S. Chandrashekhar, J. - (1.) AGGRIEVED by order dated 4.6.2014 in Title (Misc.) Appeal No. 1 of 2013, the present writ petition has been filed. The petitioners are plaintiffs in Title (Partition) Suit No. 45 of 2009. The parties to the partition suit are descendants from common ancestor namely, Chikhur Gawala and they are governed by Mitakshara School of law in the matter of succession and inheritance. The plaintiffs claimed that the recorded tenants or their legal heirs and successors never divided and partitioned the suit land by metes and bounds and they jointly came in possession over the suit property. The defendants filed written statement in three sets taking various objections to the maintainability of the suit. In the pending partition suit, the plaintiffs filed application under Order XXXIX, Rule 1(A) CPC for grant of temporary injunction on the allegation that the defendants are adamant to dig foundation for substantial construction on Plot Nos. 168 and 169. The application was allowed however, the appellate court set aside order dated 28.6.2013 in Title (Partition) Suit No. 45 of 2009.
(2.) THE learned counsel for the petitioners submits that during the pendency of the partition suit, parties must be restrained from changing the nature of the suit property. The plaintiffs made specific assertion that the defendants were trying to raise substantial construction. The trial court recorded a finding of prima facie case in favour of the petitioners. The trial court also found balance of convenience in favour of the plaintiffs. It is contended that the trial court directed the parties to maintain status quo and not to make substantial construction or alienate any portion of the suit property however, the appellate court without holding that the findings recorded by the trial court were perverse, interfered with order dated 28.6.2013, which is liable to be set aside. As noticed above, it is not in dispute that parties are descendants of one common ancestor. The plaintiffs have claimed jointness whereas, the defendants have taken a plea of previous partition. It further appears that both the parties entered into transactions through registered sale deeds. The appellate court has found that both parties are residing on separate portions of the suit property. The subsequent purchasers are in possession of the land and they got their names mutated in the revenue record. In the application under Order XXXIX, Rule 1(A) CPC, the plaintiffs have averred as under: - - "7. That the defendants are moneyed men and are dangerous and desperate persons having no regards of law and court and are adamant and bent upon to dig foundation for constructing substantial structures on plot Nos. 168 and 169 by show of force and violence and on protest being made by the plaintiffs they were threatened of being killed for which the plaintiff -Ramesh Yadav filed application before the Superintendent of Police, Pakur and also before the S.D.M. Pakur on 28.1.2013 praying for drawing up a proceeding under the preventive sections of the Cr.P.C."
(3.) IT is apparent that the plaintiffs have not disclosed either the name of the defendants or date on which they tried to raise substantial construction over the Plot Nos. 168 and 169. They have also failed to produce any documentary evidence in support of the assertion made in paragraph No. 7 of the application. Only a vague assertion has been made by the petitioners in application for injunction. The trial court after noticing the stand taken by both the parties records, "under the facts and circumstances and also taking into consideration the pleadings of both the parties and submissions made on behalf of the parties, there appears a prima facie case and balance of convenience in favour of the plaintiffs". In order dated 28.6.2013, the Trial Judge has not recorded specific finding as to possession of the plaintiffs over Plot Nos. 168 and 169 or title of the plaintiffs over the same. On a vague assertion of the plaintiffs, the trial court granted an order of injunction in favour of the plaintiffs which, in my opinion, has rightly been set aside by the appellate court. Considering the above facts, I find no error in the impugned order dated 4.6.2014 and accordingly, the writ petition is dismissed.;