IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.86 of 2002
Madan Prasad & Anr
Versus
Maneshwar Sahani (since deceased) substituted by
Mostt. Malati Devi & others.
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21` 19-9-2011 I.A.No. 4316 of 2010
This Interlocutory application has been filed on
behalf of the appellants under Order 39 Rules 1 and 2 and
section 151 of the Code of Civil Procedure for restraining
the respondents from interfering in the possession of the
appellants with regard to the suit properties and further for
directing the respondents not to alienate the suit properties
during the pendency of this appeal.
Heard the learned counsel appearing on behalf of
the appellants and the learned counsel appearing on behalf
of the respondents.
The original respondent, who had been plaintiff in
the suit, had filed the suit for declaration of his title and
possession over two plots i.e., Plot nos. 737 and 741, the
total area being 3 kathas 4 dhurs. The defendants appeared
in the suit and contested the claim of the plaintiff. The suit
was dismissed and thereafter an appeal had been filed,
which was allowed. From the perusal of the judgments of
the courts below it appears that the plaintiff and the
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defendants both are claiming the same land wherein the
plaintiff’s claim is based upon the purchase in the year
1990 from Mahadeo Mahato, son of Dhebar Mahato and the
defendants’ claim is based upon the purchase of the land in
the year 1957 from Tildhari Mahto and Rupdhari Mahato.
The plaintiff and the defendants are close relatives as step
brother, step mother and her son.
This second appeal has been admitted by order
dated 23-5-2003 and the substantial questions of law for
consideration had been formulated. The learned counsel
appearing on behalf of the appellants has submitted that if
the third party interest would be created during the
pendency of this appeal , it would cause serious
complication and prolong the litigation. He has further
submitted that the fact that the appeal has been admitted for
hearing after formulating substantial questions of law itself
shows that he has got a prima facie case for consideration
by this Court. In reply, the learned counsel appearing on
behalf of the respondents has submitted that the facts
recorded by the courts below are findings of fact and the
same shall be binding upon this Court in second appeal. It
has been further submitted that the appellate court has got
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no prima facie case which is clear from the findings of fact
recorded against him in the courts below. However, the
learned counsel could not justify the alienation of the suit
property during the pendency of this appeal, but has
submitted that this Interlocutory application has been filed
in the year 2010 and nothing has happened uptil now, then it
can be inferred that nothing will happen during the
pendency of the appeal also. However, it has been further
submitted that a portion of the suit property has already
been alienated.
In view of the facts stated above and submissions
made by the parties, it is clear that this appeal is against the
judgment of reversal and has been admitted for hearing on
the basis of substantial questions of law involved therein. It
is well-settled that if once a lis has been admitted for
consideration by Court, effort should be made to maintain
the status quo with regard to the suit property in order to
ensure that the ultimate decree may not be a barren one.
As such, both the parties are hereby restrained
from alienating , encumbering or creating third party
interest with regard to the suit property without permission
of this Court.
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This Interlocutory application is, accordingly,
disposed of with the aforesaid directions.
( V. Nath, J.)
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