BRAJ BHUSHAN TIWARY & Ors. v. INDU BHUSHAN TIWARI & Ors.

defendants-respondents claim to be their self acquired property and therefore it would be correct to say that the entire property is ancestral property. It has also been recorded while discussing the case of the parties by the court below that specific stand of the contesting-defendants is that they have not or would not alienate the land beyond their share which in the facts of this case would be 2/3rd share for the contesting-defendants and 1/3rd share for the plaintiffs-respondents. The court below in this context has further taken into account that even the plaintiffs through their father, who 2 is now arrayed as defendant to the suit, had also sold the land of the joint family. Having recorded all these findings the court below has come to a conclusion that there is no prima-facie case in favour of the plaintiffs-appellants and in fact there would be also no irreparable loss to them because if ultimately the court would allow partition of 1/3rd share, as prayed for in the suit, any sale of the land beyond their respective share will always be the subject matter of adjustment in the final decree. Mr. Keshav Srivastava, learned Senior counsel appearing on behalf of the appellants would submit that whether the land is self acquired property or joint family property, could be gone into by the court below in the light of evidence adduced by the parties, but when a suit for partition is filed each of the co- sharer is expected to maintain status-quo for safe guarding the property. He would further submit that the alienation made by any of the co-sharer during pendency of the suit would unnecessarily create hurdle by way of third party rights which at times becomes very difficult to be sorted out even if a final decree is passed by the court below by adjusting the share by taking into account of any excess alienation made by any co-sharer. In this context he has also placed reliance on the judgment of the Apex Court in the case of ‘Maharwal Khewaji Trust Vs. Baldev Dass’ reported in 2005 (1) PLJR 94 (SC) as also on the judgment of this Court in the case of ‘Gita Mishra Vs. Most. Adhikari Kunwar & Ors’ reported in 1993 (1) B.L.J.R. 358. 3 This Court from perusal of the plaint as also the written statement of the contesting-defendants and separate written statement of defendant-father of the plaintiffs-appellants supporting the case of the plaintiffs, would find that execution of sale deed of the part of suit property in the name of father of defendant nos. 1 and 3, namely, Shayam Bihari Tiwary and Bankey Bihari Tiwary way back in the year 1969, 1972 and 1981 are admitted facts and thus prima-facie evidence of their self acquired property of the defendants. It is actually these suit properties about which there is a grievance of the plaintiffs- appellants, inasmuch as, the sale deed which has been made part of this memo of appeal dated 23rd August, 2006 (Annexure-3) itself would go to show that the defendant-respondent no.1 and his wife had executed the sale deed in respect of certain land which was purchased in the name of the father, Shyam Bihari Tiwary on

19.5.1972. In such a situation in absence of any clinching material regarding these purchased land to be part and parcel of the joint family property, if the court below has come to a conclusion that the defendants-respondents cannot be restrained from selling of the property for the time being and if the claim of the plaintiffs- appellants is found to be correct the same would be adjusted in the final decree while allotting share to the respective co-sharers, the same cannot be held to be erroneous. That apart, when this fact is not disputed that even the father of the appellant, arrayed as defendant in the suit had also been selling the joint family 4 property, part of which has now become subject matter of the suit, it can be safely held that the plaintiffs cannot restrain the contesting defendants in alienating the so called joint family property, while continuing to reap benefit of such admitted sale of the part of same joint family property through their defendants father. In fact it is these aspects which would lead to also take into account the doctrine of lispendens which only protects right of a person in respect of any event, action which is taken by any party during the pendency of the suit. In a suit of this nature, where every co-sharer were selling the land prior to institution of a partition suit or a co-sharer has also by claiming it to be self acquired property made certain alienation of the suit property, would definitely attract the principles of lispendens. It would be in fact a sweeping proposition of law that the moment a suit for partition is filed all co-sharers must maintain status-quo and should not alienate any portion of the alleged joint family property. Judgment of the Apex Court in the case of Maaharwal Khewaji Trust (Supra) also does not say so much less lay down any law to effect. The Apex Court in fact had confined the directions in the said judgment between the parties by holding it to be necessary in the facts and circumstances of that case and as such the same must be held to be rendered under Article 142 of the Constitution which obviously cannot be used as a precedent. Sofar the judgment of this Court in the case of Gita Mishra (Supra) is 5 concerned, from the facts thereof it would be clear that neither there was a case of self acquired property nor there was an issue of alienation already made by the plaintiff or by their branch. It was a case where the co-sharers were being denied their rights on the basis of deed of gift which was being questioned in the suit for getting respective shares. The findings of this Court, therefore, in the case of Gita Mishra basically proceeded on an exemption that there was an unity of title in respect of all the suit land. Such case is not here and in fact, as noted above, the court below while considering the three ingredients had necessarily gone into these aspects while holding that the part of suit property appeared to be self acquired property of the defendant-respondent. That being so, the ratio of the judgment in the case of Gita Mishra (Supra) will not be applicable in the facts of this case. One thing, however, remains that the contesting- defendants have admitted in their written statement that certain portion of the suit land apart from those purchased in the name of Shayam Bihari Tiwary or Bankey Bihari Tiwary was part and parcel of the joint family property. There being bonafide lis between the plaintiffs as also their defendant father supporting the plaintiffs on one hand and the contesting-defendants on the other hand in the present partition suit, disposal of such suit should not be unnecessarily lingered, if all the parties have already appeared and have filed their respective pleadings. That being so, this Court would direct the trial court to ensure that if the suit is ready for 6 hearing the same must be disposed of expeditiously preferably within a period of six months from the date of receipt/production of a copy of this order. Subject the aforementioned observations and directions this appeal being devoid of any merit is hereby dismissed. Abhay Kumar (Mihir Kumar Jha, J.)