Sidhinath Jha v. Lokh Nath Jha

Misc. Appeal No. 09 of 2010, whereby he has affirmed the said order dated 10.6.2010 passed by learned Sub-Judge- VIth, Darbhanga.

2. The Courts below, in their detailed orders have concurrently found that the petitioners could not make out a prima facie case for grant of status-quo with respect to the suit properties under Order XXXIX Rule 1 and 2 of the Code on the reasoning that separation among the parties was an admitted position and the co-parcerners had dealt with the property among themselves by way of sale and purchase; and have accordingly, held that it was not a fit case for grant of status-quo.

3. Mr. Sashi Shekhar Dwivedi, learned Senior Advocate appearing on behalf of the petitioners has vehemently submitted that both the Courts below misconstrued “prima facie case” to mean that at the stage of seeking interim order the petitioners were required to prove that in fact there was no partition in the joint family. He has further submitted that there is strong presumption of 3 jointness in a Hindu joint family and onus is heavy upon such defendants who assert that the properties are in fact partitioned among the members of the joint family. He has further submitted that the Courts below misconceived the admission of „separation‟ as admission as regards „partition by metes and bounds‟ in the joint family and erroneously passed the impugned order which required interference by this Court in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. According to him, the interference is required in order to keep the lis intact. He has referred to a report submitted by the Pleader Commissioner showing certain trees to have been cut recently from the suit land in dispute and has submitted that if the parties are not restrained from changing the nature of the suit properties or alienating the same, the suit property may not be protected.

4. From the impugned orders and submissions made, it appears that petitioner no.1 who is plaintiff no.1 before the Courts below is one among the three sons of Ratneshwar Jha. Other two sons, namely, Lekhnath Jha and Lakshminath Jha are defendant nos. 1 and 5 in the Court below and have been impleaded as respondent nos. 4 1 and 5 in the present application. The petitioners filed the suit seeking partition of 1/3rd share in Schedule I, II, III and IV and Schedule I ( A) of the plaint. The plaintiffs asserted that during the life time of Ratneshwar Jha separation among Ratneshwar Jha and his sons had effected and for the purpose of convenience, they had been cultivating the land separately but without partitioning the same by metes and bounds. From the impugned order, it appears that it was specific case of the plaintiffs/petitioners that in the year 2000, the respondent no.1 being in need of money for agricultural work had transferred his 1/3rd residential house and had requested the plaintiffs purchase the same and accordingly, having accepted such proposal, the petitioners had purchased 7 dhurs of land in C.S. plot No. 290 and 291 for a consideration of Rs.11,000/- by registered sale deed dated 9.9.2000 and accordingly, respondent no.1 had delivered the possession whereafter the petitioners came in possession.

5. Further claim of the plaintiffs is that differences arose among the properties of the family thereafter leading to filing of the partition suit as the respondent no.1 refused to partition the suit property. 5

6. During the pendency of the suit the petitioners filed application under Order XXXIX Rule 1 and 2 of the Code, seeking a direction to the parties to maintain status- quo till disposal of the suit in order to protect the joint property. The petitioners pleaded in the application under Order XXXIX Rule 1& 2 of the Code that respondent no.1 had removed green trees after cutting them from the joint orchard and was planning further to remove shisham trees and therefore, they should be directed to maintain status- quo as regards the joint property.

7. It appears that the respondent no.1 filed his show cause asserting that the orchards are partitioned and all the three brothers are in possession of their respective shares.

8. It seems that on a prayer made by the petitioners the Court of learned Subordinate Judge VIth, Darbhanga had appointed an Advocate Commissioner who, in his report is said to have mentioned that there was sign of cutting of trees on different plots. The application under Order XXXIX Rule 1 of the Code was rejected by the Court of learned Sub Judge VIth, Darbhanga vide his order dated

10.6.2010 after reaching to a prima facie finding that 6 partition had been effected much earlier and memorandum of partition was prepared and signed by all the parties in the year 2002. In view of the separate cultivation and separately dealing with the suit properties, learned Sub- Judge VIth, Darbanga held that the petitioners/plaintiffs could not prima facie establish story of jointness, for the purpose of grant of interim order. He also took into account the fact, as per the admission of the plaintiffs themselves, that plaintiff no.1 had purchased definite portion of the land from defendant no.1 in the year 2000 i.e. nearly five years before institution of the suit. This order came to be challenged by filing Miscellaneous Appeal No. 09 of 2010 which has been dismissed by the learned Additional District Judge, Darbhanga vide order dated 24.5.2012. Learned appellate Court has also dealt with the respective pleadings and submissions of the respective parties and concurring with the findings of the Courts below, he came to a conclusion that the petitioners failed to make out a prima facie case nor could he make out that balance of convenience was in favour of granting status-quo in the facts and circumstances of the case.

9. He has placed reliance on a judgment of this 7 Court reported in AIR 1946 Patna 177 ( Brajendra Nath Ghose vs. Sm. Kashibai and others) in order to submit that establishing prima facie, case for the purpose of grant of interlocutory injunction prima would not mean establishing the case itself. It would be enough, if the plaintiff can show that he has a fair question to raise as to the existence of right which he alleged and can satisfy the Court that the property in dispute should be preserved in present actual conditions until such questions can be disposed of, Mr. Dwivedi submits. He has also relied on Supreme Court judgment reported in (2004) 8 SCC 488 ( Maharwal Khewaji Trust ( Regd.), Farid Court vs. Baldeo Dass and others) in support of his plea.

10. There are certain aspects which petitioners themselves have admitted. Firstly, after separation among Ratneshwar Jha and his sons, they have been cultivating the land separately since long. There is categorical stand of the petitioners that he had purchased definite portion of the land from respondent no.1 in the year 2000 which property was also an ancestral property. This is to be indicated that transaction of ancestral property among the co-sharers is very strong evidence of partition in 8 the family. The defendants have taken specific plea that a memorandum of partition was also executed by the three sons of late Ratneshwar Jha which fact have been accepted by defendant no.5 also. It further appears that defendant no.1 had mortgaged some land individually through a mortgage bond dated 23.5.1985. In view of the above, I am of the opinion that the petitioners have failed to make out a prima facie, case that there had been no partition. In any event, since the parties are living separately, cultivating their land separately and dealing with the properties individually since long, balance of convenience will not be in favour of granting status-quo. I am of the view that once the petitioners/plaintiffs has failed to establish a prima facie, favour the questions of “balance of convenience” and “irreparable loss” become redundant. Judgment relied upon by learned Senior Counsel can not be applied in favour of grant of status-quo in the facts and circumstances of the present case.

11. I am also of the view further in a proceeding under Article 227 of the Constitution of India, this Court is required to see whether the Courts below are acting within their jurisdiction and have exercised their jurisdiction vested 9 in them. I do not find any merit in this application as there is no illegality or infirmity in the impugned orders.

12. This application is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-