mr. Arora has also referred to a judgment reported in AIR 1996 SC 1946 (Smt. Rajnibai @ Mannubai v. Smt. Kamla Devi & Ors.) to submit that the hands of the Court is not tied to grant injunction if in appropriate case the Court is satisfied that the circumstances warrant as such. 8. Mr. Santosh Kumar, learned counsel appearing for the plaintiff-respondent no. 3 voiced the same contention as advanced by Mr. Arora in support of impugned order. He submitted that even if a prima facie case is not made out but an apprehension of futuristic imminent injury also constitutes a ground for grant of injunction. On the issue of balance of convenience it was submitted that it is not to be considered in isolation rather the comparative hardships of the party has to be tested. He submitted Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 that since the vendors did not have an unfettered right over the suit property to the exclusion of the other co-sharers, hence the balance of convenience certainly was not in their favour. With reference to a judgment of the Supreme Court rendered in the case of Maria Fernandes reported in (2012) 5 SCC 370 it was submitted that a lot of stress has been given to the aspect of due process of law while considering injunction matters. It was submitted that since the defendants are guilty of violating the process of law hence they are not entitled to any relief. It was submitted that since the defendants are guilty of violating the process of law hence they are not entitled to any relief. It was submitted that since the suit property in question is a joint family property and there are other co-sharers to the same, the purchaser who is a stranger to the family cannot be permitted to disturb the unity of possession and the courts below appreciating this aspect have restrained him by an order of injunction as impugned in this appeal. It was lastly contended that the share of the widow has not been protected by the defendants who by the sale deed in question have also sold her share. Learned counsel with reference to a judgment of the Supreme Court rendered in the case of Dalpat Kumar (1992) 1 SCC 719 ; paragraph 4 and 5, submitted that the grant of injunction is necessary for protecting the party from the injury as also to prevent any comparative hardships or mischief or inconvenience which is likely to occur in the matter, if injunction Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 is refused. 9. The respondent no. 4 Pradeep Ranjan Tiwary has appeared in person. He submits that as there was an attempt to dispossess the plaintiff, hence the trial court considering the circumstances prevailing, directed maintenance of status quo vide order passed on 6.1.2011. It is stated that on the said date although plaintiff no. 6 was in possession of the property but the usufructs thereof was being enjoyed by the six plaintiffs and the respondent nos. 1 to 8. He submits that he is son of Laxmi Tiwary and as is manifest from the khatiyan present at Annexure-R/2, he is also a co-sharer of the suit property but his consent was not obtained prior to the execution of the sale deed. With reference to the genealogical table present at Annexure-R/1 of the counter affidavit and as enclosed by the defendant nos. 1 and 2 in the application filed for mutation present at Annexure-R/7, it was submitted that there is a clear suppression by the defendants 1 and 2 inasmuch as the two other sons of Kapildeo Tiwary who are respondent nos. 13 and 14, plaintiffs are conspicuously missing. 1 and 2 in the application filed for mutation present at Annexure-R/7, it was submitted that there is a clear suppression by the defendants 1 and 2 inasmuch as the two other sons of Kapildeo Tiwary who are respondent nos. 13 and 14, plaintiffs are conspicuously missing. With reference to the order dated 15.11.2011 passed by the trial court it was submitted that attendance had been filed on behalf of the defendant nos. 1 to 5 and even a written statement was filed on behalf of the defendant no. 5, hence it is incorrect on the part of the defendants to submit Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 that they had no notice about the proceedings. With reference to the sale deed in question it was submitted that it was a fraudulent sale by the defendant nos. 1 to 5 inasmuch as the other co-sharers to the property were not informed. Relying upon a judgment of the Supreme Court reported in (2005) 6 SCC 149 , paragraph 12 to 16, it was submitted that a single act of fraud is sufficient to vitiate the deed. With reference to the grounds raised in the appeal it was submitted that the comment on the trial court is in a bad taste. Referring to the order sheet it was submitted that on 6.1.2011 the trial court while issuing notice had directed for maintenance of status quo. On 25.2.2011, the defendant nos. 1 to 5 appeared through Vakalatnama. The order dated 26.5.2011 manifests that an affidavit was filed on behalf of the defendant nos. 1 to 4. It is submitted that since the purchaser defendant no. 9 was trying to dispossess the plaintiff with the help of musclemen, hence a second petition for temporary injunction was filed on 15.11.2011 and the trial court taking notice of the written statement filed on behalf of the defendant no. 5 and the fact that the defendant no. 9 had refused to accept summons as also taking note of the grievance of the plaintiffs, issued directions restraining the defendant no. 9 from interfering with the possession of the plaintiffs. It is stated that despite the order dated 15.11.2011, yet Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 the defendant no. 9 had refused to accept summons as also taking note of the grievance of the plaintiffs, issued directions restraining the defendant no. 9 from interfering with the possession of the plaintiffs. It is stated that despite the order dated 15.11.2011, yet Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 the defendant no. 9 did not register appearance and whereupon on the prayer made by the plaintiffs, the trial court vide order passed on 22.12.2011 required the office to serve a copy of the order dated 15.11.2011 on the defendant no. 9 through court process. The matter was thereafter taken up on different dates and on 29.2.2012 the defendant no. 9 appeared and filed his show cause. The trial court taking note of the rival submissions extended the orders of status quo until further orders. It is submitted that the order restraining the defendant no. 9 from interfering with the suit property passed on 15.11.2011 and order dated 29.2.2012 were never questioned by the defendant no. 9 or the defendant nos. 1 to 5 before any forum and which have attained finality and the order dated 15.3.2012 impugned in this appeal is a mere confirmation of the same. I have heard learned counsel for the parties and I have perused the materials on record. The suit was filed for declaring the suit property as a joint ancestral property as also to declare the sale deed dated 8.3.2010 executed by the defendant nos. 1 to 3 in favour of the defendant no. 9 as null and void and was accompanied with the petition for temporary injunction. The trial court while issuing notice vide order passed on 6.1.2011 directed the parties to maintain status-quo. 10. Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 Whereas it has been the contention of the plaintiffs that on the date of passing of the order of status quo they were in possession of the suit property but Mr. Verma relying upon the certificate dated 5.7.2010 of the Circle Officer, Barhara Kothi as contained in Annexure-4 to the supplementary affidavit, has contested this position to contend that the said certification is sufficient evidence of the possession of the defendant no. 9 over the suit property consequent upon the purchase. Verma relying upon the certificate dated 5.7.2010 of the Circle Officer, Barhara Kothi as contained in Annexure-4 to the supplementary affidavit, has contested this position to contend that the said certification is sufficient evidence of the possession of the defendant no. 9 over the suit property consequent upon the purchase. The plaint and the petition for ad interim injunction filed by the plaintiffs in the court below have been enclosed in this appeal and manifest that the plaintiffs had contended that the suit property was joint ancestral property. The defendant no. 9 contested this position by submitting that there was no unity of title of the plaintiffs with the defendant nos. 1 to 8 in respect of the suit land. It was also the contention of defendant no. 9 that a partition of the ancestral property had taken place between the plaintiffs and the defendant nos. 1 to 8 long time ago. The certificate dated 5.7.2010 of the Circle Officer annexed in the supplementary affidavit certifies the possession of the defendant no. 9 over the suit property and was filed in the suit on 3.3.2012. Although the trial court while passing the impugned order has rejected the contention of the defendant no. 9 regarding previous partition on grounds that no Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 document was filed to support the same, the order is silent on the certification of possession of the defendant no. 9 over the suit property. Surprisingly even while a decision as to the validity of the sale deed dated 8.3.2010 is to take place, the trial court while considering the prayer for injunction, has recorded the finding regarding excess sale by the vendor-defendants without discussing the basis for such finding. 11. One of the foremost considerations for grant or refusal of a prayer for injunction is the conduct of the parties. Even while the plaint as well as the petition for injunction makes no whisper regarding previous partition and which appears to form one of the grounds for the trial court to pass the impugned order, the plaintiff-respondent no. 1, 3 and 6 have admitted before this Court on affidavit that a previous partition took place in the year 1974 but have qualified the statement to submit that the suit land was kept out of partition. 1, 3 and 6 have admitted before this Court on affidavit that a previous partition took place in the year 1974 but have qualified the statement to submit that the suit land was kept out of partition. This is a clear deviation from the stand taken by the plaintiffs in the court below. The conduct of the plaintiffs in the circumstances comes under a scanner. The other aspect on which the trial court has faltered is that despite the certification by the Circle Officer, Barhara Kothi as to the possession of the defendant no. 9 over the suit property by virtue of the sale deed dated 8.3.2010 having been placed on record of the suit by the Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 defendant no. 9 on 3.3.2012, the trial court has ignored the relevant piece of document on possession of the defendant no. 9 over the suit property and has issued restraint order against him. The argument of the plaintiffs that the defendant no. 9 having not questioned the order dated 15.11.2011 and 29.2.2012, the same has attained finality and that the order impugned dated 15.3.2012 is a mere confirmation of the said orders, lacks legal foundation. The orders dated 15.11.2011 and 29.2.2012 were interim in nature and which stood merged with the final order dated 15.3.2012 and which has been questioned in this appeal by the defendant no. 9. Thus even if the defendant no. 9 has not chosen to question the earlier orders which was interim in nature the same in no manner can act as an estoppel from challenging the final order. The sale deed under challenge is a registered document and it is not in dispute that the vendors as co-sharers had legal right to transfer their share by sale. The primal issue whether the property which is the subject matter of the sale deed had remained joint even after admitted partition of all other joint properties between the parties is still to be adjudicated in title suit along with the other issue pertaining to the transfer in question being beyond the share of the vendors of the defendant no. 9. Manifestly the sale deed in question is a registered document and a right has been created in Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 favour of the vendee defendant no. 9. Manifestly the sale deed in question is a registered document and a right has been created in Patna High Court MA No.418 of 2012 (9) dated 11-09-2013 favour of the vendee defendant no. 9 and until the said right is extinguished under a decree of a court, it cannot be interfered with as an interim measure unless circumstances prevailing warrant such restraint. In the opinion of this Court the order impugned in this appeal is unsustainable since the court below while considering the prayer for injunction, has failed to address itself objectively on the following aspects: (a) Issue of previous partition, especially in view of the admission by the plaintiffs before this Court. (b) Right created in the defendant no. 9 under the registered sale deed dated 8.3.2010 and its effect. (c) The certification dated 5.7.2010 by the Circle Officer, Barhara Kothi filed by the defendant no. 9 in the suit on 3.3.2012 regarding his possession over the suit property. 12. The matter requires a reconsideration in the backdrop of the observations made hereinabove. For the reasons aforementioned, the order impugned cannot be sustained and is accordingly set aside. The matter is remitted back to the trial court for consideration of the prayer for injunction made by the plaintiffs afresh and its disposal in accordance with law taking note of the aspects as discussed hereinabove and until such time the parties litigating shall maintain status quo as to the suit property. The trial court is directed to dispose of the injunction petition Petition dismissed.