Shanti Devi And Others vs Raj Kumari And Others

Jyotsna Rewal Dua, J

This petition under Article 227 of the Constitution of India is against the order dated 02.09.2021 passed by the learned Appellate Court, whereby the

order passed by the learned Trial Court on 05.09.2017 in an application moved by the petitioners/plaintiffs under Order 39 Rule 1 and 2 read with

Section 151 of the Code of Civil Procedure (CPC) was affirmed.

2(i). The suit was filed by the petitioners/plaintiffs. It was a dispute between two lines of successors of late Sh. Lachman. The line represented by the

petitioners/ plaintiffs contended that the other line represented by the respondents/defendants was not entitled to the property of late Sh. Lachman and

that Mutation No.1739, sanctioned on 21.01.1958 and subsequent mutations attested on that basis in favour of the respondents/defendants were illegal

and void. Alongwith the suit, the petitioners/plaintiffs moved an application under Order 39 Rule 1 and 2 read with Section 151 CPC, seeking relief of

temporary injunction for restraining the respondents/defendants from changing the nature, raising any sort of construction, alienating or encumbering

the suit property in any manner and getting the suit land partitioned during the pendency of the suit.

2(ii). The application was contested by the respondents/defendants. After hearing learned counsel for the parties, learned Trial Court passed an order

on 05.09.2017 on the application, directing the parties to maintain status quo qua the suit land to the extent of raising construction, changing the nature

and encumbering the suit land. The said order, however, was not to affect any proceedings pending before any other Court or Authority.

2(iii). Aggrieved against this order, the petitioners/ plaintiffs filed an appeal under Order 43 Rule 1 CPC before the learned Appellate Court. The

appeal was dismissed vide order dated 02.09.2021.

It is in the aforesaid background that the instant petition has been preferred assailing the order passed by the learned Appellate Court on 02.09.2021,

affirming the order passed by the learned Trial Court on 05.09.2017.

I have heard learned Senior Counsel for the petitioners and gone through the case record.

The petitioners in their application under Order 39 Rule 1 and 2 CPC had sought the relief of temporary injunction to restrain the

respondents/defendants from changing the nature, raising any sort of construction, getting the suit land partitioned and alienating or encumbering the

suit land in any manner. After discussing the matter in the light of three factors of prima facie case, balance of convenience and irreparable loss,

learned Trial Court vide order dated 05.09.2017, has already allowed petitioners’ application to the extent of directing the parties to maintain status

quo qua the suit land with respect to raising construction, changing the nature and encumbering the suit land. The order has correctly been affirmed by

the learned Appellate Court. Both the Courts below were justified in observing that in the facts and circumstances of the case, the partition

proceedings cannot be halted. Both the Courts below have observed that as per the revenue record, the suit land was joint between the parties. The

respondents/defendants have been shown to be the joint owners over the suit land in the revenue record. The partition proceedings were preferred by

the respondents/ defendants before the Assistant Collector, 1st Grade in June, 2014, i.e. before the institution of suit. On perusal of the impugned

order, I do not find any illegality or irregularity in the order.

Accordingly, the instant petition lacks merit and is accordingly dismissed, so also the pending miscellaneous application(s), if any.

It is, however, clarified that above order shall remain confined to the adjudication of the present petition and shall have no bearing on the merits of the

matter. Learned Trial Court shall decide the main matter on its own merit without being influenced by any of the observations made above.