High Court Patna High Court - Orders

Binay Kumar Chaudhary vs Shri Mahavir Prasad Chaudhary& on 15 November, 2011

Patna High Court – Orders
Binay Kumar Chaudhary vs Shri Mahavir Prasad Chaudhary& on 15 November, 2011
                        IN THE HIGH COURT OF JUDICATURE AT PATNA
                                 Miscellaneous Appeal No.772 of 2010
               Binay Kumar Chaudhary, S/o Sri Mahavir Prasad Chaudhary through Smt.
               Sudha Chaudhary W/o Sri Binay Kumar Chaudhary Power of Attorney
               holder Vide Registered deed no. 188/10 dated 06/05/10 by the Distt. Sub-
               Registrar, Sitamarhi Resident of Village Bela, Bahadurpur, PS Nanpur
               Distt. Sitamarhi presently residing at Sector 5, Plot No. 2, Y-109
               Vivekanand Apartment, Dwarka, New Delhi 1111007.
                                                    ....... (Plaintiff)       Appellant
                                                    Versus
               1. Shri Mahavir Prasad Chaudhary, S/o Late Sunder Narayan Chaudhary
                  Resident of Village Bela, Bahadurpur, PS Nanpur, P.O. BelaShanti
                  Kutir, Distt. Sitamarhi, presently residing at Dumara Nagar Panchayat,
                  Ward No. 3, P.O. & P.S. Dumara, Distt. - Sitamarhi.
                                             (Defendant No. 1) Respondent No. 1
               2. Dr. Abhay Kumar Chaudhary, S/o Sri Mahavir Prasad Chaudhary,
                  Resident of Village Bela, Bahadurpur, P.S. - Nanpur, P.O. - Bela
                  Shanti Kutir, Distt. - Sitamarhi, presently (Flat No. 203 Triveni
                  Niwaas) residing at Rajendra Nagar, RK Avenue, Nalaroad, Patna -
                  8000016.
               3. Dr. Renu Chatterjee, W/o Dr. Prof. Tushar Kanti Chatterjee (D/o Sri
                  Mahavir Prasad Chaudhary) Resident of Nagar Udyan Path, Ward No.
                  23, Naya Sitamarhi, P.O. & P.S. & Distt. - Sitamarhi.
               4. Smt. Kalpana Beni Puri, W/o Ratan Kumar Beni Puri (D/o Shri
                  Mahavir Prasad Chaudhary Resident of (Flat No. 8, Block No. 13),
                  Acharltara Apartment, Adhai Miles Sevalk Road, Siligurhi, West
                  Bengal Pin Code 734001.
               5. Smt. Bhawna Dwivade W/o Late Major Shaheed Chandra Bhusan
                  Dwivedi (D/o Mahavir Prasad Chaudhary), Resident of 252 Vijaz Veer
                  Awaas Yojana, Sector 18A, Dwarika, New Delhi Pin Code 110078.
                                (Defendants No. 2 to 5) = Respondents No. 2 to 5.
               6. Ajay Kumar Chaudhary, S/o Late Rabindra Prasad Singh (Resident of
                  Village Bela, Bahadurpur, P.S. - Nanpur, P.O. - Bela Shanti Kutir,
                  Distt. - Sitamarhi Present residing at Dumara Nagar Panchayat, Ward
                  No. 3, P.O. & P.S. - Dumara, Distt. - Sitamarhi.)
                                    (Defendant No. 6) = Respondent No. 6.
                                       ----------------------------------

9 15.11.2011 Heard Sri Raj Kishore Prasad, learned counsel for

the appellant and learned counsel appearing on behalf of

respondent no. 1.

The present appeal under order XLIII Rule 1(r) of

the Code of Civil Procedure has been preferred against an order

dated 08.06.2010 passed by Sub Judge I, Sitamarhi in Title

Partition Suit No. 95 of 2010. By the said order the learned court
2

below has rejected the injunction petition filed by the

plaintiff/appellant. The plaintiff/appellant has filed a suit for

partition of the properties arraying the respondents as

defendants. The respondent no. 1 is the father of the appellant. It

was pleaded before the court below that the respondent no. 1 had

transferred some joint property to respondent no. 6 and with a

view to restrain the defendant no. 1 & 6 the petition under order

39 rule 1 & 2 read with section 151 of the Code of Civil

Procedure was filed.

On perusal of the impugned order it appears that the

plaintiff/appellant has included the self acquired property of the

defendant no. 1 in the suit for partition. It is further evident that

the appellant/plaintiff had not made out a prima facie case for

grant of injunction in his favour. Moreover, it is settled principle

of law that in ordinary course in a partition suit the court should

restrain from passing any interim injunction.

I do not find any defect in the impugned order. The

appeal stands dismissed.

Praful                         ( Rakesh Kumar, J.)