IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.186 of 1978
LALITESHWAR PD. VERMA
Versus
GIRISH NANDAN PD VERMA
-----------
ORDER
56. 02.12.2010 Heard learned Senior counsel Mr. Shiv Nandan
Roy on behalf of respondent No.8, Mr. Shashi Shekhar
Diwedi, learned Senior counsel on behalf of respondent
No. 7 and Mr. Amrendra Narayan, learned counsel on
behalf of respondent Nos. 1 and 2 on Interlocutory
Application No. 2589 of 2010.
This interlocutory application No. 2589 of 2010
has been filed by the respondent No.8 praying therein to
restrain the appellant as well as respondents and their
men from making/constructing any boundary wall in front
of house of respondent No. 8 on suit plot No. 470.
It may be mentioned here that this first appeal
has been filed by Laliteshwar Prasad Verma against the
judgment and decree dated 31.1.1978 passed by Sri
Dineshwar Prasad Sinha, 2nd Subordinate Judge,
Sitamarhi in Partition Suit No. 5 of 1969/ 80 of 1975
decreeing the plaintiffs-respondents’ suit.
The subject matter of the partition suit includes
various properties including land of printing press called
2
Saraswati Press measuring 2 kattha 2 dhur. The learned
court below allotted 1 kattha 1 dhur in favour of the
plaintiff-respondent and 1 kattha 1 dhur in favour of the
defendant-appellant out of the said land of printing press.
It appears that during the pendency of this first appeal
the appellant sold 1 kattha 7 dhur out of the suit plot No.
470 (Saraswati Press Land) in favour of respondent No. 7
on 22.9.2001 and again the appellant sold 12 dhur 10
dhurki out of suit plot No. 470 in favour of respondent
No.8.
By terms of the order dated 29.1.2002 both
these transferees from the appellant were added as
respondent Nos. 7 and 8 in this appeal.
The respondent No.8 has filed this injunction
application alleging that he had purchased three storied
house from the appellant and his wife Poonam Devi and is
residing there with his family but recently the respondent
No.7 has accumulated material such as bricks, sand,
cement etc. for construction of boundary wall. If the
respondent No.7 and the appellant are not restrained
from blocking the road passage in front of house of
respondent No.8, he shall suffer serious loss and
irreparable injury.
The learned Senior counsel Mr. Shiv Nandan
Roy appearing on behalf of the respondent No.8
submitted that there is no other way except the front
3
road/passage and if the respondent No.7 is allowed to
construct the boundary wall then the ingress and egress
of the respondent No.8 would be blocked causing
irreparable loss.
On the other hand Mr. Diwedi, the learned
counsel appearing on behalf of respondent No.7
submitted that he has purchased 1 kattha 7 dhur from
the appellant in the month of September 2001 and the
sale deed of the respondent No.8 is in the month of
November 2001 and, therefore, the respondent No.8 has
not acquired any title to the suit plot. Moreover, in the
final decree 1 kattha 1 dhur only was allotted in favour of
the appellant i.e. the vendor of the respondent No.7 as
well as respondent No.8. The learned counsel further
submitted that so far the triple storied building is
concerned it was not the subject matter of the partition
suit. The learned counsel further submitted that the
respondent No.7 is not disturbing the possession of the
respondent No.8 and the respondent No.7 is even not
going to encroach an inch of land of respondent No.8.
Because of his purchase from the appellant the
respondent No.7 is in possession of 1 kattha 1 dhur and
he is only constructing a boundary wall to fence his land
measuring 1 kattha 1 dhur, therefore, there is no
question of granting any injunction in favour of
respondent no.8 arises.
4
The learned counsel for respondent No.1 and 2
also objected to the prayer of the respondent no.8 and
submitted that the respondent no.8 has purchased three
storied building from Poonam Devi and three storied
building was never the subject matter of partition suit.
The plaintiffs-respondents are in possession of 1 kattha 1
dhur allotted in their favour out of 2 kattha and 2 dhur of
plat no. 470 and the rest 1 kattha 1 dhur was allotted in
favour of the present appellant.
It appears that the partition suit has been
decreed and so far suit plot No. 470 is concerned which
measures two kattha 2 dhur has been divided into two
parts. 1 kattha and 1 dhur has been allotted in favour of
the appellant and 1 kattha 1 dhur has been allotted in
favour of the plaintiffs-respondents. The respondent No.7
purchased 1 kattha 7 dhur on 22.7.2001 out of suit plot
No. 470 from the appellant whereas respondent No.8
purchased only 12 dhur 10 dhurki on 27.11.2001 from
the appellant and his wife Poonam. It may be mentioned
here that Poonam Devi is not party to the suit. From
perusal of paragraph 6 of the injunction application it
appears that Poonam Devi obtained the land in the year
1976 from one Ram Peyari Devi and she had constructed
three storied building. It is specific statement of the
respondent No. 8 in that paragraph that after purchase
Poonam Devi constructed three storied building and
5
remained there for 25 years and thereafter sold the same
to respondent No.8 on 27.11.2001.
In the injunction application it is stated only
that the respondent no.7 and appellant are accumulating
bricks, sand and cement for constructing of boundary
wall. On the contrary, in the counter affidavit it is
mentioned that the respondent No. 7 is making boundary
wall on his land and respondent no. 7 is not going to take
one inch in excess of 1 kattha 1 dhur. In view of the
above facts, now the dispute is between the two
purchasers from the appellant. According to the
respondent No.8 the appellant and respondent No.7 are
going to block the passage whereas according to
respondent No.7 he is going to construct a boundary wall
on his own land. It is not clear as to which passage is
going to be blocked and where the said passage exists. It
is also not clear in which direction of the house of
respondent No.8 the said passage exists. Whether that
passage is on the land of respondent No.8 himself or that
passage is on the land of respondent No.7 or whether the
said passage is public passage is also not clear. Only a
bald statement has been made that if construction of
boundary wall is allowed then ingress and egress will be
affected. In my opinion, this is a dispute inter se between
the transferees and it requires evidence. Only on the
statement that ingress and egress will be blocked without
6
there being any evidence in support of the said facts the
respondent No.8 is not entitled for grant of injunction.
In view of my above discussion, I find that
respondent no.8 has got no prima facie case for grant of
any injunction. Since it is the case of respondent no.7
that he is not encroaching an inch even from the land of
respondent No.8, in my opinion the balance of
convenience is also not in favour of respondent no.8.
In view of the above facts, I also find that there
is no question of serious loss and irreparable injury.
Accordingly, this injunction application is rejected.
( Mungeshwar Sahoo, J)
S.S.