Jatinder Singh vs Manjinder Singh

L.N. Mittal, J.

CM No. 4971-CII of 2013

The application is allowed and Annexures P-1 to P-17 are taken on record, subject to all just exceptions.

Main Case

Notice of motion.

Counsel for respondent-caveator has accepted notice. On request of counsel for the parties, the revision petition is taken up for final hearing and disposal today itself.

This is a dispute between two brothers Jatinder Singh-defendant-petitioner and Manjinder Singh respondent-plaintiff. Plaintiff has filed suit alleging that both parties are joint owners in possession of the suit properties in equal shares i.e. half share each. The plaintiff has also challenged alleged Will dated 19.03.2009 by Amrik Singh, father of the parties, in favour of defendant-petitioner. Plaintiff has also claimed permanent injunction restraining the defendant from interfering in joint possession of the plaintiff over the suit properties by dispossessing him therefrom and from alienating the half share of the plaintiff therein and from alienating specific portion thereof. Temporary injunction to the same effect was also claimed by the plaintiff by moving separate application.

Case of the plaintiff is that the suit property is coparcenery property of the parties and both of them have half each therein. Their father did not execute the alleged Will dated 19.03.2009 which is illegal.

The defendant by filing written statement and reply contested the suit and the application for temporary injunction. Averments made by the plaintiff were controverted. It was pleaded that defendant is exclusive owner in possession of the suit property, in view of legal and valid Will dated 19.03.2009 executed in his favour.

Learned trial Court, vide order dated 23.03.2012 Annexure P-1, granted temporary injunction restraining the defendant from alienating half share of the plaintiff in the suit properties and from alienating specific portion thereof till disposal of the suit. The defendant unsuccessfully challenged the said order by filing appeal, which has been dismissed by lower Appellate Court vide judgment dated 11.12.2012 Annexure P-2. Aforesaid orders of both the Courts below are under challenge in this revision petition filed by defendant under Article 227 of the Constitution of India.

I have heard learned counsel for the parties and perused the case file.

Counsel for the petitioner contended that the plaintiff-respondent had earlier filed a suit against the present defendant as well as Amrik Singh, father of the parties, during the lifetime of the father claiming the suit property to be coparcenery property but the said suit stands dismissed vide judgment and decree dated 10.10.2012 Annexure P-12 by the trial Court. However, admittedly the first appeal against said judgment and decree is pending and, therefore, the petitioner cannot derive any benefit out of said judgment and decree.

Learned counsel for the petitioner also referred to Will dated 19.03.2009 executed in favour of the petitioner by the father. However, affidavits of witnesses of the said Will have been produced by the plaintiff negativing the Will. The defendant has not produced any counter-affidavit regarding genuineness of the Will.

In the aforesaid circumstances, it cannot be said that impugned orders of the courts below suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. Both the Courts below have exercised concurrent discretion in favour of the plaintiff by granting temporary injunction. The said discretion cannot be interfered with by this Court in exercise of revisional jurisdiction unless it is depicted to be patently perverse or suffering from grave error resulting in manifest injustice. However, petitioner has failed to depict that the impugned orders of the Courts below suffer from any such vice. On the other hand, even if two views are possible, the view taken by the Courts below cannot be reversed in exercise of revisional jurisdiction, merely because another view is also possible. For the reasons aforesaid, I find no merit in this revision petition, which is accordingly dismissed. However, nothing observed hereinbefore shall be construed as expression of opinion on merits of the suit.