Patna High Court
Anil Kumar Prasad Sah Alias Anil Kumar ... vs Smt. Sanjana Shah on 14 August, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.620 of 2023
======================================================
Anil Kumar Prasad Sah alias Anil Kumar Shah Son of Late Jamuna Prasad
Shah, Resident of Mohalla-Bajajpatti, Main Road, Police Station and Post
Office-Motihari Town, District-East Champaran at Motihari.
... ... Petitioner
Versus
1. Smt. Sanjana Shah Wife of Ravi Kumar Shah, resident of Mohalla-
Belwanava, Police Station and Post Office-Motihari, District-East
Champaran at Motihari.
2.1. Sandeep Shah Son of Raj Kumar Pd Shah, Resident of Mohalla- Bajajpatti,
Police Station and Post Office-Motihari, District- East Champaran at
Motihari.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Shashi Shekhar Dvivedi, Sr. Advocate
Mr. Maheshwar Dhar Dwivedi, Advocate
For the Respondent No.1: Mr. Binod Kumar Singh, Advocate
Mrs. Vagisha Pragya Vacaknavi, Advocate
Ms. Ankita Roy, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 14-08-2025
The present civil miscellaneous petition has been filed
for setting aside the order dated 08.06.2023 passed by the
learned Additional District Judge-19, Motihari in Misc. Appeal
No. 25 of 2019 whereby and whereunder the learned Additional
District Judge-19 allowed the appeal filed by the
defendant/appellant/respondent no. 1 and set aside the order
dated 07.09.2019 passed by the learned Sub Judge-V, Motihari
in Title Suit No. 606 of 2018, by which the learned trial court
disposed of the petition filed by the plaintiff/respondent/petition
under Order 39 Rules 1 and 2 of the Code of Civil Procedure,
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
2/29
1908 (for short 'the Code') directing both the parties to maintain
status quo over the disputed land.
02. Briefly stated, the facts of the case are that the
petitioner is plaintiff of Title Suit No. 606 of 2018 which has
been filed for declaration of the title over the disputed land and
also for declaration that sale deed dated 08.11.2004 executed by
respondent no. 2 in favour of respondent no. 1 is null and void.
For convenience, the parties would be referred, hereinafter, by
their status in the present civil miscellaneous petition. The
disputed land is situated in Mauja-Belwana, PS.-Motihari,
District-East Champaran, Khata No. 39, Plot No. 710 area 10
Kattha. The disputed land was the ancestral property of one
Jamuna Prasad Sah. Jamuna Prasad Sah had four sons, namely
Raj Kumar Prasad Sah, Anil Kumar Prasad Sah, Sudhir Kumar
Sah and Pramod Kumar Sah. Anil Kumar Prasad Sah is the
petitioner and Raj Kumar Prasad Sah was original respondent
no. 2 who has been substituted by his heir/legal representative in
the present petition. Pramod Kumar Sah filed Partition Suit No.
207 of 1971/33 of 1974 against his father, Jamuna Prasad Sah,
mother, Sarala Rani Sah, and his above named three brothers.
The suit was disposed of on the basis of compromise and the
compromise petition was treated as part of decree dated
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
3/29
02.03.1978
passed by learned Sub Judge-II, Motihari. In the
compromise petition, entire property was divided into 08
Schedules and shares were allotted in the following manner:
Schedule 1-allotted to plaintiff-Pramod Kumar Prasad Sah
Schedule 2-allotted to defendant no. 1-Jamuna Prasad Sah
Schedule 3-allotted to defendant no. 2-Sarala Rani Sah
Schedule 4-allotted to Anil Kumar Prasad Sah (petitioner)
Schedule 5-allotted to defendant no. 4- Sudhir Kumar Sah
Schedule 6-allotted to defendant no. 5- Raj Kumar Sah
(original respondent no. 2)
Schedule 7- it was allotted jointly with 1/6th share for
payment of taxes, loans, rent and other
liabilities. It was also settled that expenses of
marriages of four unmarried daughters (two
daughters of defendant no. 1, one daughter of
defendant no. 3 and one daughter of
defendant no. 4) would be spent from
Schedule-7 property and if expenses
exceeded, all shareholders were supposed to
pay jointly as per their shares. It was also
made clear that only defendant no. 1, Jamuna
Prasad Sah would have the right to deal with
the property and any such transaction would
be acceptable to all shareholders.
Schedule 8- This property was allotted to Anil Kumar
Prasad Sah, Sudhir Kumar Sah and Pramod
Kumar Sah for establishment of industry and
petrol pump with right to deal with the said
land.
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
03. The disputed land is part of Schedule-8 property.
The plaintiff claimed that in the year 1987, the three brothers
divided the land of Schedule-8 amongst themselves and
petitioner got 01 Bigha 04 Kattha land in Khata No. 39 Plot
No. 710 and had been coming in its peaceful possession. When
the respondent no. 1 started claiming her right and title over 10
Kattha land of the share of the petitioner and tried to disturb his
possession, a proceeding under Section 144 Cr.P.C. was
initiated, then the plaintiff came to know about execution of a
sale deed dated 08.11.2004 for 10 Kattha land by respondent no.
2 in favour of respondent no. 1. Further, claiming that the
respondent no. 2 had no right to execute any sale deed as the
land was not of his share and he was a rightless person and for
this reason, the vendee did not get any right or possession over
the suit land, the petitioner filed Tile Suit No. 606 of 2018
praying for declaration of title over the suit land in his favour
and also sought declaration that sale deed dated 08.11.2004 to
be a void document. During pendency of Title Suit No. 606 of
2018, apprehending dispossession of the suit land in the hands
of respondent no. 1 and also alienation by her, the petitioner
filed a petition under Order 39 Rules 1 and 2 of the Code for
interim injunction against respondents with prayer to restrain
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
her from changing the nature of the suit land and alienating the
suit property. The learned trial court disposed of the said land
vide its order dated 07.09.2019 directing both the parties to
maintain status quo over the disputed land. Aggrieved by the
said order dated 07.09.2019, the respondent no. 1 preferred
appeal before the court of learned District Judge, Motihari and
in the Misc. Appeal No. 25 of 2019, the learned first appellate
court passed the order dated 08.05.2023 and allowed the appeal
and set aside the order dated 07.09.2019. This order is under
challenge before this Court.
04. Mr. Shashi Shekhar Dvivedi, learned senior
counsel, appearing on behalf of the petitioner, submitted that the
impugned order is not sustainable and is completely
misconceived. The learned appellate court did not consider for a
moment that respondent no. 2 has no authority to sell the
disputed land to respondent no. 1 as the said land was allotted in
the share of petitioner and his two brothers in compromise
decree dated 02.03.1978. Mr. Dvivedi further submitted that the
leaned first appellate court committed further mistake by
considering the disputed land to be joint property while in the
compromise decree it was made clear that the disputed land was
allotted in share of the petitioner and his two brothers. Mr.
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
Dvivedi further submitted that act of the respondent no. 2
amounts to changing the final order of a court of competent
jurisdiction at the will of respondent no. 2 when the suit land
was not allotted to him. Mr. Dvivedi straightway referred to
compromise decree in Partition Suit No. 207 of 1971 of which
the compromise petition of the parties formed a part to stress
that there is no confusion with regard to Schedule-8 property
that it was exclusively allotted in the share of three brothers,
namely Anil Kumar Prasad Sah, Sudhir Kumar Sah and Pramod
Kumar Sah for establishing industry and petrol pump and they
have been given right to deal with the land of Schedule 8 and it
was also made clear that the other shareholders would have no
objection. Therefore, other shareholders have no concern with
the property of Schedule-8. Mr. Dvivedi further submitted that
there is no dispute over the distribution of the property from
Schedule -1 to Schedule-6. There is further no dispute over
Schedule-7 property as the said property was treated as joint
property and all the shareholders were entitled to 1/6th share
subject to condition that all liabilities and marriage expenses of
daughters of the family were to be met from this property. Only
after all expenses were covered, then the shareholders would
have their 1/6h share and in case expenses exceeded the income
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
from the property, the shareholders were required to bear the
expenses according to their 1/6th share. At the same time,
Jamuna Prasad Sah (defendant no. 1) was given right to deal
with the property and any transaction so made by the defendant
no. 1 of Partition Suit No. 207 of 1971 was to be acceptable to
all the shareholders. Under the same family arrangement, it has
been clearly mentioned that whatever land has been mentioned
in Schedule-8, the said land was given to Anil Kumar Prasad
Sah, Sudhir Kumar Sah and Pramod Kumar Sah for running the
business of petrol pump and industry and they were also given
power to deal with the suit land and no shareholders would
object to it.
05. Mr. Dvivedi further submitted that this recital
makes it clear that the Schedule-8 land was given jointly to
three brothers including the petitioner and other shareholders
have no claim over the said land. Still, the respondent no. 2
violated the agreement and sold a part of land of Schedule-8 to
respondent no. 1, which is against the compromise entered by
respondent no. 2 along with other shareholders.
Mr. Dvivedi further submitted that the respondents
claimed that a private partition took place in the year 1987 with
regard to Schedule-8 property. The story of this private partition
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
is not believable as in the said partition, the deceased father of
the petitioner, namely Jamuna Prasad Sah, had also been allotted
share. At the same time, property of deceased father was not
made part of the partition, which is very surprising, as the
property of deceased-father and deceased mother would devolve
upon their sons and would normally form part of a partition if
any such partition took place between the sons. Mr. Dvivedi
further submitted that even if any such private partition had
taken place, the same would not override the earlier compromise
decree. The compromise decree of a court of competent
jurisdiction cannot be varied, modified or set aside by a
subsequent private partition between the parties as the said
power vests only in a competent court.
06. Mr. Dvivedi reiterated that language of Schedule-8
is unambiguous and the learned first appellate court wrongly
interpreted the language of Schedule-8. It is a document of the
parties and their intention was reflected from the language used
in Schedule-8. Even the court which passed the compromise
decree could not have modified the said language as it only put
the seal of approval over the compromise. However, the learned
first appellate court by passing the impugned order, has set aside
the compromise for which it was not empowered. Therefore,
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
strong prima facie case lies in favour of the petitioner.
Mr. Dvivedi next submitted that the respondents have
also placed reliance on the proceeding which took place under
Section 144 Cr.P.C. in support of their contention, but the said
proceeding has no legal value after lapse of 60 days and it is
common knowledge that such proceedings are not above board.
07. Mr. Dvivedi further submitted so far as irreparable
loss is concerned, it is not for the person seeking injunction to
show that he would suffer irreparable loss but it is for the person
who wants to dispose of the property to show that he would
suffer irreparable loss, if is not permitted to alienate the
property. Apparently, the respondents have failed to show any
such necessity. Moreover, the lis property should be preserved
and learned senior counsel referred to the decision of Hon'ble
Supreme Court in the case Maharwal Khewaji Trust (Regd.)
Faridkot Vs. Baldev Dass, (2004) 8 SCC 488, wherein in
Paragraph-10, it has been held as under:
"10. Be that as it may, Mr Sachar is
right in contending that unless and until a case
of irreparable loss or damage is made out by a
party to the suit, the court should not permit
the nature of the property being changed which
also includes alienation or transfer of the
property which may lead to loss or damage
being caused to the party who may ultimately
succeed and may further lead to multiplicity of
proceedings. In the instant case no such case
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
of irreparable loss is made out except
contending that the legal proceedings are
likely to take a long time, therefore, the
respondent should be permitted to put the
scheduled property to better use. We do not
think in the facts and circumstances of this
case, the lower appellate court and the High
Court were justified in permitting the
respondent to change the nature of the
property by putting up construction as also by
permitting the alienation of the property,
whatever may be the conditions on which the
same is done. In the event of the appellant's
claim being found baseless ultimately, it is
always open to the respondent to claim
damages or, in an appropriate case, the court
may itself award damages for the loss suffered,
if any, in this regard. Since the facts of this
case do not make out any extraordinary
ground for permitting the respondent to put up
construction and alienate the same, we think
both the courts below, namely, the lower
appellate court and the High Court erred in
making the impugned orders. The said orders
are set aside and the order of the trial court is
restored."
08. Mr. Dvivedi further referred to the decision in the
case of Dev Prakash & Anr vs Smt. Indra & Ors, (2018) 14
SCC 292 wherein the Hon'ble Supreme Court, following the
decision in the case of Maharwal Khewaji Trust (supra), held
in Para-13 as under:
"13. In the preponderant factual
backdrop, as outlined hereinabove, we are of
the view that not only the reasons endeavoured
to be cited in the impugned order [Dev
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
Prakash v. Indra, 2016 SCC OnLine Raj 842]
in justification of the direction for public
auction of the suit property lack in persuasion,
those are apparently speculative and illogical,
to say the least. The direction for disposal of
the suit property by public auction, in the facts
and circumstances of the case, clearly militates
against the fundamental precept of
preservation of subject-matter of any dispute
pending adjudication in a court of law, more
particularly relatable to a civil litigation, to
appropriately decide on the rights of the
parties for administering the reliefs to which
they would be entitled eventually on the
culmination of the adjudication. As it is, the
very essence of the concept of temporary
injunction and receivership during the
pendency of a civil litigation involving any
property is to prevent its threatened wastage,
damage and alienation by any party thereto, to
the immeasurable prejudice to the other side or
to render the situation irreversible not only to
impact upon the ultimate decision but also to
render the relief granted, illusory. We do not
wish to burden this order by the decisions of
this Court on the issue except referring to the
one in Maharwal Khewaji Trust v. Baldev Dass
[Maharwal Khewaji Trust v. Baldev Dass,
(2004) 8 SCC 488 : AIR 2005 SC 104] ,
wherein it has been underlined that unless and
until a case of irreparable loss or damage is
made out by a party to the suit, the court
should not permit the nature of the property to
be changed, which may include alienation or
transfer thereof leading to loss or damage been
caused to the party who may ultimately
succeed and which would as well lead to
multiplicity of proceedings. Judicial discretion
has to be disciplined by jurisprudential ethics
and can by no means conduct itself as an
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
unruly horse."
09. Mr. Dvivedi, thus, submitted that apart from
existence of strong prima facie case in his favour, the petitioner
fulfilling the other requirements of showing irreparable loss and
balance of convenience would also lie in favour of the petitioner
who wants to preserve the suit property.
10. Mr. Dvivedi, referring to the Probate Case No. 12
of 1996, which was institute by Anil Kumar Prasad Sah (present
petitioner), Sudhir Kumar Sah and Pramod Kumar Sah making
Raj Kumar Prasad Sah (original respondent no. 2) and others as
opposite parties, contended that orders of the probate court does
not confer title of the property to the person who has been
granted property by the Will in which probate has been granted.
The order of the probate court only certifies to the fact that the
Will had been properly executed and it is not a forged and
fraudulent document. Grant of probate to the petitioner allows
the legatee to administer the estate of the testator and nothing
more. Mr. Dvivedi referred to the decision of Hon'ble Supreme
Court in the case of Delhi Development Authority Vs. Mrs.
Vijaya C. Gurshaney, (2003) 7 SCC 301, wherein the Hon'ble
Supreme Court held that it is settled law that a Testamentary
Court, whilst granting Probate or Letters of Administration, does
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
not even consider particularly in uncontested matters, the
motive behind execution of a testamentary instrument. It further
held that a Testamentary court is only concerned with finding
out whether or not the testator executed the testamentary
instrument of his free will. The Hon'ble Supreme Court further
held that it is settled law that the grant of a Probate or Letters of
Administration does not confer title to property. They merely
enable administration of the estate of the deceased. Thus, it is
always open to a person to dispute title even though probate or
Letters of Administration have been granted. Thus, Mr. Dvivedi
submitted that the learned first appellate court completely
missed all the above noted points and passed an erroneous order
which could not be sustained.
11. Mr. Binod Kumar Singh, learned counsel,
appearing on behalf of respondent no. 1, vehemently contended
that the order of the first appellate court is a just and proper
order and perfectly legal. There is no infirmity in it so as to
require interference by this court. Learned counsel further
submitted that Partition Suit No. 207 of 1971 was decreed on
02.03.1978 and respondent no. 1 purchased the property from
Raj Kumar Prasad Sah (original respondent no. 2) on
08.11.2004 by registered sale deed. The petitioner has the
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
knowledge of execution of sale deed of respondent no. 1, still
for 14 years, the petitioner did not challenge the sale deed for
the reason that he has been knowing about the fact that further
partition has been taken place with regard to Schedule-8
property and the present respondent no. 2 was within his rights
to execute the sale deed of his share of land. Moreover, the suit
has been filed by the petitioner seeking declaration only and a
suit for declaration simpliciter is not maintainable. On this
aspect that declaratory suit without consequential relief is not
maintainable, the learned counsel relied on the decision of the
Hon'ble Supreme Court in the case of Venkataraja v. Vidyane
Doureradjaperumal, (2014) 14 SCC 502. Learned counsel,
thus, submitted that when the suit of the petitioner itself is not
maintainable, he cannot seek injunction against respondents.
12. Learned counsel next submitted that language of
compromise petition is unequivocal and there can be no dispute
as to interpretation of the compromise decree. In respect of
Schedule 1 to Schedule-6 land, learned counsel submitted that
except for the person who got the scheduled property, it has
been made clear in every schedule that other shareholders have
no concern with the property of Schedule 1 to Schedule 6. But
there is no such recital in Schedule-7 and Schedule-8 properties
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
between the parties as is clear from the language adopted in
Schedules 7 and 8, which shows that status of the properties of
these two schedules is different from other scheduled property.
13. Learned counsel further submitted that in the sale
deed of 08.11.2004, which was executed by original respondent
no. 2 in favour of respondent no. 1, there is a recital that a
partition took place and a memo of partition was prepared on
03.06.1997. This shows the respondent no. 2 executed the sale
deed in terms of partition dated 03.06.1997 in respect of
Schedule-8 property. Learned counsel further submitted that
much stress has been put on the fact that Schedule-8 property
was exclusively allotted to three brothers, namely Anil Kumar
Prasad Sah, Sudhir Kumar Sah and Pramod Kumar Sah. But
from the recital it is also apparent that the property was given to
these three brothers for running the business of petrol pump and
industry but the shareholders did not loose their rights and this
fact is apparent from further recital where details of the suit
property of Schedule-8 has been mentioned. In the recital of
Schedule-8, the details have been mentioned, there is averment
that it is reminded that out of the Schedule-8, defendant no. 1-
Jamuna Prasad Sah, defendant-2-Sarala Rani Sah and defendant
no. 5-Raj Kumar Prasad Sah, would get their share of land and
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
building from the joint property and whatever is left out of the
joint property, all the shareholders would have 1/6 th share. From
perusal of Schedule-8 it would appear that it deals with Khata
No. 39, Plot 710 area 04 acre 12 dhurs, apart from other
properties and from the aforesaid recital, it is clear that Raj
Kumar Prasad Sah, who was defendant no. 5, and who was
separately allotted Schedule-6 of compromise decree, was also
allotted share in Schedule-8. This fact was within the knowledge
of the petitioner and his other brothers. But suppressing this
material fact, the petitioner gave incorrect, wrong and false
statement in his plaint and also in civil miscellaneous petition.
For concealment of the fact, the present civil miscellaneous
petition is fit to be dismissed with exemplary cost. Learned
counsel further submitted that the petitioner has not come before
this Court with clean hands and even got an order for
maintaining status quo by both the parties vide order dated
02.11.2023 making a misleading pleading that Schedule-8
property was allotted exclusively to the petitioner-Anil Kumar
Prasad Sah, Sudhir Kumar Sah and Pramod Kumar Sah.
Learned counsel further submitted that precisely for this reason,
the petitioner did not challenge the sale deed for about 14 years.
Learned counsel further submitted that grant of injunction is an
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
equitable relief and therefore, the person seeking injunction
must come with clean hands. But this petitioner approached the
Court suppressing the material facts and therefore, he is not
entitled to equitable relief of injunction and his prayer is liable
to be rejected on this sole ground. Learned counsel referred to a
decision of learned Single Judge of Himanchal Pradesh High
Court in the case of Smt. Kalawati vs Sh. Netar Singh &
Others, AIR 2016 HP 85, wherein the learned Single Judge held
that the fact that the petitioner has not approached the court with
clean hands in itself is sufficient ground for not granting the
relief of injunction.
14. Learned counsel further submitted that in the
partition of 03.06.1997, from khata no. 39, khesra no. 710, 64
decimal area was allotted to Raj Kumar Prasad Sah, vendor of
respondent no.1. Similarly, petitioner was also allotted 64
decimal land. Sudhir Kumar Sah was allotted 64 decimal land
whereas Pramod Kumar Sah was allotted 66 decimal land. Share
of deceased father from Plot No. 710 of khata No. 39 was also
shown in the partition deed who was allotted 01 acre 36 decimal
land of Khata No. 39 Plot No. 710. This partition deed though,
not registered, is not a forged document and it is a genuine and
admitted document containing signatures of all four brothers.
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
The genuineness of the document has been further proved by the
orders of the Probate Court passed in Probate Case no. 12 of
1996 in the year 2016. The reason for allotting share to deceased
father arose as land of Schedule-8, especially khata no. 39 plot
no. 710 forms the part of schedule property, having area 01
Bigha 06 Katha 10 Dhur equivalent to 1.52 Acre, of the Will.
Now, this Will was executed by the testator-Jamuna Prasad Sah
in favour of a number of legatees including the son of the
petitioner and the sons of his two other brothers. If the land of
Khata No. 39 Khesra No. 710 was exclusively allotted to the
petitioner and his two brothers, there was no occasion for
including the same land in the Will of the father of the petitioner
and the present petitioner was one of the petitioners in Probate
Case No. 12 of 1996 seeking probate of the said Will. The
probate of the Will dated 17.06.1993 was granted unopposed
vide order dated 12.08.2016. Jamuna Prasad Sah died after
execution of the Will and as the property of Schedule-8
especially khata no. 39 khesra no. 710 area 1.52 acre was part
of the Will property, the brothers agreed amongst themselves to
allocate that much area of land to the deceased father so that
Will could be given effect to. Therefore, the contention of the
learned senior counsel for the petitioner that a deceased person
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
was allotted share is without any merit. Denial of the partition
dated 03.06.1997 flies in face of the petitioner since petitioner
was one of the petitioners seeking probate of the Will by which
certain property was given to the son of the petitioner and other
legatees.
15. Learned counsel further submitted that after
partition dated 03.06.1997, sale deeds were also executed by
another brother, Sudhir Kumar Sah, wherein in the West side of
the boundary, property of respondent no. 1 has been shown.
Therefore, it is apparent that partition dated 03.06.1997 was
acted upon by all the brothers. Further, respondent no. 1 got
mutation of the land done in her name and municipal rent
receipts have been issued in the name of respondent no. 1. So,
prima facie case is in favour of the respondent no. 1. Learned
counsel further submitted that it is very surprising that the
learned trial court ordered for maintenance of status quo though
the learned trial court did not find any prima facie case, balance
of convenience or irreparable loss lies in favour of the
petitioner. If the three ingredients, i.e, prima facie case, balance
of convenience and irreparable loss for grant of injunction, have
been found missing in the case of the petitioner, no status quo
order ought to have been passed by the learned trial court.
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
Further, against the finding of the learned trial court about
absence of three ingredients, the petitioner did not prefer any
appeal and did not challenge the finding. So, the finding of the
learned trial court has attained finality and the same could not
be challenged before this Court in civil miscellaneous petition
as no appeal was preferred. Therefore, the case of the petitioner
is hit by principles of res judicata.
16. Learned counsel further submitted that the
petitioner had not challenged any of the documents of the
respondents and not even the partition dated 03.06.1997 though
specific plea has been taken by the respondent no. 1 in her
written statement. Considering this fact along with recital of
Schedule-8 of compromise petition of compromise decree, it is
apparent that the petitioner has no prima facie case and
respondent no. 1 has rightfully purchased the suit property for
consideration as his vendor was having share in Khata No. 39,
Plot No. 710, Area 04 Acres 12 decimal.
17. Learned counsel further submitted that from the
year 2004 to 2018 there was no dispute between the parties. For
the first time, dispute was created by the petitioner in 2018
when Section 144 proceeding was initiated. It is surprising that
for 14 years no injury was being caused to the petitioner and all
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
of sudden, he started having apprehension. Delay is one of the
important grounds to refuse temporary injunction and, therefore,
the petitioner is not entitled for the relief of temporary
injunction. So, balance of convenience is not in favour of the
petitioner rather it is in favour of respondent no. 1. Once, the
respondent no. 1 has been able to show that her vendor has a
rightful share in the Schedule-8 land and she has purchased the
part of the said land from the share of her vendor, prima facie
case is in favour of respondent no. 1 and this fact get fortified
from the circumstances, as there has been no dispute from the
year 2004 to 2018 between the parties. Other co-sharers also
recognized the right of respondent no. 1 who was shown in
boundary of their sale deeds. The learned trial court also
recorded that none of the ingredients, i.e., prima facie case,
balance of convenience and irreparable loss lie in favour of the
petitioner and this finding remained unchallenged and the same
cannot be challenged before this Court under its supervisory
jurisdiction and this Court cannot disturb such finding.
18. Learned counsel further submitted that if no injury
was caused to the petitioner from 2004 to 2018, it shows no
irreparable loss is going to be caused to the petitioner even in
future. Further, the probate case of the petitioner was filed in the
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
year 1996 and it shows the conduct of the petitioner is
completely dishonest and he has approached this Court making
false averment and concealing a number of material facts which
disentitles him from seeking any relief of temporary injunction.
Thus, the learned counsel reiterated that the petitioner has not
approached this Court with clean hands and his prayer cannot be
acceded to since 'one who seeks equity must do equity'. Thus,
the learned counsel submitted that the present petition is devoid
of merit and the same be dismissed.
19. By way of reply, learned senior counsel, appearing
on behalf of petitioner, submitted that the facts of the case of
Venkataraja (supra) are not applicable in the present case as in
the said case possession by way of eviction of tenant was not
sought and for this reason the suit of simple declaration was not
found maintainable. Mr. Dvivedi further submitted that though a
number of issues have been raised, this Court has only to decide
whether injunction ought to be granted or not as other materials
could be taken care of by the learned trial court. Mr. Dvivedi
again referred to the decision in the case of Maharwal Khewaji
Trust (supra) to submit that the Court has to ensure that the
decree does not become barren and referred to the decision of
this court in the case of Dharam Nath Ojha v. Raghunath
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
Ojha, 2001 (2) PLJR 268, wherein the learned Single Judge in
Paragraph-9 held as under:
"9. Having considered the rival
submissions, I am of the view that this
application ought to be allowed. Law is well
settled that if a lis has been admitted for
adjudication, then it becomes the duty of the
Court to preserve the subject matter of the
litigation by an appropriate order so that the
same is available at the time of final
adjudication and the decree does not become a
barren one. Secondly, the circumstances have
changed since the order dated 16.8.99 was
passed. While dealing with such an application
filed pursuant to this Court's order dt. 16.8.99,
the trial court has recorded in its order dated
25.9.2000 (Annexure B) that no steps for
preparation of the final decree have at all been
taken by the parties. He has, therefore, found
himself unable to entertain the said application.
Secondly, after the aforesaid order has been
passed whereby the balance of the suit has been
revived, it is in the fitness of the things that this
Court should interfere in the matter. In that
view of the matter, both the sides are hereby
injuncted from changing the nature, character,
user of, or cutting any of the trees standing on,
the suit property, or alienating any portion, till
further order of this Court."
20. I have given my thoughtful consideration to the
rival submission of the parties and minutely perused the record.
21. Though lengthy submission has been advanced on
behalf of the parties, but the matter in issue lies in very narrow
compass whether the ingredients for grant of injunction, i.e.,
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
prima facie case, balance of convenience and irreparable loss
are in favour of the petitioner or not? For deciding this, only a
short discussion is required.
22. The whole issue revolves around the Schedule-8
of compromise petition of compromise decree dated 02.03.1978
passed in Partition Suit No. 207 of 1971. The description of
Schedule 8 mentioned in compromise petition of compromise
decree reads as under:
"८. यह कक, ससुलहननामना हनाजना कक कसकडिउल नन०
८ ममें कजस जममीन कना तफकसल कदियना जनातना हह , वह
जममीन पकटट्रोल टनकमी कक कनारनावनार करनक वट्रो इन्डिस्टमी ममें
जममीन दिकन क कक कलए शमी अकनल कसु मनार प्रसनादि सनाह वट्रो
ससुधमीर कसु मनार प्रसनादि सनाह ववाँ शमी प्र मट्रोदि कसु मनार प्रसनादि
सनाह कट्रो कदियना जनातना हह , कक यक तमीननों व्यककत पहटट्रोल
टनकमी कक कनारट्रोबनार वट्रो इन्डिस्टमी कक कलए इस जममीन
कट्रो कडिलवमीथ भमी कर सकतक हह , इसममें ककसमी फरमीक
कट्रो कट्रोई उजर एतरनाज नहमी हह वट्रो न हट्रोगना।"
Now, the Schedule-8 in which the details of properties
have been mentioned reads as under:
"flfMmy ua0 08
rQfly ,jkth tks isVjkSyVaddh dkjksckj oks bUMLVªh ds fy, eqnbZ
oks eqnkyg ua0 3 rk 4 dks fn;k x;kA
¼d½ ookds ekStk oSyouok] Fkkuk ua0167 ftyk iwohZ pEikj.kA
[kkrk [ksljk jdck dSfQ;r
39 710 4&12 e; nj[krku ekStqns ,jkth
¼[k½ ookds egYyk iSBkuVksyh] Fkkuk eksfrgkjh ua0122 ftyk iwohZ
pEikj.kA
[kkrk [ksljk jdck dSfQ;r
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
32 2555 0&6
2556 0&7 eS edku oks lgu
0&13
¼x½ ookds ekStk egYyk folkrh iVh] Fkkuk eksfrgkjh ua0 122
ftyk& iwohZ pEikj.kA
[kkrk [ksljk jdck dSfQ;r
767 1384 0&4 A eS edku oks lgu
1445 0&3 A
0&7
¼?k½ ekStk dksYgqvM+ok] Fkkuk eksfrgkjh] ftyk iwohZ pEikj.kA
[kkrk [ksljk jdck
540 443 0&62
,&Mh
fetku%& oSyouok ¼d½ 4&12
iSBkuVksyh ¼[k½ 0&13
folkrhiVh ¼x½ 0&7
dksYgqvM+ok ¼?k½ 0&62
4&94
ckt jgs dh bl tk;tkn dk viuk viuk fgLlk eqnkyg ua0&1] 2
rFkk 5 bteky tehu o edku esa viuk fgLlk ikosaxs o tks
bteky esa cp tk;sxk mlesa gj Qjhd dk 1@6 gksxkA"
23. This recital at the end of the description of
Schedule-8 property clinches the issue and does not leave any
doubt. It shows that the claim of the petitioner that the property
was exclusively allotted to the petitioner and his two brothers,
namely Sudhir Kumar Sah and Pramod Kumar Sah, might not
be correct. If it were so, there was no occasion for mentioning
about rights of defendant nos. 1, 2 and 5 in the said Schedule.
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
24. Further, the inclusion of some property in the Will
of testator-Jamuna Prasad Sah and the petitioner himself being a
petitioner in Probate Case No. 12 of 1996, which was granted
by vide order dated 12.08.2016 also points to the fact that
vendor of respondent no. 1 got the share in the suit property of
Khata No. 39 Plot No. 710. Though the petitioner has denied
partition of 03.06.1997, but the petitioner did not demur in
taking benefit of the same partition in favour of his minor son in
Probate Case No. 12 of 1996. Rather the petitioner has very
conveniently omitted to mention about the probate case though
Schedule-8 property formed part of the property of the Will for
which probate was sought for by the petitioner. Mentioning of
the name of respondent no. 1 in the western boundary of sale
deed dated 19.04.2021 executed by the brother of the petitioner,
namely Sudhir Kumar Sah, with respect to land comprised in
Khata No. 39 Plot No. 710 area 3.23 decimal, is also a pointer
to the fact that respondent no. 1 came into possession of the suit
land prioer to the execution of the sale deed by the brother of
the petitioner. Taking together these relevant facts, it amply
demonstrates that the petitioner utterly failed to show any
'prima facie case' or 'balance of convenience' or 'irreparable
loss' in his favour. The issue of preservation of lis property
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
would arise only if the petitioner could have shown prima facie
case, balance of convenience and cause cause of irreparable loss
to him and therefore, reliance placed on Maharwal Khewaji
Trust (supra) is misconceived.
25. In the light of recital of Schedule-8 of compromise
petition of compromise decree dated 02.03.1978 followed by
subsequent events, like institution of Probate Case No. 12 of
1996 and purported partition dated 03.06.1997 and further
execution of sale deed by brother of petitioner, namely Sudhir
Kumar Sah, indicate absence of any prima facie case in favour
of the petitioner. This fact also becomes apparent as area of
Khata No. 39 Plot No. 710 is 04 acre 12 dhurs and if claim of
the petitioner is taken on its face value that it had fallen in
execlusive share of only three brothers, the share of the
petitioner would come to 1.37 acres, but admittedly, the
petitioner in Para-5 of his plaint has stated that he received 01
Bigha 04 Kattha from the suit plot of Khata No. 39 Plot No.
710, which comes around 74 decimal which is much less than
the claimed share of the petitioner since it has nowhere been
stated that any property of the suit plot of 710 was sold out
reducing the share of his brothers. Therefore, there appears no
prima facie case in favour of the petitioner and rather it appears
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
in favour of the respondent no. 1.
26. Further, the sale deed in favour of respondent no.
1 was executed on 08.11.2004 and till 2018, no issue arose
between the parties. The petitioner has not been able to show
what are the grounds of of his apprehension after 14 years of
execution of the sale deed by respondent no. 2 in favour of
respondent no. 1. Merely saying that the petitioner came to
know about sale deed after initiation of proceeding under
Section 144 Cr.P.C. would not suffice for the purpose.
Therefore, taking into account the absence of prima facie case,
no balance of convenience lies in favour of the petitioner and
the petitioner has also failed to show how any irreparable injury
is going to be caused to him since there is nothing on record in
support of the contention of the petitioner regarding irreparable
injury.
27. In the light of aforesaid facts and circumstances
and the discussion made here-in-before, I am of the considered
opinion that the petitioner has failed to bring out a case in his
support and there is no error of jurisdiction in passing the order
dated 08.05.2023 by the learned Additional District Judge-19,
Motihari and hence, the order dated 08.05.2023 is hereby
affirmed.
Patna High Court C.Misc. No.620 of 2023 dt. 14-08-2025
28. Accordingly, the present civil miscellaneous
petition is dismissed.
29. However, it is made clear that the observations
made hereinabove are wholly in the context of the issue that
arose in the present civil miscellaneous petition and the learned
trial court would proceed to dispose of the suit pending before it
without getting influenced in any manner.
(Arun Kumar Jha, J)
Ashish/-
V.K.Pandey
AFR/NAFR AFR
CAV DATE 10.07.2025
Uploading Date 14.08.2025
Transmission Date NA
