IN THE COURT OF CIVIL JUDGE (S.

D)­X,
MOTIHARI, EAST CHAMPARAN,
PRESENT PRESIDING OFFICER SH. SUMIT KUMAR SINGH
PARTITION SUIT NO. 218 OF 2016
IN THE MATTER OF:
RASOOL MIA & ORS. ...PLAINTIFFS

VERSUS

ISLAM MIA & ORS. ...DEFENDANTS

Present application dated 11.02.2022 has been filed by defendant

no. 1 and 2 seeking ad­interim injunction against the plaintiff

thereby restraining them from executing any conveyance deed with

respect to the suit land.

The first question which came for discussion is whether defendant

can file an application under Order 39 Rule 1 & 2 CPC.

The law of injunction in our country finds its roots from the equity

jurisprudence inherited from English law, who borrowed it from

the Roman law. Following the principle of Ubi jus, ibi remedium, an

injunction provides remedy by prohibiting/restraining person(s)

from doing a specified act or commanding them to undo some

wrong or injury. The relief of injunction is discretionary and

equitable and cannot be claimed as a matter of right.

In usual course, such interim reliefs are sought under Order 39

PS 218/2016 RASOOL MIA & ORS. VS ISLAM MIA & ORS. PAGE NO.
CPC. At the same time Section 94 and Section 151 of the Code also

confer power upon the court to grant temporary injunction in order

to prevent the ends of justice being defeated. Thus, Hon'ble

Karnataka High Court held in Tamminedi Ramakrishna Etc. vs N.

Jayalakshmi (MFA No. 102788/2020) judgment dated 15.03.2021

that defendant can also seek injunction against plaintiff under

Order 39 Rule 1 & 2 CPC. The SLP (C) No(s). 12678­12679/2021

filed against the said judgment has now been dismissed by the

Hon'ble Supreme Court. As such the view taken by Hon'ble

Kernataka High Court had been upheld. In the said matter Hon'ble

Karnataka High Court had affirmed the decision of the Trial Court,

thereby granting temporary injunction in favour of the defendant

under Order 39 Rule 1 and 2 CPC. In the said judgment Hon'ble

Karnataka High Court had sought to distinguish the three sub­

rules of Order 39 Rule 1 of the Code, wherein, sub­rule (b) and (c)

provide the remedy only to the Plaintiff as opposed to sub­rule sub

rule (a) which is a general provision, "that any property in dispute

in a suit is in danger of being wasted, damaged or alienated by any

party to the suit, or wrongfully sold in execution of a decree". It

was in this context that the Defendant was granted the remedy

under Order 39 Rule 1 (a) of the Code.

Thus, it is clear that even the defendant can seek appropriate

PS 218/2016 RASOOL MIA & ORS. VS ISLAM MIA & ORS. PAGE NO.
injunction under Order 39 Rule 1 (a) CPC if the property in dispute

in a suit is in danger of being wasted, damaged or alienated by any

party to the suit, or wrongfully sold in execution of a decree. It is in

this context the application filed by defendant is required to be

appreciated.

Defendants have served an advance copy of the present application

on the plaintiff. But neither the plaintiff had appeared nor they

have filed reply to the present application. Hence, the matter was

heard in their absence.

Defendants have contended that the khatiyan of the suit land was

prepared in the name of Buta, Kari, Noora sons of Tapi Mia and

Tapeshar Mia. Defendant no. 1 and 2 are the descendants of the

khatiyani raiyots. It was claimed they are in possession of the suit

land since the time of their ancestors. It is also the case of

defendants that their father had gifted them part of the suit land

vide registered deed dated 12.02.1981. And rest of the properties

are held as the descendants of the khatiyani raiyots. It is also the

case of defendants that plaintiffs belongs to the family of Tapesar

Mia. Tapi and Tapesar have partitioned their properties soon after

the Revisional Survey. In the said partition the suit land was

allotted to the share of Tapi Mia and Tapesar Mia was allotted

different properties. As such plaintiffs have got no concern with the

PS 218/2016 RASOOL MIA & ORS. VS ISLAM MIA & ORS. PAGE NO.
suit land. Hence, the present case is not at all maintainable.

Defendants have mentioned all these facts in their written­

statement. When the plaintiffs came to know the real facts they

have now entered in an agreement to sale the suit land with

strangers on 25.01.2022. It has been contended that if the

plaintiffs succeeded in their design their own suit would fail.

Hence, prayer was made to issue injunction against the plaintiffs

thereby restraining them from alienating any portion of the suit

land till disposal of the suit.

Ld. counsel for defendant had also filed a copy of the agreement to

sale dated 25.01.2022. Perusal of the agreement shows that the

plaintiffs have entered in an agreement to sale the suit land with

five persons. This is a fit case which shows that the plaintiffs have

not approached this Court with clean hands. Even if it is assumed

that no partition had taken place in the family of plaintiffs and

defendants, still the share of parties are yet to be determined by

this Court. Until the share is determined and parties are allotted

properties separately, no one can sale or enter in agreement to sale

any specific property. Perusal of recital of the agreement to sale

shows that plaintiffs have claimed that they have their exclusive

possession over the property in plot no. 731. If such is a case of

plaintiffs then why have they filed the present suit. Perusal of RS

PS 218/2016 RASOOL MIA & ORS. VS ISLAM MIA & ORS. PAGE NO.
Khatiyan shows that khatiyan was prepared in the name of Buta,

Kari, Noora and Tapesar in which plot no. 1002 and 1078 was

shown in possession of Tapesar and plot no. 731, 1003 and 1077

was shown in possession of Buta, Kari and Noora. Even if the

khatiyan is considered properly still plaintiffs were not shown in

possession column. As such plaintiffs' own contentions in the

agreement to sale appears to be contrary to their pleadings and

khatiyan. It is not a case where the prima­facie case should exist in

favor of defendants. The mere execution of agreement to sale is

sufficient to establish that plaintiffs have taken steps to alienate

part of the suit land. Once the plaintiffs have approached this

Court for partition of the suit land, they should have desisted from

acting in any manner against their own interest. It is also not a

case where the balance of convenience must be in favor of the

defendants. It is expected that the property in dispute must be

preserved until the suit is decided so that the decree must yield

result and the exercise of parties must be fruitful. If the suit

property is alienated then no one will benefit from decree. Hence, it

is expedient that the property in dispute must be protected from

being wasted or sold by the plaintiffs. Thus, this Court finds that it

is a fit case for grant of ad­interim injunction. Accordingly, the

present application is hereby allowed. Plaintiffs are restrained from

PS 218/2016 RASOOL MIA & ORS. VS ISLAM MIA & ORS. PAGE NO.
alienating any portion of suit land, in any manner, till disposal of

the suit. Let a copy of this order be served to ld. Counsel for

defendant no. 1 and 2 for being communicated to the concerned

Sub. Registrar. The Sub. Registrar is directed not to entertain any

conveyance deed for transfer of the suit land till disposal of this

suit.

Defendant no. 1, 2 and 7 have entered appearance and rest of the

defendants have not appeared despite service of notice through the

Court. Hence, a notice was published in local news­paper.

However, none appearing defendants chose not to appear. Hence,

the matter is proceeded ex­parte against defendant no. 3, 4, 5, 6

and 8.

Pleadings completed. Let the parties remain present before the

Court for compliance under Order 10 Rule 1 & 2 CPC. List on

02.04.2022.

Civil Judge (SD)­X

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