Kashmiri Lal v. Sunil Kumar & Ors.

Sarup petitioner-defendant (hereinafter to be referred as “the defendant”) and emanating from the record, are that Sunil Kumar son of Ramesh Lal and others respondent-plaintiffs (hereinafter to be referred as “the plaintiffs) have filed the present suit for partition of the property in dispute against the defendant. The plaintiffs have also moved an application for ad interim injunction, invoking the provisions of Order 39 Rules 1 and 2 read with Section 151 CPC, restraining the defendant from making any addition or alteration, in any manner, inter-alia, pleading that the property in dispute was earlier owned by Ram Sarup, their (plaintiffs) grand-father and the father of the defendant. After his death, his estate was inherited by Kashmiri Lal-defendant, Ramesh Lal, father of plaintiff Nos.1 and 2 as well as plaintiff Nos.3 to 8, to the extent of 1/3rd share each. According to the plaintiffs, Ram Sarup (deceased) never executed any Will in favour of the defendant and the property in dispute was inherited by way of natural succession. The parties are exercising strained relations and the plaintiffs repeatedly requested the defendant to partition the suit property. Instead of effecting the partition, the defendant started claiming ownership of entire house on the basis of Will and threatened to make addition and alteration in it. Civil Revision No.4147 of 2010 2

2. The defendant contested the suit/stay application and filed the reply, in which, it was claimed that during his life time, Ram Sarup executed a valid and legal Will in his (defendant) favour and since his death, he is owner and in possession of the property in dispute. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint/stay application and prayed for their dismissal.

3. On ultimate analysis of material on record, the trial Court allowed the application under Order 39 Rules 1 and 2 read with Section 151 CPC, filed by the plaintiffs and the parties were directed to maintain status-quo, regarding the existing position of the property in dispute and were also directed not to make any addition or alteration therein, during the pendency of the suit, vide impugned order dated 22.5.2008.

4. Aggrieved by the impugned order of the trial Court, the defendant filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned order dated 27.7.2009.

5. The petitioner (defendant) still did not feel satisfied with the impugned orders of the Courts below and filed the present revision petition.

6. Having heard the learned counsel for the petitioner, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in this revision petition.

7. The main argument of the learned counsel that since the defendant is exclusive owner on account of the Will, so, he is entitled to raise any sort of construction over the property in dispute, is neither tenable nor the observations of Hon'ble Apex Court in cases Narendra Kante v. Anuradha Kante & Ors. 2010 (1) RCR (Civil) 465 and Kashi Math Samsthan & Anr. v. Srimad Sudhindra Thirtha Swamy & Anr. 2010 (1) RCR (Civil) 581, in which, the facts are entirely different, are applicable to the present controversy.

8. In Narendra Kante's case (supra), a family settlement was arrived at Civil Revision No.4147 of 2010 3 between the co-sharers and deed of family settlement was executed. It was held that if the deed of family settlement is not signed by all the co-sharers, it will not make the deed invalid if they acted upon and sold the property falling into their respective shares. On the peculiar facts and in the circumstances of that case, it was observed that “while considering an application for grant of injunction, the Court has not only to take into consideration the basic elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties, since grant of injunction is an equitable relief. If a person who had kept quiet for a long time and allowed another to deal with the property exclusively, ordinarily would not be entitled to an order of injunction.”

9. Sequelly, in Kashi Math Samsthan's case (supra), it was ruled that “in order to obtain an order of injunction, the party, who seeks for grant of such injunction, has to prove that he has made out a prima facie to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his faovur and would suffer irreparable loss and injury if no injunction order is granted.”

10. Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of the petitioner in the instant controversy.

11. As is evident from the record, Ram Sarup (since deceased) was owner of the property in dispute. According to the plaintiffs, after his death, all the legal representatives, have inherited his property by way of natural succession. On Civil Revision No.4147 of 2010 4 the contrary, the defendant himself is claiming to be owner of the entire property on the basis of the Will, allegedly executed by Ram Sarup. The plaintiffs have sought a decree for partition, being co-owners by way of natural succession.

12. As to whether the defendant had inherited the entire property of Ram Sarup on account of the Will, whether the Will is genuine or not etc. would be moot points to be decided at the time of trial of the case. In the absence of the same, it cannot possibly be saith at this stage that he became the absolute owner and is entitled to raise any sort of construction over the property in dispute, in the manner, he likes. Assuming for the sake of argument, the validity of the Will is not proved for variety of reasons, then naturally, the plaintiffs are entitled to inherit the property of Ram Sarup by way of natural succession and are entitled to their shares accordingly. In that eventuality, it would be in the interest of justice and fair play that the nature of the property in dispute is kept intact and retained as such. Thus, the contrary arguments of the learned counsel for the petitioner “stricto sensu” deserve to be and are hereby repelled, under the present set of circumstances.

13. There is another aspect of the matter, which can be viewed from a different angle. As indicated earlier, in the wake of application under Order 39 Rules 1 and 2 read with Section 151 CPC, the trial Court has directed the parties to maintain status-quo, regarding existing position and not to make any addition or alteration in the property in dispute, during the pendency of the suit, vide impugned order dated 22.5.2008, which was validly upheld by the Ist Appellate Court, vide impugned order dated 27.7.2009.

14. Meaning thereby, the Courts below have recorded a finding of fact that if the parties are not directed to maintain status quo, then the plaintiffs would suffer an irreparable loss and the defendant is not going to suffer, in any manner, in this relevant connection. Such pure finding of fact cannot possibly be interfered with, in exercise of extraordinary limited revisional jurisdiction of this Court under Article 227 of the Constitution of India, unless and until, the same are perverse and Civil Revision No.4147 of 2010 5 without jurisdiction. No such patent illegality or legal infirmity in the impugned orders has been pointed out by the learned counsel for the petitioner, so as to take a contrary view by this Court, than that of the well reasoned decision already arrived at by the Courts below.

15. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner.

16. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the trial, the present revision petition is hereby dismissed, in the obtaining circumstances of the case. However, it is made clear that nothing observed here-in-above would, in any manner, reflect on the merits of the case, as the same has been so recorded for a limited purpose of deciding this revision petition. (Mehinder Singh Sullar) Judge

7.7.2010 AS