Ranu vs Lokender

Vivek Singh Thakur, J

Instant petition has been preferred against judgment dated 21st March, 2020 passed by learned Additional District Judge, Kullu in Civil Miscellaneous Appeal No. 07 of 2019, titled Lokender vs. Ranu whereby order dated 9th September, 2019 granting interim injunction passed by the Civil Judge Manali, District Kullu in CMA No. 29 of 2019 titled Ranu vs. Lokender, has been set aside.

2 Parties hereinafter, for convenience, shall be referred according to their status in Civil Suit. As such, petitioner(herein) shall be referred to as ‘plaintiff’ and respondent(herein) shall be referred to as ‘defendant’.

3 I have heard learned counsel for parties and have also gone through record.

4 Plaintiff Ranu has preferred a suit against defendant Lokender, who is her real brother, for permanent prohibitory injunction restraining him from interfering, threatening to dispose and from raising any construction over the land comprised in Khasra No. 1041, 1038, Khata/Khatauni No. 189/260 recorded in jamabandi for the year 2016-17 of Muhal and Phati Soyal Kothi Barshai, Tehsil Manali, District Kullu HP along with an application for temporary injunction restraining plaintiff from changing the nature of suit land till final disposal of suit.

5 The Trial Court, after considering the pleadings including the reply to application filed under Order 39 Rules 1 and 2 CPC, vide order dated 9.9.2019 had directed the parties to maintain status quo qua nature, possession and alienation of the suit land.

6 The aforesaid order was assailed by defendant by filing appeal, which was allowed by learned Additional District Judge vide order dated 21.03.2020 and interim order/temporary injunction granted by the Trial Court was vacated by setting aside the order dated 9th September, 2019. Hence present petition has been filed by plaintiff.

7 For grant or refusal of injunction, the Court has to see that in whose favour prima facie case and balance of convenience are, and which party would suffer irreparable loss in case of allowing or disallowing the prayer of temporary injunction. Factum of boanfide contest of the Trial Court involving serious question of making out a case for trial, is also a relevant consideration for allowing or denying the temporary injunction.

8 In present case, as per plaintiff father of parties namely Mehar Chand died on 26th January, 2008 leaving behind the parties and their mother Bimla. His property was inherited by them in equal shares. After death of Bimla on 13th September, 2014, defendant claimed inheritance of entire property of Mehar Chand on the basis of fraud and fictitious Will dated 30.12.2007 and attestation of mutation No.161 dated 24.03.2008 in his favour in the alleged presence of plaintiff, whereas she was not present at the time of attestation of mutation. According to defendant, it came in her knowledge after death of mother when she inquired from Patwari.

9 In revenue record, defendant has been reflected as owner in possession along with other co-sharers but in exclusion of plaintiff. This fact is evident from the jamabandi for the year 2016-17 placed on record by plaintiff herself. It is also an admitted fact that plaintiff has also filed a separate suit assailing the validity of Will on the basis of which property has been inherited by defendant from his father and in the said suit, direction has been given to parties to maintain status quo qua possession and alienation. There is no temporary injunction in the said suit with respect to nature of suit land.

10 In aforesaid background, plaintiff, on 6th May, 2019, has preferred the suit in reference wherein temporary injunction was granted directing parties to maintain status quo qua nature, possession and alienation of the suit land.

11 In reply to application under Order 39 Rules 1 and 2 CPC, it has been specifically claimed by defendant that during the life of his mother Bimla Devi, it was agreed between the parties that the suit property owned and possessed by Bimla Devi, on the basis of inheritance from her husband, will be given to defendant and land measuring 00-10-00 Bighas situated at village and Phati Gojra abutting the Naggar-Manali State Highway and a two and half storied house constructed thereon which was inherited by Smt. Bimla Devi from her father will be given to plaintiff and the same was given to plaintiff which has been sold by plaintiff and thereafter, now plaintiff is claiming her right in suit property by disputing the Will. Nothing has been brought to the notice of the Court to rebut this plea.

12 Admittedly, though signatures have been denied by plaintiff, mutation has been attested in alleged presence of plaintiff, in favour of defendant on the basis of Will. According to plaintiff, defendant claimed his right on entire property after death of mother on 13th September, 2014, defendant on the basis of fraud and fictitious Will got registered and mutation attested and sanctioned in his favour on the basis of the said Will and plaintiff has already filed a suit for declaration before the Civil Judge Manali regarding the suit land which is pending adjudication. It has been stated in plaint that defendant started collecting material on the spot in April 2019 and on 3.5.2019 he flatly refused to admit the claim of plaintiff, and thus, cause of action arose to plaintiff to file the suit. Later on, after issuance of process to defendant, his wife appeared in Court and it transpired that defendant was not in India during those days and, therefore, claim of plaintiff was found to be false with respect to cause of action.

13 It is also a matter of consideration that in earlier suit, there is direction to parties to maintain status quo qua possession and title and in such a situation, when suit pertains to same property is already pending between the parties whether the separate suit for temporary injunction would be maintainable or not and further that as to whether application for modification of temporary injunction should have been made in alleged changed circumstances in same suit wherein title of suit is being adjudicated.

14 In aforesaid facts and circumstances, it can easily be construed that prima facie case is not in favour of plaintiff for granting the injunction and balance of convenience also appears to be in favour of defendant and in these circumstances, it would be the defendant who shall suffer irreparable loss on granting injunction against him.

15 However, for maintaining the balance of rights of both sides, it would be appropriate to impose the condition upon the defendant that in case, in future, suit is decreed in favour of plaintiff and she is held entitled for share in the suit property then she shall be entitled for equal shares in the property with equal front of road side as the suit land is abutting to road and in such a situation, defendant shall not be entitled to claim any equity on the basis of construction already raised and if construction is found suitable by plaintiff then she would be entitled to half share in the suit property including the construction raised thereon without making any payment and further that if construction so raised would not be suitable for plaintiff then she shall be entitled for vacant land after dismantling the construction raised on the share allotted to her or otherwise in terms of decree, if any, passed in her favour. As major construction work has been completed during pendency of suit, cost for dismantling shall be paid by the defendant. Being unwarranted in present petition, I have not rendered any opinion or finding regarding rival claims of parties with respect to raising of construction during enforceability of injunction or after that. However, it is apparent that construction has been raised during pendency of lis. The impugned judgment is affirmed with aforesaid modifications.

16 With aforesaid observations and the modifications in the impugned judgment, present petition is disposed of in aforesaid terms along with pending miscellaneous application(s).

Record of the Courts below be sent back immediately.