SUDARSAN MISRA Vs. ILAMANI DIBYA AND ANOTHER

JUDGEMENT

(1.) While considering the question of grant of temporary injunction in this appeal, I heard the appeal on merits since the appeal is also against order of refusing temporary injunction and same questions would be involved both for grant of temporary injunction as well as for disposal on merits.

(2.) This impugned order arises out of a suit for partition. There is no dispute that parties are agnets. While plaintiffs case is that there is no partition, defendants case is that there has already been partition. I need not express any view in this respect at this stage which will be decided on merits. Plaintiff has prayed defendants to be restrained temporarily during pendency of the suit from alienating any property or cutting any trees on the disputed land. Details of the trees on the suit land have not been given. It is also not found out from the plaint. Accordingly, on vague assertions, there is no scope for temporarily restraining the defendants from cutting any trees or branches. Prayer of the plaintiff to that extent is rejected.

(3.) Defendants have alienated some of the properties before the suit was filed. Purchasers have been made parties. Prayer has been made for those properties alienated to be allotted to the share of vendors. Apprehending that during pendency some more landed properties may be alienated, application has been filed. It is stated on behalf of the respondent that respondent no. 1 is an old lady aged about 80 years. She has no other source of income and she is to maintain herself. It is submitted that in such circumstances, balance of convenience is in favour of not restraining her. On the other hand it is submitted that in case alienation's are made, there may be difficulty in allotment. The best lands may be sold away by her leaving worthless land for the plaintiff. Once the properties are sold, the purchasers may have to be made parties in the suit to bind them by the decision of the suit.