Patna High Court
Jawahar Lal vs Jai Prakash Lal on 17 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.30 of 2024
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Jawahar Lal Son of Late Sheo Nath Lal, resident of village- Sonpa, Post
Office- Sonpa, Police Station- Rajpur, District - Buxar.
... ... Petitioner
Versus
Jai Prakash Lal Son of Late Sheo Nath Lal, resident of village - Sonpa, Post
Office - Sonpa, Police Station - Rajpur, District - Buxar.
... ... Respondent
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Appearance :
For the Petitioner/s : Mr. Parijat Saurav, Advocate
For the Respondent/s : Mr. Sanjay Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 17-02-2025
Heard the learned counsels for the parties and I intend
to dispose of the present at the stage of admission itself.
02. The petitioner has filed the present petition
seeking following relief(s):-
"i. For setting aside the order dated
24/11/2023
passed by the court of learned
Additional District Judge-IV, Buxar in Misc.
Civil Appeal No. 08/2023 whereby the appeal
of the petitioner against the order dated
24/03/2023 passed by the court of Sub-Judge-
III, Buxar in Title Suit No. 02/2023 has been
dismissed and further for setting aside the
order dated 24/03/2023 passed by the court of
Sub-Judge-III, Buxar in Title Suit No. 02/2023
whereby the application of the
plaintiff/respondent has been allowed by the
learned trial court and both the parties are
directed to maintain status quo on the suit
property.
ii. For issuance of any other appropriate
Patna High Court C.Misc. No.30 of 2024 dt.17-02-2025
writ, order or direction which Your Lordships
may deem fit and proper in the facts and
circumstances of the case"
03. Learned counsel for the petitioner submits that the
petitioner is defendant before the learned trial court and
respondent is plaintiff and both are brothers. The plaintiff-
respondent filed Title Suit No. 02 of 2023 seeking partition of
the suit property against the defendant-petitioner and the suit
property included 05 decimal of land situated at plot no. 1510 at
village-Sonpa. Prior to that, the defendant-petitioner filed Title
Partition Suit No. 786 of 2022 for partition by metes and bound
for full coparcenary property of the family claiming 1/8th share.
Title Suit No. 02 of 2023 was filed confining the claim of
partition for some of the ancestral property for which averment
was made that there was already a memorandum of partition
dated 05.03.1996 in the family and the present partition was
sought for only the property falling in share of the father of the
parties. In Title Suit No. 02 of 2023, respondent filed an
application under Order 39 Rule 1 of the Code of Civil
Procedure, 1908 (for short 'the Code') praying for injunction
against the petitioner. Meanwhile, the application of the
respondent, filed for appointment of Pleader Commissioner, was
allowed and the Pleader Commissioner submitted his report in
Patna High Court C.Misc. No.30 of 2024 dt.17-02-2025
the court on 27.01.2023, which was objected to by the petitioner
who appeared and filed his objection to the injunction petition
of the respondent as well. However, learned Sub Judge-II, Buxar
allowed the injunction application of the plaintiff-respondent
vide order dated 24.03.2023 directing the parties to maintain
status quo on the suit property. Against the said order, the
petitioner approached the court of learned District Judge, Buxar
by filing Misc. Appeal No. 08 of 2023. The miscellaneous
appeal was heard and disposed of by the learned Additional
District Judgge-IV, Buxar vide order dated 24.11.2023
dismissing the appeal. The orders passed by the learned Sub
Judge as well as learned first appellate court are under challenge
before this Court.
04. Learned counsel for the petitioner further submits
that the orders dated 24.03.2023 passed in Title Suit No. 02 of
2023 and 24.11.2023 passed in Misc. Appeal No. 08 of 2023 are
bad in the eyes of law and are not sustainable. Learned
subordinate courts failed to appreciate that no prima facie case
for allowing status quo was made out as the defendant-
petitioner was only making renovation and construction over the
old house, no irreparable loss or injury would have been caused
to the plaintiff/respondent and no balance of convenience has
Patna High Court C.Misc. No.30 of 2024 dt.17-02-2025
been made out in favour of the respondent for granting status
quo. The petitioner is in urgent need of house as he is not having
any dwelling house to reside. Learned counsel further submits
that the learned courts below did not consider the fact that on
the subject matter and for the same relief, petitioner has earlier
filed Title Suit No. 786 of 2022 and subsequent suit ought not to
have been allowed to proceed in the light of Section 10 of the
Code. Learned counsel further submits that while the respondent
has been residing with his family in the ancestral house at
Buxar, the petitioner is not being allowed to have a dignified
place of residence in Village-Sonpa. Learned counsel further
submits that the petitioner has all along been maintaining that he
would not make any construction over and above 2.5 decimal
land which would fall in his share in Plot No. 1510, which is in
his possession. Thus, the learned counsel submits that the
impugned orders are not sustainable and the same needs to be
set aside.
05. On the other hand, learned counsel appearing on
behalf of the respondent, vehemently contends that there is no
infirmity in the impugned orders and the same are proper and
correct. Learned counsel further submits that the learned
appellate court has recorded its finding that when the Pleader
Patna High Court C.Misc. No.30 of 2024 dt.17-02-2025
Commissioner visited and inspected the spot and submitted his
report, the report reflected that new construction was going on
total area of 87x45 feet, which was admitted by the present
petitioner, who claimed that he has purchased adjoining 03
decimal land of Plot No. 1511 and has been making construction
on said land as well as some area of plot no. 1510. However, the
learned first appellate court calculated the total area and came to
a finding that if the petitioner had been making construction
over his purchased 03 decimal land plus 2.5 decimal land of his
share of joint family property, only 270 square yards should
have been the area of new construction but admittedly, the new
construction was going on over 435 square yards which is much
more than the share of the petitioner. Learned counsel further
submits that, in fact, the petitioner was making construction
over full 05 decimal area of land, which is joint family property
of parties, which is yet to be partitioned. The petitioner wants to
completely oust the respondent from his share of joint family
property. Learned counsel further submits that learned
subordinate courts have considered all the facts and passed valid
and legal orders. Learned counsel further submits that the suit
property is required to be preserved till the disposal of the lis
and this fact was taken into consideration by the learned
Patna High Court C.Misc. No.30 of 2024 dt.17-02-2025
subordinate courts. Learned counsel further submits that even
though the petitioner has filed Title Suit No. 786 of 2022, he did
not seek leave of the court for making construction over the suit
land and started the construction unilaterally. Learned counsel
also submits that the petitioner has been playing victim card and
age difference between the brothers is only two years and both
of them had been working in Bokaro from where they have
returned to their native place after retirement. Thus, the learned
counsel submits that there is no infirmity in the impugned orders
and the same do not require any interference.
06. I have given my thoughtful consideration to the
rival contentions of the parties and perused the record.
07. The perusal of record makes it clear that there is
concurrent findings by two subordinate courts and the petitioner
has failed to show any perversity in the orders of either the first
appellate court or the court of learned Sub Judge. It is settled
principle of law unless some glaring mistake or perversity is
present in the orders of the learned subordinate courts while
granting injunction or refusing it, this Court would refrain from
interfering with concurrent findings of the subordinate courts.
Moreover, in the case of Maharwal Khewaji Trust (Regd.),
Faridkot Vs. Baldev Das, reported in (2004) 8 SCC 488, the
Patna High Court C.Misc. No.30 of 2024 dt.17-02-2025
Hon'ble Supreme Court has held that the lis property is to be
preserved till the disposal of the suit so that it is available when
the suit is decided. Otherwise, the decree would become barren
and the whole process would become a fruitless exercise. Both
the orders of the learned subordinate courts are only to the effect
that parties should maintain status quo and thus have been
passed for preservation of the suit property.
08. In the light of aforesaid discussion, I do not find
any reason to interfere with the impugned order. Hence, the
order dated 24.11.2023 passed by the court of learned
Additional District Judge-IV, Buxar in Misc. Civil Appeal No.
08/2023 and the order dated 24.03.2023 passed by the court of
Sub-Judge-III, Buxar in Title Suit No. 02/2023 are hereby
affirmed.
09. Accordingly, the present Civil Misc. petition
stands dismissed being devoid of merit.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 20.02.2025
Transmission Date NA
