Bhaskar Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of defendant No. 2 in a suit for partition and is directed against order dated 17th May, 2004 passed by the learned Civil Judge, Senior Division, Purulia in Title Suit No. 114 of 2003 thereby disposing of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiffs-respondents thereby directing both the plaintiffs and defendant No. 2 to maintain status quo in respect of nature and character of the suit property and also restraining the said defendant from transferring any portion of the property described in the Schedule of the plaint till the disposal of the suit.
(2.) The plaintiffs-respondents filed the aforesaid suit in the Court of Civil Judge, Senior Division, Purulia, thereby praying for partition of 1/7th share of each of the plaintiffs in the suit property and for separation of possession of the same. The case made out by the plaintiffs-respondents may be summarised thus: (a) One Hanuman Prasad Kejriwal was the common ancestor of plaintiffs and defendant Nos.1 to 16 who died in the year 1986 leaving behind his four sons, namely, Saligram, Kishanlal, Arjun Prasad, the defendant No1 and Basant Kumar Kejriwal, the defendant No.2 as his heirs. (b) Saligram died in the year 1997 leaving behind him his son Praveen Kumar, the defendant No. 10 and six daughters namely, Sushila, Saroj, Sarita, Sunita, Aruna and Kiran, the defendant Nos. 11 to 16 respectively. Kishanlal died in the year 1959 leaving behind his four sons namely, Deepak, the defendant No.3, Dilip, Suman, the plaintiff No. 1 and Ajoy, the plaintiff No. 2 and widow Parbati, the defendant No. 4. Dilip died in the year 2000 leaving behind his four sons Vineet, Vishal, Varun and Vikram, the defendant Nos. 5 to 8 respectively and widow Kiran, the defendant No. 9 as his heirs. (c) The premises situated in Mouza Raghabpur, Desbandhu Road, within Purulia Municipality are described in Schedule II and are locally known as "Tower Villa", previously belonging to one Amarendra Krishna Ghosh. (d) On the death of Amarendra Krishna Ghosh, the property was obtained by his widow Parul Sundari Ghosh and two sons, Anil Krishna Ghosh and Sushil Krishna Ghosh. Parul Sundari Ghosh having released her share in the property to the aforesaid two sons, they became owners of the property. The aforesaid two sons made gift in respect of half of their share in favour of their respective wife namely, Smt. Renuka Ghosh and Smt. Aruna Ghosh for their lives with a stipulation that after their death, their respective shares should devolve upon absolutely on their sons. (e) While the aforesaid owners of the property in suit were in possession, they having offered to sell the property, Deepak Kumar Kejriwal, the defendant No.3, on behalf of plaintiffs and/or himself and Dilip Kumar Kejriwal agreed to purchase the same for which consideration was settled at Rs. 2,00,000/-. It was further settled that the sale deed in respect of the property in suit would have to be executed by owners in the name of Deepak Kejriwal or in the names of persons to be nominated or selected by defendant No.3 and plaintiffs. (f) Pursuance to the aforesaid agreement, the aforesaid heirs executed sixteen sale deeds i.e. eight deeds by the wife and sons of Anil Krishna Ghosh and eight other by the wife and the sons of Sushil Krishna Ghosh in respect of the property. (g) For the convenience of transfer and to complete the transfer of the property described in Schedule II, it was divided into eight lots out of which six sale deeds in respect of lots 1,7 and 8 were in the name of defendant Nos. 1 to 3, two sale deeds in respect of lot 2 were in the name of Dilip Kumar Kejriwal, the father of defendant Nos. 5 to 8 or the husband of defendant No.9, two sale deeds in respect of lot No. 3 were obtained in the name of Basant Kumar Kejriwal, the defendant No. 2, two sale deeds in respect of lot No.4 were in the name of Saligram Kejriwal, the plaintiff No. 1 in respect of lot No. 5 and two sale deeds in the name of plaintiff No.2 as the plaintiffs, defendant No. 3 Dilip Kejriwal and the defendant Nos. 1 and 2 and Saligram were members of a Mitakshara Coparcenaries having cordial relation amongst them. The entire consideration was paid by defendant No.3 Deepak Kejriwal which was shared by the plaintiff and Dilip Kejriwal with defendant No.3 equally. (h) The defendant No.2 Basant Kejriwal was a Mining Engineer and was in service. His cost of education was borne out from the joint family income and since defendant No.2 obtained his service, he used to visit Purulia only on the occasions of marriage and other ceremonial occasions in the family. The defendant No.2 used to stay at the place of service and after his retirement from service, the defendant No.2 used to reside at Delhi and thereafter, is settled at Kanpur. (i) Since 1990, the plaintiffs and their brothers under the guardianship of defendant No.3 started living separately and having separate kitchen with defendant No. 1 and Saligram, the father of defendant Nos. 10 to 16. (j) The defendant Nos.l and 2 and Saligram though not paid a farthing, for convenience of purchase the property was acquired in the manner aforesaid. But the property acquired by different deeds was residential house surrounded by compound wall and does not denote any specific portion belonging to any particular person in whose names the deeds stand. The property in suit was thus joint property of plaintiffs and defendant Nos. 1 to 16. (k) Although entire amount of consideration was paid by and on behalf of the plaintiffs, Dilip Kejriwal and defendant No.3, yet the property in suit had been treated as the joint property of the plaintiffs, the defendant Nos. 1 to 4 and Dilip, the father of defendant Nos. 5 to 8. (1) In the property in suit plaintiffs, Dilip Kumar Kejriwal and the defendant No.3 each had 1/7th share. The defendant Nos. 1 and 2 and Saligram each had 1/7th share and at the death of Saligram his share has devolved upon his son, Praveen, the defendant No. 10 and six daughters, the defendant Nos. 11 to 16 in equal share. (m) After the purchase in the manner aforesaid, the boundary wall has been reconstructed by the plaintiffs, the defendant No. 3 and Dilip Kejriwal as the compound wall was considerably damaged for which the plaintiffs and their brothers spent Rs. 3,60,000/-. The defendant Nos. 17 to 24 being the transferees in respect of the portion of the property in suit were impleaded in the suit as defendants. (n) The defendant Nos. 25 to 30 were claiming over a portion of the property in suit on the basis of alleged purchase from the defendant No. 1 in respect of portion of the property in suit. (o) The sale deed executed by defendant No. 1, if any, in favour of the defendant Nos. 25 to 30 is absolutely illegal, fraudulent, and collusive and not binding and never given effect to and by virtue of such deed executed in favour of defendant Nos. 25 to 30, they could not acquire any manner of right, title and interest over the property. As the parties feel inconvenience in using the same, hence the suit.
(3.) In connection with the aforesaid suit, the plaintiffs filed an application for temporary injunction restraining the defendant No. 2 from transferring any portion of the suit property till the disposal of the suit on allegation that the defendant No. 2 was trying to transfer the suit property by taking advantage of the fact that the deed in respect of lot No.3 is exclusively in his name.;